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 7 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 7 of 8)

Service of Process in Actions in Personam: Individuals, Resident and Nonresident.--The proposition being well established that no person can be deprived of property rights by a decree in a case in which he neither appeared, nor was served or effectively made a party, it follows, by way of illustration that to subject property of individual citizens of a municipality, by a summary proceeding in equity, to the payment of an unsatisfied judgment against the municipality would be a denial of due process of law.[695] Similarly, in a suit against a local partnership, in which the resident partner was duly served with process and the nonresident partner was served only with notice, a judgment thus obtained is binding upon the firm and the resident partner, but is not a personal judgment against the nonresident and cannot be enforced by execution against his individual property.[696] That the nonresident partner should have been so protected is attributable to the fact the process of a court of one State cannot run into another and summon a party there domiciled to respond to proceedings against him, when neither his person nor his property is within the jurisdiction of the Court rendering the judgment.[697] In the case of a resident, however, absence alone will not defeat the processes of courts in the State of his domicile; for domicile is deemed to be sufficient to keep him within reach of the State courts for purposes of a personal judgment, whether obtained by means of appropriate, substituted service, or by actual personal service on the resident at a point outside the State. Amenability to such suit even during sojourns outside is viewed as an "incident of domicile."[698] However, if the defendant, although technically domiciled therein, has left the State with no intention to return, service by publication; that is, by advertisement in a local newspaper, as compared to a summons left at his last and usual place of abode where his family continued to reside, is inadequate inasmuch as it is not reasonably calculated to give him actual notice of the proceedings and opportunity to be heard.[699]

In the case of nonresident individuals who are domiciled elsewhere, jurisdiction in certain instances may be perfected by requiring such persons, as a condition to entering the State, to designate local agents to accept service of process. Although a State does not have the power to exclude individuals until such formal appointment of an agent has been made,[700] it may, for example, declare that the use of its highways by a nonresident is the equivalent of the appointment of the State Registrar as agent for receipt of process in suits growing out of motor vehicle accidents. However, a statute designating a State official as the proper person to receive service of process in such litigation must, to be valid, contain a provision making it reasonably probable that a notice of such service will be communicated to the person sued. If the statute imposed "either on the plaintiff himself, or upon the official" designated to accept process "or some other, the duty of communicating by mail or otherwise with the defendant" this requirement is met; but if the act exacts no more than service of process on the local agent, it is unconstitutional, notwithstanding that the defendant may have been personally served in his own State. Not having been directed by the statute, such personal service cannot supply constitutional validity to the act or to service under it.[701]

Suits in Personam.--Restating the constitutional principles currently applicable for determining whether individuals, resident and nonresident, are suable in in personam actions, the Supreme Court in International Shoe Co. v. Washington,[702] recently declared that: "Historically the jurisdiction of courts to render judgments in personam is grounded on their de facto power over the defendant's person. Hence his presence within the territorial jurisdiction of a court was prerequisite to its rendition of a judgment personally binding him. * * * But now * * *, due process requires only that in order to subject a defendant to a judgment in personam, if he be not present within the territory of the forum, he have certain minimum contacts with it such that the maintenance of the suit does not offend 'traditional notions of fair play and substantial justice.'"

Suability of Foreign Corporations.--Until the enunciation in 1945 in International Shoe Co. v. Washington[703] of a "fair play and substantial justice" doctrine, the exact scope of which cannot yet be ascertained, the suability of foreign corporations had been determined by utilization of the "presence" doctrine. Defined in terms no less abstract than its alleged successor and capable therefore of acquiring meaning only in cases of specific application, the "presence" doctrine was stated by Justice Brandeis as follows: "In the absence of consent, a foreign corporation is amenable to process to enforce a personal liability only if it is doing business within the State in such manner and to such extent as to warrant the inference that it is present there".[704] In a variety of cases the Court has considered the measure of "presence" sufficient to confer jurisdiction and a representative sample of the classes thereof is set forth below.

With rare exceptions,[705] even continuous activity of some sort by a foreign corporation within a State did not in the past suffice to render it amenable to suits therein unrelated to that activity. Without the protection of such a rule, it was maintained, foreign corporations would be exposed to the manifest hardship and inconvenience of defending in any State in which they happen to be carrying on business suits for torts wherever committed and claims on contracts wherever made. Thus, an Indiana insurance corporation, engaging, without formal admission, in the business of selling life insurance in Pennsylvania, was held not to be subject in the latter State to a suit filed by a Pennsylvania resident upon an insurance policy executed and delivered in Indiana.[706] Similarly, a Virginia railway corporation, doing business in New Orleans, was declared not to be within the jurisdiction of Louisiana for the purposes of a negligence action instituted against it by a Louisiana citizen and based upon injuries suffered in Alabama.[707] Also, an Iowa railway company soliciting freight and passenger business in Philadelphia through a local agent was viewed as exempt therein from suit brought by a Pennsylvania resident to recover damages for personal injuries sustained on one of the carrier's trains in Colorado.[708] On the other hand, when a Missouri statute, accepted by a foreign insurance company and requiring it to designate the State superintendent of insurance as its agent for service of process, was construed by Missouri courts to apply to suits on contracts executed outside Missouri, with the result that the company had to defend in Missouri a suit on a policy issued in Colorado and covering property therein, the Court was unable to discern any denial of due process. The company was deemed to have consented to such interpretation when it complied with the statute.[709] Moreover, even when the cause of action arose in the forum State and suit was instituted by a corporation chartered therein, a foreign company retailing clothing in Oklahoma was held immune from service of process on its president when the latter visited New York on one of his periodic trips there for the purchase of merchandise. Notwithstanding that such business trips were made at regular intervals, the Oklahoma corporation was considered not to be doing business in New York "in such manner and to such extent as to warrant the inference that it was present there," especially in view of its having never applied for a license to do business in New York or consented to suit being brought against it there, or established therein an office or appointed a resident agent.[710]

Nor would the mere presence within its territorial limits of an agent, officer, or stockholder, upon whom service might readily be had, be effective without more to enable a State to acquire jurisdiction over a foreign corporation. Consequently, service of process on the president of a foreign corporation in a State where he was temporarily and casually present and where the corporation did no business and had no property was fruitless.[711] Likewise, service on a New York director of a Virginia corporation was not sufficient to bring the corporation into the New York courts when, at the time of service, the corporation was not doing business in New York, and the director was not there officially representing the corporation in its business.[712] On occasion, an officer of a corporation may temporarily be in a State or even temporarily reside therein; but if he is not there for the purpose of transacting business for the corporation, or vested with authority by the corporation to transact business in such State, his presence affords no basis for the exercise of jurisdiction over such nonresident employer, and any decree resulting from service upon such officer is violative of due process.[713] However, a foreign insurance corporation which had ceased to sell insurance in Tennessee but which had sent a special agent there to adjust a loss under a policy previously issued in that State could not, it was held, constitutionally object when a judgment on that claim was obtained by service on that agent.[714]

Inasmuch as a State need not permit a foreign corporation to do domestic business within its borders, it may condition entry upon acceptance by the corporation of service of process upon its agents or upon a person to be designated by the corporation or, failing such designation, upon a State officer designated by law.[715] Service on a State officer, however, is no more effective than service upon an agent in the employ of a foreign corporation when, as has already been noted, such corporation is not subject to the jurisdiction of the State; that is, has not engaged in activities sufficient to render it "present" within the State, or is subjected to a cause of action unrelated to such activities and originating beyond the forum State. Thus, a foreign insurance company which, after revocation of its entry license, continued to collect premiums on policies formerly issued to citizens of the forum State was in fact continuing to do business in that State sufficiently to render service on it through the insurance commissioner adequate to bind it as defendant in a suit by a citizen of said State on a policy therein issued to him.[716] Furthermore, a foreign corporation which, after leaving a State and subsequently dissolving, failed to obey a statutory requirement of that State that it maintain therein a resident agent until the period of limitations shall have run, or, in default thereof, that it consent to service on it through the Secretary of State, could not complain of any denial of due process because that statute did not oblige the Secretary of State to notify it of the pendency of an action. The burden was on the corporation to make such arrangement for notice as was thought desirable.[717]

To what extent these aforementioned holdings have been undermined by the recent opinion in International Shoe Co. v. Washington[718] cannot yet be determined. In the latter case, a foreign corporation, which had not been issued a license to do business in Washington, but which systematically and continuously employed a force of salesmen, residents thereof, to canvass for orders therein, was held suable in Washington for unpaid unemployment compensation contributions in respect to such salesmen. Service of the notice of assessment personally upon one of its local sales solicitors plus the forwarding of a copy thereof by registered mail to the corporation's principal office in Missouri was deemed sufficient to apprize the corporation of the proceeding.

To reach this conclusion the Court not only overturned prior holdings to the effect that mere solicitation of patronage does not constitute doing of business in a State sufficient to subject a foreign corporation to the jurisdiction thereof,[719] but also rejected the "presence" test as begging "the question to be decided. * * * The terms 'present' or 'presence,'" according to Chief Justice Stone, "are used merely to symbolize those activities of the corporation's agent within the State which courts will deem to be sufficient to satisfy the demands of due process. * * * Those demands may be met by such contacts of the corporation with the State of the forum as make it reasonable, in the context of our federal system * * *, to require the corporation to defend the particular suit which is brought there; [and] * * * that the maintenance of the suit does not offend 'traditional notices of fair play and substantial justice' * * * An 'estimate of the inconveniences' which would result to the corporation from a trial away from its 'home' or principal place of business is relevant in this connection."[720] As to the scope of application to be accorded this "fair play and substantial justice" doctrine, the Court, at least verbally, conceded that "* * * so far as * * * [corporate] obligations arise out of or are connected with activities within the State, a procedure which requires the corporation to respond to a suit brought to enforce them can, in most instances, hardly be said to be undue."[721] Read literally, these statements coupled with the terms of the new doctrine may conceivably lead to a reversal of former decisions which: (1) nullified the exercise of jurisdiction by the forum State over actions arising outside said State and brought by a resident plaintiff against a foreign corporation doing business therein without having been legally admitted and without having consented to service of process on a resident agent; and (2) exempted a foreign corporation, which has been licensed by the forum State to do business therein and has consented to the appointment of a local agent to accept process, from suit on an action not arising in the forum State and not related to activities pursued therein.

By an extended application of the logic of the last mentioned case, a majority of the Court, in Travelers Health Assn. v. Virginia[722] ruled that, notwithstanding that it solicited business in Virginia solely through recommendations of existing members and was represented therein by no agents whatsoever, a foreign mail order insurance company had through its policies developed such contacts and ties with Virginia residents that the State, by forwarding notice to the company by registered mail only, could institute enforcement proceedings under its Blue Sky Law leading to a decree ordering cessation of business pending compliance with that act. The due process clause was declared not to "forbid a State to protect its citizens from such injustice" of having to file suits on their claims at a far distant home office of such company, especially in view of the fact that such suits could be more conveniently tried in Virginia where claims of loss could be investigated.[723]

Service of Process

Actions in Rem--Proceedings Against Land.--For the purpose of determining the extent of a nonresident's title to real estate within its limits, a State may provide any reasonable means of imparting notice.[724] Precluded from going beyond its boundaries and serving nonresident owners personally, States in such cases of necessity have had recourse to constructive notice or service by publications. This they have been able to do because of their inherent authority over titles to lands within their borders. Owners, nonresident as well as resident, are charged with knowledge of laws affecting demands of the State pertinent to property and of the manner in which such demands may be enforced.[725] Accordingly, only so long as the property affected has been brought under control of the Court, will a judgment obtained thereto without personal notice to a nonresident defendant be effective. Insofar as jurisdiction is thus required over a nonresident, it does not extend beyond the property involved.[726] Consistently with such principles, San Francisco, after the earthquake of 1906, had destroyed nearly all records, permitted titles to be reestablished by parties in possession by posting summons on the property, serving them on known claimants, and publishing them against unknown claimants in newspapers for two weeks.[727]

Actions in Rem--Attachment Proceedings.--In fulfillment of the protection which a State owes to its citizens, it may exercise its jurisdiction over real and personal property situated within its borders belonging to a nonresident and permit an appropriation of the same in attachment proceedings to satisfy a debt owed by the nonresident to one of its citizens or to settle a claim for damages founded upon a wrong inflicted on the citizen by the nonresident. Being neither present within the State nor domiciled therein, the nonresident defendant cannot be served personally; and consequently any judgment in money obtained against him would be void and could not thereafter be satisfied either by execution on the nonresident's property subsequently found within the State or by suit and execution thereon in another State. In such instances, the citizen-plaintiff may recover, if at all, only by an in rem proceeding involving a levy of a writ of attachment on the local property of the defendant, of which proceeding the nonresident need be notified merely by publication of a notice within the forum State. However, any judgment rendered in such proceedings can have no consequence beyond the property attached. If the attached property be insufficient to pay the claim, the plaintiff cannot thereafter sue on such judgment to collect an unpaid balance; and if property owned by the defendant cannot be found within the State, the attachment proceedings are, of course, summarily concluded.[728]

Actions in Rem--Corporations, Estates, Trusts, Etc.--Probate administration, being in the nature of a proceeding in rem, is one to which all the world is charged with notice.[729] Thus, in a proceeding against an estate involving a suit against an administratrix to foreclose a mortgage executed by the decedent, the heir, notwithstanding that the suit presents an adverse claim the disposition of which may be destructive of his title to land deriving from the decedent, may properly be represented by the administratrix and is not entitled to personal notification or summons.[730] For like reasons, a statutory proceeding whereunder a special administrator, having charge of an estate pending a contest as to the validity of the will, is empowered to have a final settlement of his accounts without notice to the distributees, is not violative of due process. The executor, or administrator c.t.a., has an opportunity to contest the final settlement of the special administrator before giving the latter an acquittance; and since the former represents all claiming under the will, it cannot be said the absence of notice to the distributees of the settlement deprives them of their rights without due process of law.[731]

In litigation to determine succession to property by proceedings in escheat, due process is afforded by personal service of summons upon all known claimants and constructive notice by publication to all claimants who are unknown.[732] Whether a proceeding by the State to compel a bank to turn over to it unclaimed deposits in quasi in rem or strictly in rem, the essentials of jurisdiction over the deposit are that there be a seizure of the res at the commencement of the suit and reasonable notice and opportunity to be heard. These requirements are met by personal service on the bank and publication of summons to depositors and of notice to all other claimants. The fact that no affidavit of impracticability of personal service on claimants is required before publication of such notices does not render the latter unreasonable inasmuch as they are used only in cases where the depositor is not known to the bank officers to be alive.[733] Similarly, a Kentucky statute requiring banks to turn over to the State deposits long inactive is not violative of due process where, although the deposits are taken over upon published notice only, without any judicial decree of actual abandonment, they are to be held by the State for the depositor until such determination and for five years thereafter.[734] However, a procedure is at least partly defective whereby a bank managing a common trust fund in favor of nonresident as well as resident beneficiaries may, by a petition, the only notice of which is by publication in a local paper, obtain a judicial settlement of accounts which is conclusive on all having an interest in the common fund or in any participating trust. Such notice by publication is sufficient as to beneficiaries whose interests or addresses are unknown to the bank, since there are no other more practicable means of giving them notice; but is inadequate as a basis for adjudication depriving of substantial rights persons whose whereabouts are known, inasmuch as it is feasible to make serious efforts to notify them at least by mail to their addresses on record with said bank.[735] On the other hand, failure to make any provision for notice to majority stockholders of a suit by dissenting shareholders, under a statute which provided that, on a sale or other disposition of all or substantially all of corporate assets, a dissenting shareholder shall have the right, after six months, to be paid the amount demanded, if the corporation makes no counter offer or does not abandon the sale, does not deny due process; for the majority stockholders are sufficiently represented by the corporation.[736]

Actions in Rem--Divorce Proceedings.--The jurisdictional requirements for rendering a valid decree in divorce proceedings are considered under the full faith and credit clause. See pp. 662-670.

Misnomer of Defendant--False Return, Etc.--An unattainable standard of accuracy is not imposed by the due process clause. If a defendant within the jurisdiction is served personally with process in which his name is misspelled, he cannot safely ignore it on account of the misnomer. If he fails to appear and plead the misnomer in abatement, the judgment binds him. In a published notice intended to reach absent or nonresident defendants, where the name is a principal means of identifying the person concerned, somewhat different considerations obtain. The general rule, in case of constructive service of process by publication, tends to strictness. However, published notice to "Albert Guilfuss, Assignee," in a suit to partition land, was adequate to render a judgment binding on "Albert B. Geilfuss, Assignee," the latter not having appeared.[737]

Foreclosure of a mortgage made upon process duly issued but which the sheriff falsely returned as having been duly served, and of which the owner had no notice, does not deprive said owner of property without due process of law. A purchaser of the land at the sheriff's sale has a right to rely on such return; otherwise judicial proceedings could never be relied upon. The mortgagor must seek his remedy against the sheriff upon his bond.[738]

Notice and Hearing

Legislative Proceedings.--While due notice and a reasonable opportunity to be heard to present one's claim or defense have been declared to be two fundamental conditions almost universally prescribed in all systems of law established by civilized countries,[739] there are certain proceedings appropriate for the determination of various rights in which the enjoyment of these two privileges has not been deemed to be constitutionally necessary. Thus the Constitution does not require legislative assemblies to discharge their functions in town meeting style; and it would be manifestly impracticable to accord every one affected by a proposed rule of conduct a voice in its adoption. Advanced notice of legislation accordingly is not essential to due process of law; nor need legislative bodies preface their enactment of legislation by first holding committee hearings thereon. It follows therefore that persons adversely affected by a specific law can never challenge its validity on the ground that they were never heard on the wisdom or justice of its provisions.[740]

Administrative Proceedings.--To what extent notice and hearing are deemed essential to due process in administrative proceedings, encompassing as they do the formulation and issuance of general regulations, the determination of the existence of conditions which have the effect of bringing such regulations into operation, and the issuance of orders of specific, limited application, entails a balancing of considerations as to the desirability of speed in law enforcement and protection of individual interests. When an administrative agency engages in a legislative function, as, for example, when, in pursuance of statutory authorization, it drafts regulations of general application affecting an unknown number of people, it need not, any more than does a legislative assembly, afford a hearing prior to promulgation. On the other hand, if a regulation, sometimes described as an order or action of an administrative body, is of limited application; that is, affects the property or interests of specific, named individuals, or a relatively small number of people readily identifiable by their relation to the property or interests affected, the question whether notice and hearing is prerequisite and, if so, whether it must precede such action, becomes a matter of greater urgency.

But while a distinction readily may be made, for example, between a regulation establishing a schedule of rates for all carriers in a State, and one designed to control the charges of only one or two specifically named carriers, the cases do not consistently sustain the withholding of advance notice and hearing in the first class of regulations and insist upon its provision in the latter. In fact, the observation has been made that the judicial disposition to exact the protection of notice and hearing rises in direct proportion to the extent to which a regulation affects the finances of business establishments covered thereunder. Accordingly, if a regulation bears only indirectly upon income and expenses, as for example, a regulation altering insurance policy forms, less concern for such procedural protection is likely to be expressed than in the case of the formulation of a minimum wage schedule, even though the regulations involved in both illustrations are general and not limited in operation. Moreover, if regulations, which are general in their application, may be readily subjected to judicial challenge after their promulgation, or if the parties to which they apply are affected only when they endeavor to comply in the future, advance notice and hearing is less likely to be viewed as essential to due process.[741]

As to that portion of administrative activity pertaining to the making of determinations or the issuance of orders of limited or individual application, the obligation to afford notice and hearing is reasonably clear; but controversy has been protracted on the question whether this procedural safeguard, in every instance, must be granted in advance of such activity. The most frequently litigated types of administrative action embracing the latter issue have been determinations to withhold issuance of, or to revoke, an occupational license, or to impound or destroy property believed to be dangerous to public health, morals, or safety. Apparently in recognition of the fact that few occupations today can be pursued without a license, the trend of decisions is toward sustaining a requirement of a hearing before refusal to issue a license and away from the view that inasmuch as no one is entitled as of right to engage in a specific profession, the issue of a practitioner's license applicable thereto is in the nature of a gift as to the granting or withholding of which procedural protection is unnecessary. Revocation, or refusal to renew a license, however, has been distinguished from issuance of a license; and where a license is construed to confer something in the nature of a property right rather than a mere privilege terminable at will, such property right, the Courts have maintained, ought not to be destroyed summarily by revocation without prior notice and hearing. Whether an occupational license is to be treated as a privilege revocable without a hearing, or as conferring a property right deserving of greater protection, depends very largely on prevailing estimates of the social desirability of a calling. Thus, if a business is susceptible of being viewed as injurious to public health, morals, safety, and convenience, as, for example, saloons, pool rooms, and dance halls, the licensee is deemed to have entered upon such line of endeavor with advance knowledge of the State's right to withdraw his license therefor summarily. Prompt protection of the public in such instances is said to outweigh the advantages of a slower procedure, retarded by previous notice and hearing, and to require that the person adversely affected seek his remedy from the Court via a petition to review or to enjoin the decision of the licensing authorities.[742]

For like reasons, the owner of property about to be impounded or destroyed by officers acting in furtherance of the police power may justifiably be relegated to post mortem remedies in the form of a suit for damages against the officer effecting the seizure or destruction, or, if time permits, a bill in equity for an injunction. Thus, due process of law is not denied the custodian of food in cold storage by enforcement of a city ordinance under which such food, when unfit for human consumption, may summarily be seized, condemned, and destroyed without a preliminary hearing. "If a party cannot get his hearing in advance of the seizure and destruction he has the right to have it afterward, * * * in an action brought for the destruction of his property, and in that action those who destroyed it can only successfully defend if the jury shall find the fact of unwholesomeness as claimed by them."[743] Similarly, if the owner of liquor, possession of which has been made unlawful, can secure a hearing by instituting injunction proceedings, he is not denied due process by the failure to grant him a hearing before seizure and destruction of his property.[744] Indeed, even when no emergency exists, such as is provided by a conflagration or threatened epidemic, and the property in question is not intrinsically harmful, mere use in violation of a valid police power regulation has been held to justify summary destruction. Thus, in the much criticized case of Lawton v. Steele,[745] the destruction, without prior notice and hearing, of fishing nets set in violation of a conservation law defining them to be a nuisance was sustained on the ground that the property was not "of great value." Conceding that "it is not easy to draw the line between cases where property illegally used may be destroyed summarily and where judicial proceedings are necessary for its condemnation," the Court acknowledged that "if the property were of great value, as, for instance, if it were a vessel employed for smuggling or other illegal purposes, it would be * * * dangerous * * * to permit * * * [an officer] to sell or destroy it as a public nuisance, * * * But where the property is of trifling value, * * * we think it is within the power of the legislature to order its summary abatement."[746]

Statutory Proceedings.--"It is not an indispensable requirement of due process that every procedure affecting the ownership or disposition of property be exclusively by judicial proceeding. Statutory proceedings affecting property rights, which, by later resort to the courts, secure to adverse parties an opportunity to be heard, suitable to the occasion, do not deny due process."[747] Thus, a procedure under which a State banking superintendent, after having taken over a closed bank and issued notices to stockholders of their assessment, may issue execution for the amounts due, subject to the right of each stockholder, by affidavit of illegality, to contest his liability for such an assessment, does not in effect authorize an execution and creation of a lien before and without any judicial proceeding. The fact that the execution is issued in the first instance by an agent of the State and not from a court, followed by personal notice and a right to take the case into court, is open to no objection. The statute authorizing this procedure is itself notice to stockholders that on becoming such they assumed the liability on which they are to be held.[748]

Judicial Proceedings.--Consistently with the due process clause, a State may not enforce a judgment against a party named in the proceedings without an opportunity to be heard at sometime before final judgment is entered.[749] As to the presentation of every available defense, however, the requirements of due process do not entail affording an opportunity to do so before entry of judgment. A hearing by an appeal may suffice. Accordingly, a surety company, objecting to the entry of a judgment against it on a supersedeas bond, without notice and an opportunity of a hearing on the issue of liability thereon, was not denied due process where the State practice provided the opportunity for such hearing by an appeal from the judgment so entered. Nor could the company found its claim of denial upon the fact that it lost this opportunity for a hearing by inadvertently pursuing the wrong procedure in the State courts.[750] On the other hand, where a State Supreme Court reversed a trial court and entered a final judgment for the defendant, a plaintiff who had never had an opportunity to introduce evidence in rebuttal to certain testimony which the trial court deemed immaterial but which the appellate court considered material, was held to have been deprived of his rights without due process of law.[751]

Sufficiency of Notice and Hearing.--Although the Supreme Court has wavered on the question whether the granting of notice in administrative proceedings, in cases in which the authorizing statute does not expressly provide therefor, will satisfy the requirements of due process,[752] in judicial proceedings it has almost consistently declared that notice must be provided as an essential part of the statutory provision and not as a mere matter of favor or grace.[753] Also, the notice afforded must be adequate for the purpose. Thus, a Texas statute providing for service of process by giving five days' notice was held to be an insufficient notice to a Virginian who would (at that time) have required four days' traveling to reach the place where the court was held. Nor would this insufficiency of notice on a nonresident be cured by the fact that under local practice there would be several additional days before the case would be called for trial or that the court would probably set aside a default judgment and permit a defense when the nonresident arrived.[754] On the other hand, a statute affording ten days' notice of the time for settlement of the account of a personal representative in probate proceedings is not wanting in due process of law as to a nonresident.[755] Adequacy, moreover, is no less an essential attribute of a hearing than it is of notice; and, as the preceding discussion has shown, unless a person involved in administrative as well as judicial proceedings has received a hearing that is both sufficient and fair and has been subjected to rulings amply supported by the evidence introduced thereat, he will not be considered to have been accorded due process.[756]

POWER OF STATES TO REGULATE PROCEDURE

Generally

The due process clause of the Fourteenth Amendment does not control mere forms of procedure in State courts or regulate practice therein.[757] A State "is free to regulate the procedure of its courts in accordance with its own conception of policy and fairness unless in so doing it offends some principle of justice so rooted in the traditions and conscience of our people as to be ranked as fundamental."[758] Pursuant to such plenary power, States have regulated the manner in which rights may be enforced and wrongs remedied,[759] and, in connection therewith, have created courts and endowed them with such jurisdiction as, in the judgment of their legislatures, seemed appropriate.[760] Whether legislative action in such matters is deemed to be wise or proves efficient, whether it works a particular hardship on a particular litigant, or perpetuates or supplants ancient forms of procedure are issues which can give rise to no conflict with the Fourteenth Amendment; for the latter's function is negative rather than affirmative and in no way obligates the States to adopt specific measures of reform.[761]

Pleading and Practice

Commencement Of Actions.--A State may impose certain conditions on the right to institute litigation. Thus, access to the courts may be denied to persons instituting stockholders' derivative actions unless reasonable security for the costs, and fees incurred by the corporation is first tendered. Nor is the retroactive application of this statutory requirement to actions pending at the time of its adoption violative of due process as long as no new liability for expenses incurred before enactment is imposed thereby, and the only effect thereof is to stay such proceedings until the security is furnished.[762] Moreover, when a nonresident files suit in a local court, the State, as the price of opening its tribunals to such plaintiff, may exact the condition that the former stand ready to answer all cross-actions filed and accept any in personam judgments obtained by a resident defendant through service of process or appropriate pleading upon the plaintiff's attorney of record.[763] For similar reasons, the requirements, without excluding other evidence, of a chemical analysis as a condition precedent to a suit to recover damages resulting to crops from allegedly deficient fertilizers is not deemed to be arbitrary or unreasonable.[764]

Pleas in Abatement.--State legislation which forbids a defendant to come into court and challenge the validity of service upon him in a personal action without thereby surrendering himself to the jurisdiction of the Court, but which does not restrain him from protecting his substantive rights against enforcement of a judgment rendered without service of process, is constitutional and does not deprive him of property without due process of law. Such a defendant, if he please, may ignore the proceedings as wholly ineffective, and set up the invalidity of the judgment if and when an attempt is made to take his property thereunder. However, if he desires to contest the validity of the proceedings in the court in which it is instituted, so as to avoid even semblance of a judgment against him, it is within the power of a State to declare that he shall do this subject to the risk of being obliged to submit to the jurisdiction of the Court to hear and determine the merits, if the objection raised by him as to its jurisdiction over his person shall be overruled.[765]

Defenses.--Just as the State may condition the right to institute litigation, so may it establish its terms for the interposition of certain defenses. Thus, by statute a State validly may provide that one sued in a possessory action cannot bring an action to try title until after judgment shall have been rendered in the possessory action, and until he shall have paid the judgment, if the decision shall have so awarded.[766] Likewise, a nonresident defendant in a suit begun by foreign attachment, even though he has no resources or credit other than the property attached, cannot successfully challenge the validity of a statute which requires him to give bail or security for the discharge of the seized property before permitting him an opportunity to appear and defend. "The condition imposed has a reasonable relation to the conversion of a proceeding quasi in rem into an action in personam; [and] ordinarily * * * is not difficult to comply with--* * *"[767]

Amendments and Continuances.--Amendment of pleadings is largely within the discretion of the trial court, and unless a gross abuse of discretion is shown, there is no ground for reversal; accordingly, where the defense sought to be interposed is without merit, a claim that due process would be denied by rendition of a foreclosure decree without leave to file a supplementary answer is utterly without foundation.[768]

Costs, Damages, and Penalties.--What costs are allowed by law is for the court to determine; and an erroneous judgment of what the law allows does not deprive a party of his property without due process of law.[769] Nor does a statute providing for the recovery of reasonable attorney's fees in actions on small claims subject unsuccessful defendants to any unconstitutional deprivation.[770] Equally consistent with the requirements of due process is a statutory procedure whereby a prosecutor of a case is adjudged liable for costs, and committed to jail in default of payment thereof, whenever the court or jury, after according him an opportunity to present evidence of good faith, finds that he instituted the prosecution without probable cause and from malicious motives.[771] Also, as a reasonable incentive for prompt settlement without suit of just demands of a class admitting of special legislative treatment, such as common carriers and insurance companies together with their patrons, a State through the exercise of its police power may permit harassed litigants to recover penalties in the form of attorney's fees or damages.[772] Similarly, to deter careless destruction of human life, a State by law may allow punitive damages to be assessed in actions against employers for deaths caused by the negligence of their employees.[773] Likewise, by virtue of its plenary power to prescribe the character of the sentence which shall be awarded against those found guilty of crime, a State may provide that a public officer embezzling public money shall, notwithstanding that he has made restitution, suffer not only imprisonment but also pay a fine equal to double the amount embezzled, which shall operate as a judgment for the use of persons whose money was embezzled. Whatever this fine be called, whether it be a penalty, or punishment, or civil judgment, it comes to the convict as the result of his crime.[774]

Statutes of Limitation

A statute of limitations does not deprive one of property without due process of law, unless, in its application to an existing right of action, it unreasonably limits the opportunity to enforce that right by suit. By the same token, a State may shorten an existing period of limitation, provided a reasonable time is allowed for bringing an action after the passage of the statute and before the bar takes effect. What is a reasonable period, however, is dependent on the nature of the right and particular circumstances.[775]

Thus, an interval of only one year is not so unreasonable as to be wanting in due process when applied to bar actions relative to the property of an absentee in instances when the receiver for such property has not been appointed until 13 years after the former's disappearance.[776] Likewise, when a State, by law, suddenly prohibits, unless brought within six months after its passage, all actions to contest tax deeds which have been of record for two years, no unconstitutional deprivation is effected.[777] No less valid is a statute, applicable to wild lands, which provides that when a person has been in possession under a recorded deed continuously for 20 years, and had paid taxes thereon during the same, the former owner in that interval paying nothing, no action to recover such land shall be entertained unless commenced within 20 years, or before the expiration of five years following enactment of said provision.[778] Similarly, an amendment to a workmen's compensation act, limiting to three years the time within which a case may be reopened for readjustment of compensation on account of aggravation of a disability, does not deny due process to one who sustained his injury at a time when the statute contained no limitation. A limitation is deemed to affect the remedy only, and the period of its operation in this instance was viewed as neither arbitrary nor oppressive.[779]

Moreover, as long as no agreement of the parties is violated, a State may extend as well as shorten the time in which suits may be brought in its courts and may even entirely remove a statutory bar to the commencement of litigation. As applied to actions for personal debts, a repeal or extension of a statute of limitations effects no unconstitutional deprivation of property of a debtor-defendant in whose favor such statute had already become a defense. "A right to defeat a just debt by the statute of limitation * * * [not being] a vested right," such as is protected by the Constitution, accordingly no offense against the Fourteenth Amendment is committed by revival, through an extension or repeal, of an action on an implied obligation to pay a child for the use of her property,[780] or a suit to recover the purchase price of securities sold in violation of a Blue Sky Law,[781] or a right of an employee to seek, on account of the aggravation of a former injury, an additional award out of a State administered fund.[782] However, as respects suits to recover real and personal property, when the right of action has been barred by a statute of limitations and title as well as real ownership have become vested in the defendant, any later act removing or repealing the bar would be void as attempting an arbitrary transfer of title.[783] Also unconstitutional is the application of a local statute of limitation declaring invalid any contractual limitation of the right to sue to a period shorter than two years to an insurance contract made and to be performed outside the forum State and containing a stipulation that suit thereon must be brought within one year from the date of loss. "When the parties to a contract have expressly agreed upon a time limit on their obligation, a statute which invalidates * * * [said] agreement and directs enforcement of the contract after * * * [the agreed] time has expired * * *" unconstitutionally imposes a burden in excess of that contracted.[784]

Evidence and Presumptions

The establishment of presumptions and rules respecting the burden of proof is clearly within the domain of State governments.[785] As long as a presumption is not unreasonable and is not conclusive of the rights of the person against whom raised, it does not violate the due process clause. Legislative fiat may not take the place of fact, however, in the determination of issues involving life, liberty, or property, and a statute creating a presumption which is entirely arbitrary and which operates to deny a fair opportunity to repel it or to present facts pertinent to one's defense is void. On the other hand, if there is a rational connection between what is proved and what is to be inferred, legislation declaring that the proof of one fact or group of facts shall constitute prima facie evidence of a main or ultimate fact will be sustained.[786]

On the ground that the connection between the fact proven and that presumed was not sufficient and that reasoning did not lead from one to the other, the following statutory presumptions have been voided. Thus, a statute which treated a breach of a contract to labor as prima facie evidence of an intent to defraud an employer of money paid by him in advance was found to be constitutionally defective because the trial court was permitted to disregard evidence rationally bearing upon fraud and to decide upon evidence pertaining to an unrelated breach of contract, with the consequence that an adequate hearing upon fraud was not afforded.[787] Also, since "inference of crime and guilt may not reasonably be drawn from mere inability [of a bank] to pay demand deposits and other debts as they mature," a statute making proof of insolvency prima facie evidence of fraud on the part of bank directors was deemed wholly arbitrary.[788] Similarly, negligence by one or all the participants in a grade crossing collision not being inferable from the latter occurrence, the Court voided a Georgia statute which declared that a railroad shall be liable in damages to person or property by the running of trains unless the company shall make it appear that its agents exercised ordinary diligence, the presumption in all cases being against the company, and which was construed by State courts as permitting said presumption of evidence to be weighed against opposing testimony and to prevail unless such testimony is found by a jury to be preponderant.[789] On the other hand, a South Carolina statute which raised a presumption of negligence against a railroad upon proof of failure to give prescribed warning signals was sustained because the presumption therein established gave rise merely to a temporary inference which might be rebutted by contrary evidence and which is thereafter to be excluded in determining proximate cause.[790]

Presumptions sustained as constitutionally tenable include those set out in statutes providing that when distillery apparatus is found upon the premises of an individual, such discovery shall be prima facie evidence of actual knowledge of the presence of the same;[791] that the flowing, release, or escape of natural gas into the air shall constitute prima facie evidence of prohibited waste,[792] and that prior conviction of a felony shall be conclusive evidence of bad character justifying refusal to issue a license to practice medicine.[793] Upheld, consistently with the former, were two sections of the California alien land law; one, which specified that the taking of title in the name of a person eligible to hold land, where the consideration is furnished by one ineligible to acquire agricultural land, shall raise a prima facie presumption that the conveyance is made to evade the law;[794] and a second, which cast upon a Japanese defendant the burden of proving citizenship by birth after the State endeavored to prove that he belonged to a race ineligible for naturalization.[795] In contrast with the latter result, however, is a subsequent decision of the Court holding unconstitutional another section of the same California law providing that when an indictment alleges alienage and ineligibility to United States citizenship of a defendant, the burden of proving citizenship or eligibility thereto shall devolve upon the defendant.[796] As a basis for distinguishing these last two decisions the Court observed that while "the decisions are manifold that within [the] limits" of fairness[797] and reason the burden of proof may be shifted to the defendant even in criminal prosecutions, nevertheless, to be justified, "the evidence held to be inculpatory * * * [must have had] at least a sinister significance * * *, or if this at times be lacking, there must be in any event a manifest disparity in convenience of proof and opportunity for knowledge, * * *" Whereas, accordingly, under the terms of the section previously upheld, the defendant could prove his citizenship without trouble, and the State, if forced to disprove his claim, could be relatively helpless, the background of the accused party being known probably only to himself and close relatives, the alleged Japanese defendant, in the last mentioned case, would have suffered hardship and injustice if compelled to prove non-Japanese origin, especially since ineligibility renders criminal conduct otherwise lacking in "sinister significance" (occupation of land under lease from an American codefendant).[798] On the other hand, it was held in a recent case, that Oregon was entitled to require that one pleading insanity as a defense against a criminal charge should prove same beyond a reasonable doubt, and to make "morbid propensity" no defense.[799]

Jury Trials: Dispensing With Jury Trials

Trial by jury has not been considered essential to due process, and since the Fourteenth Amendment guarantees no particular form or method of procedure, States have been free to retain or abolish juries.[800] Conformably to the Constitution, States, in devising their own procedures, eliminated juries in proceedings to enforce liens,[801] inquiries for contempt,[802] mandamus[803] and quo warranto actions,[804] and in eminent domain[805] and equity proceedings.[806] States are equally free to adopt innovations respecting the selection and number of jurors. Verdicts rendered by ten out of twelve jurors may be substituted for the requirement of a unanimous verdict,[807] and petit juries containing eight rather than the conventional twelve members may be established.[808]

DUE PROCESS IN CRIMINAL PROCEEDINGS

General

In the following pages the requirements of the due process clause of Amendment XIV in criminal cases will be dealt with in approximately the order in which questions regarding them arise in the course of a prosecution.

Indefinite Statutes: Right of Accused to Knowledge of Offense

"A statute so vague and indefinite, in form and as interpreted, * * * [as to fail] to give fair notice of what acts will be punished, * * *, violates an accused's rights under procedural due process * * * [A penal statute must set up] ascertainable standards of guilt. [So that] men of common intelligence * * * [are not] required to guess at * * * [its] meaning," either as to persons within the scope of the act or as to applicable tests to ascertain guilt.[809]

Defective by these tests and therefore violative of due process is a statute providing that any person not engaged in any lawful occupation, known to be a member of any gang consisting of two or more persons, who has been convicted at least three times of being a disorderly person, or who has been convicted of any crime in this or any other State, is a gangster and subject to fine or imprisonment. Pointing to specific shortcomings of this act, the Supreme Court observed that "* * * neither [at] common law, * * * nor anywhere in the language of the law is there [to be found any] definition of the word, * * * 'gang'." The State courts, in adopting dictionary definitions of that term, were not to be viewed as having intended to give "gangster" a meaning broad enough to include anyone who had not been convicted of a specified crime or of disorderly conduct as set out in the statute, or to limit its meaning to the field covered by the words that they found in a dictionary ("roughs, thieves, criminals"). Application of the latter interpretation would include some obviously not within the statute and would exclude some plainly covered by it. Moreover, the expression, "known to be a member," is ambiguous; and not only permits a doubt as to whether actual or putative association is meant, but also fails to indicate what constitutes membership or how one may join a gang. In conclusion, the Supreme Court declared that if on its face a challenged statute is repugnant to the due process clause, specification of details of the offense intended to be charged would not serve to validate it; for it is the statute, not the accusation under it, that prescribes the rule to govern conduct and warns against transgression.[810] In contrast, the Court sustained as neither too vague nor indefinite a State law which provided for commitment of a psychopathic personality by probate action akin to a lunacy proceeding, and which was construed 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 inflict injury. The underlying conditions, i.e., habitual course of misconduct in sex matters and lack of power to control impulses, and likelihood of attack on others, were viewed as calling for evidence of past conduct pointing to probable consequences and as being as susceptible of proof as many of the criteria constantly applied in criminal prosecutions.[811]

Abolition of the Grand Jury

An indictment or presentment by a grand jury, as known to the common law of England, is not essential to due process of law even when applied to prosecutions for felonies. Substitution for a presentment or indictment by a grand jury of the proceeding by information, after examination and commitment by a magistrate, certifying to the probable guilt of the defendant, with the right on his part to the aid of counsel, and to the cross-examination of the witnesses produced for the prosecution is due process of law.[812] Furthermore, due process does not require that the information filed by the prosecuting attorney should have been preceded by the arrest or preliminary examination of the accused.[813] Even when an information is filed pending an investigation by the coroner, due process has not been violated.[814] But when the grand jury is retained it must be fairly constituted. Thus, in the leading case, an indictment by a grand jury in a county of Alabama in which no member of a considerable Negro population had ever been called for jury service, was held void, although the Alabama statute governing the matter did not discriminate between the two races.[815]

The Right to Counsel

Whatever previously may have been recognized as constituting the elements of procedural due process in criminal cases, it was not until 1932[816] that the Supreme Court acknowledged that the right "to have the assistance of counsel for * * * [one's] defense," guaranteed as against the National Government by the Sixth Amendment, was of such fundamental character as to be embodied in the concept of due process of law as set forth in the Fourteenth Amendment. Later in 1937, it effected this incorporation by way of expansion of the term, "liberty," rather than, "due process," and conceded that the right to counsel was "implicit in the concept of ordered liberty."[817]

For want of adequate enjoyment of the right to counsel, the Court, in Powell v. Alabama,[818] overturned the conviction of Negroes who had received sentences of death for rape, and asserted that, at least in capital cases, where the defendant is unable to employ counsel and is incapable adequately of making his own defense because of ignorance, illiteracy, or the like, it is the duty of the court, whether requested or not, to assign counsel for him as a necessary requisite of due process of Law. The duty is not discharged by an assignment at such time or under such circumstances as to preclude the giving of effective aid in preparation and trial of the case. Under certain circumstances (e.g., ignorance and illiteracy of defendants, their youth, public hostility, imprisonment and close surveillance by military forces, fact that friends and families are in other States, and that they stand in deadly peril of their lives), the necessity of counsel is so vital and imperative that the failure of a trial court to make an effective appointment of counsel is a denial of due process of law.[819]

By its explicit refusal in Powell v. Alabama to consider whether denial of counsel in criminal prosecutions for less than capital offenses or under other circumstances[820] was equally violative of the due process clause, the Court left undefined the measure of the protection available to defendants; and its first two pertinent decisions rendered thereafter, contributed virtually nothing to correct that deficiency. In Avery v. Alabama,[821] a State trial court was sustained in its refusal to continue a murder case upon request of defense counsel appointed by said court only three days before the trial, who contended that they had not had sufficient time to prepare a defense, and in its subsequent rejection of a motion for a new trial which was grounded in part on the contention that the denial of the continuance was a deprivation of the prisoner's rights under the Fourteenth Amendment. Apart from an admission that "where denial of the constitutional right to assistance of counsel is asserted, its peculiar sacredness demands that we scrupulously review the record," a unanimous Court proffered only the following vague appraisal of the application of the Fourteenth Amendment: "In determining whether petitioner has been denied his constitutional right * * *, we must remember that the Fourteenth Amendment does not limit the power of the States to try and deal with crimes committed within their borders, and was not intended to bring to the test of a decision of this Court every ruling made in the course of a State trial. Consistently with the preservation of constitutional balance between State and federal sovereignty, this Court must respect and is reluctant to interfere with the States' determination of local social policy."[822] One year later, the Court made another inconclusive observation in Smith v. O'Grady,[823] in which it stated that if true, allegations in a petition for habeas corpus showing that the petitioner, although an uneducated man and without prior experience in court, was tricked into pleading guilty to a serious crime of burglary, and was tried without the requested aid of counsel would void the judgment under which he was imprisoned.

Conceding that the above mentioned opinions "lend color to the argument," though they did not actually so rule, that "in every case, whatever the circumstances, one charged with crime, who is unable to obtain counsel, must be furnished counsel by the State," the Court, in Betts v. Brady,[824] decided in 1942, not only narrowed the scope of the right of the accused to the "assistance of counsel," but also set at rest any question as to the constitutional source from which the right was derived. Offering State courts the following vague guide for determining when provision of counsel is constitutionally required, the Court declared that "the Fourteenth Amendment prohibits the conviction and incarceration of one whose trial is offensive to the common and fundamental ideas of fairness and right, and while want of counsel in a particular case may result in a conviction lacking in such fundamental fairness, we cannot say that the amendment embodies an inexorable command that no trial for any offense, or in any court, can be fairly conducted and justice accorded a defendant who is not represented by counsel * * * Asserted denial of due process is to be tested by an appraisal of the totality of facts in a given case. That which may, in one setting, constitute a denial of fundamental fairness, shocking to the universal sense of justice, may, in other circumstances, and in the light of other considerations, fall short of such denial."[825] Accordingly, an indigent farm laborer was deemed not to have been denied due process of law when he was convicted of robbery by a Maryland county court, sitting without a jury, which was not required by statute[826] to honor his request for counsel and whose "practice," in fact was to afford counsel only in murder and rape cases. Finally, the Court emphatically rejected the notion, suggested, however faintly by the older decisions, that the Fourteenth Amendment "incorporates the specific guarantees found in the Sixth Amendment, although it recognized that a denial of the rights stipulated in the latter Amendment may in a given case amount to a deprivation of due process."[827]

Having thus construed the due process clause of the Fourteenth Amendment as not inclusive of the Sixth Amendment and as requiring no more than a fair trial which, on occasion, may necessitate the protection of counsel, the Court, in succeeding decisions rendered during the interval, 1942-1946, proceeded to subject Betts v. Brady to the "silent treatment." In Williams v. Kaiser[828] and Tomkins v. Missouri[829] two defendants pleaded guilty without counsel to the commission in Missouri of capital offenses, one, to robbery with a deadly weapon, and the second, to murder. Defendant, Williams contended that, notwithstanding his request, the trial court did not appoint counsel, whereas defendant, Tomkins alleged that he was ignorant of his right to demand counsel under the Missouri statute. In ruling that the defendants' petitions for habeas corpus should not have been rejected by Missouri courts without a hearing, the Supreme Court relied almost entirely upon the quotations from Powell v. Alabama[830] previously set forth herein; and reiterated that the right to counsel in felony cases being protected by the Fourteenth Amendment, the failure of a State court to appoint counsel is a denial of due process. "A layman," the Court added, "is usually no match for the skilled prosecutor whom he confronts in the court room. He needs the aid of counsel lest he be the victim of overzealous prosecutors, of the law's complexity, or of his own ignorance or bewilderment."[831]

Nor was Betts v. Brady mentioned in the following pertinent decisions. In House v. Mayo,[832] the Supreme Court held that the action of a trial court in compelling a defendant to plead to an information charging burglary without opportunity to consult with his counsel is a denial of the constitutional right to counsel; and in Hawk v. Olson[833] the Court repeated this assertion, in connection with the denial to a defendant accused of a murder of the same opportunity during the critical period between his arraignment and the impaneling of the jury. Both these opinions cited with approval the two previously discussed Williams and Tomkins Cases; and in House v. Mayo the Court declared without any explanation: "Compare Betts v. Brady with Williams v. Kaiser and Tomkins v. Missouri."[834] A similar performance by the Court is also discernible in Rice v. Olson,[835] in which it ruled that a defendant, who pleads guilty to a charge of burglary, is incapable adequately of making his own defense, and does not understandingly waive counsel; he is entitled to the benefit of legal aid, and a request therefor is not necessary. Also, on the basis of unchallenged facts contradicting a prisoner's allegation that he had been denied counsel; namely, that after his arraignment and plea of guilty to a charge of robbery, counsel had noted an appearance for him two days before the date of sentencing and had actively intervened in his behalf on the latter date, a majority of the Court, in Canizio v. New York,[836] ruled that the right to counsel had not been withheld.

Without mentioning Betts v. Brady by name, the Court, in 1946, returned to the fair trial principle enunciated therein when it held that no deprivation of the constitutional right to the aid of counsel was disclosed by the record in Carter v. Illinois.[837] That record included only the indictment, the judgment on the plea of guilty to a charge of murder, the minute entry bearing on the sentence, and the sentence, together with a lengthy recital in the judgment to the effect that when the defendant expressed a desire to plead guilty the Court explained to him the consequence of such plea, his rights in the premises, especially, his rights to have a lawyer appointed to defend him and to be tried before a jury, and the degree of proof required for an acquittal under a not guilty plea, but that the defendant persisted in his plea of guilty. Emphasizing that this record was entirely wanting in facts bearing upon the maturity or capacity of comprehension of the prisoner, or upon the circumstances under which the plea of guilty was tendered and accepted, the Supreme Court concluded that no inference of lack of understanding, or ability to make an intelligent waiver of counsel, could be drawn from the fact that the trial court did assign counsel when it came to sentencing.[838] Applying the same doctrine, and on this occasion at least citing Betts v. Brady, the Court, in De Meerleer v. Michigan,[839] unanimously declared that the arraignment, trial, conviction of murder, and sentence to life imprisonment, all on the same day, of a seventeen-year old boy who was without legal assistance, and was never advised of his right to counsel, who received from the trial court no explanation of the consequences of his plea of guilty, and who never subjected the State's witnesses to cross-examination, effected a denial of constitutional "rights essential to a fair hearing."

Even more conclusive evidence of the revival of the fair trial doctrine of Betts v. Brady is to be found in the majority opinions contained in Foster v. Illinois[840] and Gayes v. New York.[841] In the former the Court ruled that where it appears that the trial court, before accepting pleas of guilty to charges of burglary and larceny by defendants, aged 34 and 58 respectively, advised each of his rights of trial and of the consequences of such a plea, the fact that the record reveals no express offer of counsel would not suffice to show that the accused were deprived of rights essential to the fair hearing required by the due process clause. Reiterating that the absolute right to counsel accorded by the Sixth Amendment does not apply in prosecutions in State courts, five of the Justices declared that all the due process clause of the Fourteenth Amendment "exacts from the States is a conception of fundamental justice" which is neither "satisfied by merely formal procedural correctness, nor * * * confined by any absolute rule such as that which the Sixth Amendment contains in securing to an accused [in the federal courts] 'the Assistance of Counsel for his defense.'"[842] On the same day, four Justices, with Justice Burton concurring only in the result, held in Gayes v. New York,[843] that one sentenced in 1941 as a second offender under a charge of burglary was not entitled to vacation of a judgment rendered against him in 1938, when charged with the first offense, on the ground that when answering in the negative the trial court's inquiry as to whether he desired the aid of counsel, he did not understand his constitutional rights. On his subsequent conviction in 1941, which took into account his earlier sentence of 1938, the defendant was deemed to have had full opportunity to contest the constitutionality of his earlier sentence. Consistently with these two cases, the Court in Marino v. Ragen,[844] decided later in the same year, held that the absence of counsel, in conjunction with the following set of facts, operated to deprive a defendant of due process. In this latter decision, the accused, an 18-year-old Italian immigrant, unable to understand the English language, was convicted of murder and sentenced to life imprisonment on a plea of guilty when, notwithstanding a recital in the record that he was arraigned in open court and advised through interpreters, one of whom was the arresting officer, of the meaning and effect of a "guilty" plea, and that he signed a statement waiving a jury trial and pleading guilty, the waiver was not in fact signed by him and no plea of guilty actually had been entered.

In disposing of more recent cases embracing right to counsel as an issue, the Court, either with or without citation of Betts v. Brady, has consistently applied the fair trial doctrine. Thus, the absence of counsel competent to advise a 15-year-old Negro boy of his rights was one of several factors operating in Haley v. Ohio[845] to negative the propriety of admitting in evidence a confession to murder and contributing to the conclusion that the boy's conviction had resulted from proceedings that were unfair. Dividing again on the same issues in which they were in disagreement in Foster v. Illinois;[846] namely, the applicability of Amendment Six to State criminal prosecutions and the merits of the fair trial doctrine as expounded in Betts v. Brady, five Justices in Bute v. Illinois[847] ruled that the due process clause of the Fourteenth Amendment does not require a State court to tender assistance of counsel, before accepting a plea of guilty to a charge of indecent liberties with female children, the maximum penalty for which is 20 years, from a 57-year-old man who was not a lawyer and who received from the Court an explanation of the consequences and penalties resulting from such plea. Unanimity was subsequently regained in Wade v. Mayo[848] in which the Justices had before them the plight of an 18-year-old boy, convicted on the charge of breaking and entering, who was described by a federal district court as not a stranger in court, having been convicted of prior offenses, but as still unfamiliar with court procedure and not capable of representing himself adequately. On the strength of these and other findings, the Supreme Court held that where one charged with crime is by reason of age, ignorance, or mental incapacity incapable of defending himself, even in a prosecution of a relatively simple nature, the refusal of a State trial court to appoint counsel at his request is a denial of due process, even though the law of the State does not require such appointment.

Dissents were again registered in the following brace of decision which a minority of the Justices declared their inability to reconcile. In the first, Gryger v. Burke,[849] the Court held that when one, sentenced to life imprisonment as a fourth offender under a State habitual criminal act, had been arrested eight times for crimes of violence, followed by pleas of guilty or conviction, and in two of such former trials had been represented by counsel, the State's failure to offer or to provide counsel for him on his plea to a charge of being a fourth offender does not render his conviction and sentence as such invalid, even though the Court may have misconstrued the statute as making a life sentence mandatory rather than discretionary. Emphasizing that there were "no exceptional circumstances * * * present," the majority asserted that "it rather overstrains our credulity to believe that [such a defendant would be ignorant] of his right [to request and] to engage counsel." In the second, Townsend v. Burke,[850] the Supreme Court declared that although failure of a State court to offer or to assign counsel to one charged with the noncapital offenses of burglary and robbery, or to advise him of his right to counsel before accepting a plea of guilty may not render his conviction invalid for lack of due process, the requirement is violated when, while disadvantaged by lack of counsel who might have corrected the court's errors, defendant is sentenced on the basis of materially untrue assumptions concerning his criminal record.[851]

Concordant as to the results reached, if not always as to the reasoning supporting them, are the Court's latest rulings. In Uveges v. Pennsylvania,[852] it was held that inasmuch as the record showed that a State court did not attempt to make a 17-year-old youth understand the consequences of his plea of guilty to four separate indictments charging burglary, for which he could be given sentences aggregating 80 years, and that the youth was neither advised of his right to counsel nor offered counsel at any time between arrest and conviction, due process was denied him. Likewise, in Gibbs v. Burke[853] was overturned, as contrary to due process, the conviction for larceny of a man in his thirties who conducted his own defense, having neither requested, nor having been offered counsel. On the authority of the Uveges Case, accused's failure to request counsel, since it could be attributed to ignorance of his right thereto, was held not to constitute a waiver. Moreover, had the accused been granted the protection of counsel, the latter might have been able to prevent certain prejudicial rulings; namely, the introduction without objection of considerable hearsay testimony, the error of the trial judge in converting a prosecution witness into a defense witness, and finally, the injection of biased statements into the judge's comments to the jury. And of the same general pattern is the holding in Palmer v. Ashe,[854] another Pennsylvania case, involving a petitioner who alleged that, as a youth and former inmate at a mental institution, he was railroaded into prison for armed robbery without benefit of counsel, on the representation that he was charged only with breaking and entering. Reversing the State court's denial of petitioner's application for a writ of habeas corpus, the Court remanded the case, asserting that if petitioner's allegations were proven, he was entitled to counsel. On the other hand, it was held in Quicksall v. Michigan,[855] a State in which capital punishment does not exist, that a defendant who had received a life sentence on a plea of guilty entered without benefit of counsel, had "failed to sustain the burden of proving such disregard of fundamental fairness * * * as alone would * * * invalidate his sentence," not having convinced the State court that he was ignorant of his right to counsel, or that he had requested same, or that the consequences of his plea had been misrepresented to him. Also, in Gallegos v. Nebraska,[856] in which the petitioner had been convicted of manslaughter on a homicide charge, a similar conclusion was reached in the face of the petitioner's claim that the confession on the strength of which he was convicted had been obtained from him by mistreatment, prior to the assignment of counsel to him. Said the Court: "The Federal Constitution does not command a State to furnish defendants counsel as a matter of course. * * * Lack of counsel at State noncapital trials denies federal constitutional protection only when the absence results in a denial to accused of the essentials of justice."[857]

By way of summation, the Court in Uveges v. Pennsylvania[858] offered the following comment on the conflicting views advanced by its members on this issue of right to counsel. "Some members [minority] of the Court think that where serious offenses are charged, failure of a court to offer counsel in State criminal trials deprives an accused of rights under the Fourteenth Amendment. They are convinced that the services of counsel to protect the accused are guaranteed by the Constitution in every such instance. See Bute v. Illinois, 333 U.S. 640, dissent, 677-679. Only when the accused refuses counsel with an understanding of his rights can the Court dispense with counsel.[859] Others of us [majority] think that when a crime subject to capital punishment is not involved, each case depends on its own facts. See Betts v. Brady, 316 U.S. 455, 462. Where the gravity of the crime and other factors--such as the age and education of the defendant,[860] the conduct of the court or the prosecuting officials,[861] and the complicated nature of the offense charged and the possible defenses thereto[862]--render criminal proceedings without counsel so apt to result in injustice as to be fundamentally unfair, the latter group [majority] holds that the accused must have legal assistance under the amendment whether he pleads guilty or elects to stand trial, whether he requests counsel or not. Only a waiver of counsel, understandingly made, justifies trial without counsel. The philosophy behind both of these views is that the due process clause of the Fourteenth Amendment * * * requires counsel for all persons charged with serious crimes, when necessary for their adequate defense, in order that such persons may be advised how to conduct their trials. The application of the rule varies * * *" It would appear nevertheless that the statement quoted in the previous paragraph from the Gallegos Case weakens this doctrine somewhat. Nor is the Court's reply to the contention that such variation in application "leaves the State prosecuting authorities uncertain as to whether to offer counsel to all accused who are without adequate funds and under serious charges," very reassuring: "We cannot offer a panacea for the difficulty. * * * The due process clause is not susceptible of reduction to a mathematical formula."[863]

Right to Trial by Jury

The contention that a right to trial by a common law jury of twelve men in criminal cases was guaranteed by Amendment XIV was first rejected in Maxwell v. Dow[864] on the basis of Hurtado v. California,[865] where it was denied that the due process clause itself incorporated all the rules of procedural protection having their origin in English legal history. Accordingly, so long as all persons are made liable to be proceeded against in the same manner, a state statute dispensing with unanimity,[866] or providing for a jury of eight instead of twelve, in noncapital criminal cases[867] is not unconstitutional; nor is one eliminating employment of a jury when the defendant pleads guilty to no less than a capital offense;[868] or permitting a defendant generally to waive trial by jury.[869] In short, jury trials are no longer viewed as essential to due process, even in criminal cases, and may be abolished altogether.[870]

Inasmuch as "the purpose of criminal procedure is not to enable the defendant to select jurors, but to secure an impartial jury," a trial of a murder charge by a "struck" jury, chosen in conformity with a statute providing that the court may select from the persons qualified to serve as jurors 96 names, from which the prosecutor and defendant may each strike 24, and that the remainder of which shall be put in the jury box, out of which the trial jury shall be drawn in the usual way, is not violative of due process. Such a method "is certainly a fair and reasonable way of securing an impartial jury," which is all that the defendant constitutionally may demand.[871] Likewise, the right to challenge being the right to reject, not to select, a juror, a defendant who is subjected at a single trial to two indictments, each charging murder, cannot complain when the State limits the number of his peremptory challenges to ten on each indictment instead of the twenty customarily allowed at a trial founded upon a single indictment.[872] Also, a defendant who has been convicted by a special, or "blue ribbon," jury cannot validly contend that he was thereby denied due process of law.[873] In ruling that the defendant had failed to sustain his contention that such a jury was defective as to its composition, the Court conceded that "a system of exclusions could be so manipulated as to call a jury before which defendants would have so little chance of a decision on the evidence that it would constitute a denial of due process" and would result in a trial which was a "sham or pretense." A defendant is deemed entitled, however, to no more than "a neutral jury" and "has no constitutional right to friends on the jury."[874] In fact, the due process clause does not prohibit a State from excluding from the jury certain occupational groups such as lawyers, preachers, doctors, dentists, and enginemen and firemen of railroad trains. Such exclusions may be justified on the ground that the continued attention to duty by members of such occupations is beneficial to the community.[875]

Self-Incrimination--Forced Confessions

In 1908, in Twining v. New Jersey,[876] the Court ruled that neither the historical meaning nor the current definition of the due process clause of the Fourteenth Amendment included protection against self-incrimination, which was viewed as unworthy of being rated "an immutable principle of justice" or as a "fundamental right." The Fifth Amendment embodying this privilege was held to operate to restrain only the Federal Government; whereas the due process clause of the Fourteenth Amendment was deemed to permit a State even to go so far as to substitute the criminal procedure of the Civil Law, in which the privilege against self-incrimination is unknown, for that of the Common Law. Accordingly, New Jersey was within her rights in permitting a trial judge, in a criminal proceeding, to instruct a jury that they might draw an unfavorable inference from the failure of a defendant to comment on the prosecutor's evidence.

Apart from a recent ineffectual effort of a minority of the Justices to challenge the interpretation thus placed upon the due process clause of the Fourteenth Amendment, the Court has yet to register any departure from its ruling in Twining v. New Jersey.[877] In two subsequent opinions the Court reasserted obiter that "the privilege against self-incrimination may be withdrawn and the accused put upon the stand as a witness for the State." No "principle of justice so rooted in the traditions and conscience of our people as to be ranked as fundamental"[878] is violated by abolition of such privilege; nor is its complete destruction likely to outrage students of our penal system, many of whom "look upon * * * [this] immunity as a mischief rather than a benefit, * * *"[879]

In subsequently disposing of similarly challenged State criminal proceedings, the Court has applied almost exclusively the Fair Trial doctrine. With only casual consideration of the intention of the framers of the Fourteenth Amendment, or of the rejected proposition that the due process clause thereof had imposed upon the States all the restraints which the Bill of Rights had imposed upon the Federal Government, the Court has simply endeavored to ascertain whether the accused enjoyed all the privileges essential to a fair trial. Thus, without even admitting that the privilege against self-incrimination was involved, all the Justices agreed, in Brown v. Mississippi,[880] that the use of a confession extorted by brutality and violence (undenied strangulation and whipping by the sheriff aided by a mob) was a denial of due process, even though coercion was not established until after the confession had been admitted in evidence and defense counsel did not thereafter move for its exclusion. Although compulsory processes of justice may be used to call the accused as a witness and to require him to testify, "compulsion by torture to extort a confession is a different matter. * * * The rack and torture chamber may not be substituted for the witness stand."[881] Again, in Chambers v. Florida[882] the Court, with no mention of the privilege against self-incrimination, proclaimed that due process is denied when convictions of murder are obtained in State courts by the use of confessions extorted under the following conditions: dragnet methods of arrest on suspicion without warrant and protracted questioning (on the last day, from noon until sunset) in a fourth floor jail where the prisoners were without friends or counselors, and under circumstances calculated to break the strongest nerves and stoutest resistance. Affirming that the Supreme Court is not concluded by the finding of a jury in a State court that a confession in a murder trial was voluntary, but determines that question for itself from the evidence, the Justices unanimously declared that the Constitution proscribes lawless means irrespective of the end, and rejected the argument that the thumbscrew, the wheel, solitary confinement, protracted questioning, and other ingenious means of entrapment are necessary to uphold our laws.[883] Procuring a conviction for a capital crime by use of a confession extracted by protracted interrogation conducted in a similar manner was, on the authority of Chambers v. Florida, condemned in White v. Texas;[884] and in Lisenba v. California,[885] a case rendered inconclusive by conflicting testimony, the Court remarked, by way of dictum, that "the concept of due process would void a trial in which, by threats or promises in the presence of court and jury, a defendant was induced to testify against himself," or in which a confession is used which is "procured * * * by fraud, collusion, trickery and subornation or perjury."

In conformity with these rulings, the Court, in Ward v. Texas,[886] set aside a conviction based upon a confession obtained, by methods of coercion and duress, from a defendant who had been arrested illegally, without warrant, by the sheriff of another county, and removed to a county more than a hundred miles away, and who for three days, while being driven from county to county, was questioned continuously by various officers and falsely informed by them of threats of mob violence. Similarly, in Ashcraft v. Tennessee,[887] the use in a State court of a confession obtained near the end of a 36-hour period of practically continuous questioning, under powerful electric lights, by relays of officers, experienced investigators, and highly trained lawyers was held to be violative of constitutional right by reason of the inherently coercive character of such interrogation. Justice Jackson, joined by Justices Frankfurter and Roberts, dissented on the ground that the accused not only denied that the protracted questioning "had the effect of forcing an involuntary confession from him" but that he had ever confessed at all, a contention which reputable witnesses contradicted. Referring to Justice Holmes's warning against "the ever increasing scope given to the Fourteenth Amendment in cutting down * * * the constitutional rights of the States."[888] Justice Jackson protested that "interrogation per se is not, * * *, an outlaw"; and that inasmuch as all questioning is "'inherently coercive' * * *, the ultimate question * * * [must be] whether the confessor was in possession of his own will and self-control at the time of [his] confession."[889]

This dissent was not without effect. In June 1944, in Lyons v. Oklahoma,[890] the Court finally handed down a ruling calculated definitely to arrest the suspicion that had been developing that the use of any confession made after arrest would render a trial constitutionally defective. Here, six Justices refused to overturn a holding of the Oklahoma Criminal Court of Appeals which labelled as voluntary and usable a second confession obtained by other than coercive means within twelve hours after the defendant had made a confession admittedly under duress. The vice of coerced confessions, these Justices asserted, was that they offended "basic standards of justice, not because the victim had a legal grievance against the police, but because declarations procured by torture are not premises from which a civilized forum will infer guilt."[891] In Malinski v. New York,[892] however, although in the opinion of four Justices there was conflicting evidence as to the involuntary character of the confessions used, the Court nevertheless overturned a conviction sustained by New York tribunals.[893] Without finding it necessary to determine whether succeeding oral and written confessions were the product of the coercion "admittedly" applied in extracting an initial oral confession,[894] the Court held that, even though other evidence might have sufficed to convict the accused and notwithstanding the fact that the initial oral confession was never put in evidence, the repeated indirect reference to its content at the trial plus the failure to warn the jury not to consider it as evidence[895] invalidated the proceeding giving rise to the verdict.[896]

Of the remaining cases involving the issue of self-incrimination, Adamson v. California[897] is especially significant because it represents the high water mark of dissent in support of the contention that the Bill of Rights, originally operative only against the Federal Government, became limitations on State action by virtue of their inclusion within the due process clause of the Fourteenth Amendment. Here, the Court, speaking through Justice Reed, declared that the California law which provides that if an accused elects to take the witness stand and testify, he must then be prepared to undergo impeachment of his testimony, through disclosure of his previous convictions, and which also permits him to avoid such disclosure by remaining silent, subject to comment on his failure to testify by the Court and prosecuting counsel, does not involve such a denial of due process as to invalidate a conviction in a State court. Inasmuch as California law "does not involve any presumption, rebuttable or irrebuttable, either of guilt or of the truth of any fact," and does not alter the burden of proof, which rests upon the State, nor the presumption of innocence in favor of the accused, it does not prevent the accused from enjoying a fair trial, which is all that the due process clause of the Fourteenth Amendment guarantees. Relying upon Twining v. New Jersey[898] and Palko v. Connecticut,[899] the Court reiterated that the "due process clause of the Fourteenth Amendment, however, does not draw all the rights of the federal Bill of Rights under its protection."[900]

In a concurring opinion concerning the scope of the protection afforded by this clause of the Fourteenth Amendment, Justice Frankfurter contended that further argument thereon is foreclosed by Twining v. New Jersey, a precedent, on which he commented as follows: "Decisions of this Court do not have equal intrinsic authority. The Twining Case shows the judicial process at its best--comprehensive briefs and powerful arguments on both sides, followed by long deliberation, resulting in an opinion by Mr. Justice Moody which at once gained and has ever since retained recognition as one of the outstanding opinions in the history of the Court. After enjoying unquestioned prestige for forty years, the Twining Case should not now be diluted, even unwittingly, either in its judicial philosophy or in its particulars. As the surest way of keeping the Twining Case intact, I would affirm this case on its authority."

In dismissing as historically untenable the position adopted by Justice Black, Justice Frankfurter further declared that: "The notion that the Fourteenth Amendment was a covert way of imposing upon the States all the rules which it seemed important to Eighteenth Century statesmen to write into the Federal Amendments, was rejected by judges who were themselves witnesses of the process by which the Fourteenth Amendment became part of the Constitution. Arguments that may now be adduced to prove that the first eight Amendments were concealed within the historic phrasing of the Fourteenth Amendment were not unknown at the time of its adoption. A surer estimate of their bearing was possible for judges at the time than distorting distance is likely to vouchsafe. Any evidence of design or purpose not contemporaneously known could hardly have influenced those who ratified the Amendment. Remarks of a particular proponent of the Amendment, no matter how influential, are not to be deemed part of the Amendment. What was submitted for ratification was his proposal, not his speech. * * * The Due Process Clause of the Fourteenth Amendment has an independent potency, precisely as does the Due Process Clause of the Fifth Amendment in relation to the Federal Government. It ought not to require argument to reject the notion that due process of law meant one thing in the Fifth Amendment and another in the Fourteenth. The Fifth Amendment specifically prohibits prosecution of an 'infamous crime' except upon indictment; it forbids double jeopardy; it bars compelling a person to be a witness against himself in any criminal case; it precludes deprivation of 'life, liberty, or property, without due process of law * * *' Are Madison and his contemporaries in the framing of the Bill of Rights to be charged with writing into it a meaningless clause? To consider 'due process of law' as merely a shorthand statement of other specific clauses in the same amendment is to attribute to the authors and proponents of this Amendment ignorance of, or indifference to, a historic conception which was one of the great instruments in the arsenal of constitutional freedom which the Bill of Rights was to protect and strengthen." Warning that "a construction which * * * makes of" the due process clause of the Fourteenth Amendment "a summary of specific provisions of the Bill of Rights would, * * *, tear up by the roots much of the fabric of the law in the several States," Justice Frankfurter, in conclusion, offers his own appraisal of this clause. To him, the due process clause "expresses a demand for civilized standards of law, [and] it is thus not a stagnant formulation of what has been achieved in the past but a standard for judgment in the progressive evolution of the institutions of a free society." Accordingly "judicial judgment in applying the Due Process Clause must move within the limits of accepted notions of justice and * * * [should] not be based upon the idiosyncrasies of a merely personal judgment. * * * An important safeguard against such merely individual judgment is an alert deference to the judgment of the State court under review."[901]

In dissenting Justice Black, who was supported by Justice Douglas, attached to his opinion "an appendix which contains * * * [his] resume, * * *, of the Amendment's history." It is his judgment "that history conclusively demonstrates that the language of the first section of the Fourteenth Amendment, taken as a whole, was thought by those responsible for its submission to the people, and by those who opposed its submission, sufficiently explicit to guarantee that thereafter no State could deprive its citizens of the privileges and protections of the Bill of Rights." A majority of the Court, he acknowledges resignedly, has declined, however, "to appraise the relevant historical evidence of the intended scope of the first section of the Amendment." In the instant case, the majority opinion, according to Justice Black, "reasserts a constitutional theory spelled out in Twining v. New Jersey, * * * that this Court is endowed by the Constitution with boundless power under 'natural law' periodically to expand and contract constitutional standards to conform to the Court's conception of what at a particular time constitutes 'civilized decency' and 'fundamental liberty and justice.' * * * [This] 'natural law' formula, [he further contends] * * * should be abandoned as an incongruous excrescence on our Constitution. * * * [The] formula [is] itself a violation of our Constitution, in that it subtly conveys to courts, at the expense of legislatures, ultimate power over public policies in fields where no specific provision of the Constitution limits legislative power." In conclusion, Justice Black expresses his fears as to "the consequences of the Court's practice of substituting its own concepts of decency and fundamental justice for the language of the Bill of Rights * * *"[902]

In all but one of the remaining cases, the Court sided with the accused and supported his contention that the confession on which his conviction was based had been procured by methods contrary to the requirements of due process. The conviction of murder of a Negro boy of fifteen was reversed by five Justices in Haley v. Ohio[903] on the ground that his confession, which contributed to the verdict, was involuntary, having been obtained by the police after several hours of questioning immediately after the boy was arrested, during which interval the youth was without friends or legal counsel. After having had his confession reduced to writing, the boy continued to be held incommunicado for three days before being arraigned. "The age of petitioner, the [midnight] hours when he was grilled, the duration of his quizzing, the fact that he had no friend or counsel to advise him, the callous attitude of the police towards his rights combine to convince us," the Court declared, "that this was a confession wrung from a child by means which the law should not sanction."[904] The application of duress being indisputed, a unanimous Court, in Lee v. Mississippi,[905] citing as authority all the preceding cases beginning with Brown v. Mississippi, held that "a conviction resulting from such use of a coerced confession, however, is no less void because the accused testified at some point in the proceeding that he had never in fact confessed, voluntarily or involuntarily. * * *, inconsistent testimony as to the confession * * * cannot preclude the accused from raising * * * the issue * * * [that] the Fourteenth Amendment * * * [voids a] conviction grounded * * * upon a confession which is the product of other than reasoned and voluntary choice." In Taylor v. Alabama,[906] however, a majority of the Justices sustained the denial by a State appellate court, in which a conviction had been affirmed, of leave to file in a trial court a petition for a writ of error coram nobis grounded upon the contention that confessions and admissions introduced into evidence at the trial had been obtained by coercion.[907] Five Justices declared that such denial was not such arbitrary action as in itself to amount to a deprivation of due process of law where the circumstances tended to show that the petitioner's allegations of mistreatment, none of which were submitted during the trial or the appeal,[908] were highly improbable.[909]

Finally, in three decisions rendered on June 27, 1949, the Court reversed three convictions of murder on the ground that they had been founded entirely upon coerced confessions. The defendant in the first case, Watts v. Indiana,[910] was held without arraignment, without the aid of counsel or friends, and without advice as to his constitutional rights from Wednesday until the following Friday, when he confessed. During this interval, he was held much of the time in solitary confinement in a cell with no place to sit or sleep except the floor, and was subjected to interrogation daily, Sunday excepted, by relays of police officers for periods ranging in duration from three to nine and one-half hours. His incarceration without a prompt preliminary hearing also was a violation of Indiana law. Similarly in conflict with State law was the arrest without warrant and detention without arraignment for five days of the accused in Turner v. Pennsylvania,[911] the second case. During this period, Turner was not permitted to see friends, relatives, or counsel, was never informed of his right to remain silent, and was interrogated daily, though for briefer intervals than in the preceding case. At his trial, the prosecuting attorney "admitted that a hearing was withheld until interrogation had produced a confession." In the third and last case of this group, Harris v. South Carolina,[912] the defendant, an illiterate Negro, was apprehended in Tennessee on a Friday on a warrant alleging no more than a theft of a pistol, and taken to South Carolina on a Sunday. Without being informed of the contents of the warrant or of the charge of murder on which he was being held, without arraignment or advice as to his rights and without access to family or counsel, the defendant was questioned daily by officers for periods as long as 12 hours. In addition, he was warned that his mother also might be arrested for handling stolen property.

In each of these cases there was dissent, and in none was the majority able to record its views in a single opinion. Justice Murphy and Justice Rutledge joined Justice Frankfurter, who filed a separate opinion in all three cases, in declaring that "a confession by which life becomes forfeit must be the expression of free choice. * * * When a suspect speaks because he is overborne, it is immaterial whether he has been subjected to a physical or a mental ordeal. * * * if * * * [his confession] is the product of sustained pressure by the police it does not issue from a free choice."[913] On the authority of Chambers v. Florida[914] and Ashcraft v. Tennessee,[915] Justice Black supported the judgments reached in all three cases; but Justice Douglas, in concurring, advocated the disposition of these cases in conformity with a broader rule; namely that, "any confession obtained during * * * [a] period of * * * unlawful detention"; that is during a period of custody between arrest and arraignment, should be outlawed.[916] Justice Jackson, who wrote an opinion applicable to all three cases, concurred in the result in Watts v. Indiana, presumably on the basis of that part of Justice Frankfurter's opinion therein which was founded "on the State's admissions as to the treatment of Watts."[917] Emphasizing the merit of deferring to the findings of trial court and jury on the issue of the "voluntariness" of confessions on the ground that they have "the great advantage of hearing and seeing the confessor and also the officers whose conduct and bearing toward him is in question," Justice Jackson dissented in Turner v. Pennsylvania[918] and Harris v. South Carolina.[919] "If the right of interrogation be admitted," he declared, "then * * * we must leave it to trial judges and juries and State appellate courts to decide individual cases, unless they show some want of proper standards of decision."[920] Without explanatory opinion, Chief Justice Vinson and Justices Burton and Reed dissented in all three cases.

Unreasonable Searches and Seizures

In National Safe Deposit Co. v. Stead,[921] decided in 1914, the Court unequivocally declared that an unreasonable search and seizure committed by State and local officers presented no federal question, inasmuch as the Fourth Amendment does not apply to the States. Prior to that date, the Court has passed upon this question obliquely in only a few decisions,[922] in one of which it conceded for the sake of argument, but without so deciding, that the due process clause of the Fourteenth Amendment embraces in its generic terms a prohibition against unreasonable searches. In two of these earlier cases the Court sustained as consistent with due process the power of a State, in investigating the conduct of corporations doing business within its limits, to demand the production of corporate books and papers. The call for such papers was deemed not to have been rendered unreasonable because, at the time of the demand therefor, the corporation affected either temporarily or permanently kept such documents in another jurisdiction. Nor was the validity of the order to produce such materials viewed as having been impaired by the fact that it sought to elicit proof not only as to the liability of the corporation but also, evidence in its possession relevant to its defense.

In its most recent opportunity to review the question whether the due process clause of the Fourteenth Amendment precludes admission in a State court of relevant evidence obtained by an unreasonable search and seizure,[923] the Court apparently ruled in the negative; but Justice Frankfurter, speaking for the majority, did not limit himself to a repetition of the conclusions stated by him in Adamson v. California;[924] namely, that the due process clause of the Fourteenth Amendment did not incorporate the first eight Amendments of the Constitution, and, conformably to Palko v. Connecticut,[925] exacts no more from a State than is "implicit in 'the concept of ordered liberty.'" He also proclaimed that: "The security of one's privacy against arbitrary intrusion by the police--which is at the core of the Fourth Amendment--is basic to a free society. It is therefore implicit in 'the concept of ordered liberty' and as such enforceable against the States through the due process clause."[926] Such language appears to effect the very absorption into the Fourteenth Amendment which Justice Frankfurter rejects in the Adamson case; but he concluded by adding that as long as "a State [does not] affirmatively * * * sanction * * * [arbitrary] police incursion into privacy"; that is, as long as its police are deterred from making searches without authority of law by virtue of such internal discipline as an alert public opinion may induce and by reason of the statutory or common law remedies which the victims of such illegal searches may invoke, a State, without running counter to the due process clause, may employ at a trial incriminating evidence obtained by unlawful search and seizure. The fact that most of the English-speaking world, including 30 States and the British Commonwealth of Nations, does not regard the exclusion of evidence thus obtained, as vital to the protection of the right of privacy is interpreted by the Justice as lending abundant support to the merit of his position.[927]

Without departing from his previously adopted position which he restated in his dissenting opinion in Adamson v. California;[928] namely, that the due process clause of the Fourteenth Amendment embraces the Fourth Amendment's prohibition of unreasonable searches and seizures, Justice Black concurred in the result on the ground that the exclusionary rule, whereby evidence procured in an illegal search and seizure is not admissible in a federal court, is "not a command of the Fourth Amendment but is a judicially created rule of evidence which Congress might negate."[929] Justices Douglas, Murphy, and Rutledge, in separate dissenting opinions, all declared that the Fourth Amendment was applicable to the States and that "evidence obtained in violation of it must be excluded in State prosecutions as well as in federal prosecutions, * * *."[930] Attacking Justice Frankfurter's method of approach, Justice Murphy declared that the Court should not "decide due process questions by simply taking a poll of the rules in various jurisdictions, * * *" and agreed with Justice Rutledge that unless illegally obtained evidence is excluded, no effective sanction "exists to deter violations of the search and seizure clause."

In two recent cases, both argued the same day, a nearly unanimous Court reached opposite results.[931] In the first the outcome of the Wolf case was repeated. The Court, speaking by Justice Frankfurter, refused to enjoin the use, in State criminal proceedings against them in New Jersey of evidences claimed to have been obtained by unlawful search by State police. Said Justice Frankfurter, "If we were to sanction this intervention, we would expose every State criminal prosecution to insupportable disruption. Every question of procedural due process of law--with its far flung and undefined range--would invite a flanking movement against the system of State courts by resort to the federal forum * * *"[932] The facts in the second case were as follows: state officers, on the basis of "some information" that petitioner was selling narcotics, entered his home and forced their way into his wife's bedroom. When asked about two capsules lying on a bedroom table, petitioner put them into his mouth and swallowed them. He was then taken to a hospital, where an emetic was forced into his stomach with the result that he vomited them up. Later they were offered in evidence against him. Again Justice Frankfurter spoke for the Court, while reiterating his preachments regarding the tolerance claimable by the States under the Fourteenth Amendment[933] he held that methods offensive to human dignity were ruled out by the due process clause.[934] Justices Black and Douglas concurred in opinions in which they seized the opportunity to reiterate once more their position in Adamson v. California.[935]

Conviction Based on Perjured Testimony

When a conviction is obtained by the presentation of testimony known to the prosecuting authorities to have been perjured, the constitutional requirement of due process is not satisfied. That requirement "cannot be deemed to be satisfied by mere notice and hearing if a State has contrived a conviction through the pretense of a trial which in truth is but used as a means of depriving a defendant of liberty through a deliberate deception of court and jury by the presentation of testimony known to be perjured. Such a contrivance * * * is as inconsistent with the rudimentary demands of justice as is the obtaining of a like result by intimidation."[936] This principle, as originally announced, was no more than a dictum uttered by the Court in disposing of Tom Mooney's application for a writ of habeas corpus, filed almost eighteen years after his conviction, and founded upon the contention that the verdict of his guilt was made possible solely by perjured testimony knowingly employed by the prosecutor who "deliberately suppressed evidence which would have impeached and refuted the testimony thus given against him."[937]

On the authority of the preceding case, and without qualification, the Court subsequently applied this principle in Hysler v. Florida,[938] Pyle v. Kansas[939] and White v. Ragen.[940] In the first case, the Supreme Court concurred in the judgment of the Florida appellate court denying a petition for leave to apply to a trial court for a writ of coram nobis. Supporting the petition filed by Hysler, the accused, were affidavits signed by one of two codefendants on the eve of his execution for participation in the same crime and stating that the two codefendants had testified falsely against Hysler because they had been "'coerced, intimidated, beaten, threatened with violence and otherwise abused and mistreated' by the police and were 'promised immunity from the electric chair' by the district attorney." Having made "an independent examination of the affidavits upon which * * * [Hysler's] claim was based," a majority of the Justices concluded that the Florida appellate court's finding that Hysler's proof was insubstantial and did not make out a prima facie case was justified. "That in the course of * * * years witnesses die or disappear, that memories fade, that a sense of responsibility may become attenuated, that [recantation] * * * on the eve of execution * * * [is] not unfamiliar as a means of relieving others or as an irrational hope for self * * * are relevant" to the determination by the Florida court that "such a belated disclosure" did not spring "from the impulse for truth-telling" and was "the product of self-delusion * * * [and] artifice prompted by the instinct of self-preservation."[941]

Relying largely on the failure of the State to answer allegations in a prisoner's application for a write of habeas corpus, which application recited that persons named in supporting affidavits and documents were coerced to testify falsely, and that testimony of certain other persons material to the prisoner's defense was suppressed under threat and coercion by the State, the Court, in Pyle v. Kansas[942] reversed the Kansas court's refusal to issue the writ. Inasmuch as the record of the prisoner's conviction did "not controvert the charges that perjured evidence was used, and that favorable evidence was suppressed with the knowledge" of the authorities, the case was remanded in order that the prisoner might enjoy that to which he was entitled; namely, a determination of the verity of his allegations. Similarly, in White v. Ragen,[943] the Court declared that since a prisoner's petition to a State court for release on habeas corpus had been dismissed without requiring the State to answer allegations supporting the petition; namely, that the conviction was obtained by the use of false testimony procured by bribery of two witnesses by the prosecutor, must be assumed to be true. Accordingly, the petitioner's contentions were deemed sufficient to make out a prima facie case of violation of constitutional rights and adequate to entitle him to invoke corrective process in a State court.

Confrontation; Presence of the Accused; Public Trial

On the issue whether the privileges of presence, confrontation and cross-examination face to face, assured to a defendant in a federal trial by the Sixth Amendment, are also guaranteed in State criminal proceedings, the Court thus far has been unable to formulate an enduring and unequivocal answer. At times it has intimated, as in the following utterance, that the enjoyment of all these privileges is essential to due process. "The personal presence of the accused, from the beginning to the end of a trial for felony, involving life or liberty, as well as at the time final judgment is rendered against him, may be, and must be assumed to be, vital to the proper conduct of his defence, and cannot be dispensed with."[944] Notwithstanding this early assumption, the Supreme Court, fourteen years later, sustained a Kentucky court which approved the questioning, in the absence of the accused and his counsel, of a juror whose discharge before he was sworn had been demanded.[945] Inasmuch as no injury to substantial rights of the defendant was deemed to have been inflicted by his occasional absence during a trial, no denial of due process was declared to have resulted from the acceptance by the State court of the defendant's waiver of his right to be present. In harmony with the latter case is Felts v. Murphy,[946] which contains additional evidence of an increasing inclination on the part of the Court to treat as not fundamental the rights of presence, confrontation, and cross-examination face to face. The defendant in Felts v. Murphy proved to be so deaf that he was unable to hear any of the testimony of witnesses, and had never had the evidence repeated to him. While regretting that the trial court has not had the testimony read or repeated to the accused, the Supreme Court held that a deaf person is not deprived of due process of law because he had not heard a word of the evidence. It also did not overlook the fact the defendant "made no objection, asked for nothing, and permitted his counsel to take his own course."

That the presence of the accused may be dispensed with at various stages of criminal proceedings was further conceded by the Court in Frank v. Mangum,[947] wherein it held that the presence of the defendant when the verdict is rendered is not essential, and, accordingly, that a rule of practice allowing the accused to waive it and which bound him by that waiver did not effect any unconstitutional deprivation. Enumerating many departures from common law procedure respecting jury trials, including provisions waiving the presence of an accused during portions of a trial, the Court emphasized that none of these changes had been construed as conflicting with the Fourteenth Amendment. More recently, the Court, sustained, by only a five-to-four vote, however, a conviction for murder where the trial court rejected the defendant's request that he be present at a view of the scene of the murder to which the jury had been taken.[948] Acknowledging that it had never squarely held, though it now assumed, that "the privilege to confront one's accusers and cross-examine them face to face" in State court prosecutions "is reinforced by the Fourteenth Amendment," the majority devised the following standard for disposing of similar cases in the future. "In a prosecution for a felony," five Justices declared, "the defendant has the privilege under the Fourteenth Amendment to be present in his own person whenever his presence has a relation, reasonably substantial, to the fulness of his opportunity to defend against the charge. * * * The Fourteenth Amendment does not assume to a defendant the privilege to be present [when] * * * presence would be useless, or the benefit but a shadow. * * * The presence of a defendant is a condition of due process to the extent that a fair and just hearing would be thwarted by his absence, and to that extent only." Employing this standard of appraisal, the majority therefore concluded that no harm or damage had been done to the accused by reason of his failure to be present when the jury viewed the site of the murder.[949]

To what extent, consistently with due process, States may authorize the conduct, after conviction and sentence, of nonadversary proceedings from which the accused has been excluded and denied the privilege of confrontation and cross-examination, has been examined by the Court in two recent cases. In Williams v. New York,[950] the Supreme Court rejected the contention that the due process clause requires that a person convicted of murder be permitted to cross-examine probation officers as to his prior criminal record when the trial judge, in the exercise of discretion vested in him by law, considers such information, obtained outside the courtroom, in determining whether to abide by a jury's recommendation of life imprisonment or to impose a death sentence. Emphasizing the distinction between evidentiary rules applicable to the conduct of criminal trials, which are confined to the narrow issue of guilt, and sentencing procedures which pertain to the determination of the type and extent of punishment after the issue of guilt has been decided, the Court disposed of the petitioner's appeal by declaring that, "modern concepts individualizing punishment have made it all the more necessary that a sentencing judge not be denied an opportunity to obtain pertinent information by a requirement of rigid adherence to restrictive rules of evidence properly applicable to the trial."[951] By a similar process of reasoning, in Solesbee v. Balkcom,[952] the Court sustained a Georgia statutory procedure granting the governor discretionary authority, with the aid of physicians appointed by himself, to determine, without opportunity for an adversary hearing or for judicial review, whether a condemned convict has become insane and, if so, whether he should be committed to an insane asylum. Likening the function thus vested in the governor to the power of executive clemency, the Supreme Court reiterated that "trial procedure safeguards are not applicable to the process of sentencing," and concluded with the observation that the Georgia procedure is amply supported by "the universal common-law principle that upon a suggestion of insanity after sentence, the tribunal charged with responsibility must be vested with broad discretion in deciding whether evidence shall be heard. * * * The heart of the common-law doctrine has been that a suggestion of insanity after sentence is an appeal to the conscience and sound wisdom of the particular tribunal which is asked to postpone sentence."[953]

When employed in the conduct of the trial, however, summary procedures such as those examined in the preceding two decisions invariably elicit judicial condemnation. Thus, when a Michigan judge proceeding as a one-man grand jury concluded that a witness had given false and evasive testimony, not on the basis of anything inherent in the testimony itself, but at least in part upon its inconsistency with other testimony given by a preceding witness, and immediately thereupon suspended his investigation, and committed the witness to jail for contempt, such summary commitment, in the absence of a showing that it was necessary to prevent demoralization of the judge's authority, was held to constitute a denial of due process. The guaranty of that clause forbids the sentencing of an accused person to prison without a public trial; that is, without a day in court, reasonable notice of the charges, and an opportunity to be heard in one's defense by cross-examining other witnesses, or by summoning witnesses to refute the charges against him.[954]

On the other hand, when the alleged contempt is committed, not within the confines of a secret grand jury proceeding, but in open court, is readily observable by the presiding judge, and constitutes an open and immediate threat to orderly judicial procedure and to the court's authority, the offended tribunal is constitutionally empowered summarily to punish without notice, testimony, or hearing. Thus in Fisher v. Pace,[955] albeit with the concurrence of only five Justices, the Court sustained a Texas court's conviction for contempt, with progressive increase of penalty from a $25 to $50 to $100 fine plus three days in jail, of a trial attorney who, despite judicial admonition, persisted in conveying to the jury, in a workmen's compensation case, information not for their consideration. Conceding that "there must be adequate facts to support an order for contempt," the majority declared that the Texas appellate court's finding in the affirmative, after evaluation of the facts, should not be overturned inasmuch as the Supreme Court, in examining the transcript of the record, could not derive therefrom an adequate picture of the courtroom scene nor discern therein "such elements of misbehavior as expression, manner of speaking, bearing, and attitude of * * * [the attorney]." The fact that the bench was guilty of "mildly provocative language" was deemed insufficient to excuse the conduct of the attorney.[956]

Trial by Impartial Tribunal

Inasmuch as due process implies a tribunal both impartial and mentally competent to afford a hearing, it follows that the subjection of a defendant's liberty or property to the decision of a court, the judge of which has a direct, personal, substantial pecuniary interest in rendering a verdict against him, is violative of the Fourteenth Amendment.[957] Compensating an inferior judge for his services only when he convicts a defendant may have been a practice of long-standing, but such a system of remuneration, the Court declared, never became "so embedded by custom in the general practice either at common law or in this country that it can be regarded as due process of law. * * *"[958] However, a conviction before a mayor's court does not become constitutionally defective by reason of the fact that the fixed salary of the mayor is paid out of the fund to which the fines imposed by him contribute.[959]

Obviously, the attribute of impartiality is lacking whenever the judge and jury are dominated by a mob. "If the jury is intimidated and the trial judge yields, and so that there is an actual interference with the course of justice, there is, in that court, a departure from due process of law. * * *"[960] But "if * * * the whole proceeding is a mask--* * * [if the] counsel, jury and judge * * * [are] swept to the fatal end by an irresistible wave of public passion, and * * * [if] the State Courts failed to correct the wrong, neither perfection in the machinery for correction nor the possibility that the trial court and counsel saw no other way of avoiding an immediate outbreak of the mob can prevent" intervention by the Supreme Court to secure the constitutional rights of the defendant.[961]

Insofar as a criminal trial proceeds with a jury, it is part of the American tradition to contemplate not only an impartial jury but one drawn from a cross-section of the community. This has been construed as requiring that prospective jurors be selected by court officials without systematic and intentional exclusion of any group, even though it is not necessary that every jury contain representatives of all the economic, social, religious, racial, political, and geographical groups of the community.[962]

Other Attributes of a Fair Trial

"Due process of law," the Supreme Court has observed, "requires that the proceedings shall be fair, but fairness is a relative, not an absolute concept. * * * What is fair in one set of circumstances may be an act of tyranny in others."[963] Conversely, "as applied to a criminal trial, denial of due process is the failure to observe that fundamental fairness essential to the very concept of justice. In order to declare a denial of it * * * [the Court] must find that the absence of that fairness fatally infected the trial; the acts complained of must be of such quality as necessarily prevents a fair trial."[964] And on another occasion the Court remarked that "the due process clause," as applied in criminal trials "requires that action by a State through any of its agencies must be consistent with the fundamental principles of liberty and justice which lie at the base of our civil and political institutions, [and] which not infrequently are designated as 'the law of the land.'"[965]

Basic to the very idea of free government and among the immutable principles of justice which no State of the Union may disregard is the necessity of due "notice of the charge and an adequate opportunity to be heard in defense of it."[966] Consequently, when a State appellate court affirms a conviction on the ground that the information charged, and the evidence showed a violation of Sec. 1 of a penal law of the State, notwithstanding that the language of the information and the construction placed upon it at the trial clearly show that an offense under Sec. 2 of such law was charged, that the trial judge's instructions to the jury were based on Sec. 2, and that on the whole case it was clear that the trial and conviction in the lower court were for the violation of Sec. 2, not Sec. 1, such appellate court in effect is convicting the accused of a charge on which he was never tried, which is as much a violation of due process as a conviction upon a charge that was never made.[967] On the other hand, a prisoner who, after having been indicted on a charge of receiving stolen goods, abides by the prosecutor's suggestion and pleads guilty to the lesser offense of attempted second degree grand larceny, cannot later contend that a judgment of guilty of the latter offense was lacking in due process in that it amounted to a conviction of a crime for which he had never been indicted. In view of the "close kinship between the offense of larceny and that of receiving stolen property * * *, when related to the same stolen goods, the two crimes may fairly be said 'to be connected with the same transaction.'" It would be therefore, the Court concluded, "an exaltation of technical precision to an unwarranted degree to say that the indictment here did not inform the petitioner that he was charged with the substantial elements of the crime of larceny." Under these circumstances he must be deemed to have been given "reasonable notice and information of the specific charge against him and a fair hearing in open court."[968]

Excessive Bail, Cruel and Unusual Punishment, Sentence

The commitment to prison of a person convicted of crime, without giving him an opportunity pending an appeal, to furnish bail, does not violate the due process clause of the Fourteenth Amendment.[969] Likewise, a State, notwithstanding the limitations of that clause, retains a wide discretion in prescribing penalties for violation of its laws. Accordingly, a sentence of fourteen years' imprisonment for the crime of perjury has not been viewed as excessive nor as effecting any unconstitutional deprivation of the defendant's liberty;[970] nor has the imposition of successively heavier penalties upon "repeaters" been considered as partaking of a "cruel and unusual punishment."[971]

In an older decision, Ex parte Kemmler,[972] rendered in 1890, the Supreme Court rejected the suggestion that the substance of the Eighth Amendment had been incorporated into the due process clause of the Fourteenth Amendment, but did intimate that the latter clause would invalidate punishments which would involve "torture or a lingering death," such "as burning at the stake, crucifixion, breaking on the wheel, and the like." Holding that the infliction of the death penalty by electrocution was comparable to none of the latter, the Court refused to interfere with the judgment of the State legislature that such a method of executing the judgment of a court was humane. More recently, in Louisiana ex rel. Francis v. Resweber,[973] five members of the Court reached a similar conclusion as to the restraining effect of the due process clause of the Fourteenth Amendment when, assuming, "but without so deciding" that violations of the Eighth Amendment as to cruel and unusual punishments would also be violative of that clause, they upheld a subsequent proceeding to execute a sentence of death by electrocution after an accidental failure of equipment had rendered an initial attempt unsuccessful.[974]

Double Jeopardy

In none of the pertinent cases considered prior to 1937 was the Supreme Court able to discern the existence of any factual situation amounting to double jeopardy, and accordingly it was never confronted with the necessity of determining whether the guarantee that no person be put twice in jeopardy of life or limb, expressed in the Fifth Amendment as a limitation against the Federal Government, had been absorbed in the due process clause of the Fourteenth Amendment. Thus, in Dreyer v. Illinois,[975] after declaring that a retrial after discharge of a hung jury did not subject a defendant to double jeopardy, the Court concluded as follows: If "* * * what was said in United States v. Perez [(9 Wheat. 579 (1824)) embracing a similar set of facts], * * * is adverse to the contention of the accused that he was put twice in jeopardy," then "we need not now express an opinion" as to whether the Fourteenth Amendment embraces the guarantee against double jeopardy. Similarly, in Murphy v. Massachusetts[976] and Shoener v. Pennsylvania[977] the Court held that where the original conviction of the prisoner was, on appeal, construed by the State tribunal to be legally defective and therefore a nullity, a subsequent trial, conviction, and sentence of the accused deprived him of no constitutional right, notwithstanding the fact that under the invalidated original conviction, the defendant had spent time in prison. In both instances the Court found it unnecessary to discuss "any question of a federal nature." With like dispatch, "the propriety of inflicting severer punishment upon old offenders" was sustained on the ground that they were not being "punished * * * [a] second time for the earlier offense, but [that] the repetition of criminal conduct aggravates their guilt and justifies heavier penalties when they are again convicted."[978]

In Palko v. Connecticut,[979] however, the Court appeared to have been presented with issues, the disposition of which would preclude further avoidance of a decision as to whether the double jeopardy provision of the Fifth Amendment had become operable as a restraint upon the States by reason of its incorporation into the due process clause of the Fourteenth Amendment. By the terms of the Connecticut statute at issue, the State was privileged to appeal any question of law arising out of a criminal prosecution, and did appeal a conviction of second degree murder and sentence to life imprisonment of one Palko, who had been charged with first degree murder. Obtaining a reversal, the State prosecuted Palko a second time and won a conviction of first degree murder and sentence to death. In response to the petitioner's contentions that a retrial under one indictment would subject him to double jeopardy in violation of the Fifth Amendment, if the prosecution were one on behalf of the United States and "that whatever is forbidden by the Fifth Amendment is forbidden by the Fourteenth also,"[980] eight Justices[981] replied that the State statute did not subject him to double jeopardy "so acute and shocking that our polity will not endure it"; nor did "it violate those 'fundamental principles of liberty and justice which lie at the base of all our civil and political' institutions.'" Consistently with past behavior, the Court thus refused to assert that the defendant had been subjected to treatment of the type prohibited by the double jeopardy clause of the Fifth Amendment; nor did it, on the other hand, repudiate the possibility of situations in which the Fourteenth Amendment would prevent the States from inflicting double jeopardy. Whether a State is prohibited by the latter amendment, after a trial free from error, from trying the accused over again or from wearing out the accused "by a multitude of cases with accumulated trials" were questions which the Court reserved for future disposition. Subsequently, in Louisiana ex rel. Francis v. Resweber,[982] a majority of the Court assumed, "but without so deciding, that violation of the principles of the Fifth Amendment * * *, as to double jeopardy * * *, would be violative of the due process clause of the Fourteenth Amendment," and then concluded that the Palko case was decisive, there being "no difference from a constitutional point of view between a new trial for error of law at the instance of the State that results in a death sentence instead of imprisonment for life and an execution" by electrocution that follows after "an accidental failure in equipment had rendered a previous attempt at execution ineffectual."

Rights of Prisoners

Access to the Courts.--A State prison regulation requiring that all legal papers sought to be filed in court by inmates must first be submitted to the institution for approval and which was applied so as to obstruct efforts of a prisoner to petition a federal court for a writ of habeas corpus is void. Whether a petition for such writ is properly drawn and what allegations it must contain are questions which a federal court alone determines.[983] Equally subject to condemnation is the practice of the warden of a State penitentiary who denied prisoners access to the courts unless they procured counsel to represent them.[984]

Appeals; Corrective Process.--Rehearing, new trials, and appeals are not considered to be essential to due process; and a State is forbidden by no provision of the Constitution from vesting in one tribunal the final determination of legal questions. Consequently, a review by an appellate court of a final judgment in a criminal case, irrespective of the gravity of the offense, is wholly within the discretion of the State to allow or not to allow;[985] and, if granted, may be accorded by the State upon such terms as in its wisdom may be deemed proper.[986] "Wide discretion must be left to the States for the manner of adjudicating a claim that a conviction is unconstitutional; * * * and so long as the rights under the * * * Constitution may be pursued, it is for a State and not for * * * [the Supreme] Court [of the United States] to define the mode by which they may be vindicated. * * * A State may decide whether to have direct appeals * * *, and if so under what circumstances * * * may provide that the protection of [constitutional] rights * * * be sought through the writ of habeas corpus or coram nobis, [or] * * * may afford remedy by a simple motion brought either in the Court of original conviction or at the place of detention."[987]

However, if the tribunal of first instance fails to accord due process such as occurs when the Court in which a conviction is obtained is dominated by a mob, the State must supply corrective process. Moreover, when such process is made available, the corrective proceedings in the reviewing or appellate tribunal being no less a part of the process of law under which a defendant is held in custody, become subject to scrutiny on the occasion of any determination of an alleged unconstitutional deprivation of life or liberty.[988] Such examination may lead unavoidably to substantial federal intervention in State judicial proceedings, and sensitive, no doubt, to the propriety thereof,[989] the Supreme Court, almost until Brown v. Mississippi,[990] decided in 1936, manifested an unusual reluctance to indulge in an adverse appraisal of the adequacy of a State's corrective process.

Prior to the latter date, the Court was content to assume as it did in Frank v. Mangum,[991] decided in 1915, that inasmuch as the proceedings in the State appellate court formally appeared to be sufficient to correct errors committed by a trial court alleged to have been intimidated by a mob, the conclusion by that appellate court that the trial court's sentence of execution should be affirmed was ample assurance that life would not be forfeited without due process of law. Apparently in observance of a principle of comity, whereunder a State appellate court's holding, though acknowledged as not binding, was deemed entitled to utmost respect, the Court persisted in its refusal to make an independent examination of allegations of a denial of due process. Eight years later, in Moore v. Dempsey,[992] a case involving similar allegations of mob domination, the Court, on this occasion speaking through Justice Holmes who had dissented in the preceding decision, ordered the federal district court, in which the defendants had petitioned for a writ of habeas corpus and which had sustained the State of Arkansas's demurrer thereto, to make an independent investigation of the facts, notwithstanding that the Arkansas appellate court had ruled that, in view of the legally sufficient evidence on which the verdict was based and the competent counsel defending the accused, the allegations of mob domination did not suffice to void the trial.

Indubitably, Moore v. Dempsey marked the abandonment of the Supreme Court's deference, founded upon considerations of comity, to decisions of State appellate tribunals on issues of constitutionality and the proclamation of its intention no longer to treat as virtually conclusive pronouncements by the latter that proceedings in a trial court were fair. However, the enduring character of this precedent was depreciated by the Court's insistence that Moore v. Dempsey was decided consistently[993] with Frank v. Mangum; and it was not until the later holding in Brown v. Mississippi in 1936 and the numerous decisions rendered conformably thereto in the decade following that all uncertainty was dispelled as to the Supreme Court's willingness to engage in its own independent examination of the constitutional adequacy of trial court proceedings.

DUE PROCESS: MISCELLANEOUS

Appeals

In every case a point is reached where litigation must cease; and what that point is can best be determined by the State legislature. The power to render a final judgment must be lodged somewhere; and there is no provision in the Federal Constitution which forbids a State from granting to a tribunal, whether called a court or an administrative board, the final determination of a legal question. Neither in administrative nor judicial proceedings does the due process clause require that the participants be entitled as of right to rehearings, new trials, or appeals.[994]

Federal Review of State Procedure

The Fourteenth Amendment does not impair the authority of the States to determine finally, according to their settled usages and established modes of procedure, issues which do not involve any right secured by the Constitution, an act of Congress, or a treaty. As long as a local tribunal acts in consonance with the Constitution, laws and procedure of its own State and as long as said Constitution and laws are so interpreted as not to violate due process, it is only in exceptional circumstances that the Supreme Court would feel justified in intervening. Neither by intention nor by result has the Fourteenth Amendment transformed the Supreme Court into a court of general review to which questions of general justice or equitable consideration arising out of the taking of property may be brought for final determination.[995]

Insofar as mere irregularities or errors in matters of practice under State procedure do not affect constitutional right,[996] they are matters solely for consideration by the appropriate State tribunal.[997] The Constitution does not guarantee that the decisions of State courts shall be free from error;[998] nor does the due process clause give the Supreme Court jurisdiction to review mere mistakes of law concerning nonfederal matters alleged to have been committed by a State court.[999] Accordingly, when statutes authorizing the form of the indictment used are not obviously violative of fundamental constitutional principles, any question as to the sufficiency of the indictment employed is for a State court to determine.[1000] Likewise, the failure of a State to establish a county appellate court as required by the State constitution cannot support any appeal founded upon a denial of due process.[1001] Moreover, if a State court errs in deciding what the common law is, without, however, denying any constitutional right, the litigant adversely affected is not deprived of any liberty or property without due process of law.[1002] Also, whenever a wrong judgment is rendered, property is taken when it should not have been; yet whatever the ground may be, if the mistake is not so gross as to be impossible in a rational administration of justice, it is no more than the imperfection of man, not a denial of constitutional rights.[1003] In conclusion, the decision of a State court upon a question of local law, however wrong, is not an infraction of the Fourteenth Amendment merely because it is wrong. It is not for the Supreme Court to determine whether there has been an erroneous construction of a State statute or the common law; nor does the Constitution impose any impediment to the correction or modification by a State court of erroneous or older constructions of local law embraced in previous decisions.[1004]

Equal Protection of the Laws

DEFINITIONS OF TERMS

What Constitutes State Action

The inhibition against denial of equal protection of the laws has exclusive reference to State action. It means that no agency of the State, legislative, executive or judicial,[1005] no instrumentality of the State, and no person, officer or agent exerting the power of the State shall deny equal protection to any person within the jurisdiction of the State. The clause prohibits "discriminating and partial legislation * * * in favor of particular persons as against others in like condition."[1006] But it also has reference to the way the law is administered. "Though the law itself be fair on its face and impartial in appearance, yet, if it is applied and administered by public authority with an evil eye and an unequal hand, so as practically to make unjust and illegal discriminations between persons in similar circumstances, material to their rights, the denial of equal justice is still within the prohibition of the Constitution."[1007] This was said in a case where a Chinese subject had been convicted of operating a laundry in violation of a municipal ordinance which made it unlawful to engage in such business (except in a building constructed of brick or stone) without the consent of the board of supervisors. Permission had been withheld from petitioner and 200 other Chinese subjects but had been granted to 80 others to carry on the same business under similar conditions. This discrimination solely on the basis of nationality was held illegal. For an unlawful administration of a valid statute to constitute a violation of constitutional rights, purposeful discrimination must be shown. An erroneous performance of a statutory duty, although a violation of the statute, is not without more a denial of equal protection of the laws.[1008] This clause is also violated by the withholding of equal access to the courts,[1009] or by inequality of treatment in the courts.[1010] In Shelley v. Kraemer[1011] the use of judicial power to enforce private agreements of a discriminatory character was held unconstitutional. Holding that restrictive covenants prohibiting the sale of homes to Negroes could not be enforced in the courts, Chief Justice Vinson said: "These are not cases, as has been suggested, in which the States have merely abstained from action, leaving private individuals free to impose such discriminations as they see fit. Rather, these are cases in which the States have made available to such individuals the full coercive power of government to deny to petitioners, on the grounds of race or color, the enjoyment of property rights in premises which petitioners are willing and financially able to acquire and which the grantors are willing to sell. The difference between judicial enforcement and nonenforcement of the restrictive covenants is the difference to petitioners between being denied rights of property available to other members of the community and being accorded full enjoyment of those rights on an equal footing."[1012] The action of the curators of a state university in refusing admission to an applicant on account of race is regarded as State action.[1013] A State cannot avoid the impact of the clause by the delegation of responsibility to a private body. After a period of vacillation, the Supreme Court has determined that the action of a political party in excluding Negroes from membership is unlawful when such membership is an essential qualification for voting in a primary conducted pursuant to State law.[1014]

"Persons"

In the case in which it was first called upon to interpret this clause the Court expressed doubt whether "any action of a State not directed by way of discrimination against the Negroes as a class, or on account of their race, will ever be held to come within the purview of this provision."[1015] That view was soon abandoned. In 1877 it took jurisdiction of a series of cases, popularly known as the Granger cases, in which railroad corporations sought protection under the due process and equal protection clauses.[1016] Although every case was decided against the corporations on its merits, there was no expression of any doubt that the corporations were entitled to invoke the protection of the amendment. Nine years later the issue was settled definitely by an announcement from the bench by Chief Justice Waite that the Court would not hear argument on the question whether the equal protection clause applies to corporations, adding: "We are all of opinion that it does."[1017] At the same term the Court gave the broadest possible meaning to the word "person"; it held that: "These provisions are universal in their application, to all persons within the territorial jurisdiction, without regard to any differences of race, of color, or of nationality; * * *"[1018] The only qualification of the meaning of "person" is that introduced by subsequent decisions holding that a municipal corporation cannot invoke the amendment against its State.[1019]

"Within Its Jurisdiction"

It is persons "within its jurisdiction" that are entitled to equal protection from a State. Largely because article IV, section 2, has from the beginning entitled "Citizens of each State" to the "Privileges and Immunities of Citizens in the several States," the Court has never construed the phrase, "within its jurisdiction," in relation to natural persons.[1020] The cases interpretive of this expression consequently all concern corporations. In 1898, the Court laid down the rule that a foreign corporation not doing business in a State under conditions that subjected it to process issuing from the courts of the State at the instance of suitors was not "within the jurisdiction," and could not complain of the preference granted resident creditors in the distribution of the assets of an insolvent corporation.[1021] That principle was subsequently qualified, over the dissent of Justices Brandeis and Holmes, by a holding that a foreign corporation which sued in a court of a State in which it was not licensed to do business to recover possession of property wrongfully taken from it in another State was "within the jurisdiction" and could not be subjected to unequal burdens in the maintenance of the suit.[1022] The test of amenability to service of process within the State was ignored in a recent case dealing with discriminatory assessment of property belonging to a nonresident individual. In holding that a federal court had jurisdiction to entertain a suit for a declaratory judgment to invalidate the tax, the Supreme Court specifically mentioned the equal protection clause as the source of the federal right, but took no account of the plaintiff's status as a nonresident, beyond a passing reference to the existence of diversity of citizenship.[1023] When a State has admitted a foreign corporation to do business within its borders, that corporation is entitled to equal protection of the laws, but not necessarily to identical treatment with domestic corporations.[1024] A foreign corporation licensed to do business within a State upon payment of an annual license tax is subject to the power of the State to change at any time the conditions of admission for the future. If it fails to pay an increased license tax as a prerequisite to doing business, it is not "within the jurisdiction" and unequal burdens may be laid upon it as compared with other foreign corporations.[1025]

"Equal Protection of the Laws"

Equal protection of the laws means the protection of equal laws.[1026] It forbids all invidious discrimination but does not require identical treatment for all persons without recognition of differences in relevant circumstances. It requires "that equal protection and security should be given to all under like circumstances in the enjoyment of their personal and civil rights; that all persons should be equally entitled to pursue their happiness and acquire and enjoy property; that they should have like access to the courts of the country for the protection of their persons and property, the prevention and redress of wrongs, and the enforcement of contracts; that no impediment should be interposed to the pursuits of anyone except as applied to the same pursuits by others under like circumstances; that no greater burdens should be laid upon one than are laid upon others in the same calling and condition, and that in the administration of criminal justice no different or higher punishment should be imposed upon one than such as is prescribed to all for like offenses."[1027] The Amendment was not "designed to interfere with the power of the State, sometimes termed its 'police power,' to prescribe regulations to promote the health, peace, morals, education, and good order of the people, and to legislate so as to increase the industries of the State, develop its resources, and add to its wealth and prosperity * * * Regulations for these purposes may press with more or less weight upon one than upon another, but they are designed, not to impose unequal or unnecessary restrictions upon anyone, but to promote, with as little individual inconvenience as possible, the general good. Though, in many respects, necessarily special in their character they do not furnish just ground of complaint if they operate alike upon all persons and property under the same circumstances and conditions."[1028] The due process and equal protection clauses overlap but the spheres of protection they offer are not coterminous. The due process clause "tends to secure equality of law in the sense that it makes a required minimum of protection for everyone's right of life, liberty, and property, which the Congress or the legislature may not withhold. * * * The guaranty [of equal protection] was aimed at undue favor and individual or class privilege, on the other hand, and at hostile discrimination or the oppression of inequality, on the other."[1029]

Legislative Classifications

Although the equal protection clause requires laws of like application to all similarly situated, the legislature is allowed wide discretion in the selection of classes.[1030] Classification will not render a State police statute unconstitutional so long as it has a reasonable basis;[1031] its validity does not depend on scientific or marked differences in things or persons or in their relations. It suffices if it is practical.[1032] While a State legislature may not arbitrarily select certain individuals for the operation of its statutes, a selection is obnoxious to the equal protection clause only if it is clearly and actually arbitrary and not merely possibly so.[1033] A substantial difference, in point of harmful results, between two methods of operation, justifies a classification and the burden is on the attacking party to prove it unreasonable.[1034] There is a strong presumption that discriminations in State legislation are based on adequate grounds.[1035] Every state of facts sufficient to sustain a classification which can reasonably be conceived of as having existed when the law was adopted will be assumed.[1036]

There is no doctrinaire requirement that legislation should be couched in all-embracing terms.[1037] A police statute may be confined to the occasion for its existence.[1038] The equal protection clause does not mean that all occupations that are called by the same name must be treated in the same way.[1039] The legislature is free to recognize degrees of harm; a law which hits the evil where it is most felt will not be overthrown because there are other instances to which it might have been applied.[1040] The State may do what it can to prevent what is deemed an evil and stop short of those cases in which the harm to the few concerned is thought less important than the harm to the public that would ensue if the rules laid down were made mathematically exact.[1041] Exceptions of specified classes will not render the law unconstitutional unless there is no fair reason for the law that would not equally require its extension to the excepted classes.[1042] Incidental individual inequality does not violate the Fourteenth Amendment.[1043] One who is not discriminated against cannot attack a statute because it does not go further; and if what it commands of one it commands of all others in the same class, that person cannot complain of matter which the statute does not cover.[1044]

TAXATION

At the outset, the Court did not regard the equal protection clause as having any bearing on taxation.[1045] Before long, however, it took jurisdiction of cases assailing specific tax laws under this provision.[1046] In 1890 it conceded cautiously that "clear and hostile discriminations against particular persons and classes, especially such as are of an unusual character, unknown to the practice of our governments, might be obnoxious to the constitutional prohibition."[1047] In succeeding years the clause has been invoked but sparingly to invalidate State levies. In the field of property taxation, inequality has been condemned only in two classes of cases: (1) intentional discrimination in assessments; and (2) discrimination against foreign corporations. In addition, there are a handful of cases invalidating, because of inequality, State laws imposing income, gross receipts, sales and license taxes.

Classifications for the Purpose of Taxation

The power of the State to classify for purposes of taxation is "of wide range and flexibility."[1048] The Constitution does not prevent it "from adjusting its system of taxation in all proper and reasonable ways. It may, if it chooses, exempt certain classes of property from any taxation at all, such as churches, libraries, and the property of charitable institutions. It may impose different specific taxes upon different trades and professions, and may vary the rates of excise upon various products; it may tax real estate and personal property in a different manner; it may tax visible property only, and not tax securities for payment of money; it may allow deductions for indebtedness, or not allow them. All such regulations, and those of like character, so long as they proceed within reasonable limits and general usage, are within the discretion of the State Legislature, * * *"[1049] A State may adjust its taxing system in such a way as to favor certain industries or forms of industry,[1050] and may tax different types of taxpayers differently, despite the fact that they compete.[1051] It does not follow that because "some degree of inequality from the nature of things must be permitted, gross inequality must also be allowed."[1052] Classification may not be arbitrary; it must be based on a real and substantial difference,[1053] but the difference need not be great or conspicuous;[1054] but there must be no discrimination in favor of one as against another of the same class.[1055] Also, discriminations of an unusual character are scrutinized with especial care.[1056] A gross sales tax graduated at increasing rates with the volume of sales,[1057] a heavier license tax on each unit in a chain of stores where the owner has stores located in more than one county,[1058] and a gross receipts tax levied on corporations operating taxicabs, but not on individuals,[1059] have been held to be repugnant to the equal protection clause. But it is not the function of the Court to consider the propriety or justness of the tax, to seek for the motives and criticize the public policy which prompted the adoption of the statute.[1060] If the evident intent and general operation of the tax legislation is to adjust the burden with a fair and reasonable degree of equality, the constitutional requirement is satisfied.[1061] One not within the class claimed to be discriminated against cannot raise the question of constitutionality of a statute on the ground that it denies equal protection of the law.[1062] If a tax applies to a class which may be separately taxed, those within the class may not complain because the class might have been more aptly defined, nor because others, not of the class, are taxed improperly.[1063]

Foreign Corporations

The equal protection clause does not require identical taxes upon all foreign and domestic corporations in every case.[1064] In 1886, a Pennsylvania corporation previously licensed to do business in New York challenged an increased annual license tax imposed by that State in retaliation for a like tax levied by Pennsylvania against New York corporations. This tax was held valid on the ground that the State, having power to exclude entirely, could change the conditions of admission for the future, and could demand the payment of a new or further tax, as a license fee.[1065] Later cases whittled down this rule considerably. The Court decided that "after its admission, the foreign corporation stands equal and is to be classified with domestic corporations of the same kind,"[1066] and that where it has acquired property of a fixed and permanent nature in a State, it cannot be subjected to a more onerous tax for the privilege of doing business than domestic corporations.[1067] A State statute taxing foreign corporations writing fire, marine, inland navigation and casualty insurance on net receipts, including receipts from casualty business was held invalid under the equal protection clause where foreign companies writing only casualty insurance were not subject to a similar tax.[1068] Recently, the doctrine of Fire Asso. of Philadelphia v. New York was revived to sustain an increased tax on gross premiums which was exacted as an annual license fee from foreign but not from domestic corporations.[1069] Even though the right of a foreign corporation to do business in a State rests on a license, yet the equal protection clause is held to insure it equality of treatment, at least so far as ad valorem taxation is concerned.[1070]

Income Taxes

A State law which taxes the entire income, including that derived without the State, of domestic corporations which do business in the State, while exempting entirely the income received outside the State by domestic corporations which do no local business, is arbitrary and invalid.[1071] In taxing the income of a nonresident, there is no denial of equal protection in limiting the deduction of losses to those sustained within the State, although residents are permitted to deduct all losses, wherever incurred.[1072] A retroactive statute imposing a graduated tax at rates different from those in the general income tax law, on dividends received in a prior year which were deductible from gross income under the law in effect when they were received, is not obnoxious to the equal protection clause.[1073]

Inheritance Taxes

In inheritance taxation, there is no denial of equal protection in prescribing different treatment for lineal relations, collateral kindred and strangers of the blood, or in increasing the proportionate burden of the tax progressively as the amount of the benefit increases.[1074] A tax on life estates where the remainder passes to lineal heirs is valid despite the exemption of life estates where the remainder passes to collateral heirs;[1075] there is no arbitrary classification in taxing the transmission of property to a brother or sister, while exempting that to a son-in-law or a daughter-in-law.[1076] Vested and contingent remainders may be treated differently.[1077] The exemption of property bequeathed to charitable or educational institutions may be limited to those within the State.[1078] In computing the tax collectible from a nonresident decedent's property within the State, a State may apply the pertinent rates to the whole estate wherever located, and take that proportion thereof which the property within the State bears to the total; the fact that a greater tax may result than would be assessed on an equal amount of property if owned by a resident,[1079] does not invalidate the result.

Motor Vehicle Taxes

In demanding compensation for the use of highways, a State may exempt certain types of vehicles, according to the purpose for which they are used, from a mileage tax on carriers.[1080] A State maintenance tax act, which taxes vehicle property carriers for hire at greater rates than similar vehicles carrying property not for hire is reasonable, since the use of roads by one hauling not for hire generally is limited to transportation of his own property as an incident to his occupation and is substantially less than that of one engaged in business as a common carrier.[1081] A property tax on motor vehicles used in operating a stage line that makes constant and unusual use of the highways may be measured by gross receipts and be assessed at a higher rate than taxes on property not so employed.[1082] Common motor carriers of freight operating over regular routes between fixed termini may be taxed at higher rates than other carriers, common and private.[1083] A fee for the privilege of transporting motor vehicles on their own wheels over the highways of the State for purpose of sale, does not violate the equal protection clause as applied to cars moving in caravans.[1084] The exemption from a tax for a permit to bring cars into the State in caravans of cars moved for sale between zones in the State is not an unconstitutional discrimination where it appears that the traffic subject to the tax places a much more serious burden on the highways than that which is exempt.[1085] The exemption of small vehicles from graduated registration fees on carriers for hire,[1086] and of persons whose vehicles haul passengers and farm products between points not having railroad facilities or hauling farm and dairy products for a producer from a vehicle license tax on private motor carriers, has been upheld.[1087]

Poll Taxes

A poll tax statute exempting women, the aged and minors, does not make an arbitrary classification[1088].

Property Taxes

The State's latitude of discretion is notably wide in the classification of property for purposes of taxation and the granting of partial or total exemption on the grounds of policy,[1089] whether the exemption results from the terms of the statute or the conduct of a State official under it.[1090] A provision for the forfeiture of land for nonpayment of taxes is not invalid because the conditions to which it applies exist only in a part of the State.[1091] Intentional and systematic undervaluation by State officials of other taxable property in the same class contravenes the constitutional right of one taxed upon the full value of his property;[1092] but mere errors in judgment resulting in unequal overvaluation or undervaluation, not intentional or systematic, will not support a claim of discrimination.[1093] Differences in the basis of assessment are not invalid where the person or property affected might properly be placed in a separate class for purposes of taxation.[1094] An owner aggrieved by discrimination is entitled to have his assessment reduced to the common level.[1095] Equal protection is denied if a State does not itself remove the discrimination; it cannot impose upon the person against whom the discrimination is directed the burden of seeking an upward revision of the assessment of other members of the class.[1096] A corporation whose valuations were accepted by the assessing commission cannot complain that it was taxed disproportionately, as compared with others, if the commission did not act fraudulently.[1097]

Special Assessment

A special assessment is not discriminatory because apportioned on an ad valorem basis, nor does its validity depend upon the receipt of some special benefit as distinguished from the general benefit to the community.[1098] Railroad property may not be burdened for local improvements upon a basis so wholly different from that used for ascertaining the contribution demanded of individual owners as necessarily to produce manifest inequality.[1099] A special highway assessment against railroads based on real property, rolling stock and other personal property is unjustly discriminatory when other assessments for the same improvement are based on real property alone.[1100] A law requiring the franchise of a railroad to be considered in valuing its property for apportionment of a special assessment, is not invalid where the franchises were not added as a separate personal property value to the assessment of the real property.[1101] In taxing railroads within a levee district on a mileage basis, it is not necessarily arbitrary to fix a lower rate per mile for those having less than 25 miles of main line within the district than for those having more.[1102]

POLICE POWER

Classification

Justice Holmes once called the equal protection clause the "usual last refuge of constitutional arguments."[1103] When State action is attacked under the due process clause, the assailant usually charges also that he is denied the equal protection of the laws. Except where discrimination on the basis of race or nationality is shown, few police regulations have been found unconstitutional on this ground.[1104] The Court has condemned a statute which forbade stock insurance companies to act through agents who were their salaried employees, but permitted mutual companies to operate in this manner.[1105] A law which required private motor vehicle carriers to obtain certificates of convenience and necessity and to furnish security for the protection of the public was held invalid by reason of the exemption of carriers of fish, farm and dairy products.[1106] Discrimination among milk dealers without well advertised trade names, giving those who entered business before a specified date the benefit of a price differential denied to those who commenced operations thereafter, is arbitrary and unlawful.[1107] A statute providing for the sterilization of defectives in State institutions was sustained;[1108] but a similar act applicable to triple offenders was held void.[1109]

Administrative Discretion

A municipal ordinance which vests in supervisory authorities a naked and arbitrary power to grant or withhold consent to the operation of laundries in wooden buildings, without consideration of the circumstances of individual cases, constitutes a denial of equal protection of the law when consent is withheld from certain persons solely on the basis of nationality.[1110] But a city council may reserve to itself the power to make exceptions from a ban on the operation of a dairy within the city,[1111] or from building line restrictions.[1112] Written permission of the mayor or president of the city council may be required before any person shall move a building on a street.[1113] The Mayor may be empowered to determine whether an applicant has a good character and reputation and is a suitable person to receive a license for the sale of cigarettes.[1114] In a recent case[1115] the Court held that the unfettered discretion of officer river pilots to select their apprentices, which was almost invariably exercised in favor of their relatives and friends, was not a denial of equal protection to persons not selected despite the fact that such apprenticeship was requisite for appointment as a pilot.

Alien Laws

The Fourteenth Amendment prohibits purely arbitrary discrimination against aliens.[1116] Where alien race and allegiance bear a reasonable relation to a legitimate object of legislation, it may be made the basis of classification. Thus, legislation has been upheld under which aliens were forbidden to conduct pool rooms[1117] or to take game or possess shotguns.[1118] A discrimination between citizens and aliens in the matter of employment on public works is not unconstitutional.[1119] A State cannot, however, deny to aliens the right to earn a living in ordinary occupations. Consequently, a statute requiring that employers of more than five workers employ not less than eighty percent qualified electors or natural born citizens denies equal protection of the law.[1120] Likewise a State law forbidding the issuance of commercial fishing licenses to aliens ineligible for citizenship has been held void.[1121] State laws forbidding aliens to own real estate, have been upheld in the past.[1122] A less sympathetic attitude toward such legislation was indicated in Oyama v. California, in 1948.[1123] There the State of California sought to escheat land owned by an American-born son of a Japanese father under a provision of its Alien Land Law which made payment by an alien of the consideration for a transfer of land to a third person prima facie evidence of intent to evade the statute. The Court held that the burden of proof imposed upon the son, an American citizen, by reason of his parent's country of origin, was an unlawful discrimination, but it did not pass upon the constitutionality of the Alien Land Law itself. In concurring opinions four Justices took the position that the law was incompatible with the Fourteenth Amendment.[1124]

Labor Relations

Objections to labor legislation on the ground that the limitation of particular regulations to specified industries was obnoxious to the equal protection clause, have been consistently overruled. Statutes limiting hours of labor for employees in mines, smelters,[1125] mills, factories,[1126] or on public works[1127] have been sustained. So also was a statute forbidding persons engaged in mining and manufacturing to issue orders for payment of labor unless redeemable at face value in cash.[1128] The exemption of mines employing less than ten persons from a law pertaining to measurement of coal to determine a miner's wages is not unreasonable.[1129] All corporations,[1130] or public service corporations,[1131] may be required to issue to employees who leave their service letters stating the nature of the service and the cause of leaving even though other employers are not.

Industries may be classified in a workmen's compensation act according to the respective hazards of each;[1132] the exemption of farm laborers and domestic servants does not render such an act invalid.[1133] A statute providing that no person shall be denied opportunity for employment because he is not a member of a union does not offend the equal protection clause.[1134]

Women, or particular classes of women, may be singled out for special treatment, in the exercise of the State's protective power, without violation of the Fourteenth Amendment. Classification may be based on differences either in their physical characteristics or in the social conditions which surround their employment. Restrictions on conditions of employment in particular occupations are not invalid because the law might have been made broader.[1135] One of the earliest pieces of social legislation to be sustained was a ten-hour law for women employed in laundries.[1136] A law limiting hours of labor for women in hotels is not rendered unconstitutional by reason of the exemption of certain railroad restaurants.[1137] Night work by women in restaurants may be prohibited.[1138] Reversing earlier decisions, the Supreme Court upheld a minimum wage law for women in 1937, saying that their unequal bargaining position justified a law applicable only to them.[1139]

Women may be forbidden to engage in an occupation where their employment may create special moral and social problems. A State statute forbidding women to act as bartenders, but making an exception in favor of wives and daughters of the male owners of liquor establishments was sustained over the objection, which three Justices found persuasive, that the act denied the equal protection of the law to female owners of such establishments.[1140] Said Justice Frankfurter for the majority: "The fact that women may now have achieved the virtues that men have long claimed as their prerogatives and now indulge in vices that men have long practiced, does not preclude the States from drawing a sharp line between the sexes, certainly in such matters as the regulation of the liquor traffic. * * * The Constitution does not require legislatures to reflect sociological insight, or shifting social standards, any more than it requires them to keep abreast of the latest scientific standards."[1141]

Monopolies

On the principle that the law may hit the evil where it is most felt, State Antitrust Laws applicable to corporations but not to individuals,[1142] or to vendors of commodities but not to vendors of labor,[1143] have been upheld. Contrary to its earlier view, the Court now holds that an Antitrust Act which exempts agricultural products in the hands of the producer is valid.[1144] Diversity with respect to penalties also has been sustained. Corporations violating the law may be proceeded against by bill in equity, while individuals are indicted and tried.[1145] A provision, superimposed upon the general Antitrust Law, for revocation of the licenses of fire insurance companies which enter into illegal combinations, does not violate the equal protection clause.[1146] A grant of monopoly privileges, if otherwise an appropriate exercise of the police power, is immune to attack under that clause.[1147]

Punishment for Crime

Equality of protection under the law implies that in the administration of criminal justice no person shall be subject to any greater or different punishment than another in similar circumstances.[1148] Comparative gravity of criminal offenses is a matter for the State to determine, and the fact that some offenses are punished with less severity than others does not deny equal protection.[1149] Heavier penalties may be imposed upon habitual criminals for like offenses,[1150] even after a pardon for an earlier offense,[1151] and such persons may be made ineligible for parole.[1152] A State law doubling the sentence on prisoners attempting to escape does not deny equal protection in subjecting prisoners who attempt to escape together to different sentences depending on their original sentences.[1153] Infliction of the death penalty for assaults with intent to kill by life term convicts is not unconstitutional because not applicable to convicts serving lesser terms.[1154] The Fourteenth Amendment does not preclude the commitment of persons who, by an habitual course of misconduct, have evidenced utter lack of power to control sexual impulses, and are likely to inflict injury.[1155] A statute prohibiting a white person and a Negro from living together in adultery or fornication is not invalid because it prescribes penalties more severe than those to which the parties would be subject were they both of the same race.[1156] The equal protection clause does not prevent the execution of a prisoner after the accidental failure of the first attempt.[1157] It does, however, render invalid a statute requiring sterilization of persons convicted of various offenses, including larceny by fraud, but exempting embezzlers.[1158]

Segregation

Laws designed to segregate persons of different races in the location of their homes, in the public schools and on public conveyances have been a prolific source of litigation under the equal protection clause. An ordinance intended to segregate the homes of white and colored races is invalid.[1159] Private covenants forbidding the transfer of real property to persons of a certain race or color have been held lawful,[1160] but the enforcement of such agreements by a State through its courts would constitute a denial of equal protection of the laws.[1161] A statute providing for separate but equal accommodations on railroads for white and colored persons has been held not to deny equal protection of the law,[1162] but a separate coach law which permits carriers to provide sleeping and dining cars only for white persons, is invalid notwithstanding recognition by the legislature that there would be little demand for them by colored persons.[1163] Fifty years ago the action of a local board of education in suspending temporarily for economic reasons a high school for colored children was held not to be a sufficient reason for restraining the board from maintaining an existing high school for white children, when the evidence did not indicate that the board had proceeded in bad faith or had acted in hostility to the colored race.[1164] A child of Chinese ancestry, who is a citizen of the United States, is not denied equal protection of law by being assigned to a public school provided for colored children, when equal facilities for education are offered to both races.[1165]

Although the principle that separate but equal facilities satisfy constitutional requirements has not been reversed, the Court in recent years has been inclined to review more critically the facts of cases brought before it to ascertain whether equality has, in fact, been offered. In Missouri v. Canada[1166] it held that the State was denying equal protection of the law in failing to provide a legal education within the State for Negroes comparable to that afforded white students. Pursuant to a policy of segregating Negro and white students, the State had established a law school at the State university for white applicants. In lieu of setting up one at its Negro university, it authorized the curators thereof to establish such a school whenever in their opinion it should be necessary and practicable to do so, and pending such development, to arrange and pay for the legal education of the State's Negroes at schools in other States. This was found insufficient; the obligation of the State to afford the protection of equal law can be performed only where its laws operate, that is to say, within its own jurisdiction. It is there that equality of rights must be maintained. In a later case the Court held that the State of Oklahoma was obliged to provide legal education for a qualified Negro applicant as soon as it did for applicants of any other group.[1167] To comply with this mandate a State court entered an order requiring in the alternative the admission of a Negro to the state-maintained law school or non-enrollment of any other applicant until a separate school with equal educational facilities should be provided for Negroes. Over the objection of two Justices the Supreme Court held this order did not depart from its mandate.[1168] After a close examination of the facts, the Court concluded, in Sweatt v. Painter,[1169] that the legal education offered in a separate law school for Negroes was inferior to that afforded by the University of Texas Law School and hence that the equal protection clause required that a qualified applicant be admitted to the latter. In McLaurin v. Oklahoma State Regents[1170] the Court held that enforced segregation of a Negro student admitted to a State university was invalid because it handicapped him in the pursuit of effective graduate instruction.

POLITICAL RIGHTS

In conjunction with the Fifteenth Amendment the equal protection clause has played an important role in cases involving various expedients devised to deprive Negro citizens of the right of suffrage. Attempts have also been made, but thus far without success, to invoke this clause against other forms of political inequality. The principal devices employed to prevent voting by Negroes have been grandfather clauses, educational qualifications, registration requirements and restrictions on membership in a political party. Grandfather clauses exempting persons qualified as electors before 1866 and their descendants from requirements applicable to other voters, were held to violate the Fifteenth Amendment.[1171] Educational qualifications which did not on their face discriminate between white and Negro voters were sustained in the absence of a showing that their actual administration was evil.[1172] In 1903 in a suit charging that the registration procedure prescribed by statute was fraudulently designed to prevent Negroes from voting, the Court, in an opinion written by Justice Holmes, refused to order the registration of an allegedly qualified Negro, on the whimsical ground that to do so would make the Court a party to the fraudulent plan.[1173] The opinion was careful to state that "we are not prepared to say that an action at law could not be maintained on the facts alleged in the bill." Such an action was brought some years later in Oklahoma under a registration law enacted after its "grandfather" statute had been held unconstitutional. Registration was not necessary for persons who had voted at the previous election under the invalid statute. Other persons were required to register during a twelve day period or be forever disfranchised. A colored citizen who was refused the right to vote in 1934 because of failure to register during the prescribed period in 1916, was held to have a cause of action for damages against the election officials under the Civil Rights Act of 1871. In the opinion of the Court reversing a judgment for the defendants, Justice Frankfurter said:[1174] "The Amendment nullifies sophisticated as well as simple minded modes of discrimination. It hits onerous procedural requirements which effectively handicap exercise of the franchise by the colored race although the abstract right to vote may remain unrestricted as to race."

As the selection of candidates by primary elections became general, the denial of the right to vote in the primary assumed dominant importance. For many years the Court hesitated to hold that party primaries were elections within the purview of the Constitution. During that period the equal protection clause was relied upon to invalidate discrimination against Negroes. Under the clause, it is necessary to find that inequality is perpetrated by the State.[1175] The Court had no difficulty in holding that a State statute which forbade voting by Negroes in a party primary was obnoxious to the Fourteenth Amendment.[1176] The same conclusion was reached with respect to exclusion by action of a party executive committee pursuant to authority conferred by statute.[1177] But at first it refused to extend this rule to a restriction on membership imposed without statutory authority by the State convention of a party.[1178] The latter case was soon overruled; having, in the meanwhile, decided that a primary is an integral part of the electoral machinery,[1179] the Court ruled in Smith v. Allwright,[1180] that a restriction on party membership imposed by a State convention was invalid under the Fifteenth Amendment, where such membership was a prerequisite for voting in the primary.

Failure has attended the few attempts which have been made to strike down other alleged discriminations in election laws or in their administration. Nearly fifty years ago the Court rejected a claim that an act forbidding the registration of a voter until one year after his intent to become a legal voter shall have been recorded was a denial of equal protection.[1181] In Snowden v. Hughes,[1182] it held that an alleged erroneous refusal of a State Primary Canvassing Board to certify a person as a successful candidate in a party primary was not, in the absence of a showing of purposeful discrimination, a denial of a constitutional right which would justify a suit for damages against members of the Board. Three recent attacks on inequalities in the effective voting power of persons residing in different geographical areas were likewise unsuccessful. The Court refused, in Colegrove v. Green,[1183] to interfere to prevent the election of Representatives in Congress by districts in Illinois, because of unequal apportionment. Two years later, in MacDougall v. Green[1184] it held that a State law requiring candidates of a new political party to obtain a minimum number of signatures on their nominating petitions in each of 50 counties did not withhold equal justice from the overwhelming majority of the voters who resided in the 49 most populous counties. Over the dissent of Justices Black and Douglas it affirmed the action of a federal district court in dismissing a complaint challenging the validity of Georgia's county unit election system, under which the votes of residents of the most populous county have on the average but one-tenth the weight of those in other counties.[1185]

PROCEDURE

General Doctrine

The equal protection clause does not exact uniformity of procedure. State legislatures may classify litigation and adopt one type of procedure for one class and a different type for another. The procedure followed in condemnation suits brought by a State need not be the same as in a suit started by a private corporation.[1186] Procedural rules may vary in different geographic subdivisions of the State; the State may be given a larger number of peremptory challenges to jurors in capital cases in cities having more than 100,000 inhabitants than in other areas.[1187] A State may require that disputes on the amount of loss under fire insurance policies be submitted to arbitration.[1188] It may prescribe the evidence which shall be received and the effect which shall be given it; proof of one fact, or of several facts taken collectively, may be made prima facie evidence of another fact, so long as it is not a mere arbitrary mandate and does not discriminate invidiously between different persons in substantially the same situations.[1189] A plaintiff in a stockholder's derivative suit may be required to give security if he does not own a specified amount of stock; the size of his financial interest may reasonably be considered as some measure of his good faith and responsibility in bringing the suit.[1190]

Access to Courts

The legislature may provide for diversity in the jurisdiction of its several courts, both as to subject matter and finality of decision, if all persons within the territorial limits of the respective jurisdiction have an equal right in like cases to resort to them for redress.[1191] There is no denial of equal protection of the law by reason of the fact that in one district the State is allowed an appeal and in another district it is not.[1192] The legislative discretion to grant or withhold equitable relief in any class of cases must, under the equal protection clause, be so exercised as not to grant equitable relief to one, and to deny it to another under like circumstances and in the same territorial jurisdiction. A State law forbidding injunctions in labor disputes is invalid where injunctive relief is available in other similar controversies.[1193] The action of prison officials in suppressing a prisoner's appeal documents during the statutory period for appeal constitutes a denial of equal protection by refusing him privileges of appeal that were available to others.[1194]

Corporations

A statute permitting suits against domestic corporations to be brought in any county in which the cause of action arose, is not void as denying equal protection.[1195] Neither is a statute applicable only to corporations requiring the production of books and papers upon notice, with punishment for contempt upon neglect or refusal to comply.[1196] Where, however, actions against domestic corporations may be brought only in counties where they may have places of business or where a chief officer resides, a statute authorizing action against a foreign corporation in any county is discriminatory and invalid.[1197] So also is a statute, applicable only to foreign corporations, which requires the corporation, as a condition precedent to maintenance of an action, to send its officer into the State, with papers and books bearing on the matter in controversy, for examination before trial, where nonresident individuals, as well as individuals and corporations within the State, were subject to less onerous requirements.[1198]

Expenses of Litigation

A statute which directs that life and health insurance companies who default in payments of their policies shall pay 12 per cent damages, together with reasonable attorney's fees, does not deny the equal protection of the law in failing to impose the same conditions on fire, marine, and inland insurance companies, and on mutual benefit and relief associations.[1199] Costs may be allowed to a person who has been subjected to malicious prosecution, with provision for commitment of the prosecutor until paid.[1200] Statutes providing for recovery of reasonable attorney's fees in action on small claims against all classes of defendants, individual and corporate,[1201] in mandamus proceedings,[1202] or in actions against railroads for damages caused by fires[1203] have been upheld. But a statute, applicable only to railway corporations, providing for recovery of attorney's fees and costs in actions for certain small claims was found to be repugnant to the equal protection clause.[1204]

Selection of Jury

Exercising the authority conferred by section 5 of the Fourteenth Amendment, Congress has expressly forbidden the exclusion of any citizen from service as a grand or petit juror in any federal or State court, on the ground of race or color.[1205] Jury commissioners are under the duty "not to pursue a course of conduct in the administration of their office which would operate to discriminate in the selection of jurors on racial grounds."[1206] An accused does not, however, have a legal right to a jury composed in whole or in part of members of his own race.[1207] Mere inequality in the numbers of persons selected from different races is not conclusive; discrimination is unlawful only if it is purposeful and systematic.[1208] But where it appeared that no Negro had served on a grand or petit jury for thirty years in a county in which 35 per cent of the adult population was colored, the inference of systematic exclusion was not repelled by a showing that few Negroes fulfilled the requirement that a juror must be a qualified elector.[1209]

To what extent, if at all, the equal protection clause prevents the exclusion from jury service of any class of persons on any basis other than race or color is a still unsettled problem of constitutional interpretation. The selection of jurors may be confined to males, to citizens, to qualified electors, to persons within certain ages, or to persons having prescribed educational qualifications.[1210] Certain occupational groups, such as lawyers, preachers, ministers, doctors, dentists, and engineers and firemen of railroad trains may be excluded from jury service.[1211] An issue of even greater consequence is raised by differentiation in the qualifications of persons selected to try different kinds of cases. This was the question on which the Supreme Court divided five to four in Fay v. New York[1212] where it upheld a conviction by a "blue ribbon" jury. In that case defendants, officials of certain labor unions, were convicted of extortion, by collecting large sums from contractors for assisting them in avoiding labor troubles. From a "blue ribbon" jury certain categories of persons qualified for ordinary jury duty are excluded; and on this ground defendants claimed that in being tried by such a jury they had been denied "equal protection of the law" and deprived of "due process of law," but especially the former, alleging that such juries had a higher record of conviction than ordinary juries and that their sympathies were "conservative." The Court, speaking by Justice Jackson, answered that "a state is not required to try all offenses to the same forum," but conceded that "a discretion, even if vested in the court, to shunt a defendant before a jury so chosen as greatly to lessen his chances while others accused of a like offense are tried by a jury so drawn as to be more favorable to them, would hardly be 'equal protection of the laws.'"[1213] However, he asserted that the New York statute authorizing "blue ribbon" juries "does not exclude, or authorize the clerk to exclude, any person or class because of race, creed, color or occupation. It imposes no qualification of an economic nature beyond that imposed by the concededly valid general panel statute. Each of the grounds of elimination is reasonably and closely related to the juror's suitability for the kind of service the special panel requires or to his fitness to judge the kind of cases for which it is most frequently utilized. Not all of the grounds of elimination would appear relevant to the issues of the present case. But we know of no right of defendants to have a specially constituted panel which would include all persons who might be fitted to hear their particular and unique case."[1214] He held further that defendants had failed to shoulder the necessary burden of proof in support of their allegations of discrimination, and added: "At most, the proof shows lack of proportional representation and there is an utter deficiency of proof that this was the result of a purpose to discriminate against this group as such. The uncontradicted evidence is that no person was excluded because of his occupation or economic status. All were subjected to the same tests of intelligence, citizenship and understanding of English. The state's right to apply these tests is not open to doubt even though they disqualify, especially in the conditions that prevail in New York, a disproportionate number of manual workers. A fair application of literacy, intelligence and other tests would hardly act with proportional equality on all levels of life. The most that the evidence does is to raise, rather than answer, the question whether there was an unlawful disproportionate representation of lower income groups on the special jury."[1215] Then, as to the due process clause, he pointed out that the jury had had a long and varied history in the course of which it has assumed many forms, and that for that matter the Court "* * * has construed it to be inherent in the independent concept of due process that condemnation shall be rendered only after a trial, in which the hearing is a real one, not a sham or pretense. * * * Trial must be held before a tribunal not biased by interest in the event. * * * Undoubtedly a system of exclusions could be so manipulated as to call a jury before which defendants would have so little chance of a decision on the evidence that it would constitute a denial of due process. A verdict on the evidence, however, is all an accused can claim; he is not entitled to a set-up that will give a chance of escape after he is properly proven guilty. Society also has a right to a fair trial. The defendant's right is a neutral jury. He has no constitutional right to friends on the jury."[1216]

APPORTIONMENT OF REPRESENTATION

Section 2. Representatives shall be apportioned among the several States according to their respective numbers, counting the whole number of persons in each State, excluding Indians not taxed. But when the right to vote at any election for the choice of electors for President and Vice President of the United States, Representatives in Congress, the Executive and Judicial officers of a State, or the members of the Legislature thereof, is denied to any of the male inhabitants of such State, being twenty-one years of age, and citizens of the United States, or in any way abridged, except for participation in rebellion, or other crime, the basis of representation therein shall be reduced in the proportion which the number of such male citizens shall bear to the whole number of male citizens twenty-one years of age in such State.

In General

The effect of this section in relation to Negroes was indicated in Elk v. Wilkins.[1217] "Slavery having been abolished, and the persons formerly held as slaves made citizens, this clause fixing the apportionment of representatives has abrogated so much of * * * [Article I, Sec. 2, cl. 3] of the * * * original Constitution as counted only three-fifths of such persons."

"Indians Not Taxed"

Although one authority on the legal status of the American Indian observed that this "* * * phrase [was] never * * * more explicitly defined, but probably * * * [meant] * * * Indians resident on reservations, that is, on land not taxed by the States,"[1218] the United States Attorney General, in 1940, commented as follows upon the difficulty of arriving at any satisfactory construction of these words: "Whether the phrase 'Indians not taxed' refers (1) to Indians not actually paying taxes or only to those who are not subject to taxation and (2) to Indians not taxed or subject to taxation by any taxing authority or only to those not taxed or subject to taxation by the States in which they reside * * * [presents] questions * * * [which have] been discussed in a number of court decisions but the issue has never been squarely raised in any of the decided cases. Some of the cases and some statements appearing in the debates in the Constitutional Convention lend support to the view that since all Indians are now subject to the Federal income-tax laws [Superintendent v. Commissioner, 295 U.S. 418 (1935)] there are no longer any Indians not taxed within the meaning of the constitutional phrase. On the other hand, other decided cases and other statements appearing in the debates in the Convention equally support the contrary view. * * *, the answer to * * * [these questions] is not free from doubt."[1219]

As to the latest construction which Congress has given to this phrase in apportioning seats in the House of Representatives, it is pertinent to note that the Apportionment Act of 1929, at last amended in 1941,[1220] excludes "Indians not taxed" from the computation of the total population of each State. However, in reliance on the above-mentioned decision that all Indians are now subject to federal income taxation, the Director of the Census included all Indians in the 1940 tabulation of total population in each State, and Congress took no action to alter the effects which such inclusion had upon the number of seats distributed to the several States.[1221]

Right to Vote

The right to vote intended to be protected refers to the right to vote as established by the laws and constitution of the State; subject, however, to the limitation that the Constitution, in article I, section 2, adopts as qualifications for voting for members of Congress those qualifications established by the States for voting for the most numerous branch of their legislatures.

To the latter extent the right to vote for members of Congress has been declared to be fundamentally based upon the Constitution and as never having been intended to be left within the exclusive control of the States.[1222]

Reduction of State's Representation

"Questions relating to the apportionment of representatives among the several States are political in their nature and reside exclusively within the determination of Congress * * *" Consequently, a United States District Court was obliged to dismiss an action for damages against the Virginia Secretary of State for the latter's refusal to certify the plaintiff as candidate for the office of Congressman at large, inasmuch as the plaintiff's case rested on the theory that the apportionment act of Congress and the Redistricting Act of Virginia, by failing to take into account the disenfranchisement of 60% of the voters occasioned by the poll tax, were both invalid, and that Virginia accordingly was entitled to only four instead of nine Congressmen, which four were to be elected at large.[1223] "It is well known that the elective franchise has been limited or denied to citizens in various States of the union in past years, but no serious attempt has been made by Congress to enforce the mandate of the second section of the Fourteenth Amendment, and it is noteworthy that there are no instances in which the courts have attempted to revise the apportionment of Representatives by Congress."[1224]

DISQUALIFICATION OF OFFICERS

Section 3. No Person shall be a Senator or Representative in Congress, or elector of President and Vice President, or hold any office, civil or military, under the United States, or under any State, who, having previously taken an oath, as a member of Congress, or as an officer of the United States, or as a member of any State legislature, or as an executive or judicial officer of any State, to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof. But Congress may by a vote of two-thirds of each House, remove such disability.

In General

The right to remove disabilities imposed by this section was exercised by Congress at different times on behalf of enumerated individuals--notably by act of December 14, 1869 (16 Stat. 607). In 1872, the disabilities were removed, by a blanket act, from all persons "except Senators and Representatives of the Thirty-sixth and Thirty-seventh Congresses, officers in the judicial military, and naval service of the United States, heads of departments, and foreign ministers of the United States" (17 Stat. 142). Twenty-six years later, on June 6, 1898 (30 Stat. 432), Congress enacted briefly that "the disability imposed by section 3 * * * incurred heretofore [prior to June 6, 1898], is hereby removed."[1225]

PUBLIC DEBT, ETC.

Section 4. The validity of the public debt of the United States, authorized by law, including debts incurred for payment of pensions and bounties for services in suppressing insurrection or rebellion, shall not be questioned. But neither the United States nor any State shall assume or pay any debt or obligation incurred in aid of insurrection or rebellion against the United States, or any claim for the loss or emancipation of any slave; but all such debts, obligations and claims shall be held illegal and void.

Although section four "was undoubtedly inspired by the desire to put beyond question the obligations of the Government issued during the Civil War, its language indicates a broader connotation. * * * 'the validity of the public debt' * * * [embraces] whatever concerns the integrity of the public obligations," and applies to government bonds issued after as well as before adoption of the Amendment.[1226]

ENFORCEMENT

Section 5. The Congress shall have power to enforce, by appropriate legislation, the provisions of this article.

Scope of the Provision

"* * * until some State law has been passed, or some State action through its officers or agents has been taken, adverse to the rights of citizens sought to be protected by the Fourteenth Amendment, no legislation of the United States under said amendment, nor any proceeding under such legislation, can be called into activity: * * * The legislation which Congress is authorized to adopt in this behalf is not general legislation upon the rights of the citizen, but corrective legislation, that is, such as may be necessary and proper for counteracting such laws as the States may adopt or enforce, and which, by the amendment, they are prohibited from making or enforcing, or such acts and proceedings as the States may commit or take, and which, by the amendment, they are prohibited from committing or taking."[1227]

Conversely, Congress may enforce the provisions of the amendment whenever they are disregarded by either the legislative, the executive, or the judicial department of the State. The mode of the enforcement is left to its discretion. It may secure the right, that is, enforce its recognition, by removing the case from a State court, in which it is denied, into a federal court where it will be acknowledged.[1228] Similarly, Congress may provide that "no citizen, possessing all other qualifications which are or may be prescribed by law shall be disqualified for service as grand or petit juror in any court of the United States, or of any State, on account of race, color, or previous condition of servitude; and any officer or other person charged with any duty in the selection or summoning of jurors who shall exclude or fail to summon any citizen for the cause aforesaid shall, on conviction thereof, be deemed guilty of a misdemeanor, * * *"[1229] However, the Supreme Court declined to sustain Congress when, under the guise of enforcing the Fourteenth Amendment by appropriate legislation, it enacted a statute which was not limited to take effect only in case a State should abridge the privileges of United States citizens, but applied no matter how well the State might have performed its duty, and would subject to punishment private individuals who conspired to deprive anyone of the equal protection of the laws.[1230]

Whether its powers of enforcement enable Congress constitutionally to punish State officers who abuse their authority and act in violation of their State's laws is a question on which the Justices only recently have divided. Five Justices ruled in Screws v. United States[1231] that section 20 of the Criminal Code[1232] which provides "whoever, under the color of any law, statute, ordinance, * * *, willfully subjects, * * *, any inhabitant of any State, * * * to the deprivation of any rights, * * * protected by the Constitution and laws of the United States, * * *" could be the basis of a prosecution of Screws, a Georgia sheriff, and others, on charges of having, in the course of arresting a Negro, brutally beaten him to death and deprive him of "the right not to be deprived of life without due process of law."[1233] Holding that, "abuse of State power" does not create "immunity to federal power" these five Justices concluded that Ex parte Virginia[1234] and United States v. Classic[1235] had rejected for all time the defense that action by state officers in excess of their powers did not constitute state action "under color of law" and therefore was punishable, if at all, only as a crime against the State.[1236] The conviction of Screws was, however, reversed on the ground that the jury should have been instructed to say whether the accused had had the "specific intent" to deprive their victim of his constitutional rights, since in the absence of such a finding Sec. 20 failed for indefiniteness.[1237] But this construction of the word "willfully" appears subsequently to have been abandoned, or at least considerably watered down. In Williams v. United States,[1238] decided in April 1951, the Court ruled, by a bare majority, that a conviction under Sec. 20 was not subject to objection on the ground of the vagueness of the statute 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.[1239] To the same effect is the later case of Koehler v. United States[1240] in which the Court denied certiorari in a case closely resembling that of Screws, although the trial judge, while charging the jury that it must find specific intent, nevertheless went on to say:"'The color of the act determines the complexion of the intent. The intent to injure or defraud is presumed when the unlawful act, which results in loss or injury, is proved to have been knowingly committed. It is a well settled rule, which the law applies to both criminal and civil cases, that the intent is presumed and inferred from the result of the action.'"[1241]

Notes

[1] As to the other categories, see Art. I, Sec. 8, cl. 4, Naturalization (see pp. 254-256).

[2] Scott v. Sandford, 19 How. 393 (1897).

[3] Ibid. 404-406, 417-418, 419-420.

[4] By the Civil Rights Act of April 9, 1866 (14 Stat. 27), enacted two years prior to the Fourteenth Amendment, "All persons born in the United States and not subject to any foreign power, excluding Indians not taxed, are hereby declared to be citizens of the United States; * * *"

[5] 169 U.S. 649 (1898).--Thus, a person who was born in the United States of Swedish parents then naturalized here did not lose her citizenship and was therefore not subject to deportation because of her removal to Sweden during her minority, it appearing that her parents resumed their citizenship in that country, but that she returned here on attaining majority with intention to retain and maintain her citizenship.--Perkins v. Elg, 307 U.S. 325 (1939).

[6] 169 U.S. 682.

[7] In re Look Tin Sing, 21 F. 905 (1884).

[8] Lam Mow v. Nagle, 24 F. (2d) 316 (1928).

[9] United States v. Gordon, Fed. Cas. No. 15,231 (1861). The term, United States, is defined in the recently enacted Immigration and Nationality Act as follows: "The term, 'United States', except as otherwise specifically herein provided, when used in a geographical sense, means the continental United States, Alaska, Hawaii, Puerto Rico, Guam, and the Virgin Islands of the United States." 66 Stat. 165, Sec. 101 (38). Whether the expression is used in the same sense in Amendment XIV may be questionable.

[10] Slaughter-House Cases, 16 Wall. 36, 74 (1873).

[11] Arver v. United States (Selective Draft Law Cases), 245 U.S. 366, 377, 388-389 (1918).

[12] Insurance Co. v. New Orleans, Fed. Cas. No. 7,052 (1870).--Not being citizens of the United States, corporations accordingly have been declared unable "to claim the protection of that clause of the Fourteenth Amendment which secures the privileges and immunities of citizens of the United States against abridgment or impairment by the law of a State."--Orient Ins. Co. v. Daggs, 172 U.S. 557, 561 (1899). This conclusion was in harmony with the earlier holding in Paul v. Virginia, 8 Wall. 168 (1869) to the effect that corporations were not within the scope of the privileges and immunities clause of state citizenship set out in article 4, section 2. See also Selover, Bates & Co. v. Walsh, 226 U.S. 112, 126 (1912); Berea College v. Kentucky, 211 U.S. 45 (1908); Liberty Warehouse Co. v. Burley Tobacco Growers' Co-op. Marketing Asso., 276 U.S. 71, 89 (1928); Grosjean v. American Press Co., 297 U.S. 233, 244 (1936).

[13] 16 Wall. 36, 71, 77-79 (1873).

[14] Ibid. 78-79.

[15] Ibid. 79, citing Crandall v. Nevada, 6 Wall. 35 (1868). Decided before ratification of the Fourteenth Amendment.

[16] 211 U.S. 78, 97.

[17] Crandall v. Nevada, 6 Wall. 35 (1868). This case has been cited as supporting the claim that "the right to pass freely from State to State" is "among the rights and privileges of National citizenship" (Twining v. New Jersey, 211 U.S. 78, 97 (1908)); but it was pointed out in United States v. Wheeler, 254 U.S. 281, 299 (1920), that the statute involved in the Crandall Case was held to burden directly the performance by the United States of its governmental functions. In Williams v. Fears, 179 U.S. 270, 274 (1900), a law taxing the business of hiring persons to labor outside the State was upheld on the ground that it affected freedom of egress from the State "only incidentally and remotely."

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

[19] Ex parte Yarbrough, 110 U.S. 651 (1884); Wiley v. Sinkler, 179 U.S. 58 (1900).

[20] United States v. Waddell, 112 U.S. 76 (1884).

[21] Logan v. United States, 144 U.S. 263 (1892).

[22] Re Quarles, 158 U.S. 532 (1895).

[23] Crutcher v. Kentucky, 141 U.S. 47, 57 (1891).

[24] 307 U.S. 496.

[25] Concurring in the result, Justice Stone contended that the case should have been disposed of by reliance upon the due process, rather than the privileges and immunities, clause, inasmuch as the record disclosed that the complainants had not invoked the latter clause and the evidence failed to indicate that any of the complainants were in fact citizens or that any relation between citizens and the Federal Government was involved.--Ibid. 525-527.

[26] 314 U.S. 160, 177-183 (1941).

[27] Justices Douglas, Black, Murphy and Jackson.

[28] 6 Wall. 35 (1868).

[29] 279 U.S. 245, 251 (1929).

[30] 296 U.S. 404.

[31] See Madden v. Kentucky, 309 U.S. 83, 93.

[32] 296 U.S. 404, 444, 445-446.

[33] 332 U.S. 633, 645, 640.

[34] Ibid. 640.

[35] Holden v. Hardy, 169 U.S. 366, 380 (1898).

[36] Williams v. Fears, 179 U.S. 270, 274 (1900).

[37] Wilmington Star Min. Co. v. Fulton, 205 U.S. 60, 74 (1907).

[38] Heim v. McCall, 239 U.S. 175 (1915); Crane v. New York, 239 U.S. 195 (1915).

[39] Missouri P.R. Co. v. Castle, 224 U.S. 541 (1912).

[40] Western U. Teleg. Co. v. Commercial Milling Co., 218 U.S. 406 (1910).

[41] Bradwell v. Illinois, 16 Wall. 130, 139 (1873); Re Lockwood, 154 U.S. 116 (1894).

[42] Kirtland v. Hotchkiss, 100 U.S. 491, 499 (1879).

[43] Bartemeyer v. Iowa, 18 Wall. 129 (1874); Mugler v. Kansas, 123 U.S. 623 (1887); Crowley v. Christensen, 137 U.S. 86, 91 (1890); Giozza v. Tiernan, 148 U.S. 657 (1893).

[44] Ex parte Kemmler, 136 U.S. 436 (1890).

[45] Minor v. Happersett, 21 Wall. 162 (1875).

[46] Pope v. Williams, 193 U.S. 621 (1904).

[47] Ferry v. Spokane, P. & S.R. Co., 258 U.S. 314 (1922).

[48] Walker v. Sauvinet, 92 U.S. 90 (1876).

[49] Presser v. Illinois, 116 U.S. 252, 267 (1886).

[50] Maxwell v. Dow, 176 U.S. 581, 596, 597-598 (1900).

[51] Twining v. New Jersey, 211 U.S. 78, 91-98 (1908). Reaffirmed in Adamson v. California, 332 U.S. 46, 51-53 (1947).

[52] New York ex rel. Bryant v. Zimmerman, 278 U.S. 63, 71 (1928).

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

[54] Breedlove v. Suttles, 302 U.S. 277 (1937).

[55] Madden v. Kentucky, 309 U.S. 83, 92-93 (1940); overruling Colgate v. Harvey, 296 U.S. 404, 430 (1935).

[56] Snowden v. Hughes, 321 U.S. 1 (1944).

[57] MacDougall v. Green, 335 U.S. 281 (1948)

[58] Hibben v. Smith, 191 U.S. 310, 325 (1903).

[59] Carroll v. Greenwich Ins. Co., 199 U.S. 401, 410 (1905). See also French v. Barber Asphalt Paving Co., 181 U.S. 324, 328 (1901).

[60] Scott v. Sandford, 19 How. 393, 450 (1857), is the exception. See pp. 963-964.

[61] 16 Wall. 36 (1873).

[62] Ibid. 80-81.

[63] 94 U.S. 113 (1877).

[64] Ibid. 134.

[65] 96 U.S. 97 (1878).

[66] Ibid. 103-104.

[67] 110 U.S. 516 (1884).

[68] Ibid. 528, 532, 536.

[69] 94 U.S. 113, 141-148 (1877).

[70] 123 U.S. 623, 661.

[71] 16 Wall. 36, 113-114, 116, 122 (1873).

[72] Savings & Loan Association v. Topeka, 20 Wall. 655, 663 (1875).--"There are * * * rights in every free government beyond the control of the State. * * * There are limitations on [governmental power] which grow out of the essential nature of all free governments. Implied reservations of individual rights, without which the social compact could not exist, * * *"

[73] "Rights to life, liberty, and the pursuit of happiness are equivalent to the rights of life, liberty, and property. These are the fundamental rights which can only be taken away by due process of law, and which can only be interfered with, or the enjoyment of which can only be modified, by lawful regulations necessary or proper for the mutual good of all; * * * This right to choose one's calling is an essential part of that liberty which it is the object of government to protect; and a calling, when chosen, is a man's property and right. * * * A law which prohibits a large class of citizens from adopting a lawful employment, or from following a lawful employment previously adopted, does deprive them of liberty as well as property, without due process of law."--Slaughter-House Cases, 16 Wall. 36, 116, 122 (Justice Bradley).

[74] 143 U.S. 517, 551.

[75] See Fletcher v. Peck, 6 Cr. 87, 128 (1810).

[76] 94 U.S. 113, 123, 132 (1877).

[77] Ibid. 132.

[78] 123 U.S. 623 (1887).

[79] Ibid. 662.--"We cannot shut out of view the fact, within the knowledge of all, that the public health, the public morals, and the public safety, may be endangered by the general use of intoxicating drinks; nor the fact, * * *, that * * * pauperism, and crime * * * are, in some degree, at least, traceable to this evil."

[80] 127 U.S. 678 (1888).

[81] Ibid. 685.

[82] 169 U.S. 366 (1898).

[83] 198 U.S. 45 (1905).

[84] 127 U.S. 678 (1888).

[85] 123 U.S. 623 (1887).

[86] 169 U.S. 366, 398.

[87] 198 U.S. 45, 58-59 (1905).

[88] 198 U.S. 45, 71-74.

[89] 198 U.S. 45, 75-76.

[90] 243 U.S. 426 (1917.)

[91] 208 U.S. 412 (1908).

[92] Ibid.

[93] Adkins v. Children's Hospital, 261 U.S. 525 (1923); Stettler v. O'Hara, 243 U.S. 629 (1917); Morehead v. New York ex rel. Tipaldo, 298 U.S. 587 (1936); overruled by West Coast Hotel Co. v. Parrish, 300 U.S. 379 (1937).

[94] West Coast Hotel Co. v. Parrish, 300 U.S. 379 (1937). Thus the National Labor Relations Act was declared not to "interfere with the normal exercise of the right of the employer to select its employees or to discharge them." However, restraint of the employer for the purpose of preventing an unjust interference with the correlative right of his employees to organize was declared not to be arbitrary.--National Labor Relations Board v. Jones & Laughlin, 301 U.S. 1, 44, 45-46 (1937).

[95] See especially Howard Jay Graham, "The 'Conspiracy Theory' of the Fourteenth Amendment", Selected Essays on Constitutional Law, I, 236-267 (1938).

[96] 94 U.S. 113.--In a case arising under the Fifth Amendment, decided almost at the same time, the Court explicitly declared the United States "equally with the States * * * are prohibited from depriving persons or corporations of property without due process of law." Sinking Fund Cases, 99 U.S. 700, 718-719 (1878).

[97] Smyth v. Ames, 169 U.S. 466, 522, 526 (1898); Kentucky Finance Corp. v. Paramount Auto Exch. Corp., 262 U.S. 544, 550 (1923); Liggett (Louis K.) Co. v. Baldridge, 278 U.S. 105 (1928).

[98] Northwestern Nat. L. Ins. Co. v. Riggs, 203 U.S. 243, 255 (1906); Western Turf Assoc. v. Greenberg, 204 U.S. 359, 363 (1907); Pierce v. Society of the Sisters, 268 U.S. 510, 535 (1925). Earlier, in 1904, in Northern Securities Co. v. United States, (193 U.S. 197, 362), a case interpreting the federal antitrust law, Justice Brewer, in a concurring opinion, had declared that "a corporation, * * *, is not endowed with the inalienable rights of a natural person."

[99] Grosjean v. American Press Co., 297 U.S. 233, 244 (1936).

[100] Yick Wo v. Hopkins, 118 U.S. 356 (1886); Terrace v. Thompson, 263 U.S. 197, 216 (1923).

[101] Columbus & G.R. Co. v. Miller, 283 U.S. 96 (1931); Pennie v. Reis, 132 U.S. 464 (1889); Taylor v. Beckham (No. 1), 178 U.S. 548 (1900); Straus v. Foxworth, 231 U.S. 162 (1913); Tyler v. Judges of the Court of Registration, 179 U.S. 405, 410 (1900).

[102] Pawhuska v. Pawhuska Oil Co., 250 U.S. 394 (1919); Trenton v. New Jersey, 262 U.S. 182 (1923); Williams v. Baltimore, 289 U.S. 36 (1933).

[103] Boynton v. Hutchinson Gas Co., 291 U.S. 656 (1934); South Carolina Highway Dept. v. Barnwell Bros., 303 U.S. 177 (1938).

The converse is not true, however; and "the interest of a State official in vindicating the Constitution * * * gives him no legal standing to attack the constitutionality of a State statute in order to avoid compliance with it.--Smith v. Indiana, 191 U.S. 138 (1903); Braxton County Ct. v. West Virginia, 208 U.S. 192 (1908); Marshall v. Dye, 231 U.S. 250 (1913); Stewart v. Kansas City, 239 U.S. 14 (1915). See also Coleman v. Miller, 307 U.S. 433, 437-446 (1939)."

[104] Bacon v. Walker, 204 U.S. 311 (1907); Chicago, B. & Q.R. Co. v. Illinois ex rel. Grimwood, 200 U.S. 561, 592 (1906); California Reduction Co. v. Sanitary Reduction Works, 199 U.S. 306, 318 (1905); Eubank v. Richmond, 226 U.S. 137 (1912); Schmidinger v. Chicago, 226 U.S. 578 (1913); Sligh v. Kirkwood, 237 U.S. 52, 58-59 (1915); Nebbia v. New York, 291 U.S. 502 (1934); Nashville C. & St. L.R. Co. v. Walters, 294 U.S. 405 (1935).

[105] Hadacheck v. Sebastian, 239 U.S. 394 (1915); Hall v. Geiger-Jones Co., 242 U.S. 539 (1917); Sligh v. Kirkwood, 237 U.S. 52, 58-59 (1915); Eubank v. Richmond, 226 U.S. 137, 142 (1912); Erie R. Co. v. Williams, 233 U.S. 685, 699 (1914); Panhandle Eastern Pipe Line Co. v. State Highway Commission, 294 U.S. 613, 622 (1935); Hudson County Water Co. v. McCarter, 209 U.S. 349 (1908).

[106] Atlantic Coast Line R. Co. v. Goldsboro, 232 U.S. 548, 558 (1914).

[107] Treigle v. Acme Homestead Asso., 297 U.S. 189, 197 (1933); Liggett (Louis K.) Co. v. Baldridge, 278 U.S. 105, 111-112 (1928).

[108] Pennsylvania Coal Co. v. Mahon, 260 U.S. 393 (1922). See also Welch v. Swasey, 214 U.S. 91, 107 (1909).

[109] Noble State Bank v. Haskell, 219 U.S. 104, 110 (1911).

[110] Erie R. Co. v. Williams, 233 U.S. 685, 700 (1914).

[111] New Orleans Public Service Co. v. New Orleans, 281 U.S. 682, 687 (1930).

[112] Abie State Bank v. Bryan, 282 U.S. 765, 770 (1931).

[113] Meyer v. Nebraska, 262 U.S. 300, 399 (1923).

[114] Jacobson v. Massachusetts, 197 U.S. 11 (1905); Zucht v. King, 260 U.S. 174 (1922).

[115] Buck v. Bell, 274 U.S. 200 (1927).

[116] Minnesota v. Probate Court, 309 U.S. 270 (1940).

[117] Lanzetta v. New Jersey, 306 U.S. 451 (1939).

[118] 262 U.S. 390 (1923).

[119] 268 U.S. 510 (1925).

[120] Ibid. 534. Even this statement was a dictum. Inasmuch as only corporations and no parents were party litigants, the Court in fact disposed of the case on the ground that the corporations were being deprived of their "property" without due process of law.

[121] Waugh v. Mississippi University, 237 U.S. 589, 596-597 (1915).

[122] Hamilton v. University of California, 293 U.S. 245, 262 (1934). See also p. 768.

[123] 16 Wall. 36 (1873).

[124] 165 U.S. 578, 589.--Herein liberty of contract was defined as follows: "The liberty mentioned in that [Fourteenth] Amendment means not only the right of the citizen to be free from the mere physical restraint of his person, as by incarceration, but the term is deemed to embrace the right of the citizen to be free in the enjoyment of all his faculties; to be free to use them in all lawful ways; to live and work where he will; to earn his livelihood by any lawful calling; to pursue any livelihood or avocation, and for that purpose to enter into all contracts which may be proper, necessary and essential to his carrying out to a successful conclusion the purposes above mentioned."

[125] 236 U.S. 1, 14 (1915).

[126] Chicago, B. & Q.R. Co. v. McGuire, 219 U.S. 549, 567, 570 (1911); Wolff Packing Co. v. Court of Industrial Relations, 262 U.S. 522, 534 (1923).

[127] Holden v. Hardy, 169 U.S. 366 (1898).

[128] Miller v. Wilson, 236 U.S. 373 (1915); Bosley v. McLaughlin, 236 U.S. 385 (1915). See also Muller v. Oregon, 208 U.S. 412 (1908); Riley v. Massachusetts, 232 U.S. 671 (1914); Hawley v. Walker, 232 U.S. 718 (1914).

[129] Bunting v. Oregon, 243 U.S. 426 (1917).

[130] Atkin v. Kansas, 191 U.S. 207 (1903).

[131] Consolidated Coal Co. v. Illinois, 185 U.S. 203 (1902).

[132] Wilmington Star Min. Co. v. Fulton, 205 U.S. 60 (1907).

[133] Barrett v. Indiana, 299 U.S. 26 (1913).

[134] Plymouth Coal Co. v. Pennsylvania, 232 U.S. 531 (1914).

[135] Booth v. Indiana, 237 U.S. 391 (1915).

[136] Sturges & B. Mfg. Co. v. Beauchamp, 231 U.S. 320 (1914).

[137] Knoxville Iron Co. v. Harbison, 183 U.S. 13 (1901); Dayton Coal & I. Co. v. Barton, 183 U.S. 23 (1901); Keokee Consol. Coke Co. v. Taylor, 234 U.S. 224 (1914).

[138] Erie R. Co. v. Williams, 233 U.S. 685 (1914).

[139] St. Louis, I.M. & S.R. Co. v. Paul, 173 U.S. 404 (1899).

[140] Rail & River Coal Co. v. Yaple, 236 U.S. 338 (1915). See also McClean v. Arkansas, 211 U.S. 539 (1909).

[141] West Coast Hotel Co. v. Parrish, 300 U.S. 379 (1937), overruling Adkins v. Children's Hospital, 261 U.S. 255 (1923) (a Fifth Amendment case); Morehead v. New York ex rel. Tipaldo, 298 U.S. 587 (1936).

[142] Day-Brite Lighting, Inc. v. Missouri, 342 U.S. 421, 423 (1952).

[143] Ibid., 424-425.

[144] New York C.R. Co. v. White, 243 U.S. 188, 200 (1917).

[145] Arizona Copper Co. v. Hammer (Arizona Employers' Liability Cases), 250 U.S. 400, 419-420 (1919).

[146] In determining what occupations may be brought under the designation of "hazardous," the legislature may carry the idea to the "vanishing point."--Ward & Gow v. Krinsky, 259 U.S. 503, 520 (1922).

[147] New York C.R. v. White, 243 U.S. 188 (1917); Mountain Timber Co. v. Washington, 243 U.S. 219 (1917).

[148] Arizona Copper Co. v. Hammer (Arizona Employers' Liability Cases), 250 U.S. 400, 419-420 (1919).

[149] Hawkins v. Bleakly, 243 U.S. 210 (1917).

[150] Chicago, B. & Q.R. Co. v. McGuire, 219 U.S. 549 (1911).

[151] Alaska Packers Asso. v. Industrial Commission, 294 U.S. 532 (1935).

[152] Thornton v. Duffy, 254 U.S. 361 (1920).

[153] Booth Fisheries Co. v. Industrial Commission, 271 U.S. 208 (1920).

[154] Staten Island R.T.R. Co. v. Phoenix Indemnity Co., 281 U.S. 98 (1930).

[155] Sheehan Co. v. Shuler, 265 U.S. 371 (1924); New York State R. Co. v. Shuler, 265 U.S. 379 (1924).

[156] New York C.R. Co. v. Bianc, 250 U.S. 596 (1919).--Attorneys are not deprived of property or their liberty of contract by restriction imposed by the State on the fees which they may charge in cases arising under the workmen's compensation law.--Yeiser v. Dysart, 267 U.S. 540 (1925).

[157] Justice Black in Lincoln Union v. Northwestern Co., 335 U.S. 525, 535 (1949). See also pp. 141, 977-979, 985.

In his concurring opinion, contained in the companion case of American Federation of Labor v. American Sash Co., 335 U.S. 538, 543-544 (1949), Justice Frankfurter summarized as follows the now obsolete doctrines employed by the Court to strike down State laws fostering unionization. "* * * unionization encountered the shibboleths of a premachine age and these were reflected in juridical assumptions that survived the facts on which they were based. Adam Smith was treated as though his generalizations had been imparted to him on Sinai and not as a thinker who addressed himself to the elimination of restrictions which had become fetters upon initiative and enterprise in his day. Basic human rights expressed by the constitutional conception of 'liberty' were equated with theories of laissez faire. The result was that economic views of confined validity were treated by lawyers and judges as though the Framers had enshrined them in the Constitution. * * * The attitude which regarded any legislative encroachment upon the existing economic order as infected with unconstitutionality led to disrespect for legislative attempts to strengthen the wage-earners' bargaining power. With that attitude as a premise, Adair v. United States, 208 U.S. 161 (1908), and Coppage v. Kansas, 236 U.S. 1 (1915), followed logically enough; not even Truax v. Corrigan, 257 U.S. 312 (1921), could be considered unexpected."

On grounds of unconstitutional impairment of freedom of contract, or more particularly, of the unrestricted right of the employer to hire and fire, a federal and a State statute attempting to outlaw "yellow dog" contracts whereby, as a condition of obtaining employment, a worker had to agree not to join or to remain a member of a union, were voided in Adair v. United States and Coppage v. Kansas, respectively. In Truax v. Corrigan, a majority of the Court held that an Arizona statute which operated, in effect, to make remediless [by forbidding the use of injunction] injury to an employer's business by striking employees and others, through concerted action in picketing, displaying banners advertising the strike, denouncing the employer as unfair to union labor, appealing to customers to withdraw their patronage, and circulating handbills containing abusive and libelous charges against employers, employees, and patrons, and intimidations of injury to future patrons, deprives the owner of the business and the premises of his property without due process of law.

In Wolff Packing Co. v. Industrial Court, 262 U.S. 522 (1923); 267 U.S. 552 (1925) and in Dorchy v. Kansas, 264 U.S. 286 (1924), the Court had also ruled that a statute compelling employers and employees to submit their controversies over wages and hours of labor to State arbitration was unconstitutional as part of a system compelling employers and employees to continue in business on terms not of their own making.

[158] 301 U.S. 468 (1937).

[159] Prudential Ins. Co. v. Cheek, 259 U.S. 530 (1922). In conjunction with its approval of this statute, the Court also sanctioned judicial enforcement by a State court of a local rule of policy which rendered illegal an agreement of several insurance companies having a monopoly of a line of business in a city that none would employ within two years any man who had been discharged from, or left, the service of any of the others.

[160] Chicago, R.I. & P.R. Co. v. Perry, 259 U.S. 548 (1922).

[161] Dorchy v. Kansas, 272 U.S. 306 (1926).

[162] 301 U.S. 468, 479 (1937).

[163] See p. 1141.

[164] Cases disposing of the contention that restraints on picketing amount to a denial of freedom of speech and constitute therefore a deprivation of liberty without due process of law have been set forth under Amendment I.

[165] 326 U.S. 88 (1945).

[166] Ibid. 94. Justice Frankfurter, concurring, declared that "the insistence by individuals on their private prejudices * * *, in relations like those now before us, ought not to have a higher constitutional sanction than the determination of a State to extend the area of nondiscrimination beyond that which the Constitution itself exacts." Ibid. 98.

[167] 335 U.S. 525 (1949).

[168] 335 U.S. 538 (1949).

[169] 335 U.S. 525, 534, 537. In a lengthy opinion, in which he registered his concurrence with both decisions, Justice Frankfurter set forth extensive statistical data calculated to prove that labor unions not only were possessed of considerable economic power but by virtue of such power were no longer dependent on the closed shop for survival. He would therefore leave to the legislatures the determination "whether it is preferable in the public interest that trade unions should be subjected to State intervention or left to the free play of social forces, whether experience has disclosed 'union unfair labor practices,' and, if so, whether legislative correction is more appropriate than self-discipline and pressure of public opinion--* * *." 335 U.S. 538, 549-550.

[170] 336 U.S. 245 (1949).

[171] Ibid. 253.

[172] 336 U.S. 490 (1949). Other recent cases regulating picketing are treated under Amendment I, see p. 781.

[173] 94 U.S. 113 (1877).

[174] Chicago, M. & St. P.R. Co. v. Minnesota, 134 U.S. 418 (1890).

[175] Wolff Packing Co. v. Court of Industrial Relations, 262 U.S. 522, 535-536 (1923).

[176] Munn v. Illinois, 94 U.S. 113 (1877); Budd v. New York, 143 U.S. 517, 546 (1802); Brass v. North Dakota ex rel. Stoeser, 153 U.S. 391 (1894).

[177] Cotting v. Godard, 183 U.S. 79 (1901).

[178] Townsend v. Yeomans, 301 U.S. 441 (1937).

[179] German Alliance Ins. Co. v. Lewis, 233 U.S. 389 (1914); Aetna Ins. Co. v. Hyde, 275 U.S. 440 (1928).

[180] O'Gorman & Young v. Hartford F. Ins. Co., 282 U.S. 251 (1931).

[181] Williams v. Standard Oil Co., 278 U.S. 235 (1929).

[182] Tyson & Bros.--United Theatre Ticket Offices v. Banton, 273 U.S. 418 (1927).

[183] New State Ice Co. v. Liebmann, 285 U.S. 262 (1932).

[184] Nebbia v. New York, 291 U.S. 502, 531-532, 535-537, 539 (1934). In reaching this conclusion the Court might be said to have elevated to the status of prevailing doctrine the views advanced in previous decisions by dissenting Justices. Thus, Justice Stone, dissenting in Ribnik v. McBride, 277 U.S. 350, 350-360 (1928) had declared: "Price regulation is within the State's power whenever any combination of circumstances seriously curtails the regulative force of competition so that buyers or sellers are placed at such a disadvantage in the bargaining struggle that a legislature might reasonably anticipate serious consequences to the community as a whole." In his dissenting opinion in New State Ice Co. v. Liebmann, 285 U.S. 202, 302-303 (1932), Justice Brandeis had also observed that: "The notion of a distinct category of business 'affected with a public interest' employing property 'devoted to a public use' rests upon historical error. In my opinion the true principle is that the State's power extends to every regulation of any business reasonably required and appropriate for the public protection. I find in the due process clause no other limitation upon the character or the scope of regulation permissible."

[185] Justice McReynolds, speaking for the dissenting Justices, labelled the controls imposed by the challenged statute as a "fanciful scheme to protect the farmer against undue exactions by prescribing the price at which milk disposed of by him at will may be resold." Intimating that the New York statute was as efficacious as a safety regulation which required "householders to pour oil on their roofs as a means of curbing the spread of a neighborhood fire," Justice McReynolds insisted that "this Court must have regard to the wisdom of the enactment," and must determine "whether the means proposed have reasonable relation to something within legislative power."--291 U.S. 502, 556, 558 (1934).

[186] 313 U.S. 236, 246 (1941).

[187] 277 U.S. 350 (1928).

[188] 94 U.S. 113 (1877). See also Peik v. Chicago & N.W.R. Co., 94 U.S. 164 (1877).

[189] Rate-making is deemed to be one species of price fixing. Power Comm'n v. Pipeline Co., 315 U.S. 575, 603 (1942).

[190] Nebbia v. New York, 291 U.S. 502 (1934).

[191] 96 U.S. 97 (1878). See also Chicago, B. & Q.R. Co. v. Chicago, 166 U.S. 226 (1897).

[192] 116 U.S. 307 (1886).

[193] Dow v. Beidelman, 125 U.S. 680 (1888).

[194] 134 U.S. 418, 458 (1890).

[195] 143 U.S. 517 (1892).

[196] 154 U.S. 362, 397 (1894).

[197] Ibid 397. Insofar as judicial intervention resulting in the invalidation of legislatively imposed rates has involved carriers, it should be noted that the successful complainant invariably has been the carrier, not the shipper.

[198] 169 U.S. 466 (1898).--Of course the validity of rates prescribed by a State for services wholly within its limits, must be determined wholly without reference to the interstate business done by a public utility. Domestic business should not be made to bear the losses on interstate business, and vice versa. Thus a State has no power to require the hauling of logs at a loss or at rates that are unreasonable, even if a railroad receives adequate revenues from the intrastate long haul and the interstate lumber haul taken together. On the other hand, in determining whether intrastate passenger railway rates are confiscatory, all parts of the system within the State (including sleeping, parlor, and dining cars) should be embraced in the computation; and the unremunerative parts should not be excluded because built primarily for interstate traffic or not required to supply local transportation needs.--See: Minnesota Rate Cases (Simpson v. Shepard), 230 U.S. 352, 434-435 (1913); Chicago, M. & St. P.R. Co. v. Public Utilities Commission, 274 U.S. 344 (1927); Groesbeck v. Duluth, S.S. & A.R. Co., 250 U.S. 607 (1919). The maxim that a legislature cannot delegate legislative power is qualified to permit creation of administrative boards to apply to the myriad details of rate schedules the regulatory police power of the State. To prevent the conferring upon an administrative agency of authority to fix rates for public service from being a mere delegation of legislative power, and therefore void, the legislature must enjoin upon it a certain course of procedure and certain rules of decision in the performance of its functions, with which the agency must substantially comply to validate its action. Wichita Railroad & L. Co. v. Public Utilities Commission, 260 U.S. 48 (1922).

[199] Reagan v. Farmers' Loan & Trust Company, 154 U.S. 362, 397 (1894).

[200] Interstate Commerce Commission v. Illinois C.R. Co., 215 U.S. 452, 470 (1910).

[201] 231 U.S. 298, 310-313 (1913).

[202] Des Moines Gas Co. v. Des Moines, 238 U.S. 153 (1915).

[203] Minnesota Rate Cases (Simpson v. Shepard), 230 U.S. 352, 452 (1913).

[204] Knoxville v. Water Company, 212 U.S. 1 (1909).

[205] Smith v. Illinois Bell Teleph. Co., 270 U.S. 587 (1926).

[206] Willcox v. Consolidated Gas Co., 212 U.S. 19 (1909).

[207] 174 U.S. 739, 750, 754 (1899). See also Minnesota Rate Cases (Simpson v. Shepard), 230 U.S. 352, 433 (1913).

[208] San Diego Land & Town Co. v. Jasper, 189 U.S. 439, 441, 442 (1903). See also Van Dyke v. Geary, 244 U.S. 39 (1917); Georgia Ry. v. R.R. Comm., 262 U.S. 625, 634 (1923).

[209] For its current position, see Crowell v. Benson, 285 U.S. 22 (1932).

[210] 222 U.S. 541, 547-548 (1912). See also Interstate Comm. Comm. v. Illinois C.R., 215 U.S. 452, 470 (1910).

[211] 253 U.S. 287, 293-294 (1920).

[212] Ibid. 289. In injunctive proceedings, evidence is freshly introduced whereas in the cases received on appeal from State courts, the evidence is found within the record.

[213] 231 U.S. 298 (1913).

[214] 253 U.S. 287, 291, 295 (1920).

[215] 94 U.S. 113 (1877).

[216] 315 U.S. 575, 586.

[217] 320 U.S. 591, 602.--Although this and the previously cited decision arose out of controversies involving the Natural Gas Act of 1938 (52 Stat. 821), the principles laid down therein are believed to be applicable to the review of rate orders of State commissions, except insofar as the latter operate in obedience to laws containing unique standards or procedures.

[218] 253 U.S. 287 (1920).

[219] In Federal Power Commission v. Nat. Gas Pipeline Co., 315 U.S. 575, 599, Justices Black, Douglas, and Murphy, in a concurring opinion, proposed to travel the road all the way back to Munn v. Illinois, and deprive courts of the power to void rates simply because they deem the latter to be unreasonable. In a concurring opinion, written earlier in 1939 in Driscoll v. Edison Co., 307 U.S. 104, 122, Justice Frankfurter temporarily adopted a similar position; for therein he declared that "the only relevant function of law * * * [in rate controversies] is to secure observance of those procedural safeguards in the exercise of legislative powers, which are the historic foundations of due process." However, in his dissent in the Hope Gas Case (320 U.S. 591, 625), he disassociated himself from this proposal, and asserted that "it was decided [more than fifty years ago] that the final say under the Constitution lies with the judiciary."

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

[221] Federal Power Comm. v. Hope Gas Co., 320 U.S. 591, 603 (1944), citing Chicago & Grand Trunk Ry. Co. v. Wellman, 143 U.S. 339, 345-346 (1892); Missouri ex rel. Southwestern Bell Teleph. Co. v. Public Service Commission, 262 U.S. 276, 291 (1923).

[222] For this reason there is presented below a survey of the formulas, utilization of which was hitherto deemed essential if due process requirements were to be satisfied.

(1) Fair Value.--On the premise that a utility is entitled to demand a rate schedule that will yield a "fair return upon the value" of the property which it employs for public convenience, the Court in 1898, in Smyth v. Ames (169 U.S. 466, 546-547), held that determination of such value necessitated consideration of at least such factors as "the original cost of construction, the amount expended in permanent improvements, the amount and market value of * * * [the utility's] bonds and stock, the present as compared with the original cost of construction, [replacement cost], the probable earning capacity of the property under particular rates prescribed by statute, and the sum required to meet operating expenses."

(2) Reproduction Cost.--Prior to the demise in 1944 of the Smyth v. Ames fair value formula, two of the components thereof were accorded special emphasis, with the second quickly surpassing the first in terms of the measure of importance attributed to it. These were: (1) the actual cost of the property ("the original cost of construction together with the amount expended in permanent improvements") and (2) reproduction cost ("the present as compared with the original cost of construction"). If prices did not fluctuate through the years, the controversy which arose over the application of reproduction cost in preference to original cost would have been reduced to a war of words; for results obtained by reliance upon either would have been identical. The instability in the price structure, however, presented the courts with a dilemma. If rate-making is attempted at a time of declining prices, valuation on the basis of present or reproduction cost will advantage the consumer or user, and disadvantage the utility. On the other hand, if the original cost of construction is employed, the benefits are redistributed, with the consumer becoming the loser. Similarly, when rates are fixed at a time of rising prices, reliance upon reproduction cost to the exclusion of original cost will produce results satisfactory to the utility and undesirable to the public, and vice versa.

Notwithstanding the admonition of Smyth v. Ames that original cost, no less than reproduction cost, was to be considered in determining value, the Court, in the years which intervened between 1898 and 1944, wavered only slightly in its preference for the reproduction cost formula, and moderated its application thereof only in part whenever periods of rising or sustained high prices appeared to require such deviation in behalf of consumer interests. As examples of the varied application by the Court of the reproduction cost formula, the following cases are significant: San Diego Land and Town Co. v. National City, 174 U.S. 739, 757 (1899); San Diego Land & Town Co. v. Jasper, 189 U.S. 439, 443 (1903); Willcox v. Consolidated Gas Co., 212 U.S. 19, 52 (1909); Minnesota Rate Cases, 230 U.S. 352 (1913); Galveston Electric Co. v. Galveston, 258 U.S. 388, 392 (1922); Missouri ex rel. Southwestern Bell Teleph. Co. v. Public Service Commission, 262 U.S. 276 (1923); Bluefield Waterworks & Improv. Co. v. Pub. Serv. Comm., 262 U.S. 679 (1923); Georgia R. & Power Co. v. Railroad Comm., 262 U.S. 625, 630 (1923); McCardle v. Indianapolis Water Co., 272 U.S. 400 (1926); St. Louis & O'Fallon Ry. v. United States, 279 U.S. 461 (1929).

(3) Prudent Investment (versus Reproduction Cost).--This method of valuation, which was championed by Justice Brandeis in a separate opinion filed in Southwestern Bell Teleph. Co. v. Pub. Serv. Comm. (262 U.S. 276, 291-292, 302, 306-307 (1923)), was defined by him as follows: "The compensation which the Constitution guarantees an opportunity to earn is the reasonable cost of conducting the business. Cost includes not only operating expenses, but also capital charges. Capital charges cover the allowance, by way of interest, for the use of the capital, * * *; the allowance for the risk incurred; and enough more to attract capital. * * * Where the financing has been proper, the cost to the utility of the capital, required to construct, equip and operate its plant, should measure the rate of return which the Constitution guarantees opportunity to earn." Advantages to be derived from "adoption of the amount prudently invested as the rate base and the amount of the capital charge as the measure of the rate of return" would, according to Justice Brandeis, be nothing less than the attainment of a "basis for decision which is certain and stable. The rate base would be ascertained as a fact, not determined as a matter of opinion. It would not fluctuate with the market price of labor, or materials, or money. * * *"

As a method of valuation, the prudent investment theory was not accorded any acceptance until the depression of the 1930's. The sharp decline in prices which occurred during this period doubtless contributed to the loss of affection for reproduction cost; and in Los Angeles Gas Co. v. R.R. Comm'n., 289 U.S. 287 (1933) and R.R. Comm'n. v. Pacific Gas Co., 302 U.S. 388, 399, 405 (1938) the Court upheld respectively a valuation from which reproduction cost had been excluded and another in which historical cost served as the rate base. Later, in 1942, when in Power Comm'n. v. Nat. Gas Pipeline Co., 315 U.S. 575, the Court further emphasized its abandonment of the reproduction cost factor, there developed momentarily the prospect that prudent investment might be substituted. This possibility was quickly negatived, however, by the Hope Gas Case (320 U.S. 591 (1944)) which dispensed with the necessity of relying upon any formula for the purpose of fixing valid rates.

(4) Depreciation.--No less indispensable to the determination of the fair value mentioned in Smyth v. Ames was the amount of depreciation to be allowed as a deduction from the measure of cost employed, whether the latter be actual cost, reproduction cost, or any other form of cost determination. Although not mentioned in Smyth v. Ames, the Court gave this item consideration in Knoxville v. Knoxville Water Co., 212 U.S. 1, 9-10 (1909); but notwithstanding its early recognition as an allowable item of deduction in determining value, depreciation continued to be the subject of controversy arising out of the difficulty of ascertaining it and of computing annual allowances to cover the same. Indicative of such controversy has been the disagreement as to whether annual allowances granted shall be in such amount as will permit the replacement of equipment at current costs; i.e., present value, or at original cost. In the Hope Gas Case, 320 U.S. 591, 606 (1944), the Court reversed United R. & Electric Co. v. West, 280 U.S. 234, 253-254 (1930), insofar as the latter holding rejected original cost as the basis of annual depreciation allowances.

(5) Going Concern Value and Good Will.--Whether or not intangibles were to be included in valuation was not passed upon in Smyth v. Ames; but shortly thereafter, in Des Moines Gas Co. v. Des Moines, 238 U.S. 153, 165 (1915), the Court declared it to be self-evident "that there is an element of value in an assembled and established plant, doing business and earning money, over one not thus advanced, * * * [and that] this element of value is a property right, and should be considered in determining the value of the property, upon which the owner has a right to make a fair return * * *." Generally described as going concern value, this element has never been precisely defined by the Court, and the latter has accordingly been plagued by the difficulty of determining its worth. In its latest pronouncement on the subject, uttered in Power Comm'n. v. Nat. Gas Pipeline Co., 315 U.S. 575, 589 (1942), the Court denied that there is any "constitutional requirement that going concern value, even when it is an appropriate element to be included in a rate base, must be separately stated and appraised as such * * * valuations for rate purposes of a business assembled as a whole * * * [have often been] sustained without separate appraisal of the going concern element. * * * When that has been done, the burden rests on the regulated company to show that this item has neither been adequately covered in the rate base nor recouped from prior earnings of the business." Franchise value and good will, on the other hand, have been consistently excluded from valuation; the latter presumably because a utility invariably enjoys a monopoly and consumers have no choice in the matter of patronizing it. The latter proposition has been developed in the following cases: Willcox v. Consolidated Gas Co., 212 U.S. 19 (1909); Des Moines Gas Co. v. Des Moines, 238 U.S. 153, 163-164 (1915); Galveston Electric Co. v. Galveston, 258 U.S. 388 (1922); Los Angeles Gas & E. Corp. v. Railroad Commission, 289 U.S. 287, 313 (1933).

(6) Salvage Value.--It is not constitutional error to disregard theoretical reproduction cost for a plant which "no responsible person would think of reproducing." Accordingly, where, due to adverse conditions, a street-surface railroad has lost all value except for scrap or salvage, it was permissible for a commission, as the Court held in Market St. R. Co. v. Comm'n., 324 U.S. 548, 562, 564 (1945), to use as a rate base the price at which the utility offered to sell its property to a citizen. Moreover, the Commission's order was not invalid even though under the prescribed rate the utility would operate at a loss; for the due process cannot be invoked to protect a public utility against business hazards, such as the loss of, or failure to obtain, patronage. On the other hand, in the case of a water company whose franchise has expired (Denver v. Denver Union Water Co., 246 U.S. 178 (1918)), but where there is no other source of supply, its plant should be valued as actually in use rather than at what the property would bring for some other use in case the city should build its own plant.

(7) Past Losses And Gains.--"The Constitution [does not] require that the losses of * * * [a] business in one year shall be restored from future earnings by the device of capitalizing the losses and adding them to the rate base on which a fair return and depreciation allowance is to be earned." Power Comm'n. v. Nat. Gas Pipeline Co., 315 U.S. 575, 590 (1942). Nor can past losses be used to enhance the value of the property to support a claim that rates for the future are confiscatory (Galveston Electric Co. v. Galveston, 258 U.S. 388 (1922)), any more than profits of the past can be used to sustain confiscatory rates for the future (Newton v. Consolidated Gas Co., 258 U.S. 165, 175 (1922); Public Utility Commissioners v. New York Teleg. Co., 271 U.S. 23, 31-32 (1926)).

[223] Atlantic Coast Line R. Co. v. North Carolina Corp. Commission, 206 U.S. 1, 19 (1907), citing Chicago, B.& Q.R. Co. v. Iowa, 94 U.S. 155 (1877). See also Prentis v. Atlantic Coast Line Co., 211 U.S. 210 (1908); Denver & R.G.R. Co. v. Denver, 250 U.S. 241 (1919).

[224] Chicago & G.T.R. Co. v. Wellman, 143 U.S. 339, 344 (1892); Mississippi R. Commission v. Mobile & O.R. Co., 244 U.S. 388, 391 (1917). See also Missouri P.R. Co. v. Nebraska, 217 U.S. 196 (1910); Nashville, C. & St. L.R. Co. v. Walters, 294 U.S. 405, 415 (1935).

[225] Cleveland Electric Ry. Co. v. Cleveland, 204 U.S. 116 (1907).

[226] Detroit United Railway Co. v. Detroit, 255 U.S. 171 (1921). See also Denver v. New York Trust Co., 229 U.S. 123 (1913).

[227] Los Angeles v. Los Angeles Gas & Electric Corp., 251 U.S. 32 (1919).

[228] Newburyport Water Co. v. Newburyport, 193 U.S. 561 (1904). See also Skaneateles Waterworks Co. v. Skaneateles, 184 U.S. 354 (1902); Helena Waterworks Co. v. Helena, 195 U.S. 383 (1904); Madera Waterworks v. Madera, 228 U.S. 454 (1913).

[229] Western Union Teleg. Co. v. Richmond, 224 U.S. 160 (1912).

[230] Pierce Oil Corp. v. Phoenix Ref Co., 259 U.S. 125 (1922).

[231] Atlantic Coast Line R. Co. v. Goldsboro, 232 U.S. 548, 558 (1914). See also Chicago, B. & Q.R. Co. v. Chicago, 166 U.S. 226, 255 (1897); Chicago, B. & Q.R. Co. v. Illinois ex rel. Grimwood, 200 U.S. 561, 591-592 (1906); New Orleans Public Service, Inc. v. New Orleans, 281 U.S. 682 (1930).

[232] Consumers' Co. v. Hatch, 224 U.S. 148 (1912).

[233] Panhandle Eastern Pipe Line Co. v. State Highway Commission, 294 U.S. 613 (1935).

[234] New Orleans Gas Light Co. v. Drainage Commission, 197 U.S. 453 (1905).

[235] Norfolk & S. Turnpike Co. v. Virginia, 225 U.S. 264 (1912).

[236] International Bridge Co. v. New York, 254 U.S. 126 (1920).

[237] Chicago, B. & Q.R. Co. v. Nebraska, 170 U.S. 57 (1898).

[238] Chicago, B. & Q.R. Co. v. Illinois ex rel. Grimwood, 200 U.S. 561 (1906); Chicago & A.R. Co. v. Tranbarger, 238 U.S. 67 (1915); Lake Shore & M.S.R. Co. v. Clough, 242 U.S. 375 (1917).

[239] Pacific Gas & Electric Co. v. Police Ct., 251 U.S. 22 (1919).

[240] Chicago, St. P., M. & O.R. Co. v. Holmberg, 282 U.S. 162 (1930).

[241] Nashville, C. & St. L.R. Co. v. Walters, 294 U.S. 405 (1935). See also Lehigh Valley R. Co. v. Public Utility Comrs., 278 U.S. 24 (1928).

[242] United Fuel Gas Co. v. Railroad Commission, 278 U.S. 300, 308-309 (1929). See also New York ex rel. Woodhaven Gas Light Co. v. Public Service Commission, 269 U.S. 244 (1925); New York ex rel. New York & O. Gas Co. v. McCall, 245 U.S. 345 (1917).

[243] Missouri P.R. Co. v. Kansas ex rel. Taylor, 216 U.S. 262 (1910); Chesapeake & O.R. Co. v. Public Service Commission, 242 U.S. 603 (1917); Ft. Smith Light & Traction Co. v. Bourland, 267 U.S. 330 (1925).

[244] Chesapeake & O.R. Co. v. Public Service Commission, 242 U.S. 603, 607 (1917); Brooks-Scanlon Co. v. Railroad Commission, 251 U.S. 396 (1920); Railroad Commission v. Eastern Texas R. Co., 264 U.S. 79 (1924); Broad River Power Co. v. South Carolina ex rel. Daniel, 281 U.S. 537 (1930).

[245] Atchison, T. & S.F.R. Co. v. Railroad Commission, 283 U.S. 380, 394-395 (1931).

[246] Minneapolis & St. L.R. Co. v. Minnesota ex rel. Railroad & W. Commission, 193 U.S. 53 (1904).

[247] Gladson v. Minnesota, 166 U.S. 427 (1897).

[248] Missouri P.R. Co. v. Kansas ex rel. Taylor, 216 U.S. 262 (1910).

[249] Chesapeake & O.R. Co. v. Public Service Commission, 242 U.S. 603 (1917).

[250] Lake Erie & W.R. Co. v. State Public Utilities Commission ex rel. Cameron, 249 U.S. 422 (1919); Western & A.R. Co. v. Georgia Public Service Commission, 267 U.S. 493 (1925).

[251] Alton R. Co. v. Illinois Comm'n, 305 U.S. 548 (1939).

[252] Missouri P.R. Co. v. Nebraska, 217 U.S. 196 (1910).

[253] Chesapeake & O.R. Co. v. Public Service Commission, 242 U.S. 603, 607 (1917).

[254] Great Northern R. Co. v. Minnesota ex rel. Railroad & Warehouse Commission, 238 U.S. 340 (1915); Great Northern R. Co. v. Cahill, 253 U.S. 71 (1920).

[255] Chicago, M. & St. P.R. Co. v. Wisconsin, 238 U.S. 491 (1915).

[256] Washington ex rel. Oregon R. & N. Co. v. Fairchild, 224 U.S. 510, 528-529 (1912). See also Michigan C.R. Co. v. Michigan Railroad Commission, 236 U.S. 615 (1915); Seaboard Air Line R. Co. v. Railroad Commission, 240 U.S. 324, 327 (1916).

[257] Louisville & N.R. Co. v. Central Stockyards Co., 212 U.S. 132 (1909).

[258] Michigan C.R. Co. v. Michigan Railroad Commission, 236 U.S. 615 (1915).

[259] Chicago, M. & St. P.R. Co. v. Iowa, 233 U.S. 334 (1914).

[260] Chicago, M. & St. P.R. Co. v. Minneapolis C. & C. Asso., 247 U.S. 490 (1918). Nor are railroads denied due process when they are forbidden to exact a greater charge for a shorter distance than for a longer distance. Louisville & N.R. Co. v. Kentucky, 183 U.S. 503, 512 (1902); Missouri P.R. Co. v. McGrew Coal Co., 244 U.S. 191 (1917).

[261] Wadley Southern R. Co. v. Georgia, 235 U.S. 651 (1915).

[262] Richmond, F. & P.R. Co. v. Richmond, 96 U.S. 521 (1878).

[263] Atlantic Coast Line R. Co. v. Goldsboro, 232 U.S. 548 (1914).

[264] Great Northern R. Co. v. Minnesota ex rel. Clara City, 246 U.S. 434 (1918).

[265] Denver & R.G.R. Co. v. Denver, 250 U.S. 241 (1919).

[266] Nashville, C. & St. L.R. Co. v. White, 278 U.S. 456 (1929).

[267] Nashville, C. & St. L.R. Co. v. Alabama, 128 U.S. 96 (1888).

[268] Chicago, R.I. & P.R. Co. v. Arkansas, 219 U.S. 453 (1911); St. Louis, I.M. & S.R. Co. v. Arkansas, 240 U.S. 518 (1916); Missouri P.R. Co. v. Norwood, 283 U.S. 249 (1931).

[269] Atlantic Coast Line R. Co. v. Georgia, 234 U.S. 280 (1914).

[270] Erie R. Co. v. Solomon, 237 U.S. 427 (1915).

[271] New York, N.H. & H.R. Co. v. New York, 165 U.S. 628 (1897).

[272] Chicago & N.W.R. Co. v. Nye Schneider Fowler Co., 260 U.S. 35 (1922). See also Yazoo & M.V.R. Co. v. Jackson Vinegar Co., 226 U.S. 217 (1912); Cf. Adams Express Co. v. Croninger, 226 U.S. 491 (1913).

[273] Atlantic Coast Line R. Co. v. Glenn, 239 U.S. 388 (1915).

[274] St. Louis & S.F.R. Co. v. Mathews, 165 U.S. 1 (1897).

[275] Chicago & N.W.R. Co. v. Nye Schneider Fowler Co., 260 U.S. 35 (1922).

[276] Kansas City Southern R. Co. v. Anderson, 233 U.S. 325 (1914).

[277] St. Louis, I.M. & S.R. Co. v. Wynne, 224 U.S. 354 (1912).

[278] Chicago, M. & St. P.R. Co. v. Polt, 232 U.S. 165 (1914).

[279] Missouri P.R. Co. v. Tucker, 230 U.S. 340 (1913).

[280] St. Louis, I.M. & S.R. Co. v. Williams, 251 U.S. 63, 67 (1919).

[281] Missouri P.R. Co. v. Humes, 115 U.S. 512 (1885); Minneapolis & St. L.R. Co. v. Beckwith, 129 U.S. 26 (1889).

[282] Chicago, B. & Q.R. Co. v. Cram, 228 U.S. 70 (1913).

[283] Southwestern Teleg. & Teleph. Co. v. Danaher, 238 U.S. 482 (1915).

[284] New Orleans Debenture Redemption Co. v. Louisiana, 180 U.S. 320 (1901).

[285] Lake Shore & M.S.R. Co. v. Smith, 173 U.S. 684, 698 (1899).

[286] National Council v. State Council, 203 U.S. 151 (1906).

[287] Munday v. Wisconsin Trust Co., 252 U.S. 499 (1920).

[288] State Farm Ins. Co. v. Duel, 324 U.S. 154 (1945).

[289] Asbury Hospital v. Cass County, 326 U.S. 207 (1945).

[290] Nebbia v. New York, 291 U.S. 502, 527-528 (1934).

[291] Smiley v. Kansas, 196 U.S. 447 (1905). See Waters-Pierce Oil Co. v. Texas, 212 U.S. 86 (1909); National Cotton Oil Co. v. Texas, 197 U.S. 115 (1905), also upholding antitrust laws.

[292] International Harvester Co. v. Missouri, 234 U.S. 199 (1914). See also American Seeding Machine Co. v. Kentucky, 236 U.S. 660 (1915).

[293] Grenada Lumber Co. v. Mississippi, 217 U.S. 433 (1910).

[294] Aikens v. Wisconsin, 195 U.S. 194 (1904).

[295] Central Lumber Co. v. South Dakota, 226 U.S. 157 (1912).

[296] Fairmont Creamery Co. v. Minnesota, 274 U.S. 1 (1927).

[297] Old Dearborn Distributing Co. v. Seagram-Distillers Corp., 299 U.S. 183 (1936); The Pep Boys v. Pyroil Sales Co., 299 U.S. 198 (1936).

[298] Schmidinger v. Chicago, 226 U.S. 578, 588 (1913), citing McLean v. Arkansas, 211 U.S. 539, 550 (1909).

[299] Merchants Exch. v. Missouri ex rel. Barker, 248 U.S. 365 (1919).

[300] Hauge v. Chicago, 299 U.S. 387 (1937).

[301] Lemieux v. Young, 211 U.S. 489 (1909); Kidd, D. & P. Co. v. Musselman Grocer Co., 217 U.S. 461 (1910).

[302] Pacific States Box & Basket Co. v. White, 296 U.S. 176 (1935).

[303] Schmidinger v. Chicago, 226 U.S. 578 (1913).

[304] Burns Baking Co. v. Bryan, 264 U.S. 504 (1924).

[305] Petersen Baking Co. v. Bryan, 290 U.S. 570 (1934).

[306] Armour & Co. v. North Dakota, 240 U.S. 510 (1916).

[307] Heath & M. Mfg. Co. v. Worst, 207 U.S. 338 (1907); Corn Products Ref. Co. v. Eddy, 249 U.S. 427 (1919); National Fertilizer Asso. v. Bradley, 301 U.S. 178 (1937).

[308] Advance-Rumely Thresher Co. v. Jackson, 287 U.S. 283 (1932).

[309] Hall v. Geiger-Jones Co., 242 U.S. 539 (1917); Caldwell v. Sioux Falls Stock Yards Co., 242 U.S. 559 (1917); Merrick v. Halsey & Co., 242 U.S. 568 (1917).

[310] Booth v. Illinois, 184 U.S. 425 (1902).

[311] Otis v. Parker, 187 U.S. 606 (1903).

[312] Brodnax v. Missouri, 219 U.S. 285 (1911).

[313] House v. Mayes, 219 U.S. 270 (1911).

[314] Rast v. Van Deman & L. Co., 240 U.S. 342 (1916); Tanner v. Little, 240 U.S. 369 (1916); Pitney v. Washington, 240 U.S. 387 (1916).

[315] Noble State Bank v. Haskell, 219 U.S. 104 (1911); Shallenberger v. First State Bank, 219 U.S. 114 (1911); Assaria State Bank v. Dolley, 219 U.S. 121 (1911); Abie State Bank v. Bryan, 282 U.S. 765 (1931).

[316] Provident Inst. for Savings v. Malone, 221 U.S. 660 (1911); Anderson National Bank v. Luckett, 321 U.S. 233 (1944).

When a bank conservator appointed pursuant to a new statute has all the functions of a receiver under the old law, one of which is the enforcement on behalf of depositors of stockholders' liability, which liability the conservator can enforce as cheaply as could a receiver appointed under the pre-existing statute, it cannot be said that the new statute, in suspending the right of a depositor to have a receiver appointed, arbitrarily deprives a depositor of his remedy or destroys his property without due process of law. The depositor has no property right in any particularly form of remedy.--Gibbes v. Zimmerman, 290 U.S. 326 (1933).

[317] Doty v. Love, 295 U.S. 64 (1935).

[318] Farmers & M. Bank v. Federal Reserve Bank, 262 U.S. 649 (1923).

[319] Griffith v. Connecticut, 218 U.S. 563 (1910).

[320] Mutual Loan Co. v. Martell, 222 U.S. 225 (1911).

[321] La Tourette v. McMaster, 248 U.S. 465 (1919); Stipcich v. Metropolitan L. Ins. Co., 277 U.S. 311, 320 (1928).

[322] German Alliance Ins. Co. v. Lewis, 233 U.S. 389 (1914).

[323] O'Gorman and Young v. Hartford Insur. Co., 282 U.S. 251 (1931).

[324] Nutting v. Massachusetts, 185 U.S. 553, 556 (1902), distinguishing Allgeyer v. Louisiana, 165 U.S. 578 (1897). See also Hooper v. California, 155 U.S. 648 (1895).

[325] Daniel v. Family Ins. Co., 336 U.S. 220 (1949).

[326] Osborn v. Ozlin, 310 U.S. 53, 68-69 (1940). Dissenting from the conclusion, Justice Roberts declared that the plain effect of the Virginia law is to compel a nonresident to pay a Virginia resident for services which the latter does not in fact render.

[327] California Auto. Assn. v. Maloney, 341 U.S. 105 (1951).

[328] Allgeyer v. Louisiana, 165 U.S. 578 (1897).

[329] New York L. Ins. Co. v. Dodge, 246 U.S. 357 (1918).

[330] National Union F. Ins. Co. v. Wanberg, 260 U.S. 71 (1922).

[331] Hartford Acci. & Indem. Co. v. Nelson (N.O.) Mfg. Co., 291 U.S. 352 (1934).

[332] Merchants Mut. Auto Liability Ins. Co. v. Smart, 267 U.S. 126 (1925).

[333] Orient Ins. Co. v. Daggs, 172 U.S. 557 (1899).

[334] Hoopeston Canning Co. v. Cullen, 318 U.S. 313 (1943).

[335] German Alliance Ins. Co. v. Hale, 219 U.S. 307 (1911). See also Carroll v. Greenwich Ins. Co., 199 U.S. 401 (1905).

[336] Life & C. Ins. Co. v. McCray, 291 U.S. 566 (1934).

[337] Northwestern Nat. L. Ins. Co. v. Riggs, 203 U.S. 243 (1906).

[338] Whitfield ex rel. Hadley v. Aetna L. Ins. Co., 205 U.S. 489 (1907).

[339] Polk v. Mutual Reserve Fund Life Association, 207 U.S. 310 (1907).

[340] Neblett v. Carpenter, 305 U.S. 297 (1938).

[341] Brazee v. Michigan, 241 U.S. 340 (1916).--With four Justices dissenting, the Court, in Adams v. Tanner, 244 U.S. 590 (1917), "struck down a State law absolutely prohibiting maintenance of private employment agencies." Commenting on the "constitutional philosophy" thereof in Lincoln Union v. Northwestern Co., 335 U.S. 525, 535 (1949), Justice Black stated that Olsen v. Nebraska, 313 U.S. 236 (1941), (see p. 997) "clearly undermined Adams v. Tanner."

[342] Liggett (Louis K.) Co. v. Baldridge, 278 U.S. 105 (1928).

[343] McNaughton v. Johnson, 242 U.S. 344, 349 (1917). See also Dent v. West Virginia, 129 U.S. 114 (1889); Hawker v. New York, 170 U.S. 189 (1898); Reetz v. Michigan, 188 U.S. 505 (1903); Watson v. Maryland, 218 U.S. 173 (1910).

[344] Collins v. Texas, 223 U.S. 288 (1912); Hayman v. Galveston, 273 U.S. 414 (1927).

[345] Semler v. Oregon State Dental Examiners, 294 U.S. 608, 611 (1935). See also Douglas v. Noble, 261 U.S. 165 (1923); Graves v. Minnesota, 272 U.S. 425, 427 (1926).

[346] Olsen v. Smith, 195 U.S. 332 (1904).

[347] Nashville, C. &. St. L.R. Co. v. Alabama, 128 U.S. 96 (1888).

[348] Smith v. Texas, 233 U.S. 630 (1914).

[349] Western Turf Asso. v. Greenberg, 204 U.S. 359 (1907).

[350] Cargill (W.W.) Co. v. Minnesota ex rel. Railroad & W. Commission, 180 U.S. 452 (1901).

[351] Lehon v. Atlanta, 242 U.S. 53 (1916).

[352] Gundling v. Chicago, 177 U.S. 183, 185 (1900).

[353] Bourjois, Inc. v. Chapman, 301 U.S. 183 (1937).

[354] Weller v. New York, 268 U.S. 319 (1925).

[355] Packer Corp. v. Utah, 285 U.S. 105 (1932).

[356] Halter v. Nebraska, 205 U.S. 34 (1907).

[357] McCloskey v. Tobin, 252 U.S. 107 (1920).

[358] Natal v. Louisiana, 139 U.S. 621 (1891).

[359] Murphy v. California, 225 U.S. 623 (1912).

[360] Rosenthal v. New York, 226 U.S. 260 (1912).

[361] Thompson v. Consolidated Gas Utilities Corp., 300 U.S. 55, 76-77 (1937), citing Ohio Oil Co. v. Indiana (No. 1), 177 U.S. 100 (1900); Lindsley v. Natural Carbonic Gas Co., 220 U.S. 61 (1911); Oklahoma v. Kansas Natural Gas Co., 221 U.S. 229 (1911).

[362] Champlin Ref. Co. v. Corporation Commission, 286 U.S. 210 (1932).

[363] Railroad Commission v. Oil Co., 310 U.S. 573 (1940). See also R.R. Commission v. Oil Co., 311 U.S. 570 (1941); R.R. Commission v. Humble Oil & Refining Co., 311 U.S. 578 (1941).

[364] Thompson v. Consolidated Gas Utilities Corp., 300 U.S. 55 (1937).

[365] Cities Service Co. v. Peerless Co., 340 U.S. 179 (1950); Phillips Petroleum Co. v. Oklahoma, ibid., 190 (1950).

[366] Walls v. Midland Carbon Co., 254 U.S. 300 (1920). See also Henderson Co. v. Thompson, 300 U.S. 258 (1937).

[367] Bandini Petroleum Co. v. Superior Ct., 284 U.S. 8 (1931).

[368] Gant v. Oklahoma City, 289 U.S. 98 (1933).

[369] Pennsylvania Coal Co. v. Mahon, 260 U.S. 393 (1922).

[370] Hudson County Water Co. v. McCarter, 209 U.S. 349, 356-357 (1908).

[371] Miller v. Schoene, 276 U.S. 272, 277, 279 (1928).

[372] Sligh v. Kirkwood, 237 U.S. 52 (1915).

[373] Bayside Fish Flour Co. v. Gentry, 297 U.S. 422, 426 (1936).

[374] Manchester v. Massachusetts, 139 U.S. 240 (1891); Geer v. Connecticut, 161 U.S. 519 (1896).

[375] Miller v. McLaughlin, 281 U.S. 261, 264 (1930).

[376] Bayside Fish Flour Co. v. Gentry, 297 U.S. 422 (1936).

[377] Geer v. Connecticut, 161 U.S. 519 (1896).

[378] Silz v. Hesterberg, 211 U.S. 31 (1908).

[379] Reinman v. Little Rock, 237 U.S. 171 (1915).

[380] Hadacheck v. Sebastian, 239 U.S. 394 (1915).

[381] Fischer v. St. Louis, 194 U.S. 361 (1904).

[382] Reinman v. Little Rock, 237 U.S. 171 (1915).

[383] Bacon v. Walker, 204 U.S. 311 (1907).

[384] Northwestern Laundry Co. v. Des Moines, 239 U.S. 486 (1916). For a case embracing a rather special set of facts, see Dobbins v. Los Angeles, 195 U.S. 223 (1904).

[385] Welch v. Swasey, 214 U.S. 91 (1909).

[386] Euclid v. Ambler Realty Co., 272 U.S. 365 (1926); Zahn v. Board of Public Works, 274 U.S. 325 (1927); Nectaw v. Cambridge, 277 U.S. 183 (1928); Cusack (Thomas) Co. v. Chicago, 242 U.S. 526 (1917); St. Louis Poster Advertising Co. v. St. Louis, 249 U.S. 269 (1919).

[387] Washington ex rel. Seattle Title Trust Co. v. Roberage, 278 U.S. 116 (1928).

[388] Eubank v. Richmond, 226 U.S. 137 (1912).

[389] Gorieb v. Fox, 274 U.S. 603 (1927).

[390] Buchanan v. Warley, 245 U.S. 60 (1917).

[391] Pierce Oil Corp. v. Hope, 248 U.S. 498 (1919).

[392] Standard Oil Co. v. Marysville, 279 U.S. 582 (1929).

[393] Barbier v. Connolly, 113 U.S. 27 (1885); Soon Hing v. Crowley, 113 U.S. 703 (1885).

[394] Maguire v. Reardon, 255 U.S. 271 (1921).

[395] Queenside Hills Co. v. Saxl, 328 U.S. 80 (1946).

[396] Compagnie Francaise de Navigation a Vapeur v. Louisiana State Board of Health, 186 U.S. 380 (1902).

[397] Jacobson v. Massachusetts, 197 U.S. 11 (1905); New York ex rel. Lieberman v. Van De Carr, 199 U.S. 552 (1905).

[398] Perley v. North Carolina, 249 U.S. 510 (1919).

[399] California Reduction Co. v. Sanitary Reduction Works, 199 U.S. 306 (1905).

[400] Hutchinson v. Valdosta, 227 U.S. 303 (1913).

[401] Sligh v. Kirkwood, 237 U.S. 52, 59-60 (1915).

[402] Powell v. Pennsylvania, 127 U.S. 678 (1888); Magnano (A.) Co. v. Hamilton, 292 U.S. 40 (1934).

[403] North American Cold Storage Co. v. Chicago, 211 U.S. 306 (1908).

[404] Adams v. Milwaukee, 228 U.S. 572 (1913).

[405] Baccus v. Louisiana, 232 U.S. 334 (1914).

[406] Roschen v. Ward, 279 U.S. 337 (1929).

[407] Minnesota ex rel. Whipple v. Martinson, 256 U.S. 41, 45 (1921).

[408] Hutchinson Ice Cream Co. v. Iowa, 242 U.S. 153 (1916).

[409] Hebe Co. v. Shaw, 248 U.S. 297 (1919).

[410] Price v. Illinois, 238 U.S. 446 (1915).

[411] Sage Stores v. Kansas, 323 U.S. 32 (1944).

[412] Weaver v. Palmer Bros Co., 270 U.S. 402 (1926).

[413] Ah Sin v. Wittman, 198 U.S. 500 (1905).

[414] Marvin v. Trout, 199 U.S. 212 (1905).

[415] Stone v. Mississippi ex rel. Harris, 101 U.S. 814 (1880); Douglas v. Kentucky, 168 U.S. 488 (1897).

[416] L'Hote v. New Orleans, 177 U.S. 587 (1900).

[417] Petit v. Minnesota, 177 U.S. 164 (1900).

[418] Boston Beer Co. v. Massachusetts, 97 U.S. 25, 33 (1878); Mugler v. Kansas, 123 U.S. 623 (1887); Kidd v. Pearson, 128 U.S. 1 (1888); Purity Extract & Tonic Co. v. Lynch, 226 U.S. 192 (1912); James Clark Distilling Co. v. Western Maryland R. Co., 242 U.S. 311 (1917); Barbour v. Georgia, 249 U.S. 454 (1919).

[419] Mugler v. Kansas, 123 U.S. 623, 671 (1887).

[420] Hawes v. Georgia, 258 U.S. 1 (1922); Van Oster v. Kansas, 272 U.S. 465 (1926).

[421] Stephenson v. Binford, 287 U.S. 251 (1932).

[422] Stanley v. Public Utilities Commission, 295 U.S. 76 (1935).

[423] Stephenson v. Binford, 287 U.S. 251 (1932).

[424] Michigan Public Utilities Commission v. Duke, 266 U.S. 570 (1925).

[425] Frost v. Railroad Commission, 271 U.S. 583 (1926); Smith v. Cahoon, 283 U.S. 553 (1931).

[426] Bradley v. Pub. Util. Comm'n., 289 U.S. 92 (1933).

[427] Sproles v. Binford, 286 U.S. 374 (1932).

[428] Railway Express v. New York, 336 U.S. 106 (1949).

[429] Reitz v. Mealey, 314 U.S. 33 (1941).

[430] Young v. Masci, 289 U.S. 253 (1933).

[431] Ex parte Poresky, 290 U.S. 30 (1933). See also Packard v. Banton, 264 U.S. 140 (1924); Sprout v. South Bend, 277 U.S. 163 (1928); Hodge Drive-It-Yourself Co. v. Cincinnati, 284 U.S. 335 (1932); Continental Baking Co. v. Woodring, 286 U.S. 352 (1932).

[432] Irving Trust Co. v. Day, 314 U.S. 556, 564 (1942).

[433] Demorest v. City Bank Co., 321 U.S. 36, 47-48 (1944).

[434] Connecticut Ins. Co. v. Moore, 333 U.S. 541 (1948). Justice Jackson and Douglas dissented on the ground that New York is attempting to escheat unclaimed funds not located either actually or constructively in New York and which are the property of beneficiaries who may never have been citizens or residents of New York.

[435] 341 U.S. 428 (1951).

[436] Snowden v. Hughes, 321 U.S. 1 (1944).

[437] Angle v. Chicago, St. P.M. & O.R. Co., 151 U.S. 1 (1894).

[438] Coombes v. Getz, 285 U.S. 434, 442, 448 (1932).

[439] Gibbes v. Zimmerman, 290 U.S. 326, 332 (1933).

[440] Shriver v. Woodbine Sav. Bank, 285 U.S. 467 (1932).

[441] Chase Securities Corp. v. Donaldson, 325 U.S. 304, 315-316 (1945).

[442] Sentell v. New Orleans & C.R. Co., 166 U.S. 698 (1897).

[443] Soliah v. Heskin, 222 U.S. 522 (1912).

[444] Trenton v. New Jersey, 262 U.S. 182 (1923).

[445] Chicago v. Sturges, 222 U.S. 313 (1911).

[446] Louisiana ex rel. Folsom Bros. v. New Orleans, 109 U.S. 285, 289 (1883).

[447] Attorney General ex rel. Kies v. Lowrey, 199 U.S. 233 (1905).

[448] Hunter v. Pittsburgh, 207 U.S. 161 (1907).

[449] Stewart v. Kansas City, 239 U.S. 14 (1915).

[450] Tonawanda v. Lyon, 181 U.S. 389 (1901); Cass Farm Co. v. Detroit, 181 U.S. 396 (1901).

[451] Southwestern Oil Co. v. Texas, 217 U.S. 114, 119 (1910).

[452] Citizens' Sav. & L. Asso. v. Topeka, 20 Wall. 655 (1875); Jones v. Portland, 245 U.S. 217 (1917); Green v. Frazier, 253 U.S. 233 (1920); Carmichael v. Southern Coal & Coke Co., 300 U.S. 644 (1937).

[453] Milheim v. Moffat Tunnel Improv. Dist., 262 U.S. 710 (1923).

[454] Jones v. Portland, 245 U.S. 217 (1917).

[455] Green v. Frazier, 253 U.S. 233 (1920).

[456] Nicchia v. New York, 254 U.S. 228 (1920).

[457] Milheim v. Moffat Tunnel Improv. Dist, 262 U.S. 710 (1923).

[458] Cochran v. Louisiana State Bd. of Ed., 281 U.S. 370 (1930).

[459] Carmichael v. Southern Coal & Coke Co., 300 U.S. 644 (1937).

[460] Fox v. Standard Oil Co., 294 U.S. 87, 99 (1935).

[461] Stewart Dry Goods Co. v. Lewis, 294 U.S. 550 (1935). See also Chapman v. Zobelein, 237 U.S. 135 (1915); Kelly v. Pittsburgh, 104 U.S. 78 (1881).

[462] Nashville, C. & St. L.R. Co. v. Wallace, 288 U.S. 249 (1933); Carmichael v. Southern Coal & Coke Co., 300 U.S. 644 (1937). A taxpayer therefore cannot contest the imposition of an income tax on the ground that, in operation, it returns to his town less income tax than he and its other inhabitants pay.--Dane v. Jackson, 256 U.S. 589 (1921).

[463] Stebbins v. Riley, 268 U.S. 137, 140, 141 (1925).

[464] Cahen v. Brewster, 203 U.S. 543 (1906).

[465] Keeney v. New York, 222 U.S. 525 (1912).

[466] Salomon v. State Tax Commission, 278 U.S. 484 (1929).

[467] Orr v. Gilman, 183 U.S. 278 (1902); Chanler v. Kelsey, 205 U.S. 466 (1907).

[468] Nickel v. Cole, 256 U.S. 222, 226 (1921).

[469] Coolidge v. Long, 282 U.S. 582 (1931).

[470] Binney v. Long, 299 U.S. 280 (1936).

[471] Whitney v. State Tax Com., 309 U.S. 530, 540(1940).

[472] Welch v. Henry, 305 U.S. 134, 147 (1938).

[473] Hoeper v. Tax Commission, 284 U.S. 206 (1931).

[474] Welch v. Henry, 305 U.S. 134, 147-150 (1938).

[475] Puget Sound Power & Light Co. v. Seattle, 291 U.S. 619 (1934).

[476] New York, P. & N. Teleg. Co. v. Dolan, 265 U.S. 96 (1924).

[477] Barwise v. Sheppard, 299 U.S. 33 (1936).

[478] Nashville, O. & St. L. Ky. v. Browning, 310 U.S. 362 (1940).

[479] Paddell v. New York, 211 U.S. 446 (1908).

[480] Hagar v. Reclamation District, 111 U.S. 701 (1884).

[481] Butters v. Oakland, 263 U.S. 162 (1923).

[482] Missouri P.R. Co. v. Western Crawford Road Improv. Dist., 266 U.S. 187 (1924). See also Roberts v. Richland Irrig. Co., 289 U.S. 71 (1933) in which it was also stated that an assessment to pay the general indebtedness of an irrigation district is valid, even though in excess of the benefits received.

[483] Houck v. Little River Drainage Dist, 239 U.S. 254 (1915).

[484] Road Improv. Dist. v. Missouri P.R. Co., 274 U.S. 188 (1927).

[485] Kansas City Southern R. Co. v. Road Improv. Dist., 266 U.S. 379 (1924).

[486] Louisville & N.R. Co. v. Barber Asphalt Pav. Co., 197 U.S. 430 (1905).

[487] Myles Salt Co. v. Iberia & St. M. Drainage Dist., 239 U.S. 478 (1916).

[488] Wagner v. Leser, 239 U.S. 207 (1915).

[489] Charlotte Harbor & N.R. Co. v. Welles, 260 U.S. 8 (1922).

[490] Union Refrigerator Transit Co. v. Kentucky, 199 U.S. 194, 204 (1905). See also Louisville & J. Ferry Co. v. Kentucky, 188 U.S. 385 (1903).

[491] Carstairs v. Cochran, 193 U.S. 10 (1904); Hannis Distilling Co. v. Baltimore, 216 U.S. 285 (1910); Frick v. Pennsylvania, 268 U.S. 473 (1925); Blodgett v. Silberman, 277 U.S. 1 (1928).

[492] New York ex rel. New York, C. & H.R.R. Co. v. Miller, 202 U.S. 584 (1906).

[493] Wheeling Steel Corp v. Fox, 298 U.S. 193, 209-210 (1936); Union Refrigerator Transit Co. v. Kentucky, 199 U.S. 194, 207 (1905); Johnson Oil Ref. Co. v. Oklahoma ex rel. Mitchell, 290 U.S. 158 (1933).

[494] Robert L. Howard, State Jurisdiction to Tax Intangibles: A Twelve Year Cycle, 8 Missouri Law Review 155, 160-162 (1943); Ralph T. Rawlins, State Jurisdiction to Tax Intangibles: Some Modern Aspects, 18 Texas Law Review 296, 314-315 (1940).

[495] Kirtland v. Hotchkiss, 100 U.S. 491, 498 (1879).

[496] Savings & L. Soc. v. Multnomah County, 169 U.S. 421 (1898).

[497] Bristol v. Washington County, 177 U.S. 133, 141 (1900).

[498] Fidelity & C. Trust Co. v. Louisville, 245 U.S. 54 (1917).

[499] Rogers v. Hennepin County, 240 U.S. 184 (1916).

[500] Citizens Nat. Bank v. Durr, 257 U.S. 99, 109 (1921).

[501] Hawley v. Maiden, 232 U.S. 1, 12 (1914).

[502] First Bank Stock Corp. v. Minnesota, 301 U.S. 234, 241 (1937).

[503] Schuylkill Trust Co. v. Pennsylvania, 302 U.S. 506 (1938).

[504] Harvester Co. v. Dept. of Taxation, 322 U.S. 435 (1944).

[505] Wisconsin Gas Co. v. United States, 322 U.S. 526 (1944).

[506] New York ex rel. Hatch v. Reardon, 204 U.S. 152 (1907).

[507] Graniteville Mfg. Co. v. Query, 283 U.S. 376 (1931).

[508] Buck v. Beach, 206 U.S. 392 (1907).

[509] Brooke v. Norfolk, 277 U.S. 27 (1928).

[510] Greenough v. Tax Assessors, 331 U.S. 486, 496-497 (1947).

[511] 277 U.S. 27 (1928).

[512] 280 U.S. 83 (1929).

[513] Senior v. Braden, 295 U.S. 422 (1985).

[514] Stebbins v. Riley, 268 U.S. 137, 140-141 (1925).

[515] 199 U.S. 194 (1905).--In dissenting in State Tax Commission v. Aldrich, 316 U.S. 174, 185 (1942), Justice Jackson asserted that a reconsideration of this principle had become timely.

[516] 268 U.S. 473 (1925). See also Treichler v. Wisconsin, 338 U.S. 251 (1949); City Bank Farmers Trust Co. v. Schnader, 293 U.S. 112 (1934).

[517] 240 U.S. 625, 631 (1916).--A decision rendered in 1920 which is seemingly in conflict was Wachovia Bank & Trust Co. v. Doughton, 272 U.S. 567, in which North Carolina was prevented from taxing the exercise of a power of appointment through a will executed therein by a resident, when the property was a trust fund in Massachusetts created by the will of a resident of the latter State. One of the reasons assigned for this result was that by the law of Massachusetts the property involved was treated as passing from the original donor to the appointee. However, this holding was overruled in Graves v. Schmidlapp, 315 U.S. 657 (1942).

[518] 233 U.S. 434 (1914).

[519] Rhode Island Hospital Trust Co. v. Doughton, 270 U.S. 69 (1926).

[520] 277 U.S. 1 (1928).

[521] First National Bank v. Maine, 284 U.S. 312, 330-331 (1932).

[522] 280 U.S. 204 (1930).

[523] 188 U.S. 189 (1903).

[524] 281 U.S. 586 (1930).--In dissenting, Justice Holmes observed that Wheeler v. Sohmer, 233 U.S. 434 (1914), previously mentioned, apparently joined Blackstone v. Miller on the "Index Expurgatorius."

[525] 282 U.S. 1 (1930).

[526] 284 U.S. 312 (1932).

[527] 316 U.S. 174 (1942).

[528] 307 U.S. 357, 363, 366-368, 372 (1939).

[529] 308 U.S. 313 (1939).

[530] 307 U.S. 383 (1939).

[531] Ibid. 386.

[532] 315 U.S. 657, 660, 661 (1942).

[533] 4 Wheat. 316, 429 (1819).

[534] 319 U.S. 94 (1943).

[535] 306 U.S. 398 (1939).

[536] Wheeling Steel Corp. v. Fox, 298 U.S. 193 (1936). See also Memphis Gas Co. v. Beeler, 315 U.S. 649, 652 (1942).

[537] Adams Express Co. v. Ohio State Auditor, 165 U.S. 194 (1897).

[538] Alpha Portland Cement Co. v. Massachusetts, 268 U.S. 203 (1925).

[539] Cream of Wheat Co. v. Grand Forks County, 253 U.S. 325 (1920).

[540] Newark Fire Ins. Co. v. State Board, 307 U.S. 313, 318, 324 (1939). Although the eight judges affirming this tax were not in agreement as to the reasons to be assigned in justification of this result, the holding appears to be in line with the dictum uttered by the late Chief Justice Stone in Curry v. McCanless (307 U.S. at 368) to the effect that the taxation of a corporation by a State where it does business, measured by the value of the intangibles used in its business there, does not preclude the State of incorporation from imposing a tax measured by all its intangibles.

[541] Delaware L. & W.R. Co. v. Pennsylvania, 198 U.S. 341 (1905).

[542] Louisville & J. Ferry Co. v. Kentucky, 188 U.S. 385 (1903).

[543] Kansas City Ry. v. Kansas, 240 U.S. 227 (1916); Kansas City, M. & B.R. Co. v. Stiles, 242 U.S. 111 (1916).

[544] Schwab v. Richardson, 263 U.S. 88 (1923).

[545] Western U. Teleg. Co. v. Kansas ex rel. Coleman, 216 U.S. 1 (1910); Pullman Co. v. Kansas ex rel. Coleman, 216 U.S. 56 (1910); Looney v. Crane Co., 245 U.S. 178 (1917); International Paper Co. v. Massachusetts, 246 U.S. 135 (1918).

[546] Cudahy Packing Co. v. Hinkle, 278 U.S. 460 (1929).

[547] St. Louis S.W.R. Co. v. Arkansas ex rel. Norwood, 235 U.S. 350 (1914).

[548] Atlantic Refining Co. v. Virginia, 302 U.S. 22 (1937).

[549] American Mfg Co. v. St. Louis, 250 U.S. 459 (1919). Nor does a State license tax on the production of electricity violate the due process clause because it may be necessary, to ascertain, as an element in its computation, the amounts delivered in another jurisdiction.--Utah Power & Light Co. v. Pfost, 286 U.S. 165 (1932).

[550] James v. Dravo Contracting Co. 302 U.S. 134 (1937).

[551] Union Refrigerator Transit Co. v. Kentucky, 199 U.S. 194 (1905).

[552] Southern Pacific Co. v. Kentucky, 222 U.S. 63 (1911).

[553] Old Dominion Steamship Co. v. Virginia, 198 U.S. 299 (1905).

[554] 199 U.S. 194 (1905).

[555] Pullman's Palace Car Co. v. Pennsylvania, 141 U.S. 18 (1891).

[556] Northwest Airlines v. Minnesota, 322 U.S. 292, 294-297, 307 (1944).--The case was said to be governed by New York Central Railroad v. Miller, 202 U.S. 584, 596 (1906). As to the problem of multiple taxation of such airplanes, which had in fact been taxed proportionately by other States, the Court declared that the "taxability of any part of this fleet by any other State than Minnesota, in view of the taxability of the entire fleet by that State, is not now before us." Justice Jackson, in a concurring opinion, would treat Minnesota's right [to tax as] exclusive of any similar right elsewhere.

[557] Johnson Oil Ref. Co. v. Oklahoma ex rel. Mitchell, 290 U.S. 158 (1933).

[558] Pittsburgh, C.C. & St. L.R. Co. v. Backus, 154 U.S. 421 (1894).

[559] Wallace v. Hines, 253 U.S. 66 (1920).--For example, the ratio of track mileage within the taxing State to total track mileage cannot be employed in evaluating that portion of total railway property found in said State when the cost of the lines in the taxing State was much less than in other States and the most valuable terminals of the railroad were located in other States. See also Fargo v. Hart, 193 U.S. 490 (1904); Union Tank Line v. Wright, 249 U.S. 275 (1919).

[560] Great Northern R. Co. v. Minnesota, 278 U.S. 503 (1929).

[561] Illinois Cent. R. Co. v. Minnesota, 309 U.S. 157 (1940).

[562] Lawrence v. State Tax Commission, 286 U.S. 276 (1932).

[563] Shaffer v. Carter, 252 U.S. 37 (1920); Travis v. Yale & T. Mfg. Co., 252 U.S. 60 (1920).

[564] New York ex rel. Cohn v. Graves, 300 U.S. 308 (1937).

[565] Maguire v. Trefry, 253 U.S. 12 (1920).

[566] Guaranty Trust Co. v. Virginia, 305 U.S. 19, 23 (1938).

[567] Whitney v. Graves, 299 U.S. 366 (1937).

[568] Underwood Typewriter Co. v. Chamberlain, 254 U.S. 113 (1920); Bass, Ratcliff & Gretton v. State Tax Commission, 266 U.S. 271 (1924).

[569] Hans Rees' Sons v. North Carolina, 283 U.S. 123 (1931).

[570] Matson Nav. Co. v. State Board, 297 U.S. 441 (1936).

[571] Wisconsin v. J.C. Penney Co., 311 U.S. 435, 448-449 (1940). Dissenting, Justice Roberts, along with Chief Justice Hughes and Justices McReynolds and Reed, stressed the fact that the use and disbursement by the corporation at its home office of income derived from operations in many States does not depend on, and cannot be controlled by, any law of Wisconsin. The act of disbursing such income as dividends, he contended, is "one wholly beyond the reach of Wisconsin's sovereign power, one which it cannot effectively command, or prohibit or condition." The assumption that a proportion of the dividends distributed is paid out of earnings in Wisconsin for the year immediately preceding payment is arbitrary and not borne out by the facts. Accordingly, "if the exaction is an income tax in any sense it is such upon the stockholders [many of whom are nonresidents] and is obviously bad."--See also Wisconsin v. Minnesota Mining Co., 311 U.S. 452 (1940).

[572] Great A. & P. Tea Co. v. Grosjean, 301 U.S. 412 (1937).

[573] Equitable L. Assur. Soc. v. Pennsylvania, 238 U.S. 143 (1915).

[574] Provident Sav. Life Assur. Soc. v. Kentucky, 239 U.S. 103 (1915).

[575] Continental Co. v. Tennessee, 311 U.S. 5, 6 (1940), (Emphasis supplied).

[576] Palmetto F. Ins. Co. v. Connecticut, 272 U.S. 295 (1926).

[577] St. Louis Cotton Compress Co. v. Arkansas, 260 U.S. 346 (1922).

[578] Connecticut General Co. v. Johnson, 303 U.S. 77 (1938).

[579] Metropolitan L. Ins. Co. v. New Orleans, 205 U.S. 395 (1907).

[580] Board of Assessors v. New York L. Ins. Co., 216 U.S. 517 (1910).

[581] Liverpool & L. & G. Ins. Co. v. Board of Assessors, 221 U.S. 346 (1911).

[582] Orient Ins. Co. v. Board of Assessors, 221 U.S. 358 (1911).

[583] Turpin v. Lemon, 187 U.S. 51, 58 (1902); Glidden v. Harrington, 189 U.S. 255 (1903).

[584] McMillen v. Anderson, 95 U.S. 37, 42 (1877).

[585] Bell's Gap R. Co. v. Pennsylvania, 134 U.S. 232, 239 (1890).

[586] Hodge v. Muscatine County, 196 U.S. 276 (1905).

[587] Hagar v. Reclamation Dist. No. 108, 111 U.S. 701, 709-710 (1884).

[588] Hagar v. Reclamation Dist. No. 108, 111 U.S. 701, 710 (1884).

[589] McMillen v. Anderson, 95 U.S. 37, 42 (1877).

[590] Taylor v. Secor, (State Railroad Tax Cases), 92 U.S. 575, 610 (1876).

[591] Nickey v. Mississippi, 292 U.S. 393, 396 (1934). See also Clement Nat. Bank v. Vermont, 231 U.S. 120 (1914).

[592] Pittsburgh, C.C. & St. L.R. Co. v. Backus, 154 U.S. 421 (1894).

[593] Michigan C.R. Co. v. Powers, 201 U.S. 245, 302 (1906).

[594] Pittsburgh, C.C. & St. L.R. Co. v. Board of Public Works, 172 U.S. 32, 45 (1898).

[595] St. Louis & K.C. Land Co. v. Kansas City, 241 U.S. 419, 430 (1916); Paulson v. Portland, 149 U.S. 30, 41 (1893); Bauman v. Ross, 167 U.S. 548, 590 (1897).

[596] Tonawanda v. Lyon, 161 U.S. 389, 391 (1901).

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

[598] Withnell v. Ruecking Constr. Co., 249 U.S. 63, 68 (1919); Browning v. Hooper, 269 U.S. 396, 405 (1926). Likewise, the committing to a board of county supervisors of authority to determine, without notice or hearing, when repairs to an existing drainage system are necessary cannot be said to deny due process of law to landowners in the district, who, by statutory requirement, are assessed for the cost thereof in proportion to the original assessments.--Breiholz v. Pocahontas County, 257 U.S. 118 (1921).

[599] Fallbrook Irrig. District v. Bradley, 164 U.S. 112, 168, 175 (1896); Browning v. Hooper, 269 U S. 396, 405 (1926).

[600] Utley v. St. Petersburg, 292 U.S. 106, 109 (1934); French v. Barber Asphalt Paving Co., 181 U.S. 324, 341 (1901). See also Soliah v. Heskin, 222 U.S. 522 (1912).

[601] Hibben v. Smith, 191 U.S. 310, 321 (1903).

[602] Hancock v. Muskogee, 250 U.S. 454, 488 (1919).--Likewise, a taxpayer does not have a right to a hearing before a State board of equalization preliminary to issuance by it of an order increasing the valuation of all property in a city by 40%.--Bi-Metallic Invest. Co. v. State Bd. of Equalization, 239 U.S. 441 (1915).

[603] Detroit v. Parker, 181 U.S. 399 (1901).

[604] Paulsen v. Portland, 149 U.S. 30, 38 (1893).

[605] Londoner v. Denver, 210 U.S. 373 (1908). See also Cincinnati, N.O. & T.P.R. Co. v. Kentucky (Kentucky Railroad Tax Cases), 115 U.S. 321, 331 (1885); Winona & St. P. Land Co. v. Minnesota, 159 U.S. 526, 537 (1895); Merchants' & Mfgrs. Nat. Bank v. Pennsylvania, 167 U.S. 461, 466 (1897); Glidden v. Harrington, 189 U.S. 255 (1903).

[606] Corry v. Baltimore, 196 U.S. 466, 478 (1905).

[607] Leigh v. Green, 193 U.S. 79, 92-93 (1904).

[608] Ontario Land Co. v. Yordy, 212 U.S. 152 (1909). See also Longyear v. Toolan, 209 U.S. 414 (1908).

[609] Brinkerhoff-Faris Trust & Sav. Co. v. Hill, 281 U.S. 673 (1930).

[610] Central of Georgia R. Co. v. Wright, 207 U.S. 127 (1907).

[611] Carpenter v. Shaw, 280 U.S. 363 (1930). See also Ward v. Love County, 253 U.S. 17 (1920).

[612] Farncomb v. Denver, 252 U.S. 7 (1920).

[613] Pullman Co. v. Knott, 235 U.S. 23 (1914).

[614] Bankers Trust Co. v. Blodgett, 260 U.S. 647 (1923).

[615] National Safe Deposit Co. v. Stead, 232 U.S. 58 (1914).

[616] Pierce Oil Corp. v. Hopkins, 264 U.S. 137 (1924).

[617] Carstairs v. Cochran, 193 U.S. 10 (1904); Hannis Distilling Co. v. Baltimore, 216 U.S. 285 (1910).

[618] Travis v. Yale & T. Mfg. Co., 252 U.S. 60, 75-76 (1920).

[619] League v. Texas, 184 U.S. 156 (1902).

[620] Palmer v. McMahon, 133 U.S. 660, 669 (1890).

[621] Scottish Union & Nat. Ins. Co. v. Bowland, 196 U.S. 611 (1905).

[622] King v. Mullins, 171 U.S. 404 (1898); Chapman v. Zobelein, 237 U.S. 135 (1915).

[623] Leigh v. Green, 193 U.S. 79 (1904).

[624] Davidson v. New Orleans, 96 U.S. 97, 107 (1878).

[625] Dewey v. Des Moines, 173 U.S. 193 (1899).

[626] League v. Texas, 184 U.S. 156, 158 (1902). See also Straus v. Foxworth, 231 U.S. 162 (1913).

[627] Exercisable as to every description of property, tangibles and intangibles including choses in action, contracts, and charters, but only for a public purpose, the power of eminent domain may also be conferred by the State upon municipal corporations, public utilities, and even upon individuals. Like every other governmental power, the power of eminent domain cannot be surrendered by the State or its subdivisions either by contract or by any other means.--Long Island Water Supply Co. v. Brooklyn, 166 U.S. 685 (1897); Offield v. New York, N.H. & H.R. Co., 203 U.S. 372 (1906); Sweet v. Rechel, 159 U.S. 380 (1895); Clark v. Nash, 198 U.S. 361 (1905); Pennsylvania Hospital v. Philadelphia, 245 U.S. 20 (1917); Galveston Wharf Co. v. Galveston, 260 U.S. 473 (1923).

[628] Green v. Frazier, 253 U.S. 233, 238 (1920).

[629] 7 Pet. 243.

[630] 96 U.S. 97, 105.

[631] 166 U.S. 226, 233, 236-237 (1897); see also Sweet v: Rechel, 159 U.S. 380, 398 (1895).

[632] Hairston v. Danville & W.R. Co., 208 U.S. 598, 606 (1908).

[633] Green v. Frazier, 253 U.S. 233, 240 (1920); Cincinnati v. Vester, 281 U.S. 439, 446 (1930).

[634] Hairston v. Danville & W.R. Co., 208 U.S. 598, 607 (1908).

[635] United States ex rel. T.V.A. v. Welch, 327 U.S. 546, 551-552, 556-558 (1946), citing Case v. Bowles, 327 U.S. 92, 101 (1946), and New York v. United States, 326 U.S. 572 (1946)--Concurring in the result, Justice Frankfurter insisted that "the fact that the nature of the subject matter gives the legislative determination nearly immunity from judicial review does not mean that the power to review is wanting." Also concurring in the result, Justice Reed, for himself and Chief Justice Stone, dissented from that portion of the opinion which suggested that "there is no judicial review" of the question whether a "taking is for a public purpose."

[636] Justice Reed concurring in United States ex rel. T.V.A. v. Welch, 327 U.S. 546, 557 (1946).

[637] Bragg v. Weaver, 251 U.S. 57-59 (1919).--It is no longer open to question that the State legislature may confer upon a municipality the authority to determine such necessity for itself.--Joslin Mfg. Co. v. Providence, 262 U.S. 668, 678 (1923).

[638] Rindge Co. v. Los Angeles County, 262 U.S. 700 (1923).

[639] Pumpelly v. Green Bay Company, 13 Wall. 166, 177-178 (1872); Welch v. Swasey, 214 U.S. 91 (1909); Pennsylvania Coal Co. v. Mahon, 260 U.S. 393 (1922). See also comparable cases involving the Federal Government and discussed under the Fifth Amendment, United States v. Lynah, 188 U.S. 445 (1903); United States v. Cress, 243 U.S. 316 (1917); Portsmouth Harbor L. & H. Co. v. United States, 260 U.S. 327 (1922); United States v. Causby, 328 U.S. 256 (1946). See also the cases hereinafter discussed on the limitations on "uncompensated takings."

[640] Long Island Water Supply Co. v. Brooklyn, 166 U.S. 685 (1897)

[641] Clark v. Nash, 198 U.S. 361 (1905).

[642] Strickley v. Highland Boy Gold Mining Co., 200 U.S. 527 (1906).

[643] Mt. Vernon-Woodberry Cotton Duck Co. v.. Alabama Interstate Power Co., 240 U.S. 30 (1916).

[644] Hendersonville Light & Power Co. v.. Blue Ridge Interurban R. Co., 243 U.S. 563 (1917).

[645] Roe v. Kansas ex rel. Smith, 278 U.S. 191, 193 (1929).

[646] Dohany v. Rogers, 281 U.S. 362 (1930).

[647] Hairston v. Danville & W.R. Co., 208 U.S. 598 (1908).

[648] Delaware, L. & W.R. Co. v. Morristown, 276 U.S. 182 (1928).

[649] Otis Co. v. Ludlow Mfg. Co., 201 U.S. 140, 151, 153 (1906). See also Head v. Amoskeag Mfg. Co., 113 U.S. 9, 20-21 (1885).

[650] Missouri P.R. Co. v. Nebraska ex rel. Board of Transportation, 164 U.S. 403, 416 (1896). The State court in this case was declared to have acknowledged that the taking was not for a public use. Hence, its reversal by the Supreme Court did not conflict with the later observation by the Court that "no case is recalled where this Court has condemned * * * a taking upheld by the State court as a taking for public uses in conformity with its laws."--See Hairston v. Danville & W.R. Co., 208 U.S. 598, 607 (1908).

[651] Backus (A.) Jr. and Sons v. Port Street Union Depot Co., 169 U.S. 557, 573, 575 (1898).

[652] McGovern v. New York, 229 U.S. 363, 370-371 (1913).

[653] Ibid. 371.

[654] Provo Bench Canal and Irrig. Co. v. Tanner, 239 U.S. 323 (1915); Appleby v. Buffalo, 221 U.S. 524 (1911).

[655] Backus (A.) Jr. and Sons v. Port Street Union Depot Co., 169 U.S. 557, 569 (1898).

[656] Chicago, B. & Q.R. Co. v. Chicago, 166 U.S. 226, 250 (1897); McGovern v. New York, 229 U.S. 363, 372 (1913).

[657] Roberts v. New York, 295 U.S. 264 (1935).

[658] Dohany v. Rogers, 281 U.S. 362 (1930).

[659] Joslin Mfg. Co. v. Providence, 262 U.S. 668, 677 (1923).

[660] Chicago, B. & Q.R. Co. v. Chicago, 166 U.S. 226, 255 (1897).

[661] Manigault v. Springs, 199 U.S. 473, 484-485 (1905).

[662] Chicago, B. & Q.R. Co. v. Chicago, 166 U.S. 226, 252 (1897).

[663] Darling v. Newport News, 249 U.S. 540 (1919).

[664] Northern Transportation Co. v. Chicago, 99 U.S. 635, 642 (1879). See also Marchant v. Pennsylvania Railroad Co., 153 U.S. 380 (1894).

[665] Meyer v. Richmond, 172 U.S. 82 (1898). For cases illustrative of the types of impairment or flooding consequent upon erection of dams or aids to navigation which have been deemed to amount to a taking for which compensation must be paid, see Pumpelly v. Green Bay Company, 13 Wall. 166 (1872); United States v. Lynah, 188 U.S. 445 (1903); United States v. Cress, 243 U.S. 316 (1917).

[666] Sauer v. New York, 206 U.S. 536 (1907).

[667] Welch v. Swasey, 214 U.S. 91 (1909).

[668] Pennsylvania Coal Co. v. Mahon, 260 U.S. 393, 413-414 (1922). For comparable cases involving the Federal Government see Portsmouth Harbor L. & H. Co. v. United States, 260 U.S. 327 (1922) and United States v. Causby, 328 U.S. 256 (1946).

[669] Georgia v. Chattanooga, 264 U.S. 472, 483 (1924).

[670] North Laramie Land Co. v. Hoffman, 268 U.S. 276, 283 (1925). See also Bragg v. Weaver, 251 U.S. 57 (1919).

[671] Bragg v. Weaver, 251 U.S. 57 (1919); Joslin Mfg. Co. v. Providence, 262 U.S. 668, 678 (1923).

[672] Bragg v. Weaver, 251 U.S. 57, 59 (1919); North Laramie Land Co. v. Hoffman, 268 U.S. 276 (1925).

[673] Bragg v. Weaver, 251 U.S. 57, 59 (1919).

[674] Long Island Water Supply Co. v. Brooklyn, 166 U.S. 685, 695 (1897).

[675] Hays v. Seattle, 251 U.S. 233, 238 (1920); Bailey v. Anderson, 326 U.S. 203, 205 (1945).

[676] The requirements of due process in tax and eminent domain proceedings are discussed in conjunction with the coverage of these topics. See pp. 1056-1062, 1069.

[677] Hagar v. Reclamation Dist., 111 U.S. 701, 708 (1884); Hurtado v. California, 110 U.S. 516, 537 (1884).

[678] Brown v. New Jersey, 175 U.S. 172, 175 (1899); Hurtado v. California, 110 U.S. 516, 529 (1884); Twining v. New Jersey, 211 U.S. 78, 101 (1908); Anderson Nat. Bank v. Luckett, 321 U.S. 233, 244 (1944).

[679] Marchant v. Pennsylvania R. Co., 153 U.S. 380, 386 (1894).

[680] Ballard v. Hunter, 204 U.S. 241, 255 (1907); Palmer v. McMahon, 133 U.S. 660, 668 (1890).

[681] McMillen v. Anderson, 95 U.S. 37, 41 (1877).

[682] R.R. Commission v. Oil Co., 311 U.S. 570 (1941). See also Railroad Commission v. Oil Co., 310 U.S. 573 (1940).

[683] Dreyer v. Illinois, 187 U.S. 71, 83-84 (1902).

[684] New York ex rel. Lieberman v. Van De Carr, 199 U.S. 552, 562 (1905).

[685] Ohio ex rel. Bryant v. Akron Metropolitan Park Dist, 281 U.S. 74, 79 (1930).

[686] Carfer v. Caldwell, 200 U.S. 293, 297 (1906).

[687] Scott v. McNeal, 154 U.S. 34, 46 (1894); Pennoyer v. Neff, 95 U.S. 714, 733 (1878).

[688] National Exchange Bank v. Wiley, 195 U.S. 257, 270 (1904); Iron Cliffs Co. v. Negaunee Iron Co., 197 U.S. 463, 471 (1905).

[689] Arndt v. Griggs, 134 U.S. 316, 321 (1890); Grannis v. Ordean, 234 U.S. 385 (1914); Pennington v. Fourth Nat. Bank, 243 U.S. 269, 271 (1917).

[690] Goodrich v. Ferris, 214 U.S. 71, 80 (1909).

[691] Pennington v. Fourth Nat. Bank, 243 U.S. 269, 271 (1917).

[692] The jurisdictional requirements for rendering a valid decree in divorce proceedings are considered under the full faith and credit clause, supra, pp. 662-670.

[693] Pennoyer v. Neff, 95 U.S. 714 (1878); Simon v. Southern R. Co., 236 U.S. 115, 122 (1915); Grannis v. Ordean, 234 U.S. 385, 392, 394 (1914).

[694] Louisville & N.R. Co. v. Schmidt, 177 U.S. 230 (1900); McDonald v. Mabee, 243 U.S. 90, 91, (1917). See also Adam v. Saenger, 303 U.S. 59 (1938).

[695] Rees v. Watertown, 19 Wall. 107 (1874); Coe v. Armour Fertilizer Works, 237 U.S. 413, 423 (1915); Griffin v. Griffin, 327 U.S. 220 (1946).

[696] Sugg v. Thornton, 132 U.S. 524 (1889).

[697] Riverside & Dan River Cotton Mills v. Menefee, 237 U.S. 189, 193 (1915); Hess v. Pawloski, 274 U.S. 352, 355 (1927). See also Harkness v. Hyde, 98 U.S. 476 (1879); Wilson v. Seligman, 144 U.S. 41 (1892).

[698] Milliken v. Meyer, 311 U.S. 457, 462-464 (1940).

[699] McDonald v. Mabee, 243 U.S. 90, 92 (1917).

[700] Thus, in an older decision rendered in 1919, the Court held that whereas "States could exclude foreign corporations * * *, and therefore establish * * * [appointment of such an agent] as a condition to letting them in," they had no power to exclude individuals; and as a consequence, a statute was ineffective which treated nonresident partners, by virtue of their having done business therein, as having consented to be bound by service of process on a person who was their employee when the transaction sued on arose but was not their agent at the time of service.--Flexner v. Farson, 248. U.S. 289, 293 (1919).

Because it might be construed to negative extension to nonresidents, other than motorists, of the statutory device upheld in Hess v. Pawloski, the doctrine of Flexner v. Farson, "that the mere transaction of business in a State by a nonresident natural person does not imply consent to be bound by the process of its courts," was recently condemned as inadequate "to cope with the increasing problem of practical responsibility of hazardous business conducted in absentia * * *"--Sugg v. Hendrix, 142 F. (2d) 740, 742 (1944).

[701] Hess v. Pawloski, 274 U.S. 352 (1927); Wuchter v. Pizzutti, 276 U.S. 13, 20, 24 (1928).

[702] 326 U.S. 310, 316 (1945).

[703] 326 U.S. 310.

[704] Philadelphia & Reading Ry. Co. v. McKibbin, 243 U.S. 264, 265 (1917).

[705] In a very few cases, "continuous operations within a State were thought to be so substantial and of such a nature as to justify suits against [a foreign corporation] on causes of action arising from dealings entirely distinct from those" operations.--See St. Louis S.W.R. Co. v. Alexander, 227 U.S. 218 (1913); Missouri, K. & T.R. Co. v. Reynolds, 255 U.S. 565 (1921).

[706] Old Wayne Life Assn. v. McDonough, 204 U.S. 8, 21 (1907).

[707] Simon v. Southern R. Co., 236 U.S. 115, 129-130 (1915).--In neither this case, nor the preceding decision were the defendant corporations notified of the pendency of the action, service having been made only on the Insurance Commissioner or the Secretary of State.

[708] Green v. Chicago, B. & Q.R. Co., 205 U.S. 530 (1907). See also Davis v. Farmers Co-operative Co., 262 U.S. 312, 317 (1923).

[709] Pennsylvania F. Ins. Co. v. Gold Issue Min. & M. Co., 243 U.S. 93, 95-96 (1917).

[710] Rosenberg Bros. & Co. v. Curtis Brown Co., 260 U.S. 516, 517 (1923).

[711] Goldey v. Morning News, 156 U.S. 518 (1895).

[712] Conley v. Mathieson Alkali Works, 190 U.S. 406 (1903).

[713] Riverside Mills v. Menefee, 237 U.S. 189, 195 (1915).

[714] Mutual Life Insurance Co. v. Spratley, 172 U.S. 602 (1899).

[715] St. Clair v. Cox, 106 U.S. 350, 356 (1882). See St. Louis S.W.R. Co. v. Alexander, 227 U.S. 218 (1913).

[716] Mutual Reserve &c. Assn. v. Phelps, 190 U.S. 147, 156 (1903).

[717] Washington v. Superior Court, 289 U.S. 361, 365 (1933).

[718] 326 U.S. 310, 317-320 (1945).

[719] This departure was recognized by Justice Rutledge in a subsequent opinion in Nippert v. Richmond, 327 U.S. 416, 422 (1946).

The principle that solicitation of business alone is inadequate to confer jurisdiction for purposes of subjecting a foreign corporation to a suit in personam was established in Green v. Chicago, B. & Q.R. Co., 205 U.S. 530 (1907); but was somewhat qualified by the later holding in International Harvester Co. v. Kentucky, 234 U.S. 579 (1914) to the effect that when solicitation was connected with other activities (in the latter case, the local agents collected from the customers), a foreign corporation was then doing business within the forum State. Inasmuch as the International Shoe Company, in addition to having its agents solicit orders, also permitted them to rent quarters for the display of merchandise, the observation has been made that the Court, by applying the qualification of the International Harvester Case, could have decided International Shoe Co. v. Washington, 326 U.S. 310 (1945) as it did without abandoning the "presence" doctrine.

[720] 326 U.S. 310, 316-317.

[721] Ibid. 319.

[722] 339 U.S. 643 (1950).

[723] Ibid. 647-649.--Concerning the holding in Minnesota Ass'n. v. Benn, 261 U.S. 140 (1923), that a similar Minnesota mail order insurance company could not be viewed as doing business in Montana where the claimant-plaintiff lived, and that the circumstances under which its Montana contracts, executed and to be performed in Minnesota, were consummated could not support in implication that the foreign insurer had consented to be sued in Montana, the majority asserted that the "narrow grounds relied on by the Court in the Benn Case cannot be deemed controlling."

Declaring that what is necessary to sustain a suit by a policyholder in Virginia against a foreign insurer is not determinative when the State seeks to regulate solicitation within its borders, Justice Douglas, in a concurring opinion, emphasized that it is the nature of the State's action that determines the degree of activity in a State necessary for satisfying the requirements of due process, and that solicitation by existing members operates as though the insurer "had formally designated Virginia members as its agents."

Insisting that "an in personam judgment cannot be based upon service by registered letter on a nonresident corporation or a natural person, neither of whom has ever been" in Virginia, Justice Minton, with whom Justice Jackson was associated in a dissenting opinion, would have dismissed the appeal on the ground that "Virginia has not claimed the power to require [the insurer] * * * to appoint the Secretary of State as their agent for service of process, nor have [its] courts rendered judgment in a suit where service was made in that manner." He would therefore let Virginia "go through this shadow-boxing performance in order to publicize the activities of" the insurer.--Justices Reed and Frankfurter joined this dissent on the merits.--Ibid. 655-656, 658, 659.

In Perkins v. Benguet Mining Co., 342 U.S. 437 (1952) it was held, that the State of Ohio was free either to open its courts, or to refuse to do so, to a foreign corporation owning gold and silver mines in the Philippine Islands, but temporarily (during Japanese occupation) carrying on a part of its general business in Ohio, including directors meetings, business correspondence, banking, etc. Two members of the Court dissented, contending that what it was doing was "giving gratuitously an advisory opinion to the Ohio Supreme Court. [They] would dismiss the writ [of certiorari] as improvidently granted." The case is obviously too atypical to offer much promise of importance as a precedent.

[724] Arndt v. Griggs, 134 U.S. 316, 321 (1890).

[725] Ballard v. Hunter, 204 U.S. 241, 254 (1907); Pennoyer v. Neff, 95 U.S. 714 (1878).

[726] Dewey v. Des Moines, 173 U.S. 193, 203 (1899); Pennoyer v. Neff, 95 U.S. 714 (1878).

[727] American Land Co. v. Zeiss, 219 U.S. 47 (1911).

[728] Pennoyer v. Neff, 95 U.S. 714 (1878); citing Boswell v. Otis, 9 How. 336 (1850); Cooper v. Reynolds, 10 Wall. 308 (1870). Such remedy, by way of example, is also available to a wife who is enabled thereby to impound local bank deposits of her absent husband for purposes of collecting unpaid instalments by him. Moreover, because of the antiquity of the procedure authorized, a statute permitting the impounding of property of an absconding father for the maintenance of his children is not in conflict with due process because it fails to provide for notice, actual or constructive, to the absconder.--Pennington v. Fourth Nat. Bank, 243 U.S. 269, 271 (1917); Corn Exch. Bank v. Coler, 280 U.S. 218, 222 (1930). Likewise, proceedings to attach wages in execution of a judgment for debt may be instituted without any notice or service on the judgment debtor. The latter, having had his day in court when the judgment was rendered, is not entitled to be apprized of what action the judgment creditor may elect to take to enforce collection.--Endicott Co. v. Encyclopedia Press, 266 U.S. 285, 288 (1924).

[729] Goodrich v. Ferris, 214 U.S. 71, 80 (1909).

[730] McCaughey v. Lyall, 224 U.S. 558 (1912).

[731] RoBards v. Lamb, 127 U.S. 58, 61 (1888). Inasmuch as it is within the power of a State to provide that one who has undertaken administration of an estate shall remain subject to the order of its courts until said administration is closed, it follows that there can be no question as to the validity of a judgment for unadministered assets obtained on service of publication plus service personally upon an executor in the State in which he had taken refuge and in which he had been adjudged incompetent.--Michigan Trust Co. v. Ferry, 228 U.S. 346 (1913). Also, when a mother petitions for her appointment as guardian, and no one but the mother and her infant son of tender years, are concerned, failure to serve notice of the petition upon the infant does not invalidate the proceedings resulting in her appointment.--Jones v. Prairie Oil & Gas Co., 273 U.S. 195 (1927). Also a Pennsylvania statute which establishes a special procedure for appointment of one to administer the estate of absentees, which procedure is distinct from that contained in the general law governing settlement of decedents' estates and provides special safeguards to protect the rights of absentees is not repugnant to the due process clause because it authorizes notice by publication after an absence of seven years.--Cunnius v. Reading School Dist., 198 U.S. 458 (1905).

[732] Hamilton v. Brown, 161 U.S. 256, 275 (1896).

[733] Security Sav. Bank v. California, 263 U.S. 282 (1923).

[734] Anderson Nat. Bank v. Luckett, 321 U.S. 233 (1944).

[735] Mullane v. Central Hanover Tr. Co., 339 U.S. 306 (1950).

[736] Voeller v. Neilston Co., 311 U.S. 531 (1941).

[737] Grannis v. Ordean, 234 U.S. 385, 395-396 (1914).

[738] Miedreich v. Lauenstein, 232 U.S. 236 (1914).

[739] Twining v. New Jersey, 211 U.S. 78, 110 (1908); Jacob v. Roberts, 223 U.S. 261, 265 (1912).

[740] Bi-Metallic Co. v. Colorado, 239 U.S. 441, 445 (1915); Bragg v. Weaver, 251 U.S. 57, 58 (1919). For the procedural requirements that must be observed in the passage of legislation levying special assessments or establishing assessment districts, see pp. 1058-1059.

[741] Pacific States Box & Basket Co. v. White, 296 U.S. 176 (1935); Western Union Telegraph Co. v. Industrial Com'n., 24 F. Supp. 370 (1938); Ralph F. Fuchs, Procedure in Administrative Rule-Making, 52 Harvard Law Review, 259 (1938).

Whether action of an administrative agency, which voluntarily affords notice and hearing in proceedings in which due process would require the same, is voided by the fact that the statute in pursuance of which it operates does not expressly provide such protection, is a question as to which the Supreme Court has developed no definitive answer. It appears to favor the doctrine enunciated by State courts to the effect that such statutes are to be construed as impliedly requiring notice and hearing, although, in a few instances, it has uttered comments rejecting this notice-by-implication theory.--See Toombs v. Citizens Bank, 281 U.S. 643 (1930); Paulsen v. Portland, 149 U.S. 30 (1893); Bratton v. Chandler, 260 U.S. 110 (1922); Cincinnati, N.O. & T.R. Co. v. Kentucky, 115 U.S. 321 (1885). Contra: Central of Georgia R. Co. v. Wright, 207 U.S. 127 (1907); Coe v. Armour Fertilizer Works, 237 U.S. 413 (1915); Wuchter v. Pizzutti, 276 U.S. 13 (1928).

[742] Bratton v. Chandler, 260 U.S. 110 (1922); Missouri ex rel. Hurwitz v. North, 271 U.S. 40 (1926).

[743] North American Cold Storage Co. v. Chicago, 211 U.S. 306, 315-316 (1908). For an exposition of the doctrine applicable for determining the tort liability of administrative officers, see Miller v. Horton, 152 Mass. 540 (1891).

[744] Samuels v. McCurdy, 267 U.S. 188 (1925).

[745] 152 U.S. 133 (1894).

[746] Ibid. 140-141.

[747] Anderson National Bank v. Luckett, 321 U.S. 233, 246-247 (1944).

[748] Coffin Bros. & Co. v. Bennett, 277 U.S. 29, 31 (1928).

[749] Postal Teleg. Cable Co. v. Newport, 247 U.S. 464, 476 (1918); Baker v. Baker, E. & Co., 242 U.S. 394, 403 (1917); Louisville & N.R. Co. v. Schmidt, 177 U.S. 230, 236 (1900).

[750] American Surety Co v. Baldwin, 287 U.S. 156, 168 (1932).

[751] Saunders v. Shaw, 244 U.S. 317 (1917).

[752] See footnote 1, p. 1085. [Transcriber's Note: Reference is to Footnote 741, above.]

[753] Coe v. Armour Fertilizer Works, 237 U.S. 413, 424 (1915); Wuchter v. Pizzutti, 276 U.S. 13 (1928).

[754] Roller v. Holly, 176 U.S. 398, 407, 409 (1900).

[755] Goodrich v. Ferris, 214 U.S. 71, 80 (1909). One may, of course, waive a right to notice and hearing, as in the case of a debtor or surety who consents to the entry of a confessed judgment on the happening of certain conditions.--Johnson v. Chicago & P. Elevator Co., 119 U.S. 388 (1886); American Surety Co. v. Baldwin, 287 U.S. 156 (1932).

[756] See pp. 1084-1088.

[757] Holmes v. Conway, 241 U.S. 624, 631 (1916); Louisville & N.R. Co. v. Schmidt, 177 U.S. 230, 236 (1900).

[758] Snyder v. Massachusetts, 291 U.S. 97, 105 (1934); West v. Louisiana, 194 U.S. 258, 263 (1904); Chicago, B. & Q.R. Co. v. Chicago, 166 U.S. 226 (1897); Jordan v. Massachusetts, 225 U.S. 167, 176 (1912). The power of a State to determine the limits of the jurisdiction of its courts and the character of the controversies which shall be heard in them and to deny access to its courts, in the exercise of its right to regulate practice and procedure; is also subject to the restrictions imposed by the contract, full faith and credit, and privileges and immunities clauses of the Federal Constitution. Angel v. Bullington, 330 U.S. 183 (1947).

[759] Hardware Dealers Mut. F. Ins. Co. v. Glidden Co., 284 U.S. 151, 158 (1931); Iowa C.R. Co. v. Iowa, 160 U.S. 389, 393 (1896); Honeyman v. Hanan, 302 U.S. 375 (1937).

[760] Cincinnati Street R. Co. v. Snell, 193 U.S. 30, 36 (1904).

[761] Ownbey v. Morgan, 256 U.S. 94, 112 (1921). Thus, the Fourteenth Amendment does not constrain the States to accept modern doctrines of equity, or adopt a combined system of law and equity procedure, or dispense with all necessity for form and method in pleading, or give untrammeled liberty to make amendments.

[762] Cohen v. Beneficial Loan Corp., 337 U.S. 541 (1949).

[763] Young Co. v. McNeal-Edwards Co., 283 U.S. 398 (1931); Adam v. Saenger, 303 U.S. 59 (1938).

[764] Jones v. Union Guano Co., 264 U.S. 171 (1924).

[765] York v. Texas, 137 U.S. 15 (1890); Kauffman v. Wooters, 138 U.S. 285, 287 (1891).

[766] Grant Timber & Mfg. Co. v. Gray, 236 U.S. 133 (1915).

[767] Ownbey v. Morgan, 256 U.S. 94, 111 (1921).--Consistently, with due process, a State may provide that the doctrines of contributory negligence, assumption of risk, and fellow servant shall not bar recovery in actions brought against an employer for death or injury resulting from dangerous machinery improperly safeguarded. A person having no vested right to the defense of contributory negligence, a State may take it away altogether, or may provide that said defense, as well as that of assumption of risk, are questions of fact to be left to the jury.--Bowersock v. Smith, 243 U.S. 29, 34 (1917); Chicago, R.I. & P.R. Co. v. Cole, 251 U.S. 54, 55 (1919); Herron v. Southern P. Co., 283 U.S. 91 (1931).

[768] Sawyer v. Piper, 189 U.S. 154 (1903).

[769] Ballard v. Hunter, 204 U.S. 241, 259 (1907).

[770] Missouri K. & T.R. Co. v. Cade, 233 U.S. 642, 650 (1914).

[771] Lowe v. Kansas, 163 U.S. 81 (1896).

[772] Yazoo & M.V.R. Co. v. Jackson Vinegar Co., 226 U.S. 217 (1912); Chicago & N.W.R. Co. v. Nye Schneider Fowler Co., 260 U.S. 35, 43-44 (1922); Hartford L. Ins. Co. v. Blincoe, 255 U.S. 129, 139 (1921); Life & C. Ins. Co. v. McCray, 291 U.S. 566 (1934).

[773] Pizitz Dry Goods Co. v. Yeldell, 274 U.S. 112, 114 (1927).

[774] Coffey v. Harlan County, 204 U.S. 659, 663, 665 (1907).

[775] Wheeler v. Jackson, 137 U.S. 245, 258 (1890); Kentucky Union Co. v. Kentucky, 219 U.S. 140, 156 (1911).

[776] Blinn v. Nelson, 222 U.S. 1 (1911).

[777] Turner v. New York, 168 U.S. 90, 94 (1897).

[778] Soper v. Lawrence Bros. Co., 201 U.S. 359 (1906). Nor is a former owner who had not been in possession for five years after and fifteen years before said enactment thereby deprived of any property without due process.

[779] Mattson v. Department of Labor, 293 U.S. 151, 154 (1934).

[780] Campbell v. Holt, 115 U.S. 620, 623, 628 (1885).

[781] Chase Securities Corp. v. Donaldson, 325 U.S. 304 (1945).

[782] Gange Lumber Co. v. Rowley, 326 U.S. 295 (1945).

[783] Campbell v. Holt, 115 U.S. 620, 623 (1885). See also Stewart v. Keyes, 295 U.S. 403, 417 (1935).

[784] Home Ins. Co. v. Dick, 281 U.S. 397, 398 (1930).

[785] Hawkins v. Bleakly, 243 U.S. 210, 214 (1917); James-Dickinson Farm Mortg. Co. v. Harry, 273 U.S. 119, 124 (1927). An omission in a criminal trial of any reference to the presumption of innocence effects no denial of due process of law where the State appellate court ruled that such omission did not invalidate the proceedings. Howard v. Fleming, 191 U.S. 126, 136 (1903).

[786] Manley v. Georgia, 279 U.S. 1, 5 (1929); Western & A.R. Co. v. Henderson, 279 U.S. 639, 642 (1929); Bailey v. Alabama, 219 U.S. 219, 233 (1911); Mobile, J. & K.C.R. Co. v. Turnipseed, 219 U.S. 35, 42 (1910).

[787] Bailey v. Alabama, 219 U.S. 219, 233 (1911).

[788] Manley v. Georgia, 279 U.S. 1, 7 (1929).

[789] Western & A.R. Co. v. Henderson, 279 U.S. 639 (1929).

[790] Atlantic Coast Line R. Co. v. Ford, 287 U.S. 502 (1933). See also Mobile, J. & K.C.R. Co. v. Turnipseed, 219 U.S. 35 (1910).

[791] Hawes v. Georgia, 258 U.S. 1 (1922).

[792] Bandini Petroleum Co. v. Superior Ct., 284 U.S. 8, 19 (1931).

[793] Hawker v. New York, 170 U.S. 189 (1898).

[794] Cockrill v. California, 268 U.S. 258, 261 (1925).

[795] Morrison v. California, 288 U.S. 591 (1933).

[796] Morrison v. California, 291 U.S. 82 (1934).

[797] "The limits are in substance these, that the State shall have proved enough to make it just for the defendant to be required to repeal what has been proved * * *, or at least that upon a balancing of convenience or of the opportunities for knowledge the shifting of the burden will be found to be an aid to the accuser without subjecting the accused to hardship or oppression."--Ibid. 88-89.

[798] Ibid. 87-91, 96-97.

[799] Leland v. Oregon, 343 U.S. 790 (1952).

[800] Walker v. Sauvinet, 92 U.S. 90 (1876); New York C.R. Co. v. White, 243 U.S. 188, 208 (1917); Snyder v. Massachusetts, 291 U.S. 97, 105 (1934).

[801] Marvin v. Trout, 199 U.S. 212, 226 (1905).

[802] Tinsley v. Anderson, 171 U.S. 101, 108 (1898); Eilenbecker v. District Court, 134 U.S. 31, 36, 39 (1890).

[803] Delgado v. Chavez, 140 U.S. 586, 588 (1891).

[804] Wilson v. North Carolina ex rel. Caldwell, 169 U.S. 586 (1898); Foster v. Kansas ex rel. Johnston, 112 U.S. 201, 206 (1884).

[805] Long Island Water Supply Co. v. Brooklyn, 166 U.S. 685, 694 (1897).

[806] Montana Company v. St. Louis Min. & Mill Co., 152 U.S. 160, 171 (1894); Church v. Kelsey, 121 U.S. 282 (1887).

[807] Jordan v. Massachusetts, 225 U.S. 167, 176 (1912).

[808] Maxwell v. Dow, 176 U.S. 581, 602 (1900).

[809] Winters v. New York, 333 U.S. 507, 509-510, 515 (1948). See also Cline v. Frink Dairy, 274 U.S. 445 (1927); Cole v. Arkansas, 338 U.S. 345, 354 (1949).

[810] Lanzetta v. New Jersey, 306 U.S. 451, 455 (1939).

[811] Minnesota v. Probate Court, 309 U.S. 270 (1940).

[812] Hurtado v. California, 110 U.S. 516, 520, 538 (1884); Brown v. New Jersey, 175 U.S. 172, 175 (1890); Maxwell v. Dow, 176 U.S. 581, 602 (1900); Graham v. West Virginia, 224 U.S. 616, 627 (1912); Jordan v. Massachusetts, 225 U.S. 167, 176 (1912).

[813] Lem Woon v. Oregon, 229 U.S. 586, 590 (1913).

[814] Gaines v. Washington, 277 U.S. 81, 86 (1928).

[815] Norris v. Alabama, 294 U.S. 587 (1935). See also Hale v. Kentucky, 303 U.S. 613 (1938); Pierre v. Louisiana, 306 U.S. 354 (1939); Smith v. Texas, 311 U.S. 128 (1940); Shepherd v. Florida, 341 U.S. 50 (1951).

[816] Powell v. Alabama, 287 U.S. 45, 66, 71 (1932).

[817] Palko v. Connecticut, 302 U.S. 319, 324-325 (1937).

[818] 287 U.S. 45 (1932).

[819] Ibid. 71.

[820] 287 U.S. 45, 71 (1932).--The Court presently seems to be holding that in capital cases, notwithstanding the absence even of other circumstances prejudicial to the defendant, the right to counsel is unqualified. See the later cases discussed herein, especially Tomkins v. Missouri, 323 U.S. 485 (1945); Williams v. Kaiser, 323 U.S. 471 (1945); Hawk v. Olson, 326 U.S. 271 (1945); and the Court's summary of its rulings in Uveges v. Pennsylvania, 335 U.S. 437 (1948), supra, p. 1108.

[821] 308 U.S. 444 (1940).

[822] Ibid. 446-447.

[823] 312 U.S. 329 (1941).--In a post mortem comment on this case appearing in the later decision of Betts v. Brady, 316 U.S. 455, 464 (1942), there is contained the intimation that the mere failure to appoint counsel, alone, in the absence of the proof of other facts tending to show that the whole trial was "a mere sham and a pretense," would not have sufficed to support a finding of a denial of due process.

[824] 316 U.S. 455, 462-463 (1942).

[825] Ibid. 462, 473.

[826] In Powell v. Alabama, 287 U.S. 45 (1932); Avery v. Alabama, 308 U.S. 444 (1940); and Smith v. O'Grady, 312 U.S. 329 (1941), a State law required the appointment of counsel.

[827] 316 U.S. 455, 461-462, 474-476 (1942).--Dissenting, Justice Black, with whom Justices Douglas and Murphy were in agreement, acknowledged regretfully that the view that the "Fourteenth Amendment made the Sixth applicable to the States * * * has never been accepted by a majority of this Court," and submitted a list of citations showing that by judicial decision, as well as by constitutional and statutory provision, a majority of States require that indigent defendants, in noncapital as well as capital cases, be provided with counsel on request. This evidence, he contended, supports the conclusion that "denial to the poor of a request for counsel in proceedings based on serious charges of crime," has "long been regarded throughout this country as shocking to the 'universal sense of justice.'"

[828] 323 U.S. 471 (1945).

[829] 323 U.S. 485 (1945).

[830] 287 U.S. 45, 69, 71 (1932).

[831] 323 U.S. 471, 476 (1945).

[832] 324 U.S. 42 (1945). See also White v. Ragen, 324 U.S. 760 (1945).

[833] 326 U.S. 271 (1945).

[834] 324 U.S. 42, 46 (1945).

[835] 324 U.S. 786 (1945).

[836] 327 U.S. 82 (1946). Justices Murphy and Rutledge dissented, the former contending that "the right to counsel means nothing unless it means the right to counsel at each and every step in a criminal proceeding."--Ibid. 89.

[837] 329 U.S. 173 (1946).

[838] Rice v. Olson, 324 U.S. 786 (1945), was distinguished on the ground that the record in the older case contained specific allegations bearing on the disabilities of the accused to stand prosecution without the aid of counsel and the complete absence of any uncontested finding, as in the instant case, of an intelligent waiver of counsel.

Dissenting for himself and Justices Black and Rutledge, Justice Douglas declared that, under the authority of Williams v. Kaiser, 323 U.S. 471, 476 (1945), "if * * * [the] defendant is not capable of making his own defense, it is the duty of the Court, at least in capital cases, to appoint counsel, whether requested so to do or not."--329 U.S. 173, 181 (1946). In a separate dissent, Justice Murphy observed that while "legal technicalities doubtless afford justification for our pretense of ignoring plain facts before us," facts which emphasize the absence of any intelligent waiver of counsel, "the result certainly does not enhance the high traditions of the judicial process."--Ibid. 183.

[839] 329 U.S. 663, 665 (1947).

[840] 332 U.S. 134 (1947).

[841] 332 U.S. 145 (1947).

[842] 332 U.S. 134, 136 (1947).--Acknowledging that the decision is in line with the precedent of Betts v. Brady, Justice Black, who was joined by Justices Douglas, Murphy, and Rutledge, lamented that the latter was a "kind of precedent [which he] had hoped that the Court would not perpetuate." Complaining of the loss of certainty occasioned by the Court's refusal to read into the Fourteenth Amendment the absolute right to counsel set out in the Sixth Amendment, Justice Black contends that the fair trial doctrine as enunciated in this and in the Adamson v. California case (see p. 1115) decided on the same day is "another example of the consequences which can be produced by the substitution of this Court's day-to-day opinion of what kind of trial is fair and decent for the kind of trial which the Bill of Rights guarantees."--Ibid. 139, 140.--In a second dissenting opinion meriting the concurrence of Justices Black, Douglas, and Murphy, Justice Rutledge, who also is of the opinion that the absolute right to counsel granted by the Sixth Amendment should be enjoyed in State criminal trials, insisted that even under the fair trial doctrine, the accused had not been accorded due process.

[843] 332 U.S. 145 (1947).

[844] 332 U.S. 561 (1947).

[845] 332 U.S. 596 (1948).

[846] See p. 1103.

[847] 333 U.S. 640, 678, 680-682 (1948).--As against the assertion of the majority that the due process clause of the Fourteenth Amendment does not of its own force require appointment of counsel for one simply because he would have a constitutional right to the assistance of counsel in a comparable federal case, the minority, consisting of Justices Black, Murphy, and Rutledge speaking through Justice Douglas, declared that "the Bill of Rights is applicable to all courts at all times"; for, otherwise, "of what value is the constitutional guarantee of a fair trial if an accused does not have counsel to advise and defend him." Noting that all members of the Court were in accord on the requirement of counsel in capital offenses, the minority contended that the considerations inducing such unanimity were "equally germane [in noncapital cases] where liberty rather than life hangs in the balance." Conceding that "it might not be nonsense to draw the Betts v. Brady line somewhere between that case and the case of one charged with violation of a parking ordinance, and to say the accused is entitled to counsel in the former but not in the latter," the minority concluded as follows: "* * * to draw the line between this case and cases where the maximum penalty is death is to make a distinction which makes no sense in terms of the absence or presence of need for counsel. Yet it is the need for counsel that establishes the real standard for determining whether the lack of counsel rendered the trial unfair. And the need for counsel, even by Betts v. Brady standards, is not determined by the complexities of the individual case or the ability of the particular person who stands as an accused before the Court. That need is measured by the nature of the charge and the ability of the average man to face it alone, unaided by an expert in the law."

[848] 334 U.S. 672, 683 (1948).

[849] 334 U.S. 728, 730, 731 (1948).

[850] 334 U.S. 736 (1948).

[851] Ibid. 740.--The majority also observed that "trial court's facetiousness casts a somewhat somber reflection on the fairness of the proceeding * * *"

Although Chief Justice Vinson and Justices Reed and Burton dissented without an opinion in Townsend v. Burke, four Justices, Black, Douglas, and Murphy speaking through Justice Rutledge filed a vigorous dissent in Gryger v. Burke, 334 U.S. 728, 733, 736 (1948). Justice Rutledge declared his inability to "square * * * [this] decision in this case with that made in Townsend v. Burke. I find it difficult to comprehend that the [trial] court's misreading or misinformation concerning the facts of [the] record [Townsend v. Burke] vital to the proper exercise of the sentencing function is prejudicial * * *, but its misreading or misconception of the controlling statute, [Gryger v. Burke] in a matter so vital as imposing mandatory sentence or exercising discretion concerning it, has no such effect. Perhaps the difference serves only to illustrate how capricious are the results when the right to counsel is made to depend not upon the mandate of the Constitution, but upon the vagaries of whether judges, * * * will regard this incident or that in the course of particular criminal proceedings as prejudicial."

[852] 335 U.S. 437, 438-442 (1948).

[853] 337 U.S. 773, 780 (1949).

[854] 342 U.S. 184 (1951); See also Per Curiam opinion granting certiorari in Foulke v. Burke, 342 U.S. 881 (1951).

[855] 339 U.S. 660, 665 (1950).

[856] 342 U.S. 55 (1951).

[857] Ibid. 64.

[858] 335 U.S. 437, 440-441 (1948).

[859] Rice v. Olson, 324 U.S. 786, 788-789 (1945).

[860] Wade v. Mayo, 334 U.S. 672, 683-684 (1948); De Meerleer v. Michigan, 329 U.S. 663, 664-665 (1947); Betts v. Brady, 316 U.S. 455, 472 (1942); Powell v. Alabama, 287 U.S. 45, 51-52, 71 (1932).

[861] Townsend v. Burke, 334 U.S. 736, 739-741 (1948); De Meerleer v. Michigan, 329 U.S. 663, 665 (1947); Smith v. O'Grady, 312 U.S. 329, 332-333 (1941).

[862] Rice v. Olson, 324 U.S. 786, 789-791 (1945).

[863] Gibbs v. Burke, 337 U.S. 773, 780-781 (1949). Devotion to the Fair Trial doctrine has also created another problem for the Court, that of a burdensome increase in the volume of its business. Inasmuch as accurate appraisal of the effect of absence of counsel on the validity of a State criminal proceeding has been rendered more difficult by the vagueness of that doctrine as well as by the Court's acknowledged variation in the application thereof, innumerable State prisoners have been tempted to seek judicial reconsideration of their convictions. To reduce the number of such cases which it is obliged to examine on their merits, the Court had been compelled to have recourse to certain protective rules. Thus, when a State prisoner seeks to attack the validity of his conviction by way of habeas corpus proceedings begun in a lower federal court, application for that writ will be entertained only after all State remedies available, including all appellate remedies in State courts and in the Supreme Court by appeal or writ of certiorari, have been exhausted. This rule, however, will not be applied when no adequate State remedy is in fact available. Also when a prisoner's petition for release on the grounds of the unconstitutionally of his conviction has been rejected by a State court, a petition for certiorari addressed to the United States Supreme Court will be denied whenever it appears that the prisoner had not invoked the appropriate State remedy. Or stated otherwise, where the State court's conviction or refusal to grant writs of habeas corpus to those under State sentences may fairly be attributed to a rule of local procedure and is not exclusively founded on the denial of a federal claim, such as, right to counsel, the Supreme Court will refuse to intervene. As in the case of other legal rules, Justices of the Supreme Court have often found themselves in disagreement as to the manner of applying these aforementioned principles; and vigorous dissents arising out of this very issue were recorded in the cases of Marino v. Ragen, 332 U.S. 561 (1947); Wade v. Mayo, 334 U.S. 672 (1948); and Uveges v. Pennsylvania, 335 U.S. 437 (1948). Justice Frankfurter has frequently, albeit unsuccessfully contended, that "intervention by * * * [the Supreme Court] in the criminal process of States * * * should not be indulged in unless no reasonable doubt is left that a State denies, or has refused to exercise, means of correcting a claimed infraction of the United States Constitution. * * * After all, [it should be borne in mind that] this is the Nation's ultimate judicial tribunal, not a super-legal-aid bureau."

[864] 176 U.S. 581 (1900).

[865] 110 U.S. 516 (1884).

[866] Jordan v. Massachusetts, 225 U.S. 167, 176. (1912).

[867] Maxwell v. Dow, 176 U.S. 581 (1900).

[868] Hallinger v. Davis, 146 U.S. 314 (1892).

[869] Ibid. 318-320.

[870] Missouri v. Lewis, 101 U.S. 22 (1880); Maxwell v. Dow, 176 U.S. 581, 603 (1900); Jordan v. Massachusetts, 225 U.S. 167, 176 (1912); Snyder v. Massachusetts, 291 U.S. 97, 105 (1934).

[871] Brown v. New Jersey, 175 U.S. 172, 175, 176 (1899).

[872] Ashe v. United States ex rel. Valotta, 270 U.S. 424, 425 (1926).

[873] Fay v. New York, 332 U.S. 261, 288 (1947); Moore v. New York, 333 U.S. 585 (1948).--Both cases reject the proposition that the commandment of the Sixth Amendment, which requires a jury trial in criminal cases in the federal courts is picked up by the due process clause of the Fourteenth Amendment so as to become a limitation upon the States.

[874] Fay v. New York, 332 U.S. 261, 283-284 (1947).--Since Congress, by way of enforcing the guarantees contained in the Fourteenth Amendment, has, by statute [18 Stat. 336, 377 (1875); 8 U.S.C. 44], made it a crime to exclude a citizen from jury service only on account of race, color, or previous condition of servitude, the Supreme Court "never has interfered with the composition of State court juries except in cases where this guidance of Congress was applicable." Without suggesting that "no case of discrimination in jury drawing except those involving race or color can carry such unjust consequences as to amount to a denial of * * * due process," the Court has nevertheless required that a defendant, alleging grounds not covered by that statute, "must comply with the exacting requirements of proving clearly" that the procedure in his case was destructive of due process.

These statements reflect the views of only five Justices. Speaking for the minority (Justices Black, Douglas, and Rutledge), Justice Murphy declared that "the vice lies in the very concept of 'blue ribbon' panels--the systematic and intentional exclusion of all but the 'best' or the most learned or intelligent of the general jurors. Such panels are completely at war with the democratic theory of our jury system, a theory formulated out of the experience of generations. One is constitutionally entitled to be judged by a fair sampling of all one's neighbors who are qualified, not merely those with superior intelligence or learning. Jury panels are supposed to be representative of all qualified classes. Within those classes, of course, are persons with varying degrees of intelligence, wealth, education, ability and experience. But it is from that welter of qualified individuals, who meet specified minimum standards, that juries are to be chosen. Any method that permits only the 'best' of these to be selected opens the way to grave abuses. The jury is then in danger of losing its democratic flavor and becoming the instrument of the select few." A "blue ribbon jury" is neither "a jury of the * * * [defendant's] peers," nor "a jury chosen from a fair cross-section of the community, * * *"--Moore v. New York, 333 U.S. 565, 569-570 (1948).

[875] Rawlins v. Georgia, 201 U.S. 638 (1906). The Supreme Court "has never entertained a defendant's objections to exclusions from the jury except when he was a member of the excluded class."--Fay v. New York, 332 U.S. 261, 287 (1947).

[876] 211 U.S. 78, 93, 106-107, 113; citing Missouri v. Lewis, 101 U.S. 22 (1880); and Holden v. Hardy, 169 U.S. 366, 387, 389 (1898).

[877] In several decisions the Court, assuming, but without deciding, that a State law requiring a witness to answer incriminating questions would violate the due process clause, has then proceeded to conclude, nevertheless, that a State antitrust law which grants immunity from local prosecution to a witness compelled to testify thereunder is valid even though testimony thus extracted may later serve as the basis of a federal prosecution for violation of federal antitrust laws.--Jack v. Kansas, 199 U.S. 372, 380 (1905).

[878] Snyder v. Massachusetts, 291 U.S. 97, 105 (1934).

[879] Palko v. Connecticut, 302 U.S. 319, 325-326 (1937).

[880] 297 U.S. 278, 285-286 (1936). For the significance of this decision as a precedent in favor of a more careful scrutiny by the Supreme Court of State trials in which a denial of constitutional rights allegedly occurred, see p. 1138.

[881] Ibid, 285-286.

[882] 309 U.S. 227 (1940).

[883] Ibid. 228-229, 237-241.

[884] 310 U.S. 530 (1940).

[885] 314 U.S. 219, 237 (1941). This dictum represents the closest approach which the Court thus far has made toward inclusion of the privilege against self-incrimination within the due process clause of the Fourteenth Amendment. In all but a few of the forced confession cases, however, the results achieved by application of the Fair Trial doctrine differ scarcely at all from those attainable by incorporation of the privilege within that clause.

[886] 316 U.S. 547 (1942).

[887] 322 U.S. 143 (1944).

[888] See Baldwin v. Missouri, 281 U.S. 586, 595 (1930).

[889] 322 U.S. 143, 160-162 (1944).--All members of the Court were in accord, however, in condemning, as no less a denial of due process, the admission at the second trial of Ashcraft [Ashcraft v. Tennessee, 327 U.S. 274 (1946)] of evidence uncovered in consequence of the written confession, acceptance of which at the first trial had led to the reversal of his prior conviction.

[890] 322 U.S. 596 (1944).

[891] Ibid. 602.--Of three Justices who dissented, Justice Murphy, with whom Justice Black was associated, declared that it was "inconceivable * * * that the second confession was free from the coercive atmosphere that admittedly impregnated the first one"; and added that previous decisions of this Court "in effect have held that the Fourteenth Amendment makes the prohibition [of the Fifth pertaining to self-incrimination] applicable to the States."--Ibid. 605-606.

[892] 324 U.S. 401 (1945).

[893] Chief Justice Stone, together with Justices Roberts, Reed, and Jackson, all of whom dissented, would have sustained the conviction.

[894] Justices Rutledge and Murphy dissented in part, assigning among their reasons therefor their belief that the "subsequent confessions, * * *, were vitiated with all the coercion which destroys admissibility of the first one." According to Justice Rutledge, "a stricter standard is necessary where the confession tendered follows a prior coerced one than in the case of a single confession * * *. Once a coerced confession has been obtained all later ones should be excluded from evidence, wherever there is evidence that the coerced one has been used to secure the later ones."--324 U.S. 401, 420, 428-429 (1945).

[895] In Lyons v. Oklahoma, 322 U.S. 596, 601 (1944), the Court stated that "when the State-approved instruction (to the jury) fairly raises the question of whether or not the challenged confession was voluntary, * * *, the requirements of due process, * * *, are satisfied and this Court will not require a modification of local practice to meet views that it might have as to * * * how specific an instruction * * * must be." In Malinski v. New York, the four dissenting Justices declared that "the trial court, * * *, instructed the jury that the evidence with respect to the first confession was adduced only to show that the second was coerced. And * * * that it could consider the second confession, only if it found it voluntary, and that it could convict in that case. In view of these instructions, we cannot say that the first confession was submitted to the jury, or that in the absence of any exception or request to charge more particularly, there was any error, of which the * * * [accused] can complain."--324 U.S. 401, 437 (1945).

[896] The coercive nature of the first oral confession was apparently acknowledged by the prosecuting attorney in his summation to the jury; for he declared that the accused "was not hard to break," and that the purpose of holding him incommunicado and unclothed in a hotel room from 8 a.m. to 6 p.m., when the confession was made, was to "let him think that he is going to get a shellacking (beating)."--324 U.S. 401, 407 (1945).

[897] 332 U.S. 46, 56 (1947).

[898] 211 U.S. 78 (1908).

[899] 302 U.S. 319 (1937).

[900] Adamson v. California, 332 U.S. 46, 50, 53, 56, 58 (1947).

[901] Adamson v. California, 332 U.S. 46, 59-60, 63-64, 66 (1947). See also Malinski v. New York, 324 U.S. 401, 414, 415, 417 (1945).

[902] Adamson v. California, 332 U.S. 46, 69, 74-75, 89 (1947).--Dissenting separately, Justice Murphy, together with Justice Rutledge, announced their agreement with Justice Black, subject to one reservation. While agreeing "that the specific guarantees of the Bill of Rights should be carried over intact into the first section of the Fourteenth Amendment," they were "not prepared to say that the latter is entirely and necessarily limited by the Bill of Rights. Occasions may arise where a proceeding falls so far short of conforming to fundamental standards of procedure as to warrant * * * condemnation in terms of a lack of due process despite the absence of a specific provision in the Bill of Rights."--Ibid. 124.

In a lengthy article based upon a painstaking examination of original data pertaining to the "understanding of the import of the * * * clauses of Section 1 of the Fourteenth Amendment at the time the Amendment was adopted"; that is, during the period 1866-1868, Professor Charles Fairman has marshalled a "mountain of evidence" calculated to prove conclusively the inaccuracy of Justice Black's reading of history.--Charles Fairman. Does the Fourteenth Amendment Incorporate the Bill of Rights? The Original Understanding.--2 Stanford Law Review, 5-139 (1949).

[903] 332 U.S. 596 (1948).

[904] Ibid. 600-601.--In a dissenting opinion, in which Chief Justice Vinson and Justices Jackson and Reed concurred, Justice Burton remarked that inasmuch as the issue of the voluntariness of the confession was one of fact, turning largely on the credibility of witnesses, the determination thereof by the trial judge and jury should not be overturned upon mere conjecture.--Ibid. 607, 615.

[905] 332 U.S. 742, 745 (1948).

[906] 335 U.S. 252 (1948).

[907] The Court also held that the procedure of Alabama, in requiring the accused to obtain permission from an appellate court before filing a petition in a trial court for a writ of error coram nobis was consistent with due process. Alabama was deemed to possess "ample machinery for correcting the Constitutional wrong of which the * * * [accused] complained."--Ibid. 254, 260-261.

[908] The accused, in his petition, neither denied his guilt nor any of the acts on which his conviction was based. He simply contended that because of fear generated by coercive police methods applied to him, he had concealed such evidence from his own counsel at the time of the trial and had informed the latter that his confessions were voluntary. His charges of duress were supported by affidavits of three associates in crime, none of whom claims to have seen the alleged beatings of the petitioner.--Ibid. 265-266.

[909] In a dissenting opinion, in which Justices Douglas and Rutledge concurred, Justice Murphy maintained that inasmuch as there was some evidence to substantiate the petitioner's claim, the latter should have been allowed a hearing in the trial court. According to Justice Murphy, a conviction based on a coerced confession is "void even though the confession is in fact true" and the petitioner is guilty. Justice Frankfurter criticized this dissenting opinion as having been "written as though this Court was a court of criminal appeals for revision of convictions in the State courts."--Ibid. 272, 275-276.

[910] 338 U.S. 49 (1949).

[911] 338 U.S. 62, 64 (1949).

[912] 338 U.S. 68 (1949).

[913] Watts v. Indiana, 338 U.S. 49, 53 (1949).

[914] 309 U.S. 227 (1940).

[915] 322 U.S. 143 (1944).

[916] Watts v. Indiana, 338 U.S. 49, 57 (1949); citing Malinski v. New York, 324 U.S. 401 (1945); Haley v. Ohio, 332 U.S. 596 (1948).

[917] 338 U.S. 49, 60 (1949).

[918] 338 U.S. 62 (1949).

[919] 338 U.S. 68 (1949).

[920] 338 U.S. 49, 61 (1949). In the 1949, 1950, and 1951 terms only one case arose which involved the forced confession issue in any significant way. This was Rochin v. California, 342 U.S. 165 (1952), which is discussed immediately below in another connection. See also Jennings v. Illinois, 342 U.S. 104 (1951); and Stroble v. California, 343 U.S. 181 (1952), in which diverse, but not necessarily conflicting, results were reached.

[921] 232 U.S. 58 (1914).

[922] Consolidated Rendering Co. v. Vermont, 207 U.S. 541, 552 (1908); Hammond Packing Co. v. Arkansas, 212 U.S. 322, 348 (1909).

[923] Wolf v. Colorado, 338 U.S. 25 (1949).

[924] 332 U.S. 46 (1947).

[925] 302 U.S. 319 (1937).

[926] 338 U.S. 25, 27-28 (1949).

[927] Ibid. 28-31.--In harmony with his views, as previously stated in Malinski v. New York, 324 U.S. 401 (1945) and Adamson v. California, 332 U.S. 46, 59-66 (1947), Justice Frankfurter amplified his appraisal of the due process clause as follows: "Due process of law * * * conveys neither formal nor fixed nor narrow requirements. It is the compendius expression for all those rights which the courts must enforce because they are basic to our free society. But basic rights do not become petrified as of any one time, even though, as a matter of human experience, some may not too rhetorically be called eternal verities. It is of the very nature of a free society to advance in its standards of what is deemed reasonable and right. Representing as it does a living principle, due process is not confined within a permanent catalogue of what may at a given time be deemed the limits of the essentials of fundamental rights. To rely on a tidy formula for the easy determination of what is a fundamental right for purposes of legal enforcement may satisfy a longing for certainty but ignores the movements of a free society. * * * The real clue to the problem confronting the judiciary in the application of the Due Process Clause is not to ask where the line is once and for all to be drawn but to recognize that it is for the Court to draw it by the gradual and empiric process of 'inclusion and exclusion.'"--Ibid. 27.

[928] 332 U.S. 46, 68, 71-72 (1947).

[929] Wolf v. Colorado, 338 U.S. 25, 39-40 (1949).

[930] Ibid. 40, 41, 44, 46, 47.

[931] Stefanelli v. Minard, 342 U.S. 117 (1951); Rochin v. California, 342 U.S. 165 (1952).

[932] 342 U.S. 117, 123.

[933] 342 U.S. 105, 168, citing Malinski v. New York, 324 U.S. 401, 412, 418 (1945).

[934] Ibid., 174.

[935] 332 U.S. 46, 68-123 (1947). "Of course", said Justice Douglas, citing Holt v. United States, 218 U.S. 245, 252-253 (1910), "an accused can be compelled to be present at the trial, to stand, to sit, to turn this way or that, and to try on a cap or a coat." 342 U.S. at 179. See the Self-incrimination Clause of Amendment V.

[936] Mooney v. Holohan, 294 U.S. 103, 112 (1935).

[937] Ibid. 110.--Because judicial process adequate to correct this alleged wrong was believed to exist in California and had not been fully invoked by Mooney, the Court denied his petition. Subsequently, a California court appraised the evidence offered by Mooney and ruled that his allegations had not been established.--Ex parte Mooney, 10 Cal. (2d) 1, 73 P (2d) 554 (1937); certiorari denied, 305 U.S. 598 (1938). Mooney later was pardoned by Governor Olson.--New York Times, January 8, 1939.

[938] 315 U.S. 411 (1942).

[939] 317 U.S. 213 (1942).

[940] 324 U.S. 760 (1945). See also New York ex rel. Whitman v. Wilson, 318 U.S. 688 (1943); Ex parte Hawk, 321 U.S. 114 (1944).

[941] 315 U.S. 411, 413, 421-422 (1942).--Justice Black, together with Justices Douglas and Murphy, dissented on the ground that the Florida court, "with intimations of approval" by the majority, had never found it necessary to pass on the credibility of Hysler's allegations, but had erroneously declared that all his allegations, even if true and fully known to the trial court, would not have precluded a conviction.

In an earlier case, Lisenba v. California, 314 U.S. 219 (1941), the Court, without discussion of this principle relating to the use of perjured testimony, sustained a California appellate court's denial of a petition for habeas corpus. The accused, after having been convicted and sentenced to death for murder, filed his petition supported by affidavits of a codefendant, who, after pleading guilty and serving as a witness for the State had received a life sentence. The latter affirmed that his testimony at the trial of the petitioner "was obtained by deceit, fraud, collusion, and coercion, and was known to the prosecutor to be false." Even though the California court had denied the petition for habeas corpus without taking oral evidence and without requiring the State to answer, the Supreme Court upheld this action on the ground that there was no adequate showing of a corrupt bargain between the prosecution and the codefendant and that the appraisal of conflicting evidence was for the Court below. Even if latter's refusal to believe the codefendant's depositions were erroneous, such error, the Court added, would not amount to a denial of due process.

[942] 317 U.S. 213, 216 (1942).

[943] 324 U.S. 760 (1945). Certiorari was denied, however, for the reason that the State court's refusal to issue the writ of habeas corpus was based upon an adequate nonfederal ground.

[944] Schwab v. Berggren, 143 U.S. 442, 448 (1802).--This statement is a dictum, however; for the issue presented by the accused's petition for a writ of habeas corpus was that the State appellate court had denied him due process in ruling on his appeal from his conviction in the absence of both the petitioner and his counsel and without notice to either as to the date of its decision. Insofar as a right to be present exists, its application, the Supreme Court maintained, is limited to courts of original jurisdiction trying criminal cases.

[945] Howard v. Kentucky, 200 U.S. 164 (1906).

[946] 201 U.S. 123, 130 (1906).

[947] 237 U.S. 309, 343 (1915).

[948] Snyder v. Massachusetts, 291 U.S. 97 (1934).

[949] Ibid. 105, 106, 107, 108, 118.--In a dissent, in which Justices Brandeis, Butler, and Sutherland concurred, Justice Roberts insisted that "it * * * [was] not a matter of assumption but a certainty * * * [that] * * * the * * * privilege of the accused to be present throughout his trial is of the very essence of due process," and, in that connection, "the great weight of authority is that" the view by the jury "forms part of the trial." Even if "the result would have been the same had the [accused] been present, still the denial of the constitutional right ought not to be condoned. * * * Nor ought this Court to convert the inquiry from one as to the denial of the right into one as to the prejudice suffered by the denial. To pivot affirmance on the question of the amount of harm done the accused is to beg the constitutional question involved. * * * The guarantee of the Fourteenth Amendment is not that a just result shall have been obtained, but that the result, whatever it be, shall be reached in a fair way."--Ibid. 130-131, 134, 136-137.

[950] 337 U.S. 241 (1949).

[951] Ibid. 246-247, 249-250.--Dissenting, Justice Murphy maintained that the use in a capital case of probation reports which "concededly [would] not have been admissible at the trial, and * * * [were] not subject to examination by the defendant, * * *" violated "the high commands of due process * * *"--Ibid. 253. Justice Rutledge dissented without an opinion.

[952] 339 U.S. 9 (1950).

[953] Ibid. 12-13.--Disagreeing, Justice Frankfurter contended that a State is "precluded by the due process clause from executing a man who has temporarily or permanently become insane"; and thus bereft of unlimited discretion as to "how it will ascertain sanity," a State "must afford rudimentary safeguards for establishing [that] fact."--Ibid. 16, 19, 21, 24-25.

[954] In re Oliver, 333 U.S. 257 (1948). On application for habeas corpus, the prisoner's commitment was reviewed by the Michigan appellate court in the light, not of the whole record, but only of fragmentary excerpts showing merely the testimony alleged to be false and evasive.

In a concurring opinion, Justice Rutledge advocated disposing of the case on the ground that the Michigan one-man grand jury system was in its entirety in conflict with the requirements of due process.

On the ground that the Michigan courts had not passed on the constitutionality of the procedure at issue, Justices Frankfurter and Jackson dissented and urged the remanding of the case. See also Gaines v. Washington, 277 U.S. 81, 85 (1928).

[955] 336 U.S. 155 (1949).

[956] Justice Douglas, with Justice Black concurring, dissented on the ground that even if "such elements of misbehavior as expression, manner of speaking, bearing, and attitude * * * [had] a contemptuous flavor. * * * freedom of speech should [not] be so readily sacrificed in a courtroom." Stressing that the trial judge penalized Fisher only for his forbidden comment and not for his behavior, and that it took a ruling of the Texas appellate court to settle the issue whether such comment was improper under Texas practice, Justice Douglas concluded that the record suggests only that "the judge picked a quarrel with this lawyer and used his high position to wreak vengeance." There having been no substantial obstruction of the trial, Justice Murphy believed that the trial judge's use of his power was inconsistent with due process; whereas Justice Rutledge, in dissenting, contended "there can be no due process in trial in the absence of calm judgment and action, untinged with anger, from the bench."--Ibid. 165-166, 167, 169.

[957] Tumey v. Ohio, 273 U.S. 510 (1927). See also Jordan v. Massachusetts, 225 U.S. 167, 176 (1912).

[958] "Unless the costs usually imposed are so small that they may be properly ignored as within the maxim de minimis non curat lex."--See Tumey v. Ohio, 273 U.S. 510, 523, 531 (1927).

[959] Dugan v. Ohio, 277 U.S. 61 (1928).

[960] Frank v. Mangum, 237 U.S. 309, 335 (1915).

[961] Moore v. Dempsey, 261 U.S. 86, 91 (1923).

[962] Thiel v. Southern Pacific Co., 328 U.S. 217 (1946). See also Fay v. New York, 332 U.S. 261 (1947), supra p. 1110. [Transcriber's Note: Reference is to Footnote 873, above.]

[963] Snyder v. Massachusetts, 291 U.S. 97, 116, 117 (1934).

[964] Lisenba v. California, 314 U.S. 219, 236 (1941).

[965] Buchalter v. New York, 319 U.S. 427, 429 (1943). The Court also declared that the due process clause did "not draw to itself the provisions of State constitutions or State laws."

[966] Powell v. Alabama, 287 U.S. 45, 68 (1932); Snyder v. Massachusetts, 291 U.S. 97, 105 (1934).

[967] Cole v. Arkansas, 333 U.S. 196, 202 (1948). See also Williams v. North Carolina, 317 U.S. 287, 292 (1942), wherein the Court also stated that where a conviction in a criminal prosecution is based upon a general verdict that does not specify the ground on which it rests, and one of the grounds upon which it may rest is invalid under the Constitution, the judgment cannot be sustained.

[968] Paterno v. Lyons, 334 U.S. 314, 320-321 (1948).

[969] McKane v. Durston, 153 U.S. 684 (1894).--The prohibition of the requirement of excessive bail, expressed in the Eighth Amendment as a restraint against the Federal Government, has never been deemed to be applicable to the States by virtue of the due process clause of the Fourteenth Amendment. However, in a recent civil suit, a United States District Court judge asserted his belief, by way of dictum, that protection against "unreasonable searches and seizures, invasion of freedom of speech and press, unlawful and unwarranted incarcerations, arrests, and failure to allow reasonable bail would all be fundamental rights protected by [the Fourteenth] Amendment from State invasion."--International Union, Etc. v. Tennessee Copper Co., 31 F. Supp. 1015 (1940).

[970] Collins v. Johnston, 237 U.S. 502, 510 (1915).--In affirming a judgment obtained by Texas in a civil suit to recover penalties for violation of its antitrust law, the Supreme Court proffered the following vague standard for determining the validity of penalties levied by States. "The fixing of punishment for crime or penalties for unlawful acts against its laws is within the police power of the State. We can only interfere with such legislation and judicial action of the States enforcing it if the fines imposed are so grossly excessive as to amount to a deprivation of property without due process of law." However, a fine of $1,600,000 levied in this case against a corporation having assets of $40,000,000 and paying out dividends as high as 700%, and which was shown to have profited from its wrong doing was not considered to be excessive.--Waters-Pierce Oil Co. v. Texas, 212 U.S. 86, 111 (1909).

[971] Graham v. West Virginia, 224 U.S. 616, 623 (1912). See also Ughbanks v. Armstrong, 208 U.S. 481, 498 (1908).

[972] 136 U.S. 436, 447-448 (1890).

[973] 329 U.S. 459 (1947).

[974] Concurring in the result, Justice Frankfurter concentrated on the problem suggested by the proposed absorption of the Bill of Rights by the due process clause of the Fourteenth Amendment, and restated his previously disclosed position as follows: "Not until recently was it suggested that the Due Process Clause of the Fourteenth Amendment was merely a compendious reference to the Bill of Rights whereby the States were now restricted in devising and enforcing their penal code precisely as is the Federal Government by the first eight amendments. On this view, the States would be confined in the enforcement of their criminal codes by those views for safeguarding the rights of the individual which were deemed necessary in the eighteenth century. Some of these safeguards have perduring validity. Some grew out of transient experience or formulated remedies which time might well improve. The Fourteenth Amendment did not mean to imprison the States into the limited experience of the eighteenth century. It did mean to withdraw from the States the right to act in ways that are offensive to a decent respect for the dignity of man, and heedless of his freedom.

"These are very broad terms by which to accommodate freedom and authority. As has been suggested * * *, they may be too large to serve as the basis for adjudication in that they allow much room for individual notions of policy. That is not our concern. The fact is that the duty of such adjudication on a basis no less narrow has been committed to this Court.

"In an impressive body of decisions this Court has decided that the Due Process Clause of the Fourteenth Amendment expresses a demand for civilized standards which are not defined by the specifically enumerated guarantees of the Bill of Rights. They neither contain the particularities of the first eight amendments nor are they confined to them. * * * Insofar as due process under the Fourteenth Amendment requires the States to observe any of the immunities 'that are as valid as against the Federal Government by force of the specific pledges of particular amendments' it does so because they 'have been found to be implicit in the concept of ordered liberty, and thus, through the Fourteenth Amendment, become valid as against the States,'" [citing Palko v. Connecticut, 302 U.S. 319, 324, 325 (1937).]--Ibid. 467-469.

Justice Burton, with whom Justices Murphy, Douglas, and Rutledge were associated, dissented on the grounds that "the proposed repeated, and at least second, application to the * * * [defendant] of an electric current sufficient to cause death is * * *, a cruel and unusual punishment violative of due process of law."--Ibid. 479.

In Solesbee v. Balkcom, 339 U.S. 9 (1950), the Court declined to intervene in case coming up from Georgia in which appellant, claiming that he had become insane following conviction and sentence of death, sought a postponement of execution from the governor of the State. Justice Frankfurter dissented, asserting that the due process clause of Amendment XIV prohibits a State from executing an insane convict.

[975] 187 U.S. 71, 86 (1902). See also Keerl v. Montana, 213 U.S. 135 (1909).

[976] 177 U.S. 155 (1900).

[977] 207 U.S. 188 (1907).

[978] Graham v. West Virginia, 224 U.S. 616, 623 (1912).

[979] 302 U.S. 319 (1937).

[980] In a lengthy dictum, Justice Cardozo, speaking for the Court, rejected the defendant's view that "Whatever would be a violation of the original bill of rights (Amendments One to Eight) if done by the federal government is now equally unlawful by force of the Fourteenth Amendment if done by a state." By a selective process of inclusion and exclusion, he conceded that "the due process clause of the Fourteenth Amendment may make it unlawful for a state to abridge by its statutes the freedom of speech which the First Amendment safeguards against encroachment by the Congress, * * * or the like freedom of the press, * * * or the free exercise of religion, * * * or the right of peaceable assembly * * *, or the right of one accused of crime to the benefit of counsel." However, insofar as such "immunities, [which] are valid as against the Federal Government by force of the specific pledges of particular amendments, have become valid as against the States," that result is attributable, not to the absorption by the due process clause of the Fourteenth Amendment of particular provisions of the Bill of Rights, but to the fact that such immunities "have been found to be implicit in the concept of ordered liberty * * *" protected by that clause.--Ibid. 323, 324-325.

[981] Justice Butler dissented without an opinion.

[982] 320 U.S. 459, 462, 463 (1947).--In line with its former ruling in Graham v. West Virginia, 224 U.S. 616 (1912), the Court reiterated in Gryger v. Burke, 334 U.S. 728 (1948), that a life sentence imposed on a fourth offender under a State habitual criminal act is a stiffened penalty for his latest offense, which is considered to be an aggravated offense because a repetitive one, and is therefore not invalid as subjecting the offender to a new jeopardy.

[983] Ex parte Hull, 312 U.S. 546 (1941).

[984] White v. Ragen, 324 U.S. 760 n. 1 (1945).

[985] McKane v. Durston, 153 U.S. 684, 687 (1894); Andrews v. Swartz 156 U.S. 272, 275 (1895); Murphy v. Massachusetts, 177 U.S. 155, 158 (1900); Reetz v. Michigan, 188 U.S. 505, 508 (1903).

[986] Thus, where on the day assigned for hearing of a writ of error, it appeared that the accused had escaped from jail, the Court, without denial of due process, could order that the writ be dismissed unless the accused surrender himself within 60 days or be captured.--Allen v. Georgia, 166 U.S. 138 (1897).

[987] Carter v. Illinois, 329 U.S. 173, 175-176 (1946).

[988] Frank v. Mangum, 237 U.S. 309 (1915).

[989] For rules of self-limitation formulated by the Court not only to minimize its opportunities for such interference but also to curtail the volume of litigation reaching it for final disposition, see p. 1109.

[990] 297 U.S. 278 (1936).

[991] 237 U.S. 309 (1915).

[992] 261 U.S. 86 (1923).

[993] Despite the court's contention that Moore v. Dempsey was disposed of in conformity with the principles enunciated in Frank v. Mangum, the two decisions are distinguishable not only by the different results reached therein, but by the fact that the State appellate court in Frank v. Mangum had ruled that the trial court had correctly concluded, on the basis of the evidence submitted, that the allegations of mob violence were unsubstantiated whereas the Arkansas appellate court, in Moore v. Dempsey, conceded a similar allegation to be correct but did not deem it sufficient to render the trial a nullity. Although in the later case, Arkansas demurred and thereby admitted the allegations supporting the habeas corpus petition to be true, that fact is a lesser significance, for even in Frank v. Mangum, the Supreme Court abided by the rule that the writ of habeas corpus relates to matters of substance and not of mere form, and declared that the petitioner's allegations should be treated as if conceded by the sheriff having custody of the petitioner.--237 U.S. 309, 332, 346 (1915).

[994] James v. Appel, 192 U.S. 129, 137 (1904); Pittsburgh, C.C. & St. L.R. Co. v. Backus, 154 U.S. 421 (1894); Standard Oil Co. v. Missouri ex rel. Hadley, 224 U.S. 270, 286 (1912); Baldwin v. Iowa State Traveling Men's Assoc., 283 U.S. 522, 524 (1931).

[995] Tracy v. Ginzberg, 205 U.S. 170 (1907); Allen v. Georgia, 166 U.S. 138, 140 (1897); Fallbrook Irrig. District v. Bradley, 164 U.S. 112, 157 (1896).

[996] Thorington v. Montgomery, 147 U.S. 490, 492 (1893).

[997] Cross v. North Carolina, 132 U.S. 131 (1889).

[998] Ballard v. Hunter, 204 U.S. 241, 258 (1907); Lyons v. Oklahoma, 322 U.S. 596 (1944); Gryger v. Burke, 334 U.S. 728 (1948).

[999] McDonald v. Oregon R. & Nav. Co., 233 U.S. 665, 670 (1914).

[1000] Caldwell v. Texas, 137 U.S. 691, 692, 698 (1891); Bergemann v. Backer, 157 U.S. 655, 656 (1895).

[1001] Rogers v. Peck, 199 U.S. 425, 435 (1905).

[1002] West v. Louisiana, 194 U.S. 258 (1904).

[1003] Chicago L. Ins. Co. v. Cherry, 244 U.S. 25, 30 (1917).

[1004] Standard Oil Co. v. Missouri ex rel. Hadley, 224 U.S. 270, 287 (1912); Patterson v. Colorado ex rel. Attorney General, 205 U.S. 454, 461 (1907); Stockholders v. Sterling, 300 U.S. 175, 182 (1937)

[1005] Virginia v. Rives, 100 U.S. 313, 318 (1880).

[1006] Minneapolis & St. L.R. Co. v. Beckwith, 129 U.S. 26, 28, 29 (1889).

[1007] Yick Wo v. Hopkins, 118 U.S. 356, 373, 374 (1886).

[1008] Snowden v. Hughes, 321 U.S. 1, 8 (1944).

[1009] Truax v. Corrigan, 257 U.S. 312 (1921).

[1010] Neal v. Delaware, 103 U.S. 370 (1881).

[1011] Shelley v. Kraemer, 334 U.S. 1 (1948).

[1012] Ibid. 19.

[1013] Missouri ex rel. Gaines v. Canada, 305 U.S. 337, 343 (1938).

[1014] Smith v. Allwright, 321 U.S. 649 (1944). Cf. Nixon v. Herndon, 273 U.S. 536 (1927); Nixon v. Condon, 286 U.S. 73 (1932); Grovey v. Townsend, 295 U.S. 45 (1938).

[1015] Slaughter-House Cases, 16 Wall. 36, 81 (1873).

[1016] Chicago, B. & Q.R. Co. v. Iowa, 94 U.S. 155 (1877); Peik v. Chicago & Northwestern R. Co., 94 U.S. 164 (1877); Chicago, M. & St. P.R. Co. v. Ackley, 94 U.S. 179 (1877); Winona & St. P.R. Co. v. Blake, 94 U.S. 180 (1877).

[1017] Santa Clara County v. Southern P.R. Co., 118 U.S. 394 (1886).

The ruling stood unchallenged until 1938 when Justice Black asserted in a dissenting opinion that "I do not believe the word 'person' in the Fourteenth Amendment includes corporations." Connecticut General Life Insurance Co. v. Johnson, 303 U.S. 77, 85 (1938). More recently Justice Douglas expressed the same view in a dissenting opinion in which Justice Black concurred. Wheeling Steel Corporation v. Glander, 337 U.S. 562, 576 (1949).

[1018] Yick Wo v. Hopkins, 118 U.S. 356, 369 (1886).

[1019] Newark v. New Jersey, 262 U.S. 192 (1923); Williams v. Baltimore, 289 U.S. 36 (1933).

[1020] Cf. Hillsborough v. Cromwell, 326 U.S. 620 (1846).

[1021] Blake v. McClung, 172 U.S. 239, 261 (1898); Sully v. American Nat. Bank, 178 U.S. 289 (1900).

[1022] Kentucky Finance Corp. v. Paramount Auto Exchange Corp., 262 U.S. 544 (1923).

[1023] Hillsborough v. Cromwell, 326 U.S. 620 (1946).

[1024] Wheeling Steel Corp. v. Glander, 337 U.S. 562 (1949); Hanover Insurance Co. v. Harding, 272 U.S. 494 (1926).

[1025] Fire Asso. of Philadelphia v. New York, 119 U.S. 110 (1886).

[1026] Yick Wo v. Hopkins, 118 U.S. 356, 369 (1886).

[1027] Barbier v. Connolly, 113 U.S. 27, 31 (1885).

[1028] Ibid. 31-32.

[1029] Truax v. Corrigan, 257 U.S. 312, 332-333 (1921).

[1030] Barrett v. Indiana, 229 U.S. 26 (1913).

[1031] Watson v. Maryland, 218 U.S. 173 (1910).

[1032] Orient Ins. Co. v. Daggs, 172 U.S. 557, 562 (1899).

[1033] Bachtel v. Wilson, 204 U.S. 36, 41 (1907). See also Frost v. Corporation Commission, 278 U.S. 515, 522 (1929); Smith v. Cahoon, 283 U.S. 553, 566-567 (1931).

[1034] Lindsley v. Natural Carbonic Gas Co., 220 U.S. 61 (1911).

[1035] Middleton v. Texas Power & Light Co., 249 U.S. 152, 157 (1919); Madden v. Kentucky, 309 U.S. 83 (1940).

[1036] Crescent Cotton Oil Co. v. Mississippi, 257 U.S. 129, 137 (1921).

[1037] West Coast Hotel Co. v. Parrish, 300 U.S. 379, 400 (1937).

[1038] Lindsley v. Natural Carbonic Gas Co., 220 U.S. 61, 81 (1911). Cf. United States v. Petrillo, 332 U.S. 1, 8 (1947).

[1039] Dominion Hotel v. Arizona, 249 U.S. 265, 268 (1919).

[1040] West Coast Hotel v. Parrish, 300 U.S. 379, 400 (1937).

[1041] Dominion Hotel v. Arizona, 249 U.S. 265, 268 (1919).

[1042] Watson v. Maryland, 218 U.S. 173, 179 (1910).

[1043] Phelps v. Board of Education, 300 U.S. 319, 324 (1937).

[1044] Chicago Dock & Canal Co. v. Fraley, 228 U.S. 680, 687 (1913).

[1045] Davidson v. New Orleans, 96 U.S. 97, 106 (1878).

[1046] Fire Asso. of Philadelphia v. New York, 119 U.S. 110 (1886); Santa Clara County v. Southern P.R. Co., 118 U.S. 394 (1886).

[1047] Bell's Gap R. Co. v. Pennsylvania, 134 U.S. 232, 237 (1890). (Emphasis supplied.)

[1048] Louisville Gas & E. Co. v. Coleman, 277 U.S. 32, 37 (1928).

Classification for purposes of taxation has been held valid in the following situations:

Banks: a heavier tax on banks which make loans mainly from money of depositors than on other financial institutions which make loans mainly from money supplied otherwise than by deposits. First Nat. Bank v. Louisiana Tax Commission, 289 U.S. 60 (1933).

Bank deposits: a tax of 50c per $100 on deposits in banks outside a State in contrast with a rate of 10c per $100 on deposits in the State. Madden v. Kentucky, 309 U.S. 83 (1940).

Coal: a tax of 2-1/2 percent on anthracite but not on bituminous coal. Heisler v. Thomas Colliery Co., 260 U.S. 245 (1922).

Gasoline: a graduated severance tax on oils sold primarily for their gasoline content, measured by resort to Baume gravity. Ohio Oil Co. v. Conway, 281 U.S. 146 (1930).

Chain stores: a privilege tax graduated according to the number of stores maintained, State Tax Comr's. v. Jackson, 283 U.S. 527 (1931); Fox v. Standard Oil Co., 294 U.S. 87 (1935); a license tax based on the number of stores both within and without the State, Great A. & P. Tea Co. v. Grosjean, 301 U.S. 412 (1937).

Electricity: municipal systems may be exempted, Puget Sound Power & Light Co. v. Seattle, 291 U.S. 619 (1934); that portion of electricity produced which is used for pumping water for irrigating lands may be exempted, Utah Power & Light Co. v. Pfost, 286 U.S. 165 (1932).

Insurance companies: license tax measured by gross receipts upon domestic life insurance companies from which fraternal societies having lodge organizations and insuring lives of members only are exempt, and similar foreign corporations are subject to a fixed and comparatively slight fee for the privilege of doing local business of the same kind. Northwestern Mutual L. Ins. Co. v. Wisconsin, 247 U.S. 132 (1918).

Oleomargarine: classified separately from butter. Magnano Co. v. Hamilton, 292 U.S. 40 (1934).

Peddlers: classified separately from other vendors. Caskey Baking Co. v. Virginia, 313 U.S. 117 (1941).

Public utilities: a gross receipts tax at a higher rate for railroads than for other public utilities, Ohio Tax Cases, 232 U.S. 576 (1914); a gasoline storage tax which places a heavier burden upon railroads than upon common carriers by bus, Nashville C. & St. L. Co. v. Wallace, 288 U.S. 249 (1933); a tax on railroads measured by gross earnings from local operations, as applied to a railroad which received a larger net income than others from the local activity of renting, and borrowing cars, Illinois Central R. Co. v. Minnesota, 309 U.S. 157 (1940); a gross receipts tax applicable only to public utilities, including carriers, the proceeds of which are used for relieving the unemployed, New York Rapid Transit Corp. v. New York, 303 U.S. 573 (1938).

Wine: exemption of wine from grapes grown in the State while in the hands of the producer. Cox v. Texas, 202 U.S. 446 (1906).

Laws imposing miscellaneous license fees have been upheld as follows:

Cigarette dealers: taxing retailers and not wholesalers. Cook v. Marshall County, 196 U.S. 261 (1905).

Commission merchants: requirements that dealers in farm products on commission procure a license, Payne v. Kansas, 248 U.S. 112 (1918).

Elevators and warehouses: license limited to certain elevators and warehouses on right-of-way of railroad, Cargill Co. v. Minnesota, 180 U.S. 452 (1901); a license tax applicable only to commercial warehouses where no other commercial warehousing facilities in township subject to tax, Independent Warehouse Inc. v. Scheele, 331 U.S. 70 (1947).

Laundries: exemption from license tax of steam laundries and women engaged in the laundry business where not more than two women are employed. Quong Wing v. Kirkendall, 223 U.S. 59 (1912).

Merchants: exemption from license tax measured by amount of purchases, of manufacturers within the State selling their own product. Armour & Co. v. Virginia, 246 U.S. 1 (1918).

Sugar refineries: exemption from license applicable to refiners of sugar and molasses of planters and farmers grinding and refining their own sugar and molasses. American Sugar Refining Co. v. Louisiana, 179 U.S. 89 (1900).

Theaters: license graded according to price of admission. Metropolis Theatre Co. v. Chicago, 228 U.S. 61 (1913).

Wholesalers of oil: occupation tax on wholesalers in oil not applicable to wholesalers in other products. Southwestern Oil Co. v. Texas, 217 U.S. 114 (1910).

[1049] Bell's Gap R. Co. v. Pennsylvania, 134 U.S. 232, 237 (1890).

[1050] Quong Wing v. Kirkendall, 223 U.S. 59, 62 (1912). See also Hammond Packing Co. v. Montana, 233 U.S. 331 (1914).

[1051] Puget Sound Power & Light Co. v. Seattle, 291 U.S. 619, 625 (1934).

[1052] Colgate v. Harvey, 296 U.S. 404, 422 (1935).

[1053] Southern R. Co. v. Greene, 216 U.S. 400, 417 (1910); Quaker City Cab Co. v. Pennsylvania, 277 U.S. 389, 400 (1928).

[1054] Keeney v. New York, 222 U.S. 525, 536 (1912); State Tax Comrs. v. Jackson, 283 U.S. 527, 538 (1931).

[1055] Giozza v. Tiernan, 148 U.S. 657, 662 (1893).

[1056] Louisville Gas & E. Co. v. Coleman, 277 U.S. 32, 37 (1928). See also Bell's Gap R. Co. v. Pennsylvania, 134 U.S. 232, 237 (1890).

[1057] Stewart Dry Goods Co. v. Lewis, 294 U.S. 550 (1935). See also Valentine v. Great A. & P. Tea Co., 299 U.S. 32 (1936).

[1058] Liggett Co. v. Lee, 288 U.S. 517 (1933).

[1059] Quaker City Cab Co. v. Pennsylvania, 277 U.S. 389 (1928).

[1060] State Tax Comrs. v. Jackson, 283 U.S. 527, 537 (1931).

[1061] Colgate v. Harvey, 296 U.S. 404, 422 (1935).

[1062] Darnell v. Indiana, 226 U.S. 390, 398 (1912); Farmers & M. Sav. Bank v. Minnesota, 232 U.S. 516, 531 (1914).

[1063] Morf v. Bingaman, 298 U.S. 407, 413 (1936).

[1064] Baltic Min. Co. v. Massachusetts, 231 U.S. 68, 88 (1913). See also Cheney Bros. Co. v. Massachusetts, 246 U.S. 147, 157 (1918).

[1065] Fire Asso. of Philadelphia v. New York, 119 U.S. 110, 119 (1886).

[1066] Hanover F. Ins. Co. v. Harding, 272 U.S. 494, 511 (1926).

[1067] Southern R. Co. v. Greene, 216 U.S. 400, 418 (1910).

[1068] Concordia F. Ins. Co. v. Illinois, 292 U.S. 535 (1934).

[1069] Lincoln Nat. Life Ins. Co. v. Read, 325 U.S. 673 (1945).

[1070] Wheeling Steel Corp. v. Glander, 337 U.S. 562, 571, 572 (1949).

[1071] Royster Guano Co. v. Virginia, 253 U.S. 412 (1920).

[1072] Shaffer v. Carter, 252 U.S. 37, 56, 57 (1920); Travis v. Yale & T. Mfg. Co., 252 U.S. 60, 75, 76 (1920).

[1073] Welch v. Henry, 305 U.S. 134 (1938).

[1074] Magoun v. Illinois Trust & Sav. Bank, 170 U.S. 283, 288, 300 (1898).

[1075] Billings v. Illinois, 188 U.S. 97 (1903).

[1076] Campbell v. California, 200 U.S. 87 (1906).

[1077] Salomon v. State Tax Commission, 278 U.S. 484 (1929).

[1078] Board of Education v. Illinois, 203 U.S. 553 (1906).

[1079] Maxwell v. Bugbee, 250 U.S. 525 (1919).

[1080] Continental Baking Co. v. Woodring, 286 U.S. 352 (1932).

[1081] Dixie Ohio Express Co. v. State Revenue Commission, 306 U.S. 72, 78 (1939).

[1082] Alward v. Johnson, 282 U.S. 509 (1931).

[1083] Bekins Van Lines v. Riley, 280 U.S. 80 (1929).

[1084] Morf v. Bingaman, 298 U.S. 407 (1936).

[1085] Clark v. Paul Gray, Inc., 306 U.S. 583 (1939).

[1086] Carley & Hamilton v. Snook, 281 U.S. 66 (1930).

[1087] Aero Mayflower Transit Co. v. Georgia Pub. Serv. Commission, 295 U.S. 285 (1935).

[1088] Breedlove v. Suttles, 302 U.S. 277 (1937).

[1089] Royster Guano Co. v. Virginia, 253 U.S. 412, 415 (1920).

[1090] Missouri v. Dockery, 191 U.S. 165 (1903).

[1091] Kentucky Union Co. v. Kentucky, 219 U.S. 140, 161 (1911).

[1092] Sunday Lake Iron Co. v. Wakefield Twp., 247 U.S. 350 (1918); Raymond v. Chicago Union Traction Co., 207 U.S. 20, 35, 37 (1907).

[1093] Coulter v. Louisville & N.R. Co., 196 U.S. 599 (1905). See also Chicago, B. & Q.R. Co. v. Babcock, 204 U.S. 585 (1907).

[1094] Charleston Assn. v. Alderson, 324 U.S. 182 (1945). Nashville, C. & St. L. Ry. v. Browning, 310 U.S. 362 (1940).

[1095] Sioux City Bridge Co. v. Dakota County, 260 U.S. 441, 446 (1923).

[1096] Hillsborough v. Cromwell, 326 U.S. 620, 623 (1946).

[1097] St. Louis-San Francisco R. Co. v. Middlekamp, 256 U.S. 226, 230 (1921).

[1098] Memphis & C.R. Co. v. Pace, 282 U.S. 241 (1931).

[1099] Kansas City Southern R. Co. v. Road Improv. Dist., 256 U.S. 658 (1921); Thomas v. Kansas City Southern R. Co., 261 U.S. 481 (1923).

[1100] Road Improv. Dist. v. Missouri P.R. Co., 274 U.S. 188 (1927).

[1101] Branson v. Bush, 251 U.S. 182 (1919).

[1102] Columbus & G.R. Co. v. Miller, 283 U.S. 96 (1931).

[1103] Buck v. Bell, 274 U.S. 200, 208 (1927).

[1104] Classifications under police regulations have been held valid in the following situations:

Advertising: discrimination between billboard and newspaper advertising of cigarettes, Packer Corp. v. Utah, 285 U.S. 105 (1932); prohibition of advertising signs on motor vehicles, except when used in the usual business of the owner, and not used mainly for advertising, Fifth Ave. Coach Co. v. New York, 221 U.S. 467 (1911); prohibition of advertising on motor vehicles except notices or advertising of products of the owner, Railway Express Inc. v. New York, 336 U.S. 106 (1949); prohibition against sale of articles on which there is a representation of the flag for advertising purposes, except newspapers, periodicals and books; Halter v. Nebraska, 205 U.S. 34 (1907).

Amusement: prohibition against keeping billiard halls for hire, except in case of hotels having twenty-five or more rooms for use of regular guests. Murphy v. California, 225 U.S. 623 (1912).

Barber shops: a law forbidding Sunday labor except works of necessity or charity, and specifically forbidding the keeping open of barber shops. Petit v. Minnesota, 177 U.S. 164 (1900).

Cattle: a classification of sheep, as distinguished from cattle, in a regulation restricting the use of public lands for grazing. Bacon v. Walker, 204 U.S. 311 (1907). See also Omaechevarria v. Idaho, 246 U.S. 343 (1918).

Cotton gins: in a State where cotton gins are held to be public utilities and their rates regulated, the granting of a license to a cooperative association distributing profits ratably to members and nonmembers does not deny other persons operating gins equal protection when there is nothing in the laws to forbid them to distribute their net earnings among their patrons. Corporations Commission v. Lowe, 281 U.S. 431 (1930).

Fish processing: stricter regulation of reduction of fish to flour or meal than of canning. Bayside Fish Flour Co. v. Gentry, 297 U.S. 422 (1936).

Food: bread sold in loaves must be of prescribed standard sizes, Schmidinger v. Chicago, 226 U.S. 578 (1913); food preservatives containing boric acid may not be sold, Price v. Illinois, 238 U.S. 446 (1915); lard not sold in bulk must be put up in containers holding one, three or five pounds or some whole multiple thereof, Armour & Co. v. North Dakota, 240 U.S. 510 (1916); milk industry may be placed in a special class for regulation, New York ex rel. Lieberman v. Van De Carr, 199 U.S. 552 (1905); vendors producing milk outside city may be classified separately, Adams v. Milwaukee, 228 U.S. 572 (1913); producing and nonproducing vendors may be distinguished in milk regulations, St. John v. New York, 201 U.S. 633 (1906); different minimum and maximum milk prices may be fixed for distributors and storekeepers; Nebbia v. New York, 291 U.S. 502 (1934); price differential may be granted for sellers of milk not having a well advertised trade name, Borden's Farm Products Co. v. Ten Eyck, 297 U.S. 251 (1936); oleomargarine colored to resemble butter may be prohibited, Capital City Dairy Co. v. Ohio ex rel. Attorney General, 183 U.S. 238 (1902); table syrups may be required to be so labelled and disclose identity and proportion of ingredients, Corn Products Ref. Co. v. Eddy, 249 U.S. 427 (1919).

Geographical discriminations: legislation limited in application to a particular geographical or political subdivision of a State, Ft. Smith Light & Traction Co. v. Board of Improvement, 274 U.S. 387, 391 (1927); ordinance prohibiting a particular business in certain sections of a municipality, Hadacheck v. Sebastian, 239 U.S. 394 (1915); statute authorizing a municipal commission to limit the height of buildings in commercial districts to 125 feet and in other districts to 80 to 100 feet, Welch v. Swasey, 214 U.S. 91 (1909); ordinance prescribing limits in city outside of which no woman of lewd character shall dwell, L'Hote v. New Orleans, 177 U.S. 587, 595 (1900).

Hotels: requirement that keepers of hotels having over fifty guests employ night watchmen. Miller v. Strahl, 239 U.S. 426 (1915).

Insurance companies: regulation of fire insurance rates with exemption for farmers mutuals, German Alliance Ins. Co. v. Lewis, 233 U.S. 389 (1914); different requirements imposed upon reciprocal insurance associations than upon mutual companies, Hoopeston Canning Co. v. Cullen, 318 U.S. 313 (1943); prohibition against life insurance companies or agents engaging in undertaking business, Daniel v. Family Ins. Co., 336 U.S. 220 (1949).

Intoxicating liquors: exception of druggists or manufacturers from regulation. Ohio ex rel. Lloyd v. Dollison, 194 U.S. 445 (1904); Eberle v. Michigan, 232 U.S. 700 (1914).

Lodging houses: requirement that sprinkler systems be installed in buildings of nonfireproof construction is valid as applied to such a building which is safeguarded by a fire alarm system, constant watchman service and other safety arrangements. Queenside Hills Realty Co. v. Saxl, 328 U.S. 80 (1946).

Markets: prohibition against operation of private market within six squares of public market. Natal v. Louisiana, 139 U.S. 621 (1891).

Medicine: a uniform standard of professional attainment and conduct for all physicians, Missouri ex rel. Hurwitz v. North, 271 U.S. 40 (1926); reasonable exemptions from medical registration law, Watson v. Maryland, 218 U.S. 173 (1910); exemption of persons who heal by prayer from regulations applicable to drugless physicians, Crane v. Johnson, 242 U.S. 339 (1917); exclusion of osteopathic physicians from public hospitals, Hayman v. Galveston, 273 U.S. 414 (1927); requirement that persons who treat eyes without use of drugs be licensed as optometrists with exception for persons treating eyes by the use of drugs, who are regulated under a different statute, McNaughton v. Johnson, 242 U.S. 344 (1917); a prohibition against advertising by dentists, not applicable to other professions, Semler v. Oregon State Dental Examiners, 294 U.S. 608 (1935).

Motor vehicles: guest passenger regulation applicable to automobiles but not to other classes of vehicles, Silver v. Silver, 280 U.S. 117 (1929); exemption of vehicles from other States from registration requirement, Storaasli v. Minnesota, 283 U.S. 57 (1931); classification of driverless automobiles for hire as public vehicles, which are required to procure a license and to carry liability insurance, Hodge Drive-It-Yourself Co. v. Cincinnati, 284 U.S. 335 (1932); exemption from limitations on hours of labor for drivers of motor vehicles of carriers of property for hire, of those not principally engaged in transport of property for hire, and carriers operating wholly in metropolitan areas, Welch Co. v. New Hampshire, 306 U.S. 79 (1939); exemption of busses and temporary movements of farm implements and machinery and trucks making short hauls from common carriers from limitations in net load and length of trucks, Sproles v. Binford, 286 U.S. 374 (1932); prohibition against operation of uncertified carriers, Bradley v. Public Utilities Commission, 289 U.S. 92 (1933); exemption from regulations affecting carriers for hire, of persons whose chief business is farming and dairying, but who occasionally haul farm and dairy products for compensation, Hicklin v. Coney, 290 U.S. 169 (1933); exemption of private vehicles, street cars and omnibuses from insurance requirements applicable to taxicabs, Packard v. Banton, 264 U.S. 140 (1924).

Peddlers and solicitors: a State may classify and regulate itinerant vendors and peddlers, Emert v. Missouri, 156 U.S. 296 (1895); may forbid the sale by them of drugs and medicines, Baccus v. Louisiana, 232 U.S. 334 (1914); prohibit drumming or soliciting on trains for business for hotels, medical practitioners, etc., Williams v. Arkansas, 217 U.S. 79 (1910); or solicitation of employment to prosecute or collect claims, McCloskey v. Tobin, 252 U.S. 107 (1920). And a municipality may prohibit canvassers or peddlers from calling at private residences unless requested or invited by the occupant to do so. Breard v. Alexandria, 341 U.S. 622 (1951).

Property destruction: destruction of cedar trees to protect apple orchards from cedar rust. Miller v. Schoene, 276 U.S. 272 (1928).

Railroads: forbid operation on a certain street, Richmond, F. & P.R. Co. v. Richmond, 96 U.S. 521 (1878); require fences and cattle guards and allowed recovery of multiple damages for failure to comply, Missouri P.R. Co. v. Humes, 115 U.S. 512 (1885); Minneapolis & St. L.R. Co. v. Beckwith, 129 U.S. 26 (1889); Minneapolis & St. L.R. Co. v. Emmons, 149 U.S. 364 (1893); charge them with entire expense of altering a grade crossing, New York & N.E.R. Co. v. Bristol, 151 U.S. 556 (1894); makes them responsible for fire communicated by their engines, St. Louis & S.F.R. Co. v. Mathews, 165 U.S. 1 (1897); requires cutting of certain weeds, Missouri, K. & T.R. Co. v. May, 194 U.S. 267 (1904); create a presumption against a railroad failing to give prescribed warning signals, Atlantic Coast Line R. Co. v. Ford, 287 U.S. 502 (1933); require use of locomotive headlights of a specified form and power, Atlantic Coast Line R. Co. v. Georgia, 234 U.S. 280 (1914); make railroads liable for damage caused by operation of their locomotives, unless they make it appear that their agents exercised all ordinary and reasonable care and diligence, Seaboard Air Line R. Co. v. Watson, 287 U.S. 86 (1932); require sprinkling of streets between tracks to lay the dust, Pacific Gas & Electric Co. v. Police Court, 251 U.S. 22 (1919).

Sales in bulk: requirement of notice of bulk sale applicable only to retail dealers. Lemieux v. Young, 211 U.S. 489 (1909).

Secret societies: regulations applied only to one class of oath-bound associations, having a membership of 20 or more persons, where the class regulated has a tendency to make the secrecy of its purpose and membership a cloak for conduct inimical to the personal rights of others and to the public welfare. New York ex rel. Bryant v. Zimmerman, 278 U.S. 63 (1928).

Securities: a prohibition on the sale of capital stock on margin or for future delivery which is not applicable to other objects of speculation, e.g., cotton, grain. Otis v. Parker, 187 U.S. 606 (1903).

Syndicalism: a criminal syndicalism statute does not deny equal protection in penalizing those who advocate a resort to violent and unlawful methods as a means of changing industrial and political conditions while not penalizing those who advocate resort to such methods for maintaining such conditions. Whitney v. California, 274 U.S. 357 (1927).

Telegraph companies: a statute prohibiting stipulation against liability for negligence in the delivery of interstate message, which did not forbid express companies and other common carriers to limit their liability by contract. Western Union Teleg. Co. v. Commercial Milling Co., 218 U.S. 406 (1910).

[1105] Hartford Steam Boiler Inspection & Ins. Co. v. Harrison, 301 U.S. 459 (1937).

[1106] Smith v. Cahoon, 283 U.S. 553 (1931).

[1107] Mayflower Farms v. Ten Eyck, 297 U.S. 266 (1936).

[1108] Buck v. Bell, 274 U.S. 200 (1927).

[1109] Skinner v. Oklahoma, 316 U.S. 535 (1942).

[1110] Yick Wo v. Hopkins, 118 U.S. 356 (1886).

[1111] Fisher v. St. Louis, 194 U.S. 361 (1904).

[1112] Gorieb v. Fox, 274 U.S. 603 (1927).

[1113] Wilson v. Eureka City, 173 U.S. 32 (1899).

[1114] Gundling v. Chicago, 177 U.S. 183 (1900).

[1115] Kotch v. Pilot Comm'rs., 330 U.S. 552 (1947).

[1116] Yick Wo v. Hopkins, 118 U.S. 356 (1886). Cf. Hirabayashi v. United States, 320 U.S. 81 (1943), where the Court sustained the relocation of American citizens of Japanese ancestry on the ground that in this case the fact of origin might reasonably be deemed to have some substantial relation to national security. It was careful to point out however, that normally distinctions based on race or national origin are invidious and hence void.

[1117] Ohio ex rel. Clarke v. Deckebach, 274 U.S. 392 (1927).

[1118] Patsone v. Pennsylvania, 232 U.S. 138 (1914).

[1119] Heim v. McCall, 239 U.S. 175 (1915); Crane v. New York, 239 U.S. 195 (1915).

[1120] Truax v. Raich, 239 U.S. 33 (1915).

[1121] Takahashi v. Fish & Game Comm'n., 334 U.S. 410 (1948).

[1122] Terrace v. Thompson, 263 U.S. 197 (1923).

[1123] 332 U.S. 633 (1948).

[1124] Ibid. 647, 650.

[1125] Holden v. Hardy, 169 U.S. 366 (1898).

[1126] Bunting v. Oregon, 243 U.S. 426 (1917).

[1127] Atkin v. Kansas, 191 U.S. 207 (1903).

[1128] Keokee Consol. Coke Co. v. Taylor, 234 U.S. 224 (1914); see also Knoxville Iron Co. v. Harbison, 183 U.S. 13 (1901).

[1129] McLean v. Arkansas, 211 U.S. 539 (1909).

[1130] Prudential Insurance Co. v. Cheek, 259 U.S. 530 (1922).

[1131] Chicago, R.I. & P.R. Co. v. Perry, 259 U.S. 548 (1922).

[1132] Mountain Timber Co. v. Washington, 243 U.S. 219 (1917).

[1133] New York C.R. Co. v. White, 243 U.S. 188 (1917); Middleton v. Texas Power & Light Co., 249 U.S. 152 (1919); Ward & Gow v. Krinsky, 259 U.S. 503 (1922).

[1134] Lincoln Federal Labor Union v. Northwestern Co., 335 U.S. 525 (1949).

[1135] Miller v. Wilson, 236 U.S. 373 (1915); Bosley v. McLaughlin, 236 U.S. 385 (1915).

[1136] Muller v. Oregon, 208 U.S. 412 (1908).

[1137] Dominion Hotel v. Arizona, 249 U.S. 265 (1919).

[1138] Radice v. New York, 264 U.S. 292 (1924).

[1139] West Coast Hotel Co. v. Parrish, 300 U.S. 379 (1937); overruling Adkins v. Children's Hospital, 261 U.S. 525 (1923); and Morehead v. Tipaldo, 298 U.S. 587 (1936).

[1140] Goesaert v. Cleary, 335 U.S. 464 (1948).

[1141] Ibid. 466.

[1142] Mallinckrodt Chemical Works v. Missouri ex rel. Jones, 238 U.S. 41 (1915).

[1143] International Harvester Co. v. Missouri ex rel. Atty. Gen., 234 U.S. 199 (1914).

[1144] Tigner v. Texas, 310 U.S. 141 (1940), overruling Connolly v. Union Sewer Pipe Co., 184 U.S. 540 (1902).

[1145] Standard Oil Co. v. Tennessee ex rel. Cates, 217 U.S. 413 (1910).

[1146] Carroll v. Greenwich Ins. Co., 199 U.S. 401 (1905).

[1147] Pacific States Box & Basket Co. v. White, 296 U.S. 176 (1935). See also Slaughter-House Cases, 16 Wall. 36 (1873); Nebbia v. New York, 291 U.S. 502, 529 (1934).

[1148] Pace v. Alabama, 106 U.S. 583 (1883).

[1149] Collins v. Johnston, 237 U.S. 502, 510 (1915); Pennsylvania ex rel. Sullivan v. Ashe, 302 U.S. 51 (1937).

[1150] McDonald v. Massachusetts, 180 U.S. 311 (1901). See also Moore v. Missouri, 159 U.S. 673 (1895); Graham v. West Virginia, 224 U.S. 616 (1912).

[1151] Carlesi v. New York, 233 U.S. 51 (1914).

[1152] Ughbanks v. Armstrong, 208 U.S. 481 (1908).

[1153] Pennsylvania ex rel. Sullivan v. Ashe, 302 U.S. 51 (1937).

[1154] Finley v. California, 222 U.S. 28 (1911).

[1155] Minnesota v. Probate Court, 309 U.S. 270 (1940).

[1156] Pace v. Alabama, 106 U.S. 583 (1883).

[1157] Francis v. Resweber, 329 U.S. 459 (1947).

[1158] Skinner v. Oklahoma, 316 U.S. 535 (1942). Cf. Buck v. Bell, 274 U.S. 200 (1927). (Sterilization of defectives.)

[1159] Buchanan v. Warley, 245 U.S. 60 (1917).

[1160] Corrigan v. Buckley, 271 U.S. 323 (1926).

[1161] Shelley v. Kraemer, 334 U.S. 1 (1948). Cf. Hurd v. Hodge, 334 U.S. 24 (1948), where the Court held that a restrictive covenant was unenforceable in the Federal Court of the District of Columbia for reasons of public policy.

[1162] Plessy v. Ferguson, 163 U.S. 537 (1896). Cf. Morgan v. Virginia, 328 U.S. 373 (1946), where a State statute requiring segregation of passengers on interstate journeys was held to be an unlawful restriction on interstate commerce. See also Hall v. De Cuir, 95 U.S. 485 (1878), where a State law forbidding steamboats on the Mississippi to segregate passengers according to race was held unconstitutional under the commerce clause, and Bob-Lo Excursion Co. v. Michigan, 333 U.S. 28 (1948), where a Michigan statute forbidding discrimination was held valid as applied to an excursion boat operating on the Detroit River; and Henderson v. United States, 339 U.S. 816 (1950), where segregation in a dining car operated by an interstate railroad was held to violate a federal statute.

[1163] McCabe v. Atchison, T. & S.F.R. Co., 235 U.S. 151 (1914).

[1164] Cumming v. County Board of Education, 175 U.S. 528 (1899).

[1165] Gong Lum v. Rice, 275 U.S. 78 (1927).

[1166] 305 U.S. 337 (1938).

[1167] Sipuel v. Oklahoma, 332 U.S. 631 (1948).

[1168] Fisher v. Hurst, 333 U.S. 147 (1948).

[1169] 339 U.S. 629 (1950).

[1170] 339 U.S. 637 (1950).

The "Separate but Equal" Doctrine took its rise in Chief Justice Shaw's opinion in Roberts v. City of Boston, 59 Mass. 198, 200 (1849), for an excellent account of which see the article by Leonard W. Levy and Harlan B. Phillips in 56 American Historical Review, 510-518 (April, 1951). See also Judge Danforth's opinion in Gallagher v. King, 93 N.Y. 438 (1883).

In a case in which Negro children brought a suit in the Federal District Court for the Eastern District of South Carolina, to enjoin certain school officials from making any distinctions based upon race or color in providing educational facilities, the court found that statutes of South Carolina which required separate schools for the two races did not of themselves violate the Fourteenth Amendment, but ordered the school officials to proceed at once to furnish equal educational facilities and to report to the court within six months as to the action taken. On appeal to the Supreme Court the case was remanded for further proceedings in order that the Supreme Court may "have the benefit of the views of the District Court upon the additional facts brought to the attention of that court in the report which it ordered." Briggs v. Elliott, 342 U.S. 350, 351 (1952).

Recently, the Fourth United States Circuit Court of Appeals, sitting at Richmond, ruled that Negroes must be admitted to the white University of North Carolina Law School in terms which flatly rejected the thesis of separate but equal facilities. "It is a definite handicap to the colored student to confine his association in the Law School with people of his own class," said the opinion of Judge Morris A. Soper.--McKissick v. Carmichael, 187 F. 2d 949, 952 (1951).

[1171] Guinn v. United States, 238 U.S. 347 (1915).

[1172] Williams v. Mississippi, 170 U.S. 213 (1898).

[1173] Giles v. Harris, 189 U.S. 475, 486 (1903).

[1174] Lane v. Wilson, 307 U.S. 268, 275 (1939).

[1175] See p. 1141, ante.

[1176] Nixon v. Herndon, 273 U.S. 536 (1927).

[1177] Nixon v. Condon, 286 U.S. 73, 89 (1932).

[1178] Grovey v. Townsend, 295 U.S. 45 (1935).

[1179] United States v. Classic, 313 U.S. 299 (1941).

[1180] 321 U.S. 649 (1944).

[1181] Pope v. Williams, 193 U.S. 621 (1904).

[1182] 321 U.S. 1 (1944).

[1183] 328 U.S. 549, 566 (1946). Justice Black dissented on the ground that the equal protection clause was violated.

[1184] 335 U.S. 281, 287, 288 (1948). Justice Douglas, with whom Justices Black and Murphy concurred, dissented saying that the statute lacked "the equality to which the exercise of political rights is entitled under the Fourteenth Amendment."

[1185] South v. Peters, 339 U.S. 276 (1950).

[1186] Dohany v. Rogers, 281 U.S. 362, 369 (1930).

[1187] Hayes v. Missouri, 120 U.S. 68 (1887).

[1188] Hardware Dealers Mut. F. Ins. Co. v. Glidden Co., 284 U.S. 151 (1931).

[1189] Lindsley v. Natural Carbonic Gas Co., 220 U.S. 61, 81, 82 (1911); see also Mobile, J. & K.C.R. Co. v. Turnipseed, 219 U.S. 35 (1910); Adams v. New York, 192 U.S. 585 (1904).

[1190] Cohen v. Beneficial Loan Corp., 337 U.S. 541, 552 (1949).

[1191] Bowman v. Lewis, 101 U.S. 22, 30 (1880). See also Duncan v. Missouri, 152 U.S. 377 (1894); Ohio ex rel. Bryant v. Akron Metropolitan Park Dist, 281 U.S. 74 (1930).

[1192] Mallett v. North Carolina, 181 U.S. 589 (1901); see also Bowman v. Lewis, 101 U.S. 22, 30 (1880).

[1193] Truax v. Corrigan, 257 U.S. 312 (1921).

[1194] Cochran v. Kansas, 316 U.S. 255 (1942).

[1195] Bain Peanut Co. v. Pinson, 282 U.S. 499 (1931).

[1196] Consolidated Rendering Co. v. Vermont, 207 U.S. 541 (1908). See also Hammond Packing Co. v. Arkansas, 212 U.S. 322 (1909).

[1197] Power Mfg. Co. v. Saunders, 274 U.S. 490 (1927).

[1198] Kentucky Finance Corp. v. Paramount Auto Exch. Corp., 262 U.S. 544 (1923).

[1199] Fidelity Mut. Life Asso. v. Mettler, 185 U.S. 308, 325 (1902). See also Manhattan L. Ins. Co. v. Cohen, 234 U.S. 123 (1914).

[1200] Lowe v. Kansas, 163 U.S. 81 (1896).

[1201] Missouri, K. & T.R. Co. v. Cade, 233 U.S. 642 (1914); see also Missouri, K. & T.R. Co. v. Harris, 234 U.S. 412 (1914).

[1202] Missouri P.R. Co. v. Larabee, 234 U.S. 459 (1914).

[1203] Atchison, T. & S.F.R. Co. v. Matthews, 174 U.S. 96 (1899).

[1204] Gulf, C. & S.F.R. Co. v. Ellis, 165 U.S. 150 (1897). See also Atchison, T. & S.F.R. Co. v. Vosburg, 238 U.S. 56 (1915).

[1205] 18 Stat. 336 (1875); 8 U.S.C. Sec. 44 (1946).

[1206] Cassell v. Texas, 339 U.S. 282 (1950); Hill v. Texas, 316 U.S. 400, 404 (1942); Smith v. Texas, 311 U.S. 128 (1940); Pierre v. Louisiana, 306 U.S. 354 (1939); Virginia v. Rives, 100 U.S. 313 (1880).

[1207] Virginia v. Rives, 100 U.S. 313, 322, 323 (1880).

[1208] Akins v. Texas, 325 U.S. 398, 403 (1945).

[1209] Patton v. Mississippi, 332 U.S. 463 (1947). See also Shepherd v. Florida, 341 U.S. 50 (1951).

[1210] Gibson v. Mississippi, 162 U.S. 565 (1896).

[1211] Rawlins v. Georgia, 201 U.S. 638 (1906).

[1212] 332 U.S. 261 (1947).

In an interesting footnote to his opinion, Justice Jackson asserted that "it is unnecessary to decide whether the equal protection clause of the Fourteenth Amendment might of its own force prohibit discrimination on account of race in the selection of jurors, so that such discrimination would violate the due process clause of the same Amendment." Ibid. 284. Earlier cases dealing with racial discrimination have indicated that the discrimination was forbidden by the equal protection clause as well as by the Civil Rights Act of 1875. See cases cited to the preceding paragraph. [Transcriber's Note: Reference is to Section "Selection of Jury", above.]

[1213] Ibid. 285.

[1214] Ibid. 270, 271.

[1215] Ibid. 291.

[1216] Ibid. 288, 289, 299, 300. Four Justices, speaking by Justice Murphy dissented, saying: "The proof here is adequate enough to demonstrate that this panel, like every discriminatorily selected 'blue ribbon' panel, suffers from a constitutional infirmity. That infirmity is the denial of equal protection to those who are tried by a jury drawn from a 'blue ribbon' panel. Such a panel is narrower and different from that used in forming juries to try the vast majority of other accused persons. To the extent of that difference, therefore, the persons tried by 'blue ribbon' juries receive unequal protection." "In addition, as illustrated in this case, the distinction that is drawn in fact between 'blue ribbon' jurors and general jurors is often of such a character as to destroy the representative nature of the 'blue ribbon' panel. There is no constitutional right to a jury drawn from a group of uneducated and unintelligent persons. Nor is there any right to a jury chosen solely from those at the lower end of the economic and social scale. But there is a constitutional right to a jury drawn from a group which represents a cross-section of the community. And a cross-section of the community includes persons with varying degrees of training and intelligence and with varying economic and social positions. Under our Constitution, the jury is not to be made the representative of the most intelligent, the most wealthy or the most successful, nor of the least intelligent, the least wealthy or the least successful. It is a democratic institution, representative of all qualified classes of people. * * * To the extent that a 'blue ribbon' panel fails to reflect this democratic principle, it is constitutionally defective."

[1217] 112 U.S. 94, 102 (1884).

[1218] W.G. Rice, Esq., Jr., University of Wisconsin Law School, The Position of the American Indian in the Law of the United States, 16 Journal of Comp. Leg. 78, 80 (1934).

[1219] 39 Op. Atty. Gen. 518, 519.

[1220] 46 Stat. 26; 55 Stat. 761; 2 U.S.C.A. Sec. 2a (a).

[1221] Cong. Rec., 77th Cong., 1st sess., vol. 87, p. 70, January 8, 1941.

[1222] McPherson v. Blacker, 146 U.S. 1 (1892); Ex parte Yarbrough, 110 U.S. 651, 663 (1884).

[1223] Saunders v. Wilkins, 152 F. (2d) 235 (1945); certiorari denied, 328 U.S. 870 (1946); rehearing denied, 329 U.S. 825 (1946).

[1224] Saunders v. Wilkins, 152 F. (2d) 235, 237-238, citing Willoughby, Constitution, 2d ed., pp. 626, 627.

[1225] Legislation by Congress providing for removal was necessary to give effect to the prohibition of section 3; and until removed in pursuance of such legislation, the exercise of functions by persons in office before promulgation of the Fourteenth Amendment was not unlawful. (Griffin's Case, 11 Fed. Cas. No. 5815 (1869)). Nor were persons who had taken part in the Civil War and had been pardoned therefor by the President before the adoption of this Amendment precluded by this section from again holding office under the United States. (18 Op. Atty. Gen. 149 (1885)).

The phrase, "engaged in Rebellion" has been construed as implying a voluntary effort to assist an insurrection and to bring it to a successful termination; and accordingly as not embracing acts done under compulsion of force or of a well grounded fear of bodily harm. Thus, while the mere holding of a commission of justice of the peace under the Confederate government was not viewed as involving, of itself, "adherence or countenance to the Rebellion," action by such officer in furnishing a substitute for himself to the Confederate Army amounted to such participation in a Rebellion unless said action could be shown to have resulted from fear of conscription and to have sprung, not from repugnance to military service, but from want of sympathy with the insurrectionary movement. (United States v. Powell, 27 Fed. Cas. No. 16,079 (1871)).

[1226] Perry v. United States, 294 U.S. 330, 354 (1935) in which the Court concluded "that the Joint Resolution of June 5, 1933, insofar as it attempted to override" the gold-clause obligation in a Fourth Liberty Loan Gold Bond, "went beyond the congressional power."

See also Branch v. Haas, 16 F. 53 (1883), citing Hanauer v. Woodruff, 15 Wall. 439 (1873) and Thorington v. Smith, 8 Wall. 1 (1869) in which it was held that inasmuch as bonds issued by the Confederate States were rendered illegal by section four, a contract for the sale and delivery before October 29, 1881 of 200 Confederate coupon bonds at the rate of $1000 was void, and a suit for damages for failure to deliver could not be maintained.

See also The Pietro Campanella, 73 F. Supp. 18 (1947) which arose out of a suit for the forfeiture, prior to our entry into World War II, of Italian vessels in an American port and their subsequent requisition by the Maritime Commission. The Attorney General, as successor to the Alien Property Custodian, was declared to be entitled to the fund thereafter determined to be due as compensation for the use and subsequent loss of the vessels; and the order of the Alien Property Custodian vesting in himself, for the United States, under authority of the Trading with the Enemy Act and Executive Order, all rights of claimants in the vessels and to the fund substituted therefor was held not to be a violation of section four. An attorney for certain of the claimants, who had asserted a personal right to a lien upon the fund for his services, had argued that when the Government requisitioned ships under the applicable statute providing for compensation, and at a time before this country was at war with Italy, the United States entered into a binding agreement with the owners for compensation and that this promise constituted a valid obligation of the United States which could not be repudiated without violating section four.

[1227] Civil Rights Cases, 109 U.S. 3, 13 (1883). See also United States v. Wheeler, 254 U.S. 281 (1920) on which it was held that the United States is without power to punish infractions by individuals of the right of citizen to reside peacefully in the several States, and to have free ingress into and egress from such States. Authority to deal with the forcible eviction by a mob of individuals across State boundaries is exclusively within the power reserved by the Constitution to the States.

[1228] Virginia v. Rives, 100 U.S. 313, 318 (1880); Strauder v. West Virginia, 100 U.S. 303 (1880).

[1229] Ex parte Virginia, 100 U.S. 339, 344 (1880).

[1230] United States v. Harris, 106 U.S. 629 (1883). See also Baldwin v. Franks, 120 U.S. 678, 685 (1887).

[1231] 325 U.S. 91 (1945).

[1232] 18 U.S.C.A. Sec. 242.

[1233] No "opinion of the Court" was given. In announcing the judgment of the Court, Justice Douglas, who was joined by Chief Justice Stone and Justices Black and Reed, declared that the trial judge had erred in not charging the jury that the defendants must be found to have had the specific intention of depriving their victim of his right to a fair trial in accordance with due process of law, that this was the force of the word, "willfully," in section 20, and that any other construction of section 20 would be void for want of laying down an "ascertainable standard of guilt." To avoid a stalemate on the Court, Justice Rutledge concurred in the result; but, on the merits of the case, he would have affirmed the conviction. Justice Murphy announced that he favored affirming the conviction and therefore dissented. Justice Roberts, with whom Justices Frankfurter and Jackson were associated, dissented for reasons stated in the text.

[1234] 100 U.S. 339, 346 (1880).

[1235] 313 U.S. 299, 326 (1941).

[1236] 325 U.S. 91, 114-116 (1945). But see Barney v. City of New York, 193 U.S. 430, 438, 441 (1904).

[1237] Ibid. 106-107. The majority supporting this proposition was not the same majority as the one which held that "State" action was involved.

[1238] 341 U.S. 97 (1951).

[1239] Ibid. 103-104.

[1240] 342 U.S. 852.

[1241] Ibid. 853-854.

AMENDMENT 15

RIGHT OF CITIZENS TO VOTE

Page Affirmative interpretation 1183 Negative application; the "Grandfather Clause" 1184 Application to party primaries 1185 Enforcement 1186

AMENDMENT 15.--RIGHT OF CITIZENS TO VOTE

Amendment 15

Section 1. The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of race, color, or previous condition of servitude.

Section 2. The Congress shall have power to enforce this article by appropriate legislation.

Affirmative Interpretation

In its initial appraisals of this amendment the Court appeared disposed to emphasize only its purely negative aspects. "The Fifteenth Amendment," it announced, did "not confer the right * * * [to vote] upon any one," but merely "invested the citizens of the United States with a new constitutional right which is * * * exemption from discrimination in the exercise of the elective franchise on account of race, color, or previous condition of servitude."[1] Within less than ten years, however, in Ex parte Yarbrough,[2] the Court ventured to read into the amendment an affirmative as well as a negative purpose. Conceding "that this article" had originally been construed as giving "no affirmative right to the colored man to vote," and as having been "designed primarily to prevent discrimination against him," Justice Miller, in behalf of his colleagues, disclosed their present ability "to see that under some circumstances it may operate as the immediate source of a right to vote. In all cases where the former slave-holding States had not removed from their Constitutions the words 'white man' as a qualification for voting, this provision did, in effect, confer on him the right to vote, because, * * *, it annulled the discriminating word white, and thus left him in the enjoyment of the same right as white persons. And such would be the effect of any future constitutional provision of a State which should give the right of voting exclusively to white people, * * *"

Negative Application; the "Grandfather Clause"

The subsequent history of the Fifteenth Amendment has been largely a record of belated judicial condemnation of various attempts by States to disfranchise the Negro either overtly through statutory enactment, or covertly through inequitable administration of their electoral laws or by toleration of discriminatory membership practices of political parties. Of several devices which have been voided, one of the first to be held unconstitutional was the "grandfather clause." Without expressly disfranchising the Negro, but with a view to facilitating the permanent placement of white residents on the voting lists while continuing to interpose severe obstacles upon Negroes seeking qualification as voters, several States, beginning in 1895, enacted temporary laws whereby persons who were voters, or descendants of voters on January 1, 1867, could be registered notwithstanding their inability to meet any literacy requirements. Unable because of the date to avail themselves of the same exemption, Negroes were thus left exposed to disfranchisement on grounds of illiteracy while whites no less illiterate were enabled to become permanent voters. With the achievement of this intended result, most States permitted their laws to lapse; but Oklahoma's grandfather clause was enacted as a permanent amendment to the State constitution; and when presented with an opportunity to pass on its validity, a unanimous Court condemned the standard of voting thus established as recreating and perpetuating "the very conditions which the [Fifteenth] Amendment was intended to destroy."[3] Nor, when Oklahoma followed up this defeat with a statute of 1916 which provided that all persons, except those who voted in 1914, who were qualified to vote in 1916 but who failed to register between April 30 and May 11, 1916 (sick persons and persons absent had a second opportunity to register between May 11 and June 30, 1916) should be perpetually disfranchised, did the Court experience any difficulty in holding the same to be repugnant to the amendment.[4] That amendment, Justice Frankfurter declared, "nullifies sophisticated as well as simple-minded modes of discrimination. It hits onerous procedural requirements which effectively handicap exercise of the franchise by the colored race although the abstract right to vote may remain unrestricted as to race."[5] More precisely, the effect of this statute, as discerned by the Court, was automatically to continue as permanent voters, without their being obliged to register again, all white persons who were on registry lists in 1914 by virtue of the hitherto invalidated grandfather clause; whereas Negroes, prevented from registering by that clause, were afforded only a twenty-day registration opportunity to avoid permanent disfranchisement.

Application to Party Primaries

Indecision was displayed by the Court, however, when it was first called upon to deal with the exclusion of Negroes from participation in primary elections.[6] Prior to its becoming convinced that primary contests were in fact elections,[7] the Court had relied upon the equal protection clause to strike down a Texas White Primary Law[8] and a subsequent Texas statute which contributed to a like exclusion by limiting voting in primaries to members of State political parties as determined by the central committees thereof.[9] When exclusion of Negroes was thereafter perpetuated by political parties acting not in obedience to any statutory command, this discrimination was for a time viewed as not constituting State action and therefore not prohibited by either the Fourteenth or the Fifteenth Amendments.[10] But this holding was reversed nine years later when the Court, in Smith v. Allwright,[11] declared that where the selection of candidates for public office is entrusted by statute to political parties, a political party in making its selection at a primary election is a State agency, and hence may not under this amendment exclude Negroes from such elections.

At a very early date the Court held that literacy tests which are drafted so as to apply alike to all applicants for the voting franchise would be deemed to be fair on their face, and in the absence of proof of discriminatory enforcement could not be viewed as denying the equal protection of the laws guaranteed by the Fourteenth Amendment.[12] More recently, the Boswell amendment to the constitution of Alabama, which provided that only persons who understood and could explain the Constitution of the United States to the reasonable satisfaction of boards of registrars was found, both in its object as well as in the manner of its administration, to be contrary to the Fifteenth Amendment. The legislative history of the adoption of the Alabama provision disclosed that "the ambiguity inherent in the phrase 'understand and explain' * * * was purposeful * * * and was intended as a grant of arbitrary power in an attempt to obviate the consequences of" Smith v. Allwright.[13]

Enforcement

Two major questions have presented themselves for decision as a consequence of the exercise by Congress of its powers to enforce this article, an amendment which the Court has acknowledged to be self-executing.[14] These have pertained to the limitations which the amendment imposes on the competency of Congress legislating thereunder to punish racial discrimination founded upon more than a denial of suffrage and to penalize such denials when perpetrated by private individuals not acting under color of public authority. Rulings on both these issues were made very early; and the Court thus far has manifested no disposition to depart from them, although their compatibility with more recent holdings may be doubtful. Thus, when the Enforcement Act of 1870,[15] which penalized State officers for refusing to receive the vote of any qualified citizen, was employed to support a prosecution of such officers for having prevented a qualified Negro from voting, the Court held it to be in excess of the authority conferred upon Congress.[16] The Fifteenth Amendment, Chief Justice Waite maintained, did not confer "authority to impose penalties for every wrongful refusal to receive * * * [a] vote * * *, [but] only when the wrongful refusal * * * is because of race, color, or previous condition of servitude, * * *" Voided for the like reason that this amendment "relates solely to action 'by the United States or by any State,' and does not contemplate wrongful individual acts" was another provision of the same act, which authorized prosecution of private individuals for having prevented citizens from voting at a Congressional election.[17]

Notes

[1] United States v. Reese, 92 U.S. 214, 217-218 (1876); United States v. Cruikshank, 92 U.S. 542, 556 (1876).

[2] 110 U.S. 651, 665 (1884); citing Neal v. Delaware, 103 U.S. 370, 389 (1881). This affirmative view was later reiterated in Guinn v. United States, 238 U.S. 347, 363 (1915).

[3] Guinn v. United States, 238 U.S. 347, 360, 363-364 (1915).

[4] Lane v. Wilson, 307 U.S. 268 (1939).

[5] Ibid. 275.

[6] Cases involving this and related issues are also discussed under the equal protection clause, p. 1163.

[7] United States v. Classic, 313 U.S. 299 (1941); Smith v. Allwright, 321 U.S. 649 (1944).

[8] Nixon v. Herndon, 273 U.S. 536 (1927).

[9] Nixon v. Condon, 286 U.S. 73, 89 (1932).

[10] Grovey v. Townsend, 295 U.S. 45, 55 (1935).

[11] 321 U.S. 649 (1944). Notwithstanding that the South Carolina Legislature, after the decision in Smith v. Allwright, repealed all statutory provisions regulating primary elections and political organizations conducting them, a political party thus freed of control is not to be regarded as a private club and for that reason exempt from the constitutional prohibitions against racial discrimination contained in the Fifteenth Amendment. Rice v. Elmore, 165 F. (2d) 387 (1947); certiorari denied, 333 U.S. 875 (1948). See also Brown v. Baskin, 78 F. Supp. 933, 940 (1948) which held violative of the Fifteenth Amendment a requirement of a South Carolina political party, which excluded Negroes from membership, that white as well as Negro qualified voters, as a prerequisite for voting in its primary, take an oath that they will support separation of the races.

[12] Williams v. Mississippi, 170 U.S. 213, 220 (1898).

[13] Davis v. Schnell, 81 F. Supp. 872, 878, 880 (1949); affirmed, 336 U.S. 933 (1949).

[14] United States v. Amsden, 6 F. 819 (1881).

[15] 16 Stat. 140.

[16] United States v.. Reese, 92 U.S. 214, 218 (1876).

[17] James v. Bowman, 190 U.S. 127, 136 (1903) See also Karem v. United States, 121 F. 250, 259 (1903).

AMENDMENT 16

INCOME TAX

Page History and purpose of the amendment 1191 Meaning of income as distinguished from capital 1192 Corporate dividends: when taxable as income 1193 The "stock dividends case" 1193 Other corporate earnings or receipts: when taxable as income 1196 Gains in the form of real estate: when taxable as income 1197 Gains in the form of bequests: when taxable as income 1198 Diminution of loss: not income 1198 Dates applicable in computation of taxable gains 1199 Deductions: exemptions, etc. 1200 Illegal gains as income 1201

INCOME TAX

Amendment 16

The Congress shall have power to lay and collect taxes on incomes, from whatever source derived, without apportionment among the several States, and without regard to any census or enumeration.

History and Purpose of the Amendment

The ratification of this amendment was the direct consequence of the decision in 1895[1] whereby the attempt of Congress the previous year to tax incomes uniformly throughout the United States[2] was held by a divided court to be unconstitutional. A tax on incomes derived from property,[3] the Court declared, was a "direct tax" which Congress under the terms of article I, section 2, clause 3, and section 9, clause 4, could impose only by the rule of apportionment according to population; although scarcely fifteen years prior the Justices had unanimously sustained[4] the collection of a similar tax during the Civil War,[5] the only other occasion preceding Amendment Sixteen in which Congress had ventured to utilize this method of raising revenue.[6]

During the interim between the Pollock decision in 1895, and the ratification of the Sixteenth Amendment in 1913, the Court gave evidence of a greater awareness of the dangerous consequences to national solvency which that holding threatened, and partially circumvented it, either by taking refuge in redefinitions of "direct tax" or, and more especially, by emphasizing, virtually to the exclusion of the former, the history of excise taxation. Thus, in a series of cases, notably Nicol v. Ames,[7] Knowlton v. Moore[8] and Patton v. Brady[9] the Court held the following taxes to have been levied merely upon one of the "incidents of ownership" and hence to be excises; a tax which involved affixing revenue stamps to memoranda evidencing the sale of merchandise on commodity exchanges, an inheritance tax, and a war revenue tax upon tobacco on which the hitherto imposed excise tax had already been paid and which was held by the manufacturer for resale.

Thanks to such endeavors the Court thus found it possible, in 1911,[10] to sustain a corporate income tax as an excise "measured by income" on the privilege of doing business in corporate form. The adoption of the Sixteenth Amendment, however, put an end to speculation as to whether the Court, unaided by constitutional amendment, would persist along these lines of construction until it had reversed its holding in the Pollock Case. Indeed, in its initial appraisal[11] of the amendment it classified income taxes as being inherently "indirect." "The command of the amendment that all income taxes shall not be subject to apportionment by a consideration of the sources from which the taxed income may be derived, forbids the application to such taxes of the rule applied in the Pollock Case by which alone such taxes were removed from the great class of excises, duties, and imposts subject to the rule of uniformity and were placed under the other or direct class.[12] * * * The Sixteenth Amendment conferred no new power of taxation but simply prohibited the previous complete and plenary power of income taxation possessed by Congress from the beginning from being taken out of the category of indirect taxation to which it inherently belonged * * *"[13]

Meaning of "Income" as Distinguished From Capital

Building upon definitions formulated in cases construing the Corporation Tax Act of 1909,[14] the Court initially described income as the "gain derived from capital, from labor, or from both combined," inclusive of the "profit gained through a sale or conversion of capital assets";[15] and in the following array of factual situations has subsequently applied this definition to achieve results that have been productive of extended controversy.

CORPORATE DIVIDENDS: WHEN TAXABLE AS INCOME

Rendered in conformity with the belief that all income "in the ordinary sense of the word" became taxable under the Sixteenth Amendment, the earliest decisions of the Court on the taxability of corporate dividends occasioned little comment. Emphasizing that in all such cases the stockholder is to be viewed as "a different entity from the corporation," the Court in Lynch v. Hornby[16] held that a cash dividend equal to 24% of the par value of outstanding stock and made possible largely by the conversion into money of assets earned prior to the adoption of the amendment, was income taxable to the stockholder for the year in which he received it, notwithstanding that such an extraordinary payment might appear "to be a mere realization in possession of an inchoate and contingent interest * * * [of] the stockholder * * * in a surplus of corporate assets previously existing." In Peabody v. Eisner,[17] decided on the same day and deemed to have been controlled by the preceding case, the Court ruled that a dividend paid in the stock of another corporation, although representing earnings that had accrued before ratification of the amendment, was also taxable to the shareholder as income. The dividend was likened to a distribution in specie.

THE "STOCK DIVIDENDS CASE"

Two years later the Court decided Eisner v. Macomber,[18] and the controversy which that decision precipitated still endures. Departing from the interpretation placed upon the Sixteenth Amendment in the earlier cases; namely, that the purpose of the amendment was to correct the "error" committed in the Pollock Case and to restore income taxation to "the category of indirect taxation to which it inherently belonged," Justice Pitney, who delivered the opinion in the Eisner Case, indicated that the sole purpose of the Sixteenth Amendment was merely to "remove the necessity which otherwise might exist for an apportionment among the States of taxes laid on income." He thereupon undertook to demonstrate how what was not income, but an increment of capital when received, could later be transmitted into income upon sale or conversion, and could be taxed as such without the necessity of apportionment. In short, the term "income" reacquired to some indefinite extent a restrictive significance.

Specifically, the Justice held that a stock dividend was capital when received by a stockholder of the issuing corporation and did not become taxable without apportionment; that is, as "income," until sold or converted, and then only to the extent that a gain was realized upon the proportion of the original investment which such stock represented. "A stock dividend," Justice Pitney maintained, "far from being a realization of profits to the stockholder, * * * tends rather to postpone such realization, in that the fund represented by the new stock has been transferred from surplus to capital, and no longer is available for actual distribution. * * * not only does a stock dividend really take nothing from * * * the corporation and add nothing to that of the shareholder, but * * * the antecedent accumulation of profits evidenced thereby, while indicating that the shareholder is richer because of an increase of his capital, at the same time shows [that] he has not realized or received any income in" what is no more than a "bookkeeping transaction." But conceding that a stock dividend represented a gain, the Justice concluded that the only gain taxable as "income" under the amendment was "a gain, a profit, something of exchangeable value proceeding from the property, severed from the capital however invested or employed, and coming in, being 'derived,' that is, received or drawn by the recipient [the taxpayer] for his separate use, benefit, and disposal; * * *." Only the latter, in his opinion, answered the description of income "derived" from property; whereas "a gain accruing to capital, not a growth or an increment of value in the investment" did not.[19]

Although steadfastly refusing to depart from the principle[20] which it asserted in Eisner v. Macomber, the Court in subsequent decisions has, however, slightly narrowed the application thereof. Thus, the distribution, as a dividend, to stockholders of an existing corporation of the stock of a new corporation to which the former corporation, under a reorganization, had transferred all its assets, including a surplus of accumulated profits, was treated as taxable income. The fact that a comparison of the market value of the shares in the older corporation immediately before, with the aggregate market value of those shares plus the dividend shares immediately after, the dividend showed that the stockholders experienced no increase in aggregate wealth was declared not to be a proper test for determining whether taxable income had been received by these stockholders.[21] On the other hand, no taxable income was held to have been produced by the mere receipt by a stockholder of rights to subscribe for shares in a new issue of capital stock, the intrinsic value of which was assumed to be in excess of the issuing price. The right to subscribe was declared to be analogous to a stock dividend, and "only so much of the proceeds obtained upon the sale of such rights as represents a realized profit over cost" to the stockholders was deemed to be taxable income.[22] Similarly, on grounds of consistency with Eisner v. Macomber, the Court has ruled that inasmuch as they gave the stockholder an interest different from that represented by his former holdings, a dividend in common stock to holders of preferred stock,[23] or a dividend in preferred stock accepted by a holder of common stock[24] was income taxable under the Sixteenth Amendment.

OTHER CORPORATE EARNINGS OR RECEIPTS: WHEN TAXABLE AS INCOME

On at least two occasions the Court has rejected as untenable the contention that a tax on undistributed corporate profits is essentially a penalty rather than a tax or that it is a direct tax on capital and hence is not exempt from the requirement of apportionment. Inasmuch as the exaction was permissible as a tax, its validity was held not to be impaired by its penal objective, namely, "to force corporations to distribute earnings in order to create a basis for taxation against the stockholders." As to the added contention that, because liability was assessed upon a mere purpose to evade imposition of surtaxes against stockholders, the tax was a direct tax on a state of mind, the Court replied that while "the existence of the defined purpose was a condition precedent to the imposition of the tax liability, * * * this * * * [did] not prevent it from being a true income tax within the meaning of the Sixteenth Amendment."[25] Subsequently, in Helvering v. Northwest Steel Mills,[26] this appraisal of the constitutionality of the undistributed profits tax was buttressed by the following observation: "It is true that the surtax is imposed upon the annual income only if it is not distributed, but this does not serve to make it anything other than a true tax on income within the meaning of the Sixteenth Amendment. Nor is it true, * * *, that because there might be an impairment of the capital stock, the tax on the current annual profit would be the equivalent of a tax upon capital. Whether there was an impairment of the capital stock or not, the tax * * * was imposed on profits earned during * * *--a tax year--and therefore on profits constituting income within the meaning of the Sixteenth Amendment."[27] Likening a cooperative to a corporation, federal courts have also declared to be taxable income the net earnings of a farmers' cooperative, a portion of which was used to pay dividends on capital stock without reference to patronage. The argument that such earnings were in reality accumulated savings of its patrons which the cooperative held as their bailee was rejected as unsound for the reason that "while those who might be entitled to patronage dividends have, * * *, an interest in such earnings, such interest never ripens into an individual ownership * * * until and if a patronage dividend be declared." Had such net earnings been apportioned to all of the patrons during the year, "there might be * * * a more serious question as to whether such earnings constituted 'income' [of the cooperative] within the Amendment."[28] Similarly, the power of Congress to tax the income of an unincorporated joint stock association has been held to be unaffected by the fact that under State law the association is not a legal entity and cannot hold title to property, or by the fact that the shareholders are liable for its debts as partners.[29]

Whether subsidies paid to corporations in money or in the form of grants of land or other physical property constitute taxable income has also concerned the Court. In Edwards v. Cuba Railroad Co.[30] it ruled that subsidies of lands, equipment, and money paid by Cuba for the construction of a railroad were not taxable income but were to be viewed as having been received by the railroad as a reimbursement for capital expenditures in completing such project. On the other hand, sums paid out by the Federal Government to fulfil its guarantee of minimum operating revenue to railroads during the six months following relinquishment of their control by that government were found to be taxable income. Such payments were distinguished from those excluded from computation of income in the preceding case in that the former were neither bonuses, nor gifts, nor subsidies; "that is, contributions to capital."[31]

GAINS IN THE FORM OF REAL ESTATE; WHEN TAXABLE AS INCOME

When through forfeiture of a lease in 1933, a landlord became possessed of a new building erected on his land by the outgoing tenant, the resulting gain to the former was taxable to him in that year. Although "economic gain is not always taxable as income, it is settled that the realization of gain need not be in cash derived from the sale of an asset. * * * The fact that the gain is a portion of the value of the property received by the * * * [landlord] does not negative its realization. * * * [Nor is it necessary] to recognition of taxable gain that * * * [the landlord] should be able to sever the improvement begetting the gain from his original capital." Hence, the taxpayer was incorrect in contending that the amendment "does not permit the taxation of such [a] gain without apportionment amongst the states."[32] Consistently with this holding the Court has also ruled that when an apartment house was acquired by bequest subject to an unassumed mortgage, and several years thereafter was sold for a price slightly in excess of the mortgage, the basis for determining the gain from that sale was the difference between the selling price, undiminished by the amount of the mortgage, and the value of the property at the time of the acquisition, less deductions for depreciation during the years the building was held by the taxpayer. The latter's contention that the Revenue Act, as thus applied, taxed something which was not revenue was declared to be unfounded.[33]

GAINS IN THE FORM OF BEQUESTS; WHEN TAXABLE AS INCOME

As against the argument of a donee that a gift of stock became a capital asset when received and that therefore, when disposed of, no part of that value could be treated as taxable income to said donee, the Court has declared that it was within the power of Congress to require a donee of stock, who sells it at a profit, to pay income tax on the difference between the selling price and the value when the donor acquired it.[34] Moreover, "the receipt in cash or property * * * not [being] the only characteristic of realization of income to a taxpayer on the cash receipts basis," it follows that one who is normally taxable only on the receipt of interest payments cannot escape taxation thereon by giving away his right to such income in advance of payment. When "the taxpayer does not receive payment of income in money or property, realization may occur when the last step is taken by which he obtains the fruition of the economic gain which has already accrued to him." Hence an owner of bonds, reporting on the cash receipts basis, who clipped interest coupons therefrom before their due date and gave them to his son, was held to have realized taxable income in the amount of said coupons, notwithstanding that his son had collected them upon maturity later in the year.[35]

DIMINUTION OF LOSS, NOT INCOME

Mere diminution of loss is neither gain, profit, nor income. Accordingly, one who in 1913 borrowed a sum of money to be repaid in German marks and who subsequently lost said money in a business transaction cannot be taxed on the curtailment of debt effected by using depreciated marks in 1921 to settle a liability of $798,144 for $113,688, the "saving" having been exceeded by a loss on the entire operation.[36]

DATES APPLICABLE IN COMPUTATION OF TAXABLE GAINS

With a frequency that for obvious reasons is progressively diminishing, the Court has also been called upon to resolve questions as to whether gains, realized after 1913, on transactions consummated prior to ratification of the Sixteenth Amendment are taxable, and if so, how such tax is to be determined. The Court's answer generally has been that if the gain to the person whose income is under consideration became such subsequently to the date at which the amendment went into effect; namely, March 1, 1913, and is a real and not merely an apparent gain, said gain is taxable. Thus, one who purchased stock in 1912 for $500 could not limit his taxable gain to the difference between $695, the value of the stock on March 1, 1913 and $13,931, the price obtained on the sale thereof in 1916; but was obliged to pay tax on the entire gain, that is, the difference between the original purchase price and the proceeds of the sale.[37] Conversely, one who acquired stock in 1912 for $291,600 and who sold the same in 1916 for only $269,346, incurred a loss and could not be taxed at all, notwithstanding the fact that on March 1, 1913, his stock had depreciated to $148,635.[38] On the other hand, although the difference between the amount of life insurance premiums, paid as of 1908, and the amount distributed in 1919, when the insured received the amount of his policy plus cash dividends apportioned thereto since 1908, constituted a gain, that portion of the latter which accrued between 1908 and 1913 was deemed to be an accretion of capital and hence not taxable.[39]

DEDUCTIONS; EXEMPTIONS, ETC.

Notwithstanding the authorization contained in the Sixteenth Amendment to tax income "from whatever source derived," Congress has been held not to be precluded thereby from granting exemptions.[40] Thus, the fact that "under the Revenue Acts of 1913, 1916, 1917, and 1918, stock fire insurance companies were taxed * * * upon gains realized from the sale * * * of property accruing subsequent to March 1, 1913," but were not so taxed by the Revenue Acts of 1921, 1924, and 1926, did not prevent Congress, under the terms of the Revenue Act of 1928, from taxing all the gain attributable to increase in value after March 1, 1913 which such a company realized from a sale of property in 1928. The constitutional power of Congress to tax a gain being well established, Congress, was declared competent to choose "the moment of its realization and the amount realized"; and "its failure to impose a tax upon the increase in value in the earlier years * * * [could not] preclude it from taxing the gain in the year when realized * * *"[41] Congress is equally well equipped with the "power to condition, limit, or deny deductions from gross incomes in order to arrive at the net that it chooses to tax."[42] Accordingly, even though the rental value of a building used by its owner does not constitute income within the meaning of the amendment,[43] Congress was competent to provide that an insurance company shall not be entitled to deductions for depreciation, maintenance, and property taxes on real estate owned and occupied by it unless it includes in its computation of gross income the rental value of the space thus used.[44]

ILLEGAL GAINS AS INCOME

In United States v. Sullivan[45] the Court held, in 1927, that gains derived from illicit traffic in liquor were taxable income under the Act of 1921.[46] Said Justice Holmes for the unanimous Court: "We see no reason * * * why the fact that a business is unlawful should exempt it from paying the taxes that if lawful it would have to pay."[47] But in Commissioner v. Wilcox,[48] decided in 1946, Justice Murphy, speaking for a majority of the Court, held that embezzled money was not taxable income to the embezzler, although any gain he derived from the use of it would be. Justice Burton dissented on the basis of the Sullivan Case. In Rutkin v. United States,[49] decided in 1952, a sharply divided Court cuts loose from the metaphysics of the Wilcox case and holds that Congress has the power under Amendment XVI to tax as income monies received by an extortioner.

Notes

[1] Pollock v. Farmers' Loan & Trust Co., 157 U.S. 429 (1895); 158 U.S. 601 (1895).

[2] 28 Stat. 509.

[3] The Court conceded that taxes on Incomes from "professions, trades, employments, or vocations" levied by this act were excise taxes and therefore valid. The entire statute, however, was voided on the ground that Congress never intended to permit the entire "burden of the tax to be borne by professions, trades, employments, or vocations" after real estate and personal property had been exempted. 158 U.S. 601, 635 (1895).

[4] Springer v. United States, 102 U.S. 586 (1881).

[5] 13 Stat. 223 (1864).

[6] For an account of the Pollock decision see pp. 319-320.

[7] 173 U.S. 509 (1899).

[8] 178 U.S. 41 (1900).

[9] 184 U.S. 608 (1902).

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

[11] Brushaber v. Union P.R. Co., 240 U.S. 1 (1916); Stanton v. Baltic Min. Co., 240 U.S. 103 (1916); Tyee Realty Co. v. Anderson, 210 U.S. 115 (1916).

[12] Brushaber v. Union P.R. Co., 240 U.S. 1, 18-19 (1916).

[13] Stanton v. Baltic Min. Co., 240 U.S. 103, 112 (1916).

[14] Stratton's Independence v. Howbert, 231 U.S. 399 (1914); Doyle v. Mitchell Bros. Co., 247 U.S. 179 (1918).

[15] Eisner v. Macomber, 252 U.S. 189 (1920); Bowers v. Kerbaugh-Empire Co., 271 U.S. 170 (1926).

[16] 247 U.S. 339, 344 (1918).--On the other hand, in Lynch v. Turrish, 247 U.S. 221 (1918), the single and final dividend distributed upon liquidation of the entire assets of a corporation, although equalling twice the par value of the capital stock, was declared to represent only the intrinsic value of the latter earned prior to the effective date of the amendment, and hence was not taxable as income to the shareholder in the year in which actually received. Similarly, in Southern P. Co. v. Lowe, 247 U.S. 330 (1918) dividends paid out of surplus accumulated before the effective date of the amendment by a railway company whose entire capital stock was owned by another railway company and whose physical assets were leased to and used by the latter was declared to be a nontaxable bookkeeping transaction between virtually identical corporations.

[17] 247 U.S. 347 (1918).

[18] 252 U.S. 189, 206-208 (1920).

[19] Eisner v. Macomber, 252 U.S. 189, 207, 211-212 (1920). This decision has been severely criticized, chiefly on the ground that gains accruing to capital over a period of years are not income and are not transformed into income by being dissevered from capital through sale or conversion. Critics have also experienced difficulty in understanding how a tax on income which has been severed from capital can continue to be labeled a "direct" tax on the capital from which the severance has thus been made. Finally, the contention has been made that in stressing the separate identities of a corporation and its stockholders, the Court overlooked the fact that when a surplus has been accumulated, the stockholders are thereby enriched, and that a stock dividend may therefore be appropriately viewed simply as a device whereby the corporation reinvests money earned in their behalf. See also Merchants' Loan & T. Co. v. Smietanka, 255 U.S. 509 (1921).

[20] Reconsideration was refused in Helvering v. Griffiths, 318 U.S. 371 (1943).

[21] United States v. Phellis, 257 U.S. 156 (1921); Rockefeller v. United States, 257 U.S. 176 (1921). See also Cullinan v. Walker, 262 U.S. 134 (1923).

In Marr v. United States, 268 U.S. 536, 540-541 (1925) it was held that the increased market value of stock issued by a new corporation in exchange for stock of an older corporation, the assets of which it was organized to absorb, was subject to taxation as income to the holder, notwithstanding that the income represented profits of the older corporation and that the capital remained invested in the same general enterprise. Weiss v. Stearn, 265 U.S. 242 (1924), in which the additional value in new securities was held not taxable, was likened to Eisner v. Macomber, and distinguished from the aforementioned cases on the ground of preservation of corporate identity. Although the "new corporation had * * * been organized to take over the assets and business of the old * * *, the corporate identity was deemed to have been substantially maintained because the new corporation was organized under the laws of the same State with presumably the same powers as the old. There was also no change in the character of the securities issued," with the result that "the proportional interest of the stockholder after the distribution of the new securities was deemed to be exactly the same."

[22] Miles v. Safe Deposit & Trust Co., 259 U.S. 247 (1922).

[23] Koshland v. Helvering, 298 U.S. 441 (1936)

[24] Helvering v. Gowran, 302 U.S. 238 (1937).

[25] Helvering v. National Grocery Co., 304 U.S. 282, 288-289 (1938). In Helvering v. Mitchell, 303 U.S. 391 (1938) the defendant contended the collection of 50% of any deficiency in addition to the deficiency alleged to have resulted from a fraudulent intent to evade the income tax amounted to the imposition of a criminal penalty. The Court, however, described the additional sum as a civil and not a criminal sanction, and one which could be constitutionally employed to safeguard the Government against loss of revenue. In contrast, the exaction upheld in Helvering v. National Grocery Co., though conceded to possess the attributes of a civil sanction, was declared to be sustainable as a tax.

[26] 311 U.S. 46 (1940). See also Crane-Johnson Co. v. Helvering, 311 U.S. 54 (1940).

[27] 311 U.S. 46, 53. Another provision of the Revenue Act, requiring undistributed net income of a foreign personal holding company to be included in the gross income of citizens or residents who are shareholders in such company, was upheld as constitutional in Rodney v. Hoey, 53 F. Supp. 604, 607-608 (1944).

[28] Farmers Union Co-op Co. v. Commissioner of Int. Rev., 90 F. (2d) 488, 491, 492 (1937).

[29] Burk-Waggoner Oil Asso. v. Hopkins, 269 U.S. 110 (1925).

[30] 268 U.S. 628 (1925).

[31] Texas & P. Ry. Co. v. United States, 286 U.S. 285, 289 (1932); Continental Tie & Lumber Co. v. United States, 286 U.S. 290 (1932).

[32] Helvering v. Bruun, 309 U.S. 461, 468-469 (1940). See also Hewitt Realty Co. v. Commissioner of Internal Revenue, 76 F. (2d) 880 (1935).

[33] Crane v. Commissioner, 331 U.S. 1, 15-16 (1947).

[34] The donor could not, "by mere gift, enable another to hold this stock free from * * * the right of the sovereign to take part of any increase in its value when separated through sale or conversion and reduced to possession."--Taft v. Bowers, 278 U.S. 470, 482, 484 (1929).

[35] Helvering v. Horst, 311 U.S. 112, 115-116 (1940).

[36] Bowers v. Kerbaugh-Empire Co., 271 U.S. 170 (1926).

[37] Goodrich v. Edwards, 255 U.S. 527 (1921).

[38] Ibid. See also Walsh v. Brewster, 255 U.S. 536 (1921).

[39] Lucas v. Alexander, 279 U.S. 573 (1929).

However, a litigant who, in 1915, reduced to judgment, a suit pending on February 26, 1913 for an accounting under a patent infringement, was unable to have treated as capital, and excluded from the taxable income produced by such settlement, that portion of his claim which had accrued prior to March 1, 1913. Income within the meaning of the amendment was interpreted to be the fruit that is born of capital, not the potency of fruition. All that the taxpayer possessed in 1913 was a contingent chose in action which was inchoate, uncertain, and contested.--United States v. Safety Car Heating & L. Co., 297 U.S. 88 (1936).

Similarly, purchasers of coal lands subject to mining leases executed before adoption of the amendment could not successfully contend that royalties received during 1920-1926 were payments for capital assets sold before March 1, 1913, and hence not taxable. Such an exemption, these purchasers argued, would have been in harmony with applicable local law whereunder title to coal passes immediately to the lessee on execution of such leases. To the Court, on the other hand, such leases were not to be viewed "as a 'sale' of the mineral content of the soil" inasmuch as minerals "may or may not be present in the leased premises and may or may not be found [therein]. * * * If found, their abstraction * * * is a time consuming operation and the payments made by the lessee * * * do not normally become payable as the result of a single transaction." The result for tax purposes would have been the same even had the lease provided that title to the minerals would pass only "on severance by the lessee."--Bankers Pocahontas Coal Co. v. Burnet, 287 U.S. 308 (1932); Burnet v. Harmel, 287 U.S. 103, 106-107, 111 (1932).

[40] Brushaber v. Union Pac. R. Co., 240 U.S. 1 (1916).

[41] MacLaughlin v. Alliance Ins. Co., 286 U.S. 244, 250 (1932).

[42] Helvering v. Independent L. Ins. Co., 292 U.S. 371, 381 (1934); Helvering v. Winmill, 305 U.S. 79, 84 (1938).

[43] A tax on the rental value of property so occupied is a direct tax on the land and must be apportioned.--Helvering v. Independent L. Ins. Co., 292 U.S. 371, 378-379 (1934).

[44] 292 U.S. 381.--Expenditures incurred in the prosecution of work under a contract for the purpose of earning profits are not capital investments, the cost of which, if converted, must first be restored from the proceeds before there is a capital gain taxable as income. Accordingly, a dredging contractor, recovering a judgment for breach of warranty of the character of the material to be dredged, must include the amount thereof in the gross income of the year in which it was received, rather than of the years during which the contract was performed, even though it merely represents a return of expenditures made in performing the contract and resulting in a loss. The gain or profit subject to tax under the Sixteenth Amendment is the excess of receipts over allowable deductions during the accounting period, without regard to whether or not such excess represents a profit ascertained on the basis of particular transactions of the taxpayer when they are brought to a conclusion.--Burnet v. Sanford & B. Co., 282 U.S. 353 (1931).

[45] 274 U.S. 259 (1927).

[46] 42 Stat. 227, 250, 268.

[47] 274 at 263.

[48] 327 U.S. 404 (1946).

[49] 343 U.S. 130 (1952).

AMENDMENT 17

POPULAR ELECTION OF SENATORS

Page Historical origin 1207 Right to vote for Senators 1208

POPULAR ELECTION OF SENATORS

Amendment 17

Clause 1. The Senate of the United States shall be composed of two Senators from each State, elected by the people thereof, for six years; and each Senator shall have one vote. The electors in each State shall have the qualifications requisite for electors of the most numerous branch of the State legislatures.

Clause 2. When vacancies happen in the representation of any State in the Senate, the executive authority of such State shall issue writs of election to fill such vacancies: Provided That the legislature of any State may empower the executive thereof to make temporary appointments until the people fill the vacancies by election as the legislature may direct.

Clause 3. This amendment shall not be so construed as to affect the election or term of any Senator chosen before it becomes valid as part of the Constitution.

Historical Origin

The ratification of this amendment was the outcome of increasing popular dissatisfaction with the operation of the originally established method of electing Senators. As the franchise became exercisable by greater numbers of people, the belief became widespread that Senators ought to be popularly elected in the same manner as Representatives. Acceptance of this idea was fostered by the mounting accumulation of evidence of the practical disadvantages and malpractices attendant upon legislative selection, such as deadlocks within legislatures resulting in vacancies remaining unfilled for substantial intervals, the influencing of legislative selection by corrupt political organizations and special interest groups through purchase of legislative seats, and the neglect of duties by legislators as a consequence of protracted electoral contests. Prior to ratification, however, many States had perfected arrangements calculated to afford the voters more effective control over the selection of Senators. State laws regulating direct primaries were amended so as to enable voters participating in primaries to designate their preference for one of several party candidates for a senatorial seat: and nominations unofficially effected thereby were transmitted to the legislature. Although their action rested upon no stronger foundation than common understanding, the legislatures generally elected the winning candidate of the majority, and, indeed, in two States, candidates for legislative seats were required to promise to support, without regard to party ties, the senatorial candidate polling the most votes. As a result of such developments, at least 29 States by 1912, one year before ratification, were nominating Senators on a popular basis; and, as a consequence, the constitutional discretion of the legislatures had been reduced to little more than that retained by presidential electors.

Right to Vote for Senators

Very shortly after ratification it was established that if a person possessed the qualifications requisite for voting for a Senator, his right to vote for such an officer was not derived merely from the constitution and laws of the State in which they are chosen but has its foundation in the Constitution of the United States.[1] Consistently with this view, federal courts more recently have declared that when local party authorities, acting pursuant to regulations prescribed by a party's State executive committee, refused to permit a Negro, on account of his race, to vote in a primary to select candidates for the office of United States Senator, they deprived him of a right secured to him by the Constitution and laws, in violation of this amendment.[2] An Illinois statute, on the other hand, which required that a petition to form, and to nominate candidates for, a new political party be signed by at least 25,000 voters from at least 50 counties was held not to impair any right under Amendment XVII, notwithstanding that 52% of the State's voters were residents of one county, 87% were residents of 49 counties, and only 13% resided in the 53 least populous counties.[3]

Notes

[1] United States v. Aczel, 219 F. 917 (1915), citing Ex parte Yarbrough, 110 U.S. 651 (1884).

[2] Chapman v. King, 154 F. (2d) 460 (1946); certiorari denied, 327 U.S. 800 (1946).

[3] MacDougall v. Green, 335 U.S. 281 (1948).

AMENDMENT 18

PROHIBITION OF INTOXICATING LIQUORS

Page Validity of adoption 1213 Enforcement 1213 Repeal 1213

PROHIBITION OF INTOXICATING LIQUORS

Amendment 18

Section 1. After one year from the ratification of this article the manufacture, sale, or transportation of intoxicating liquors within, the importation thereof into, or the exportation thereof from the United States and all territory subject to the jurisdiction thereof for beverage purposes is hereby prohibited.

Section 2. The Congress and the several States shall have concurrent power to enforce this article by appropriate legislation.

Section 3. This article shall be inoperative unless it shall have been ratified as an amendment to the Constitution by the legislatures of the several States, as provided in the Constitution, within seven years from the date of the submission hereof to the States by the Congress.

Validity of Adoption

Cases relating to this question are presented and discussed under article V.

Enforcement

Cases produced by enforcement and arising under Amendments Four and Five are considered in the discussion appearing under the latter amendments.

Repeal

This amendment was repealed by the Twenty-first Amendment, and titles I and II of the National Prohibition Act[1] were subsequently specifically repealed by the act of August 27, 1935.[2] Federal prohibition laws effective in various Districts and Territories were repealed as follows: District of Columbia--April 5, 1933, and January 24, 1934;[3] Puerto Rico and Virgin Islands--March 2, 1934;[4] Hawaii--March 26, 1934;[5] and Panama Canal Zone--June 19, 1934.[6]

Taking judicial notice of the fact that ratification of the Twenty-first Amendment was consummated on December 5, 1933, the Supreme Court held that the National Prohibition Act, insofar as it rested upon a grant of authority to Congress by Amendment XVIII thereupon became inoperative; with the result that prosecutions for violations of the National Prohibition Act, including proceedings on appeal, pending on, or begun after, the date of repeal, had to be dismissed for want of jurisdiction. Only final judgments of conviction rendered while the National Prohibition Act was in force remained unaffected.[7] Likewise a heavy "special excise tax," insofar as it could be construed as part of the machinery for enforcing the Eighteenth Amendment, was deemed to have become inapplicable automatically upon the latter's repeal.[8] However, liability on a bond conditioned upon the return on the day of trial of a vessel seized for illegal transportation of liquor was held not to have been extinguished by repeal when the facts disclosed that the trial took place in 1931 and had resulted in conviction of the crew. The liability became complete upon occurrence of the breach of the express contractual condition and a civil action for recovery was viewed as unaffected by the loss of penal sanctions.[9]

Notes

[1] 41 Stat. 305.

[2] 49 Stat. 872.

[3] 48 Stat. 28, Sec. 12; 48 Stat. 319.

[4] 48 Stat. 361.

[5] 48 Stat. 467.

[6] 48 Stat. 1116.

[7] United States v. Chambers, 291 U.S. 217, 222-226 (1934). See also Ellerbee v. Aderhold, 5 F. Supp. 1022 (1934); United States ex rel. Randall v. United States Marshal for Eastern Dist. of New York, 143 F. (2d) 830 (1944).--The Twenty-first Amendment containing "no saving clause as to prosecutions for offenses theretofore committed," these holdings were rendered unavoidable by virtue of the well-established principle that after "the expiration or repeal of a law, no penalty can be enforced, nor punishment inflicted, for violations of the law committed while it was in force * * *"--Yeaton v. United States, 5 Cr. 281, 283 (1809), quoted in United States v. Chambers at pages 223-224.

[8] United States v. Constantine, 296 U.S. 287 (1935). The Court also took the position that even if the statute embodying this "tax" had not been "adopted to penalize [a] violations of the Amendment," but merely to ordain a penalty for violations of State liquor laws, "it ceased to be enforceable at the date of repeal"; for with the lapse of the unusual enforcement powers contained in the Eighteenth Amendment, Congress could not, without infringing upon powers reserved to the States by the Tenth Amendment, "impose cumulative penalties above and beyond those specified by State law for infractions of * * * [a] State's criminal code by its own citizens." Justice Cardozo, with whom Justices Brandeis and Stone were associated, dissented on the ground that, on its face, the statute levying this "tax" was "an appropriate instrument of * * * fiscal policy * * * Classification by Congress according to the nature of the calling affected by a tax * * * does not cease to be permissible because the line of division between callings to be favored and those to be reproved corresponds with a division between innocence and criminality under the statutes of a state."--Ibid. 294, 296, 297-298. In earlier cases it was nevertheless recognized that Congress also may tax what it forbids and that the basic tax on distilled spirits remained valid and enforceable during as well as after the life of the amendment--See United States v. Yuginovich, 256 U.S. 450, 462 (1921); United States v. Stafoff, 260 U.S. 477 (1923); United States v. Rizzo, 297 U.S. 530 (1936).

[9] United States v. Mack, 295 U.S. 480 (1935).

AMENDMENT 19

EQUAL SUFFRAGE

Page Origin of the amendment 1219 Validity of adoption 1219 Effect of amendment 1219

EQUAL SUFFRAGE

Amendment 19

Clause 1. The right of the citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of sex.

Clause 2. Congress shall have power to enforce this article by appropriate legislation.

Origin of the Nineteenth Amendment

The adoption of this amendment is attributable in great measure to its advocacy since 1869 by certain long term supporters of women suffrage who had despaired of attaining their goal through modification of individual State laws. Agitation in behalf of women suffrage was recorded as early as the Jackson Administration, but the initial results were meager. Beginning in 1838, Kentucky did authorize women to vote in school elections, and its action was later copied by a number of other States. Kansas in 1887 even granted women unlimited rights to vote in municipal elections. Not until 1869, however, when Wyoming, as a territory, accorded women suffrage on terms of equality with men and continued to grant such privileges after its admission as a State in 1890, did these advocates register a notable victory. Progress thereafter proved discouraging, only ten additional other States having been added to the fold as of 1914; and as a consequence sponsors of equal voting rights for women concentrated on obtaining ratification of this amendment.

Validity of Adoption

Cases relating to this question are presented and discussed under article V.

Effect of Amendment

Although owning that the Nineteenth Amendment "applies to men and women alike and by its own force supersedes inconsistent measures, whether federal or State," the Court was unable to concede that a Georgia statute levying on inhabitants of the State a poll tax payment of which is made a prerequisite for voting but exempting females who do not register for voting, in any way abridged the right of male citizens to vote on account of their sex. To accept the appellant's contention, the Court urged, would make the Nineteenth Amendment a limitation on the taxing power.[1]

Notes

[1] Breedlove v. Suttles, 302 U.S. 277, 283-284 (1937). Although other interpretive decisions of federal courts are unavailable, many State courts, taking their cue from pronouncements of the Supreme Court as to the operative effect of the similarly phrased Fifteenth Amendment, have proclaimed that the Nineteenth Amendment did not confer upon women the right to vote but only prohibits discrimination against them in the drafting and administration of laws relating to suffrage qualifications and the conduct of elections. Like the Fifteenth Amendment, the Nineteenth Amendment, according to these State tribunals, is self-executing and by its own force and effect legally expunged the word, "male," and the masculine pronoun from State constitutions and laws defining voting qualifications and the right to vote to the end that such provisions now apply to both sexes.--See State v. Mittle, 120 S.C. 526 (1922); writ of error dismissed, 260 U.S. 705 (1922); Graves v. Eubank, 205 Ala. 174 (1921); in re Cavellier, 159 Misc. (N.Y.) 212; 287 N.Y.S. 739 (1936).

AMENDMENT 20

COMMENCEMENT OF THE TERMS OF THE PRESIDENT, VICE PRESIDENT, AND MEMBERS OF CONGRESS, ETC.

Page Extension of Presidential succession 1225

COMMENCEMENT OF THE TERMS OF THE PRESIDENT, VICE PRESIDENT, AND MEMBERS OF CONGRESS, ETC.

Amendment 20

Section 1. The terms of the President and Vice President shall end at noon on the 20th day of January, and the terms of Senators and Representatives at noon on the 3d day of January, of the years in which such terms would have ended if this article had not been ratified; and the terms of their successors shall then begin.

Section 2. The Congress shall assemble at least once in every year, and such meeting shall begin at noon on the 3d day of January, unless they shall by law appoint a different day.

Section 3. If, at the time fixed for the beginning of the term of the President, the President elect shall have died, the Vice President elect shall become President. If a President shall not have been chosen before the time fixed for the beginning of his term, or if the President elect shall have failed to qualify, then the Vice President elect shall act as President until a President shall have qualified; and the Congress may by law provide for the case wherein neither a President elect nor a Vice President elect shall have qualified, declaring who shall then act as President, or the manner in which one who is to act shall be selected, and such person shall act accordingly until a President or Vice President shall have qualified.

Section 4. The Congress may by law provide for the case of the death of any of the persons from whom the House of Representatives may choose a President whenever the right of choice shall have devolved upon them, and for the case of the death of any of the persons from whom the Senate may choose a Vice President whenever the right of choice shall have devolved upon them.

Section 5. Sections 1 and 2 shall take effect on the 15th day of October following the ratification of this article.

Section 6. This article shall be inoperative unless it shall have been ratified as an amendment to the Constitution by the legislatures of three-fourths of the several States within seven years from the date of its submission.

Extension of Presidential Succession

Pursuant to the authority conferred upon it by section 3 of this amendment, Congress shaped the Presidential Succession Act of 1948[1] to meet the situation which would arise from the failure of both President elect and Vice President elect to qualify on or before the time fixed for the beginning of the new Presidential term.

Notes

[1] 62 Stat. 672, 677; 3 U.S.C.A. 19; See p. 388.

AMENDMENT 21

REPEAL OF EIGHTEENTH AMENDMENT

Page Effect of repeal 1231 Scope of the regulatory power conferred upon the States 1231 Discrimination as between domestic and imported products 1231 Regulation of transportation and "through" shipments 1231 Regulation of imports destined for a federal area 1233 Effect on federal regulation 1233

REPEAL OF EIGHTEENTH AMENDMENT

Amendment 21

Section 1. The eighteenth article of amendment to the Constitution of the United States is hereby repealed.

Section 2. The transportation or importation into any State, Territory, or possession of the United States for delivery or use therein of intoxicating liquors, in violation of the laws thereof, is hereby prohibited.

Section 3. This article shall be inoperative unless it shall have been ratified as an amendment to the Constitution by conventions in the several States, as provided in the Constitution, within seven years from the date of the submission hereof to the States by the Congress.

Effect of Repeal

The operative effect of section 1, repealing the Eighteenth Amendment, is considered under the latter amendment.

Scope of the Regulatory Power Conferred Upon the States

DISCRIMINATION AS BETWEEN DOMESTIC AND IMPORTED PRODUCTS

In a series of interpretive decisions rendered shortly after ratification of this amendment, the Court established the proposition that States are competent to adopt legislation discriminating against imported intoxicating liquors in favor of those of domestic origin and that such discrimination offends neither the commerce clause of article I nor the equal protection and due process clauses of the Fourteenth Amendment. Thus, in State Board of Equalization v. Young's Market Co.[1] a California statute was upheld which exacted a $500 annual license fee for the privilege of importing beer from other States and a $750 fee for the privilege of manufacturing beer; and in Mahoney v. Triner Corp.[2] a Minnesota statute was sustained which prohibited a licensed manufacturer or wholesaler from importing any brand of intoxicating liquor containing more than 25% of alcohol by volume and ready for sale without further processing, unless such brand was registered in the United States Patent Office. Also validated in Indianapolis Brewing Co. v. Liquor Commission[3] and Finch & Co. v. McKittrick[4] were retaliation laws enacted by Michigan and Missouri, respectively, by the terms of which sales in each of these States of beer manufactured in a State already discriminating against beer produced in Michigan or Missouri were rendered unlawful.

Conceding, in State Board of Equalization v. Young's Market Co.,[5] that "prior to the Twenty-first Amendment it would obviously have been unconstitutional to have imposed any fee for * * * the privilege of importation * * * even if the State had exacted an equal fee for the privilege of transporting domestic beer from its place of manufacture to the [seller's] place of business," the Court proclaimed that this amendment "abrogated the right to import free, so far as concerns intoxicating liquors." Inasmuch as the States were viewed as having acquired therefrom an unconditioned authority to prohibit totally the importation of intoxicating beverages, it logically followed that any discriminatory restriction falling short of total exclusion was equally valid, notwithstanding the absence of any connection between such restriction and public health, safety or morals. As to the contention that the unequal treatment of imported beer would contravene the equal protection clause, the Court succinctly observed that a "classification recognized by the Twenty-first Amendment cannot be deemed forbidden by the Fourteenth."[6]

REGULATION OF TRANSPORTATION AND "THROUGH" SHIPMENTS

Lately, however, when passing upon the constitutionality of legislation regulating the carriage of liquor interstate, a majority of the Justices have been disposed to by-pass the Twenty-first Amendment and to resolve the issue exclusively in terms of the commerce clause and State police power. This trend toward devaluation of the Twenty-first Amendment was set in motion by Ziffrin, Inc. v. Reeves[7] wherein a Kentucky statute, forbidding the transportation of intoxicating liquors by carriers other than licensed common carriers, was enforced as to an Indiana corporation, engaged in delivering liquor obtained from Kentucky distillers to consignees in Illinois; but licensed only as a contract carrier under the Federal Motor Carriers Act. After acknowledging that "the Twenty-first Amendment sanctions the right of a State to legislate concerning intoxicating liquors brought from without, unfettered by the Commerce Clause,"[8] the Court then proceeded to found its ruling largely upon decisions antedating the amendment which sustained similar State regulations as a legitimate exercise of the police power not unduly burdening interstate commerce. In the light of the cases enumerated in the preceding paragraph, wherein the Twenty-first Amendment was construed as according a plenary power to the States, such extended emphasis on the police power and the commerce clause would seem to have been unnecessary. Thereafter, a total eclipse of the Twenty-first Amendment was recorded in Duckworth v. Arkansas[9] and Carter v. Virginia[10] wherein, without even considering that amendment, a majority of the Court upheld, as not contravening the commerce clause, statutes regulating the transport through the State of liquor cargoes originating and ending outside the regulating State's boundaries.[11]

REGULATION OF IMPORTS DESTINED FOR A FEDERAL AREA

Intoxicating beverages brought into a State for ultimate delivery at a National Park located therein but over which the United States retained exclusive jurisdiction has been construed as not constituting "transportation * * * into [a] State for delivery and use therein" within the meaning of section 2 of this amendment. The importation having had as its objective delivery and use in a federal area over which the State retained no jurisdiction, the increased powers which the latter acquired from the Twenty-first Amendment were declared to be inapplicable. California therefore could not extend the importation license and other regulatory requirements of its Alcoholic Beverage Control Act to a retail liquor dealer doing business in the Park.[12]

Effect on Federal Regulation

The Twenty-first Amendment of itself did not, it was held, bar a prosecution under the federal Sherman Antitrust Law of producers, wholesalers, and retailers charged with conspiring to fix and maintain retail prices of alcoholic beverages in Colorado.[13] In a concurring opinion, supported by Justice Roberts, Justice Frankfurter took the position that if the State of Colorado had in fact "* * * authorized the transactions here complained of, the Sherman Law could not override such exercise of state power. * * * [Since] the Sherman Law, * * *, can have no greater potency than the Commerce Clause itself, it must equally yield to state power drawn from the Twenty-first Amendment."[14] All other efforts to invoke the Twenty-first Amendment as a limitation upon the constitutional powers of the National Government, notably to invalidate the imposition, pursuant to the war power, of federal price controls on retail sales of liquors, have been equally abortive.[15]

Notes

[1] 299 U.S. 59 (1936).

[2] 304 U.S. 401 (1938).

[3] 305 U.S. 391 (1939).

[4] 305 U.S. 395 (1939).

[5] 299 U.S. 59, 62 (1936).

[6] Ibid 63-64. In the three decisions rendered subsequently, the Court merely restated these conclusions. The contention that discriminatory regulation of imported liquors violated the due process clause was summarily rejected in Indianapolis Brewing Co. v. Liquor Commission, 305 U.S. 391, 394 (1939).

[7] 308 U.S. 132 (1939).

[8] Ibid. 138.

[9] 314 U.S. 390 (1941).

[10] 321 U.S. 131 (1944). See also Cartlidge v. Rainey, 168 F. (2d) 841 (1948); certiorari denied, 335 U.S. 885 (1948).

[11] Arkansas required a permit for the transportation of liquor across its territory, but granted the same upon application and payment of a nominal fee. Virginia required carriers engaged in similar through-shipments to use the most direct route, carry a bill of lading describing that route, and post a $1000 bond conditioned on lawful transportation; and also stipulated that the true consignee be named in the bill of lading and be one having the legal right to receive the shipment at destination.

[12] Collins v. Yosemite Park, 304 U.S. 518, 537-538 (1938).

[13] United States v. Frankfort Distilleries, Inc., 324 U.S. 293, 297-299 (1945).

[14] Ibid. 301-302.

[15] Jatros v. Bowles, 143 F. (2d) 453, 455 (1944); Barnett v. Bowles, 151 F. (2d) 77, 79 (1945), certiorari denied, 326 U.S. 766 (1945); Dowling Bros. Distilling Co. v. United States, 153 F. (2d) 353, 357 (1946), certiorari denied, (Gould et al. v. United States) 328 U.S. 848 (1946); rehearing denied, 329 U.S. 820 (1946).

AMENDMENT 22

PRESIDENTIAL TENURE

Section 1. No person shall be elected to the office of the President more than twice, and no person who has held the office of President, or acted as President, for more than two years of a term to which some other person was elected President shall be elected to the office of the President more than once. But this Article shall not apply to any person holding the office of President when this Article was proposed by Congress, and shall not prevent any person who may be holding the office of President, or acting as President, during the term within which this Article becomes operative from holding the office of President or acting as President during the remainder of such term.

Section 2. This Article shall be inoperative unless it shall have been ratified as an amendment to the Constitution by the legislatures of three-fourths of the several States within seven years from the date of its submission to the States by the Congress.

ACTS OF CONGRESS HELD UNCONSTITUTIONAL IN WHOLE OR IN PART BY THE SUPREME COURT OF THE UNITED STATES

1. Act of September 24, 1789 (1 Stat. 81, sec. 13, in part).

Provision that "* * * [the Supreme Court] shall have power to issue * * * writs of mandamus, in cases warranted by the principles and usages of law, to any * * * persons holding office, under authority of the United States" as applied to the issue of mandamus to the Secretary of State requiring him to deliver to plaintiff a commission (duly signed by the President) as justice of the peace in the District of Columbia, held an attempt to enlarge the original jurisdiction of the Supreme Court, fixed by article III, section 2.

Marbury v. Madison, 1 Cr. 137 (February 24, 1803).

2. Act of February 20, 1812 (2 Stat. 677, ch. 22).

Provisions authorizing land officers to examine into "validity of claims to land * * * which are derived from confirmations made * * * by the governors of the Northwest * * * territory", held not to authorize annulment of title confirmed by Governor St. Clair in 1799, nor to validate a subsequent sale and patent by the United States. (See Fifth Amendment.)

Reichert v. Felps, 6 Wallace 160 (March 16, 1868).

3. Act of March 6, 1820 (3 Stat. 548, sec. 8, proviso).

The Missouri Compromise, prohibiting slavery within the Louisiana Territory north of 36 deg. 30', except Missouri, held not warranted as a regulation of Territory belonging to the United States under article IV, section 3, clause 2 (and see Fifth Amendment).

Dred Scott v. Sandford, 19 Howard 393 (March 6, 1857).

4. Act of February 25, 1862 (12 Stat. 345, sec. 1); July 11, 1862 (12 Stat. 532, sec. 1); March 3, 1863 (12 Stat. 711, sec. 3), each in part only.

"Legal tender clauses", making noninterest-bearing United States notes legal tender in payment of "all debts, public and private", so far as applied to debts contracted before passage of the act, held not within express or implied powers of Congress under article I, section 8, and inconsistent with article I, section 10, and Fifth Amendment.

Hepburn v. Griswold, 8 Wallace 603 (February 7, 1870); overruled in Knox v. Lee (Legal Tender cases), 12 Wallace 457 (May 1, 1871).

5. Act of March 3, 1863 (12 Stat. 756, ch. 81, sec. 5).

"So much of the fifth section * * * as provides for the removal of a judgment in a State court, and in which the cause was tried by a jury to the circuit court of the United States for a retrial on the facts and law, is not in pursuance of the Constitution, and is void" under the Seventh Amendment.

The Justices v. Murray, 9 Wallace 274 (March 14, 1870).

6. Act of March 3, 1863 (12 Stat. 766, ch. 92, sec. 5).

Provision for an appeal from the Court of Claims to the Supreme Court--there being, at the time, a further provision (sec. 14) requiring an estimate by the Secretary of the Treasury before payment of final judgments, held to contravene the judicial finality intended by the Constitution, article III.

Gordon v. United States, 2 Wallace 561 (March 10, 1865). (Case was dismissed without opinion; the grounds upon which this decision was made were stated in a posthumous opinion by Chief Justice Taney printed in the appendix to volume 117 of the U.S. Reports at p. 697.)

7. Act of June 30, 1864 (13 Stat. 311, ch. 174, sec. 13).

Provision that "any prize cause now pending in any circuit court shall, on the application of all parties in interest * * * be transferred by that court to the Supreme Court * * *", as applied in a case where no action had been taken in the Circuit Court on the appeal from the District Court, held to propose an appeal procedure not within article III, section 2.

The "Alicia", 7 Wallace 571 (January 25, 1869).

8. Act of January 24, 1865 (13 Stat. 424, ch. 20).

Requirement of a test oath (disavowing actions in hostility to the United States) before admission to appear as attorney in a Federal court by virtue of any previous admission, held invalid as applied to an attorney who had been pardoned by the President for all offenses during the Rebellion--as ex post facto (art. I, sec. 9, clause 3) and an interference with the pardoning power (art. II, sec. 2, clause 1).

Ex parte Garland, 4 Wallace 333 (January 14, 1867).

9. Act of July 13, 1866 (14 Stat. 138), amending act of June 30, 1864 (13 Stat. 284, ch. 173, sec. 122).

Tax on indebtedness of railroads, "* * * to whatsoever party or person the same may be payable", as applied to railroad bonds held by a municipal corporation under authority of the State, held an infringement of reserved State sovereignty.

United States v. Baltimore & O.R. Co., 17 Wallace 322 (April 3, 1873).

10. Act of March 2, 1867 (14 Stat. 477, ch. 169, sec. 13), amending act of June 30, 1864 (13 Stat. 281, sec. 116).

Tax on income of "* * * every person residing in the United States * * * whether derived from * * * salaries * * * or from any source whatever * * *", as applied to income of State judges, held an interference with reserved powers of State. (See Tenth Amendment.)

The Collector v. Day, 11 Wallace 113 (April 3, 1871).

11. Act of March 2, 1867 (14 Stat. 484, ch. 169, sec. 29).

General prohibition on sale of naphtha, etc., for illuminating purposes, if inflammable at less temperature than 110 deg. F., held invalid "except so far as the section named operates within the United States, but without the limits of any State," as being a mere police regulation.

United States v. Dewitt, 9 Wallace 41 (February 21, 1870).

12. Act of May 31, 1870 (16 Stat. 140, ch. 114, sees. 3, 4).

Provisions penalizing (1) refusal of local election officials to permit voting by persons offering to qualify under State laws, applicable to any citizens; and (2) hindering of any person from qualifying or voting, held invalid under Fifteenth Amendment.

United States v. Reese et al., 92 U.S. 214 (March 27, 1876).

13. Act of July 12, 1870 (16 Stat. 235, ch. 251).

Provision making Presidential pardons inadmissible in evidence in Court of Claims, prohibiting their use by that court in deciding claims or appeals, and requiring dismissal of appeals by the Supreme Court in cases where proof of loyalty had been made otherwise than as prescribed by law, held an interference with judicial power under article III, section 1, and with the pardoning power under article II, section 2, clause 1.

United States v. Klein, 13 Wallace 128 (January 29, 1872).

14. Act of June 22, 1874 (18 Stat. 187, sec. 5).

Provision authorizing Federal courts to require production of documents in proceedings, other than criminal, under the revenue laws (the allegations expected to be proved thereby to be taken as proved, on failure to produce such documents), held as applied to a suit for forfeiture under the customs laws, to constitute unreasonable search in violation of the Fourth Amendment.

Boyd v. United States, 116 U.S. 616 (February 1, 1886).

15. Revised Statutes 1977 (act of May 31, 1870, 16 Stat. 144).

Provision that "all persons within the jurisdiction of the United States shall have the same right in every State and Territory to make and enforce contracts * * * as is enjoyed by white citizens * * *," held invalid under the Thirteenth Amendment.

Hodges v. United States, 203 U.S. 1 (May 28, 1906).

16. Revised Statutes 4937-4947 (act of July 8, 1870, 16 Stat. 210), and act of August 14, 1876 (19 Stat. 141).

Original trademark law, applying to marks "for exclusive use within the United States," and a penal act designed solely for the protection of rights defined in the earlier measure, held not supportable by article I, section 8, clause 8 (copyright clause), nor article I, section 8, clause 3 (interstate commerce).

Trade-Mark Cases, 100 U.S. 82 (November 17, 1879).

17. Revised Statutes 5132, subdivision 9 (act of March 2, 1867, 14 Stat. 539).

Provision penalizing "any person respecting whom bankruptcy proceedings are commenced * * * who, within 3 months before the commencement of proceedings in bankruptcy, under the false color and pretense of carrying on business and dealing in the ordinary course of trade, obtains on credit from any person any goods or chattels with intent to defraud * * *," held a police regulation not within the bankruptcy power (art. I, sec. 8, clause 4).

United States v. Fox, 95 U.S. 670 (January 7, 1878).

18. Revised Statutes 5507 (act of May 31, 1870, 16 Stat. 141, sec. 4).

Provision penalizing "every person who prevents, hinders, controls, or intimidates another from exercising * * * the right of suffrage, to whom that right is guaranteed by the Fifteenth Amendment to the Constitution of the United States, by means of bribery * * *," held not authorized by the said Fifteenth Amendment.

James v. Bowman, 190 U.S. 127 (May 4, 1903).

19. Revised Statutes 5519 (act of April 20, 1871, 17 Stat. 13, ch. 22, sec. 2).

Section providing punishment in case "two or more persons in any State * * * conspire * * * for the purpose of depriving * * * any person * * * of the equal protection of the laws * * * or for the purpose of preventing or hindering the constituted authorities of any State * * * from giving or securing to all persons within such State * * * the equal protection of the laws * * *," held invalid for punishment of conspiracy within a State--as not supported by the Thirteenth to Fifteenth Amendments.

United States v. Harris, 106 U.S. 629 (January 22, 1883).

In Baldwin v.. Franks, 120 U.S. 678 (March 7, 1887), an attempt was made to distinguish the Harris case, and apply it to conspiracy against aliens, though within a State, and held, the provision was not separable in such case.

20. Revised Statutes of the District of Columbia, section 1064 (act of June 17, 1870, 16 Stat. 154, ch. 133, sec. 3).

Provision that "prosecutions in the police court [of the District of Columbia] shall be by information under oath, without indictment by grand jury or trial by petit jury," as applied to punishment for conspiracy, held to Contravene article III, section 2, clause 3, requiring jury trial of all crimes.

Callan v. Wilson, 127 U.S. 540 (May 14, 1888).

21. Act of March 1, 1875 (18 Stat. 336, secs. 1, 2).

Provision "That all persons within the jurisdiction of the United States shall be entitled to the full and equal enjoyment of the accommodations * * * of inns, public conveyances on land or water, theaters, and other places of public amusement; subject only to the conditions and limitations established by law, and applicable alike to citizens of every race and color, regardless of any previous condition of servitude"--subject to penalty, held not to be supported by the Thirteenth or Fourteenth Amendments.

Civil Rights Cases, 109 U.S. 3 (October 15, 1883), as to operation within States.

Butts v. Merchants and Miners Transportation Co., 230 U.S. 126 (June 16, 1913) as to operation outside the States.

22. Act of March 3, 1875 (18 Stat. 479, ch. 144, sec. 2).

Provision that "if the party [i.e., a person stealing property from the United States] has been convicted, then the judgment against him shall be conclusive evidence in the prosecution against [the] receiver that the property of the United States therein described has been embezzled, stolen, or purloined," held to contravene the Sixth Amendment.

Kirby v. United States, 174 U.S. 47 (April 11, 1899).

23. Act of July 12, 1876 (19 Stat. 80, sec. 6, in part).

Provision that "postmasters of the first, second, and third classes * * * may be removed by the President by and with the advice and consent of the Senate," held to infringe the executive power under article II, section 1, clause 1.

Myers v. United States, 272 U.S. 52 (October 25, 1926).

24. Act of August 14, 1876 (19 Stat. 141, trademark act), see Revised Statutes 4937.

25. Act of August 11, 1888 (25 Stat. 411).

Clause, in a provision for the purchase or condemnation of a certain lock and dam in the Monongahela River, that "* * * in estimating the sum to be paid by the United States, the franchise of said corporation to collect tolls shall not be considered or estimated * * *," held to contravene the Fifth Amendment.

Monongahela Navigation Co. v. United States, 148 U.S. 312 (March 27, 1893).

26. Act of May 5, 1892 (27 Stat. 25, ch. 60, sec. 4).

Provision of a Chinese exclusion act, that Chinese persons "convicted and adjudged to be not lawfully entitled to be or remain in the United States shall be imprisoned at hard labor for a period not exceeding 1 year and thereafter removed from the United States * * *" (such conviction and judgment being had before a justice, judge, or commissioner upon a summary hearing), held to contravene the Fifth and Sixth Amendments.

Wong Wing v. United States, 163 U.S. 228 (May 18, 1896).

27. Joint Resolution of August 4, 1894 (28 Stat. 1018, No. 41).

Provision authorizing the Secretary of the Interior to approve a second lease of certain land by an Indian chief in Minnesota (granted to lessor's ancestor by art. 9 of a treaty with the Chippewa Indians), held an interference with judicial interpretation of treaties under article III, section 2, clause 1 (and repugnant to the Fifth Amendment).

Jones v. Meehan, 175 U.S. 1 (October 30, 1899).

28. Act of August 27, 1894 (28 Stat. 553-560, secs. 27-37).

Income tax provisions of the tariff act of 1894. "The tax imposed by sections 27 and 37, inclusive * * * so far as it falls on the income of real estate and of personal property, being a direct tax within the meaning of the Constitution, and, therefore, unconstitutional and void because not apportioned according to representation [art. I, sec. 2, clause 3], all those sections, constituting one entire scheme of taxation, are necessarily invalid" (158 U.S. 601, 637).

Pollock v. Farmers' Loan and Trust Co., 157 U.S. 429 (April 8, 1895) and rehearing, 158 U.S. 601 (May 20, 1895).

29. Act of January 30, 1897 (29 Stat. 506, ch. 109).

Prohibition on sale of liquor "* * * to any Indian to whom allotment of land has been made while the title to the same shall be held in trust by the Government * * *," held a police regulation infringing State powers, and not warranted by the commerce clause, article I, section 8, clause 3.

Matter of Heff, 197 U.S. 488 (April 10, 1905) overruled in United States v. Nice, 241 U.S. 591 (1916).

30. Act of June 1, 1898 (30 Stat. 428).

Section 10, penalizing "any employer subject to the provisions of this act" who should "threaten any employee with loss of employment * * * because of his membership in * * * a labor corporation, association, or organization" (the act being applicable "to any common carrier * * * engaged in the transportation of passengers, or property * * * from one State * * * to another State * * *," etc.), held an infringement of the Fifth Amendment, not supported by the commerce clause.

Adair v. United States, 208 U.S. 161 (January 27, 1908).

31. Act of June 13, 1898 (30 Stat. 451, 459).

Stamp tax on foreign bills of lading, held a tax on exports in violation of article I, section 9.

Fairbank v. United States, 181 U.S. 283 (April 15, 1901).

32. Same (30 Stat. 451, 460).

Tax on charter parties, as applied to shipments exclusively from ports in United States to foreign ports, held a tax on exports in violation of article I, section 9.

United States v. Hvoslef, 237 U.S. 1 (March 22, 1915).

33. Same (30 Stat. 451, 461).

Tax on policies of marine insurance, as applied to insurance during voyage to foreign ports, held a tax on exports in violation of article I, section 9.

Thames and Mersey Marine Insurance Co. v. United States, 237 U.S. 19 (April 5, 1915).

34. Act of June 6, 1900 (31 Stat. 359, sec. 171).

Section of the Alaska Code providing for a six-person jury in trials for misdemeanors, held repugnant to the Sixth Amendment, requiring "jury" trial of crimes.

Rassmussen v. United States, 197 U.S. 516 (April 10, 1905).

35. Act of March 3, 1901 (31 Stat. 1341, sec. 935).

Section of the District of Columbia Code granting the same right of appeal, in criminal cases, to the United States or the District of Columbia as to the defendant, but providing that a verdict was not to be set aside for error found in rulings during trial, held an attempt to take an advisory opinion, contrary to article III, section 2.

United States v. Evans, 213 U.S. 297 (April 19, 1909).

36. Act of June 11, 1906 (34 Stat. 232, ch. 3073).

Act providing that "every common carrier engaged in trade or commerce in the District of Columbia * * * or between the several States * * * shall be liable to any of its employees * * * for all damages which may result from the negligence of any of its officers * * * or by reason of any defect * * * due to its negligence in its cars, engines * * * roadbed", etc., held not supportable under article I, section 8, clause 3 as applied to employees engaged in moving trains in interstate commerce.

Employers' Liability Cases, 207 U.S. 463 (January 6, 1908). [The act was upheld as to the District of Columbia in Hyde v. Southern R. Co., 31 App. D.C. 466 [1908]; and as to Territories, in El Paso and Northeastern R. Co. v. Gutierrez, 215 U.S. 87 [1909].]

37. Act of June 16, 1906 (34 Stat. 269, sec. 2).

Provision of Oklahoma Enabling Act restricting relocation of the State capital prior to 1913, held not supportable by article IV, section 3, authorizing admission of new States.

Coyle v. Oklahoma (Smith), 221 U.S. 559 (May 29, 1911).

38. Act of February 20, 1907 (34 Stat. 899, sec. 3).

Provision in the Immigration Act of 1907 penalizing "whoever * * * shall keep, maintain, control, support, or harbor in any house or other place, for the purpose of prostitution * * * any alien woman or girl, within 3 years after she shall have entered the United States," held an exercise of police power not within the control of Congress over immigration (whether drawn from the commerce clause or based on inherent sovereignty).

Keller v. United States, 213 U.S. 138 (April 5, 1909).

39. Act of March 1, 1907 (34 Stat. 1028).

Provisions authorizing certain Indians "to institute their suits in the Court of Claims to determine the validity of any acts of Congress passed since * * * 1902, insofar as said acts * * * attempt to increase or extend the restrictions upon alienation * * * of allotments of lands of Cherokee citizens * * *," and giving a right of appeal to the Supreme Court, held an attempt to enlarge the judicial power restricted by article III, section 2, to cases and controversies.

Muskrat v. United States and Brown and Gritts v. United States, 219 U.S. 346 (January 23, 1911).

40. Act of May 27, 1908 (35 Stat. 313, sec. 4).

Provision making locally taxable "all land [of Indians of the Five Civilized Tribes] from which restrictions have been or shall be removed," held a violation of the Fifth Amendment, in view of the Atoka Agreement, embodied in the Curtis Act of June 28, 1898, providing tax-exemption for allotted lands while title in original allottee, not exceeding 21 years.

Choate v. Trapp, 224 U.S. 665 (May 13, 1912).

41. Act of August 19, 1911 (37 Stat. 28).

A proviso in section 8 of the Federal Corrupt Practices Act fixing a maximum authorized expenditure by a candidate for Senator "in any campaign for his nomination and election," as applied to a primary election, held not supported by article I, section 4, giving Congress power to regulate the manner of holding elections for Senators and Representatives.

Newberry v. United States, 256 U.S. 232 (May 2, 1921).

42. Act of June 18, 1912 (37 Stat. 136, sec. 8).

Part of section 8 giving the Juvenile Court of the District of Columbia (proceeding upon information) concurrent jurisdiction of desertion cases (which were, by law, misdemeanors punishable by fine or imprisonment in the workhouse at hard labor for 1 year), held invalid under the Fifth Amendment, which gives right to presentment by a grand jury in case of infamous crimes.

United States v. Moreland, 258 U.S. 433 (April 17, 1922).

43. Act of March 4, 1913 (37 Stat. 988, part of par. 64).

Provision of the District of Columbia Public Utility Commission Act authorizing appeal to the United States Supreme Court from decrees of the District of Columbia Court of Appeals modifying valuation decisions of the Utilities Commission, held an attempt to extend the appellate jurisdiction of the Supreme Court to cases not strictly judicial within the meaning of article III, section 2.

Keller v. Potomac Electric Power Co. et al., 261 U.S. 428 (April 9, 1923).

44. Act of September 1, 1916 (39 Stat. 675, ch. 432, entire).

The original Child Labor Law, providing "that no producer * * * shall ship * * * in interstate commerce * * * any article or commodity the product of any mill * * * in which within 30 days prior to the removal of such product therefrom children under the age of 14 years have been employed or permitted to work more than 8 hours in any day, or more than 6 days in any week * * *," held not within the commerce power of Congress.

Hammer v. Dagenhart, 247 U.S. 251 (June 3, 1918).

45. Act of September 8, 1916 (39 Stat. 757, sec. 2(a) in part).

Provision of the income-tax law of 1916, that a "stock dividend shall be considered income, to the amount of its cash value," held invalid (in spite of the Sixteenth Amendment) as an attempt to tax something not actually income, without regard to apportionment under article I, section 2, clause 3.

Eisner v. Macomber, 252 U.S. 189 (March 8, 1920).

46. Act of October 3, 1917 (40 Stat. 302, secs. 4, 303, secs. 201 and 333, sec. 1206 (amending 39 Stat. 765, sec. 10)); and

Act of February 24, 1919 (40 Stat. 1075, secs. 230 and 1088, sec. 301).

Income and excess-profits taxes on income of "every corporation," as applied to income of an oil corporation from leases of land granted by the United States to a State, for the support of common schools, etc., held an interference with State governmental functions. (See Tenth Amendment.)

Burnet v. Coronado Oil & Gas Co., 285 U.S. 393 (April 11, 1932).

47. Same (40 Stat. 316, sec. 600 (f)).

The tax "upon all tennis rackets, golf clubs, baseball bats * * * balls of all kinds, including baseballs * * * sold by the manufacturer, producer, or importer * * *" as applied to articles sold by a manufacturer to a commission merchant for exportation, held a tax on exports within the prohibition of article I, section 9.

Spalding & Bros. v. Edwards, 262 U.S. 66 (April 23, 1923).

48. Act of October 6, 1917 (40 Stat. 395, ch. 97, in part).

The amendment of sections 24 and 256 of the Judicial Code (which prescribe the jurisdiction of district courts) "saving * * * to claimants the rights and remedies under the workmen's compensation law of any State," held an attempt to transfer legislative power to the States--the Constitution, by article III, section 2, and article I, section 8, having adopted rules of general maritime law.

Knickerbocker Ice Co. v. Stewart, 253 U.S. 149 (May 17, 1920).

49. Act of September 19, 1918 (40 Stat. 960, ch. 174).

Specifically, that part of the Minimum Wage Law of the District of Columbia which authorized the Wage Board "to ascertain and declare * * * (a) Standards of minimum wages for women in any occupation within the District of Columbia, and what wages are inadequate to supply the necessary cost of living to any such women workers to maintain them in good health and to protect their morals * * *," held to interfere with freedom of contract under the Fifth Amendment.

Adkins et al. v. Children's Hospital and Adkins et al. v. Lyons, 261 U.S. 525 (April 9, 1923)--overruled in West Coast Hotel Co. v. Parrish, 300 U.S. 379 (March 29, 1937).

50. Act of February 24, 1919 (40 Stat. 1065, ch. 18, sec. 213, in part).

That part of section 213 of the Revenue Act of 1918 which provided that "* * * for the purposes of this title * * * the term 'gross income' * * * includes gains, profits, and income derived from salaries, wages, or compensation for personal service (including in the case of * * * judges of the Supreme and inferior courts of the United States * * * the compensation received as such) * * *" as applied to a judge in office when the act was passed, held a violation of the guaranty of judges' salaries, in article III, section 1.

Evans v. Gore, 253 U.S. 245 (June 1, 1920).

Miles v. Graham (268 U.S. 501, June 1, 1925), held it invalid as applied to a judge taking office subsequent to the date of the act.

51. Act of February 24, 1919 (40 Stat. 1097, sec. 402 (c)).

That part of the estate tax providing that "gross estate" of a decedent should include value of all property "to the extent of any interest therein of which the decedent has at any time made a transfer or with respect to which he had at any time created a trust, in contemplation of or intended to take effect in possession or enjoyment at or after his death (whether such transfer or trust is made or created before or after the passage of this act), except in case of a bona fide sale * * *" as applied to a transfer of property made prior to the act and intended to take effect "in possession or enjoyment" at death of grantor, but not in fact testamentary or designed to evade taxation, held confiscatory, contrary to Fifth Amendment.

Nichols, Collector v. Coolidge et al., Executors, 274 U.S. 531 (May 31, 1927).

52. Act of February 24, 1919, title XII (40 Stat. 1138, entire title).

The Child Labor Tax Act, providing that "every person * * * operating * * * any * * * factory [etc.] * * * in which children under the age of 14 years have been employed or permitted to work * * * shall pay * * * in addition to all other taxes imposed by law, an excise tax equivalent to 10 percent of the entire net profits received * * * for such year from the sale * * * of the product of such * * * factory * * *," held beyond the taxing power under article I, section 8, clause 1, and an infringement of State authority.

Bailey v. Drexel Furniture Co. (Child Labor Tax Case), 259 U.S. 20 (May 15, 1922).

53. Act of October 22, 1919 (41 Stat. 298, sec. 2), amending act of August 10, 1917 (40 Stat. 277, sec. 4).

Section 4 of the Lever Act, providing in part "that it is hereby made unlawful for any person willfully * * * to make any unjust or unreasonable rate or charge in handling or dealing in or with any necessaries * * *" and fixing a penalty, held invalid to support an indictment for charging an unreasonable price on sale--as not setting up an ascertainable standard of guilt within the requirement of the Sixth Amendment.

United States v. Cohen Grocery Co., 255 U.S. 81 (February 28, 1921).

54. Same.

That provision of section 4 making it unlawful "to conspire, combine, agree, or arrange with any other person to * * * exact excessive prices for any necessaries" and fixing a penalty, held invalid to support an indictment, on the reasoning of the Cohen case.

Weeds, Inc., v. United States, 255 U.S. 109 (February 28, 1921)

55. Act of August 24, 1921 (42 Stat. 187, ch. 86, Future Trading Act).

(a) Section 4 (and interwoven regulations) providing a "tax of 20 cents a bushel on every bushel involved therein, upon each contract of sale of grain for future delivery, except * * * where such contracts are made by or through a member of a board of trade which has been designated by the Secretary of Agriculture as a 'contract market' * * *," held not within the taxing power under article I, section 8.

Hill v. Wallace, 259 U.S. 44 (May 15, 1922).

(b) Section 3, providing "That in addition to the taxes now imposed by law there is hereby levied a tax amounting to 20 cents per bushel on each bushel involved therein, whether the actual commodity is intended to be delivered or only nominally referred to, upon each * * * option for a contract either of purchase or sale of grain * * *", held invalid on the same reasoning.

Trusler v. Crooks, 269 U.S. 475 (Jan. 11, 1926).

56. Act of November 23, 1921 (42 Stat. 261, sec. 245, part).

Provision of Revenue Act of 1921 abating the deduction (4 percent of mean reserves) allowed from taxable income of life-insurance companies in general by the amount of interest on their tax-exempts, and so according no relative advantage to the owners of the tax-exempt securities, held to destroy a guaranteed exemption. (See Fifth Amendment.)

National Life Insurance Co. v. United States, 277 U.S. 508 (June 4, 1928).

57. Act of June 10, 1922 (42 Stat. 634, ch. 216).

A second attempt to amend sections 24 and 256 of the Judicial Code, relating to jurisdiction of district courts, by saving "to claimants for compensation for injuries to or death of persons other than the master or members of the crew of a vessel, their rights and remedies under the workmen's compensation law of any State * * *" held invalid on authority of Knickerbocker Ice Co. v. Stewart.

Industrial Accident Commission of California v. Rolph et al., and Washington v. Dawson & Co., 264 U.S. 219 (February 25, 1924).

58. Act of June 2, 1924 (43 Stat. 313).

The gift tax provisions of the Revenue Act of 1924, held invalid under the Fifth Amendment as applied to bona fide gifts made before passage of the act.

Untermeyer v. Anderson, 276 U.S. 440 (April 9, 1928).

59. Revenue Act of June 2, 1924 (43 Stat. 322, sec. 600, in part).

Excise tax on certain articles "sold or leased by the manufacturer", measured by sale price [specifically, "(2) * * * motorcycles * * * 5 per centum"]--as applied to sale of motorcycle to a municipality for police use, held an infringement of State immunity under the principle of Collector v. Day.

Indian Motorcycle Co. v. United States, 283 U.S. 570 (May 25, 1931).

60. Act of February 26, 1926 (44 Stat. 9, ch. 27, in part).

(a). Section 302 in part (44 Stat. 70).

Second sentence, defining, for purposes of the estate tax, the term "made in contemplation of death" as including the value, over $5,000, of property transferred by a decedent, by trust, etc., without full consideration in money or money's worth, "within 2 years prior to his death but after the enactment of this act", although "not admitted or shown to have been made in contemplation of or intended to take effect in possession or enjoyment at or after his death", held as applied to a transfer completed wholly between the living, spoliation without due process of law under the Fifth Amendment.

Heiner v. Donnan, 285 U.S. 312 (March 21, 1932).

(b). Section 701 in part (44 Stat. 95).

Provision imposing a special excise tax of $1,000 on liquor dealers in States where such business is illegal, held a penalty, without constitutional support following repeal of the Eighteenth Amendment.

United States v. Constantine, 296 U.S. 287 (December 9, 1935).

61. Act of March 20, 1933 (48 Stat. 11, sec. 17, in part).

Clause in the Economy Act of 1933 providing "* * * all laws granting or pertaining to yearly renewable term insurance are hereby repealed", held invalid to abrogate an outstanding contract of insurance, which is a vested right protected by the Fifth Amendment.

Lynch v. United States, 292 U.S. 571 (June 4, 1934).

62. Act of May 12, 1933 (48 Stat. 31).

Agricultural Adjustment Act providing for processing taxes on agricultural commodities and benefit payments therefrom to farmers, held not within the taxing power under article I, section 8, clause 1.

United States v. Wm. M. Butler et al., Receivers of Hoosac Mills Corp., 297 U.S. 1 (January 6, 1936).

63. Joint Resolution of June 5, 1933 (48 Stat. 113, sec. 1).

Abrogation of gold clause in Government obligations, held a repudiation of the pledge implicit in the power to borrow money (art. I, sec. 8, clause 2), and within the prohibition of the Fourteenth Amendment, against questioning the validity of the public debt. [The majority of the Court, however, held plaintiff not entitled to recover under the circumstances.]

Perry v. U.S., 294 U.S. 330 (February 18, 1935).

64. Act of June 16, 1933 (48 Stat. 195, ch. 90, the National Industrial Recovery Act).

A. Title I, except section 9.

Provisions relating to codes of fair competition, authorized to be approved by the President in his discretion "to effectuate the policy" of the act, held invalid as a grant of legislative power (see art. I, sec. 1) and not within the commerce power.

Schechter Poultry Corp. v. United States, 295 U.S. 495 (May 27, 1935).

B. Section 9 (c).

Clause of the oil regulation section authorizing the President "to prohibit the transportation in interstate * * * commerce of petroleum * * * produced or withdrawn from storage in excess of the amount permitted * * * by any State law * * *" and prescribing a penalty for violation of orders issued thereunder, held invalid as a grant of legislative power.

Panama Refining Co. et al. v. Ryan et al. and Amazon Petroleum Corp., et al. v. Ryan et al., 293 U.S. 388 (January 7, 1935).

65. Act of June 16, 1933 (48 Stat. 307, sec. 13).

Temporary reduction of 15 percent in retired pay of "judges (whose compensation, prior to retirement or resignation, could not, under the Constitution, have been diminished)", as applied to circuit or district judges retired from active service, but still subject to perform judicial duties under the act of March 1, 1929 (45 Stat. 1422), held a violation of the guaranty of judges' salaries under article III, section 1.

Booth v. United States (together with Amidon v. United States), 291 U.S. 339 (February 5, 1934).

66. Act of April 27, 1934 (48 Stat. 646, sec. 6), amending section 5 (i) of Home Owners' Loan Act of 1933.

Provision for conversion of State building and loan associations into federal associations, upon vote of 51 percent of the votes cast at a meeting of stockholders called to consider such action, held an encroachment on reserved powers of State.

Hopkins Federal Savings & Loan Association v. Cleary, 296 U.S. 315 (December 9, 1935).

67. Act of May 24, 1934 (48 Stat. 798, ch. 345).

Provision for readjustment of municipal indebtedness, held invalid, though "adequately related" to the bankruptcy power, as an interference with State sovereignty.

Ashton v. Cameron County Water Improvement District No. 1, 298 U.S. 513 (May 25, 1936).

68. Act of June 27, 1934 (48 Stat. 1283, ch. 868 entire).

The Railroad Retirement Act, establishing a detailed compulsory retirement system for employees of carriers subject to the Interstate Commerce Act, held, not a regulation of commerce within the meaning of article I, section 8, clause 3.

Railroad Retirement Board v. Alton R.R. et al., 295 U.S. 330 (May 6, 1935).

69. Act of June 28, 1934 (48 Stat. 1289, ch. 869).

The Frazier-Lemke Act, adding subsection (s) to section 75 of the Bankruptcy Act, designed to preserve to mortgagors the ownership and enjoyment of their farm property and providing specifically, in paragraph 7, that a bankrupt left in possession has the option at any time within 5 years of buying at the appraised value--subject meanwhile to no monetary obligation other than payment of reasonable rental, held a violation of property rights, under the Fifth Amendment.

Louisville Joint Stock Land Bank v. Radford, 295 U.S. 555 (May 27, 1935).

70. Act of August 24, 1935 (49 Stat. 750, ch. 641, title I).

Agricultural Adjustment Act amendments, held not within the taxing power.

Rickert Rice Mills v. Fontenot, 297 U.S. 110 (January 13, 1936).

71. Act of August 30, 1935 (49 Stat. 991, ch. 824).

Bituminous Coal Conservation Act of 1935, held to impose not a tax within article I, section 8, but a penalty not sustained by the commerce clause.

Carter v. Carter Coal Co., 298 U.S. 238 (May 18, 1936).

72. Act of June 30, 1938 (52 Stat. 1251, ch. 850, sec. 2 (f)).

Federal Firearms Act, section 2 (f), establishing a presumption of guilt based on a prior conviction and present possession of a firearm, held to violate the test of due process under the Fifth Amendment.

Tot v. United States, 319 U.S. 463 (June 7, 1943).

73. Act of November 15, 1943 (57 Stat. 450, ch. 218, sec. 304).

Urgent Deficiency Appropriation Act of 1943, section 304, providing that no salary should be paid to certain, named Federal employees out of moneys appropriated, held to violate article I, section 9, clause 3, forbidding enactment of bill of attainder or ex post facto law.

United States v. Lovett, 328 U.S. 303 (June 3, 1946).

TABLE OF CASES

A

Abby Dodge, The, 223 U.S. 166 (1912), 162

Abie State Bank v. Bryan, 282 U.S. 765 (1931), 983, 1020

Ableman v. Booth, 21 How. 506 (1859), 555, 625, 631, 696, 728

Abrams v. United States, 250 U.S. 616 (1919), 297, 774, 775, 794, 991

Adair v. Bank of America Assn., 303 U.S. 350 (1938), 263

Adair v. United States, 208 U.S. 161 (1908), 141, 846, 854

Adam v. Saenger, 303 U.S. 59 (1904), 570, 659, 1073, 1090

Adams v. Bellaire Stamping Co., 141 U.S. 539 (1891), 273

Adams v. Milwaukee, 228 U.S. 572 (1913), 1030, 1154

Adams v. New York, 192 U.S. 585 (1904), 831, 1166

Adams v. Storey, 1 Fed. Cas. No. 66 (1817), 262

Adams v. Tanner, 244 U.S. 590 (1917), 1023

Adams v. United States, 317 U.S. 269,(1942), 314, 885

Adams Express Co. v. Croninger, 226 U.S. 491 (1913), 247, 1015

Adams Express Co. v. Kentucky, 238 U.S. 190 (1915), 219

Adams Express Co. v. Ohio, 165 U.S. 194 (1897), 200, 201, 1050

Adams Express Co. v. Ohio, 166 U.S. 185 (1897), 201

Adams Mfg. Co. v. Storen, 304 U.S. 307 (1938), 195, 204, 207

Adamson v. California, 332 U.S. 46 (1947), 752, 971, 1104, 1115, 1116, 1117, 1118, 1122, 1123, 1124

Addyston Pipe & Steel Co. v. United States, 175 U.S. 211 (1899), 146, 168, 219, 855

Adirondack R. Co. v. New York, 176 U.S. 335 (1900), 344

Adkins v. Children's Hospital, 261 U.S. 525 (1923), 303, 561, 563, 846, 854, 980, 988, 1159

Adler v. Board of Education, 342 U.S. 485 (1952), 801

Admiral Peoples, The, 295 U.S. 649 (1935), 575

Advance-Rumely Thresher Co. v. Jackson, 287 U.S. 283 (1932), 1019

Aero Mayflower Transit Co. v. Board of R.R. Commrs., 332 U.S. 495 (1947), 212

Aero Mayflower Transit Co. v. Georgia Pub. Serv. Commission, 295 U.S. 285 (1935), 212, 1151

Aetna Ins. Co. v. Hyde, 275 U.S. 440 (1928), 896

Aetna Ins. Co. v. Kennedy, 301 U.S. 389 (1937), 897

Aetna Life Ins. Co. v. Dunken, 266 U.S. 389 (1924), 679

Aetna Life Ins. Co. v. Haworth, 300 U.S. 227 (1937), 514, 551, 552, 553

Aetna Life Ins. Co. v. Tremblay, 223 U.S. 185 (1912), 685

Ager v. Murray, 105 U.S. 126 (1882), 275

Agnello v. United States, 269 U.S. 20 (1925), 825, 828

Ah Sin v. Wittman, 198 U.S. 500 (1905), 1031

Aikens v. Wisconsin, 195 U.S. 194 (1904), 1018

Akins v. Texas, 325 U.S. 398 (1945), 1168

Akron C. & Y.R. Co. v. United States, 261 U.S. 184 (1923), 861

Alabama v. Arizona, 291 U.S. 286 (1934), 594

Alabama v. King & Boozer, 314 U.S. 1 (1941), 731

Alabama Comm'n. v. Southern R. Co., 341 U.S. 341 (1951), 934

Alabama Power Co. v. Ickes, 302 U.S. 464 (1938), 115, 542, 701

Alabama State Federation of Labor v. McAdory, 325 U.S. 450 (1945), 544, 550, 553, 561, 563

Alaska v. Troy, 258 U.S. 101 (1922), 323

Alaska Fish Salting & By-Products Co. v. Smith, 255 U.S. 44 (1921), 863

Alaska Packers Asso. v. Industrial Acci. Commission, 276 U.S. 467 (1928), 581

Alaska Packers Asso. v. Industrial Acci. Commission, 294 U.S. 532 (1935), 676, 990

Albrecht v. United States, 273 U.S. 1 (1927), 825, 840

Albrecht v. United States, 329 U.S. 599 (1947), 872

Algoma Plywood & Veneer Co. v. Wisconsin, 336 U.S. 301 (1949), 252

Allen v. Alleghany Co., 196 U.S. 458 (1905), 676

Allen v. Baltimore & O.R. Co., 114 U.S. 311 (1885), 931, 933

Allen v. Georgia, 166 U.S. 138 (1897), 1138, 1140

Allen v. McKean, 1 Fed. Cas. No. 229 (1833), 344

Allen v. Pullman's Palace Car Co., 191 U.S. 171 (1903), 196

Allen v. Regents of University System of Georgia, 304 U.S. 439 (1938), 107, 621

Allen v. Riley, 203 U.S. 347 (1906), 276

Allen v. Smith, 173 U.S. 389 (1899), 323

Allen Bradley Co. v. Union, 325 U.S. 797 (1945), 149

Allen-Bradley Local v. Employment Relations Board, 315 U.S. 740 (1942), 250

Allgeyer v. Louisiana, 165 U.S. 578 (1897), 1021, 1022

Alma Motor Co. v. Timken-Detroit Axle Co., 329 U.S. 129 (1946), 562

Almy v. California, 24 How. 169 (1861), 321, 364

Alpha Portland Cement Co. v. Massachusetts, 268 U.S. 203 (1925), 194, 202, 1050

Altman & Co. v. United States, 224 U.S. 583 (1912), 442

Alton R. Co. v. Illinois Comm'n., 305 U.S. 548 (1939), 1012

Altvater v. Freeman, 319 U.S. 359 (1943), 553

Alward v. Johnson, 282 U.S. 509 (1931), 731, 1151

American Communications Asso. v. Douds, 339 U.S. 382 (1950), 794

American Construction Co. v. Jacksonville T. & K.W.R. Co., 184 U.S. 372 (1893), 616

American Express Co. v. Caldwell, 244 U.S. 617 (1917), 136, 137, 219

American Express Co. v. Mullins, 212 U.S. 311 (1909), 654, 656, 674

American Federation of Labor v. American Sash Co., 335 U.S. 538 (1949), 680, 783, 991, 993

American Federation of Labor v. Swing, 312 U.S. 321 (1941), 782

American Fire Ins. Co. v. King Lumber Co., 250 U.S. 2 (1919), 680

American Ins. Co. v. Canter, 1 Pet. 511 (1828), 72, 73, 533, 704

American Land Co. v. Zeiss, 219 U.S. 47 (1911), 1080

American Manufacturing Co. v. St. Louis, 250 U.S. 459 (1919), 181, 1051

American Medical Assn. v. United States, 317 U.S. 519 (1943), 121

American Mills Co. v. American Surety Co., 260 U.S. 360 (1922), 895

American Power & Light Co. v. Securities & Exchange Commission, 329 U.S. 90 (1946), 75, 151, 564

American Publishing Co. v. Fisher, 166 U.S. 464 (1897), 892

American School of Magnetic Healing v. McAnnulty, 187 U.S. 94 (1902), 860

American Seeding Machine Co. v. Kentucky, 236 U.S. 660 (1915), 1017

American Steel & Wire Co. v. Speed, 192 U.S. 500 (1904), 185

American Sugar Refining Co. v. Louisiana, 179 U.S. 89 (1900), 1149

American Surety Co. v. Baldwin, 287 U.S. 156 (1932), 684, 1088, 1089

American Telephone & Telegraph Co. v. United States, 299 U.S. 232 (1936), 860

American Tobacco Co. v. United States, 328 U.S. 781 (1946), 840

American Tobacco Co. v. Werckmeister, 207 U.S. 284 (1907), 831

American Toll Bridge Co. v. Railroad Com. of California et al., 307 U.S. 486 (1939), 349

Ames v. Kansas ex rel. Johnston, 111 U.S. 449 (1884), 571, 613

Amos v. United States, 255 U.S. 313 (1921), 824

Anderson v. Dunn, 6 Wheat. 204 (1821), 85, 86

Anderson v. Santa Anna, 116 U.S. 356 (1886), 331

Anderson Nat. Bank v. Luckett, 321 U.S. 233 (1944), 1020, 1071, 1083, 1087

Andres v. United States, 333 U.S. 740 (1948), 879, 892

Andrews v. Andrews, 188 U.S. 14 (1903), 352, 429, 662, 665

Andrews v. Swartz, 156 U.S. 272 (1895), 1138

Andrews v. Wall, 3 How. 568 (1845), 574

Angel v. Bullington, 330 U.S. 183 (1947), 1089

Angle v. Chicago, St. P.M. & O.R. Co., 151 U.S. 1 (1894), 1035

Anglo-American Provision Co. v. Davis Provision Co., 191 U.S. 373 (1903), 657, 674

Anglo-Chilean Nitrate Sales Corp. v. Alabama, 288 U.S. 218 (1933), 195, 364

Anniston Mfg. Co. v. Davis, 301 U.S. 337 (1937), 858

Antelope, The, 10 Wheat. 66 (1825), 675

Anti-Fascist Committee v. McGrath, 341 U.S. 123 (1951), 801

Antoni v. Greenhow, 107 U.S. 769 (1883), 355

Appalachian Coals, Inc. v. United States, 288 U.S. 344 (1933), 152

Appleby v. Buffalo, 221 U.S. 524 (1911), 1066

Appleby v. Delaney, 271 U.S. 403 (1926), 329

Appleyard v. Massachusetts, 203 U.S. 222 (1906), 695

Arizona v. California, 283 U.S. 423 (1931), 131, 544, 564, 724

Arizona v. California, 292 U.S. 341 (1934), 369

Arizona Cooper Co. v. Hammer (Arizona Employers' Liability Cases), 250 U.S. 400 (1919), 989

Arkadelphia Milling Co. v. St. Louis S.W.R. Co., 249 U.S. 134 (1919), 526

Arkansas v. Kansas & T.C. Co. & S.F.R., 183 U.S. 185 (1901), 567

Arkansas Land & Cattle Co. v. Mann, 130 U.S. 69 (1889), 896

Arkansas Louisiana Gas Co. v. Dept. of Public Utilities, 304 U.S. 61 (1938), 234

Arlington Hotel Co. v. Fant, 278 U.S. 439 (1929), 305

Armour & Co. v. North Dakota, 240 U.S. 510 (1916), 248, 1019, 1154

Armour & Co. v. Virginia, 246 U.S. 1 (1918), 1148

Armour & Co. v. Wantock, 323 U.S. 126 (1944), 157

Armour Packing Co. v. Lacy, 200 U.S. 226 (1906), 185

Armour Packing Co. v. United States, 209 U.S. 56 (1908), 137, 881

Armstrong v. United States, 13 Wall. 154 (1872), 407

Armstrong's Foundry v. United States, 6 Wall. 766 (1868), 645

Arndstein v. McCarthy, 254 U.S. 71 (1920), 843

Arndt v. Griggs, 134 U.S. 316 (1890), 1072, 1080

Arrowsmith v. Gleason, 129 U.S. 86 (1889), 629

Arver v. United States (Selective Draft Law Cases), 245 U.S. 366 (1918), 768, 953, 965

Asbell v. Kansas, 209 U.S. 251 (1908), 248

Asbury Hospital v. Cass County, 326 U.S. 207 (1945), 362, 1016

Ashcraft v. Tennessee, 322 U.S. 143 (1944), 1113, 1121

Ashcraft v. Tennessee, 327 U.S. 274 (1946), 1114

Ashe v. United States ex rel. Valotta, 270 U.S. 424 (1926), 1110

Asher v. Texas, 128 U.S. 129 (1888), 187

Ashton v. Cameron County Water Improvement Dist, 298 U.S. 513 (1936), 262, 264, 936

Ashwander v. Tennessee Valley Authority, 297 U.S. 288 (1936), 132, 291, 440, 541, 544, 552, 562, 701, 909

Askren v. Continental Oil Co., 252 U.S. 444 (1920), 184, 239

Assaria State Bank v. Dolley, 219 U.S. 121 (1911), 1020

Associated Press v. National Labor Relations Board, 301 U.S. 103 (1937), 121, 793

Associated Press v. United States, 326 U.S. 1 (1945), 793

Atchison, T. & S.F.R. Co. v. Harold, 241 U.S. 371 (1916), 247

Atchison, T. & S.F.R. Co. v. Matthews, 174 U.S. 96 (1899), 1167

Atchison, T. & S.F.R. Co. v. O'Connor, 223 U.S. 280 (1912), 196, 931, 935

Atchison, T & S.F.R. Co. v. Railroad Commission, 283 U.S. 380 (1931), 223, 1012

Atchison, T. & S.F.R. Co. v. Sowers, 213 U.S. 55 (1909), 677, 685

Atchison, T. & S.F.R. Co. v. Vosburg, 238 U.S. 56 (1915), 1167

Atherton v. Atherton, 181 U.S. 155 (1901), 663

Atkin v. Kansas, 191 U.S. 207 (1903), 987, 1158

Atkins v. Moore, 212 U.S. 285 (1909), 537

Atkinson v. State Tax Commission, 303 U.S. 20 (1938), 307, 731

Atlantic & P. Teleg. Co. v. Philadelphia, 190 U.S. 160 (1903), 214

Atlantic Cleaners & Dyers, Inc. v. United States, 286 U.S. 427 (1932), 122, 303

Atlantic Coast Line R. Co. v. Daughton, 262 U.S. 413 (1923), 209

Atlantic Coast Line R. Co. v. Ford, 287 U.S. 502 (1933), 1095, 1156

Atlantic Coast Line R. Co. v. Georgia, 234 U.S. 280 (1914), 1014, 1156

Atlantic Coast Line R. Co. v. Glenn, 239 U.S. 388 (1915), 1015

Atlantic Coast Line R. Co. v. Goldsboro, 232 U.S. 548 (1914), 329, 352, 983, 1010, 1014

Atlantic Coast Line R. Co. v. North Carolina Corp. Commission, 206 U.S. 1 (1907), 1009

Atlantic Coast Line R. Co. v. Phillips, 332 U.S. 168 (1947), 330

Atlantic Lumber Co. v. Commissioner, 298 U.S. 553 (1936), 198, 202

Atlantic Refining Co. v. Virginia, 302 U.S. 22 (1937), 198, 1051

Atlantic Works v. Brady, 107 U.S. 192 (1882), 272

Atlee v. Northwestern Union P. Co., 21 Wall. 389 (1875), 574

Attorney General ex rel. Kies v. Lowrey, 199 U.S. 233 (1905), 340, 1036

Audubon v. Shufeldt, 181 U.S. 575 (1901), 671

Auffmordt v. Hedden, 137 U.S. 310 (1890), 452, 893

Austin v. Tennessee, 179 U.S. 343 (1900), 240

Austin v. United States, 155 U.S. 417 (1894), 324

Automobile Workers v. O'Brien, 339 U.S. 454 (1950), 252

Auto Workers v. Wis. Board, 336 U.S. 245 (1919), 252, 724, 783, 810, 953, 993

Avent v. United States, 266 U.S. 127 (1924), 76

Avery v. Alabama, 308 U.S. 444 (1940), 1099, 1101

Ayer & L. Tie Co. v. Kentucky, 202 U.S. 409 (1906), 210

Ayers, Ex parte, 123 U.S. 443 (1887), 351, 930, 933, 934

B

Bacardi Corp. v. Domenech, 311 U.S. 150 (1940), 418

Baccus v. Louisiana, 232 U.S. 334 (1914), 1156

Bachtel v. Wilson, 204 U.S. 36 (1907), 1145

Backus v. Lebanon, 11 N.H. 19 (1840), 350

Backus (A.) Jr. & Sons v. Port Street Union Depot Co., 169 U.S. 577 (1898), 1066

Bacon v. Howard, 20 How. 22 (1858), 654

Bacon v. Illinois, 227 U.S. 504 (1913), 185

Bacon v. Texas, 163 U.S. 207 (1896), 330

Bacon v. Walker, 204 U.S. 311 (1907), 982, 1028, 1154

Bacon & Sons v. Martin, 305 U.S. 380 (1939), 190

Badders v. United States, 240 U.S. 391 (1916), 905

Baender v. Barnett, 255 U.S. 224 (1921), 266

Bagnell v. Broderick, 13 Pet. 436 (1839), 702

Bailey v. Alabama, 219 U.S. 219 (1911), 950, 951, 1094, 1095

Bailey v. Anderson, 326 U.S. 203 (1945), 1070

Bailey v. Drexel Furniture Co. (Child Labor Tax Case), 259 U.S. 20 (1922), 111, 564, 918

Bain, Ex parte, 121 U.S. 1 (1837), 838

Bain Peanut Co. v. Pinson, 282 U.S. 499 (1931), 1167

Baiz, In re, 135 U.S. 403 (1890), 473, 572

Baizley Iron Works v. Span, 281 U.S. 222 (1930), 581, 582

Bakelite Corporation, Ex parte, 279 U.S. 438 (1929), 311, 534, 536

Baker v. Baker, E. & Co., 242 U.S. 394 (1917), 1088

Baker v. Grice, 169 U.S. 284 (1898), 634

Baker v. Morton, 12 Wall. 150 (1871), 699

Baker v. Selden, 101 U.S. 99 (1880), 275

Bakery & Pastry Drivers v. Wohl, 315 U.S. 769 (1942), 782

Baldwin v. Franks, 120 U.S. 678 (1887), 427, 688, 1176

Baldwin v. Iowa State Traveling Men's Assoc., 283 U.S. 522 (1931), 684, 1140

Baldwin v. Missouri, 281 U.S. 586 (1930), 1046, 1114

Baldwin v. Seelig, (G.A.F.), 294 U.S. 511 (1935), 241, 242, 244

Ballard v. Hunter, 204 U.S. 241 (1907), 1071, 1080, 1092, 1141

Baltic Min. Co. v. Massachusetts, 231 U.S. 68 (1913), 197, 1150

Baltimore & C. Line v. Redman, 295 U.S. 654 (1935), 891, 892, 897

Baltimore Nat. Bank v. State Tax Comm'n., 297 U.S. 209 (1936), 734

Baltimore & O.R. Co. v. Baugh, 149 U.S. 368 (1893), 604

Baltimore & O.R. Co. v. Hostetter, 240 U.S. 620 (1916), 674

Baltimore & O.R. Co. v. Interstate Commerce Comm., 221 U.S. 612 (1911), 140, 827, 855

Baltimore & S.R. Co. v. Nesbit, 10 How. 395 (1850), 327

Baltimore Shipbuilding & Dry Dock Co. v. Baltimore, 195 U.S. 375 (1904), 732

Balzac v. Porto Rico, 258 U.S. 298 (1922), 703, 877

Bandini Petroleum Co. v. Superior Court, 284 U.S. 8 (1931), 1026, 1096

Banholzer v. New York L. Ins. Co., 178 U.S. 402 (1900), 676

Bank of Alabama v. Dalton, 9 How. 522 (1850), 654

Bank of Augusta v. Earle, 13 Pet. 519 (1839), 198, 675, 688

Bank of Kentucky v. Wister, 2 Pet. 318 (1829), 930

Bank of Minden v. Clement, 256 U.S. 126 (1921), 356

Bank of United States v. Deveaux, 5 Cr. 61 (1809), 568, 601, 618

Bank of United States v. Halstead, 10 Wheat. 51 (1825), 311

Bank of the United States v. Planters' Bank of Ga., 9 Wheat. 904 (1824), 930

Banker Bros. Co. v. Pennsylvania, 222 U.S. 210 (1911), 188

Bankers Pocahontas Coal Co. v. Burnet, 287 U.S. 308 (1932), 1200

Bankers Trust Co. v. Blodgett, 260 U.S. 647 (1923), 316, 1061

Barber v. Barber, 21 How. 582 (1859), 671

Barber v. Barber, 323 U.S. 77 (1944), 671

Barbier v. Connolly, 113 U.S. 27 (1885), 1029, 1145

Barbour v. Georgia, 249 U.S. 454 (1919), 1032

Barnes v. Barnes, 8 Jones L. 53 (N.C.) 366 (1861), 336

Barnett v. Bowles, 151 F. (2d) 77 (1945), 1234

Barnett v. Bowles, 326 U.S. 766 (1945), 1234

Barney v. Baltimore, 6 Wall. 280 (1868), 302

Barney v. City of New York, 193 U.S. 430 (1904), 1177

Barnitz v. Beverly, 163 U.S. 118 (1896), 360

Barrett v. Indiana, 299 U.S. 26 (1913), 987, 1145

Barrett v. New York, 232 U.S. 14 (1914), 247

Barron v. Baltimore, 7 Pet. 243 (1833), 751, 1062

Barron v. Burnside, 121 U.S. 186 (1887), 638

Barrow S.S. Co. v. Kane, 170 U.S. 100 (1898), 638

Barry, Ex parte, 2 How. 65 (1844), 612

Barry v. Mercein, 5 How. 103 (1847), 616

Barry v. United States ex rel. Cunningham, 279 U.S. 597 (1929), 85, 96

Barsky v. United States, 334 U.S. 843 (1948), 100

Barsky v. United States, 167 F. (2d) 241 (1948), 100

Bartell v. United States, 227 U.S. 427 (1913), 884

Bartemeyer v. Iowa, 18 Wall. 129 (1874), 971

Barton v. Barbour, 104 U.S. 126 (1881), 893

Barwise v. Sheppard, 299 U.S. 33 (1936), 1039

Bas v. Tingy, 4 Dall. 37 (1800), 282, 423

Bass, Ratcliff & Gretton v. State Tax Commission, 266 U.S. 271 (1924), 203, 209, 1054

Bassing v. Cady, 208 U.S. 386 (1908), 695, 839

Bates v. Bodie, 245 U.S. 520 (1918), 671

Battle v. United States, 209 U.S. 36 (1908), 305

Bauman v. Ross, 167 U.S. 548 (1897), 872, 1059

Baumgartner v. United States, 322 U.S. 665 (1944), 257, 870

Baylis v. Travelers' Ins. Co., 113 U.S. 316 (1885), 897

Bayside Fish Flour Co. v. Gentry, 297 U.S. 422 (1936), 217, 237, 246, 1027, 1154

Beal v. Missouri Pacific R. Co., 312 U.S. 45 (1941), 631

Beall v. New Mexico ex rel. Griffin, 16 Wall. 535 (1873), 848

Beauharnais v. Illinois, 343 U.S. 250 (1952), 752, 802

Beavers v. Haubert, 198 U.S. 77 (1905), 881

Beavers v. Henkel, 194 U.S. 73 (1904), 881

Beazell v. Ohio, 269 U.S. 167 (1925), 329

Becker Steel Co. v. Cummings, 296 U.S. 74 (1935), 865

Bedford v. United States, 192 U.S. 217 (1904), 128

Bedford Co. v. Stone Cutters Assn., 274 U.S. 37 (1927), 149

Beidler v. South Carolina Tax Commission, 282 U.S. 1 (1930), 1047

Bekins Van Lines v. Riley, 280 U.S. 80 (1929), 1151

"Belfast," The, v. Boon, 7 Wall. 624 (1869), 575

Belknap v. Schild, 161 U.S. 10 (1896), 275, 590

Bell v. Bell, 181 U.S. 175 (1901), 665

Bell v. Hood, 327 U.S. 678 (1946), 501, 567

Bell's Gap R. Co. v. Pennsylvania, 134 U.S. 232 (1890), 1057, 1146, 1159

Bell Tele. Co. v. Pennsylvania Public Util. Com., 309 U.S. 30 (1940), 232

Benner v. Porter, 9 How. 235 (1850), 699

Bennett v. Butterworth, 11 How. 669 (1850), 895