diff options
Diffstat (limited to '18637.txt')
| -rw-r--r-- | 18637.txt | 75900 |
1 files changed, 75900 insertions, 0 deletions
diff --git a/18637.txt b/18637.txt new file mode 100644 index 0000000..95a7aa1 --- /dev/null +++ b/18637.txt @@ -0,0 +1,75900 @@ +The Project Gutenberg eBook, The Constitution of the United States of +America: Analysis and Interpretation, Edited by Edward Corwin + + +This eBook is for the use of anyone anywhere at no cost and with +almost no restrictions whatsoever. You may copy it, give it away or +re-use it under the terms of the Project Gutenberg License included +with this eBook or online at www.gutenberg.org + + + + + +Title: 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 + + +Editor: Edward Corwin + +Release Date: June 20, 2006 [eBook #18637] + +Language: English + +Character set encoding: ISO-646-US (US-ASCII) + + +***START OF THE PROJECT GUTENBERG EBOOK THE CONSTITUTION OF THE UNITED +STATES OF AMERICA: ANALYSIS AND INTERPRETATION*** + + +E-text prepared by Kevin Handy, Lisa Reigel, John Hagerson, and the +Project Gutenberg Online Distributed Proofreading Team +(http://www.pgdp.net/) + + + +Transcriber's notes: + + [=o] represents the vowel "o" with a macron in this text. + + The original editor's comments are enclosed in square brackets []. + + Notes unique to this edition are also enclosed in square brackets, + but are preceded by the words "Transcriber's Note". + + A complete list of all changes made to the text is included at the + end of the file. + + Variations in spelling were left as in the original. + + + + +82d Congress } SENATE { Document +_2d Session_ } { No. 170 + +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 + +Prepared by the Legislative Reference Service, Library of Congress + +EDWARD S. CORWIN, Editor + + + + + + + +[Illustration] + + + +United States Government Printing Office Washington: 1953 +For sale by the Superintendent of Documents, U.S. Government Printing +Office +Washington 25 D.C.--Price $6.25 + + + + +SENATE JOINT RESOLUTION 69 + +JOINT RESOLUTION To prepare a revised edition of the Annotated +Constitution of the United States of America as published in 1938 as +Senate Document 232 of the Seventy-fourth Congress. + +Whereas the Annotated Constitution of the United States of America +published in 1938 as Senate Document 232, Seventy-fourth Congress, has +served a very useful purpose by supplying essential information in one +volume and at a very reasonable price; and + +Whereas Senate Document 232 is no longer available at the Government +Printing Office; and + +Whereas the reprinting of this document without annotations for the last +ten years is now considered appropriate: Now, therefore, be it + +_Resolved by the Senate and House of Representatives of the United +States of America in Congress assembled_, That the Librarian of Congress +is hereby authorized and directed to have the Annotated Constitution of +the United States of America, published in 1938, revised and extended to +include annotations of decisions of the Supreme Court prior to January +1, 1948, construing the several provisions of the Constitution +correlated under each separate provision, and to have the said revised +document printed at the Government Printing Office. Three thousand +copies shall be printed, of which two thousand two hundred copies shall +be for the use of the House of Representatives and eight hundred copies +for the use of the Senate. + +Sec. 2. There is hereby authorized to be appropriated for +carrying out the provisions of this Act, with respect to the preparation +but not including printing, the sum of $35,000 to remain available until +expended. + +Approved June 17, 1947. + + + + +PREFACE + +By Honorable Alexander Wiley + +_Chairman, Senate Foreign Relations Committee_ + + +To the Members and Committees of the Congress, the Constitution is more +than a revered abstraction; it is an everyday companion and counsellor. +Into it, the Founding Fathers breathed the spirit of life; through every +subsequent generation, that spirit has remained vital. + +In more than a century and a half of cataclysmic events, the +Constitution has successfully withstood test after test. No +crisis--foreign or domestic--has impaired its vitality. The system of +checks and balances which it sets up has enabled the growing nation to +adapt itself to every need and at the same time to checkrein every bid +for arbitrary power. + +And meantime America itself has evolved dynamically and dramatically. +The humble 13 colonies, carved out of the wilderness in the 18th +Century, emerged in the 20th Century as leader of +earth--industrial--military--political--economic--psychological. Yet the +broad outline of the Supreme Law remains today fundamentally intact. + +It is small wonder that W.E. Gladstone described the Constitution as +"the most wonderful work ever struck off at a given time by the brain +and purpose of man." He knew, as should we, that the Constitution's +words, its phrases, clauses, sentences, paragraphs, and sections still +possess a miraculous quality--a mingled flexibility and strength which +permits its adaptation to the needs of the hour without sacrifice of its +essential character as the basic framework of freedom. + +Congress has long recognized how necessary it is to have a handy working +guide to this superb charter. It has sought a map, so to speak, of the +great historical landmarks of Constitutional jurisprudence--landmarks +which mark the oft-times epic battles of clashing legal interpretations. +A first step was taken toward meeting this need by publication of Senate +Document 12, 63d Congress in 1913. Ten years later, in 1923 another +volume was issued, Senate Document 96, 67th Congress, and it was +followed in turn by Senate Document 154 of the 68th Congress. + +In 1936, Congress authorized a further revision, this time by the +Legislative Reference Service. Mr. Wilfred C. Gilbert, now the Assistant +Director of the Service, was the editor of this volume which became +Senate Document 232, 74th Congress, and he has given counsel throughout +the development of the present edition of this volume. + +After another decade of significant and far-reaching judicial +interpretation, the Senate Judiciary Committee reported out Senate Joint +Resolution 69 of the 80th Congress calling upon the Librarian of +Congress for the preparation of the new work. However, because of the +increase in responsibilities of the Legislative Reference Service, it +was no longer feasible for it to undertake this additional burden with +its regular staff. The Director of the Service, Dr. Ernest S. Griffith, +suggested therefore that Dr. Edward S. Corwin be engaged to head the +project with a collaborating staff to be furnished by the Legislative +Reference Service. + +In my capacity at the time, as Chairman of the Senate Judiciary +Committee, I was delighted to give my approval to this arrangement, for +I recognized our particular good fortune in obtaining the services of an +acknowledged authority for this highly significant and delicate +enterprise. + +I should like now to express our thanks and appreciation to Dr. Corwin +and to his collaborators from the Service, Dr. Norman J. Small, +Assistant Editor, Miss Mary Louise Ramsey, and Dr. Robert J. Harris, for +all their prodigious and skilled labors. + +Moreover, for their considerable efforts in connection with the detailed +legislative and printing arrangements for the publication of this +volume, I should like to express appreciation to Mr. Darrell St. Claire, +Staff Member for the Senate Rules Committee, as well as Chief Clerk for +the Joint Committee on the Library of Congress; and Mr. Julius N. Cahn, +previously Executive Assistant to me when I was Chairman of the +Judiciary Committee and now Counsel to the Senate Foreign Relations +Committee. + +Initiated in the Republican 80th Congress, the project was undertaken +With funds supplied by the succeeding Democratic 81st Congress, while +the Democratic 82d Congress extended its coverage to include Supreme +Court decisions through June 30, 1952. The document thus represents +Congressional nonpartisan activity at its best, as should ever be the +case in our fidelity to this great charter. + +In the present volume, in addition to the annotations indicating the +current state of interpretation, Dr. Corwin has undertaken to supply an +historical background to the several lines of reasoning. It is our hope +and expectation that this introduction will prove of immense benefit to +users in understanding the trends of judicial constitutional +interpretation. + +It is our further hope that this edition as a whole may serve a still +larger purpose--strengthening our understanding of and loyalty to the +principles of this republic. + +In that way, the Constitution will remain the blueprint for freedom. It +will continue as an inspiration for us of this blessed land, and for men +and women everywhere; for they look to these shores as the lighthouse of +freedom, in a world where the darkness of despotism hangs so heavily. + +_May 30, 1953._ + +[Illustration: Alexander Wiley signature] + + + + +PREFACE + + +For many years the Congress has felt the need for a handy, concise guide +to the interpretation of the Constitution. An edition of the +Constitution issued in 1913 as Senate Document 12, 63d Congress, took a +step in this direction by supplying under each clause, a citation of +Supreme Court decisions thereunder. This was obviously of limited +usefulness, leaving the reader, as it did, to an examination of cases +for any specific information. In 1921 the matter received further +consideration. Senate Resolution 151 authorized preparation of a volume +to contain the Constitution and its amendments, to January 1, 1923 "with +citations to the cases of the Supreme Court of the United States +construing its several provisions." This was issued as Senate Document +96 of the 67th Congress, and was followed the next year by a similar +volume annotating the cases through the October 1923 Term of the Supreme +Court. (Senate Document 154, 68th Congress.) Both of these volumes went +somewhat beyond the mere enumeration of cases, carrying under the +particular provisions of the Constitution a brief statement of the point +involved in the principal cases cited. + +Thirteen years of Constitutional developments led Congress in 1936 to +authorize a revision of the 1924 volume, and under authority of Senate +Concurrent Resolution 35 introduced by Senator Ashurst, Chairman of the +Judiciary Committee, such a revision was prepared in the Legislative +Reference Service and issued as Senate Document 232, 74th Congress. + +This volume was, like its predecessors, dedicated to the need felt by +Members for a convenient ready-reference manual. However, so extensive +and important had been the judicial interpretation of the Constitution +in the interim that a very much larger volume was the result. + +After another decade, in the course of which many of the earlier +interpretations were reviewed and modified, the Senate again moved for a +revision of the Annotations. Senate Joint Resolution 69 introduced by +the then Chairman of the Judiciary Committee, Senator Alexander Wiley, +again called upon the Library of Congress to undertake the work. The +confidence thus implied was most thoroughly appreciated. To meet his +responsibilities, the Librarian called upon Dr. Edward S. Corwin to head +the project. The collaborating staff, supplied by the Legislative +Reference Service, included Dr. Norman J. Small as assistant editor, +Miss Mary Louise Ramsey, and Robert J. Harris. + +This time, more than ever, the compilers faced a difficult task in +balancing the prime requirement of a thorough and adequate annotation +against the very practical desire to keep the results within convenient +compass. + +Work on the project was delayed until funds were made available. In +consequence the annotations have been extended to a somewhat later date, +covering decisions of the Supreme Court through June 30, 1952. + +Ernest S. Griffith, +_Director, Legislative Reference Service._ + + + + +EDITOR'S FOREWORD + + +The purpose of this volume is twofold; first, to set forth so far as +feasible the currently operative meaning of all provisions of the +Constitution of the United States; second, to trace in the case of the +most important provisions the course of decision and practice whereby +their meaning was arrived at by the Constitution's official +interpreters. Naturally, the most important source of material relied +upon comprises relevant decisions of the Supreme Court; but acts of +Congress and Executive orders and regulations have also been frequently +put under requisition. Likewise, proceedings of the Convention which +framed the Constitution have been drawn upon at times, as have the views +of dissenting Justices and occasionally of writers, when it was thought +that they would aid understanding. + +That the Constitution has possessed capacity for growth in notable +measure is evidenced by the simple fact of its survival and daily +functioning in an environment so vastly different from that in which it +was ordained and established by the American people. Nor has this +capacity resided to any great extent in the provision which the +Constitution makes for its own amendment. Far more has it resided in the +power of judicial review exercised by the Supreme Court, the product of +which, and hence the record of the Court's achievement in adapting the +Constitution to changing conditions, is our national Constitutional Law. + +Thus is explained the attention that has been given in some of these +pages to the development of certain of the broader doctrines which have +influenced the Court in its determination of constitutional issues, +especially its conception of the nature of the Federal System and of the +proper role of governmental power in relation to private rights. On both +these great subjects the Court's thinking has altered at times--on a few +occasions to such an extent as to transcend Tennyson's idea of the law +"broadening from precedent to precedent" and to amount to something +strongly resembling a juridical revolution, bloodless but not wordless. + +The first volume of Reports which issued from the Court following +Marshall's death--11 Peters (1837)--signalizes such a revolution, that +is to say, a recasting of fundamental concepts; so does 100 years later, +Volume 301 of the United States Reports, in which the National Labor +Relations Act [The "Wagner Act"] and the Social Security Act of 1935 +were sustained. Another considerable revolution was marked by the +Court's acceptance in 1925 of the theory that the word "liberty" in the +Fourteenth Amendment rendered the restrictions of the First Amendment +upon Congress available also against the States. + +In the preparation of this volume constant use has been made of "The +Constitution of the United States of America Annotated," which was +brought out under the editorship of Mr. W.C. Gilbert in 1938. Its +copious listing of cases has been especially valuable. Its admirable +Tables of Contents and Index have furnished a model for those of the +present volume. If this model has been approximated the contents of this +volume ought to be readily accessible despite its size. The coverage of +the volume ends with the cases decided June, 1952. + +A personal word or two must be added. The Editor was invited to +undertake this project by Dr. Ernest S. Griffith, Director of the +Legislative Reference Service of the Library of Congress, and his +constant interest in the progress of our labors has been a tremendous +source of encouragement. To his able collaborators the Editor will not +attempt to express his appreciation--they share with him the credit for +such merits as the work possesses and responsibility for its short +comings. And I am sure that they join me in thanking Miss Evelyn K. +Mayhugh for her skill and devotion in aiding us at every step in our +common task. + +Edward S. Corwin. + + + + +INTRODUCTION + + +It is my purpose in this Introduction to the _Constitution of the United +States, Annotated_ to sketch rapidly certain outstanding phases of the +Supreme Court's interpretation of the Constitution for the illustration +they may afford of the interests, ideas, and contingencies which have +from time to time influenced the Court in this still supremely important +area of its powers and of the comparable factors which give direction to +its work in the same field at the present time. + +As employed in this country, Constitutional Law signifies a body of +rules resulting from the interpretation by a high court of a written +constitutional instrument in the course of disposing of cases in which +the validity, in relation to the constitutional instrument, of some act +of governmental power, State or national, has been challenged. This +function, conveniently labelled "Judicial Review," involves the power +and duty on the part of the Court of pronouncing void any such act which +does not square with its own reading of the constitutional instrument. +Theoretically, therefore, it is a purely juristic product, and as such +does not alter the meaning. To those who hold this theory, the Court +does not elaborate the instrument, as legislative power might; it +elucidates it, bringing forth into the light of day, as it were, what +was in the instrument from the first. + +In the case of judicial review as exercised by the Supreme Court of the +United States in relation to the national Constitution, its preservative +character has been at times a theme of enthusiastic encomium, as in the +following passage from a speech by the late Chief Justice White, made +shortly before he ascended the Bench: + + ... The glory and ornament of our system which distinguishes + it from every other government on the face of the earth is + that there is a great and mighty power hovering over the + Constitution of the land to which has been delegated the awful + responsibility of restraining all the coordinate departments + of government within the walls of the governmental fabric + which our fathers built for our protection and immunity.[1] + +At other times the subject has been dealt with less enthusiastically, +even skeptically. + +One obstacle that the theory encountered very early was the refusal of +certain Presidents to regard the Constitution as primarily a source of +rules for judicial decision. It was rather, they urged, a broadly +discretionary mandate to themselves and to Congress. And pursuing the +logic of this position, they contended that while the Court was +undoubtedly entitled to read the Constitution independently for the +purpose of deciding cases, this very purpose automatically limited the +authoritativeness of its readings; and that within their respective +jurisdictions President and Congress enjoyed the same correlative +independence as the Court did within its jurisdiction. This was, in +effect, the position earlier of Jefferson and Jackson, later of Lincoln, +and in recent times that of the two Roosevelts. + +Another obstacle has been of the Court's own making. Whether because of +the difficulty of amending the Constitution or for cautionary reasons, +the Court took the position, as early as 1851, that it would reverse +previous decisions on constitutional issues when convinced they were +erroneous.[2] An outstanding instance of this nature was the decision in +the Legal Tender cases, in 1871, reversing the decision which had been +rendered in Hepburn _v._ Griswold fifteen months earlier;[3] and no less +shattering to the prestige of _stare decisis_ in the constitutional +field was the Income Tax decision of 1895,[4] in which the Court +accepted Mr. Joseph Choate's invitation to "correct a century of error". +The "constitutional revolution" of 1937 produced numerous reversals of +earlier precedents on the ground of "error", some of them, the late Mr. +James M. Beck complained, without "the obsequious respect of a funeral +oration".[5] In 1944 Justice Reed cited fourteen cases decided between +March 27, 1937 and June 14, 1943 in which one or more prior +constitutional decisions were overturned.[6] On the same occasion +Justice Roberts expressed the opinion that adjudications of the Court +were rapidly gravitating "into the same class as a restricted railroad +ticket, good for this day and train only".[7] + +Years ago the eminent historian of the Supreme Court, Mr. Charles +Warren, had written: + + However the Court may interpret the provisions of the + Constitution, it is still the Constitution which is the law + and not the decision of the Court.[8] + +In short, it is "not necessarily so" that the Constitution is preserved +in the Court's reading of it. + +A third difficulty in the way of the theory that Judicial Review is +preservative of the Constitution is confronted when we turn to consider +the statistical aspects of the matter. The suggestion that the +Constitution of the United States contained in embryo from the beginning +the entirety of our national Constitutional Law confronts the will to +believe with an altogether impossible test. Compared with the +Constitutional Document, with its 7,000 words more or less, the bulk of +material requiring to be noticed in the preparation of an annotation of +this kind is simply immense. First and last, the Court has probably +decided well over 4,000 cases involving questions of constitutional +interpretation. In many instances, to be sure, the constitutional issue +was disposed of quite briefly. In some instances, on the other hand, the +published report of the case runs to more than 200 pages.[9] In the +total, it is probable that at least 50,000 pages of the United States +Supreme Court Reports are devoted to Constitutional Law topics. + +Nor is this the whole story, or indeed the most important part of it. +Even more striking is the fact that the vast proportion of cases forming +the corpus of national Constitutional Law has stemmed, or has purported +to stem, from four or five brief phrases of the Constitutional Document, +the power "to regulate ... commerce among the States," impairment of +"the obligation of contracts" (now practically dried up as a formal +source of constitutional law), deprivation of "liberty or property +without due process of law" (which phrase occurs both as a limitation on +the National Government and, since 1868, on the States), and out of four +or five doctrines which the Constitution is assumed to embody. The +latter are, in truth, the essence of the matter, for it is through these +doctrines, and under the cover which they afford, that outside +interests, ideas, preconceptions, have found their way into +Constitutional Law, have indeed become for better, for worse, its +leavening element. + +That is to say, the effectiveness of Constitutional Law as a system of +restraints on governmental action in the United States, which is its +primary _raison d'etre_, depends for the most part on the effectiveness +of these doctrines as they are applied by the Court to that purpose. The +doctrines to which I refer are (1) the doctrine or concept of +Federalism; (2) the doctrine of the Separation of Powers; (3) the +concept of a Government of Laws and not of Men, as opposed especially to +indefinite conceptions of presidential power; (4) and the substantive +doctrine of Due Process of Law and attendant conceptions of Liberty. +What I proposed to do is to take up each of these doctrines or concepts +in turn, tell something of their earlier history, and then project +against this background a summary account of what has happened to them +in recent years in consequence of the impact of war, of economic crisis, +and of the political and ideological reaction to the latter during the +Administrations of Franklin D. Roosevelt. + + +I + +Federalism + +Federalism in the United States embraces the following elements: (1) as +in all federations, the union of several autonomous political entities, +or "States," for common purposes; (2) the division of legislative powers +between a "National Government," on the one hand, and constituent +"States," on the other, which division is governed by the rule that the +former is "a government of enumerated powers" while the latter are +governments of "residual powers"; (3) the direct operation, for the most +part, of each of these centers of government, within its assigned +sphere, upon all persons and property within its territorial limits; (4) +the provision of each center with the complete apparatus of law +enforcement, both executive and judicial; (5) the supremacy of the +"National Government" within its assigned sphere over any conflicting +assertion of "state" power; (6) dual citizenship. + +The third and fourth of the above-listed salient features of the +American Federal System are the ones which at the outset marked it off +most sharply from all preceding systems, in which the member states +generally agreed to obey the mandates of a common government for certain +stipulated purposes, but retained to themselves the right of ordaining +and enforcing the laws of the union. This, indeed, was the system +provided in the Articles of Confederation. The Convention of 1787 was +well aware, of course, that if the inanities and futilities of the +Confederation were to be avoided in the new system, the latter must +incorporate "a coercive principle"; and as Ellsworth of Connecticut +expressed it, the only question was whether it should be "a coercion of +law, or a coercion of arms," that "coercion which acts only upon +delinquent individuals" or that which is applicable to "sovereign +bodies, states, in their political capacity."[10] In Judicial Review the +former principle was established, albeit without entirely discarding +the latter, as the War between the States was to demonstrate. + +The sheer fact of Federalism enters the purview of Constitutional Law, +that is, becomes a judicial concept, in consequence of the conflicts +which have at times arisen between the idea of State Autonomy ("State +Sovereignty") and the principle of National Supremacy. Exaltation of the +latter principle, as it is recognized in the Supremacy Clause (Article +VI, paragraph 2) of the Constitution, was the very keystone of Chief +Justice Marshall's constitutional jurisprudence. It was Marshall's +position that the supremacy clause was intended to be applied literally, +so that if an unforced reading of the terms in which legislative power +was granted to Congress confirmed its right to enact a particular +statute, the circumstance that the statute projected national power into +a hitherto accustomed field of state power with unavoidable curtailment +of the latter was a matter of indifference. State power, as Madison in +his early nationalistic days phrased it, was "no criterion of national +power," and hence no independent limitation thereof. + +Quite different was the outlook of the Court over which Marshall's +successor, Taney, presided. That Court took as its point of departure +the Tenth Amendment, which reads, "The powers not delegated to the +United States by this Constitution, nor prohibited by it to the States, +are reserved to the States respectively, or to the people." In +construing this provision the Court under Taney sometimes talked as if +it regarded all the reserved powers of the States as limiting national +power; at other times it talked as if it regarded certain subjects as +reserved exclusively to the States, slavery being, of course, the +outstanding instance.[11] + +But whether following the one line of reasoning or the other, the Taney +Court subtly transformed its function, and so that of Judicial Review, +in relation to the Federal System. Marshall viewed the Court as +primarily an organ of the National Government and of its supremacy. The +Court under Taney regarded itself as standing outside of and above both +the National Government and the States, and as vested with a +quasi-arbitral function between two centers of diverse, but essentially +equal, because "sovereign", powers. Thus in Ableman _v._ Booth, which +was decided on the eve of the War between the States, we find Taney +himself using this arresting language: + + This judicial power was justly regarded as indispensable, not + merely to maintain the supremacy of the laws of the United + States, but also to guard the States from any encroachment + upon their reserved rights by the general government.... So + long ... as this Constitution shall endure, this tribunal must + exist with it, deciding in the peaceful forms of judicial + proceeding, the angry and irritating controversies between + sovereignties, which in other countries have been determined + by the arbitrament of force.[12] + +It is, therefore, the Taney Court, rather than the Marshall Court, which +elaborated the concept of Dual Federalism. Marshall's federalism is more +aptly termed national federalism; and turning to modern issues, we may +say without exaggeration that the broad general constitutional issue +between the Court and the Franklin D. Roosevelt program in such cases as +Schechter Corp. _v._ United States and Carter _v._ Carter Coal Co.[13] +was, whether Marshall's or Taney's brand of federalism should prevail. +More precisely, the issue in these cases was whether Congress' power to +regulate commerce must stop short of regulating the employer-employee +relationship in industrial production, that having been hitherto +regulated by the States. In Justice Sutherland's words in the Carter +case: + + Much stress is put upon the evils which come from the struggle + between employers and employees over the matter of wages, + working conditions, the right of collective bargaining, etc., + and the resulting strikes, curtailment and irregularity of + production and effect on prices; and it is insisted that + interstate commerce is greatly affected thereby.... The + conclusive answer is that the evils are all local evils over + which the Federal Government has no legislative control. The + relation of employer and employee is a local relation. At + common law, it is one of the domestic relations. The wages are + paid for the doing of local work. Working conditions are + obviously local conditions. The employees are not engaged in + or about commerce, but exclusively in producing a commodity. + And the controversies and evils, which it is the object of the + act to regulate and minimize, are local controversies and + evils affecting local work undertaken to accomplish that local + result. Such effect as they may have upon commerce, however + extensive it may be, is secondary and indirect. An increase in + the greatness of the effect adds to its importance. It does + not alter its character.[14] + +We all know how this issue was finally resolved. In the Fair Labor +Standards Act of 1938 Congress not only prohibits interstate commerce in +goods produced by substandard labor, but it directly forbids, with +penalties, the employment of labor in industrial production for +interstate commerce on other than certain prescribed terms. And in +United States _v._ Darby[15] this Act was sustained by the Court, in all +its sweeping provisions, on the basis of an opinion by Chief Justice +Stone which in turn is based on Chief Justice Marshall's famous opinions +in McCulloch _v._ Maryland and Gibbons _v._ Ogden rendered more than a +century and a quarter ago. In short, as a principle capable of +delimiting the national legislative power, the concept of Dual +Federalism as regards the present Court seems today to be at an end, +with consequent aggrandizement of national power. + +There is, however, another side to the story. For in one respect even +the great Marshall has been in effect overruled in support of enlarged +views of national authority. Without essaying a vain task of "tithing +mint, anise and cummin," it is fairly accurate to say that throughout +the 100 years which lie between Marshall's death and the cases of the +1930's, the conception of the federal relationship which on the whole +prevailed with the Court was a competitive conception, one which +envisaged the National Government and the States as jealous rivals. To +be sure, we occasionally get some striking statements of contrary +tendency, as in Justice Bradley's opinion in 1880 for a divided Court in +the Siebold Case,[16] where is reflected recognition of certain results +of the War between the States; or later in a frequently quoted dictum by +Justice McKenna, in Hoke _v._ United States, in which the Mann White +Slave Act was sustained in 1913: + + Our dual form of government has its perplexities, State and + Nation having different spheres of jurisdiction ... but it + must be kept in mind that we are one people; and the powers + reserved to the states and those conferred on the nation are + adapted to be exercised, whether independently or + concurrently, to promote the general welfare, material and + moral.[17] + +The competitive concept is, nevertheless, the one much more generally +evident in the outstanding results for American Constitutional Law +throughout three-quarters of its history. Of direct pertinence in this +connection is the doctrine of tax exemption which converted federalism +into a principle of private immunity from taxation, so that, for +example, neither government could tax as income the official salaries +paid by the other government.[18] This doctrine traces immediately to +Marshall's famous judgment in McCulloch _v._ Maryland,[19] and bespeaks +a conception of the federal relationship which regards the National +Government and the States as bent on mutual frustration. Today the +principle of tax exemption, except so far as Congress may choose to +apply it to federal instrumentalities by virtue of its protective powers +under the necessary and proper clause, is at an end. + +By the cooperative conception of the federal relationship the States and +the National Government are regarded as mutually complementary parts of +a single governmental mechanism all of whose powers are intended to +realize the current purposes of government according to their +applicability to the problem in hand. This is the conception on which +the recent social and economic legislation professes to rest. It is the +conception which the Court invokes throughout its decisions in +sustaining the Social Security Act of 1935 and supplementary state +legislation. It is the conception which underlies congressional +legislation of recent years making certain crimes against the States, +like theft, racketeering, kidnapping, crimes also against the National +Government whenever the offender extends his activities beyond state +boundary lines. The usually cited constitutional justification for such +legislation is that which was advanced forty years ago in the above +quoted Hoke Case.[20] + +It has been argued that the cooperative conception of the federal +relationship, especially as it is realized in the policy of federal +subventions to the States, tends to break down state initiative and to +devitalize state policies. Actually, its effect has often been just the +contrary, and for the reason pointed out by Justice Cardozo in Helvering +_v._ Davis,[21] decided in 1937, namely, that the States, competing as +they do with one another to attract investors, have not been able to +embark separately upon expensive programs of relief and social +insurance. Another great objection to Cooperative Federalism is more +difficult to meet. This is, that Cooperative Federalism invites further +aggrandizement of national power. Unquestionably it does, for when two +cooperate, it is the stronger member of the combination who usually +calls the tunes. Resting as it does primarily on the superior fiscal +resources of the National Government, Cooperative Federalism has been, +at least to date, a short expression for a constantly increasing +concentration of power at Washington in the stimulation and supervision +of local policies.[22] + +The last element of the concept of Federalism to demand attention is the +doctrine that the National Government is a government of enumerated +powers only, and consequently under the necessity at all times of +justifying its measures juridically by pointing to some particular +clause or clauses of the Constitution which, when read separately or in +combination, may be thought to grant power adequate to such measures. In +spite of such recent decisions as that in United States _v._ Darby, this +time-honored doctrine still guides the authoritative interpreters of the +Constitution in determining the validity of acts which are passed by +Congress in presumed exercise of its powers of domestic legislation--the +course of reasoning pursued by the Chief Justice in the Darby Case +itself is proof that such is the fact. In the field of foreign +relations, on the contrary, the doctrine of enumerated powers has always +had a difficult row to hoe, and today may be unqualifiedly asserted to +be defunct. + +As early as the old case of Penhallow _v._ Doane, which was decided by +the Supreme Court in 1795, certain counsel thought it pertinent to urge +the following conception of the War Power: + + A formal compact is not essential to the institution of a + government. Every nation that governs itself, under what form + soever, without any dependence on a foreign power, is a + sovereign state. In every society there must be a sovereignty. + 1 Dall. Rep. 46, 57. Vatt. B. 1. ch. 1. sec. 4. The powers of + war form an inherent characteristic of national sovereignty; + and, it is not denied, that Congress possessed those + powers....[23] + +To be sure, only two of the Justices felt it necessary to comment on +this argument, which one of them endorsed, while the other rejected it. + +Yet seventy-five years later Justice Bradley incorporated closely +kindred doctrine into his concurring opinion in the Legal Tender +Cases;[24] and in the years following the Court itself frequently +brought the same general outlook to questions affecting the National +Government's powers in the field of foreign relations. Thus in the +Chinese Exclusion Case, decided in 1889, Justice Field, in asserting the +unlimited power of the National Government, and hence of Congress, to +exclude aliens from American shores, remarked: + + While under our Constitution and form of government the great + mass of local matters is controlled by local authorities, the + United States, in their relation to foreign countries and + their subjects or citizens, are one nation, invested with the + powers which belong to independent nations, the exercise of + which can be invoked for the maintenance of its absolute + independence and security throughout its entire territory.[25] + +And four years later the power of the National Government to deport +alien residents at the option of Congress was based by Justice Gray on +the same general reasoning.[26] + +Finally, in 1936, Justice Sutherland, speaking for the Court in United +States _v._ Curtiss-Wright Corporation, with World War I a still recent +memory, took over bodily counsel's argument of 140 years earlier, and +elevated it to the head of the column of authoritative constitutional +doctrine. He said: + + A political society cannot endure without a supreme will + somewhere. Sovereignty is never held in suspense. When, + therefore, the external sovereignty of Great Britain in + respect of the colonies ceased, it immediately passed to the + Union.... It results that the investment of the Federal + government with the powers of external sovereignty did not + depend upon the affirmative grants of the Constitution. The + powers to declare and wage war, to conclude peace, to make + treaties, to maintain diplomatic relations with other + sovereignties, if they had never been mentioned in the + Constitution, would have vested in the Federal government as a + necessary concomitant of nationality.[27] + +In short, the power of the National Government in the field of +international relationship is not simply a complexus of particular +enumerated powers; it is an inherent power, one which is attributable to +the National Government on the ground solely of its belonging to the +American People as a sovereign political entity at International Law. In +that field the principle of Federalism no longer holds, if it ever +did.[28] + + +II + +The Separation of Powers + +The second great structural principle of American Constitutional Law is +supplied by the doctrine of the Separation of Powers. The notion of +three distinct functions of government approximating what we today term +the legislative, the executive, and the judicial, is set forth in +Aristotle's Politics,[29] but it was the celebrated Montesquieu who, by +joining the idea to the notion of a "mixed constitution" of "checks and +balances", in Book XI of his Spirit of the Laws, brought Aristotle's +discovery to the service of the rising libertarianism of the eighteenth +century. It was Montesquieu's fundamental contention that "men entrusted +with power tend to abuse it". Hence it was desirable to divide the +powers of government, first, in order to keep to a minimum the powers +lodged in any single organ of government; secondly, in order to be able +to oppose organ to organ. + +In the United States libertarian application of the principle was +originally not too much embarrassed by inherited institutions. In its +most dogmatic form the American conception of the Separation of Powers +may be summed up in the following propositions: (1) There are three +intrinsically distinct functions of government, the legislative, the +executive, and the judicial; (2) these distinct functions ought to be +exercised respectively by three separately manned departments of +government; which, (3) should be constitutionally equal and mutually +independent; and finally, (4) a corollary doctrine stated by Locke--the +legislature may not delegate its powers.[30] + +Prior even to Franklin D. Roosevelt this entire colligation of ideas had +been impaired by three developments in national governmental practice: +first, the growth of Presidential initiative in legislation; secondly, +the delegation by Congress of legislative powers to the President; +thirdly, the delegation in many instances of like powers to so-called +independent agencies or commissions, in which are merged in greater or +less measure the three powers of government of Montesquieu's postulate. +Under Roosevelt the first two of these developments were brought to a +pitch not formerly approximated, except temporarily during World War I. + +The truth is that the practice of delegated legislation is inevitably +and inextricably involved with the whole idea of governmental +intervention in the economic field, where the conditions to be regulated +are of infinite complexity and are constantly undergoing change. Granted +such intervention, it is simply out of the question to demand that +Congress should attempt to impose upon the shifting and complex scene +the relatively permanent molds of statutory provision, unqualified by a +large degree of administrative discretion. One of the major reasons +urged for governmental intervention is furnished by the need for gearing +the different parts of the industrial process with one another for a +planned result. In wartime this need is freely conceded by all; but its +need in economic crisis is conceivably even greater, the results sought +being more complex. So in the interest both of unity of design and of +flexibility of detail, presidential power today takes increasing toll +from both ends of the legislative process--both from the formulation of +legislation and from its administration. In other words, as a barrier +capable of preventing such fusion of presidential and congressional +power, the principle of the Separation of Powers does not appear to have +retained much of its original effectiveness; for on only one +occasion[31] prior to the disallowance, in Youngstown _v._ Sawyer,[32] +President Truman's seizure in April 1952 of the steel industry has the +Court been constrained to condemn, as in conflict with that principle, a +congressional delegation of legislative power. Indeed, its application +in the field of foreign relations has been virtually terminated by +Justice Sutherland's opinion in the Curtiss-Wright Case.[33] + +The Youngstown Opinion appears to rest on the proposition that since +Congress could have ordered the seizure, e.g., under the necessary and +proper clause, the President, in making it on his own, usurped +"legislative power" and thereby violated the principle of the Separation +of Powers. In referring to this proposition, the Chief Justice (in his +dissenting opinion, for himself and Justices Reed and Minton) quoted as +follows from a 1915 brief of the then Solicitor General of the United +States on this same question: + + The function of making laws is peculiar to Congress, and the + Executive can not exercise that function to any degree. But + this is not to say that all of the _subjects_ concerning which + laws might be made are perforce removed from the possibility + of Executive influence. The Executive may act upon things and + upon men in many relations which have not, though they might + have, been actually regulated by Congress. + + In other words, just as there are fields which are peculiar to + Congress and fields which are peculiar to the Executive, so + there are fields which are common to both, in the sense that + the Executive may move within them until they shall have been + occupied by legislative action. These are not the fields of + legislative prerogative, but fields within which the lawmaking + power may enter and dominate whenever it chooses. This + situation results from the fact that the President is the + active agent, not of Congress, but of the Nation.[34] + +Or, in more general terms, the fact that one of the three departments +may apply its distinctive techniques to a certain subject matter sheds +little or no light on the question whether one of the other departments +may deal with the same subject matter according to its distinctive +techniques. Indeed, were it otherwise, the action of the Court in +disallowing President Truman's seizure order would have been of very +questionable validity, inasmuch as the President himself conceded that +Congress could do so. + +The conception of the Separation of Powers doctrine advanced in +Youngstown appears to have been an ad hoc discovery for the purpose of +disposing of that particular case. + +To sum up the argument to this point: War, the Roosevelt-Truman +programs, and the doctrines of Constitutional Law on which they rest, +and the conception of governmental function which they incorporate, have +all tremendously strengthened forces which even earlier were making, +slowly, to be sure, but with "the inevitability of gradualness," for the +concentration of governmental power in the United States, first in the +hands of the National Government; and, secondly, in the hands of the +national Executive. In the Constitutional Law which the validation of +the Roosevelt program has brought into full being, the two main +structural elements of government in the United States in the past, the +principle of Dual Federalism and the doctrine of the Separation of +Powers, have undergone a radical and enfeebling transformation which war +has, naturally, carried still further. + + +III + +A Government of Laws and Not of Men + +The earliest repositories of executive power in this country were the +provincial governors. Being the point of tangency and hence of +irritation between imperial policy and colonial particularism, these +officers incurred a widespread unpopularity that was easily generalized +into distrust of their office. So when Jefferson asserted in his +_Summary View_, in 1774, that the King "is no more than the chief +officer of the people, appointed by the laws and circumscribed with +definite powers, to assist in working the great machine of +government,"[35] he voiced a theory of executive power which, impudently +as it flouted historical fact, had the support of the draftsmen of the +first American constitutions. In most of these instruments the governors +were elected annually by the legislative assemblies, were stripped of +every prerogative of their predecessors in relation to legislation, and +were forced to exercise the powers left them subject to the advice of a +council chosen also by the assembly, and from its own members if it so +desired. Finally, out of abundant caution the constitution of Virginia +decreed that executive powers were to be exercised "according to the +laws of" the Commonwealth, and that no power or prerogative was ever to +be claimed "by virtue of any law, statute or custom of England." +"Executive power", in short, was left entirely to legislative definition +and was cut off from all resources of the common law and the precedents +of English monarchy. + +Fortunately or unfortunately, the earlier tradition of executive power +was not to be exorcised so readily. Historically, this tradition traces +to the fact that the royal prerogative was residual power, that the +monarch was first on the ground, that the other powers of government +were off-shoots from monarchical power. Moreover, when our forefathers +turned to Roman history, as they intermittently did, it was borne in +upon them that dictatorship had at one time been a normal feature of +republican institutions. + +And what history consecrated, doctrine illumined. In Chapter XI of John +Locke's Second Treatise on Civil Government, from the pages of which +much of the opening paragraphs of the Declaration of Independence comes, +we read: "Absolute arbitrary power, or governing without settled +standing laws, can neither of them consist with the ends of society and +government".[36] In Chapter XIV of the same work we are told, +nevertheless, that "prerogative" is the power "to act according to +discretion without the prescription of the law and sometimes against +it"; and that this power belongs to the executive, it being "impossible +to foresee and so by laws to provide for all accidents and necessities +that may concern the public, or make such laws as will do no harm if +they are executed with inflexible rigor." Nor, continues Locke, is this +"undoubted prerogative" ever questioned, "for the people are very seldom +or never scrupulous or nice in the point" whilst the prerogative "is in +any tolerable degree employed for the use it was meant, that is, for the +good of the people."[37] A parallel ambivalence pervades both practice +and adjudication under the Constitution from the beginning. + +The opening clause of Article II of the Constitution reads: "The +executive power shall be vested in a President of the United States of +America". The primary purpose of this clause, which made its appearance +late in the Convention and was never separately passed upon by it, was +to settle the question whether the executive branch should be plural or +single; a secondary purpose was to give the President a title. There is +no hint in the published records that the clause was supposed to add +cubits to the succeeding clauses which recite the President's powers and +duties in detail. + +For all that, the "executive power" clause was invoked as a grant of +power in the first Congress to assemble under the Constitution, and +outside Congress in 1793. On the former occasion Madison and others +advanced the contention that the clause empowered the President to +remove without the Senate's consent all executive officers, even those +appointed with that consent, and in effect this view prevailed, to be +ratified by the Supreme Court 137 years later in the famous Oregon +Postmaster Case.[38] + +In 1793 the protagonist of "executive power" was Alexander Hamilton, who +appealed to the clause in defense of Washington's proclamation of +neutrality, issued on the outbreak of war between France and Great +Britain. Prompted by Jefferson to take up his pen and "cut him to pieces +in face of public," Madison shifted position, and charged Hamilton with +endeavoring to smuggle the prerogative of the King of Great Britain into +the Constitution via the "executive power" clause.[39] Three years +earlier Jefferson had himself written in an official opinion as +Secretary of State: [The Executive branch of the government], +"possessing the rights of self-government from nature, cannot be +controlled in the exercise of them but by a law, passed in the forms of +the Constitution".[40] + +This time judicial endorsement of the broad conception of the executive +power came early. In laying the foundation in Marbury _v._ Madison for +the Court's claim of power to pass on the constitutionality of acts of +Congress, Marshall said: "The government of the United States has been +emphatically termed a government of laws and not of men".[41] Two pages +along he added these words: + + By the constitution of the United States, the President is + invested with certain important political powers, in the + exercise of which he is to use his own discretion, and is + accountable only to his country in his political character, + and to his own conscience. To aid him in the performance of + these duties, he is authorized to appoint certain officers, + who act by his authority and in conformity with his orders. + + In such cases, their acts are his acts; and whatever opinion + may be entertained of the manner in which executive discretion + may be used, still there exists, and can exist, no power to + control that discretion. The subjects are political. They + respect the nation, not individual rights, and being entrusted + to the executive, the decision of the executive is + conclusive.[42] + +From these words arises the doctrine of Political Questions, an escape +clause from the trammels of judicial review for high executive officers +in the performance of their discretionary duties. The doctrine was +continued, even expanded, by Marshall's successor. In Luther _v._ +Borden,[43] decided in 1849, the Court was invited to review the +determination by the President that the existing government of Rhode +Island was "republican" in form. It declined the invitation, holding +that the decision of Congress and of the President as Congress's +delegate was final in the matter, and bound the courts. Otherwise said +Chief Justice Taney, the guarantee clause of the Constitution (Article +IV, section 4) "is a guarantee of anarchy and not of order". But a year +later the same Chief Justice, speaking again for the unanimous Court, +did not hesitate to rule that the President's powers as +commander-in-chief were purely military in character, those of any top +general or top admiral.[44] Hamilton had said the same thing in +Federalist No. 69. + +Alongside the opinions of the Court of this period, however, stand +certain opinions of Attorneys General that yield a less balanced bill of +fare. For it is the case that, from the first down to the present year +of grace, these family lawyers of the Administration in power have +tended to favor expansive conceptions of presidential prerogative. As +early as 1831 we find an Attorney-General arguing before the Supreme +Court that, in performance of the trust enjoined upon him by the +"faithful execution" clause, the President "not only may, but ... is +bound to avail himself of every appropriate means not forbidden by +law."[45] Especially noteworthy is a series of opinions handed down by +Attorney-General Cushing in the course of the years 1853 to 1855. In one +of these the Attorney-General laid down the doctrine that a marshal of +the United States, when opposed in the execution of his duty by unlawful +combinations too powerful to be dealt with by the ordinary processes of +a federal court, had authority to summon the entire able-bodied force of +his precinct as a _posse comitatus_, comprising not only bystanders and +citizens generally but any and all armed forces,[46] which is precisely +the theory upon which Lincoln based his call for volunteers in April, +1861. + +Also manifest is the debt of Lincoln's message of July 4, 1861, to these +opinions. Here in so many words the President lays claim to "the war +power", partly on the ground of his duty to "take care that the laws be +faithfully executed", partly in reliance on his powers as +Commander-in-Chief, incidentally furnishing thereby a formula which has +frequently reappeared in opinions of Attorneys-General in recent years. +Nor did Lincoln ever relinquish the belief that on the one ground or the +other he possessed extraordinary resources of power which Congress +lacked and the exercise of which it could not control--an idea in the +conscientious pursuit of which his successor came to the verge of utter +disaster. + +When first confronted with Lincoln's theory in the Prize Cases,[47] in +the midst of war, a closely divided Court treated it with abundant +indulgence; but in _Ex parte_ Milligan[48] another closely divided Court +swung violently to the other direction, adopting the comfortable +position that the normal powers of the government were perfectly +adequate to any emergency that could possibly arise, and citing the war +just "happily terminated" in proof. But once again the principle of +equilibrium asserted itself. Five months after Milligan, the same Bench +held unanimously in Mississippi _v._ Johnson[49] that the President is +not accountable to any court save that of impeachment either for the +nonperformance of his constitutional duties or for the exceeding of his +constitutional powers. + +This was in the 1866-1867 term of Court. Sixteen years later, in 1882, +Justice Samuel Miller gave classic expression to the principle of "a +government of laws and not of men" in these words: "No man is so high +that he is above the law.... All officers are creatures of the law and +are bound to obey it."[50] Eight years later this same great Judge +queried whether the President's duty to take care that the laws be +faithfully executed is "limited to the enforcement of acts of Congress +or of treaties according to their express terms," whether it did not +also embrace "the rights, duties, and obligations growing out of the +Constitution itself ... and all the protection implied by the nature of +the government under the Constitution."[51] Then in 1895, in the Debs +Case,[52] the Court sustained unanimously the right of the National +Executive to go into the federal courts and secure an injunction against +striking railway employees who were interfering with interstate +commerce, although it was conceded that there was no statutory basis for +such action. The opinion of the Court extends the logic of the holding +to any widespread public interest. + +The great accession to presidential power in recent decades has been +accompanied by the breakdown dealt with earlier of the two great +structural principles of the American Constitutional System, the +doctrine of Dual Federalism and the doctrine of the Separation of +Powers. The first exponent of "the New Presidency", as some termed it, +was Theodore Roosevelt, who tells us in his _Autobiography_ that the +principle which governed him in his exercise of the presidential office +was that he had not only a right but a duty "to do anything that the +needs of the Nation demanded unless such action was forbidden by the +Constitution or by the laws."[53] In his book, _Our Chief Magistrate and +his Powers_, Ex-President Taft warmly protested against the notion that +the President has any constitutional warrant to attempt the role of a +"Universal Providence."[54] A decade earlier his destined successor, +Woodrow Wilson, had avowed the opinion that "the President is at +liberty, both in law and conscience, to be as big a man as he can".[55] + +But it is the second Roosevelt who beyond all twentieth-century +Presidents succeeded in affixing the stamp both of personality and of +crisis upon the Presidency as it exists at this moment. In the solution +of the problems of an economic crisis, "a crisis greater than war", he +claimed for the National Government in general, and for the President in +particular, powers which they had hitherto exercised only on the +justification of war. Then when the greatest crisis in the history of +our international relations arose, he imparted to the President's +diplomatic powers new extension, now without consulting Congress, now +with Congress's approval; and when at last we entered World War II, he +endowed the precedents of both the War between the States and of World +War I with unprecedented scope.[56] + +It is timely therefore to inquire whether American Constitutional Law +today affords the Court a dependable weapon with which to combat +effectively contemporary enlarged conceptions of presidential power. +Pertinent in this connection is the aforementioned recent action of the +Court in Youngstown _v._ Sawyer disallowing presidential seizure of the +steel industry. The net result of that Case is distinctly favorable to +presidential pretensions, in two respects: First, because of the failure +of the Court to traverse the President's finding of facts allegedly +justifying his action, an omission in accord with the doctrine of +Political Questions; secondly, the evident endorsement by a majority of +the Court of the doctrine that, as stated in Justice Clark's opinion: +"The Constitution does grant to the President extensive authority in +times of grave and imperative national emergency".[57] That the Court +would have sustained, as against the President's action, a clear-cut +manifestation of congressional action to the contrary is, on the other +hand, unquestionable. In short, if we are today looking for a check upon +the development of executive emergency government, our best reliance is +upon the powers of Congress, which can always supply needed gaps in its +legislation. The Court can only say "no", and there is no guarantee that +in the public interest it would wish to assume this responsibility. + + +IV + +The Concept of Substantive Due Process of Law + +A cursory examination of the pages of this volume reveals that fully a +quarter of them deal with cases in which the Court has been asked to +protect private interests of one kind or another against legislation, +most generally state legislation, which is alleged to invade "liberty" +or "property" contrary to "due process of law". How is this vast +proliferation of cases, and attendant expansion of the Court's +constitutional jurisdiction, to be explained? The explanation, in brief, +is to be found in the replacement of the original meaning of the due +process clause with a meaning of vastly greater scope. Judicial review +is always a function, so to speak, of the viable Constitutional Law of a +particular period. + +From what has been previously said in this Introduction, it clearly +appears that the Court's interpretation of the Constitution has involved +throughout considerable lawmaking, but in no other instance has its +lawmaking been more evident than in its interpretation of the due +process clauses, and in no other instance have the state judiciaries +contributed so much to the final result. The modern concept of +substantive due process is not the achievement of any one American high +court; it is the joint achievement of several--in the end, of all.[58] + +The thing which renders the due process clause an important datum of +American Constitutional Law is the role it has played first and last in +articulating certain theories of private immunity with the +Constitutional Document. The first such theory was Locke's conception of +the property right as anterior to government and hence as setting a +moral limit to its powers.[59] But while Locke's influence is seen to +pervade the Declarations and Bills of Rights which often accompanied the +revolutionary State Constitutions, yet their promise was early defeated +by the overwhelming power of the first state legislatures, especially +_vis-a-vis_ the property right. One highly impressive exhibit of early +state legislative power is afforded by the ferocious catalogue of +legislation directed against the Tories, embracing acts of confiscation, +bills of pains and penalties, even acts of attainder. A second exhibit +of the same kind is furnished by the flood of paper money laws and other +measures of like intent which the widespread debtor class forced through +the great majority of the state assemblies in the years following the +general collapse of values in 1780. + +The most important reaction of the creditor interest to this course of +legislation was its energetic part in bringing about the Philadelphia +Convention. Closer, however, to our purpose is the leadership taken by +the new federal judiciary in asserting the availability against +predatory state legislation of extra-constitutional principles sounding +in Natural Law. In 1795 Justice Paterson of the new Supreme Court +admonished a Pennsylvania jury that to construe a certain state statute +in a way to bring it into conflict with plaintiff's property rights +would render it void. "Men," said he, "have a sense of property.... The +preservation of property ... is a primary object of the social +compact".[60] Three years later, Justice Chase proclaimed from the +Supreme Bench itself, with characteristic emphasis, his rejection of the +idea that state legislative power was absolute unless its authority was +"expressly restrained" by the constitution of the State.[61] He too was +thinking primarily of the rights of property. + +To dicta such as these constantly accrued others of like tenor from +various high state courts, the total of which had come to comprise prior +to the War between the States an impressive body of coherent doctrine +protective of vested rights but claiming little direct support from +written constitutional texts. This indeed was its weakness. For the +question early obtruded itself, whether judicial review could pretend to +operate on a merely moral basis. Both the notion that the Constitution +was an emanation from the sovereignty of the people, and the idea that +judicial review was but a special aspect of normal judicial function, +forbade the suggestion. It necessarily followed that unless judicial +protection of the property right against legislative power was to be +waived, it must be rested on some clause of the constitutional document; +and, inasmuch as the due process clause and the equivalent law of the +land clause of certain of the early state constitutions were the only +constitutional provisions which specifically mentioned property, they +were the ones selected for the purpose. + +The absorptive powers of the law of the land clause, the precursor in +the original state constitutions of the historically synonymous due +process clause, was foreshadowed as early as 1819 in a dictum by +Justice William Johnson of the United States Supreme Court: + + As to the words from Magna Charta ... after volumes spoken and + written with a view to their exposition, the good sense of + mankind has at length settled down to this: that they were + intended to secure the individual from the arbitrary exercise + of the powers of government, unrestrained by the established + principles of private rights and distributive justice.[62] + +Thirty-eight years later, in 1857, the prophecy of these words was +realized in the famous Dred Scott Case,[63] in which Section 8 of the +Missouri Compromise, whereby slavery was excluded from the territories, +was held void under the Fifth Amendment, not on the ground that the +procedure for enforcing it was not due process of law, but because the +Court regarded it as unjust to forbid people to take their slaves, or +other property, into the territories, the common property of all the +States. + +Meanwhile, in the previous year (1856) the recently established Court of +Appeals of New York had, in the landmark case of Wynehamer _v._ +People,[64] set aside a state-wide prohibition law as comprising, with +regard to liquors in existence at the time of its going into effect, an +act of destruction of property not within the power of government to +perform "even by the forms of due process of law". The term due process +of law, in short, simply drops out of the clause, which comes to read +"no person shall be deprived of property", period. At the same time +Judge Comstock's opinion in the case sharply repudiates all arguments +against the statute sounding in Natural Law concepts, fundamental +principles of liberty, common reason and natural rights, and so forth. +Such theories were subversive of the necessary powers of government. +Furthermore, there was "no process of reasoning by which it can be +demonstrated that the 'Act for the Prevention of Intemperance, Pauperism +and Crime' is void, upon principles and theories outside of the +constitution, which will not also, and by an easier induction, bring it +in direct conflict with the constitution itself."[65] Thus it was +foreshadowed that the law of the land and the due process of law +clauses, which were originally inserted in our constitutions to +consecrate a specific mode of trial in criminal cases, to wit, the grand +jury, petit jury process of the common law, would be transformed into a +general restraint upon substantive legislation capable of affecting +property rights detrimentally. + +It is against this background that the adoption of the Fourteenth +Amendment in 1868 must be projected. Applied, as in the Dred Scott and +Wynehamer cases, the clause which forbids any State "to deprive any +person of life, liberty or property without due process of law" +proffered the Court, in implication, a vast new jurisdiction, but this +the Court at first manifested the greatest reluctance to enter upon. It +did not wish, it protested, to become "a perpetual censor upon all State +legislation"; nor did it wish, by enlarged conceptions of the rights +protected by the Amendment, to encourage Congress to take over, under +the fifth section of the Amendment, the regulation of all civil rights. +"The federal equilibrium" had already been sufficiently disturbed by the +results of the War between the States and Reconstruction.[66] + +But this self-denying ordinance, which never had the support of more +than a very narrow majority of the Court, soon began to crumble at the +edges. It was a period of immense industrial expansion, and the men who +directed this wanted a free hand. In 1878 the American Bar Association +was formed from the elite of the American Bar. Organized as it was in +the wake of the "barbarous" decision--as one member termed it--in Munn +_v._ Illinois,[67] in which the Supreme Court had held that states were +entitled by virtue of their police power to prescribe the charges of +"businesses affected with a public interest," the Association, through +its more eminent members, became the mouthpiece of a new constitutional +philosophy which was compounded in about equal parts from the teachings +of the British Manchester School of Political Economy and Herbert +Spencer's highly sentimentalized version of the doctrine of evolution, +just then becoming the intellectual vogue; plus a "booster"--in the +chemical sense--from Sir Henry Maine's _Ancient Law_, first published in +1861. I refer to Maine's famous dictum that "the movement of the +progressive societies has hitherto been a movement from _Status to +Contract_". If hitherto, why not henceforth?[68] + +In short, the American people were presented, overnight as it were, with +a new doctrine of Natural Law. Encouraged by certain dicta of dissenting +Justices of the Supreme Court, a growing procession of high State +courts--those of New York, Pennsylvania, Illinois, and Massachusetts, +leading the way--now began infiltrating the due process clauses and +especially the word "liberty" thereof, of their several State +constitutions with the new revelation. The product of these activities +was the doctrine of freedom of contract, the substantial purport of +which was that any legislation which restricted the liberty of male +persons twenty-one years of age, whether they were employers or +employees, in the making of business contracts, far from being +presumptively constitutional, must be justified by well known facts of +which the court was entitled to take judicial notice; otherwise it fell +under the ban of the due process clause.[69] + +At last, in 1898, the Supreme Court at Washington, following some +tentative gestures in that direction, accepted the new dispensation +outright. In Smyth _v._ Ames decided that year, partially overturning +Munn _v._ Illinois, it gave notice of its intention to review in detail +the "reasonableness" of railway rates set by State authority and in +Holden _v._ Hardy it ratified, at the same term, the doctrine of freedom +of contract.[70] The result of the two holdings for the Court's +constitutional jurisdiction is roughly indicated by the fact that +whereas it had decided 134 cases under the Amendment during the thirty +preceding years, in the ensuing thirteen years it decided 430 such +cases.[71] + +For more than a generation now the Court became the ultimate guardian, +in the name of the Constitutional Document, of the _laissez-faire_ +conception of the proper relation of Government to Private Enterprise, a +rather inconstant guardian, however, for its fluctuating membership +tipped the scales now in favor of Business, now in favor of Government. +And today the latter tendency appears to have prevailed. In its +decisions early in 1937 sustaining outstanding Roosevelt Administration +measures, the Court not only subordinated the freedom of employers to +contract to the freedom of employees to organize, but intimated broadly +that liberty in some of its phases is much more dependent upon +legislative implementation that upon judicial protection.[72] + +In contrast to this withdrawal, however, has been the Court's projection +of another segment of "liberty" into new territory. In Gitlow _v._ New +York,[73] decided in 1925, even in sustaining an antisyndicalist +statute, the Court adopted _arguendo_ the proposition which it had +previously rejected, that "liberty" in Amendment XIV renders available +against the States the restraints which Amendment I imposes on Congress. +For fifteen years little happened. Then in 1940, the Court supplemented +its ruling in the Gitlow Case with the so-called "Clear and Present +Danger" rule, an expedient which was designed to divest state enactments +restrictive of freedom of speech, of press, of religion, and so forth, +of their presumed validity, just as, earlier, statutes restrictive of +freedom of contract had been similarly disabled. By certain of the +Justices, this result was held to be required by "the preferred +position" of some of these freedoms in the hierarchy of constitutional +values; an idea to which certain other Justices demurred. The result to +date has been a series of holdings the net product of which for our +Constitutional Law is at this juncture difficult to estimate; and the +recent decision in Dennis _v._ United States under Amendment I augments +the difficulty.[74] + +A passing glance will suffice for the operation of the due process +clause of Amendment V in the domain of foreign relations and the War +Power. The reader has only to consult in these pages such holdings as +those in Belmont _v._ United States, Yakus _v._ United States, Korematsu +_v._ United States, to be persuaded that even the Constitution is no +exception to the maxim, _inter arma silent leges_.[75] + +In short, the substantive doctrine of due process of law does not today +support judicial intervention in the field of social and economic +legislation in anything like the same measure that it did, first in the +States, then through the Supreme Court on the basis of Amendment XIV, in +the half century between 1885 and 1935. But this fact does not signify +that the clause is not, in both its procedural sense and its broader +sense, especially when supplemented by the equal protection clause of +Amendment XIV, a still valuable and viable source of judicial protection +against parochial despotisms and petty tyrannies. Yet even in this +respect, as certain recent decisions have shown, the Court can often act +more effectively on the basis of congressional legislation implementing +the Amendment than when operating directly on the basis of the Amendment +itself.[76] + + +Resume + +Considered for the two fundamental subjects of the powers of government +and the liberties of individuals, interpretation of the Constitution by +the Supreme Court falls into four tolerably distinguishable periods. The +first, which reaches to the death of Marshall, is the period of the +dominance of the Constitutional Document. The tradition concerning the +original establishment of the Constitution was still fresh, and in the +person and office of the great Chief Justice the intentions of the +framers enjoyed a renewed vitality. This is not to say that Marshall did +not have views of his own to advance; nor is it to say that the +historicity of a particular theory concerning the Constitution is +necessarily a matter of critical concern save to students of history. It +is only to say that the theories which Marshall urged in support of his +preferences were, in fact, frequently verifiable as theories of the +framers of the Constitution. + +The second period is a lengthy one, stretching from the accession of +Chief Justice Taney in 1835 to, say, 1895. It is the period _par +excellence_ of Constitutional Theory. More and more the constitutional +text fades into the background, and the testimony of the _Federalist_, +Marshall's sole book of precedents, ceases to be cited. Among the +theories which in one way or other received the Court's approval during +this period were the notion of Dual Federalism, the doctrine of the +Police Power, the taboo on delegation of legislative power, the derived +doctrine of Due Process of Law, the conception of liberty as Freedom of +Contract, and still others. The sources of some of these doctrines and +the nature of the interests benefited by them have been indicated +earlier in these pages. Their net result was to put the national +law-making power into a strait-jacket so far as the regulation of +business was concerned. + +The third period was that of Judicial Review pure and simple. The Court, +as heir to the accumulated doctrines of its predecessors, found itself +for the time being in possession of such a variety of instruments of +constitutional exegesis that it was often able to achieve almost any +result in the field of constitutional interpretation which it considered +desirable, and that without flagrant departure from judicial good form. +Indeed, it is altogether apparent that the Court was in actual +possession and in active exercise of what Justice Holmes once termed +"the sovereign prerogative of choice." It was early in this period that +Governor Hughes, soon to ascend the Bench, said, without perhaps +intending all that his words literally conveyed, "We are under a +Constitution, but the Constitution is what the judges say it is." A +decade later it was suggested by an eminent law teacher that attorneys +arguing "due process cases" before the Court ought to address the +Justices not as "Your Honors" but as "Your Lordships"; and Senator +Borah, in the Senate debate on Mr. Hughes' nomination for Chief Justice, +in 1930, declared that the Supreme Court had become "economic dictator +in the United States". Some of the Justices concurred in these +observations, especially Justices Holmes and Brandeis. Asserted the +latter, the Court has made itself "a super-legislature" and Justice +Holmes could discover "hardly any limit but the sky" to the power +claimed by the Court to disallow State acts "which may happen to strike +a majority [of its members] as for any reason undesirable".[77] + +The fourth period is still with us. It was ushered in by World War I, +but its results were consolidated and extended during the 1930's, and +have been subsequently still further enlarged and confirmed by World War +II and the "cold war". Many of these results have been treated above. +Others can be searched out in the pages of this volume. What they sum up +to is this: that what was once vaunted as a Constitution of Rights, both +State rights and private rights, has been replaced to a great extent by +a Constitution of Powers. The Federal System has shifted base in the +direction of a consolidated national power; within the National +Government itself there has been an increased flow of power in the +direction of the President; even judicial enforcement of the Bill of +Rights has faltered at times, in the presence of national emergency. + +In this situation judicial review as exercised by the Supreme Court does +not cease being an important technique of government under the +Constitution, but its field of operation has contracted. The purpose +which it serves more and more exclusively is the purpose for which it +was originally created to serve, the maintenance of the principle of +National Supremacy. But in fact, this is the purpose which it has always +served predominantly, even in the era when it was cutting its widest +swathe in the field of national legislative policy, the period from 1895 +to 1935. Even then there was a multiplicity of state legislatures and +only one Congress, so that the legislative grist that found its way to +the Court's mill was overwhelmingly of local provenience. And since then +several things have happened to confirm this predominance: first, the +annexation to Amendment XIV of much of the content of the Federal Bill +of Rights; secondly, the extension of national legislative power, +especially along the route of the commerce clause, into the field of +industrial regulation, with the result of touching state legislative +power on many more fronts than ever before; thirdly, the integration of +the Nation's industrial life, which has brought to the National +Government a major responsibility for the maintenance of a functioning +social order. + +Forty years ago the late Justice Holmes said: + + "I do not think the United States would come to an end if we + [the Court] lost our power to declare an Act of Congress void. + I do think the Union would be imperiled if we could not make + that declaration as to the laws of the several States".[78] + +By and large, this still sizes up the situation. + +Edward S. Corwin. +_January, 1953._ + + +Notes + +[1] _Cong. Record_, vol. 23, p. 6516. + +[2] _The Genessee Chief_, 12 How. 443 (1851), overturning _The Thomas +Jefferson_, 10 Wheat. 428 (1825). + +[3] Knox _v._ Lee, 12 Wall. 457 (1871); Hepburn _v._ Griswold, 8 Wall. +603 (1870). + +[4] Pollock _v._ Farmers' Loan & Trust Co., 157 U.S. 429; Same, 158 U.S. +601. + +[5] _Cong. Record_, vol. 78, p. 5358. + +[6] Smith _v._ Allwright, 321 U.S. 649, 665. + +[7] Ibid. 669. + +[8] _The Supreme Court in United States History_, III, 470-471 (1922). + +[9] The Dartmouth College Case (1819) occupies 197 pages of 4 Wheaton; +Gibbons _v._ Ogden (1824), 240 pages of 9 Wheaton; The Charles River +Bridge case (1837), 230 pages of 11 Peters; the Passenger Cases (1849), +290 pages of 7 Howard; the Dred Scott Case (1857), 240 pages of 19 +Howard; _Ex parte_ Milligan (1866), 140 pages of 4 Wallace; the first +Pollock Case (1895), 325 pages of 157 U.S.; Myers _v._ United States +(1926), 243 pages of 272 U.S. + +[10] Max Farrand, _The Records of the Federal Convention of 1787_, III, +240-241 (1911). + +[11] See Taney's words in 5 How. 504, 573-574 (1847), and 7 How. 283, +465-70 (1849). + +[12] 21 How. 506, 520-521 (1859). + +[13] 295 U.S. 495 (1935); 298 U.S. 238 (1936). + +[14] 298 U.S. 238, 308-309. + +[15] 312 U.S. 100 (1941). + +[16] 100 U.S. 371. + +[17] 227 U.S. 308, 322. + +[18] Dobbins _v._ Commsrs., 16 Pet. 435 (1842); Collector _v._ Day, 11 +Wall. 113. (1870). + +[19] 4 Wheat. 316, 431 (1819). + +[20] For references and further details, see E.S. Corwin, _Court over +Constitution_, 129-176 (1938). + +[21] [Transcriber's Note: Footnote 21 is missing from original text.] + +[22] In this connection, _see_ Oklahoma _v._ Civil Service Comm'n., 330 +U.S. 127, 142-145 (1947). + +[23] 3 Dall. 54, 74. + +[24] 12 Wall. 457, 555 (1871). + +[25] 130 U.S. 581, 604. + +[26] Fong Yue Ting, 149 U.S. 698 (1893). + +[27] 299 U.S. 304, 316-318. + +[28] _See also_ University of Illinois _v._ United States, 289 U.S. 48, +59 (1933). In Lichter _v._ United States, 334 U.S. 742, 782 (1948), +Justice Burton, speaking for the Court, says: "The war powers of +Congress and the President are only those which are derived from the +Constitution", but he adds: "the primary implication of a war power is +that it shall be an effective power to wage war successfully", which +looks very like an attempt to duck the doctrine of an inherent war power +while appropriating its results. + +[29] Welldon (tr.), Book VI, chap. XIV (1888). Jowett and some others +propose a different arrangement. + +[30] John Locke. The Second Treatise on Civil Government, Sec. 141. For +the historical background of this principle, see P.W. Duff and H.E. +Whiteside, "_Delegata Potestas Non P[=o]test Delegari_", _Selected +Essays on Constitutional Law_, IV, 291-316 (1938). + +[31] Panama Refining Co. _v._ Ryan, 293 U.S. 388 (1935); Schechter Corp. +_v._ United States, 295 U.S. 495 (1935). + +[32] 343 U.S. 579 (1952). + +[33] 299 U.S. 304, 327-329. + +[34] 343 U.S. 579, 690. + +[35] Andrew C. McLaughlin, _A Constitutional History of the United +States_, 81 (1935). + +[36] Locke, op. cit., Sec. 137. + +[37] Ibid., Sec. 159-161. + +[38] Meyers _v._ United States, 272 U.S. 52 (1926). + +[39] For the famous debate between "Pacificus" (Hamilton) and +"Helvidius" (Madison), see E.S. Corwin, _The President's Control of +Foreign Relations_, chap. I (1917). + +[40] Writings of Thomas Jefferson, V, 209 (P.L. Ford, ed.; 1895). + +[41] 1 Cr. 137, 163 (1803). + +[42] Ibid., 165-166. + +[43] 7 How. 1. + +[44] Fleming _v._ Page, 9 How. 602 (1850). + +[45] United States _v._ Tingy, 5 Pet. 115, 122. + +[46] 6 _Op. Atty. Gen._ 466 (1854). + +[47] 2 Black 635 (1863). + +[48] 4 Wall. 2 (1866). + +[49] 4 Wall. 475 (1866). + +[50] United States _v._ Lee, 106 U.S. 196, 220. + +[51] In Re Neagle, 135 U.S. 1, 64. + +[52] 158 U.S. 564. + +[53] _Autobiography_, 388-389 (1913). + +[54] _Op. cit._, 144 (1916). + +[55] _Constitutional Government in the United States_, 70 (1908). + +[56] _See_ E.S. Corwin. _Total War and the Constitution_, 35-77 (1947). + +[57] 343 U.S. 579, 662. + +[58] _See_ E.S. Corwin. _Liberty Against Government_, Chaps. III, IV +(1948). + +[59] "... the supreme power cannot take from any man any part of his +property without his consent". _Second Treatise_, Sec. 138. + +[60] Van Home's Lessee _v._ Dorrance, 2 Dall. 304, 310 (1795). + +[61] Calder _v._ Bull, 3 Dall. 386, 388-389 (1798). _See also_ Loan +Association _v._ Topeka, 20 Wall. 655 (1875). + +[62] Bank of Columbia _v._ Okely, 4 Wheat. 235, 244. + +[63] Scott _v._ Sandford, 19 How. 393, 450 (1857). + +[64] 13 N.Y. 378 (1856). + +[65] Ibid. 390-392. The absolute veto of the Court of Appeals in the +Wynehamer case was replaced by the Supreme Court, under the due process +clause of the Fourteenth Amendment, by a more flexible doctrine, which +left it open to the State to show reasonable justification for that type +of legislation in terms of acknowledged ends of the Police Power, +namely, the promotion of the public health, safety and morals. _See_ +Mugler _v._ Kansas, 123 U.S. 623 (1887); and for a transitional case, +Bartemeyer _v._ Iowa, 18 Wall. 129 (1874). + +[66] The Slaughter House Cases, 16 Wall. 36, 78-82 (1873). The opinion +of the Court was focused principally on the privileges and immunities +clause, and the narrow construction given it at this time is still the +law of the Court. But Justices Bradley and Swayne pointed out the +potentialities of the due process of law clause, and the former's +interpretation of it may be fairly regarded as the first step toward the +translation by the Court of "liberty" as Freedom on Contract. + +[67] 94 U.S. 113 (1876). + +[68] Benjamin R. Twiss, _Lawyers and the Constitution, How Laissez Faire +Came to the Supreme Court_, 141-173 (1942). + +[69] _See_ especially Lochner _v._ New York, 198 U.S. 45 (1905); and +Adkins _v._ Children's Hospital, 261 U.S. 525 (1923). + +[70] 169 U.S. 466; ibid. 366. + +[71] _See_ Charles W. Collins, _The Fourteenth Amendment and the +States_, 188-206 (1912). + +[72] Labor Board _v._ Jones & Laughlin, 301 U.S. 1, 33-34; West Coast +Hotel Co. _v._ Parrish, 300 U.S. 379, 391-392. + +[73] 268 U.S. 652, 666; _cf._ Prudential Ins. Co. _v._ Cheek, 259 U.S. +530, 543 (1922). + +[74] The subject can be pursued in detail in connection with Amendment +I, pp. 769-810. + +[75] These cases are treated in the text, _see_ Table of Cases. + +[76] _See_ Williams _v._ United States, 341 U.S. 97 (1951). + +[77] _See:_ Oliver Wendell Holmes, _Collected Legal Papers_, 239, +295-296 (1920); Merlo J. Pusey, _Charles Evans Hughes_, I, 203-206 +(1951). Burns Baking Co. _v._ Bryan, 204 U.S. 504, 534 (1924); Baldwin +_v._ Missouri, 281 U.S. 586, 595 (1930); _American Political Science +Review_, xii, 241 (1918); _New York Times_, February 12, 1930. It was +also during the same period that Judge Andrew A. Bruce of North Dakota +wrote: "We are governed by our judges and not by our legislatures.... It +is our judges who formulate our public policies and our basic law". _The +American Judge_, 6, 8 (1924). Substantially contemporaneously a well +read French critic described our system as _Le Gouvernment des Juges_ +(1921); while toward the end of the period Louis B. Boudin published his +well known _Government by Judiciary_ (2 vols., 1932). + +[78] _Collected Legal Papers_, 295-296. + + + + +CONTENTS + +[For contents in detail, see tables at beginning of each article and +amendment] + + + Page +Prefaces III, V +Editor's forward VII +Editor's introduction IX +Historical note on formation of the Constitution 9 +Text of the Constitution (literal print) 17 +Text of the amendments (literal print) 37 +The Constitution, with annotations 55 + The preamble 59 + Article I. Legislative Department: + Section 1. The Congress 71 + 2. House of Representatives 87 + 3. Senate 91 + 4. Elections and meetings 92 + 5. Legislative proceedings 95 + 6. Rights of Members 99 + 7. Bills and resolutions 101 + 8. Powers of Congress 105 + 9. Powers denied to Congress 312 + 10. Powers denied to the States 325 + Article II. Executive Department: + Section 1. The President 377 + 2. Powers and duties of the President 389 + 3. Miscellaneous powers and duties of the + President 462 + 4. Impeachment 501 + Article III. Judicial Department: + Section 1. The judges, their terms, and compensation 511 + 2. Jurisdiction 538 + 3. Treason 638 + Article IV. Federal relations: + Section 1. Full faith and credit given in each State 647 + 2. Citizens 686 + 3. New States and government of Territory, + etc. 697 + 4. Form of State government 704 + Article V. Mode of amendment 707 + Article VI. Miscellaneous provisions 717 + Article VII. Ratification 741 +Amendments to the Constitution: + Amendment 1. Religion, free speech, etc. 753 + 2. Bearing arms 811 + 3. Quartering soldiers 815 + 4. Searches and seizures 819 + 5. Rights of persons 833 + 6. Rights of accused in criminal prosecutions 873 + 7. Civil trials 887 + 8. Punishment for crime 899 + 9. Rights retained by the people 907 + 10. Reserved State powers 911 + 11. Suits against States 923 + 12. Election of President, etc. 937 + 13. Slavery and involuntary servitude 945 + Section 1. Prohibition of slavery and + involuntary servitude 949 + 2. Power of Congress 949 + 14. Rights of citizens 955 + Section 1. Citizenship; due process; equal + protection 963 + 2. Apportionment of representation 1170 + 3. Disqualification of officers 1173 + 4. Public debt; claims for loss of + slaves 1174 + 5. Enforcement 1175 + 15. Right of citizens to vote 1179 + Section 1. Suffrage not to be abridged for + race, color, etc. 1183 + 2. Power of Congress 1183 + 16. Income tax 1187 + 17. Popular election of Senators 1203 + 18. Prohibition of intoxicating liquors 1209 + Section 1. Prohibition of intoxicating + liquors 1213 + 2. Concurrent power to enforce 1213 + 3. Time limit on ratification 1213 + 19. Equal suffrage 1215 + 20. Commencement of the terms of the President, + Vice President, and Members of Congress, + etc. 1221 + Section 1. Commencement of terms of President, + Vice President, Senators, and + Representatives 1225 + 2. Meeting of Congress 1225 + 3. Death or disqualification of + President elect 1225 + 4. Congress to provide for case + wherein death occurs among those + from whom House chooses a + President 1225 + 5. Date of effect 1226 + 6. Time limit on ratificn 1226 + 21. Repeal of Eighteenth Amendment 1227 + Section 1. Repeal of prohibition 1231 + 2. Transportation into States + prohibited 1231 + 3. Time limit on ratification 1231 + 22. Presidential Tenure 1235 + Section 1. Restriction on Number of terms 1237 + 2. Time limit on ratification 1237 +Acts of Congress held unconstitutional in whole or in part by + the Supreme Court of the United States 1239 +Table of Cases 1257 +Index 1337 + + + + +THE CONSTITUTION OF THE UNITED STATES OF AMERICA + + +HISTORICAL NOTE ON FORMATION OF THE CONSTITUTION + +In June 1774, the Virginia and Massachusetts assemblies independently +proposed an intercolonial meeting of delegates from the several colonies +to restore union and harmony between Great Britain and her American +Colonies. Pursuant to these calls there met in Philadelphia in September +of that year the first Continental Congress, composed of delegates from +12 colonies. On October 14, 1774, the assembly adopted what has come to +be known as the Declaration and Resolves of the First Continental +Congress. In that instrument, addressed to His Majesty and to the people +of Great Britain, there was embodied a statement of rights and +principles, many of which were later to be incorporated in the +Declaration of Independence and the Federal Constitution.[a] + +This Congress adjourned in October with a recommendation that another +Congress be held in Philadelphia the following May. Before its successor +met, the battle of Lexington had been fought. In Massachusetts the +colonists had organized their own government in defiance of the royal +governor and the Crown. Hence, by general necessity and by common +consent, the second Continental Congress assumed control of the "Twelve +United Colonies", soon to become the "Thirteen United Colonies" by the +cooperation of Georgia. It became a _de facto_ government: it called +upon the other colonies to assist in the defense of Massachusetts; it +issued bills of credit; it took steps to organize a military force, and +appointed George Washington commander in chief of the Army. + +While the declaration of the causes and necessities of taking up arms of +July 6, 1775,[b] expressed a "wish" to see the union between Great +Britain and the colonies "restored", sentiment for independence was +growing. Finally, on May 15, 1776, Virginia instructed her delegates to +the Continental Congress to have that body "declare the united colonies +free and independent States."[c] Accordingly on June 7 a resolution was +introduced in Congress declaring the union with Great Britain dissolved, +proposing the formation of foreign alliances, and suggesting the +drafting of a plan of confederation to be submitted to the respective +colonies.[d] Some delegates argued for confederation first and +declaration afterwards. This counsel did not prevail. Independence was +declared on July 4, 1776; the preparation of a plan of confederation was +postponed. It was not until November 17, 1777, that the Congress was +able to agree on a form of government which stood some chance of being +approved by the separate States. The Articles of Confederation were then +submitted to the several States, and on July 9, 1778, were finally +approved by a sufficient number to become operative. + +Weaknesses inherent in the Articles of Confederation became apparent +before the Revolution out of which that instrument was born had been +concluded. Even before the thirteenth State (Maryland) conditionally +joined the "firm league of friendship" on March 1, 1781, the need for a +revenue amendment was widely conceded. Congress under the Articles +lacked authority to levy taxes. She could only request the States to +contribute their fair share to the common treasury, but the requested +amounts were not forthcoming. To remedy this defect, Congress applied to +the States for power to lay duties and secure the public debts. Twelve +States agreed to such an amendment, but Rhode Island refused her +consent, thereby defeating the proposal. + +Thus was emphasized a second weakness in the Articles of Confederation, +namely, the _liberum veto_ which each State possessed whenever +amendments to that instrument were proposed. Not only did all amendments +have to be ratified by each of the 13 States, but all important +legislation needed the approval of 9 States. With several delegations +often absent, one or two States were able to defeat legislative +proposals of major importance. + +Other imperfections in the Articles of Confederation also proved +embarrassing. Congress could, for example, negotiate treaties with +foreign powers, but all treaties had to be ratified by the several +States. Even when a treaty was approved, Congress lacked authority to +secure obedience to its stipulations. Congress could not act directly +upon the States or upon individuals. Under such circumstances foreign +nations doubted the value of a treaty with the new republic. + +Furthermore, Congress had no authority to regulate foreign or interstate +commerce. Legislation in this field, subject to unimportant exceptions, +was left to the individual States. Disputes between States with common +interests in the navigation of certain rivers and bays were inevitable. +Discriminatory regulations were followed by reprisals. + +Virginia, recognizing the need for an agreement with Maryland respecting +the navigation and jurisdiction of the Potomac River, appointed in June +1784, four commissioners to "frame such liberal and equitable +regulations concerning the said river as may be mutually advantageous to +the two States." Maryland in January 1785 responded to the Virginia +resolution by appointing a like number of commissioners[e] "for the +purpose of settling the navigation and jurisdiction over that part of +the bay of Chesapeake which lies within the limits of Virginia, and over +the rivers Potomac and Pocomoke" with full power on behalf of Maryland +"to adjudge and settle the jurisdiction to be exercised by the said +States, respectively, over the waters and navigations of the same."[f] + +At the invitation of Washington the commissioners met at Mount Vernon, +in March 1785, and drafted a compact which, in many of its details +relative to the navigation and jurisdiction of the Potomac, is still in +force.[g] What is more important, the commissioners submitted to their +respective States a report in favor of a convention of all the States +"to take into consideration the trade and commerce" of the +Confederation. Virginia, in January 1786, advocated such a convention, +authorizing its commissioners to meet with those of other States, at a +time and place to be agreed on, "to take into consideration the trade of +the United States; to examine the relative situations and trade of the +said States; to consider how far a uniform system in their commercial +regulations may be necessary to their common interest and their +permanent harmony; and to report to the several States, such an act +relative to this great object, as when unanimously ratified by them, +will enable the United States in Congress, effectually to provide for +the same."[h] + +This proposal for a general trade convention seemingly met with general +approval; nine States appointed commissioners. Under the leadership of +the Virginia delegation, which included Randolph and Madison, Annapolis +was accepted as the place and the first Monday in September 1786 as the +time for the convention. The attendance at Annapolis proved +disappointing. Only five States--Virginia, Pennsylvania, Delaware, New +Jersey, and New York--were represented; delegates from Massachusetts, +New Hampshire, North Carolina, and Rhode Island failed to attend. +Because of the small representation, the Annapolis convention did not +deem "it advisable to proceed on the business of their mission." After +an exchange of views, the Annapolis delegates unanimously submitted to +their respective States a report in which they suggested that a +convention of representatives from all the States meet at Philadelphia +on the second Monday in May 1787 to examine the defects in the existing +system of government and formulate "a plan for supplying such defects as +may be discovered."[i] + +The Virginia legislature acted promptly upon this recommendation and +appointed a delegation to go to Philadelphia. Within a few weeks New +Jersey, Pennsylvania, North Carolina, Delaware, and Georgia also made +appointments. New York and several other States hesitated on the ground +that, without the consent of the Continental Congress, the work of the +convention would be extra-legal; that Congress alone could propose +amendments to the Articles of Confederation. Washington was quite +unwilling to attend an irregular convention. Congressional approval of +the proposed convention became, therefore, highly important. After some +hesitancy Congress approved the suggestion for a convention at +Philadelphia "for the sole and express purpose of revising the Articles +of Confederation and reporting to Congress and the several legislatures +such alterations and provisions therein as shall when agreed to in +Congress and confirmed by the States render the Federal Constitution +adequate to the exigencies of Government and the preservation of the +Union." + +Thereupon, the remaining States, Rhode Island alone excepted, appointed +in due course delegates to the Convention, and Washington accepted +membership on the Virginia delegation. + +Although scheduled to convene on May 14, 1787, it was not until May 25 +that enough delegates were present to proceed with the organization of +the Convention. Washington was elected as presiding officer. It was +agreed that the sessions were to be strictly secret. + +On May 29 Randolph, on behalf of the Virginia delegation, submitted to +the convention 15 propositions as a plan of government. Despite the fact +that the delegates were limited by their instructions to a revision of +the Articles, Virginia had really recommended a new instrument of +government. For example, provision was made in the Virginia plan for the +separation of the three branches of government; under the Articles +executive, legislative, and judicial powers were vested in the Congress. +Furthermore the legislature was to consist of two houses rather than +one. + +On May 30 the Convention went into a committee of the whole to consider +the 15 propositions of the Virginia plan _seriatim_. These discussions +continued until June 13, when the Virginia resolutions in amended form +were reported out of committee. They provided for proportional +representation in both houses. The small States were dissatisfied. +Therefore, on June 14 when the Convention was ready to consider the +report on the Virginia plan, Paterson of New Jersey requested an +adjournment to allow certain delegations more time to prepare a +substitute plan. The request was granted, and on the next day Paterson +submitted nine resolutions embodying important changes in the Articles +of Confederation, but strictly amendatory in nature. Vigorous debate +followed. On June 19 the States rejected the New Jersey plan and voted +to proceed with a discussion of the Virginia plan. The small States +became more and more discontented; there were threats of withdrawal. On +July 2 the convention was deadlocked over giving each State an equal +vote in the upper house--five States in the affirmative, five in the +negative, one divided.[j] + +The problem was referred to a committee of 11, there being 1 delegate +from each State, to effect a compromise. On July 5 the committee +submitted its report, which became the basis for the "great compromise" +of the convention. It was recommended that in the upper house each State +should have an equal vote, that in the lower branch each State should +have one representative for every 40,000 inhabitants, counting +three-fifths of the slaves, that money bills should originate in the +lower house (not subject to amendment by the upper chamber). When on +July 12 the motion of Gouverneur Morris of Pennsylvania that direct +taxation should also be in proportion to representation, was adopted, a +crisis had been successfully surmounted. A compromise spirit began to +prevail. The small States were now willing to support a strong national +government. + +Debates on the Virginia resolutions continued. The 15 original +resolutions had been expanded into 23. Since these resolutions were +largely declarations of principles, on July 24 a committee of five[k] +was selected to draft a detailed constitution embodying the fundamental +principles which had thus far been approved. The Convention adjourned +from July 26 to August 6 to await the report of its committee of detail. +This committee, in preparing its draft of a Constitution, turned for +assistance to the State constitutions, to the Articles of Confederation, +to the various plans which had been submitted to the Convention and +other available material. On the whole the report of the committee +conformed to the resolutions adopted by the Convention, though on many +clauses the members of the committee left the imprint of their +individual and collective judgments. In a few instances the committee +avowedly exercised considerable discretion. + +From August 6 to September 10 the report of the committee of detail was +discussed, section by section, clause by clause. Details were attended +to, further compromises were effected. Toward the close of these +discussions, on September 8, another committee of five[l] was appointed +"to revise the style of and arrange the articles which had been agreed +to by the house." + +On Wednesday, September 12 the report of the committee of style was +ordered printed for the convenience of the delegates. The Convention for +3 days compared this report with the proceedings of the Convention. The +Constitution was ordered engrossed on Saturday, September 15. + +The Convention met on Monday, September 17, for its final session. +Several of the delegates were disappointed in the result. A few deemed +the new Constitution a mere makeshift, a series of unfortunate +compromises. The advocates of the Constitution, realizing the impending +difficulty of obtaining the consent of the States to the new instrument +of Government, were anxious to obtain the unanimous support of the +delegations from each State. It was feared that many of the delegates +would refuse to give their individual assent to the Constitution. +Therefore, in order that the action of the convention would appear to be +unanimous, Gouverneur Morris devised the formula "Done in Convention, by +the unanimous consent of the States present the 17th of September * * * +In witness whereof we have hereunto subscribed our names." Thirty-nine +of the forty-two delegates present thereupon "subscribed" to the +document.[m] + +The Convention had been called to revise the Articles of Confederation. +Instead, it reported to the Continental Congress a new Constitution. +Furthermore, while the Articles specified that no amendments should be +effective until approved by the legislatures of all the States, the +Philadelphia Convention suggested that the new Constitution should +supplant the Articles of Confederation when ratified by conventions in +nine States. For these reasons, it was feared that the new Constitution +might arouse opposition in Congress. + +Three members of the Convention--Madison, Gorham, and King--were also +Members of Congress. They proceeded at once to New York, where Congress +was in session, to placate the expected opposition. Aware of their +vanishing authority, Congress on September 28, after some debate, +decided to submit the Constitution to the States for action. It made no +recommendation for or against adoption. + +Two parties soon developed, one in opposition and one in support of the +Constitution, and the Constitution was debated, criticized, and +expounded clause by clause. Hamilton, Madison, and Jay wrote a series of +commentaries, now known as the Federalist Papers, in support of the new +instrument of government.[n] The closeness and bitterness of the +struggle over ratification and the conferring of additional powers on +the central government can scarcely be exaggerated. In some States +ratification was effected only after a bitter struggle in the State +convention itself. + +Delaware, on December 7, 1787, became the first State to ratify the new +Constitution, the vote being unanimous. Pennsylvania ratified on +December 12, 1787, by a vote of 46 to 23, a vote scarcely indicative of +the struggle which had taken place in that State. New Jersey ratified on +December 19, 1787, and Georgia on January 2, 1788, the vote in both +States being unanimous. Connecticut ratified on January 9, 1788; yeas +128, nays 40. On February 6, 1788, Massachusetts, by a narrow margin of +19 votes in a convention with a membership of 355, endorsed the new +Constitution, but recommended that a bill of rights be added to protect +the States from Federal encroachment on individual liberties. Maryland +ratified on April 28, 1788; yeas 63, nays 11. South Carolina ratified on +May 23, 1788; yeas 149, nays 73. On June 21, 1788, by a vote of 57 to +46, New Hampshire became the ninth State to ratify, but like +Massachusetts she suggested a bill of rights. + +By the terms of the Constitution nine States were sufficient for its +establishment among the States so ratifying. The advocates of the new +Constitution realized, however, that the new government could not +succeed without the addition of New York and Virginia, neither of which +had ratified. Madison, Marshall, and Randolph led the struggle for +ratification in Virginia. On June 25, 1788, by a narrow margin of 10 +votes in a convention of 168 members, that State ratified over the +objection of such delegates as George Mason and Patrick Henry. In New +York an attempt to attach conditions to ratification almost succeeded. +But on July 26, 1788, New York ratified, with a recommendation that a +bill of rights be appended. The vote was close--yeas 30, nays 27. + +Eleven States having thus ratified the Constitution,[o] the Continental +Congress--which still functioned at irregular intervals--passed a +resolution on September 13, 1788, to put the new Constitution into +operation. The first Wednesday of January 1789 was fixed as the day for +choosing presidential electors, the first Wednesday of February for the +meeting of electors, and the first Wednesday of March (i.e. March 4, +1789) for the opening session of the new Congress. Owing to various +delays, Congress was late in assembling, and it was not until April 30, +1789, that George Washington was inaugurated as the first President of +the United States. + + +Notes + +[a] The colonists, for example, claimed the right "to life, liberty, and +property", "the rights, liberties, and immunities of free and +natural-born subjects within the realm of England"; the right to +participate in legislative councils; "the great and inestimable +privilege of being tried by their peers of the vicinage, according to +the course of [the common law of England]"; "the immunities and +privileges granted and confirmed to them by royal charters, or secured +by their several codes of provincial laws"; "a right peaceably to +assemble, consider of their grievances, and petition the king." They +further declared that the keeping of a standing army in the colonies in +time of peace without the consent of the colony in which the army was +kept was "against law"; that it was "indispensably necessary to good +government, and rendered essential by the English constitution, that the +constituent branches of the legislature be independent of each other"; +that certain acts of Parliament in contravention of the foregoing +principles were "infringements and violations of the rights of the +colonists." (Text in Documents Illustrative of the Formation of the +Union, pp. 1-5.) + +[b] Text in Documents Illustrative of the Formation of the Union, pp. +10-17. + +[c] Ibid., pp. 19-20. + +[d] Ibid., p. 21. + +[e] George Mason, Edmund Randolph, James Madison, and Alexander +Henderson were appointed commissioners for Virginia; Thomas Johnson, +Thomas Stone, Samuel Chase, and Daniel of St. Thomas Jenifer for +Maryland. + +[f] The text of the resolutions is to be found in 153 U.S. 162-163. + +[g] See Wharton _v._ Wise, 153 U.S. 155 [1894]. + +[h] Text in Documents Illustrative of the Formation of the Union, p. 38. + +[i] Ibid., pp. 39-43. + +[j] The New Hampshire delegation did not arrive until July 23, 1787. + +[k] Rutledge of South Carolina, Randolph of Virginia, Gorham of +Massachusetts, Ellsworth of Connecticut, and Wilson of Pennsylvania. + +[l] William Samuel Johnson of Connecticut, Alexander Hamilton of New +York, Gouverneur Morris of Pennsylvania, James Madison of Virginia, and +Rufus King, of Massachusetts. + +[m] At least 65 persons had received appointments as delegates to the +Convention; 55 actually attended at different times during the course of +the proceedings; 39 signed the document. It has been estimated that +generally fewer than 30 delegates attended the daily sessions. For +further details respecting the Convention of 1787 _see_: Elliott, +Debates; Farrand, Records of the Constitutional Conventions; Farrand, +The Framing of the Constitution; Meigs, Growth of the Constitution. + +[n] These commentaries on the Constitution, written during the struggle +for ratification, have been frequently cited by the Supreme Court as an +authoritative contemporary interpretation of the meaning of its +provisions. + +[o] North Carolina added her ratification on November 21, 1789; yeas +184, nays 77. Rhode Island did not ratify until May 29, 1790; yeas 34, +nays 32. + + + + +THE CONSTITUTION OF THE UNITED STATES OF AMERICA + +LITERAL PRINT + + +CONSTITUTION OF THE UNITED STATES + +We the People of the United States, in Order to form a more perfect +Union, establish Justice, insure domestic Tranquility, provide for the +common defence, promote the general Welfare, and secure the Blessings of +Liberty to ourselves and our Posterity, do ordain and establish this +Constitution for the United States of America. + + +Article. I. + +Section. 1. All legislative Powers herein granted shall be vested in a +Congress of the United States, which shall consist of a Senate and House +of Representatives. + +Section. 2. The House of Representatives shall be composed of Members +chosen every second Year by the People of the several States, and the +Electors in each State shall have the Qualifications requisite for +Electors of the most numerous Branch of the State Legislature. + +No Person shall be a Representative who shall not have attained to the +age of twenty five Years, and been seven Years a Citizen of the United +States, and who shall not, when elected, be an Inhabitant of that State +in which he shall be chosen. + +Representatives and direct Taxes shall be apportioned among the several +States which may be included within this Union, according to their +respective Numbers, which shall be determined by adding to the whole +Number of free Persons, including those bound to Service for a Term of +Years, and excluding Indians not taxed, three fifths of all other +Persons. The actual Enumeration shall be made within three Years after +the first Meeting of the Congress of the United States, and within every +subsequent Term of ten Years, in such Manner as they shall by Law +direct. The Number of Representatives shall not exceed one for every +thirty Thousand, but each State shall have at Least one Representative; +and until such enumeration shall be made, the State of New Hampshire +shall be entitled to chuse three, Massachusetts eight, Rhode-Island and +Providence Plantations one, Connecticut five, New-York six, New Jersey +four, Pennsylvania eight, Delaware one, Maryland six, Virginia ten, +North Carolina five, South Carolina five, and Georgia three. + +When vacancies happen in the Representation from any State, the +Executive Authority thereof shall issue Writs of Election to fill such +Vacancies. + +The House of Representatives shall chuse their Speaker and other +Officers; and shall have the sole Power of Impeachment. + +Section. 3. The Senate of the United States shall be composed of two +Senators from each State, chosen by the Legislature thereof, for six +Years; and each Senator shall have one Vote. + +Immediately after they shall be assembled in Consequence of the first +Election, they shall be divided as equally as may be into three Classes. +The Seats of the Senators of the first Class shall be vacated at the +Expiration of the second Year, of the second Class at the Expiration of +the fourth Year, and of the third Class at the Expiration of the sixth +Year, so that one third may be chosen every second Year; and if +Vacancies happen by Resignation, or otherwise, during the Recess of the +Legislature of any State, the Executive thereof may make temporary +Appointments until the next Meeting of the Legislature, which shall then +fill such Vacancies. + +No Person shall be a Senator who shall not have attained to the Age of +thirty Years, and been nine Years a Citizen of the United States, and +who shall not, when elected, be an Inhabitant of that State for which he +shall be chosen. + +The Vice President of the United States shall be President of the +Senate, but shall have no Vote, unless they be equally divided. + +The Senate shall chuse their other Officers, and also a President pro +tempore, in the Absence of the Vice President, or when he shall exercise +the Office of President of the United States. + +The Senate shall have the sole Power to try all Impeachments. When +sitting for that Purpose, they shall be on Oath or Affirmation. When the +President of the United States is tried the Chief Justice shall +preside: And no Person shall be convicted without the Concurrence of two +thirds of the Members present. + +Judgment in Cases of Impeachment shall not extend further than to +removal from Office, and disqualification to hold and enjoy any Office +of honor, Trust or Profit under the United States: but the Party +convicted shall nevertheless be liable and subject to Indictment, Trial, +Judgment and Punishment, according to Law. + +Section. 4. The Times, Places and Manner of holding Elections for +Senators and Representatives, shall be prescribed in each State by the +Legislature thereof; but the Congress may at any time by Law make or +alter such Regulations, except as to the Places of chusing Senators. + +The Congress shall assemble at least once in every Year, and such +Meeting shall be on the first Monday in December, unless they shall by +Law appoint a different Day. + +Section. 5. Each House shall be the Judge of the Elections, Returns and +Qualifications of its own Members, and a Majority of each shall +constitute a Quorum to do Business; but a smaller Number may adjourn +from day to day, and may be authorized to compel the Attendance of +absent Members, in such Manner, and under such Penalties as each House +may provide. + +Each House may determine the Rules of its Proceedings, punish its +Members for disorderly Behaviour, and, with the Concurrence of two +thirds, expel a Member. + +Each House shall keep a Journal of its Proceedings, and from time to +time publish the same, excepting such Parts as may in their Judgment +require Secrecy; and the Yeas and Nays of the Members of either House on +any question shall, at the Desire of one fifth of those Present, be +entered on the Journal. + +Neither House, during the Session of Congress, shall, without the +Consent of the other, adjourn for more than three days, nor to any other +Place than that in which the two Houses shall be sitting. + +Section. 6. The Senators and Representatives shall receive a +Compensation for their Services, to be ascertained by Law, and paid out +of the Treasury of the United States. They shall in all Cases, except +Treason, Felony and Breach of the Peace, be privileged from Arrest +during their Attendance at the Session of their respective Houses, and +in going to and returning from the same; and for any Speech or Debate in +either House, they shall not be questioned in any other Place. + +No Senator or Representative shall, during the Time for which he was +elected, be appointed to any civil Office under the Authority of the +United States, which shall have been created, or the Emoluments whereof +shall have been encreased during such time; and no Person holding any +Office under the United States, shall be a Member of either House during +his Continuance in Office. + +Section. 7. All Bills for raising Revenue shall originate in the House +of Representatives; but the Senate may propose or concur with Amendments +as on other Bills. + +Every Bill which shall have passed the House of Representatives and the +Senate, shall, before it become a Law, be presented to the President of +the United States; If he approve he shall sign it, but if not he shall +return it, with his Objections to that House in which it shall have +originated, who shall enter the Objections at large on their Journal, +and proceed to reconsider it. If after such Reconsideration two thirds +of that House shall agree to pass the Bill, it shall be sent, together +with the Objections, to the other House, by which it shall likewise be +reconsidered, and if approved by two thirds of that House, it shall +become a Law. But in all such Cases the Votes of both Houses shall be +determined by yeas and Nays, and the Names of the Persons voting for and +against the Bill shall be entered on the Journal of each House +respectively. If any Bill shall not be returned by the President within +ten Days (Sundays excepted) after it shall have been presented to him, +the Same shall be a Law, in like Manner as if he had signed it, unless +the Congress by their Adjournment prevent its Return, in which Case it +shall not be a Law. + +Every Order, Resolution, or Vote to which the Concurrence of the Senate +and House of Representatives may be necessary (except on a question of +Adjournment) shall be presented to the President of the United States; +and before the Same shall take Effect, shall be approved by him, or +being disapproved by him, shall be repassed by two thirds of the Senate +and House of Representatives, according to the Rules and Limitations +prescribed in the Case of a Bill. + +Section. 8. The Congress shall have Power To lay and collect Taxes, +Duties, Imposts and Excises, to pay the Debts and provide for the common +Defence and general Welfare of the United States; but all Duties, +Imposts and Excises shall be uniform throughout the United States; + +To borrow Money on the credit of the United States; + +To regulate Commerce with foreign Nations, and among the several States, +and with the Indian Tribes; + +To establish an uniform Rule of Naturalization, and uniform Laws on the +subject of Bankruptcies throughout the United States; + +To coin Money, regulate the Value thereof, and of foreign Coin, and fix +the Standard of Weights and Measures; + +To provide for the Punishment of counterfeiting the Securities and +current Coin of the United States; + +To establish Post Offices and post Roads; + +To promote the Progress of Science and useful Arts, by securing for +limited Times to Authors and Inventors the exclusive Right to their +respective Writings and Discoveries; + +To constitute Tribunals inferior to the supreme Court; + +To define and punish Piracies and Felonies committed on the high Seas, +and Offences against the Law of Nations; + +To declare War, grant Letters of Marque and Reprisal, and make Rules +concerning Captures on Land and Water; + +To raise and support Armies, but no Appropriation of Money to that Use +shall be for a longer Term than two Years; + +To provide and maintain a Navy; + +To make Rules for the Government and Regulation of the land and naval +Forces; + +To provide for calling forth the Militia to execute the Laws of the +Union, suppress Insurrections and repel Invasions; + +To provide for organizing, arming, and disciplining, the Militia, and +for governing such Part of them as may be employed in the Service of the +United States, reserving to the States respectively, the Appointment of +the Officers, and the Authority of training the Militia according to the +discipline prescribed by Congress; + +To exercise exclusive Legislation in all Cases whatsoever, over such +District (not exceeding ten Miles square) as may, by Cession of +Particular States, and the Acceptance of Congress, become the Seat of +the Government of the United States, and to exercise like Authority over +all Places purchased by the Consent of the Legislature of the State in +which the Same shall be, for the Erection of Forts, Magazines, Arsenals, +dock-Yards, and other needful Buildings;--And + +To make all Laws which shall be necessary and proper for carrying into +Execution the foregoing Powers, and all other Powers vested by this +Constitution in the Government of the United States, or in any +Department or Officer thereof. + +Section. 9. The Migration or Importation of such Persons as any of the +States now existing shall think proper to admit, shall not be prohibited +by the Congress prior to the Year one thousand eight hundred and eight, +but a Tax or duty may be imposed on such Importation, not exceeding ten +dollars for each Person. + +The Privilege of the Writ of Habeas Corpus shall not be suspended, +unless when in Cases of Rebellion or Invasion the public Safety may +require it. + +No Bill of Attainder or ex post facto Law shall be passed. + +No Capitation, or other direct, Tax shall be laid, unless in Proportion +to the Census or Enumeration herein before directed to be taken. + +No Tax or Duty shall be laid on Articles exported from any State. + +No Preference shall be given by any Regulation of Commerce or Revenue to +the Ports of one State over those of another; nor shall Vessels bound +to, or from, one State, be obliged to enter, clear or pay Duties in +another. + +No Money shall be drawn from the Treasury, but in Consequence of +Appropriations made by Law; and a regular Statement and Account of the +Receipts and Expenditures of all public Money shall be published from +time to time. + +No Title of Nobility shall be granted by the United States: And no +Person holding any Office of Profit or Trust under them, shall, without +the Consent of the Congress, accept of any present, Emolument, Office, +or Title, of any kind whatever, from any King, Prince, or foreign State. + +Section. 10. No State shall enter into any Treaty, Alliance, or +Confederation; grant Letters of Marque and Reprisal; coin Money; emit +Bills of Credit; make any Thing but gold and silver Coin a Tender in +Payment of Debts; pass any Bill of Attainder, ex post facto Law, or Law +impairing the Obligation of Contracts, or grant any Title of Nobility. + +No State shall, without the Consent of the Congress, lay any Imposts or +Duties on Imports or Exports, except what may be absolutely necessary +for executing it's inspection Laws: and the net Produce of all Duties +and Imposts, laid by any State on Imports or Exports, shall be for the +Use of the Treasury of the United States; and all such Laws shall be +subject to the Revision and Controul of the Congress. + +No State shall, without the Consent of Congress, lay any Duty of +Tonnage, keep Troops, or Ships of War in time of Peace, enter into any +Agreement or Compact with another State, or with a foreign Power, or +engage in War, unless actually invaded, or in such imminent Danger as +will not admit of delay. + + +Article. II. + +Section. 1. The executive Power shall be vested in a President of the +United States of America. He shall hold his Office during the Term of +four Years, and, together with the Vice President, chosen for the same +Term, be elected, as follows + +Each State shall appoint, in such Manner as the Legislature thereof may +direct, a Number of Electors, equal to the whole Number of Senators and +Representatives to which the State may be entitled in the Congress: but +no Senator or Representative, or Person holding an Office of Trust or +Profit under the United States, shall be appointed an Elector. + +The Electors shall meet in their respective States, and vote by Ballot +for two Persons, of whom one at least shall not be an Inhabitant of the +same State with themselves. And they shall make a List of all the +Persons voted for, and of the Number of Votes for each; which List they +shall sign and certify, and transmit sealed to the Seat of the +Government of the United States, directed to the President of the +Senate. The President of the Senate shall, in the Presence of the Senate +and House of Representatives, open all the Certificates, and the Votes +shall then be counted. The Person having the greatest Number of Votes +shall be the President, if such Number be a Majority of the whole Number +of Electors appointed; and if there be more than one who have such +Majority, and have an equal Number of Votes, then the House of +Representatives shall immediately chuse by Ballot one of them for +President; and if no Person have a Majority, then from the five highest +on the List the said House shall in like Manner chuse the President. But +in chusing the President, the Votes shall be taken by States, the +Representation from each State having one Vote; a quorum for this +Purpose shall consist of a Member or Members from two thirds of the +States, and a Majority of all the States shall be necessary to a Choice. +In every Case, after the Choice of the President, the Person having the +greatest Number of Votes of the Electors shall be the Vice President. +But if there should remain two or more who have equal Votes, the Senate +shall chuse from them by Ballot the Vice President. + +The Congress may determine the Time of chusing the Electors, and the Day +on which they shall give their Votes; which Day shall be the same +throughout the United States. + +No Person except a natural born Citizen, or a Citizen of the United +States, at the time of the Adoption of this Constitution, shall be +eligible to the Office of President; neither shall any person be +eligible to that Office who shall not have attained to the Age of thirty +five Years, and been fourteen Years a Resident within the United States. + +In Case of the Removal of the President from Office, or of his Death, +Resignation, or Inability to discharge the Powers and Duties of the said +Office, the Same shall devolve on the Vice President, and the Congress +may by Law provide for the Case of Removal, Death, Resignation or +Inability, both of the President and Vice President, declaring what +Officer shall then act as President, and such Officer shall act +accordingly, until the Disability be removed, or a President shall be +elected. + +The President shall, at stated Times, receive for his Services, a +Compensation, which shall neither be encreased nor diminished during the +Period for which he shall have been elected, and he shall not receive +within that Period any other Emolument from the United States, or any of +them. + +Before he enter on the Execution of his Office, he shall take the +following Oath or Affirmation:--"I do solemnly swear (or affirm) that I +will faithfully execute the Office of President of the United States, +and will to the best of my Ability, preserve, protect and defend the +Constitution of the United States." + +Section. 2. The President shall be Commander in Chief of the Army and +Navy of the United States, and of the Militia of the several States, +when called into the actual Service of the United States; he may require +the Opinion, in writing, of the principal Officer in each of the +executive Departments, upon any Subject relating to the Duties of their +respective Offices, and he shall have Power to grant Reprieves and +Pardons for Offences against the United States, except in Cases of +Impeachment. + +He shall have Power, by and with the Advice and Consent of the Senate, +to make Treaties, provided two thirds of the Senators present concur; +and he shall nominate, and by and with the Advice and Consent of the +Senate, shall appoint Ambassadors, other public Ministers and Consuls, +Judges of the supreme Court, and all other Officers of the United +States, whose Appointments are not herein otherwise provided for, and +which shall be established by Law: but the Congress may by Law vest the +Appointment of such inferior Officers, as they think proper, in the +President alone, in the Courts of Law, or in the Heads of Departments. + +The President shall have Power to fill up all Vacancies that may happen +during the Recess of the Senate, by granting Commissions which shall +expire at the End of their next Session. + +Section. 3. He shall from time to time give to the Congress Information +of the State of the Union, and recommend to their Consideration such +Measures as he shall judge necessary and expedient; he may, on +extraordinary Occasions, convene both Houses, or either of them, and in +Case of Disagreement between them, with Respect to the Time of +Adjournment, he may adjourn them to such Time as he shall think proper; +he shall receive Ambassadors and other public Ministers; he shall take +Care that the Laws be faithfully executed, and shall Commission all the +Officers of the United States. + +Section. 4. The President, Vice President and all civil Officers of the +United States, shall be removed from Office on Impeachment for, and +Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors. + + +Article. III. + +Section. 1. The judicial Power of the United States, shall be vested in +one supreme Court, and in such inferior Courts as the Congress may from +time to time ordain and establish. The Judges, both of the supreme and +inferior Courts, shall hold their Offices during good Behaviour, and +shall, at stated Times, receive for their Services, a Compensation, +which shall not be diminished during their Continuance in Office. + +Section. 2. The judicial Power shall extend to all Cases, in Law and +Equity, arising under this Constitution, the Laws of the United States, +and Treaties made, or which shall be made, under their Authority;--to +all Cases affecting Ambassadors, other public Ministers and Consuls;--to +all Cases of admiralty and maritime Jurisdiction;--to Controversies to +which the United States shall be a Party;--to Controversies between two +or more States;--between a State and Citizens of another State;--between +Citizens of different States;--between Citizens of the same State +claiming Lands under Grants of different States, and between a State, or +the Citizens thereof, and foreign States, Citizens or Subjects. + +In all Cases affecting Ambassadors, other public Ministers and Consuls, +and those in which a State shall be Party, the supreme Court shall have +original Jurisdiction. In all the other Cases before mentioned, the +supreme Court shall have appellate Jurisdiction, both as to Law and +Fact, with such Exceptions, and under such Regulations as the Congress +shall make. + +The Trial of all Crimes, except in Cases of Impeachment, shall be by +Jury; and such Trial shall be held in the State where the said Crimes +shall have been committed; but when not committed within any State, the +Trial shall be at such Place or Places as the Congress may by Law have +directed. + +Section. 3. Treason against the United States, shall consist only in +levying War against them, or in adhering to their Enemies, giving them +Aid and Comfort. No Person shall be convicted of Treason unless on the +Testimony of two Witnesses to the same overt Act, or on Confession in +open Court. + +The Congress shall have Power to declare the Punishment of Treason, but +no Attainder of Treason shall work Corruption of Blood, or Forfeiture +except during the Life of the Person attainted. + + +Article. IV. + +Section 1. Full Faith and Credit shall be given in each State to the +public Acts, Records, and judicial Proceedings of every other State. And +the Congress may by general Laws prescribe the Manner in which such +Acts, Records and Proceedings shall be proved, and the Effect thereof. + +Section 2. The Citizens of each State shall be entitled to all +Privileges and Immunities of Citizens in the several States. + +A Person charged in any State with Treason, Felony, or other Crime, who +shall flee from Justice, and be found in another State, shall on Demand +of the executive Authority of the State from which he fled, be delivered +up, to be removed to the State having Jurisdiction of the Crime. + +No Person held to Service or Labour in one State, under the Laws +thereof, escaping into another, shall, in Consequence of any Law or +Regulation therein, be discharged from such Service or Labour, but shall +be delivered up on Claim of the Party to whom such Service or Labour may +be due. + +Section. 3. New States may be admitted by the Congress into this Union; +but no new State shall be formed or erected within the Jurisdiction of +any other State; nor any State be formed by the Junction of two or more +States, or Parts of States, without the Consent of the Legislatures of +the States concerned as well as of the Congress. + +The Congress shall have Power to dispose of and make all needful Rules +and Regulations respecting the Territory or other Property belonging to +the United States; and nothing in this Constitution shall be so +construed as to Prejudice any Claims of the United States, or of any +particular State. + +Section. 4. The United States shall guarantee to every State in this +Union a Republican Form of Government, and shall protect each of them +against Invasion; and on Application of the Legislature, or of the +Executive (when the Legislature cannot be convened) against domestic +Violence. + + +Article. V. + +The Congress, whenever two thirds of both Houses shall deem it +necessary, shall propose Amendments to this Constitution, or, on the +Application of the Legislatures of two thirds of the several States, +shall call a Convention for proposing Amendments, which, in either Case, +shall be valid to all Intents and Purposes, as Part of this +Constitution, when ratified by the Legislatures of three fourths of the +several States, or by Conventions in three fourths thereof, as the one +or the other Mode of Ratification may be proposed by the Congress; +Provided that no Amendment which may be made prior to the Year One +thousand eight hundred and eight shall in any Manner affect the first +and fourth Clauses in the Ninth Section of the first Article; and that +no State, without its Consent, shall be deprived of it's equal Suffrage +in the Senate. + + +Article. VI. + +All Debts contracted and Engagements entered into, before the Adoption +of this Constitution, shall be as valid against the United States under +this Constitution, as under the Confederation. + +This Constitution, and the Laws of the United States which shall be made +in Pursuance thereof; and all Treaties made, or which shall be made, +under the Authority of the United States, shall be the supreme Law of +the Land; and the Judges in every State shall be bound thereby, any +Thing in the Constitution or Laws of any State to the Contrary +notwithstanding. + +The Senators and Representatives before mentioned, and the Members of +the several State Legislatures, and all executive and judicial Officers, +both of the United States and of the several States, shall be bound by +Oath or Affirmation, to support this Constitution; but no religious Test +shall ever be required as a Qualification to any Office or public Trust +under the United States. + + +Article. VII. + +The Ratification of the Conventions of nine States, shall be sufficient +for the Establishment of this Constitution between the States so +ratifying the Same. + +[Sidenote: The Word, "the," being interlined between the seventh and +eighth Lines of the first Page, The Word "Thirty" being partly written +on an Erazure in the fifteenth Line of the first Page, The Words "is +tried" being interlined between the thirty second and thirty third Lines +of the first Page and the Word "the" being interlined between the forty +third and forty fourth Lines of the second Page. + +Attest William Jackson Secretary] + +done in Convention by the Unanimous Consent of the States present the +Seventeenth Day of September in the Year of our Lord one thousand seven +hundred and Eighty seven and of the Independence of the United States of +America the Twelfth In witness whereof We have hereunto subscribed our +Names, + +Go Washington--Presidt +and deputy from Virginia + +New Hampshire { John Langdon + { Nicholas Gilman + +Massachusetts { Nathaniel Gorham + { Rufus King + +Connecticut { Wm: Saml. Johnson + { Roger Sherman + +New York : : : Alexander Hamilton + + { Wil: Livingston +New Jersey { David Brearley. + { Wm. Paterson. + { Jona: Dayton + + { B Franklin + { Thomas Mifflin + { Robt Morris +Pennsylvania { Geo. Clymer + { Thos. FitzSimons + { Jared Ingersoll + { James Wilson + { Gouv Morris + + { Geo: Read + { Gunning Bedford jun +Delaware { John Dickinson + { Richard Bassett + { Jaco: Broom + + { James McHenry +Maryland { Dan of St Thos. Jenifer + { Danl Carroll + +Virginia { John Blair-- + { James Madison Jr. + + { Wm. Blount +North Carolina { Richd. Dobbs Spaight. + { Hu Williamson + + { J. Rutledge +South Carolina { Charles Cotesworth Pinckney + { Charles Pinckney + { Pierce Butler + +Georgia { William Few + { Abr Baldwin + + * * * * * + +In Convention Monday, September 17th 1787. +Present +The States of + +New Hampshire, Massachusetts, Connecticut, Mr. Hamilton from New York, +New Jersey, Pennsylvania, Delaware, Maryland, Virginia, North Carolina, +South Carolina and Georgia. + +Resolved, + +That the preceeding Constitution be laid before the United States in +Congress assembled, and that it is the Opinion of this Convention, that +it should afterwards be submitted to a Convention of Delegates, chosen +in each State by the People thereof, under the Recommendation of its +Legislature, for their Assent and Ratification; and that each Convention +assenting to, and ratifying the Same, should give Notice thereof to the +United States in Congress assembled. Resolved, That it is the Opinion of +this Convention, that as soon as the Conventions of nine States shall +have ratified this Constitution, the United States in Congress assembled +should fix a Day on which Electors should be appointed by the States +which shall have ratified the same, and a Day on which the Electors +should assemble to vote for the President, and the Time and Place for +commencing Proceedings under this Constitution. That after such +Publication the Electors should be appointed, and the Senators and +Representatives elected: That the Electors should meet on the Day fixed +for the Election of the President, and should transmit their Votes +certified, signed, sealed and directed, as the Constitution requires, to +the Secretary of the United States in Congress assembled, that the +Senators and Representatives should convene at the Time and Place +assigned; that the Senators should appoint a President of the Senate, +for the sole Purpose of receiving, opening and counting the Votes for +President; and, that after he shall be chosen, the Congress, together +with the President, should, without Delay, proceed to execute this +Constitution. + +By the Unanimous Order of the Convention + +Go. Washington Presidt + +W. Jackson Secretary. + + + + +AMENDMENTS TO THE CONSTITUTION OF THE UNITED STATES OF AMERICA + + +ARTICLES IN ADDITION TO, AND AMENDMENT OF, THE CONSTITUTION OF THE +UNITED STATES OF AMERICA, PROPOSED BY CONGRESS, AND RATIFIED BY THE +SEVERAL STATES, PURSUANT TO THE FIFTH ARTICLE OF THE ORIGINAL +CONSTITUTION.[a] + + +Amendment [I.][b] + +Congress shall make no law respecting an establishment of religion, or +prohibiting the free exercise thereof; or abridging the freedom of +speech, or of the press; or the right of the people peaceably to +assemble, and to petition the Government for a redress of grievances. + + +Amendment [II.] + +A well regulated Militia, being necessary to the security of a free +State, the right of the people to keep and bear Arms, shall not be +infringed. + + +Amendment [III.] + +No Soldier shall, in time of peace be quartered in any house, without +the consent of the Owner, nor in time of war, but in a manner to be +prescribed by law. + + +Amendment [IV.] + +The right of the people to be secure in their persons, houses, papers, +and effects, against unreasonable searches and seizures, shall not be +violated, and no Warrants shall issue, but upon probable cause, +supported by Oath or affirmation, and particularly describing the place +to be searched, and the persons or things to be seized. + + +Amendment [V.] + +No person shall be held to answer for a capital, or otherwise infamous +crime, unless on a presentment or indictment of a Grand Jury, except in +cases arising in the land or naval forces, or in the Militia, when in +actual service in time of War or public danger; nor shall any person be +subject for the same offence to be twice put in jeopardy of life or +limb; nor shall be compelled in any criminal case to be a witness +against himself, nor be deprived of life, liberty, or property, without +due process of law; nor shall private property be taken for public use, +without just compensation. + + +Amendment [VI.] + +In all criminal prosecutions, the accused shall enjoy the right to a +speedy and public trial, by an impartial jury of the State and district +wherein the crime shall have been committed, which district shall have +been previously ascertained by law, and to be informed of the nature and +cause of the accusation; to be confronted with the witnesses against +him; to have compulsory process for obtaining witnesses in his favor, +and to have the Assistance of Counsel for his defence. + + +Amendment [VII.] + +In Suits at common law, where the value in controversy shall exceed +twenty dollars, the right of trial by jury shall be preserved, and no +fact tried by a jury, shall be otherwise re-examined in any Court of the +United States, than according to the rules of the common law. + + +Amendment [VIII.] + +Excessive bail shall not be required, nor excessive fines imposed, nor +cruel and unusual punishments inflicted. + + +Amendment [IX.] + +The enumeration in the Constitution, of certain rights, shall not be +construed to deny or disparage others retained by the people. + + +Amendment [X.] + +The powers not delegated to the United States by the Constitution, nor +prohibited by it to the States, are reserved to the States respectively, +or to the people. + + +Amendment [XI.][c] + +The Judicial power of the United States shall not be construed to extend +to any suit in law or equity, commenced or prosecuted against one of the +United States by Citizens of another State, or by Citizens or Subjects +of any Foreign State. + + +Amendment [XII.][d] + +The Electors shall meet in their respective states and vote by ballot +for President and Vice-President, one of whom, at least, shall not be an +inhabitant of the same state with themselves; they shall name in their +ballots the person voted for as President, and in distinct ballots the +person voted for as Vice-President, and they shall make distinct lists +of all persons voted for as President, and of all persons voted for as +Vice-President, and of the number of votes for each, which lists they +shall sign and certify, and transmit sealed to the seat of the +government of the United States, directed to the President of the +Senate;--The President of the Senate shall, in the presence of the +Senate and House of Representatives, open all the certificates and the +votes shall then be counted;--The person having the greatest number of +votes for President, shall be the President, if such number be a +majority of the whole number of Electors appointed; and if no person +have such majority, then from the persons having the highest numbers not +exceeding three on the list of those voted for as President, the House +of Representatives shall choose immediately, by ballot, the President. +But in choosing the President, the votes shall be taken by states, the +representation from each state having one vote; a quorum for this +purpose shall consist of a member or members from two-thirds of the +states, and a majority of all the states shall be necessary to a choice. +And if the House of Representatives shall not choose a President +whenever the right of choice shall devolve upon them, before the fourth +day of March next following, then the Vice-President shall act as +President, as in the case of the death or other constitutional +disability of the President--The person having the greatest number of +votes as Vice-President, shall be the Vice-President, if such number be +a majority of the whole number of Electors appointed, and if no person +have a majority, then from the two highest numbers on the list, the +Senate shall choose the Vice-President; a quorum for the purpose shall +consist of two-thirds of the whole number of Senators, and a majority of +the whole number shall be necessary to a choice. But no person +constitutionally ineligible to the office of President shall be eligible +to that of Vice-President of the United States. + + +Amendment XIII.[e] + +Section 1. Neither slavery nor involuntary servitude, except as +a punishment for crime whereof the party shall have been duly convicted, +shall exist within the United States, or any place subject to their +jurisdiction. + +Section 2. Congress shall have power to enforce this article by +appropriate legislation. + + +Amendment XIV.[f] + +Section 1. All persons born or naturalized in the United States +and subject to the jurisdiction thereof, are citizens of the United +States and of the State wherein they reside. No State shall make or +enforce any law which shall abridge the privileges or immunities of +citizens of the United States; nor shall any State deprive any person of +life, liberty, or property, without due process of law; nor deny to any +person within its jurisdiction the equal protection of the laws. + +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. + +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. + +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. + +Section 5. The Congress shall have power to enforce, by +appropriate legislation, the provisions of this article. + + +Amendment XV.[g] + +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. + + +Amendment XVI.[h] + +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. + + +Amendment [XVII.][i] + +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. + +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. + +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. + + +Amendment [XVIII.][j] + +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. + +Sec. 2. The Congress and the several States shall have +concurrent power to enforce this article by appropriate legislation. + +Sec. 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. + + +Amendment [XIX.][k] + +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 sex. + +Congress shall have power to enforce this article by appropriate +legislation. + + +Amendment [XX.][l] + +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. + +Sec. 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. + +Sec. 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. + +Sec. 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. + +Sec. 5. Sections 1 and 2 shall take effect on the 15th day of +October following the ratification of this article. + +Sec. 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. + + +Amendment [XXI.][m] + +Section 1. The eighteenth article of amendment to the +Constitution of the United States is hereby repealed. + +Sec. 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. + +Sec. 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. + + +Amendment [XXII.][n] + +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 the 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. + + +Notes + +[a] In Dillon _v._ Gloss, 256 U.S. 368 [1921], the Supreme Court stated +that it would take Judicial notice of the date on which a State ratified +a proposed constitutional amendment. Accordingly the Court consulted the +State Journals to determine the dates on which each house of the +legislature of certain States ratified the 18th Amendment. It, +therefore, follows that the date on which the governor approved the +ratification, or the date on which the secretary of state of a given +State certified the ratification, or the date on which the Secretary of +State of the United States received a copy of said certificate, or the +date on which he proclaimed that the amendment had been ratified are not +controlling. Hence, the ratification date given in the following notes +is the date on which the legislature of a given State approved the +particular amendment (signature by the speaker or presiding officers of +both houses being considered a part of the ratification of the +"legislature"). When that date is not available, the date given is that +on which it was approved by the governor or certified by the secretary +of state of the particular State. In each case such fact has been noted. +Except as otherwise indicated information as to ratification is based on +data supplied by the Department of State. + +[b] Brackets enclosing an amendment number indicate that the number was +not specifically assigned in the resolution proposing the amendment. It +will be seen, accordingly, that only amendments XIII, XIV, XV and XVI +were thus technically ratified by number. The first 10 amendments along +with 2 others which failed of ratification were proposed by Congress on +September 25, 1789, when they passed the Senate [1 Ann. Cong. (1st +Cong., 1st sess.) 90], having previously passed the House on September +24 [_Id._, 948]. They appear officially in 1 Stat. 97. Ratification was +completed on December 15, 1791, when the eleventh State (Virginia) +approved these amendments, there being then 14 States in the Union. + +The several State legislatures ratified the first 10 amendments to the +Constitution (i.e. nos. 3 to 12 of those proposed) on the following +dates: New Jersey, November 20, 1789; Maryland, December 19, 1789; North +Carolina, December 22, 1789; South Carolina, January 19, 1790; New +Hampshire, January 25, 1790; Delaware, January 28, 1790; New York, +February 27, 1790; Pennsylvania, March 10, 1790; Rhode Island, June 7, +1790; Vermont, November 3, 1791; Virginia, December 15, 1791. The two +amendments which failed of ratification (i.e. nos. 1 and 2 of those +proposed) prescribed the ratio of representation to population in the +House, and specified that no law varying the compensation of members of +Congress should be effective until after an intervening election of +Representatives. The first was ratified by 10 States (1 short of the +requisite number) and the second by 6 States [2 Doc. Hist. Const., +325-390]. + +[c] The 11th Amendment was proposed by Congress on March 4, 1794, when +it passed the House [4 Ann. Cong. (3d Cong., 1st sess.) 477, 478], +having previously passed the Senate on January 14 [_Id._, 30, 31]. It +appears officially in 1 Stat. 402. Ratification was completed on +February 7, 1795, when the twelfth State (North Carolina) approved the +amendment, there being then 15 States in the Union. Official +announcement of ratification was not made until January 8, 1798, when +President John Adams in a message to Congress stated that the 11th +Amendment had been adopted by three-fourths of the States and that it +"may now be deemed to be a part of the Constitution" [1 Mess. and Papers +of Pres. 250]. In the interim South Carolina had ratified, and Tennessee +had been admitted into the Union as the Sixteenth State. + +The several State legislatures ratified the 11th Amendment on the +following dates: New York, March 27, 1794; Rhode Island, March 31, 1794; +Connecticut, May 8, 1794; New Hampshire, June 16, 1794; Massachusetts, +June 26, 1794; Vermont, between October 9 and November 9, 1794; +Virginia, November 18, 1794; Georgia, November 29, 1794; Kentucky, +December 7, 1794; Maryland, December 26, 1794; Delaware, January 23, +1795; North Carolina, February 7, 1795; South Carolina, December 4, 1797 +[State Department, Press Releases, vol. XII, p. 247 (1935)]. + +[d] The 12th Amendment was proposed by Congress on December 9, 1803, +when it passed the House [13 Ann. Cong. (8th Cong., 1st sess.) 775, +776], having previously passed the Senate on December 2 [_Id._, 209]. It +was not signed by the presiding officers of the House and Senate until +December 12. It appears officially in 2 Stat. 306. Ratification was +probably completed on June 15, 1804, when the legislature of the +thirteenth State (New Hampshire) approved the amendment, there being +then 17 States in the Union. The Governor of New Hampshire, however, +vetoed this act of the legislature on June 20, and the act failed to +pass again by two-thirds vote then required by the State constitution. +Inasmuch as art. V of the Federal Constitution specifies that amendments +shall become effective "when ratified by the legislatures of +three-fourths of the several States or by conventions in three-fourths +thereof," it has been generally believed that an approval or veto by a +governor is without significance. If the ratification by New Hampshire +be deemed ineffective, then the amendment became operative by +Tennessee's ratification on July 27, 1804. On September 25, 1804, in a +circular letter to the Governors of the several States, Secretary of +State Madison declared the amendment ratified by three-fourths of the +States. + +The several State legislatures ratified the 12th Amendment on the +following dates: North Carolina, December 22, 1803; Maryland, December +24, 1803; Kentucky, December 27, 1803; Ohio, between December 5 and +December 30, 1803; Virginia, between December 20, 1803 and February 3, +1804; Pennsylvania, January 5, 1804; Vermont, January 30, 1804; New +York, February 10, 1804; New Jersey, February 22, 1804; Rhode Island, +between February 27 and March 12, 1804; South Carolina, May 15, 1804; +Georgia, May 19, 1804; New Hampshire, June 15, 1804; and Tennessee, July +27, 1804. The amendment was rejected by Delaware on January 18, 1804, +and by Connecticut at its session begun May 10, 1804. + +[e] The 13th Amendment was proposed by Congress on January 31, 1865, +when it passed the House [Cong. Globe (38th Cong., 2d sess.) 531], +having previously passed the Senate on April 8, 1864 [_Id._ (38th Cong., +1st sess.) 1490]. It appears officially in 13 Stat. 567 under the date +of February 1, 1865. Ratification was completed on December 6, 1865, +when the legislature of the twenty-seventh State (Georgia) approved the +amendment, there being then 36 States in the Union. On December 18, +1865, Secretary of State Seward certified that the 13th Amendment had +become a part of the Constitution [13 Stat. 774]. + +The several State legislatures ratified the 13th Amendment on the +following dates: Illinois, February 1, 1865; Rhode Island, February, 2, +1865; Michigan, February 2, 1865; Maryland, February 3, 1865; New York, +February 3, 1865; West Virginia, February 3, 1865; Missouri, February 6, +1865; Maine, February 7, 1865; Kansas, February 7, 1865; Massachusetts, +February 7, 1865; Pennsylvania, February 8, 1865; Virginia, February 9, +1865; Ohio, February 10, 1865; Louisiana, February 15 or 16, 1865; +Indiana, February 16, 1865; Nevada, February 16, 1865; Minnesota, +February 23, 1865; Wisconsin, February 24, 1865; Vermont, March 9, 1865 +(date on which it was "approved" by Governor); Tennessee, April 7, 1865; +Arkansas, April 14, 1865; Connecticut, May 4, 1865; New Hampshire, June +30, 1865; South Carolina, November 13, 1865; Alabama, December 2, 1865 +(date on which it was "approved" by Provisional Governor); North +Carolina, December 4, 1865; Georgia, December 6, 1865; Oregon, December +11, 1865; California, December 15, 1865; Florida, December 28, 1865 +(Florida again ratified this amendment on June 9, 1868, upon its +adoption of a new constitution); Iowa, January 17, 1866; New Jersey, +January 23, 1866 (after having rejected the amendment on March 16, +1865); Texas, February 18, 1870; Delaware, February 12, 1901 (after +having rejected the amendment on February 8, 1865). The amendment was +rejected by Kentucky on February 24, 1865, and by Mississippi on +December 2, 1865. + +"A thirteenth amendment depriving of United States citizenship any +citizen who should accept any title, office, or emolument from a foreign +power, was proposed by Congress on May 1, 1810, when it passed the House +[21 Ann. Cong. (11th Cong., 2d sess.) 2050], having previously passed +the Senate on April 27 [20 Ann. Cong. (11th Cong., 2d sess.) 672]. It +appears officially in 2 Stat. 613. It failed of adoption, being ratified +by but 12 States up to December 10, 1812 [2 Miscell. Amer. State Papers, +477-479; 2 Doc. Hist. Const. 454-499], there then being 18 in all. + +"Another thirteenth amendment, forbidding any future amendment that +should empower Congress to interfere with the domestic institutions of +any State, was proposed by Congress on March 2, 1861, when it passed the +Senate [Cong. Globe (36th Cong., 2d sess.) 1403], having previously +passed the House on February 28 [_Id._, 1285]. It appears officially in +12 Stat. 251. It failed of adoption, being ratified by but three States: +Ohio, May 13, 1861 [58 Laws Ohio, 190]; Maryland, January 10, 1862 [Laws +Maryland (1861-62) 21]; Illinois, February 14, 1862 [2 Doc. Hist. +Const., 518] irregular, because by convention instead of by legislation +as authorized by Congress." [Burdick, The Law of the American +Constitution, 637.] + +[f] The 14th Amendment was proposed by Congress on June 13, 1866, when +it passed the House [Cong. Globe (39th Cong., 1st sess.) 3148, 3149], +having previously passed the Senate on June 8 [_Id._, 3042]. It appears +officially in 14 Stat. 358 under date of June 16, 1866. Ratification was +probably completed on July 9, 1868, when the legislature of the +twenty-eighth State (South Carolina or Louisiana) approved the +amendment, there being then 37 States in the Union. However, Ohio and +New Jersey had prior to that date "withdrawn" their earlier assent to +this amendment. Accordingly, Secretary of State Seward on July 20, 1868, +certified that the amendment had become a part of the Constitution if +the said withdrawals were ineffective [15 Stat. 706-707]. Congress at +once (July 21, 1868) passed a joint resolution declaring the amendment a +part of the Constitution and directing the Secretary to promulgate it as +such. On July 28, 1868, Secretary Seward certified without reservation +that the amendment was a part of the Constitution. In the interim, two +other States, Alabama on July 13 and Georgia on July 21, 1868, had added +their ratifications. + +The several State legislatures ratified the 14th Amendment on the +following dates: Connecticut, June 30, 1866; New Hampshire, July 7, +1866; Tennessee, July 19, 1866; New Jersey, September 11, 1866 (the New +Jersey Legislature on February 20, 1868 "withdrew" its consent to the +ratification; the Governor vetoed that bill on March 5, 1868; and it was +repassed over his veto on March 24, 1868); Oregon, September 19, 1866 +(Oregon "withdrew" its consent on October 15, 1868); Vermont, October +30, 1866; New York, January 10, 1867; Ohio, January 11, 1867 (Ohio +"withdrew" its consent on January 15, 1868); Illinois, January 15, 1867; +West Virginia, January 16, 1867; Michigan, January 16, 1867; Kansas, +January 17, 1867; Minnesota, January 17, 1867; Maine, January 19, 1867; +Nevada, January 22, 1867; Indiana, January 23, 1867; Missouri, January +26, 1867 (date on which it was certified by the Missouri secretary of +state); Rhode Island, February 7, 1867; Pennsylvania, February 12, 1867; +Wisconsin, February 13, 1867 (actually passed February 7, but not signed +by legislative officers until February 13); Massachusetts, March 20, +1867; Nebraska, June 15, 1867; Iowa, March 9, 1868; Arkansas, April 6, +1868; Florida, June 9, 1868; North Carolina, July 2, 1868 (after having +rejected the amendment on December 13, 1866); Louisiana, July 9, 1868 +(after having rejected the amendment on February 6, 1867); South +Carolina, July 8, 1868; (after having rejected the amendment on December +20, 1866); Alabama, July 13, 1868 (date on which it was "approved" by +the Governor); Georgia, July 21, 1868 (after having rejected the +amendment on November 9, 1866--Georgia ratified again on February 2, +1870); Virginia, October 8, 1869 (after having rejected the amendment on +January 9, 1867); Mississippi, January 17, 1870; Texas, February 18, +1870 (after having rejected the amendment on October 27, 1866); +Delaware, February 12, 1901 (after having rejected the amendment on +February 7, 1867). The amendment was rejected (and not subsequently +ratified) by Kentucky on January 8, 1807, and by Maryland on March 23, +1867. + +[g] The 15th Amendment was proposed by Congress on February 26, 1869, +when it passed the Senate [Cong. Globe (40th Cong., 3rd sess.) 1641], +having previously passed the House on February 25 [_Id._ 1563, 1564]. It +appears officially in 15 Stat. 346 under date of February 27, 1869. +Ratification was probably completed on February 3, 1870, when the +legislature of the twenty-eighth State (Iowa) approved the amendment, +there being then 37 States in the Union. However, New York had prior to +that date "withdrawn" its earlier assent to this amendment. Even if this +withdrawal were effective, Nebraska's ratification on February 17, 1870, +authorized Secretary of State Fish's certification of March 30, 1870, +that the 15th Amendment had become a part of the Constitution [16 Stat +1131]. + +The several State legislatures ratified the 15th Amendment on the +following dates: Nevada, March 1, 1869; West Virginia, March 3, 1869; +North Carolina, March 5, 1869; Louisiana, March 5, 1869 (date on which +it was "approved" by the Governor); Illinois March 5, 1869; Michigan, +March 5, 1869; Wisconsin, March 5, 1869; Maine, March 11, 1869; +Massachusetts, March 12, 1869; South Carolina, March 15, 1869; Arkansas, +March 15, 1869; Pennsylvania, March 25, 1869; New York, April 14, 1869 +(New York "withdrew" its consent to the ratification on January 5, +1870); Indiana, May 14, 1869; Connecticut, May 19, 1869; Florida, June +14, 1869; New Hampshire, July 1, 1869; Virginia, October 8, 1869; +Vermont, October 20, 1869; Alabama, November 16, 1869; Missouri, January +7, 1870 (Missouri had ratified the first section of the 15th Amendment +on March 1, 1869; it failed to include in its ratification the second +section of the amendment); Minnesota, January 13, 1870; Mississippi, +January 17, 1870; Rhode Island, January 18, 1870; Kansas, January 19, +1870 (Kansas had by a defectively worded resolution previously ratified +this amendment on February 27, 1869); Ohio, January 27, 1870 (after +having rejected the amendment on May 4, 1869); Georgia, February 2, +1870; Iowa, February 3, 1870; Nebraska, February 17, 1870; Texas, +February 18, 1870; New Jersey, February 15, 1871 (after having rejected +the amendment on February 7, 1870); Delaware, February 12, 1901 (date on +which approved by Governor; Delaware had previously rejected the +amendment on March 18, 1869). The amendment was rejected (and not +subsequently ratified) by California, Kentucky, Maryland, Oregon, and +Tennessee. + +[h] The 16th Amendment was proposed by Congress on July 12, 1909, when +it passed the House [44 Cong. Rec. (61st Cong., 1st sess.) 4390, 4440, +4441], having previously passed the Senate on July 5 [_Id._, 4121]. It +appears officially in 36 Stat 184. Ratification was completed on +February 3, 1913, when the legislature of the thirty-sixth State +(Delaware, Wyoming, or New Mexico) approved the amendment, there being +then 48 States in the Union. On February 25, 1913, Secretary of State +Knox certified that this amendment had become a part of the Constitution +[37 Stat. 1785]. + +The several State legislatures ratified the 16th Amendment on the +following dates: Alabama, August 10, 1909; Kentucky, February 8, 1910; +South Carolina, February 19, 1910; Illinois, March 1, 1910; Mississippi, +March 7, 1910; Oklahoma, March 10, 1910; Maryland, April 8, 1910; +Georgia, August 3, 1910; Texas, August 16, 1910; Ohio, January 19, 1911; +Idaho, January 20, 1911; Oregon, January 23, 1911; Washington, January +26, 1911; Montana, January 27, 1911; Indiana, January 30, 1911; +California, January 31, 1911; Nevada, January 31, 1911; South Dakota, +February 1, 1911; Nebraska, February 9, 1911; North Carolina, February +11, 1911; Colorado, February 15, 1911; North Dakota, February 17, 1911; +Michigan, February 23, 1911; Iowa, February 24, 1911; Kansas, March 2, +1911; Missouri, March 16, 1911; Maine, March 31, 1911; Tennessee, April +7, 1911; Arkansas, April 22, 1911 (after having rejected the amendment +at the session begun January 9, 1911); Wisconsin, May 16, 1911; New +York, July 12, 1911; Arizona, April 3, 1912; Minnesota, June 11, 1912; +Louisiana, June 28, 1912; West Virginia, January 31, 1913; Delaware, +February 3, 1913; Wyoming, February 3, 1913; New Mexico, February 3, +1913; New Jersey, February 4, 1913; Vermont, February 19, 1913; +Massachusetts, March 4, 1913; New Hampshire, March 7, 1913 (after having +rejected the amendment on March 2, 1911). The amendment was rejected +(and not subsequently ratified) by Connecticut, Rhode Island, and Utah. + +[i] The 17th Amendment was proposed by Congress on May 13, 1912, when it +passed the House [48 Cong. Rec. (62d Cong., 2d sess.) 6367], having +previously passed the Senate on June 12, 1911 [47 Cong. Rec. (62d Cong. +1st sess.) 1925]. It appears officially in 37 Stat. 646. Ratification +was completed on April 8, 1913, when the thirty-sixth State +(Connecticut) approved the amendment, there being then 48 States in the +Union. On May 31, 1913, Secretary of State Bryan certified that it had +become a part of the Constitution [38 Stat. 2049]. + +The several State legislatures ratified the 17th Amendment on the +following dates: Massachusetts, May 22, 1912; Arizona, June 3, 1912; +Minnesota, June 10, 1912; New York, January 15, 1913; Kansas, January +17, 1913; Oregon, January 23, 1913; North Carolina, January 25, 1913; +California, January 28, 1913; Michigan, January 28, 1913; Iowa, January +30, 1913; Montana, January 30, 1913; Idaho, January 31, 1913; West +Virginia, February 4, 1913; Colorado, February 5, 1913; Nevada, February +6, 1913; Texas, February 7, 1913; Washington, February 7, 1913; Wyoming, +February 8, 1913; Arkansas, February 11, 1913; Illinois, February 13, +1913; North Dakota, February 14, 1913; Wisconsin, February 18, 1913; +Indiana, February 19, 1913; New Hampshire, February 19, 1913; Vermont, +February 19, 1913; South Dakota, February 19, 1913; Maine, February 20, +1913; Oklahoma, February 24, 1913; Ohio, February 25, 1913; Missouri, +March 7, 1913; New Mexico, March 13, 1913; Nebraska, March 14, 1913; New +Jersey, March 17, 1913; Tennessee, April 1, 1913; Pennsylvania, April 2, +1913; Connecticut, April 8, 1913; Louisiana, June 5, 1914. The amendment +was rejected by Utah on February 26, 1913. + +[j] The 18th Amendment was proposed by Congress on December 18, 1917, +when it passed the Senate [Cong. Rec. (65th Cong., 2d sess.) 478], +having previously passed the House on December 17 [_Id._, 470]. It +appears officially in 40 Stat 1050. Ratification was completed on +January 16, 1919, when the thirty-sixth State approved the amendment, +there being then 48 States in the Union. On January 29, 1919, Acting +Secretary of State Polk certified that this amendment had been adopted +by the requisite number of States [40 Stat. 1941]. By its terms this +amendment did not became effective until 1 year after ratification. + +The several State legislatures ratified the 18th Amendment on the +following dates: Mississippi, January 8, 1918; Virginia, January 11, +1918; Kentucky, January 14, 1918; North Dakota, January 28, 1918 (date +on which approved by Governor); South Carolina, January 29, 1918; +Maryland, February 13, 1918; Montana, February 19, 1918; Texas, March 4, +1918; Delaware, March 18, 1918; South Dakota, March 20, 1918; +Massachusetts, April 2, 1918; Arizona, May 24, 1918; Georgia, June 26, +1918; Louisiana, August 9, 1918 (date on which approved by Governor); +Florida, November 27, 1918; Michigan, January 2, 1919; Ohio, January 7, +1919; Oklahoma, January 7, 1919; Idaho, January 8, 1919; Maine, January +8, 1919; West Virginia, January 13, 1919; California, January 13, 1919; +Tennessee, January 13, 1919; Washington, January 13, 1919; Arkansas, +January 14, 1919; Kansas, January 14, 1919; Illinois, January 14, 1919; +Indiana, January 14, 1919; Alabama, January 15, 1919; Colorado, January +15, 1919; Iowa, January 15, 1919; New Hampshire, January 15, 1919; +Oregon, January 15, 1919; Nebraska, January 16, 1919; North Carolina, +January 16, 1919; Utah, January 16, 1919; Missouri, January 16, 1919; +Wyoming, January 16, 1919; Minnesota, January 17, 1919; Wisconsin, +January 17, 1919; New Mexico, January 20, 1919; Nevada, January 21, +1919; Pennsylvania, February 25, 1919; Connecticut, May 6, 1919; New +Jersey, March 9, 1922; New York, January 29, 1919; Vermont, January 29, +1919. + +[k] The 19th Amendment was proposed by Congress on June 4, 1919, when it +passed the Senate [Cong. Rec. (66th Cong., 1st sess.) 635], having +previously passed the House on May 21, [_Id._, 94]. It appears +officially in 41 Stat. 362. Ratification was completed on August 18, +1920, when the thirty-sixth State (Tennessee) approved the amendment, +there being then 48 States in the Union. On August 26, 1920, Secretary +of State Colby certified that it had become a part of the Constitution +[41 Stat. 1823]. + +The several State legislatures ratified the 19th Amendment on the +following dates: Illinois, June 10, 1919 (readopted June 17, 1919); +Michigan, June 10, 1919; Wisconsin, June 10, 1919; Kansas, June 16, +1919; New York, June 16, 1919; Ohio, June 16, 1919; Pennsylvania, June +24, 1919; Massachusetts, June 25, 1919; Texas, June 28, 1919; Iowa, July +2, 1919 (date on which approved by Governor); Missouri, July 3, 1919; +Arkansas, July 28, 1919; Montana, August 2, 1919 (date on which approved +by Governor); Nebraska, August 2, 1919; Minnesota, September 8, 1919; +New Hampshire, September 10, 1919 (date on which approved by Governor); +Utah, October 2, 1919; California, November 1, 1919; Maine, November 5, +1919; North Dakota, December 1, 1919; South Dakota, December 4, 1919 +(date on which certified); Colorado, December 15, 1919 (date on which +approved by Governor); Kentucky, January 6, 1920; Rhode Island, January +6, 1920; Oregon, January 13, 1920; Indiana, January 16, 1920; Wyoming, +January 27, 1920; Nevada, February 7, 1920; New Jersey, February 9, +1920; Idaho, February 11, 1920; Arizona, February 12, 1920; New Mexico, +February 21, 1920 (date on which approved by Governor); Oklahoma, +February 28, 1920; West Virginia, March 10, 1920; Washington, March 22, +1920; Tennessee, August 18, 1920; Connecticut, September 14, 1920 +(confirmed September 21, 1920); Vermont, February 8, 1921. The amendment +was rejected by Georgia on July 24, 1919; by Alabama on September 22, +1919; by South Carolina on January 29, 1920; by Virginia on February 12, +1920; by Maryland on February 24, 1920; by Mississippi on March 29, +1920; by Louisiana on July 1, 1920. + +[l] The 20th Amendment was proposed by Congress on March 2, 1932, when +it passed the Senate [Cong. Rec. (72d Cong., 1st sess.) 5086], having +previously passed the House on March 1 [_Id._, 5027]. It appears +officially in 47 Stat. 745. Ratification was completed on January 23, +1933, when the thirty-sixth State approved the amendment, there being +then 48 States in the Union. On February 6, 1933, Secretary of State +Stimson certified that it had become a part of the Constitution [47 +Stat. 2569]. + +The several State legislatures ratified the 20th Amendment on the +following dates: Virginia, March 4, 1932; New York, March 11, 1932; +Mississippi, March 16, 1932; Arkansas, March 17, 1932; Kentucky, March +17, 1932; New Jersey, March 21, 1932; South Carolina, March 25, 1932; +Michigan, March 31, 1932; Maine, April 1, 1932; Rhode Island, April 14, +1932; Illinois, April 21, 1932; Louisiana, June 22, 1932; West Virginia, +July 30, 1932; Pennsylvania, August 11, 1932; Indiana, August 15, 1932; +Texas, September 7, 1932; Alabama, September 13, 1932; California, +January 4, 1933; North Carolina, January 5, 1933; North Dakota, January +9, 1933; Minnesota, January 12, 1933; Arizona, January 13, 1933; +Montana, January 13, 1933; Nebraska, January 13, 1933; Oklahoma, January +13, 1933; Kansas, January 16, 1933; Oregon, January 16, 1933; Delaware, +January 19, 1933; Washington, January 19, 1933; Wyoming, January 19, +1933; Iowa, January 20, 1933; South Dakota, January 20, 1933; Tennessee, +January 20, 1933; Idaho, January 21, 1933; New Mexico, January 21, 1933; +Georgia, January 23, 1933; Missouri, January 23, 1933; Ohio, January 23, +1933; Utah, January 23, 1933; Colorado, January 24, 1933; Massachusetts, +January 24, 1933; Wisconsin, January 24, 1933; Nevada, January 26, 1933; +Connecticut, January 27, 1933; New Hampshire, January 31, 1933; Vermont, +February 2, 1933; Maryland, March 24, 1933; Florida, April 26, 1933. + +A proposed amendment which would authorize Congress to limit, regulate, +and prohibit the labor of persons under 18 years of age was passed by +Congress on June 2, 1924. This proposal at the time it was submitted to +the States was referred to as "the proposed 20th Amendment." It appears +officially in 43 Stat. 670. + +The status of this proposed amendment is a matter of conflicting +opinion. The Kentucky Court of Appeals in Wise _v._ Chandler (270 Ky. 1 +[1937]) has held that it is no longer open to ratification because: (1) +Rejected by more than one-fourth of the States; (2) a State may not +reject and then subsequently ratify, at least when more than one-fourth +of the States are on record as rejecting; and (3) more than a reasonable +time has elapsed since it was submitted to the States in 1924. The +Kansas Supreme Court in Coleman _v._ Miller (146 Kan. 390 [1937]) came +to the opposite conclusion. + +On October 1, 1937, 27 States had ratified the proposed amendment. Of +these States 10 had previously rejected the amendment on one or more +occasions. At least 26 different States have at one time rejected the +amendment. + +[m] The 21st Amendment was proposed by Congress on February 20, 1933, +when it passed the House [Cong. Rec. (72d Cong., 2d sess.) 4516], having +previously passed the Senate on February 16 [_Id._, 4231]. It appears +officially in 47 Stat. 1625. Ratification was completed on December 5, +1933, when the thirty-sixth State (Utah) approved the amendment, there +being then 48 States in the Union. On December 5, 1933, Acting Secretary +of State Phillips certified that it had been adopted by the requisite +number of States [48 Stat. 1749]. + +The several State conventions ratified the 21st Amendment on the +following dates: Michigan, April 10, 1933; Wisconsin, April 25, 1933; +Rhode Island, May 8, 1933; Wyoming, May 25, 1933; New Jersey, June 1, +1933; Delaware, June 24, 1933; Indiana, June 26, 1933; Massachusetts, +June 26, 1933; New York, June 27, 1933; Illinois, July 10, 1933; Iowa, +July 10, 1933; Connecticut, July 11, 1933; New Hampshire, July 11, 1933; +California, July 24, 1933; West Virginia, July 25, 1933; Arkansas, +August 1, 1933; Oregon, August 7, 1933; Alabama, August 8, 1933; +Tennessee, August 11, 1933; Missouri, August 29, 1933; Arizona, +September 5, 1933; Nevada, September 5, 1933; Vermont, September 23, +1933; Colorado, September 26, 1933; Washington, October 3, 1933; +Minnesota, October 10, 1933; Idaho, October 17, 1933; Maryland, October +18, 1933; Virginia, October 25, 1933; New Mexico, November 2, 1933; +Florida, November 14, 1933; Texas, November 24, 1933; Kentucky, November +27, 1933; Ohio, December 5, 1933; Pennsylvania, December 5, 1933; Utah, +December 5, 1933; Maine, December 6, 1933; Montana, August 6, 1934. The +amendment was rejected by a convention in the State of South Carolina, +on December 4, 1933. The electorate of the State of North Carolina voted +against holding a convention at a general election held on November 7, +1933. + +[n] The twenty-second Amendment was proposed by Congress on March 24, +1947, having passed the House on March 21, 1947 [Cong. Rec. (80th Cong., +1st sess.) 2392] and having previously passed the Senate on March 12, +1947 [Id. 1978]. It appears officially in 61 Stat. 959. Ratification was +completed on February 27, 1951, when the thirty-sixth State (Minnesota) +approved the amendment; there being then 48 States in the Union. On +March 1, 1951, Jess Larson, Administrator of General Services, certified +that it had been adopted by the requisite number of States [16 F.R. +2019]. + +A total of 41 State legislatures ratified the Twenty-second Amendment on +the following dates: Maine, March 31, 1947; Michigan, March 31, 1947; +Iowa, April 1, 1947; Kansas, April 1, 1947; New Hampshire, April 1, +1947; Delaware, April 2, 1947; Illinois, April 3, 1947; Oregon, April 3, +1947; Colorado, April 12, 1947; California, April 15, 1947; New Jersey, +April 15, 1947; Vermont, April 15, 1947; Ohio, April 16, 1947; +Wisconsin; April 16, 1947; Pennsylvania, April 29, 1947; Connecticut, +May 21, 1947; Missouri, May 22, 1947; Nebraska, May 23, 1947; Virginia, +January 28, 1948; Mississippi, February 12, 1948; New York, March 9, +1948; South Dakota, January 21, 1949; North Dakota, February 25, 1949; +Louisiana, May 17, 1950; Montana, January 25, 1951; Indiana, January 29, +1951; Idaho, January 30, 1951; New Mexico, February 12, 1951; Wyoming, +February 12, 1951; Arkansas, February 15, 1951; Georgia, February 17, +1951; Tennessee, February 20, 1951; Texas, February 22, 1951; Utah, +February 26, 1951; Nevada, February 26, 1951; Minnesota, February 27, +1951; North Carolina, February 28, 1951; South Carolina, March 13, 1951; +Maryland, March 14, 1951; Florida, April 16, 1951; and Alabama, May 4, +1951. + + + + +THE CONSTITUTION OF THE UNITED STATES OF AMERICA WITH ANNOTATIONS + + +PREAMBLE + +The Preamble: Page + Purpose and effect 59 + "The people of the United States" 59 + + +THE CONSTITUTION OF THE UNITED STATES OF AMERICA WITH ANNOTATIONS + + +The Preamble + +We the People of the United States, in Order to form a more perfect +Union, establish Justice, insure domestic Tranquility, provide for the +common defence, promote the general Welfare, and secure the Blessings of +Liberty to ourselves and our Posterity, do ordain and establish this +Constitution for the United States of America. + + +Purpose and Effect of the Preamble + +Although the preamble is not a source of power for any department of the +Federal Government,[1] the Supreme Court has often referred to it as +evidence of the origin, scope, and purpose of the Constitution. "Its +true office" wrote Joseph Story in his Commentaries, "is to expound the +nature and extent and application of the powers actually conferred by +the Constitution, and not substantively to create them. For example, the +preamble declares one object to be, 'to provide for the common defense.' +No one can doubt that this does not enlarge the powers of Congress to +pass any measures which they deem useful for the common defence. But +suppose the terms of a given power admit of two constructions, the one +more restrictive, the other more liberal, and each of them is consistent +with the words, but is, and ought to be, governed by the intent of the +power; if one could promote and the other defeat the common defence, +ought not the former, upon the soundest principles of interpretation, to +be adopted?"[2] Moreover, the preamble bears witness to the fact that +the Constitution emanated from the people, and was not the act of +sovereign and independent States,[3] and that it was made for, and is +binding only in, the United States of America.[4] In the Dred Scott +case,[5] Chief Justice Taney declared that: "The words 'people of the +United States' and 'citizens' are synonymous terms, and mean the same +thing. They both describe the political body who, according to our +republican institutions, form the sovereignty, and who hold the power +and conduct the Government through their representatives. They are what +we familiarly call the 'sovereign people,' and every citizen is one of +this people, and a constituent member of this sovereignty."[6] + + +Notes + +[1] Jacobson _v._ Massachusetts, 197 U.S. 11, 22 (1905). + +[2] 1 Story, Commentaries on the Constitution, Sec. 462. + +[3] McCulloch _v._ Maryland, 4 Wheat. 316, 403 (1819); Chisholm _v._ +Georgia, 2 Dall. 419, 470 (1793); Martin _v._ Hunter, Wheat. 304, 324 +(1816). + +[4] Downes _v._ Bidwell, 182 U.S. 244, 251 (1901); In re Ross, 140 U.S. +453, 464 (1891). + +[5] 19 How. 393 (1857). + +[6] Ibid. 404. + + + + +ARTICLE I + +LEGISLATIVE DEPARTMENT + + +Section 1. Nature of legislative power: Page + Doctrine of enumerated powers 71 + Nondelegability of legislative power 73 + Origin of doctrine 73 + Functions which may be delegated 74 + Power to supplement statutory provisions 74 + Standards for administrative action 75 + Rule-making power 76 + Orders directed to particular persons 77 + Delegation to private persons 78 + Power to give effect to contingent legislation 79 + Modification of tariff laws 79 + Arms embargo 80 + Internal affairs 80 + Emergency statutes 81 + Punishment of violations 82 + Congressional investigations 82 + Investigations in aid of legislation 82 + Conduct of executive department 82 + Private affairs 83 + Purpose of inquiry 84 + Judicial functions 85 + Sanctions of the investigatory power 85 + Contempt 85 + Criminal prosecutions 85 +Sections 2 and 3. House of Representatives and Senate: + Qualifications of Members of Congress 87 + Right to vote for Representatives and Congressional + protection thereof 87 + When the qualifications must be possessed 88 + Enlargement of qualifications 88 + Inability of States to enlarge 89 + Census requirement 90 +Section 4. Elections and meetings: + Federal legislation under this clause 92 + Legislature defined 93 + Inequality of election districts 93 + Congressional protection of the electoral process 94 +Section 5. Powers and duties of the houses: + Power to judge elections 95 + Quorum to do business 96 + Rules of procedure 96 + Powers of the houses over members 97 + Duty to keep a journal 98 +Section 6. Compensation, immunities, and disabilities of Members: + When the pay starts 99 + Privilege from arrest 99 + Privilege of speech or debate 99 + Incompatible offices 101 +Section 7. Legislative process: + Revenue bills 102 + Approval by the President 103 + Veto power 103 + Presentation of resolutions 104 +Section 8. Powers of Congress: + Clause 1. Taxing-spending power 105 + Kinds of taxes permitted 105 + Decline of forbidden subject matter test 105 + Rise and fall of Collector _v._ Day 106 + Federal taxation of State interests 106 + Immunity left to the States 108 + Conflicting views on the court 108 + Rule of uniformity 109 + Purposes of taxation 110 + Regulation by taxation 110 + Extermination by taxation 110 + Protective tariff 112 + Spending for the general welfare 112 + Hamilton _v._ Madison 113 + Triumph of Hamiltonian theory 113 + Security Act Cases, The 115 + Earmarked funds 116 + Conditional grants-in-aid 116 + "Debts of the United States" 116 + Clause 2. Borrowing power 117 + Clause 3. Power to regulate interstate and foreign commerce 118 + Purpose of the clause 118 + Definition of terms: Gibbons _v._ Ogden 118 + "Commerce" 118 + "Commerce" today 119 + "Necessary and proper" clause 121 + "Among the several States" 121 + "Regulate" 123 + Interstate versus foreign commerce 123 + Instruments of commerce 125 + Congressional regulation of waterways 126 + Navigation 126 + Hydroelectric power 130 + Congress' jurisdiction over navigable streams today 131 + Purposes for which power may be generated 131 + Congressional regulation of land transportation 132 + Early Acts: Federal provision for highways 132 + Beginnings of federal railway regulation 132 + Regulation of rates: Interstate Commerce Commission 133 + Interstate Commerce Commission today 135 + Shreveport Case 135 + Act of 1920 and State railway rate regulation 136 + Regulation of other agents of carriage and communication 137 + Acts of Congress protective of labor engaged in interstate + transportation 139 + Adair Case 141 + Railroad Retirement Act 142 + Bills of Lading: Ferger Case 143 + Congressional regulation of commerce as traffic 144 + Sherman Act: Sugar Trust Case 144 + Sherman Act revised 146 + "Current of commerce" concept: Swift Case 147 + Danbury Hatters Case 149 + Stockyards and Grain Futures Acts 149 + Securities and Exchange Commission 150 + Congressional regulation of production and industrial + relations 152 + Antidepression legislation 152 + National Industrial Recovery Act 152 + Schechter Case 152 + Agricultural Adjustment Act 153 + Bituminous Coal Conservation Act 153 + National Labor Relations Act 154 + Fair Labor Standards Act: Darby Case 155 + Agricultural Marketing Agreement Act 159 + Acts of Congress prohibiting commerce 160 + Foreign commerce; Jefferson's embargo 160 + Foreign commerce; protective tariffs 162 + Foreign commerce; banned articles 162 + Interstate commerce; conflict of doctrine and opinion 163 + Acts of Congress prohibitive of commerce 168 + Lottery Case 169 + National prohibitions and State police power 169 + Hammer _v._ Dagenhart 170 + Interstate commerce in stolen goods banned 171 + Darby Case 172 + Congress and the federal system 173 + Commerce clause as a restraint on State power 173 + Doctrinal background 173 + Doctrinal background: Webster's contribution 175 + Cooley _v._ Board of Port Wardens 175 + Judicial formulas 176 + Taxing power of the State and foreign commerce 177 + Browne _v._ Maryland: Original package doctrine 177 + State taxation of the subject matter of interstate commerce 178 + General considerations 178 + State Freight Tax Case 179 + Goods in transit 180 + State taxation of manufacturing and mining 181 + Production for an established market 182 + Rejection of original package concept in interstate + commerce 182 + Inspection charges 183 + Local sales: Peddlers 184 + Stoppage in transit 185 + Drummer Cases; Robbins _v._ Shelby County Taxing + District 186 + Limitation of the Robbins Case 187 + Robbins Case today 189 + Depression Cases: Use taxes 189 + Depression Cases: Sales taxes 190 + End of the Depression Cases 191 + Taxation of carriage of persons 192 + State taxation of the interstate commerce privilege: + Foreign Corporations 193 + Doctrinal history 193 + License taxes 194 + Doctrine of Western Union Telegraph _v._ Kansas 196 + Spread of the doctrine 196 + Status of the doctrine today 197 + State taxation of property engaged in, and of the proceeds + from, interstate commerce 198 + General issue 198 + Development of the apportionment rule 199 + Unit rule 200 + Apportioned property taxes 201 + Apportioned gross receipts taxes 202 + Franchise taxes 202 + Gross receipts taxes, classes of 203 + Multiple taxation test 204 + Recent cases 206 + Taxes on net income 208 + Miscellaneous taxes affecting interstate commerce 209 + Vessels 209 + Airplanes 210 + Motor vehicles 211 + Public utilities: Regulatory charges 213 + Dominance of Congress 214 + McCarran Act: Regulation of insurance 214 + Police power and foreign commerce 215 + Origin of police power 215 + State curbs on entry of foreigners 216 + State quarantine laws 217 + State game protection and foreign commerce 217 + Police power and interstate commerce 217 + General principles 217 + State regulation of agencies of interstate commerce 220 + Railway rate regulation 220 + Adequate service regulations 221 + Safety and other regulations 221 + Invalid State regulations 222 + State regulation of length of trains 223 + Lesson of Southern Pacific Co. _v._ Arizona 225 + State regulation of motor vehicles: Valid regulations 226 + Invalid State acts affecting motor carriers 227 + Transportation agencies 228 + Navigation; general doctrine 228 + Bridges, dams, ferries, wharves 230 + Ferries 231 + Telegraphs and telephones 231 + Gas and electricity 233 + Foreign corporations 234 + Miscellaneous 234 + Banks and banking 234 + Brokers 235 + Commission men 235 + Attachment and garnishment 235 + Statutory liens 235 + Police power and the subject matter of commerce 235 + Scope of the police power 235 + Quarantine laws 236 + State inspection laws 237 + State prohibition laws: The original package doctrine 238 + Oleomargarine and cigarettes 239 + Demise of the original package doctrine 240 + Curbs on the interstate movement of persons 241 + State conservation and embargo measures 242 + State conservation and embargo measures: The Milk Cases 244 + State conservation and embargo measures: The Shrimp Cases 245 + Concurrent federal and State legislation 246 + General issue 246 + Hepburn Act 246 + Quarantine Cases 248 + Recent cases sustaining State legislation 249 + Recent cases nullifying State action 250 + Federal versus State labor laws 251 + Commerce with Indian Tribes 252 + United States _v._ Kagama 252 + Clause 4. Naturalization and bankruptcies 254 + Naturalization and citizenship 254 + Categories of naturalized persons 254 + Who are eligible for naturalization 255 + Procedure of naturalization 256 + Rights of naturalized persons 257 + Congress' power exclusive 258 + Right of expatriation: Loss of citizenship 258 + Exclusion of aliens 259 + Bankruptcy 262 + Persons who may be released from debt 262 + Liberalization of relief granted 262 + Constitutional limitations on the bankruptcy power 263 + Power not exclusive 264 + Constitutional status of State insolvency laws 264 + Clauses 5 and 6. Fiscal and monetary powers of Congress 265 + Coinage, weights, and measures 265 + Punishment of counterfeiting 266 + Borrowing power versus the fiscal power 266 + Clause 7. Postal power 267 + "Establish" 267 + Powers to protect the mails 268 + Antislavery and the mails 268 + Power to prevent harmful use of the postal facilities 268 + Exclusion power as an adjunct to other powers 269 + State regulations affecting the mails 270 + Clause 8. Copyrights and Patents 271 + Scope of the power 271 + Patentable discoveries 271 + Procedure in issuing patents 274 + Nature and scope of the right secured 274 + Power of Congress over patent rights 275 + State power affecting patents and copyrights 276 + Trade-marks and advertisements 276 + Clause 9. _See_ article III 277 + Clause 10. Piracies and felonies 277 + Origin of the clause 277 + Definition of offenses 277 + Extraterritorial reach of the power 278 + Clauses 11, 12, 13, and 14. War: Military establishments 279 + War power 279 + Source and scope 279 + An inherent power 280 + A complexus of granted powers 281 + Declaration of war: When required 281 + Prize Cases, The, (1863) 282 + Power to raise and maintain armed forces 283 + Purpose of specific grants 283 + Time limit on appropriations for the army 283 + Establishment of the air force 284 + Conscription 284 + Care of the armed forces 285 + Trial and punishment of offenses 285 + War legislation 286 + Revolutionary war legislation 286 + Civil War legislation 287 + World War I legislation 287 + World War II legislation 288 + Mobilization of industrial resources 288 + Delegation of legislative power in wartime 289 + Mergence of legislative and executive in wartime 290 + Doctrine of Lichter _v._ United States 290 + War powers in time of peace 291 + Atomic Energy Act 292 + Postwar legislation 292 + Private rights in wartime 293 + Enemy country 293 + Theatre of military operations 294 + Enemy property 294 + Prizes of war 295 + Police regulations: Rent control 296 + Personal liberty in wartime 297 + Alien enemies 297 + Eminent domain 298 + Clauses 15 and 16. Militia 299 + Militia clauses 299 + Calling out the militia 299 + Regulation of the militia 299 + Clause 17. Seat of government, etc. 300 + Seat of government 300 + Nature and extent of rights ceded to United States 301 + Retrocession of Alexandria county 301 + Continuance of State laws 302 + Status of the district today 302 + Legislative power over the district 303 + Taxation in the district 303 + Delegation of legislative power to municipal officers 304 + Courts of the district 304 + Authority over places purchased 305 + "Places" 305 + Duration of federal jurisdiction 305 + Reservation of jurisdiction by States 306 + Clause 18. "Necessary and proper" clause 307 + Coefficient or elastic clause 307 + Scope of incidental powers 307 + Operation of coefficient clause 308 + Definition and punishment of crimes 308 + Chartering of banks 309 + Currency regulations 309 + Power to charter corporations 310 + Courts and judicial proceedings 310 + Special acts concerning claims 311 + Maritime law 311 +Section 9. Powers denied to Congress 312 + General purpose of the section 312 + Clause 1. Importation of slaves 312 + Clause 2. Suspension of the privilege of the writ of habeas + corpus 312 + Habeas corpus 312 + Purpose of the writ 312 + Errors which may be corrected on habeas corpus 313 + Habeas corpus not a substitute for appeal 314 + Issuance of the writ 314 + Suspension of the privilege 315 + Clause 3. Attainder and ex post facto laws 315 + Bills of attainder 315 + Ex post facto laws 316 + Definition 316 + What constitutes punishment 317 + Changes in place or mode of trial 317 + Clause 4. Capitation and direct taxes 317 + Direct taxes 317 + The Hylton case 317 + From the Hylton to the Pollock case 318 + Restriction of the Pollock decision 319 + Miscellaneous 321 + Clause 5. Export duties 321 + Taxes on exports 321 + Stamp taxes 322 + Clause 6. "No preference" clause 322 + Clause 7. Appropriations and accounting of public mon 323 + Appropriations 323 + Payment of claims 324 + Clause 8. Titles of nobility and gifts from foreign + States 324 +Section 10. Powers denied to the States 325 + Clause 1. Not to make treaties, coin money, pass ex post + facto laws, impair contracts, etc. 325 + Treaties, alliances, or confederations 325 + Bills of credit 326 + Legal tender 326 + Bills of attainder 326 + Ex post facto laws 327 + Scope of provision 327 + Denial of future privileges to past offenders 327 + Changes in punishment 328 + Changes in procedure 328 + Obligation of contracts 329 + Definition of terms 329 + "Law" 329 + Status of judicial decisions 329 + "Obligation" 332 + "Impair" 332 + "Contracts," extended to cover public contracts 332 + Fletcher _v._ Peck 335 + New Jersey _v._ Wilson 336 + Corporate charters; Different ways of regarding 336 + Dartmouth College case 338 + Classes of cases under the clause 339 + Public grants 339 + Municipal corporations 339 + Public offices 340 + Revocable privileges versus "contracts": Tax exemptions 341 + Vested rights 343 + Reservation of the right to alter and repeal 343 + Right to reserve: When limited 343 + Corporations as persons subject to the law 345 + Corporations and the police power 345 + Strict construction of public grants 346 + Charles River Bridge case 346 + Application of the strict construction rule 346 + Strict construction of tax exemptions 347 + Strict construction and the police power 348 + Doctrine of inalienable State powers 349 + Eminent domain power inalienable 349 + Taxing power not inalienable 350 + Police power: When inalienable 351 + Private contracts 352 + Scope of the term 352 + Source of the obligation 352 + Ogden _v._ Saunders 353 + Remedy a part of the obligation 354 + Establishment of the rule 354 + Qualifications of the rule 355 + Municipal Bond cases 356 + Private contracts and the police power 357 + Emergency legislation 358 + Individual rights versus public welfare 359 + Evaluation of the clause today 359 + Statistical data pertinent to the clause 361 + Clause 2. Not to levy duties on exports and imports 362 + Duties on exports and imports 362 + Scope 362 + Privilege taxes 363 + Property taxes 364 + Inspection laws 364 + Clause 3. Not to lay tonnage duties, keep troops, make + compacts, or engage in war 365 + Tonnage duties 365 + Keeping troops 366 + Interstate compacts 366 + Background of clause 366 + Subject matter of interstate compacts 368 + Consent of Congress 368 + Grants of franchise to corporation by two States 369 + Legal effect of interstate compacts 369 + + +LEGISLATIVE DEPARTMENT + + +Article I + +Section 1. All legislative Powers herein granted shall be +vested in a Congress of the United States, which shall consist of a +Senate and House of Representatives. + + +Doctrine of Enumerated Powers + +Two important doctrines of Constitutional Law--that the Federal +Government is one of enumerated powers and that legislative power may +not be delegated--are derived in part from this section. The classical +statement of the former is that by Chief Justice Marshall in McCulloch +_v._ Maryland: "This government is acknowledged by all, to be one of +enumerated powers. The principle, that it can exercise only the powers +granted to it, would seem too apparent, to have required to be enforced +by all those arguments, which its enlightened friends, while it was +depending before the people, found it necessary to urge; that principle +is now universally admitted."[1] That, however, "the executive power" is +not confined to the items of it which are enumerated in article II was +asserted early in the history of the Constitution by Madison and +Hamilton alike and is today the doctrine of the Court;[2] and a similar +latitudinarian conception of "the judicial power of the United States" +was voiced in Justice Brewer's opinion for the Court in Kansas _v._ +Colorado.[3] But even when confined to "the legislative powers herein +granted," the doctrine is severely strained by Marshall's conception of +some of these as set forth in his McCulloch _v._ Maryland opinion: This +asserts that "the sword and the purse, all the external relations, and +no inconsiderable portion of the industry of the nation, are intrusted +to its government";[4] he characterizes "the power of making war," of +"levying taxes," and of "regulating commerce" as "great, substantive and +independent powers";[5] and the power conferred by the "necessary and +proper" clause embraces, he declares, "all [legislative] means which are +appropriate" to carry out "the legitimate ends" of the Constitution, +unless forbidden by "the letter and spirit of the Constitution."[6] Nine +years later, Marshall introduced what Story in his Commentaries labels +the concept of "resulting powers," those which "rather be a result from +the whole mass of the powers of the National Government, and from the +nature of political society, than a consequence or incident of the +powers specially enumerated."[7] Story's reference is to Marshall's +opinion in American Insurance Company _v._ Canter,[8] where the latter +says, that "the Constitution confers absolutely on the government of the +Union, the powers of making war, and of making treaties; consequently, +that government possesses the power of acquiring territory, either by +conquest or by treaty."[9] And from the power to acquire territory, he +continues, arises as "the inevitable consequence" the right to govern +it.[10] Subsequently, powers have been repeatedly ascribed to the +National Government by the Court on grounds which ill accord with the +doctrine of enumerated powers: the power to legislate in effectuation of +the "rights expressly given, and duties expressly enjoined" by the +Constitution;[11] the power to impart to the paper currency of the +Government the quality of legal tender in the payment of debts;[12] the +power to acquire territory by discovery;[13] the power to legislate for +the Indian tribes wherever situated in the United States;[14] the power +to exclude and deport aliens;[15] and to require that those who are +admitted be registered and fingerprinted;[16] and finally the complete +powers of sovereignty, both those of war and peace, in the conduct of +foreign relations. In the words of Justice Sutherland in United States +_v._ Curtiss-Wright Export Corporation,[17] decided in 1936: "The broad +statement that the federal government can exercise no powers except +those specifically enumerated in the Constitution, and such implied +powers as are necessary and proper to carry into effect the enumerated +powers, is categorically true only in respect of our internal affairs. +In that field, the primary purpose of the Constitution was to carve from +the general mass of legislative powers _then possessed by the states_ +such portions as it was thought desirable to vest in the federal +government, leaving those not included in the enumeration still in the +states.... That this doctrine applies only to powers which the states +had, is self evident. And since the states severally never possessed +international powers, such powers could not have been carved from the +mass of state powers but obviously were transmitted to the United States +from some other source.... A political society cannot endure without a +supreme will somewhere. Sovereignty is never held in suspense. When, +therefore, the external sovereignty of Great Britain in respect of the +colonies ceased, it immediately passed to the Union.... It results that +the investment of the federal government with the powers of external +sovereignty did not depend upon the affirmative grants of the +Constitution. The powers to declare and wage war, to conclude peace, to +make treaties, to maintain diplomatic relations with other +sovereignties, if they had never been mentioned in the Constitution, +would have vested in the federal government as necessary concomitants of +nationality."[18] Yet for the most part, these holdings do not, as +Justice Sutherland suggests, directly affect "the internal affairs" of +the nation; they touch principally its peripheral relations, as it +were. The most serious inroads on the doctrine of enumerated powers are, +in fact, those which have taken place under cover of the doctrine--the +vast expansion in recent years of national legislative power in the +regulation of commerce among the States and in the expenditure of the +national revenues; and verbally at least Marshall laid the ground for +these developments in some of the phraseology above quoted from his +opinion in McCulloch _v._ Maryland. + + +Nondelegability of Legislative Power + + +ORIGIN OF DOCTRINE + +At least three distinct ideas have contributed to the development of the +principle that legislative power cannot be delegated. One is the +doctrine of separation of powers: Why go to the trouble of separating +the three powers of government if they can straightway remerge on their +own motion? The second is the concept of due process of law, which +precludes the transfer of regulatory functions to private persons. +Lastly, there is the maxim of agency "_Delegata potestas non potest +delegari_," which John Locke borrowed and formulated as a dogma of +political science.[19] In Hampton Jr. & Co. _v._ United States,[20] +Chief Justice Taft offered the following explanation of the origin and +limitations of this idea as a postulate of constitutional law: "The +well-known maxim '_Delegata potestas non potest delegari_,' applicable +to the law of agency in the general and common law, is well understood +and has had wider application in the construction of our Federal and +State Constitutions than it has in private law. The Federal Constitution +and State Constitutions of this country divide the governmental power +into three branches. * * * in carrying out that constitutional division +* * * it is a breach of the National fundamental law if Congress gives +up its legislative power and transfers it to the President, or to the +Judicial branch, or if by law it attempts to invest itself or its +members with either executive power or judicial power. This is not to +say that the three branches are not co-ordinate parts of one government +and that each in the field of its duties may not invoke the action of +the two other branches in so far as the action invoked shall not be an +assumption of the constitutional field of action of another branch. In +determining what it may do in seeking assistance from another branch, +the extent and character of that assistance must be fixed according to +common sense and the inherent necessities of the governmental +co-ordination."[21] + + +FUNCTIONS WHICH MAY BE DELEGATED + +Yielding to "common sense and the inherent necessities of governmental +co-ordination" the Court has sustained numerous statutes granting in the +total vast powers to administrative or executive agencies. Two different +theories, both enunciated during the Chief Justiceship of John Marshall, +have been utilized to justify these results. First in importance is the +theory that another department may be empowered to "fill up the details" +of a statute.[22] The second is that Congress may legislate +contingently, leaving to others the task of ascertaining the facts which +bring its declared policy into operation.[23] + + +POWER TO SUPPLEMENT STATUTORY PROVISIONS + +The pioneer case which recognized the right of Congress to lodge in +another department the power to "fill up the details" of a statute arose +out of the authority given to federal courts to establish rules of +practice, provided such rules were not repugnant to the laws of the +United States. Chief Justice Marshall overruled the objection that this +constituted an invalid delegation of legislative power, saying: "It will +not be contended, that Congress can delegate to the courts, or to any +other tribunals, powers which are strictly and exclusively legislative. +But Congress may certainly delegate to others, powers which the +legislature may rightfully exercise itself. * * * The line has not been +exactly drawn which separates those important subjects, which must be +entirely regulated by the legislature itself, from those of less +interest, in which a general provision may be made, and power given to +those who are to act under such general provisions, to fill up the +details."[24] + + +STANDARDS FOR ADMINISTRATIVE ACTION + +Before another agency can "fill up the details," Congress must enact +something to be thus supplemented. In the current idiom, the lawmakers +must first adopt a policy or set up an "intelligible standard" to which +administrative action must conform.[25] But the Court has taken a +generous view of what constitutes a policy or standard. Although it has +said that "procedural safeguards cannot validate an unconstitutional +delegation,"[26] the nature of the proceedings appears to be one of the +elements weighed in determining whether a specific delegation is +constitutional.[27] In cases where the delegated power is exercised by +orders directed to particular persons after notice and hearing, with +findings of fact and of law based upon the record made in the hearing, +the Court has ruled that such general terms as "public interest,"[28] +"public convenience, interest, or necessity,"[29] or "excessive +profits,"[30] were sufficient to satisfy constitutional requirements. +But in two cases arising under the National Industrial Recovery Act, a +policy declaration of comparable generality was held insufficient for +the promulgation of rules applicable to all persons engaged in a +designated activity, without the procedural safeguards which surround +the issuance of individual orders.[31] By subsequent decisions, somewhat +more elaborate, but still very broad, standards have been deemed +adequate for various price fixing measures.[32] In a recent case,[33] +the Court sustained a statute which, without any explicit standards +whatever, authorized the Federal Home Loan Bank Board to make rules and +regulations for the supervision of Federal Savings and Loan +Associations. That decision was influenced by the fact that the +corporation was chartered by federal law as well as by the peculiar +problems involved in the supervision of financial institutions. The +Court was at pains to make clear that this decision would not +necessarily govern the disposition of dissimilar cases.[34] + + +RULE-MAKING POWER + +After Wayman _v._ Southard, nearly three quarters of a century elapsed +before the Court had occasion to approve the delegation to an executive +officer of power to issue regulations for the administration of a +statute. In 1897 it sustained the authority granted to the Commissioner +of Internal Revenue to designate the "marks, brands and stamps" to be +affixed to packages of oleomargarine.[35] Soon thereafter it upheld an +act which directed the Secretary of the Treasury to promulgate minimum +standards of quality and purity for tea imported into the United +States.[36] It has approved the delegation to executive or +administrative officials of authority to make rules governing the use of +forest reservations;[37] permitting reasonable variations and tolerances +in the marking of food packages to disclose their contents;[38] +designating tobacco markets at which grading of tobacco would be +compulsory;[39] establishing priorities for the transportation of +freight during a period of emergency;[40] prescribing price schedules +for the distribution of milk;[41] or for all commodities[42] and for +rental housing[43] in time of war; regulating wages and prices in the +production and distribution of coal;[44] imposing a curfew to protect +military resources in designated areas from espionage and sabotage;[45] +providing for the appointment of receivers or conservators for Federal +Savings and Loan Associations;[46] allotting marketing quotas for +tobacco;[47] and prescribing methods of accounting for carriers in +interstate commerce.[48] + + +ORDERS DIRECTED TO PARTICULAR PERSONS + +The now familiar pattern of regulation of important segments of the +economy by boards or commissions which combine in varying proportions +the functions of all three departments of government was first +established by the States in the field of railroad rate regulation. +Discovering that direct action was impracticable, the State legislatures +created commissions to deal with the problem. One of the pioneers in +this development was Minnesota, whose Supreme Court justified the +practice in an opinion which, with the implied[49] and later the +explicit,[50] endorsement of the Supreme Court, practically settled the +law on this point: "If such a power is to be exercised at all, it can +only be satisfactorily done by a board or commission, constantly in +session, whose time is exclusively given to the subject, and who, after +investigation of the facts, can fix rates with reference to the peculiar +circumstances of each road, and each particular kind of business, and +who can change or modify these rates to suit the ever-varying conditions +of traffic."[51] Contemporaneously Congress created the Interstate +Commerce Commission to regulate the rates and practices of railroads +with respect to interstate commerce. Although the Supreme Court has +never had occasion to render a direct decision on the delegation of +rate-making power to the Commission, it has repeatedly affirmed rate +orders issued by that agency.[52] Likewise it has sustained the power of +the Secretary of War to order the removal or alteration of bridges which +unreasonably obstructed navigation over navigable waters;[53] the power +of the Federal Reserve Board to authorize national banks to act as +fiduciaries;[54] the authority of the Secretary of Labor to deport +aliens of certain enumerated classes, if after hearing he found such +aliens to be "undesirable residents";[55] the responsibility of the +Interstate Commerce Commission to approve railroad consolidations found +to be in the "public interest";[56] and the powers of the Federal Radio +Commission[57] and the Federal Communications Commission[58] to license +broadcasting stations as "public convenience, interest and necessity" +may require. The terms, however, in which a statute delegates authority +to an administrative agent are subject to judicial review; and in a +recent case the Court disallowed an order of the Secretary of +Agriculture proporting resting on Sec. 8 of the Agricultural Marketing +Agreement Act of 1937[59] as _ultra vires_.[60] + + +DELEGATION TO PRIVATE PERSONS + +Although in a few early cases the Supreme Court enforced statutes which +gave legal effect to local customs of miners with respect to mining +claims on public lands,[61] and to standards adopted by railroads for +equipment on railroad cars,[62] it held, in Schechter Poultry Corp. _v._ +United States,[63] and Carter _v._ Carter Coal Company[64] that private +trade groups could not be empowered to issue binding rules concerning +methods of competition or wages and hours of labor. On the other hand, +statutes providing that restrictions upon the production or marketing of +agricultural commodities shall become operative only upon a favorable +vote by a prescribed majority of the persons affected have been +upheld.[65] The position of the Court is that such a requirement does +not involve any delegation of legislative authority, since Congress has +merely placed a restriction upon its own regulation by withholding its +operation in a given case unless it is approved upon a referendum.[66] + + +POWER TO GIVE EFFECT TO CONTINGENT LEGISLATION + +An entirely different problem arises when, instead of directing another +department of government to apply a general statute to individual cases, +or to supplement it by detailed regulation, Congress commands that a +previously enacted statute be revived, suspended or modified, or that a +new rule be put into operation, upon the finding of certain facts by an +executive or administrative officer. Since the delegated function in +such cases is not that of "filling up the details" of a statute, +authority for it must be sought elsewhere than in Wayman _v._ Southard +and its progeny. It is to be found in an even earlier case--The Brig +Aurora[67]--where the revival of a law upon the issuance of a +Presidential proclamation was upheld in 1813. After previous restraints +on British shipping had lapsed, Congress passed a new law stating that +those restrictions should be renewed in the event the President found +and proclaimed that France had abandoned certain practices which +violated the neutral commerce of the United States. To the objection +that this was an invalid delegation of legislative power, the Court +answered briefly that "we can see no sufficient reason, why the +legislature should not exercise its discretion in reviving the act of +March 1st, 1809, either expressly or conditionally, as their judgment +should direct."[68] + + +MODIFICATION OF TARIFF LAWS + +This point was raised again in Field _v._ Clark,[69] where the Tariff +Act of 1890 was assailed as unconstitutional because it directed the +President to suspend the free importation of enumerated commodities "for +such time as he shall deem just" if he found that other countries +imposed upon agricultural or other products of the United States duties +or other exactions which "he may deem to be reciprocally unequal and +unjust." In sustaining this statute the Court relied heavily upon two +factors: (1) legislative precedents which demonstrated that "in the +judgment of the legislative branch of the government, it is often +desirable, if not essential, * * *, to invest the President with large +discretion in matters arising out of the execution of statutes relating +to trade and commerce with other nations";[70] (2) that the act "did +not, in any real sense, invest the President with the power of +legislation. * * * Congress itself prescribed, in advance, the duties to +be levied, * * *, while the suspension lasted. Nothing involving the +expediency or the just operation of such legislation was left to the +determination of the President. * * * He had no discretion in the +premises except in respect to the duration of the suspension so +ordered."[71] By similar reasoning, the Court sustained the flexible +provisions of the Tariff Act of 1922 whereby duties were increased or +decreased to reflect differences in cost of production at home and +abroad, as such differences were ascertained and proclaimed by the +President.[72] + + +ARMS EMBARGO + +That the delegation of discretion in dealing with foreign relations +stands upon a different footing than the transfer of authority to +regulate domestic concerns was clearly indicated in United States _v._ +Curtiss-Wright Export Corp.[73] There the Court upheld the Joint +Resolution of Congress which made it unlawful to sell arms to certain +warring countries "if the President finds that the prohibition of the +sale of arms and munitions of war in the United States to those +countries now engaged in armed conflict in the Chaco may contribute to +the reestablishment of peace * * *, and if * * *, he makes proclamation +to that effect, * * *" Said Justice Sutherland for the Court: "It is +important to bear in mind that we are here dealing not alone with an +authority vested in the President by an exertion of legislative power, +but with such an authority plus the very delicate, plenary and exclusive +power of the President as the sole organ of the Federal Government in +the field of international relations--* * *, Congressional legislation +which is to be made effective through negotiation and inquiry within the +international field must often accord to the President a degree of +discretion and freedom from statutory restriction which would not be +admissible were domestic affairs alone involved."[74] + + +INTERNAL AFFAIRS + +Panama Refining Co. _v._ Ryan[75] was the first case in which the +President had been authorized to put into effect by proclamation, a new +and independent rule pertaining to internal affairs. One section of the +National Industrial Recovery Act authorized the President to forbid the +shipment in interstate commerce of oil produced or withdrawn from +storage in violation of State law. Apart from the purposes broadly +stated in the first section--economic recovery and conservation of +natural resources--the measure contained no standard or statement of +policy by which the President should be guided in determining whether or +when to issue the order. Nor did it require him to make any findings of +fact to disclose the basis of his action. By a vote of eight-to-one the +Court held the delegation invalid. The only case in which the power of +an administrative official to modify a rule enacted by Congress relating +to domestic affairs has been sustained is Opp Cotton Mills _v._ +Administrator.[76] That case involved the provisions of the Fair Labor +Standards Act which authorized the appointment of Industry Advisory +Committees to investigate conditions in particular industries, with +notice and opportunity to be heard afforded to interested parties. Upon +consideration of factors enumerated in the law and upon finding that the +conditions specified in the law were fulfilled, such Committees were +empowered to recommend and the Administrator to adopt, higher minimum +wage rates for particular industries. Emphasizing the procedure which +the agency was directed to follow and the fact that it would be +impossible for Congress to prescribe specific minimum wages for +particular industries,[77] a unanimous court sustained the law on the +ground that the sole function of the Administrator was to put into +effect the definite policy adopted by the legislators. + + +EMERGENCY STATUTES + +Occupying a midway station between legislation which deals with foreign +affairs and purely domestic legislation is what may be termed "emergency +statutes." These are largely the outgrowth of the two World Wars. Thus +on December 16, 1950, President Truman issued a proclamation declaring +"the existence of a national emergency," and by so doing "activated" +more than sixty statutes or parts thereof which by their terms apply to +or during "a condition of emergency" or "in time of war or national +emergency," etc. Most of these specifically leave it to the President to +determine the question of emergency, and the White House assumption +seems to be that they all do so. Many of the provisions thus activated +delegate powers of greater or less importance to the President himself +or remove statutory restrictions thereon.[78] + + +PUNISHMENT OF VIOLATIONS + +If Congress so provides, violations of valid administrative regulations +may be punished as crimes.[79] But the penalties must be provided in the +statute itself; additional punishment cannot be imposed by +administrative action.[80] In an early case, the Court held that a +section prescribing penalties for any violation of a statute did not +warrant a prosecution for wilful disobedience of regulations authorized +by, and lawfully issued pursuant to, the act.[81] Without disavowing +this general proposition, the Court, in 1944, upheld a suspension order +issued by the OPA whereby a dealer in fuel oil who had violated +rationing regulations was forbidden to receive or deal on that +commodity.[82] Although such an order was not explicitly authorized by +statute, it was sustained as being a reasonable measure for effecting a +fair allocation of fuel oil, rather than as a means of punishment for an +offender. In another OPA case, the Court ruled that in a criminal +prosecution, a price regulation was subject to the same rule of strict +construction as a statute, and that omissions from, or indefiniteness +in, such a regulation, could not be cured by the Administrator's +interpretation thereof.[83] + + +Congressional Investigations + + +INVESTIGATIONS IN AID OF LEGISLATION + +No provision of the Constitution expressly authorized either house of +Congress to make investigations and exact testimony to the end that it +may exercise its legislative function effectively and advisedly. But +such a power had been frequently exercised by the British Parliament and +by the Assemblies of the American Colonies prior to the adoption of the +Constitution.[84] It was asserted by the House of Representatives as +early as 1792 when it appointed a committee to investigate the disaster +to General St. Clair and his army in the Northwest and empowered it to +"call for such persons, papers, and records, as may be necessary to +assist their inquiries."[85] + + +CONDUCT OF EXECUTIVE DEPARTMENT + +For many years the investigating function of Congress was limited to +inquiries into the administration of the Executive Department or of +instrumentalities of the Government. Until the administration of Andrew +Jackson this power was not seriously challenged.[86] During the +controversy over renewal of the charter of the Bank of the United +States, John Quincy Adams contended that an unlimited inquiry into the +operations of the bank would be beyond the power of the House.[87] Four +years later the legislative power of investigation was challenged by the +President. A committee appointed by the House of Representatives "with +power to send for persons and papers, and with instructions to inquire +into the condition of the various executive departments, the ability and +integrity with which they have been conducted, * * *"[88] called upon +the President and the heads of departments for lists of persons +appointed without the consent of the Senate and the amounts paid to +them. Resentful of this attempt "to invade the just rights of the +Executive Departments" the President refused to comply and the majority +of the committee acquiesced.[89] Nevertheless Congressional +investigations of Executive Departments have continued to the present +day. Shortly before the Civil War, contempt proceedings against a +witness who refused to testify in an investigation of John Brown's raid +upon the arsenal at Harper's Ferry occasioned a thorough consideration +by the Senate of the basis of this power. After a protracted debate, +which cut sharply across sectional and party lines, the Senate voted +overwhelmingly to imprison the contumacious witness.[90] Notwithstanding +this firmly established legislative practice the Supreme Court took a +narrow view of the power in the case of Kilbourn _v._ Thompson.[91] It +held that the House of Representatives had overstepped its jurisdiction +when it instituted an investigation of losses suffered by the United +States as a creditor of Jay Cooke and Company, whose estate was being +administered in bankruptcy by a federal court. But nearly half a century +later, in McGrain _v._ Daugherty,[92] it ratified in sweeping terms, the +power of Congress to inquire into the administration of an executive +department and to sift charges of malfeasance in such administration. + + +PRIVATE AFFAIRS + +Beginning with the resolution adopted by the House of Representatives in +1827 which vested its Committee on Manufactures "with the power to send +for persons and papers with a view to ascertain and report to this House +such facts as may be useful to guide the judgment of this House in +relation to a revision of the tariff duties on imported goods,"[93] the +two Houses have asserted the right to inquire into private affairs when +necessary to enlighten their judgment on proposed legislation. In +Kilbourn _v._ Thompson,[94] the Court denied the right of Congress to +pry into private affairs. Again, in Interstate Commerce Commission _v._ +Brimson,[95] in sustaining a statute authorizing the Courts to use their +process to compel witnesses to give testimony sought by the Commission +for the enforcement of the act, the Court warned that, "neither branch +of the legislative department, still less any merely administrative +body, established by Congress, possesses, or can be invested with, a +general power of making inquiry into the private affairs of the +citizen."[96] Finally, however, in McGrain _v._ Daugherty,[97] the power +of either House "to compel a private individual to appear before it or +one of its committees and give testimony needed to enable it efficiently +to exercise a legislative function belonging to it under the +Constitution, * * *"[98] was judicially recognized and approved. + + +PURPOSE OF INQUIRY + +In the absence of any showing that legislation was contemplated as a +result of the inquiry undertaken in Kilbourn _v._ Thompson, the Supreme +Court concluded that the purpose was an improper one--to pry into +matters with which the judiciary alone was empowered to deal.[99] +Subsequent cases have given the legislature the benefit of a presumption +that its object is legitimate. In re Chapman[100] established the +proposition that to make an investigation lawful "it was certainly not +necessary that the resolutions should declare in advance what the Senate +meditated doing when the investigation was concluded."[101] Similarly, +in McGrain _v._ Daugherty, the investigation was presumed to have been +undertaken in good faith to aid the Senate in legislating.[102] Going +one step further in Sinclair _v._ United States,[103] which on its facts +presented a close parallel to the Kilbourn Case, the Court affirmed the +right of the Senate to carry on its investigation of fraudulent leases +of government property after suit for the recovery thereof had been +instituted. The president of the lessee corporation had refused to +testify on the ground that the questions related to his private affairs +and to matters cognizable only in the courts wherein they were pending +and that the committee avowedly had departed from any inquiry in aid of +legislation. The Senate prudently had directed the investigating +committee to ascertain what, if any, other or additional legislation may +be advisable. Conceding "that Congress is without authority to compel +disclosures for the purpose of aiding the prosecution of pending suits," +the Court declared that the authority "to require pertinent disclosures +in aid of its own constitutional power is not abridged because the +information sought to be elicited may also be of use in such +suits."[104] + + +JUDICIAL FUNCTIONS + +When either House exercises a judicial function, as in judging of +elections or determining whether a member should be expelled, it is +clearly entitled to compel the attendance of witnesses to disclose the +facts upon which its action must be based. Thus the Court held that +since a House had a right to expel a member for any offense which it +deemed incompatible with his trust and duty as a member, it was entitled +to investigate such conduct and to summon private individuals to give +testimony concerning it.[105] The decision in Barry _v._ United States +ex rel. Cunningham[106] sanctioned the exercise of a similar power in +investigating a Senatorial election. + + +SANCTIONS OF THE INVESTIGATORY POWER + + +Contempt + +Explicit judicial recognition of the right of either House of Congress +to commit for contempt a witness who ignores its summons or refuses to +answer its inquiries dates from McGrain _v._ Daugherty. But the +principle there applied had its roots in an early case, Anderson _v._ +Dunn,[107] which affirmed in broad terms the right of either branch of +the legislature to attach and punish a person other than a member for +contempt of its authority--in that case an attempt to bribe one of its +members. The right to punish a contumacious witness was conceded in +Marshall _v._ Gordon,[108] although the Court there held that the +implied power to deal with contempt did not extend to the arrest of a +person who published matter defamatory of the House. Both Anderson _v._ +Dunn and Marshall _v._ Gordon emphasized that the power to punish for +contempt rests upon the right of self-preservation; that is, in the +words of Chief Justice White, "the right to prevent acts which in and of +themselves inherently obstruct or prevent the discharge of legislative +duty or the refusal to do that which there is inherent legislative power +to compel in order that legislative functions may be performed."[109] +Whence it was argued, in Jurney _v._ MacCracken[110] that the Senate had +no power to punish a witness who, having been commanded to produce +papers, destroyed them after service of the subpoena, because the "power +to punish for contempt may never be exerted, in the case of a private +citizen, solely _qua_ punishment. * * * the power to punish ceases as +soon as the obstruction has been removed, or its removal has become +impossible; * * *" The Court confirmed the power to punish for a past +contempt as an appropriate means for vindicating "the established and +essential privilege of requiring the production of evidence."[111] + + +Criminal Prosecutions + +Under the rule laid down by Anderson _v._ Dunn, imprisonment for +contempt of one of the Houses of Congress could not extend beyond the +adjournment of the body which ordered it.[112] This limitation seriously +impaired the efficacy of such sanction. Accordingly, in 1857 Congress +found it necessary to provide criminal penalties for recalcitrant +witnesses, in order to make its power to compel testimony more +effective. The Supreme Court held that the purpose of this statute was +merely to supplement the power of contempt by providing additional +punishment, and overruled all constitutional objections to it saying: +"We grant that Congress could not divest itself, or either of its +Houses, of the essential and inherent power to punish for contempt, in +cases to which the power of either House properly extended; but, because +Congress, by the act of 1857, sought to aid each of the Houses in the +discharge of its constitutional functions, it does not follow that any +delegation of the power in each to punish for contempt was involved; +* * *."[113] In a prosecution for wilful failure of a person to produce +records within her custody and control pursuant to a lawful subpoena +issued by a committee of the House of Representatives, the Supreme Court +ruled that the presence of a quorum of the committee at the time of the +return of the subpoena was not an essential element of the offense.[114] +Previously the Court had held that a prosecution could not be maintained +under a general perjury statute for false testimony given before a +Congressional committee unless a quorum of the committee was present +when the evidence was given.[115] + + +Section 2. Clause 1. The House of Representatives shall be +composed of Members chosen every second Year by the People of the +several States, and the Electors in each State shall have the +Qualifications requisite for Electors of the most numerous Branch of the +State Legislature. + +Clause 2. No Person shall be a Representative who shall not have +attained to the Age of twenty five Years, and been seven Years a Citizen +of the United States, and who shall not, when elected, be an Inhabitant +of the State in which he shall be chosen. + + +Qualifications of Members of Congress + + +CONGRESSIONAL PROTECTION OF RIGHT TO VOTE FOR REPRESENTATIVES + +Although the qualifications of electors of Members of Congress are +defined by State law,[116] the right to vote for such Representatives is +derived from the Federal Constitution.[117] Unlike the rights guaranteed +by the Fourteenth and Fifteenth Amendments, this privilege is secured +against the actions of individuals as well as of the States.[118] It +embraces the right to cast a ballot and to have it counted +honestly.[119] Where a primary election is made by law an integral part +of the procedure of choice or where the choice of a representative is in +fact controlled by the primary, the Constitution safeguards the rights +of qualified electors to participate therein.[120] Congress may protect +this right by appropriate legislation.[121] In prosecutions instituted +under section 19 of the Criminal Code,[122] the Court had held that +failure to count ballots lawfully cast,[123] or dilution of their value +by stuffing the ballot box with fraudulent ballots[124] constitutes a +denial of the constitutional right to elect Representatives in Congress. +But the bribery of voters, although within reach of Congressional power +under other clauses of the Constitution, is not deemed to be an +interference with the rights guaranteed by this section to other +qualified voters.[125] + + +WHEN THE ABOVE QUALIFICATIONS MUST BE POSSESSED + +The principal disputes which have arisen under these sections have +related to the time as of which members-elect must fulfill the +conditions of eligibility, and whether additional requirements may be +imposed by federal or State law. Although on two occasions when it +refused to seat persons who were ineligible when they sought to take the +oath of office, the Senate indicated that eligibility must exist at the +time of election, it is now established in both Houses that it is +sufficient if the requirements are met when the oath is administered. +Thus persons elected to either House before attaining the required age +or term of citizenship have been admitted as soon as they became +qualified.[126] + + +ENLARGEMENT OF QUALIFICATIONS + +Writing in The Federalist[127] with reference to the election of Members +of Congress, Hamilton expressed the opinion that "the qualifications of +persons who may * * * be chosen * * * are defined and fixed in the +Constitution and are unalterable by the legislature." The question +remained academic until the Civil War, when Congress passed a law +requiring its members to take an oath that they had never been disloyal +to the Federal Government. In subsequent contests over the seating of +men charged with disloyalty, the right of Congress to establish by law +other qualifications for its members than those contained in the +Constitution was sharply challenged. Nevertheless, both the House and +Senate, relying on this act, did refuse to seat several persons.[128] At +this time the principal argument against the statute was that all +persons were eligible for the office of Representative unless the +Constitution made them ineligible. In Burton _v._ United States,[129] +the argument was given a new twist. A law providing that a Senator or +Representative convicted of unlawfully receiving money for services +rendered before a government department should be "rendered forever +thereafter incapable of holding any office of honor, trust or profit +under the Government of the United States," was assailed as an +unconstitutional interference with the authority of each House to judge +the qualifications of, or to expel, one of its own members. The Court +construed the statute not to affect the offender's tenure as a Senator, +and left undecided the power of Congress to impose additional +qualifications (or disqualifications).[130] In exercising the power +granted by section 5 to judge the qualifications of its own members, +each House has asserted the power to inquire into the conduct of a +member-elect prior to his election. In 1900 the House of Representatives +refused to seat a person who practiced polygamy,[131] and in 1928 the +Senate voted to exclude a Senator-elect on the ground that his +acceptance of large campaign contributions from persons who were subject +to regulation by a State Administrative Commission of which he had been +Chairman were "contrary to sound public policy" and tainted his +credentials with fraud and corruption.[132] + + +INABILITY OF THE STATES TO ENLARGE + +A State may not add to the qualifications prescribed by the Constitution +for members of the Senate and House of Representatives. Asserting this +principle, the House in 1807 seated a member whose election was +contested on the ground that he had not been twelve months a resident of +the district from which elected as required by State law. No attempt was +made to ascertain whether these requirements were met because the State +law was deemed to be unconstitutional.[133] Both the House and Senate +have seated members elected during their term of office as State judges, +despite the provision of State constitutions purporting to bar the +election of judges to any other office under the State or the United +States during such term.[134] + + +Clause 3. [Representatives and direct Taxes shall be apportioned among +the several States which may be included within this Union, according to +their respective Numbers, which shall be determined by adding to the +whole Number of free Persons, including those bound to Service for a +Term of Years, and excluding Indians not taxed, three fifths of all +other Persons].[135] The actual Enumeration shall be made within three +Years after the first Meeting of the Congress of the United States, and +within every subsequent Term of ten Years, in such Manner as they shall +by Law direct. The Number of Representatives shall not exceed one for +every thirty Thousand, but each State shall have at Least one +Representative; and until such enumeration shall be made, the State of +New Hampshire shall be entitled to chuse three, Massachusetts eight, +Rhode-Island and Providence Plantations one, Connecticut five, New-York +six, New Jersey four, Pennsylvania eight, Delaware one, Maryland six, +Virginia ten, North Carolina five, South Carolina five, and Georgia +three. + + +THE CENSUS REQUIREMENT + +While section 2 expressly provides for an enumeration of persons, +Congress has repeatedly directed an enumeration not only of the free +persons in the States, but also of those in the territories, and has +required all persons over eighteen years of age to answer an +ever-lengthening list of inquiries concerning their personal and +economic affairs. This extended scope of the census has received the +implied approval of the Supreme Court;[136] it is one of the methods +whereby the national legislature exercises its inherent power to obtain +the information necessary for intelligent legislative action. Although +taking an enlarged view of its power in making the enumeration of +persons called for by this section, Congress has not always complied +with its positive mandate to reapportion representatives among the +States after the census is taken. It failed to make such a +reapportionment after the census of 1920, being unable to reach +agreement for allotting representation without further increasing the +size of the House. Ultimately, by the act of June 18, 1929,[137] it +provided that the membership of the House of Representatives should +henceforth be restricted to 435 members, to be distributed among the +States by the so-called "method of major fractions" which had been +earlier employed in the apportionment of 1911. + + +Clause 4. When vacancies happen in the Representation from any State, +the Executive Authority thereof shall issue Writs of Election to fill +such Vacancies. + +Clause 5. The House of Representatives shall chuse their Speaker and +other Officers; and shall have the sole Power of Impeachment. + + +Section 3. Clause 1. [The Senate of the United States shall be +composed of two Senators from each State, chosen by the Legislature +thereof, for six Years; and each Senator shall have one vote]. + +Clause 2. Immediately after they shall be assembled in Consequence of +the first Election, they shall be divided as equally as may be into +three classes. The Seats of the Senators of the first Class shall be +vacated at the Expiration of the second Year, of the second Class at the +Expiration of the fourth Year, and of the third Class at the Expiration +of the sixth Year, so that one third may be chosen every second Year; +[and if Vacancies happen by Resignation, or otherwise, during the Recess +of the Legislature of any State, the Executive thereof may make +temporary Appointments until the next Meeting of the Legislature, which +shall then fill such Vacancies].[138] + +Clause 3. No Person shall be a Senator who shall not have attained to +the Age of thirty Years, and been nine Years a Citizen of the United +States, and who shall not, when elected, be an Inhabitant of that State +for which he shall be chosen. + +Clause 4. The Vice President of the United States shall be President of +the Senate, but shall have no Vote, unless they be equally divided. + +Clause 5. The Senate shall chuse their other Officers, and also a +President pro tempore, in the Absence of the Vice President, or when he +shall exercise the Office of President of the United States. + +Clause 6. The Senate shall have the sole Power to try all Impeachments. +When sitting for that Purpose, they shall be on Oath or Affirmation. +When the President of the United States is tried, the Chief Justice +shall preside: And no Person shall be convicted without the Concurrence +of two thirds of the Members present. + +Clause 7. Judgment in Cases of Impeachment shall not extend further than +to removal from Office, and disqualification to hold and enjoy any +Office of honor, Trust or Profit under the United States; but the Party +convicted shall nevertheless be liable and subject to Indictment, Trial, +Judgment and Punishment, according to Law. + + +Section 4. Clause 1. The Times, Places and Manner of holding +Elections for Senators and Representatives, shall be prescribed in each +State by the Legislature thereof; but the Congress may at any time by +Law make or alter such Regulations, except as to the Places of chusing +Senators. + + +Federal Legislation Under This Clause + +Not until 1842 did Congress undertake to exercise the power to regulate +the "times, places and manner of holding elections for Senators and +Representatives." In that year it passed a law requiring the election of +Representatives by districts.[139] Prior to that time some of the States +had sought to increase their influence by electing all of their +Representatives on a general ticket. The frequent deadlocks between the +two Houses of State legislatures with respect to the election of +Senators prompted Congress to pass a further act in 1866, which +compelled the two bodies to meet in joint session on a specified day, +and to meet everyday thereafter and vote for a Senator until one was +elected.[140] The first comprehensive federal statute dealing with +elections was adopted in 1870. Under the Enforcement Act of 1870 and +kindred measures,[141] false registration, bribery, voting without legal +right, making false returns of votes cast, interference in any manner +with officers of election, and the neglect by any such officer of any +duty required of him by State of federal law, were made federal +offenses. Provision was made for the appointment by federal judges of +persons to attend at places of registration and at elections with +authority to challenge any person proposing to register or vote +unlawfully, to witness the counting of votes, and to identify by their +signatures the registration of voters and election tally sheets. After +twenty-four years experience Congress repealed those portions of the +Reconstruction legislation which dealt specifically with elections, but +left in effect those dealing generally with Civil Rights.[142] As seen +earlier, those sections have been invoked for the prosecution of +election offenses which interfere with the rights of voters guaranteed +by the second section of this article. The election laws, of the +Reconstruction period were held invalid in part as applied to municipal +elections,[143] but were found to be a constitutional exercise of the +authority conferred by this section with respect to the election of +members of Congress.[144] + + +LEGISLATURE DEFINED + +While requiring the election of Representatives by districts, Congress +has left it to the States to define the areas from which members should +be chosen. This has occasioned a number of disputes concerning the +validity of action taken by the States. In Ohio ex rel. Davis _v._ +Hildebrant,[145] a requirement that a redistricting law be submitted to +a popular referendum was challenged and sustained. After the +reapportionment made pursuant to the 1930 census, deadlocks between the +Governor and legislature in several States, produced a series of cases +in which the right of the Governor to veto a reapportionment bill was +questioned. Contrasting this function with other duties committed to +State legislatures by the Constitution, the Court decided that it was +legislative in character and hence subject to gubernatorial veto to the +same extent as ordinary legislation under the terms of the State +constitution.[146] + + +PRESENT INEQUALITY OF ELECTION DISTRICTS + +The Reapportionment Act of 1929[147] omitted a requirement contained in +the 1911 law[148] that Congressional districts be "composed of a +contiguous and compact territory, * * * containing as nearly as +practicable an equal number of inhabitants." Since the earlier act was +not repealed it was argued that the mandate concerning compactness, +contiguity and equality of population of districts was still +controlling. The Supreme Court rejected this view.[149] In Colegrove +_v._ Green,[150] the Illinois Apportionment law, which created districts +now having glaringly unequal populations, was attacked as +unconstitutional on the ground that it denied to voters in the more +populous districts the full right to vote and to the equal protection of +the laws. The Court dismissed the complaint, three Justices asserting +that the issue was not justiciable, and a fourth that the case was one +in which the Court should decline to exercise jurisdiction.[151] +Justice Black, dissenting in an opinion in which Justices Douglas and +Murphy joined, argued: "While the Constitution contains no express +provision requiring that Congressional election districts established by +the States must contain approximately equal populations, the +constitutionally guaranteed right to vote and the right to have one's +vote counted clearly imply the policy that State election systems, no +matter what their form, should be designed to give approximately equal +weight of each vote case. * * * legislation which must inevitably bring +about glaringly unequal representation in the Congress in favor of +special classes and groups should be invalidated, 'whether accomplished +ingeniously or ingenuously'."[152] + + +CONGRESSIONAL PROTECTION OF THE ELECTORAL PROCESS + +Congress can by law protect the voter from personal violence or +intimidation and the election itself from corruption and fraud.[153] To +accomplish these ends it may adopt the statutes of the States and +enforce them by its own sanctions.[154] It may punish a State election +officer for violating his duty under a State law governing Congressional +elections.[155] It may also punish federal officers and employees who +solicit or receive contributions to procure the nomination of a +particular candidate in a State primary election.[156] At one time the +Court held that Congress had no power, at least prior to the adoption of +the Seventeenth Amendment, to limit the expenditures made to procure a +primary nomination to the United States Senate,[157] but this decision +has been greatly weakened, and the right of the National Government to +regulate primary elections conducted under State law for the nomination +of Members of Congress has been squarely recognized where such primary +is made by State law "an integral part of the procedure of choice, or +where in fact the primary effectively controls the choice,..."[158] + + +Clause 2. [The Congress shall assemble at least once in every Year, and +such Meeting shall be on the first Monday in December, unless they shall +by law appoint a different Day]. + + +Section 5. Clause 1. Each House shall be the Judge of the +Elections, Returns and Qualifications of its own Members, and a Majority +of each shall constitute a Quorum to do Business; but a smaller Number +may adjourn from day to day, and may be authorized to compel the +Attendance of absent Members, in such Manner, and under such Penalties +as each House may provide. + +Clause 2. Each House may determine the Rules of its Proceedings, punish +its Members for disorderly Behaviour, and, with the Concurrence of two +thirds, expel a Member. + +Clause 3. Each House shall keep a Journal of its Proceedings, and from +time to time publish the same, excepting such Parts as may in their +Judgment require Secrecy; and the Yeas and Nays of the Members of either +House on any question shall, at the Desire of one fifth of those +Present, be entered on the Journal. + +Clause 4. Neither House, during the Session of Congress, shall, without +the Consent of the other, adjourn for more than three days, nor to any +other Place than that in which the two Houses shall be sitting. + + +Powers and Duties of the Houses + + +POWER TO JUDGE ELECTIONS + +Each House, in judging of elections under this clause acts as a judicial +tribunal, with like power to compel attendance of witnesses. In the +exercise of its discretion, it may issue a warrant for the arrest of a +witness to procure his testimony, without previous subpoena, if there is +good reason to believe that otherwise such witness would not be +forthcoming.[159] It may punish perjury committed in testifying before a +notary public upon a contested election.[160] The power to judge +elections extends to an investigation of expenditures made to influence +nominations at a primary election.[161] Refusal to permit a person +presenting credentials in due form to take the oath of office does not +oust the jurisdiction of the Senate to inquire into the legality of the +election.[162] Nor does such refusal unlawfully deprive the State which +elected such person of its equal suffrage in the Senate.[163] + + +"A QUORUM TO DO BUSINESS" + +For many years the view prevailed in the House of Representatives that +it was necessary for a majority of the members to vote on any +proposition submitted to the House in order to satisfy the +constitutional requirement for a quorum. It was a common practice for +the opposition to break a quorum by refusing to vote. This was changed +in 1890, by a ruling made by Speaker Reed, and later embodied in Rule XV +of the House, that members present in the chamber but not voting would +be counted in determining the presence of a quorum.[164] The Supreme +Court upheld this rule in United States _v._ Ballin,[165] saying that +the capacity of the House to transact business is "created by the mere +presence of a majority," and that since the Constitution does not +prescribe any method for determining the presence of such majority "it +is therefore within the competency of the House to prescribe any method +which shall be reasonably certain to ascertain the fact."[166] The rules +of the Senate provide for the ascertainment of a quorum only by a roll +call,[167] but in a few cases it has held that if a quorum is present, a +proposition can be determined by the vote of a lesser number of +members.[168] + + +RULES OF PROCEDURE + +In the exercise of their constitutional power to determine their rules +of proceedings the Houses of Congress may not "ignore constitutional +restraints or violate fundamental rights, and there should be a +reasonable relation between the mode or method of proceeding established +by the rule and the result which is sought to be attained. But within +these limitations all matters of method are open to the determination of +the House, * * * The power to make rules is not one which once exercised +is exhausted. It is a continuous power, always subject to be exercised +by the House, and within the limitations suggested, absolute and beyond +the challenge of any other body or tribunal."[169] Where a rule affects +private rights, the construction thereof becomes a judicial question. In +United States _v._ Smith,[170] the Court held that the Senate's attempt +to reconsider its confirmation of a person nominated by the President as +Chairman of the Federal Power Commission was not warranted by its rules, +and did not deprive the appointee of his title to the office. In +Christoffel _v._ United States[171] a sharply divided Court upset a +conviction for perjury in the district courts of one who had denied +under oath before a House Committee any affiliation with Communism. The +reversal was based on the ground that inasmuch as a quorum of the +Committee, while present at the outset, was not present at the time of +the alleged perjury, testimony before it was not before a "competent +tribunal" within the sense of the District of Columbia Code.[172] Four +Justices, speaking by Justice Jackson dissented, arguing that under the +rules and practices of the House, "a quorum once established is presumed +to continue unless and until a point of no quorum is raised" and that +the Court was, in effect, invalidating this rule, thereby invalidating +at the same time the rule of self-limitation observed by courts "where +such an issue is tendered."[173] + + +POWERS OF THE HOUSES OVER MEMBERS + +Congress has authority to make it an offense against the United States +for a Member, during his continuance in office, to receive compensation +for services before a government department in relation to proceedings +in which the United States is interested. Such a statute does not +interfere with the legitimate authority of the Senate or House over its +own Members.[174] In upholding the power of the Senate to investigate +charges that some Senators had been speculating in sugar stocks during +the consideration of a tariff bill, the Supreme Court asserted that "the +right to expel extends to all cases where the offence is such as in the +judgment of the Senate is inconsistent with the trust and duty of a +Member."[175] It cited with apparent approval the action of the Senate +in expelling William Blount in 1797 for attempting to seduce an American +agent among the Indians from his duty and for negotiating for services +in behalf of the British Government among the Indians--conduct which was +not a "statutable offense" and which was not committed in his official +character, nor during the session of Congress nor at the seat of +government. + + +THE DUTY TO KEEP A JOURNAL + +The object of the clause requiring the keeping of a Journal is "to +insure publicity to the proceedings of the legislature, and a +correspondent responsibility of the members to their respective +constituents."[176] When the Journal of either House is put in evidence +for the purpose of determining whether the yeas and nays, were ordered, +and what the vote was on any particular question, the Journal must be +presumed to show the truth, and a statement therein that a quorum was +present, though not disclosed by the yeas and nays, is final.[177] But +when an enrolled bill, which has been signed by the Speaker of the House +and by the President of the Senate, in open session, receives the +approval of the President and is deposited in the Department of State, +its authentication as a bill that has passed Congress is complete and +unimpeachable, and it is not competent to show from the Journals of +either House that an act so authenticated, approved, and deposited, in +fact omitted one section actually passed by both Houses of +Congress.[178] + + +Section 6. Clause 1. The Senators and Representatives shall +receive a Compensation for their Services, to be ascertained by Law, and +paid out of the Treasury of the United States. They shall in all Cases, +except Treason, Felony and Breach of the Peace, be privileged from +Arrest during their Attendance at the Session of their respective +Houses, and in going to and returning from the same; and for any Speech +or Debate in either House, they shall not be questioned in any other +Place. + + +Compensation, Immunities and Disabilities of Members + + +WHEN THE PAY STARTS + +A Member of Congress who receives his certificate of admission, and is +seated, allowed to vote, and serve on committees, is _prima facie_ +entitled to the seat and salary, even though the House subsequently +declares his seat vacant. The one who contested the election and was +subsequently chosen to fill the vacancy is entitled to salary only from +the time the compensation of such "predecessor" has ceased.[179] + + +PRIVILEGE FROM ARREST + +This clause is practically obsolete. It applies only to arrests in civil +suits, which were still common in this country at the time the +Constitution was adopted.[180] It does not apply to service of process +in either civil[181] or criminal cases.[182] Nor does it apply to arrest +in any criminal case. The phrase "treason, felony or breach of the +peace" is interpreted to withdraw all criminal offenses from the +operation of the privilege.[183] + + +THE PRIVILEGE OF SPEECH OR DEBATE + +The protection of this clause is not limited to words spoken in debate, +but is applicable to written reports, to resolutions offered, to the act +of voting and to all things generally done in a session of the House by +one of its members in relation to the business before it.[184] In +Kilbourn _v._ Thompson[185] the Supreme Court quoted with approval the +following excerpt from the opinion of Chief Justice Parsons in the early +Massachusetts of Coffin _v._ Coffin,[186] giving a broad scope to the +immunity of legislators: "'These privileges are thus secured, not with +the intention of protecting the members against prosecutions for their +own benefit, but to support the rights of the people, by enabling their +representatives to execute the functions of their office without fear of +prosecutions, civil or criminal. I, therefore, think that the article +ought not to be construed strictly, but liberally, that the full design +of it may be answered. I will not confine it to delivering an opinion, +uttering a speech, or haranguing in debate, but will extend it to the +giving of a vote, to the making of a written report, and to every other +act resulting from the nature and in the execution of the office. And I +would define the article as securing to every member exemption from +prosecution for everything said or done by him as a representative, in +the exercise of the functions of that office, without inquiring whether +the exercise was regular, according to the rules of the House, or +irregular and against their rules. I do not confine the member to his +place in the House; and I am satisfied that there are cases in which he +is entitled to this privilege when not within the walls of the +representatives' chamber.'"[187] Accordingly the Court ruled that +Members of the House of Representatives were not liable to a suit for +false imprisonment by reason of their initiation and prosecution of the +legislative proceedings under which plaintiff was arrested.[188] Nor +does the claim of an unworthy purpose destroy the privilege. +"Legislators are immune from deterrents to the uninhibited discharge of +their legislative duty, not for their private indulgence but for the +public good. One must not expect uncommon courage even in +legislators".[189] + + +Clause 2. No Senator or Representative shall, during the Time for which +he was elected, be appointed to any civil Office under the Authority of +the United States, which shall have been created, or the Emoluments +whereof shall have been encreased during such time; and no Person +holding any Office under the United States, shall be a Member of either +House during his Continuance in Office. + + +INCOMPATIBLE OFFICES + +According to legislative precedents, visitors to academies, regents, +directors and trustees of public institutions, and members of temporary +commissions who receive no compensation as such, are not officers within +the constitutional inhibition of section 6.[190] Government contractors +and federal officers who resign before presenting their credentials may +be seated as Members of Congress.[191] In 1909, after having increased +the salary of the Secretary of State,[192] Congress reduced it to the +former figure so that a Member of the Senate at the time the increase +was voted would be eligible for that office.[193] The first clause again +became a subject of discussion in 1937, when Justice Black was appointed +to the Supreme Court in face of the fact that Congress had recently +improved the financial position of Justices retiring at seventy and the +term for which Mr. Black had been elected to the Senate from Alabama in +1932 had still some time to run. The appointment was defended by the +argument that inasmuch as Mr. Black was only fifty-one years old at the +time and so would be ineligible for the "increased emolument" for +nineteen years, it was not _as to him_ an increased emolument.[194] + + +Section 7. Clause 1. All Bills for raising Revenue shall +originate in the House of Representatives; but the Senate may propose or +concur with Amendments as on other Bills. + +Clause 2. Every Bill which shall have passed the House of +Representatives and the Senate, shall, before it become a Law, be +presented to the President of the United States; If he approve he shall +sign it, but if not he shall return it, with his Objections to that +House in which it shall have originated, who shall enter the Objections +at large on their Journal, and proceed to reconsider it. If after such +Reconsideration two thirds of that House shall agree to pass the Bill, +it shall be sent, together with the Objections, to the other House, by +which it shall likewise be reconsidered, and if approved by two thirds +of that House, it shall become a Law. But in all such Cases the Votes of +both Houses shall be determined by yeas and Nays, and the Names of the +Persons voting for and against the Bill shall be entered on the Journal +of each House respectively. If any Bill shall not be returned by the +President within ten Days (Sundays excepted) after it shall have been +presented to him, the Same shall be a Law, in like Manner as if he had +signed it, unless the Congress by their Adjournment prevent its Return, +in which Case it shall not be a Law. + + +THE LEGISLATIVE PROCESS + + +REVENUE BILLS + +Only bills to levy taxes in the strict sense of the word are +comprehended by the phrase "all bills for raising revenue"; bills for +other purposes, which incidentally create revenue, are not +included.[195] An act providing a national currency secured by a pledge +of bonds of the United States, which, "in the furtherance of that +object, and also to meet the expenses attending the execution of the +act," imposed a tax on the circulating notes of national banks was held +not to be a revenue measure which must originate in the House of +Representatives.[196] Neither was a bill which provided that the +District of Columbia should raise by taxation and pay to designated +railroad companies a specified sum for the elimination of grade +crossings and the construction of a union railway station.[197] The +substitution of a corporation tax for an inheritance tax,[198] and the +addition of a section imposing an excise tax upon the use of foreign +built pleasure yachts,[199] have been held to be within the Senate's +constitutional power to propose amendments. + + +APPROVAL BY THE PRESIDENT + +The President is not restricted to signing a bill on a day when Congress +is in session.[200] He may sign within ten days (Sundays excepted) after +the bill is presented to him, even if that period extends beyond the +date of the final adjournment of Congress.[201] His duty in case of +approval of a measure is merely to sign it. He need not write on the +bill the word "approved" nor the date. If no date appears on the face of +the roll, the Court may ascertain the fact by resort to any source of +information capable of furnishing a satisfactory answer.[202] A bill +becomes law on the date of its approval by the President.[203] When no +time is fixed by the act it is effective from the date of its +approval,[204] which usually is taken to be the first moment of the day, +fractions of a day being disregarded.[205] + + +THE VETO POWER + +If Congress adjourns within ten days (Sundays excepted) of the +presentation of a bill to the President, the return of the bill is +prevented within the meaning of this clause. Consequently it does not +become law if the President does not sign it, but succumbs to what in +Congressional parlance is called a "pocket veto."[206] But a brief +recess by the House in which a bill originated, while the Congress is +still in session, does not prevent the return of a bill by delivery to +one of the officers of the House who has implied authority to receive +it.[207] The two-thirds vote of each House required to pass a bill over +a veto means two-thirds of a quorum.[208] After a bill becomes law the +President has no authority to repeal it. Asserting this truism, the +Supreme Court held in The Confiscation Cases,[209] that the immunity +proclamation issued by the President in 1868 did not require reversal of +a decree condemning property which had been seized under the +Confiscation Act of 1862.[210] + + +Clause 3. Every Order, Resolution, or Vote to which the Concurrence of +the Senate and House of Representatives may be necessary (except on a +question of Adjournment) shall be presented to the President of the +United States; and before the Same shall take Effect, shall be approved +by him, or being disapproved by him, shall be repassed by two thirds of +the Senate and House of Representatives, according to the Rules and +Limitations prescribed in the Case of a Bill. + + +PRESENTATION OF RESOLUTIONS + +The sweeping nature of this obviously ill-considered provision is +emphasized by the single exception specified to its operation. Actually, +it was impossible from the first to give it any such scope. Otherwise +the intermediate stages of the legislative process would have been +bogged down hopelessly, not to mention other highly undesirable results. +In a report rendered by the Senate Judiciary Committee in 1897 it was +shown that the word "necessary" in the clause had come in practice to +refer "to the necessity occasioned by the requirement of other +provisions of the Constitution, whereby every exercise of 'legislative +powers' involves the concurrence of the two Houses"; or more briefly, +"necessary" here means necessary if an "order, resolution, or vote" is +to have the force of law. Such resolutions have come to be termed "joint +resolutions" and stand on a level with "bills," which if "enacted" +become Statutes. But "votes" taken in either House preliminary to the +final passage of legislation need not be submitted to the President, nor +resolutions passed by the Houses concurrently with a view to expressing +an opinion or to devising a common program of action (e.g., the +concurrent resolutions by which during the fight over Reconstruction the +Southern States were excluded from representation in the House and +Senate, the Joint Committee on Reconstruction containing members from +both Houses was created, etc.), or to directing the expenditure of money +appropriated to the use of the two Houses.[211] Within recent years the +concurrent resolution has been put to a new use--the termination of +powers delegated to the Chief Executive, or the disapproval of +particular exercises of power by him. Most of the important legislation +enacted for the prosecution of World War II provided that the powers +granted to the President should come to an end upon adoption of +concurrent resolutions to that effect.[212] Similarly, measures +authorizing the President to reorganize executive agencies have provided +that a Reorganization Plan promulgated by him should be reported by +Congress and should not become effective if one[213] or both[214] Houses +adopted a resolution disapproving it. Also, it was settled as early as +1789 that resolutions of Congress proposing amendments to the +Constitution need not be submitted to the President, the Bill of Rights +having been referred to the States without being laid before President +Washington for his approval--a procedure which the Court ratified in due +course.[215] + + +Section 8. The Congress shall have Power to lay and collect +Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the +common Defence and general Welfare of the United States; but all Duties, +Imposts and Excises shall be uniform throughout the United States. + + +The Taxing-Spending Power + + +KINDS OF TAXES PERMITTED + +By the terms of the Constitution, the power of Congress to levy taxes is +subject to but one exception and two qualifications. Articles exported +from any State may not be taxed at all. Direct taxes must be levied by +the rule of apportionment and indirect taxes by the rule of uniformity. +The Court has emphasized the sweeping character of this power by saying +from time to time that it "reaches every subject,"[216] that it is +"exhaustive"[217] or that it "embraces every conceivable power of +taxation."[218] Despite these generalizations, the power has been at +times substantially curtailed by judicial decision with respect to the +subject matter of taxation, the manner in which taxes are imposed, and +the objects for which they may be levied. + + +DECLINE OF THE FORBIDDEN SUBJECT MATTER TEST + +In recent years the Supreme Court has restored to Congress the power to +tax most of the subject matter which had previously been withdrawn from +its reach by judicial decision. The holding of Evans _v._ Gore[219] and +Miles _v._ Graham[220] that the inclusion of the salaries received by +federal judges in measuring the liability for a nondiscriminatory income +tax violated the constitutional mandate that the compensation of such +judges should not be diminished during their continuance in office was +repudiated in O'Malley _v._ Woodrough.[221] The specific ruling of +Collector _v._ Day[222] that the salary of a State officer is immune to +federal income taxation also has been overruled.[223] But the principle +underlying that decision--that Congress may not lay a tax which would +impair the sovereignty of the States--is still recognized as retaining +some vitality. + + +THE RISE AND FALL OF COLLECTOR _v._ DAY + +Collector _v._ Day was decided in 1871 while the country was still in +the throes of reconstruction. As noted by Chief Justice Stone in a +footnote to his opinion in Helvering _v._ Gerhardt,[224] the Court had +not then determined how far the Civil War amendments had broadened the +federal power at the expense of the States; the fact that the taxing +power had recently been used with destructive effect upon notes issued +by State banks[225] suggested the possibility of similar attacks upon +the existence of the States themselves. Two years later the Court took +the logical further step of holding that the federal income tax could +not be imposed on income received by a municipal corporation from its +investments.[226] A far-reaching extension of private immunity was +granted in Pollock _v._ Farmers Loan and Trust Co.,[227] where interest +received by a private investor on State or municipal bonds was held to +be exempt from federal taxation. As the apprehensions of this era +subsided, the doctrine of these cases was pushed into the background. It +never received the same wide application as did McCulloch _v._ +Maryland[228] in curbing the power of the States to tax operations or +instrumentalities of the Federal Government. Only once since the turn of +the century has the national taxing power been further narrowed in the +name of Dual Federalism. In 1931 the Court held that a federal excise +tax was inapplicable to the manufacture and sale to a municipal +corporation of equipment for its police force.[229] Justices Stone and +Brandeis dissented from this decision and it is doubtful whether it +would be followed today. + + +FEDERAL TAXATION OF STATE INTERESTS + +Within a decade after the Pollock decision the retreat from Collector +_v._ Day began. In 1903, a succession tax upon a bequest to a +municipality for public purposes was upheld on the ground that the tax +was payable out of the estate before distribution to the legatee. +Looking to form and not to substance, in disregard of the mandate of +Brown _v._ Maryland,[230] a closely divided Court declined to "regard it +as a tax upon the municipality, though it might operate incidentally to +reduce the bequest by the amount of the tax."[231] When South Carolina +embarked upon the business of dispensing alcoholic beverages, its agents +were held to be subject to the national internal revenue tax, the ground +of the holding being that in 1787 such a business was not regarded as +one of the ordinary functions of government.[232] Another decision +marking a clear departure from the logic of Collector _v._ Day was Flint +_v._ Stone Tracy Company,[233] where the Court sustained an act of +Congress taxing the privilege of doing business as a corporation, the +tax being measured by the income. The argument that the tax imposed an +unconstitutional burden on the exercise by a State of its reserved power +to create corporate franchises was rejected, partly in consideration of +the principle of national supremacy, and partly on the ground that the +corporate franchises were private property. This case also qualified +Pollock _v._ Farmers Loan and Trust Company to the extent of allowing +interest on State bonds to be included in measuring the tax on the +corporation. Subsequent cases have sustained an estate tax on the net +estate of a decedent, including State bonds;[234] excise taxes on the +transportation of merchandise in performance of a contract to sell and +deliver it to a county;[235] on the importation of scientific apparatus +by a State university;[236] on admissions to athletic contests sponsored +by a State institution, the net proceeds of which were used to further +its educational program;[237] and on admissions to recreational +facilities operated on a nonprofit basis by a municipal +corporation.[238] Income derived by independent engineering contractors +from the performance of State functions;[239] the compensation of +trustees appointed to manage a street railway taken over and operated by +a State;[240] profits derived from the sale of State bonds;[241] or from +oil produced by lessees of State lands;[242] have all been held to be +subject to federal taxation despite a possible economic burden on the +State. + + +IS ANY IMMUNITY LEFT THE STATES? + +Although there have been sharp differences of opinion among members of +the Supreme Court in recent cases dealing with the tax immunity of State +functions and instrumentalities, it has been stated that "all agree that +not all of the former immunity is gone."[243] Twice the Court has made +an effort to express its new point of view in a statement of general +principles by which the right to such immunity shall be determined. +However, the failure to muster a majority in concurrence with any single +opinion in the more recent of these cases leaves the question very much +in doubt. In Helvering _v._ Gerhardt,[244] where, without overruling +Collector _v._ Day, it narrowed the immunity of salaries of State +officers and federal income taxation, the Court announced "* * *, two +guiding principles of limitation for holding the tax immunity of State +instrumentalities to its proper function. The one, dependent upon the +nature of the function being performed by the State or in its behalf, +excludes from the immunity activities thought not to be essential to the +preservation of State governments even though the tax be collected from +the State treasury. * * * The other principle, exemplified by those +cases where the tax laid upon individuals affects the State only as the +burden is passed on to it by the taxpayer, forbids recognition of the +immunity when the burden on the State is so speculative and uncertain +that if allowed it would restrict the federal taxing power without +affording any corresponding tangible protection to the State government; +even though the function be thought important enough to demand immunity +from a tax upon the State itself, it is not necessarily protected from a +tax which well may be substantially or entirely absorbed by private +persons."[245] + + +CONFLICTING VIEWS ON THE COURT + +The second attempt to formulate a general doctrine was made in New York +_v._ United States,[246] where, on review of a judgment affirming the +right of the United States to tax the sale of mineral waters taken from +property owned and operated by the State of New York, the Court was +asked to and did reconsider the right of Congress to tax business +enterprises carried on by the States. Justice Frankfurter, speaking for +himself and Justice Rutledge, made the question of discrimination _vel +non_ against State activities the test of the validity of such a tax. +They found "no restriction upon Congress to include the States in +levying a tax exacted equally from private persons upon the same subject +matter."[247] In a concurring opinion in which Justices Reed, Murphy, +and Burton joined, Chief Justice Stone rejected the criterion of +discrimination. He repeated what he had said in an earlier case to the +effect that "'* * * the limitation upon the taxing power of each, so far +as it affects the other, must receive a practical construction which +permits both to function with the minimum of interference each with the +other; and that limitation cannot be so varied or extended as seriously +to impair either the taxing power of the government imposing the tax +* * * or the appropriate exercise of the functions of the government +affected by it.'"[248] Justices Douglas and Black dissented in an +opinion written by the former on the ground that the decision +disregarded the Tenth Amendment, placed "the sovereign States on the +same plane as private citizens," and made them "pay the Federal +Government for the privilege of exercising powers of sovereignty +guaranteed them by the Constitution."[249] In the most recent case +dealing with State immunity the Court sustained the tax on the second +ground mentioned in Helvering _v._ Gerhardt--that the burden of the tax +was borne by private persons--and did not consider whether the function +was one which the Federal Government might have taxed if the +municipality had borne the burden of the exaction.[250] + + +THE RULE OF UNIFORMITY + +Whether a tax is to be apportioned among the States according to the +census taken pursuant to article I, section 2, or imposed uniformly +throughout the United States depends upon its classification as direct +or indirect.[251] The rule of uniformity for indirect taxes is easy to +obey. It exacts only that the subject matter of a levy be taxed at the +same rate wherever found in the United States; or, as it is sometimes +phrased, the uniformity required is "geographical," not +"intrinsic."[252] The clause accordingly places no obstacle in the way +of legislative classification for the purpose of taxation, nor in the +way of what is called progressive taxation.[253] A taxing statute does +not fail of the prescribed uniformity because its operation and +incidence may be affected by differences in State laws.[254] A federal +estate tax law which permitted a deduction for a like tax paid to a +State was not rendered invalid by the fact that one State levied no such +tax.[255] The term "United States" in this clause refers only to the +States of the Union, the District of Columbia, and incorporated +territories. Congress is not bound by the rule of uniformity in framing +tax measures for unincorporated territories.[256] Indeed, in Binns _v._ +United States,[257] the Court sustained license taxes imposed by +Congress but applicable only in Alaska, where the proceeds, although +paid into the general fund of the Treasury, did not in fact equal the +total cost of maintaining the territorial government. + + +PURPOSES OF TAXATION + + +Regulation by Taxation + +The discretion of Congress in selecting the objectives of taxation has +also been held at times to be subject to limitations implied from the +nature of the Federal System. Apart from matters which Congress is +authorized to regulate, the national taxing power, it has been said, +"reaches only existing subjects."[258] Congress may tax any activity +actually carried on, regardless of whether it is permitted or prohibited +by the laws of the United States[259] or by those of a State.[260] But +so-called federal "licenses," so far as they relate to trade within +State limits, merely express "the purpose of the government not to +interfere * * * with the trade nominally licensed, if the required taxes +are paid." Whether the "licensed" trade shall be permitted at all is a +question for decision by the State.[261] This, nevertheless, does not +signify that Congress may not often regulate to some extent a business +within a State in order the more effectively to tax it. Under the +necessary and proper clause, Congress may do this very thing. Not only +has the Court sustained regulations concerning the packaging of taxed +articles such as tobacco[262] and oleomargarine,[263] ostensibly +designed to prevent fraud in the collection of the tax; it has also +upheld measures taxing drugs[264] and firearms[265] which prescribed +rigorous restrictions under which such articles could be sold or +transferred, and imposed heavy penalties upon persons dealing with them +in any other way. These regulations were sustained as conducive to the +efficient collection of the tax though they clearly transcended in some +respects this ground of justification. + + +Extermination by Taxation + +A problem of a different order is presented where the tax itself has the +effect of suppressing an activity or where it is coupled with +regulations which clearly have no possible relation to the collection of +the tax. Where a tax is imposed unconditionally, so that no other +purpose appears on the face of the statute, the Court has refused to +inquire into the motives of the lawmakers and has sustained the tax +despite its prohibitive proportions.[266] In the language of a recent +opinion: "It is beyond serious question that a tax does not cease to be +valid merely because it regulates, discourages, or even definitely +deters the activities taxed. * * * The principle applies even though the +revenue obtained is obviously negligible, * * *, or the revenue purpose +of the tax may be secondary, * * * Nor does a tax statute necessarily +fall because it touches on activities which Congress might not otherwise +regulate. As was pointed out in Magnano Co. _v._ Hamilton, 292 U.S. 40, +47 (1934): 'From the beginning of our government, the courts have +sustained taxes although imposed with the collateral intent of effecting +ulterior ends which, considered apart, were beyond the constitutional +power of the lawmakers to realize by legislation directly addressed to +their accomplishment.'"[267] But where the tax is conditional, and may +be avoided by compliance with regulations set out in the statute, the +validity of the measure is determined by the power of Congress to +regulate the subject matter. If the regulations are within the +competence of Congress, apart from its power to tax, the exaction is +sustained as an appropriate sanction for making them effective;[268] +otherwise it is invalid.[269] During the Prohibition Era, Congress +levied a heavy tax upon liquor dealers who operated in violation of +State law. In United States _v._ Constantine[270] the Court held that +this tax was unenforceable after the repeal of the Eighteenth Amendment, +since the National Government had no power to impose an additional +penalty for infractions of State law. + + +The Protective Tariff + +The earliest examples of taxes levied with a view to promoting desired +economic objectives in addition to raising revenue were, of course, +import duties. The second statute adopted by the first Congress was a +tariff act which recited that "it is necessary for the support of +government, for the discharge of the debts of the United States, and the +encouragement and protection of manufactures, that duties be laid on +goods, wares and merchandise imported."[271] After being debated for +nearly a century and a half, the constitutionality of protective tariffs +was finally settled by the unanimous decision of the Supreme Court in +Hampton and Company _v._ United States,[272] where Chief Justice Taft +wrote: "The second objection to Sec. 315 is that the declared plan of +Congress, either expressly or by clear implication, formulates its rule +to guide the President and his advisory Tariff Commission as one +directed to a tariff system of protection that will avoid damaging +competition to the country's industries by the importation of goods from +other countries at too low a rate to equalize foreign and domestic +competition in the markets of the United States. It is contended that +the only power of Congress in the levying of customs duties is to create +revenue, and that it is unconstitutional to frame the customs duties +with any other view than that of revenue raising. * * * In this first +Congress sat many members of the Constitutional Convention of 1787. This +Court has repeatedly laid down the principle that a contemporaneous +legislative exposition of the Constitution when the founders of our +Government and framers of our Constitution were actively participating +in public affairs, long acquiesced in, fixes the construction to be +given its provisions. * * * The enactment and enforcement of a number of +customs revenue laws drawn with a motive of maintaining a system of +protection, since the revenue law of 1789, are matters of history. * * * +Whatever we may think of the wisdom of a protection policy, we can not +hold it unconstitutional. So long as the motive of Congress and the +effect of its legislative action are to secure revenue for the benefit +of the general government, the existence of other motives in the +selection of the subject of taxes cannot invalidate Congressional +action."[273] + + +SPENDING FOR THE GENERAL WELFARE + +The grant of power to "provide * * * for the general welfare" raises a +two-fold question: How may Congress provide for "the general welfare" +and what is "the general welfare" which it is authorized to promote? The +first half of this question was answered by Thomas Jefferson in his +Opinion on the Bank as follows: "* * * the laying of taxes is the +_power_, and the general welfare the _purpose_ for which the power is +to be exercised. They [Congress] are not to lay taxes _ad libitum for +any purpose they please_; but only _to pay the debts or provide for the +welfare of the Union_. In like manner, they are not _to do anything they +please_ to provide for the general welfare, but only to _lay taxes_ for +that purpose."[274] The clause, in short, is not an independent grant of +power, but a qualification of the taxing power. Although a broader view +has been occasionally asserted,[275] Congress has not acted upon it and +the Courts have had no occasion to adjudicate the point. + + +Hamilton _v._ Madison + +With respect to the meaning of "the general welfare" the pages of The +Federalist itself disclose a sharp divergence of views between its two +principal authors. Hamilton adopted the literal, broad meaning of the +clause;[276] Madison contended that the powers of taxation and +appropriation of the proposed government should be regarded as merely +instrumental to its remaining powers, in other words, as little more +than a power of self-support.[277] From an early date Congress has acted +upon the interpretation espoused by Hamilton. Appropriations for +subsidies[278] and for an ever increasing variety of "internal +improvements"[279] constructed by the Federal Government, had their +beginnings in the administrations of Washington and Jefferson.[280] +Since 1914, federal grants-in-aid,--sums of money apportioned among the +States for particular uses, often conditioned upon the duplication of +the sums by the recipient State, and upon observance of stipulated +restrictions as to its use--have become commonplace.[281] + + +Triumph of the Hamiltonian Theory + +The scope of the national spending power was brought before the Supreme +Court at least five times prior to 1936, but the Court disposed of four +of them without construing the "general welfare" clause. In the Pacific +Railway Cases[282] and Smith _v._ Kansas City Title and Trust +Company,[283] it affirmed the power of Congress to construct internal +improvements, and to charter and purchase the capital stock of federal +land banks, by reference to the powers of the National Government over +commerce, the post roads and fiscal operations, and to its war powers. +Decisions on the merits were withheld in two other cases--Massachusetts +_v._ Mellon and Frothingham _v._ Mellon[284]--on the ground that neither +a State nor an individual citizen is entitled to a remedy in the courts +against an unconstitutional appropriation of national funds. In United +States _v._ Gettysburg Electric Railway Co.,[285] however, the Court had +invoked "the great power of taxation to be exercised for the common +defence and the general welfare,"[286] to sustain the right of the +Federal Government to acquire land within a State for use as a national +park. Finally, in United States _v._ Butler,[287] the Court gave its +unqualified endorsement to Hamilton's views on the taxing power. Wrote +Justice Roberts for the Court: "Since the foundation of the Nation sharp +differences of opinion have persisted as to the true interpretation of +the phrase. Madison asserted it amounted to no more than a reference to +the other powers enumerated in the subsequent clauses of the same +section; that, as the United States is a government of limited and +enumerated powers, the grant of power to tax and spend for the general +national welfare must be confined to the enumerated legislative fields +committed to the Congress. In this view the phrase is mere tautology, +for taxation and appropriation are or may be necessary incidents of the +exercise of any of the enumerated legislative powers. Hamilton, on the +other hand, maintained the clause confers a power separate and distinct +from those later enumerated, is not restricted in meaning by the grant +of them, and Congress consequently has a substantive power to tax and to +appropriate, limited only by the requirement that it shall be exercised +to provide for the general welfare of the United States. Each contention +has had the support of those whose views are entitled to weight. This +court had noticed the question, but has never found it necessary to +decide which is the true construction. Justice Story, in his +Commentaries, espouses the Hamiltonian position. We shall not review the +writings of public men and commentators or discuss the legislative +practice. Study of all these leads us to conclude that the reading +advocated by Justice Story is the correct one. While, therefore, the +power to tax is not unlimited, its confines are set in the clause which +confers it, and not in those of Sec. 8 which bestow and define the +legislative powers of the Congress. It results that the power of +Congress to authorize expenditure of public moneys for public purposes +is not limited by the direct grants of legislative power found in the +Constitution."[288] + + +The Security Act Cases + +Although holding that the spending power is not limited by the specific +grants of power contained in article I, section 8, the Court found, +nevertheless, that it was qualified by the Tenth Amendment, and on this +ground ruled in the Butler case that Congress could not use moneys +raised by taxation to "purchase compliance" with regulations "of matters +of State concern with respect to which Congress has no authority to +interfere."[289] Within little more than a year this decision was +reduced to narrow proportions by Steward Machine Co. _v._ Davis,[290] +which sustained the tax imposed on employers to provide unemployment +benefits, and the credit allowed for similar taxes paid to a State. To +the argument that the tax and credit in combination were "weapons of +coercion, destroying or impairing the autonomy of the States," the Court +replied that relief of unemployment was a legitimate object of federal +expenditure under the "general welfare" clause; that the Social Security +Act represented a legitimate attempt to solve the problem by the +cooperation of State and Federal Governments; that the credit allowed +for State taxes bore a reasonable relation "to the fiscal need subserved +by the tax in its normal operation,"[291] since State unemployment +compensation payments would relieve the burden for direct relief borne +by the national treasury. The Court reserved judgment as to the validity +of a tax "if it is laid upon the condition that a State may escape its +operation through the adoption of a statute unrelated in subject matter +to activities fairly within the scope of national policy and +power."[292] + + +Earmarked Funds + +The appropriation of the proceeds of a tax to a specific use does not +affect the validity of the exaction, if the general welfare is advanced +and no other constitutional provision is violated. Thus a processing tax +on coconut oil was sustained despite the fact that the tax collected +upon oil of Philippine production was segregated and paid into the +Philippine Treasury.[293] In Helvering _v._ Davis,[294] the excise tax +on employers, the proceeds of which were not earmarked in any way, +although intended to provide funds for payments to retired workers, was +upheld under the "general welfare" clause, the Tenth Amendment being +found to be inapplicable. + + +Conditional Grants-in-Aid + +In the Steward Machine Company case, it was a taxpayer who complained of +the invasion of the State sovereignty and the Court put great emphasis +on the fact that the State was a willing partner in the plan of +cooperation embodied in the Social Security Act.[295] A decade later the +right of Congress to impose conditions upon grants-in-aid over the +objection of a State was squarely presented in Oklahoma _v._ United +States Civil Service Commission.[296] The State objected to the +enforcement of a provision of the Hatch Act,[297] whereby its right to +receive federal highway funds would be diminished in consequence of its +failure to remove from office a member of the State Highway Commission +found to have taken an active part in party politics while in office. +Although it found that the State had created a legal right which +entitled it to an adjudication of its objection, the Court denied the +relief sought on the ground that, "While the United States is not +concerned with, and has no power to regulate local political activities +as such of State officials, it does have power to fix the terms upon +which its money allotments to State shall be disbursed. * * * The end +sought by Congress through the Hatch Act is better public service by +requiring those who administer funds for national needs to abstain from +active political partisanship. So even though the action taken by +Congress does have effect upon certain activities within the State, it +has never been thought that such effect made the federal act +invalid."[298] + + +"Debts of the United States" + +The power to pay the debts of the United States is broad enough to +include claims of citizens arising on obligations of right and +justice.[299] The Court sustained an act of Congress which set apart for +the use of the Philippine Islands, the revenue from a processing tax on +coconut oil of Philippine production, as being in pursuance of a moral +obligation to protect and promote the welfare of the people of the +Islands.[300] Curiously enough, this power was first invoked to assist +the United States to collect a debt due to it. In United States _v._ +Fisher[301] the Supreme Court sustained a statute which gave the Federal +Government priority in the distribution of the estates of its insolvent +debtors. The debtor in that case was the endorser of a foreign bill of +exchange which apparently had been purchased by the United States. +Invoking the "necessary and proper" clause, Chief Justice Marshall +deduced the power to collect a debt from the power to pay its +obligations by the following reasoning: "The government is to pay the +debt of the Union, and must be authorized to use the means which appear +to itself most eligible to effect that object. It has, consequently, a +right to make remittances by bills or otherwise, and to take those +precautions which will render the transaction safe."[302] + + +Clause 2. _The Congress shall have Power_ * * * To borrow Money on the +credit of the United States. + + +The Borrowing Power + +The original draft of the Constitution reported to the convention by its +Committee of Detail empowered Congress "To borrow money and emit bills +on the credit of the United States."[303] When this section was reached +in the debates, Gouverneur Morris moved to strike out the clause "and +emit bills on the credit of the United States." Madison suggested that +it might be sufficient "to prohibit the making them a tender." After a +spirited exchange of views on the subject of paper money the convention +voted, nine States to two, to delete the words "and emit bills."[304] +Nevertheless, in 1870, the Court relied in part upon this clause in +holding that Congress had authority to issue treasury notes and to make +them legal tender in satisfaction of antecedent debts.[305] When it +borrows money "on the credit of the United States" Congress creates a +binding obligation to pay the debt as stipulated and cannot thereafter +vary the terms of its agreement. A law purporting to abrogate a clause +in government bonds calling for payment in gold coin was held to +contravene this clause, although the creditor was denied a remedy in the +absence of a showing of actual damage.[306] + + +Clause 3. _The Congress shall have power_ * * * To regulate Commerce +with foreign Nations, and among the several States, and with the Indian +Tribes. + + +Purpose of the Clause + +This clause serves a two-fold purpose: it is the direct source of the +most important powers which the National Government exercises in time of +peace: and, except for the due process of law clause of Amendment XIV, +it is the most important limitation imposed by the Constitution on the +exercise of State power. The latter, or restrictive, operation of the +clause was long the more important one from the point of view of +Constitutional Law. Of the approximately 1400 cases which reached the +Supreme Court under the clause prior to 1900, the overwhelming +proportion stemmed from State legislation.[307] It resulted that, with +an important exception to be noted in a moment, the guiding lines in +construction of the clause were initially laid down from the point of +view of its operation as a curb on State power, rather than of its +operation as a source of national power; and the consequence of this was +that the word "commerce," as designating the thing to be protected +against State interference, came to dominate the clause, while the word +"regulate" remained in the background. + + +Definition of Terms: Gibbons _v._ Ogden + + +"COMMERCE" + +The etymology of the word, "cum merce (with merchandise)" carries the +primary meaning of traffic--i.e., "to buy and sell goods; to trade" +(Webster's International). This narrow conception was replaced in the +great leading case of Gibbons _v._ Ogden, 9 Wheat. 1 (1824), by a much +broader one, on which interpretation of the clause has been patterned +ever since. The case arose out of a series of acts of the legislature of +New York, passed between the years 1798 and 1811, which conferred upon +Livingston and Fulton the exclusive right to navigate the waters of that +State with steam-propelled vessels. Gibbons challenged the monopoly by +sending from Elizabethtown, New Jersey, into the Hudson in the State of +New York two steam vessels which had been licensed and enrolled to +engage in the coasting trade under an act passed by Congress in 1793. +Counsel for Ogden (an assignee of Livingston and Fulton) argued that +since Gibbons' vessels carried only passengers between New Jersey and +New York, they were not engaged in traffic and hence not in "commerce" +in the sense of the Constitution. This argument Chief Justice Marshall +answered as follows: "The subject to be regulated is commerce; * * * The +counsel for the appellee would limit it to traffic, to buying and +selling, or the interchange of commodities, and do not admit that it +comprehends navigation. This would restrict a general term, applicable +to many objects, to one of its significations. Commerce, undoubtedly, is +traffic, but it is something more--it is intercourse."[308] The term, +therefore, included navigation--a conclusion which Marshall supported by +appeal to general understanding, to the prohibition in article I, Sec. 9, +against any preference being given "'* * * by any regulation of commerce +or revenue, to the ports of one State over those of another,'" and to +the admitted and demonstrated power of Congress to impose +embargoes.[309] + + +"COMMERCE" TODAY + +Later in his opinion Marshall qualified the word "intercourse" with the +word "commercial."[310] Today "commerce" in the sense of the +Constitution, and hence "interstate commerce" when it is carried on +across State lines, covers every species of movement of persons and +things, whether for profit or not;[311] every species of communication, +every species of transmission of intelligence, whether for commercial +purposes or otherwise;[312] every species of commercial negotiation +which, as shown "by the established course of the business," will +involve sooner or later an act of transportation of persons or things, +or the flow of services or power across State lines.[313] + +From time to time the Court has said that certain things were not +interstate commerce, such as mining or manufacturing undertaken "with +the intent" that the product shall be transported to other States;[314] +insurance transactions when carried on across State lines;[315] +exhibitions of baseball between professional teams which travel from +State to State;[316] the making of contracts for the insertion of +advertisements in periodicals in another State;[317] contracts for +personal services to be rendered in another State.[318] Recent decisions +either overturn or cast doubt on most if not all of these holdings. By +one of these the gathering of news by a press association and its +transmission to client newspapers is termed interstate commerce.[319] By +another the activities of a Group Health Association which serves only +its own members are held to be "trade" within the protection of the +Sherman Act and hence capable, if extended, of becoming interstate +commerce.[320] By a third the business of insurance when transacted +between an insurer and an insured in different States is interstate +commerce.[321] + + +THE "NECESSARY AND PROPER" CLAUSE + +In the majority of the above cases the commerce clause was involved +solely as a limitation on the powers of the States. But when the clause +is treated as a source of national power it is, of course, read in +association with the power of Congress "* * * To make all Laws which +shall be necessary and proper for carrying into Execution the foregoing +Powers, * * *,"[322] with the result that, as is pointed out later, +"interstate commerce" has come in recent years practically to connote +both those operations which precede as well as those which follow +commercial intercourse itself, provided such operations are deemed by +the Court to be capable of "affecting" such intercourse.[323] + + +"AMONG THE SEVERAL STATES" + +In Cohens _v._ Virginia, decided in 1821, Marshall had asserted, "for +all commercial purposes we are one nation."[324] In Gibbons _v._ Ogden, +however, he conceded that the phrase commerce "among the several States" +was "not one which would probably have been selected to indicate the +completely interior traffic of a State"; and added: "The genius and +character of the whole government seem to be, that its action is to be +applied to all external concerns of the nation, and to those internal +concerns which affect the States generally; but not those which are +completely within a particular State, which do not affect other States, +and with which it is not necessary to interfere, for the purpose of +executing some of the general powers of the government."[325] + +This recognition of an "exclusively internal" commerce of a State +("intrastate commerce" today) appears at times to have been regarded as +implying the existence of an area of State power which Congress was not +entitled constitutionally to enter.[326] This inference overlooked the +fact that, in consequence of its powers under the necessary and proper +clause, Congress can, as Marshall indicates in the words above quoted, +interfere with the completely internal concerns of a State "for the +purpose of executing its general powers," one of which is its power over +foreign and interstate commerce. It is today established doctrine that +"no form of State activity can constitutionally thwart the regulatory +power granted by the commerce clause to Congress."[327] + +And while the word "among" serves to demark "the completely internal" +commerce of a State from that which "extends to or affects" other +States, it also serves, as Marshall further pointed out, to emphasize +the fact that "the power of Congress does not stop at the jurisdictional +lines of the several States," but "must be exercised whenever +[wherever?] the subject exists. * * * Commerce among the States must, of +necessity, be commerce [within?] the States. * * * The power of +Congress, then, whatever it may be, must be exercised within the +territorial jurisdiction of the several States."[328] + + +"REGULATE" + +Elucidating this word in his opinion for the Court in Gibbons _v._ +Ogden, Chief Justice Marshall said: "We are now arrived at the +inquiry--What is this power? It is the power to regulate; that is, to +prescribe the rule by which commerce is to be governed. This power, like +all others vested in Congress, is complete in itself, may be exercised +to its utmost extent, and acknowledges no limitations, other than are +prescribed in the Constitution. These are expressed in plain terms, and +do not affect the questions which arise in this case, or which have been +discussed at the bar. If, as has always been understood, the sovereignty +of Congress, though limited to specified objects, is plenary as to those +objects, the power over commerce with foreign nations, and among the +several States, is vested in Congress as absolutely as it would be in a +single government, having in its constitution the same restrictions on +the exercise of the power as are found in the Constitution of the United +States. The wisdom and the discretion of Congress, their identity with +the people, and the influence which their constituents possess at +elections, are, in this, as in many other instances, as that, for +example, of declaring war, the sole restraints on which they have +relied, to secure them from its abuse. They are the restraints on which +the people must often rely solely, in all representative +governments."[329] + + +INTERSTATE VERSUS FOREIGN COMMERCE + +There are certain later judicial dicta which urge or suggest that +Congress's power to regulate interstate commerce restrictively is less +than its analogous power over foreign commerce, the argument being that +whereas the latter is a branch of the nation's unlimited power over +foreign relations, the former was conferred upon the National Government +primarily in order to protect freedom of commerce from State +interference. The four dissenting Justices in the Lottery Case (decided +in 1903) endorsed this view in the following words: "It is argued that +the power to regulate commerce among the several States is the same as +the power to regulate commerce with foreign nations, and among the +Indian tribes. But is its scope the same? * * *, the power to regulate +commerce with foreign nations and the power to regulate interstate +commerce, are to be taken _diverso intuitu_, for the latter was intended +to secure equality and freedom in commercial intercourse as between the +States, not to permit the creation of impediments to such intercourse; +while the former clothes Congress with that power over international +commerce, pertaining to a sovereign nation in its intercourse with +foreign nations, and subject, generally speaking, to no implied or +reserved power in the States. The laws which would be necessary and +proper in the one case, would not be necessary or proper in the other. +* * * But that does not challenge the legislative power of a sovereign +nation to exclude foreign persons or commodities, or place an embargo, +perhaps not permanent, upon foreign ships or manufactures. * * * The +same view must be taken as to commerce with Indian tribes. There is no +reservation of police powers or any other to a foreign nation or to an +Indian tribe, and the scope of the power is not the same as that over +interstate commerce."[330] + +And twelve years later Chief Justice White, speaking for the Court, +expressed the same view, as follows: "In the argument reference is made +to decisions of this court dealing with the subject of the power of +Congress to regulate interstate commerce, but the very postulate upon +which the authority of Congress to absolutely prohibit foreign +importations as expounded by the decisions of this court rests is the +broad distinction which exists between the two powers and therefore the +cases cited and many more which might be cited announcing the principles +which they uphold have obviously no relation to the question in +hand."[331] + +But dicta to the contrary are much more numerous and span a far longer +period of time. Thus Chief Justice Taney wrote in 1847: "The power to +regulate commerce among the several States is granted to Congress in the +same clause, and by the same words, as the power to regulate commerce +with foreign nations, and is coextensive with it."[332] And nearly fifty +years later Justice Field, speaking for the Court, said: "The power to +regulate commerce among the several States was granted to Congress in +terms as absolute as is the power to regulate commerce with foreign +nations."[333] Today it is firmly established doctrine that the power to +regulate commerce, whether with foreign nations or among the several +States comprises the power to restrain or prohibit it at all times for +the welfare of the public, provided only the specific limitations +imposed upon Congress's powers, as by the due process clause of the +Fifth Amendment, are not transgressed.[334] + +Nor does the power to regulate commerce stop with, nor in fact is it +most commonly exercised in, measures designed to outlaw some branch of +commerce. In the words of the Court: It is the power to provide by +appropriate legislation for its "protection and advancement";[335] to +adopt measures "to promote its growth and insure its safety";[336] "to +foster, protect, control and restrain, [commerce]."[337] This +protective power has, moreover, two dimensions. In the first place, it +includes the power to reach and remove every conceivable obstacle to or +restriction upon interstate and foreign commerce from whatever source +arising, whether it results from unfavorable conditions within the +States or from State legislative policy, like the monopoly involved in +Gibbons _v._ Ogden; or from both combined. In the second place, it +extends--as does also the power to restrain commerce--to the instruments +and agents by which commerce is carried on; nor are such instruments and +agents confined to those which were known or in use when the +Constitution was adopted.[338] + + +INSTRUMENTS OF COMMERCE + +The applicability of Congress's power to the agents and instruments of +commerce is implied in Marshall's opinion in Gibbons _v._ Ogden,[339] +where the waters of the State of New York in their quality as highways +of interstate and foreign transportation are held to be governed by the +overruling power of Congress. Likewise, the same opinion recognizes that +in "the progress of things," new and other instruments of commerce will +make their appearance. When the Licensing Act of 1793 was passed, the +only craft to which it could apply were sailing vessels, but it and the +power by which it was enacted were, Marshall asserted, indifferent to +the "principle" by which vessels were moved. Its provisions therefore +reached steam vessels as well. A little over half a century later the +principle embodied in this holding was given its classic expression in +the opinion of Chief Justice Waite in the case of the Pensacola +Telegraph Co. _v._ Western Union Co.,[340] a case closely paralleling +Gibbons _v._ Ogden in other respects also. The passage alluded to reads +as follows: "The powers thus granted are not confined to the +instrumentalities of commerce, or the postal service known or in use +when the Constitution was adopted, but they keep pace with the progress +of the country, and adapt themselves to the new developments of times +and circumstances. They extend from the horse with its rider to the +stage-coach, from the sailing-vessel to the steamboat, from the coach +and the steamboat to the railroad, and from the railroad to the +telegraph, as these new agencies are successively brought into use to +meet the demands of increasing population and wealth. They were intended +for the government of the business to which they relate, at all times +and under all circumstances. As they were intrusted to the general +government for the good of the nation, it is not only the right, but the +duty, of Congress to see to it that intercourse among the States and the +transmission of intelligence are not obstructed or unnecessarily +encumbered by State legislation."[341] The Radio Act of 1927 whereby +"all forms of interstate and foreign radio transmissions within the +United States, its Territories and possessions" were brought under +national control, affords another illustration. Thanks to the foregoing +doctrine the measure met no serious constitutional challenge either on +the floors of Congress or in the Courts.[342] + + +Congressional Regulation of Waterways + + +NAVIGATION + +In the case of Pennsylvania _v._ Wheeling & Belmont Bridge Co.,[343] +decided in 1852, the Court, on the application of the complaining State, +acting as representative of the interests of its citizens, granted an +injunction requiring that a bridge, erected over the Ohio under a +charter from the State of Virginia, either be altered so as to admit of +free navigation of the river, or else be entirely abated. The decision +was justified by the Court on the basis both of the commerce clause and +of a compact between Virginia and Kentucky, whereby both these States +had agreed to keep the Ohio River "free and common to the citizens of +the United States." The injunction was promptly rendered inoperative by +an act of Congress declaring the bridge to be "a lawful structure" and +requiring all vessels navigating the Ohio to be so regulated as not to +interfere with it.[344] This act the Court sustained as within +Congress's power under the commerce clause, saying: "So far, * * *, as +this bridge created an obstruction to the free navigation of the river, +in view of the previous acts of Congress, they [the said acts] are to be +regarded as modified by this subsequent legislation; and, although it +still may be an obstruction in fact, [it] is not so in the contemplation +of law. * * * That body [Congress] having in the exercise of this power, +regulated the navigation consistent with its preservation and +continuation, the authority to maintain it would seem to be complete. +That authority combines the concurrent powers of both governments, State +and federal, which, if not sufficient, certainly none can be found in +our system of government."[345] In short, it is Congress and not the +Court which is authorized by the Constitution to regulate commerce. + +The law and doctrine of the earlier cases with respect to the fostering +and protection of navigation are well summed up in the following +frequently cited passage from the Court's opinion in Gilman _v._ +Philadelphia,[346] decided in 1866. "Commerce includes navigation. The +power to regulate commerce comprehends the control for that purpose, and +to the extent necessary, of all the navigable waters of the United +States which are accessible from a State other than those in which they +lie. For this purpose they are the public property of the nation, and +subject to all requisite legislation by Congress. This necessarily +includes the power to keep them open and free from any obstruction to +their navigation, interposed by the States or otherwise; to remove such +obstructions when they exist; and to provide, by such sanctions as they +may deem proper, against the occurrence of the evil and for the +punishment of offenders. For these purposes, Congress possesses all the +powers which existed in the States before the adoption of the national +Constitution, and which have always existed in the Parliament in +England."[347] + +Thus Congress was within its powers in vesting the Secretary of War with +power to determine whether a structure of any nature in or over a +navigable stream is an obstruction to navigation and to order its +abatement if he so finds.[348] Nor is the United States required to +compensate the owners of such structures for their loss, since they were +always subject to the servitude represented by Congress's powers over +commerce; and the same is true of the property of riparian owners which +is damaged.[349] And while it was formerly held that lands adjoining +nonnavigable streams were not subject to the above mentioned +servitude,[350] this rule has been impaired by recent decisions;[351] +and at any rate it would not apply as to a stream which had been +rendered navigable by improvements.[352] + +In exercising its power to foster and protect navigation Congress +legislates primarily on things external to the act of navigation. But +that act itself and the instruments by which it is accomplished are also +subject to Congress's power if and when they enter into or form a part +of "commerce among the several States." When does this happen? Words +quoted above from the Court's opinion in the Gilman case answered this +question to some extent; but the decisive answer to it was returned five +years later in the case of The "Daniel Ball."[353] Here the question at +issue was whether an act of Congress, passed in 1838 and amended in +1852, which required that steam vessels engaged in transporting +passengers or merchandise upon the "bays, lakes, rivers, or other +navigable waters of the United States," applied to the case of a vessel +which navigated only the waters of the Grand River, a stream which lies +entirely in the State of Michigan. Argued counsel for the vessel: "The +navigable rivers of the United States pass through States, they form +their boundary lines, they are not in any one State, nor the exclusive +property of any one, but are common to all. To make waters navigable +waters of the United States, some other incident must attach to them +besides the territorial and the capability for public use. This term +contrasts with _domestic_ waters of the United States, and implies, not +simply that the waters are public and within the Union, but that they +have attached to them some circumstance that brings them within the +scope of the sovereignty of the United States as defined by the +Constitution." Then as a sort of _reductio ad absurdum_ counsel added: +"* * * if merely because a stream is a highway it becomes a navigable +water of the United States, in a sense that attaches to it and to the +vessels trading upon it the regulating control of Congress, then every +highway must be regarded as a highway of the United States, and the +vehicles upon _it_ must be subject to the same control. But this will +not be asserted on the part of the Government."[354] The Court answered: +"In this case it is admitted that the steamer was engaged in shipping +and transporting down Grand River, goods destined and marked for other +States than Michigan, and in receiving and transporting up the river +goods brought within the State from without its limits; * * * So far as +she was employed in transporting goods destined for other States, or +goods brought from without the limits of Michigan and destined to places +within that State, she was engaged in commerce between the States, and +however limited that commerce may have been, she was, so far as it went, +subject to the legislation of Congress. She was employed as an +instrument of that commerce; for whenever a commodity has begun to move +as an article of trade from one State to another, commerce in that +commodity between the States has commenced."[355] Turning then to +counsel's _reductio ad absurdum_, the Court added: "We answer that the +present case relates to transportation on the navigable waters of the +United States, and we are not called upon to express an opinion upon the +power of Congress over interstate commerce when carried on by land +transportation. And we answer further, that we are unable to draw any +clear and distinct line between the authority of Congress to regulate an +agency employed in commerce between the States, when the agency extends +through two or more States, and when it is confined in its action +entirely within the limits of a single State. If its authority does not +extend to an agency in such commerce, when that agency is confined +within the limits of a State, its entire authority over interstate +commerce may be defeated. Several agencies combining, each taking up the +commodity transported at the boundary line at one end of a State, and +leaving it at the boundary line at the other end, the Federal +jurisdiction would be entirely ousted, and the constitutional provision +would become a dead letter."[356] In short, it was admitted +inferentially, that the principle of the decision would apply to land +transportation; but the actual demonstration of the fact still awaited +some years.[357] See _infra_. + + +HYDROELECTRIC POWER + +As a consequence, in part, of its power to forbid or remove obstructions +to navigation in the navigable waters of the United States, Congress has +acquired the right to develop hydroelectric power, and the ancillary +right to sell it to all takers. By a long-standing doctrine of +Constitutional Law the States possess dominion over the beds of all +navigable streams within their borders,[358] but on account of the +servitude which Congress's power to regulate commerce imposes upon such +streams, they are practically unable, without the assent of Congress, to +utilize their prerogative for power development purposes. Sensing, no +doubt, that controlling power to this end must be attributed to some +government in the United States and that "in such matters there can be +no divided empire,"[359] the Court held, in 1913, in United States _v._ +Chandler-Dunbar Co.,[360] that in constructing works for the improvement +of the navigability of a stream, Congress was entitled, as a part of a +general plan, to authorize the lease or sale of such excess water power +as might result from the conservation of the flow of the stream. "If the +primary purpose is legitimate," it said, "we can see no sound objection +to leasing any excess of power over the needs of the government. The +practice is not unusual in respect to similar public works constructed +by State governments."[361] + + +Congress's Jurisdiction Over Navigable Streams Today + +Since the Chandler-Dunbar case the Court has come, in effect, to hold +that it will sustain any act of Congress which purports to be for the +improvement of navigation whatever other purposes it may also embody; +nor does the stream involved have to be one which is "navigable in its +natural state." Such, at least, seems to be the algebraic sum of its +holdings in Arizona _v._ California,[362] decided in 1931, and in the +United States _v._ Appalachian Electric Power Co.,[363] decided in 1940. +In the former the Court, speaking through Justice Brandeis, said that it +was not free to inquire into the motives "which induced members of +Congress to enact the Boulder Canyon Project Act," adding: "As the river +is navigable and the means which the Act provides are not unrelated to +the control of navigation, * * *, the erection and maintenance of such +dam and reservoir are clearly within the powers conferred upon Congress. +Whether the particular structures proposed are reasonably necessary, is +not for this Court to determine. * * * And the fact that purposes other +than navigation will also be served could not invalidate the exercise of +the authority conferred, even if those other purposes would not alone +have justified an exercise of congressional power."[364] And in the +Appalachian Electric Power case, the Court, abandoning previous holdings +which had laid down the doctrine that to be subject to Congress's power +to regulate commerce a stream must be "navigable in fact," said: "A +waterway, otherwise suitable for navigation, is not barred from that +classification merely because artificial aids must make the highway +suitable for use before commercial navigation may be undertaken," +provided there must be a "balance between cost and need at a time when +the improvement would be useful. * * * Nor is it necessary that the +improvements should be actually completed or even authorized. The power +of Congress over commerce is not to be hampered because of the necessity +for reasonable improvements to make an interstate waterway available for +traffic. * * * Nor is it necessary for navigability that the use should +be continuous. * * * Even absence of use over long periods of years, +because of changed conditions, * * * does not affect the navigability of +rivers in the constitutional sense."[365] + + +Purposes for Which Power May be Exercised + +Furthermore, the Court defined the purposes for which Congress may +regulate navigation in the broadest terms, as follows: "It cannot +properly be said that the constitutional power of the United States +over its waters is limited to control for navigation. * * * That +authority is as broad as the needs of commerce. * * * Flood protection, +watershed development, recovery of the cost of improvements through +utilization of power are likewise parts of commerce control."[366] These +views the Court has since reiterated.[367] Nor is it by virtue of +Congress's power over navigation alone that the National Government may +develop super-power. Its war powers and power of expenditure in +furtherance of the common defense and the general welfare supplement its +powers over commerce in this respect.[368] + + +Congressional Regulation of Land Transportation + + +EARLY ACTS; FEDERAL PROVISION FOR HIGHWAYS + +The acquisition and settlement of California stimulated Congress some +years before the Civil War to authorize surveys of possible routes for +railway lines to the Pacific; but it was not until 1862, in the midst of +war, with its menace of a general dissolution of the Union, that more +decisive action was taken. That year Congress voted aid in the +construction of a line from Missouri River to the Pacific; and four +years later it chartered the Union Pacific Company.[369] First and last, +litigation growing out of this type of legislation has resulted in the +establishment in judicial decision of the following propositions: +_First_, that Congress may provide highways for interstate +transportation (earlier, as well as today, this result might have +followed from Congress's power of spending, independently of the +commerce clause, as well as from its war and postal powers, which were +also invoked by the Court in this connection); _second_, that it may +charter private corporations for the purpose of doing the same thing; +_third_, that it may vest such corporations with the power of eminent +domain in the States; and _fourth_, that it may exempt their franchises +from State taxation.[370] + + +BEGINNINGS OF FEDERAL RAILWAY REGULATION + +Congress began regulating the railroads of the country in a more +positive sense in 1866. By the so-called Garfield Act of that year +"every railroad company in the United States, whose road is operated by +steam," was authorized by Congress "* * * to connect with roads of +other States so as to form continuous lines for the transportation of +passengers, freight, troops, governmental supplies, and mails, to their +destination";[371] while by an act passed on July 24 of the same year it +was ordered, "in the interest of commerce and the convenient +transmission of intelligence * * * by the government of the United +States and its citizens, that the erection of telegraph lines shall, so +far as State interference is concerned, be free to all who will submit +to the conditions imposed by Congress, and that corporations organized +under the laws of one State for constructing and operating telegraph +lines shall not be excluded by another from prosecuting their business +within its jurisdiction, if they accept the terms proposed by the +National Government for this national privilege."[372] + +Another act of the same period provided that "no railroad company within +the United States whose road forms any part of a line of road over which +cattle, sheep, swine, or other animals are conveyed from one State to +another, or the owners or masters of steam, sailing, or other vessels +carrying or transporting cattle, sheep, swine, or other animals from one +State to another, shall confine the same in cars, boats, or vessels of +any description, for a longer period than twenty-eight consecutive +hours, without unloading the same for rest, water, and feeding, for a +period of at least five consecutive hours, unless prevented from so +unloading by storm or other accidental causes."[373] + + +REGULATION OF RAILROAD RATES: THE INTERSTATE COMMERCE COMMISSION + +On account of the large element of "fixed charges" which enters into the +setting of rates by railway companies, competition between lines for new +business was from the first very sharp, and resulted in many evils +which, in the early 70's, led in the Middle West to the enactment by the +State legislatures of the so-called "Granger Laws"; and in the famous +"Granger Cases," headed by Munn _v._ Illinois,[374] the Court at first +sustained this legislation, in relation to both the commerce clause and +the due process of law clause of Amendment XIV. The principal +circumstance, however, which shaped the Court's attitude toward the +"Granger Laws" had, by a decade later, disappeared, the fact, namely, +that originally the railroad business was largely in local hands. In +consequence, first, of the panic of 1873, and then of the panic of 1885, +hundreds of these small lines went into bankruptcy, from which they +emerged consolidated into great interstate systems. The result for the +Court's interpretation of the commerce clause was determinative. In the +case of Wabash, St. Louis and Pacific R. Co. _v._ Illinois,[375] decided +in 1886, it was ruled that a State may not regulate charges for the +carriage even within its own boundaries of goods brought from without +the State or destined to points outside it; that in this respect +Congress's power over interstate commerce was exclusive. The following +year, Congress, responding to a widespread public demand, passed the +original Interstate Commerce Act.[376] + +By this measure a commission of five was created with authority to pass +upon the "reasonableness" of all charges by railroads for the +transportation of goods or persons in interstate commerce and to order +the discontinuance of all such charges as it found to be "unreasonable," +or otherwise violative of the provisions of the act. In Interstate +Commerce Commission _v._ Brimson,[377] decided in 1894, the validity of +the Commission as a means "necessary and proper" for the enforcement of +Congress's power to regulate commerce among the States was sustained, as +well as its right to enter the courts of the United States in order to +secure process for the execution of its orders. Later decisions of the +Court, however, including one in which the act was construed not to give +the Commission power to set reasonable maximum rates in substitution for +those found by it to be unreasonable, disappointed earlier +expectations.[378] + +The history of the Commission as an effective instrument of government +dates from the Hepburn Act of 1906[379] which was followed four years +later by the Mann-Elkins Act.[380] By the former the Commission was +explicitly endowed with the power, after a full hearing on a complaint +made to it, "to determine and prescribe just and reasonable" maximum +rates. By the latter it was further authorized to set such rates on its +own initiative, and without waiting for a complaint; while any increase +of rates by a carrier was made subject to suspension by the Commission +until its approval could be obtained. At the same time, the Commission's +jurisdiction was extended to telegraphs, telephones and cables.[381] + + +THE INTERSTATE COMMERCE COMMISSION TODAY + +The powers of the Commission, which has been gradually increased to a +body of eleven, are today largely defined in the Transportation Act of +February 28, 1920. By that act they were extended not only to all +"railroads," comprehensively defined, but also to the following +additional categories of "'common carriers' * * * all pipeline +companies; telegraph, telephone, and cable companies operating by wire +or wireless [_See_ note 3 above][Transcriber's Note: Refers to Article +I, Footnote [381].]; express companies; sleeping-car companies; and all +persons, natural or artificial, engaged in such transportation or +transmission as aforesaid as common carriers for hire." The jurisdiction +of the Commission covers not only the characteristic activities of such +carriers in commerce among the States, but also the issuance of +securities by them, and all consolidations of existing companies, or +lines. Furthermore, for the first time, the Commission was put under the +injunction, in exercising its control over rates and charges, to "give +due consideration, among other things, to the transportation needs of +the country and the necessity (under honest, efficient and economical +management of existing transportation facilities) of enlarging such +facilities in order to provide the people of the United States with +adequate transportation."[382] Railway rate control itself, which was +originally entered upon by the National Government exclusively from the +point of view of restraint, has thus been assimilated to the idea of +"fostering and promoting" transportation. + +Two types of constitutional questions have presented themselves under +the legislation just passed in review: 1. Those arising out of the +safeguards which the Bill of Rights throws about property rights; 2. +Those arising out of the intermingling of the interstate and intrastate +operations of the same carriers, and the resulting tangency of State +with national power. Only the latter are considered at this point. + + +THE SHREVEPORT CASE + +Section 1 of the act of 1887 contains the proviso "that the provisions +of this act shall not apply to 'transportation' wholly within the +State." Section 3 of the act prohibits "any common carrier subject to +the provisions" of the act from giving "any unreasonable preference or +advantage" to any person, firm, or locality. In the Shreveport +Case,[383] decided in 1914, the Commission, reading Sec. 3 independently +of Sec. 1, had ordered several Texas lines to increase certain of their +rates between points in Texas till they should approximate rates already +approved by the Commission to adjoining points in Louisiana. The latter +rates, being interstate, were admittedly subject to the Commission. The +local rates were as clearly within the normal jurisdiction of the State, +and had in fact been set by the Texas Railway Commission. The Court +found that the Interstate Commerce Commission had not exceeded its +statutory powers. The constitutional objection to the Commission's +action was stated thus: "That Congress is impotent to control the +intrastate charges of an interstate carrier even to the extent necessary +to prevent injurious discrimination against interstate traffic." This +objection the Court met, as follows: "Wherever the interstate and +intrastate transactions of carriers are so related that the government +of the one involves the control of the other, it is Congress, and not +the State, that is entitled to prescribe the final and dominant rule, +for otherwise Congress would be denied the exercise of its +constitutional authority and the State, and not the Nation, would be +supreme in the national field."[384] This, the Court continued, "is not +to say that Congress possesses the authority to regulate the internal +commerce of a State as such, but that it does possess the power to +foster and protect interstate commerce, and to take all measures +necessary or appropriate to that end, although intrastate transactions +of interstate carriers may thereby be controlled."[385] + + +THE ACT OF 1920 AND STATE RAILWAY RATE REGULATION + +The power of the Commission under Sec. 3 of the act of 1887, as +interpreted in the Shreveport Case, was greatly enlarged by Sec. 416 of +the act of 1920, which authorizes the Commission to remove "any undue, +unreasonable, or unjust discrimination against interstate or foreign +commerce." Thus, commerce as a whole, instead of specific firms or +localities, is made the beneficiary of the restriction. In the Wisconsin +R.R. Comm. _v._ Chicago, B. & Q.R.R. Co.,[386] the Court held that this +section sustained the Interstate Commerce Commission in annulling +intrastate passenger rates which it found to be unduly low, in +comparison with rates which the Commission had established for +interstate travel, and so tending to thwart, in deference to a merely +local interest, the general purpose of the act to maintain an efficient +transport service for the benefit of the country at large.[387] + + +REGULATION OF OTHER AGENTS OF CARRIAGE AND COMMUNICATION + +In the Pipe Line Cases, decided in 1914,[388] the Court affirmed the +power of Congress to regulate the transportation of oil and gas in pipe +lines from one State to another and held that this power applies to such +transportation even though the oil (or gas) in question was the property +of the owner of the lines.[389] Thirteen years later, in 1927, the Court +ruled that an order by a State commission fixing rates on electric +current generated within the State and sold to a distributor in another +State was invalid as imposing a burden on interstate commerce, thus +holding impliedly that Congress' power to regulate the transmission of +electric current from one State to another carried with it the power to +regulate the price of such electricity.[390] Proceeding on this +implication Congress, in the Federal Power Act of 1935,[391] conferred +upon the Federal Power Commission the power to govern the wholesale +distribution of electricity in interstate commerce; and three years +later vested in the same body like power over natural gas moving in +interstate commerce.[392] In Federal Power Commission _v._ Natural Gas +Pipeline Company,[393] the power of the Commission to set the prices at +which gas, originating in one State and transported into another, +should be sold to distributors wholesale in the latter State, was +sustained by the Court in the following terms: "The argument that the +provisions of the statute applied in this case are unconstitutional on +their face is without merit. The sale of natural gas originating in the +State and its transportation and delivery to distributors in any other +State constitutes interstate commerce, which is subject to regulation by +Congress. * * * It is no objection to the exercise of the power of +Congress that it is attended by the same incidents which attend the +exercise of the police power of a State. The authority of Congress to +regulate the prices of commodities in interstate commerce is at least as +great under the Fifth Amendment as is that of the States under the +Fourteenth to regulate the prices of commodities in intrastate +commerce."[394] + +Other acts regulative of interstate commerce and communication which +belong to this period are the Federal Communications Act of 1934, which +regulates, through the Federal Communications Commission,[395] +"interstate and foreign communication by wire and radio"; the Federal +Motor Carrier Act of 1935, which, through the Interstate Commerce +Commission, governs the transportation of persons and property by motor +vehicle common carriers;[396] the Civil Aeronautics Act of 1938, enacted +for the purpose of bringing under the control of a central agency, +called "the Civil Aeronautics Authority" (functioning through the Civil +Aeronautics Administrator and the Civil Aeronautics Board) all phases of +airborne commerce, foreign and interstate.[397] None of these measures +have provoked challenge to the power of Congress to enact them. + + +ACTS OF CONGRESS PROTECTIVE OF LABOR ENGAGED IN INTERSTATE +TRANSPORTATION + +In the course of the years 1903 to 1908 Congress enacted a series of +such measures which were notable both on account of their immediate +purpose and as marking the entry of the National Government into the +field of labor legislation. The Safety Appliance Act of 1893,[398] which +applied only to cars and locomotives engaged in moving interstate +traffic, was amended in 1903 to embrace "all trains, locomotives, +tenders, cars," etc., "used on any railway engaged in interstate +commerce * * * and to all other locomotives * * * cars," etc., "used in +connection therewith."[399] In Southern Railway Company _v._ United +States,[400] the validity of this extension of the act was challenged. +The Court sustained the measure as being within Congress's power, +saying: "* * * this is so, not because Congress possesses any power to +regulate intrastate commerce as such, but because its power to regulate +interstate commerce is plenary and competently may be exerted to secure +the safety of the persons and property transported therein and of those +who are employed in such transportation, no matter what may be the +source of the dangers which threaten it. That is to say, it is no +objection to such an exertion of this power that the dangers intended to +be avoided arise, in whole or in part, out of matters connected with +intrastate commerce."[401] + +Four years later the Hours of Service Act of 1907[402] was passed, +requiring, as a safety measure, that carriers engaged in the +transportation of passengers or property by railroad in interstate or +foreign commerce should not work their employees for longer periods than +those prescribed by the Act. In sustaining this legislation the Court, +speaking through Justice Hughes, said: "The fundamental question here is +whether a restriction upon the hours of labor of employes who are +connected with the movement of trains in interstate transportation is +comprehended within this sphere of authorized legislation. This question +admits of but one answer. The length of hours of service has direct +relation to the efficiency of the human agencies upon which protection +of life and property necessarily depends. * * * In its power suitably to +provide for the safety of the employes and travelers, Congress was not +limited to the enactment of laws relating to mechanical appliances, but +it was also competent to consider, and to endeavor to reduce, the +dangers incident to the strain of excessive hours of duty on the part of +engineers, conductors, train dispatchers, telegraphers, and other +persons embraced within the class defined by the act."[403] + +But by far the most notable of these safety measures were the Federal +Employers Liability Acts of 1906 and 1908,[404] the second of which +merely reenacted the first with certain "unconstitutional" features +eliminated. What the amended act does, in short, is to modify, in the +case of injuries incurred by the employees of interstate carriers while +engaged in interstate commerce, the defenses that had hitherto been +available to the carriers at common law. The principal argument against +the acts was that the commerce clause afforded no basis for an attempt +to regulate the relation of master and servant, which had heretofore in +all cases fallen to the reserved powers of the States; that indeed the +rules of common law modified or abrogated by the act existed solely +under State authority, and had always been enforced, in the main, in the +courts of the States.[405] Countering this argument, the Court, speaking +by Justice Van Devanter, quoted the following passage from the brief of +the Solicitor-General: "Interstate commerce--if not always, at any rate +when the commerce is transportation--is an act. Congress, of course, can +do anything which, in the exercise by itself of a fair discretion, may +be deemed appropriate to save the act of interstate commerce from +prevention or interruption, or to make that act more secure, more +reliable or more efficient. The act of interstate commerce is done by +the labor of men and with the help of things; and these men and things +are the agents and instruments of the commerce. If the agents or +instruments are destroyed while they are doing the act, commerce is +stopped; if the agents or instruments are interrupted, commerce is +interrupted; if the agents or instruments are not of the right kind or +quality, commerce in consequence becomes slow or costly or unsafe or +otherwise inefficient; and if the conditions under which the agents or +instruments do the work of commerce are wrong or disadvantageous, those +bad conditions may and often will prevent or interrupt the act of +commerce or make it less expeditious, less reliable, less economical and +less secure. Therefore, Congress may legislate about the agents and +instruments of interstate commerce, and about the conditions under +which those agents and instruments perform the work of interstate +commerce, whenever such legislation bears, or in the exercise of a fair +legislative discretion can be deemed to bear, upon the reliability or +promptness or economy or security or utility of the interstate commerce +act."[406] + + +The Adair Case + +But while the idea expressed here that the human agents of commerce, in +the sense of transportation, are instrumentalities of it, and so, in +that capacity, within the protective power of Congress, signalized the +entrance of Congress into the field of labor legislation, the Court was +not at the time prepared to give the idea any considerable scope. +Pertinent in this connection is the case of Adair _v._ United +States,[407] which was decided between the two Employers' Liability +Cases. Here was involved the validity of Sec. 10 of the "Erdman Act" of +1898,[408] by which it was made a misdemeanor for a carrier or agent +thereof to require of an employee, as a condition of employment, that he +should not become or remain a member of a trade union, or to threaten +him with loss of employment if he should become or remain a member. This +proviso the Court held not to be a regulation of commerce, there being +no connection between an employee's membership in a labor organization +and the carrying on of interstate commerce. Twenty-two years later, +however, in 1930, the Court conceded that the connection between +interstate commerce and union membership was a real and substantial one, +and on that ground sustained the power of Congress in the Railway Labor +Act of 1926[409] to prevent employers from interfering with the right of +employees to select freely their own collective bargaining +representatives.[410] + + +The Railroad Retirement Act + +Still pursuing the idea of protecting commerce and the labor engaged in +it concurrently, Congress, by the Railroad Retirement Act of June 27, +1934,[411] ordered the compulsory retirement of superannuated employees +of interstate carriers, and provided that they be paid pensions out of a +fund comprising compulsory contributions from the carriers and their +present and future employees. In Railroad Retirement Board _v._ Alton +R.R. Company,[412] however, a closely divided Court held this +legislation to be in excess of Congress's power to regulate commerce and +contrary to the due process clause of Amendment V. Said Justice Roberts +for the majority: "We feel bound to hold that a pension plan thus +imposed is in no proper sense a regulation of the activity of interstate +transportation. It is an attempt for social ends to impose by sheer fiat +noncontractual incidents upon the relation of employer and employee, not +as a rule or regulation of commerce and transportation between the +States, but as a means of assuring a particular class of employees +against old age dependency. This is neither a necessary nor an +appropriate rule or regulation affecting the due fulfillment of the +railroads' duty to serve the public in interstate transportation."[413] +Chief Justice Hughes, speaking for the dissenters, contended, on the +contrary, that "the morale of the employees [had] an important bearing +upon the efficiency of the transportation service." He added: "The +fundamental consideration which supports this type of legislation is +that industry should take care of its human wastage, whether that is due +to accident or age. That view cannot be dismissed as arbitrary or +capricious. It is a reasoned conviction based upon abundant experience. +The expression of that conviction in law is regulation. When expressed +in the government of interstate carriers, with respect to their +employees likewise engaged in interstate commerce, it is a regulation of +that commerce. As such, so far as the subject matter is concerned, the +commerce clause should be held applicable."[414] Under subsequent +legislation, an excise is levied on interstate carriers and their +employees, while by separate but parallel legislation a fund is created +in the Treasury out of which pensions are paid along the lines of the +original plan. The constitutionality of this scheme appears to be taken +for granted in Railroad Retirement Board _v._ Duquesne Warehouse +Company.[415] + + +BILLS OF LADING; THE FERGER CASE + +Some years earlier the Court had had occasion in United States _v._ +Ferger,[416] decided in 1919, to reiterate the rule laid down in the +Southern Railway Case, that Congress's protective power over interstate +commerce reaches all kinds of obstructions whatever the source of their +origin. Ferger and associates had been indicted under a federal statute +for issuing a false bill of lading, to cover a fictitious shipment in +interstate commerce. Their defense was that, since there could be no +commerce in a fraudulent bill of lading, therefore Congress's power +could not reach their alleged offense, a contention which Chief Justice +White, speaking for the Court, answered thus: "But this mistakenly +assumes that the power of Congress is to be necessarily tested by the +intrinsic existence of commerce in the particular subject dealt with, +instead of by the relation of that subject to commerce and its effect +upon it. We say mistakenly assumes, because we think it clear that if +the proposition were sustained it would destroy the power of Congress to +regulate, as obviously that power, if it is to exist, must include the +authority to deal with obstructions to interstate commerce (_In re +Debs_, 158 U.S. 564) and with a host of other acts which, because of +their relation to and influence upon interstate commerce, come within +the power of Congress to regulate, although they are not interstate +commerce in and of themselves. * * * That as instrumentalities of +interstate commerce, bills of lading are the efficient means of credit +resorted to for the purpose of securing and fructifying the flow of a +vast volume of interstate commerce upon which the commercial intercourse +of the country, both domestic and foreign, largely depends, is a matter +of common knowledge as to the course of business of which we may take +judicial notice. Indeed, that such bills of lading and the faith and +credit given to their genuineness and the value they represent are the +producing and sustaining causes of the enormous number of transactions +in domestic and foreign exchange, is also so certain and well known that +we may notice it without proof."[417] + + +Congressional Regulation of Commerce as Traffic + + +THE SHERMAN ACT; THE "SUGAR TRUST CASE" + +Congress's chief effort to regulate commerce in the primary sense of +"traffic" is embodied in the Sherman Antitrust Act of 1890, the opening +section of which declares "every contract, combination in the form of +trust or otherwise," or "conspiracy in restraint of trade and commerce +among the several States, or with foreign nations" to be "illegal," +while the second section makes it a misdemeanor for anybody to +"monopolize or attempt to monopolize any part of such commerce."[418] +The act was passed to curb the growing tendency to form industrial +combinations and the first case to reach the Court under it was the +famous "Sugar Trust Case," United States _v._ E.C. Knight Co.[419] Here +the Government asked for the cancellation of certain agreements, +whereby, through purchases of stock in other companies, the American +Sugar Refining Company, had "acquired," it was conceded, "nearly +complete control of the manufacture of refined sugars in the United +States." The question of the validity of the act was not expressly +discussed by the Court, but was subordinated to that of its proper +construction. So proceeding, the Court, in pursuance of doctrines of +Constitutional Law which were then dominant with it, turned the act from +its intended purpose and destroyed its effectiveness for several years, +as that of the Interstate Commerce Act was being contemporaneously +impaired. The following passage early in Chief Justice Fuller's opinion +for the Court, sets forth the conception of the Federal System that +controlled the decision: "It is vital that the independence of the +commercial power and of the police power, and the delimitation between +them, however sometimes perplexing, should always be recognized and +observed, for while the one furnishes the strongest bond of union, the +other is essential to the preservation of the autonomy of the States as +required by our dual form of government; and acknowledged evils, however +grave and urgent they may appear to be, had better be borne, than risk +be run, in the effort to suppress them, of more serious consequences by +resort to expedients of even doubtful constitutionality."[420] + +In short, what was needed, the Court felt, was a hard and fast line +between the two spheres of power, and in the following series of +propositions it endeavored to lay down such a line: (1) production is +always local, and under the exclusive domain of the States; (2) commerce +among the States does not commence until goods "commence their final +movement from their State of origin to that of their destination"; (3) +the sale of a product is merely an incident of its production and while +capable of "bringing the operation of commerce into play," affects it +only incidentally; (4) such restraint as would reach commerce, as above +defined, in consequence of combinations to control production "in all +its forms," would be "indirect, however inevitable and whatever its +extent," and as such beyond the purview of the act.[421] Applying then +the above reasoning to the case before it, the Court proceeded: "The +object [of the combination] was manifestly private gain in the +manufacture of the commodity, but not through the control of interstate +or foreign commerce. It is true that the bill alleged that the products +of these refineries were sold and distributed among the several States, +and that all the companies were engaged in trade or commerce with the +several States and with foreign nations; but this was no more than to +say that trade and commerce served manufacture to fulfil its function. +Sugar was refined for sale, and sales were probably made at Philadelphia +for consumption, and undoubtedly for resale by the first purchasers +throughout Pennsylvania and other States, and refined sugar was also +forwarded by the companies to other States for sale. Nevertheless it +does not follow that an attempt to monopolize, or the actual monopoly +of, the manufacture was an attempt, whether executory or consummated, to +monopolize commerce, even though, in order to dispose of the product, +the instrumentality of commerce was necessarily invoked. There was +nothing in the proofs to indicate any intention to put a restraint upon +trade or commerce, and the fact, as we have seen that trade or commerce +might be indirectly affected was not enough to entitle complainants to a +decree."[422] + + +THE SHERMAN ACT REVISED + +Four years later occurred the case of Addyston Pipe and Steel Co. _v._ +United States,[423] in which the Antitrust Act was successfully applied +as against an industrial combination for the first time. The agreements +in the case, the parties to which were manufacturing concerns, effected +a division of territory among them, and so involved, it was held, a +"direct" restraint on the distribution and hence of the transportation +of the products of the contracting firms. The holding, however, did not +question the doctrine of the earlier case, which in fact continued +substantially undisturbed until 1905, when Swift and Co. _v._ United +States,[424] was decided. + + +THE "CURRENT OF COMMERCE" CONCEPT: THE SWIFT CASE + +Defendants in the Swift case were some thirty firms engaged in Chicago +and other cities in the business of buying livestock in their +stockyards, in converting it at their packing houses into fresh meat, +and in the sale and shipment of such fresh meat to purchasers in other +States. The charge against them was that they had entered into a +combination to refrain from bidding against each other in the local +markets, to fix the prices at which they would sell, to restrict +shipments of meat, and to do other forbidden acts. The case was appealed +to the Supreme Court on defendants' contention that certain of the acts +complained of were not acts of interstate commerce and so did not fall +within a valid reading of the Sherman Act. The Court, however, sustained +the Government on the ground that the "scheme as a whole" came within +the act, and that the local activities alleged were simply part and +parcel of this general scheme.[425] + +Referring to the purchases of livestock at the stockyards, the Court, +speaking by Justice Holmes, said: "Commerce among the States is not a +technical legal conception, but a practical one, drawn from the course +of business. When cattle are sent for sale from a place in one State, +with the expectation that they will end their transit, after purchase, +in another, and when in effect they do so, with only the interruption +necessary to find a purchaser at the stockyards, and when this is a +typical, constantly recurring course, the current thus existing is a +current of commerce among the States, and the purchase of the cattle is +a part and incident of such commerce."[426] Likewise the sales alleged +of fresh meat at the slaughtering places fell within the general design. +Even if they imported a technical passing of title at the slaughtering +places, they also imported that the sales were to persons in other +States, and that shipments to such States were part of the +transaction.[427] Thus, sales of the type which in the Sugar Trust Case +were thrust to one side as immaterial from the point of view of the law, +because they enabled manufacture "to fulfill its function," were here +treated as merged in an interstate commerce stream. Thus, the concept of +commerce as _trade_, that is, as _traffic_, again entered the +Constitutional Law picture, with the result that conditions which +directly affected interstate trade could not be dismissed on the ground +that they affected interstate commerce, in the sense of interstate +_transportation_, only "indirectly." Lastly, the Court added these +significant words: "But we do not mean to imply that the rule which +marks the point at which State taxation or regulation becomes +permissible necessarily is beyond the scope of interference by Congress +in cases where such interference is deemed necessary for the protection +of commerce among the States."[428] That is to say, the line that +confines State power from one side does not always confine national +power from the other. For even though the line accurately divides the +subject matter of the complementary spheres, still national power is +always entitled to take on such additional extension as is requisite to +guarantee its effective exercise, and is furthermore supreme. + + +THE DANBURY HATTERS CASE + +In this respect, the Swift Case only states what the Shreveport Case was +later to declare more explicitly; and the same may be said of an ensuing +series of cases in which combinations of employees engaged in such +intrastate activities as manufacturing, mining, building construction, +and the distribution of poultry were subjected to the penalties of the +Sherman Act because of the effect or intended effect of their activities +on interstate commerce.[429] + + +STOCKYARDS AND GRAIN FUTURES ACTS + +In 1921 Congress passed the Packers and Stockyards Act[430] whereby the +business of commission men and livestock dealers in the chief stockyards +of the country was brought under national supervision; and the year +following it passed the Grain Futures Act[431] whereby exchanges dealing +in grain futures were subjected to control. The decisions of the Court +sustaining these measures both built directly upon the Swift Case. + +In Stafford _v._ Wallace,[432] which involved the former act, Chief +Justice Taft, speaking for the Court, said: "The object to be secured by +the act is the free and unburdened flow of livestock from the ranges and +farms of the West and Southwest through the great stockyards and +slaughtering centers on the borders of that region, and thence in the +form of meat products to the consuming cities of the country in the +Middle West and East, or, still as livestock, to the feeding places and +fattening farms in the Middle West or East for further preparation for +the market."[433] The stockyards, therefore, were "not a place of rest +or final destination." They were "but a throat through which the current +flows," and the sales there were not merely local transactions. "They do +not stop the flow;--but, on the contrary" are "indispensable to its +continuity."[434] + +In Chicago Board of Trade _v._ Olsen,[435] involving the Grain Futures +Act, the same course of reasoning was repeated. Speaking of the Swift +Case, Chief Justice Taft remarked: "That case was a milestone in the +interpretation of the commerce clause of the Constitution. It +recognized the great changes and development in the business of this +vast country and drew again the dividing line between interstate and +intrastate commerce where the Constitution intended it to be. It refused +to permit local incidents of a great interstate movement, which taken +alone were intrastate, to characterize the movement as such."[436] Of +special significance, however, is the part of the opinion which was +devoted to showing the relation between future sales and cash sales, and +hence the effect of the former upon the interstate grain trade. The +test, said the Chief Justice, was furnished by the question of price. +"The question of price dominates trade between the States. Sales of an +article which affect the country-wide price of the article directly +affect the country-wide commerce in it."[437] Thus a practice which +demonstrably affects prices would also affect interstate trade +"directly," and so, even though local in itself, would fall within the +regulatory power of Congress. In the following passage, indeed, Chief +Justice Taft whittles down, in both cases, the "direct-indirect" formula +to the vanishing point: "Whatever amounts to more or less constant +practice, and threatens to obstruct or unduly to burden the freedom of +interstate commerce is within the regulatory power of Congress under the +commerce clause, and it is primarily for Congress to consider and decide +the fact of the danger and meet it. This court will certainly not +substitute its judgment for that of Congress in such a matter unless the +relation of the subject to interstate commerce and its effect upon it +are clearly nonexistent."[438] And it was in reliance on the doctrine of +these cases that Congress first set to work to combat the Depression in +1933 and the years immediately following. But in fact, much of its +legislation at this time marked a wide advance upon the measures just +passed in review. They did not stop with regulating traffic among the +States and the instrumentalities thereof; they also essayed to govern +production and industrial relations in the field of production. +Confronted with this revolutionary claim to power on Congress' part, the +Court again deemed itself called upon to define a limit to the commerce +power that would save to the States their historical sphere, and +especially their customary monopoly of legislative power in relation to +industry and labor management. + + +THE SECURITIES AND EXCHANGE COMMISSION + +Not all antidepression legislation, however, was of this revolutionary +type. The Securities Exchange Act of 1934[439] and the Public Utility +Company Act ("Wheeler-Rayburn Act") of 1935[440] were not. The former +creates the Securities and Exchange Commission, and authorizes it to lay +down regulations designed to keep dealing in securities honest and +above-board and closes the channels of interstate commerce and the mails +to dealers refusing to register under the act. The latter requires, by +sections 4 (a) and 5, the companies which are governed by it to register +with the Securities and Exchange Commission and to inform it concerning +their business, organization and financial structure, all on pain of +being prohibited use of the facilities of interstate commerce and the +mails; while by section 11, the so-called "death sentence" clause, the +same act closes after a certain date the channels of interstate +communication to certain types of public utility companies whose +operations, Congress found, were calculated chiefly to exploit the +investing and consuming public. All these provisions have been +sustained,[441] Gibbons _v._ Ogden, furnishing the Court its principal +reliance.[442] + + +Congressional Regulation of Production and Industrial Relations + + +ANTIDEPRESSION LEGISLATION + +In the following words of Chief Justice Hughes, spoken in a case which +was decided a few days after President Franklin D. Roosevelt's first +inauguration, the problem which confronted the new Administration was +clearly set forth: "When industry is grievously hurt, when producing +concerns fail, when unemployment mounts and communities dependent upon +profitable production are prostrated, the wells of commerce go +dry."[443] + + +THE NATIONAL INDUSTRIAL RECOVERY ACT + +The initial effort of Congress to deal with this situation was embodied +in the National Industrial Recovery Act of June 16, 1933.[444] The +opening section of the act asserted the existence of "a national +emergency productive of widespread unemployment and disorganization of +industry which" burdened "interstate and foreign commerce," affected +"the public welfare," and undermined "the standards of living of the +American people." To effect the removal of these conditions the +President was authorized, upon the application of industrial or trade +groups, to approve "codes of fair competition," or to prescribe the same +in cases where such applications were not duly forthcoming. Among other +things such codes, of which eventually more than 700 were promulgated, +were required to lay down rules of fair dealing with customers and to +furnish labor certain guarantees respecting hours, wages and collective +bargaining. For the time being business and industry were to be +cartelized on a national scale. + + +THE SCHECHTER CASE + +In the case of Schechter Corp. _v._ United States,[445] one of these +codes, the Live Poultry Code, was pronounced unconstitutional. Although +it was conceded that practically all poultry handled by the Schechters +came from outside the State, and hence via interstate commerce, the +Court held, nevertheless, that once the chickens came to rest in the +Schechters' wholesale market interstate commerce in them ceased. The +act, however, also purported to govern business activities which +"affected" interstate commerce. This, Chief Justice Hughes held, must be +taken to mean "directly" affect such commerce: "the distinction between +direct and indirect effects of intrastate transactions upon interstate +commerce must be recognized as a fundamental one, essential to the +maintenance of our constitutional system. Otherwise, * * *, there would +be virtually no limit to the federal power and for all practical +purposes we should have a completely centralized government."[446] In +short, the case was governed by the ideology of the Sugar Trust Case, +which was not mentioned in the Court's opinion.[447] + + +THE AGRICULTURAL ADJUSTMENT ACT + +Congress' second attempt to combat the Depression comprised the +Agricultural Adjustment Act of 1933.[448] As is pointed out elsewhere +the measure was set aside as an attempt to regulate production, a +subject which was held to be "prohibited" to the United States by +Amendment X.[449] _See_ pp. 917-918. + + +THE BITUMINOUS COAL CONSERVATION ACT + +The third measure to be disallowed was the Guffey-Snyder Bituminous Coal +Conservation Act of 1935.[450] The statute created machinery for the +regulation of the price of soft coal, both that sold in interstate +commerce and that sold "locally," and other machinery for the regulation +of hours of labor and wages in the mines. The clauses of the act dealing +with these two different matters were declared by the act itself to be +separable so that the invalidity of the one set would not affect the +validity of the other; but this strategy was ineffectual. A majority of +the Court, speaking by Justice Sutherland held that the act constituted +one connected scheme of regulation which, inasmuch as it invaded the +reserved powers of the States over conditions of employment in +productive industry, was violative of the Constitution and void.[451] +Justice Sutherland's opinion set out from Chief Justice Hughes's +assertion in the Schechter Case of the "fundamental" character of the +distinction between "direct" and "indirect" effects; that is to say, +from the doctrine of the Sugar Trust Case. It then proceeded: "Much +stress is put upon the evils which come from the struggle between +employers and employees over the matter of wages, working conditions, +the right of collective bargaining, etc., and the resulting strikes, +curtailment and irregularity of production and effect on prices; and it +is insisted that interstate commerce is greatly affected thereby. But, +..., the conclusive answer is that the evils are all local evils over +which the Federal Government has no legislative control. The relation of +employer and employee is a local relation. At common law, it is one of +the domestic relations. The wages are paid for the doing of local work. +Working conditions are obviously local conditions. The employees are not +engaged in or about commerce, but exclusively in producing a commodity. +And the controversies and evils, which it is the object of the act to +regulate and minimize, are local controversies and evils affecting local +work undertaken to accomplish that local result. Such effect as they may +have upon commerce, however extensive it may be, is secondary and +indirect. An increase in the greatness of the effect adds to its +importance. It does not alter its character."[452] We again see the +influence of the ideology of the Sugar Trust Case.[453] + + +THE NATIONAL LABOR RELATIONS ACT + +The case in which the Court reduced the distinction between "direct" and +"indirect" effects to the vanishing point, and thereby put Congress in +the way of governing productive industry and labor relations in such +industry was National Labor Relations Board _v._ Jones and Laughlin +Steel Corp.,[454] decided April 12, 1937. Here the statute involved was +the National Labor Relations Act of July 5, 1935,[455] which forbids +"any unfair labor practice affecting interstate commerce" and lists +among these "the denial by employers of the right of employees to +organize and the refusal by employers to accept the procedure of +collective bargaining." Ignoring recent holdings, government counsel +appealed to the "current of commerce" concept of the Swift Case. The +scope of respondent's activities, they pointed out, was immense. Besides +its great steel-producing plants, it owned and operated mines, +steamships, and terminal railways scattered through several States, and +altogether it gave employment to many thousands of workers. A vast +industrial commonwealth such as this, whose operations constantly +traversed State lines, comprised, they contended, a species of +territorial enclave which was subject in all its parts to the only +governmental power capable of dealing with it as an entity, that is, +the National Government. Yet even if this were not so, still the +protective power of Congress over interstate commerce must be deemed to +extend to disruptive strikes by employees of such an immense concern, +and hence to include power to remove the causes of such strikes. The +Court, speaking through Chief Justice Hughes, held the corporation to be +subject to the act on the latter ground. "The close and intimate +effect," said he, "which brings the subject within the reach of federal +power may be due to activities in relation to productive industry +although the industry when separately viewed is local." Nor will it do +to say that such effect is "indirect." Considering defendant's +"far-flung activities," the effect of strife between it and its +employees "* * * would be immediate and [it] might be catastrophic. We +are asked to shut our eyes to the plainest facts of our national life +and to deal with the question of direct and indirect effects in an +intellectual vacuum. * * * When industries organize themselves on a +national scale, making their relation to interstate commerce the +dominant factor in their activities, how can it be maintained that their +industrial labor relations constitute a forbidden field into which +Congress may not enter when it is necessary to protect interstate +commerce from the paralyzing consequences of industrial war? We have +often said that interstate commerce itself is a practical conception. It +is equally true that interferences with that commerce must be appraised +by a judgment that does not ignore actual experience."[456] + +While the act was thus held to be within the constitutional powers of +Congress in relation to a productive concern, the interruption of whose +business by strike "might be catastrophic," the decision was forthwith +held to apply also to two minor concerns;[457] and in a later case the +Court stated specifically that "the smallness of the volume of commerce +affected in any particular case" is not a material consideration.[458] +Moreover, the doctrine of the Jones-Laughlin Case applies equally to +"natural" products, to coal mined, to stone quarried, to fruit and +vegetables grown.[459] + + +THE FAIR LABOR STANDARDS ACT; THE DARBY CASE + +In 1938 Congress enacted the Fair Labor Standards Act.[460] The measure +prohibits not only the shipment in interstate commerce of goods +manufactured by employees whose wages are less than the prescribed +minimum or whose weekly hours of labor are greater than the prescribed +maximum, but also the employment of workmen in the production of goods +for such commerce at other than the prescribed wages and hours. +Interstate commerce is defined by the act to mean "trade, commerce, +transportation, transmission, or communication among the several States +or from any State to any place outside thereof." It was further provided +that "for the purposes of this act an employee shall be deemed to have +been engaged in the production of goods [that is, for interstate +commerce] if such employee was employed * * *, or in any process or +occupation necessary to the production thereof, in any State." +Sustaining an indictment under the act, a unanimous Court, speaking by +Chief Justice Stone, said: "The motive and purpose of the present +regulation are plainly to make effective the congressional conception of +public policy that interstate commerce should not be made the instrument +of competition in the distribution of goods produced under substandard +labor conditions, which competition is injurious to the commerce and to +the States from and to which commerce flows."[461] In support of the +decision the Court invokes Chief Justice Marshall's reading of the +necessary and proper clause in McCulloch _v._ Maryland and his reading +of the commerce clause in Gibbons _v._ Ogden.[462] Objections purporting +to be based on the Tenth Amendment are met from the same point of view: +"Our conclusion is unaffected by the Tenth Amendment which provides: +'The powers not delegated to the United States by the Constitution, nor +prohibited by it to the States, are reserved to the States respectively, +or to the people.' The amendment states but a truism that all is +retained which has not been surrendered. There is nothing in the history +of its adoption to suggest that it was more than declaratory of the +relationship between the national and State governments as it had been +established by the Constitution before the amendment or that its purpose +was other than to allay fears that the new National Government might +seek to exercise powers not granted, and that the States might not be +able to exercise fully their reserved powers. _See_ e.g., II Elliot's +Debates, 123, 131; III id. 450, 464, 600; IV id. 140, 149; I Annals of +Congress, 432, 761, 767-768; Story, Commentaries on the Constitution, +Sec. 1907-1908."[463] Commenting recently on this decision, former +Justice Roberts said: "Of course, the effect of sustaining the Fair Labor +Standards Act was to place the whole matter of wages and hours of +persons employed throughout the United States, with slight exceptions, +under a single federal regulatory scheme and in this way completely to +supersede state exercise of the police power in this field."[464] In a +series of later cases construing terms of the act, it had been given +wide application.[465] + + +THE AGRICULTURAL MARKETING AGREEMENT ACT + +Meantime Congress had returned to the task of bolstering agriculture by +passing the Agricultural Marketing Agreement Act of June 3, 1937,[466] +authorizing the Secretary of Agriculture to fix the minimum prices of +certain agricultural products, when the handling of such products occurs +"in the current of interstate or foreign commerce or * * * directly +burdens, obstructs or affects interstate or foreign commerce in such +commodity or product thereof." In United States _v._ Wrightwood Dairy +Company[467] the Court sustained an order of the Secretary of +Agriculture fixing the minimum prices to be paid to producers of milk in +the Chicago "marketing area." The dairy company demurred to the +regulation on the ground of its applying to milk produced and sold +intrastate. Sustaining the order the Court said: "Congress plainly has +power to regulate the price of milk distributed through the medium of +interstate commerce, * * *, and it possesses every power needed to make +that regulation effective. The commerce power is not confined in its +exercise to the regulation of commerce among the States. It extends to +those activities intrastate which so affect interstate commerce, or the +exertion of the power of Congress over it, as to make regulation of them +appropriate means to the attainment of a legitimate end, the effective +execution of the granted power to regulate interstate commerce. _See_ +McCulloch _v._ Maryland, 4 Wheat. 316, 421; * * * The power of Congress +over interstate commerce is plenary and complete in itself, may be +exercised to its utmost extent, and acknowledges no limitations other +than are prescribed in the Constitution. Gibbons _v._ Ogden, 9 Wheat. 1, +196. It follows that no form of State activity can constitutionally +thwart the regulatory power granted by the commerce clause to Congress. +Hence the reach of that power extends to those intrastate activities +which in a substantial way interfere with or obstruct the exercise of +the granted power."[468] + +In Wickard _v._ Filburn[469] a still deeper penetration by Congress into +the field of production was sustained. As amended by the act of 1941, +the Agricultural Adjustment Act of 1938,[470] regulates production even +when not intended for commerce but wholly for consumption on the +producer's farm. Sustaining this extension of the act, the Court pointed +out that the effect of the statute was to support the market. It said: +"It can hardly be denied that a factor of such volume and variability as +home-consumed wheat would have a substantial influence on price and +market conditions. This may arise because being in marketable condition +such wheat overhangs the market and, if induced by rising prices, tends +to flow into the market and check price increases. But if we assume that +it is never marketed, it supplies a need of the man who grew it which +would otherwise be reflected by purchases in the open market. Home-grown +wheat in this sense competes with wheat in commerce. The stimulation of +commerce is a use of the regulatory function quite as definitely as +prohibitions or restrictions thereon. This record leaves us in no doubt +that Congress may properly have considered that wheat consumed on the +farm where grown, if wholly outside the scheme of regulation, would have +a substantial effect in defeating and obstructing its purpose to +stimulate trade therein at increased prices."[471] And it elsewhere +stated: "Questions of the power of Congress are not to be decided by +reference to any formula which would give controlling force to +nomenclature such as 'production' and 'indirect' and foreclose +consideration of the actual effects of the activity in question upon +interstate commerce. * * * The Court's recognition of the relevance of +the economic effects in the application of the Commerce Clause, * * *, +has made the mechanical application of legal formulas no longer +feasible."[472] + + +Acts of Congress Prohibiting Commerce + + +FOREIGN COMMERCE; JEFFERSON'S EMBARGO + +"Jefferson's Embargo" of 1807-1808, which cut all trade with Europe, was +attacked on the ground that the power to regulate commerce was the power +to preserve it, not the power to destroy it. This argument was rejected +by Judge Davis of the United States District Court for Massachusetts in +the following words: "A national sovereignty is created [by the +Constitution]. Not an unlimited sovereignty, but a sovereignty, as to +the objects surrendered and specified, limited only by the +qualifications and restrictions, expressed in the Constitution. Commerce +is one of those objects. The care, protection, management and control, +of this great national concern, is, in my opinion, vested by the +Constitution, in the Congress of the United States; and their power is +sovereign, relative to commercial intercourse, qualified by the +limitations and restrictions, expressed in that instrument, and by the +treaty making power of the President and Senate. * * * Power to +regulate, it is said, cannot be understood to give a power to +annihilate. To this it may be replied, that the acts under +consideration, though of very ample extent, do not operate as a +prohibition of all foreign commerce. It will be admitted that partial +prohibitions are authorized by the expression; and how shall the degree, +or extent, of the prohibition be adjusted, but by the discretion of the +National Government, to whom the subject appears to be committed? * * * +The term does not necessarily include shipping or navigation; much less +does it include the fisheries. Yet it never has been contended, that +they are not the proper objects of national regulation; and several acts +of Congress have been made respecting them. * * * [Furthermore] if it be +admitted that national regulations relative to commerce, may apply it as +an instrument, and are not necessarily confined to its direct aid and +advancement, the sphere of legislative discretion is, of course, more +widely extended; and, in time of war, or of great impending peril, it +must take a still more expanded range. Congress has power to declare +war. It, of course, has power to prepare for war; and the time, the +manner, and the measure, in the application of constitutional means, +seem to be left to its wisdom and discretion. * * * Under the +Confederation, * * * we find an express reservation to the State +legislatures of the power to pass prohibitory commercial laws, and, as +respects exportations, without any limitations. Some of them exercised +this power. * * * Unless Congress, by the Constitution, possess the +power in question, it still exists in the State legislatures--but this +has never been claimed or pretended, since the adoption of the federal +Constitution; and the exercise of such a power by the States, would be +manifestly inconsistent with the power, vested by the people in +Congress, 'to regulate commerce.' Hence I infer, that the power, +reserved to the States by the articles of Confederation, is surrendered +to Congress, by the Constitution; unless we suppose, that, by some +strange process, it has been merged or extinguished, and now exists no +where."[473] + + +FOREIGN COMMERCE; PROTECTIVE TARIFFS + +Tariff laws have customarily contained prohibitory provisions, and such +provisions have been sustained by the Court under Congress's revenue +powers (_see above_) and under its power to regulate foreign commerce. +Speaking for the Court in University of Illinois _v._ United +States,[474] in 1933, Chief Justice Hughes said: "The Congress may +determine what articles may be imported into this country and the terms +upon which importation is permitted. No one can be said to have a vested +right to carry on foreign commerce with the United States. * * * It is +true that the taxing power is a distinct power; that it is distinct from +the power to regulate commerce. * * * It is also true that the taxing +power embraces the power to lay duties. Art. I, Sec. 8, cl. 1. But +because the taxing power is a distinct power and embraces the power to +lay duties, it does not follow that duties may not be imposed in the +exercise of the power to regulate commerce. The contrary is well +established. Gibbons _v._ Ogden, 9 Wheat. 1, 202. 'Under the power to +regulate foreign commerce Congress impose duties on importations, give +drawbacks, pass embargo and nonintercourse laws, and make all other +regulations necessary to navigation, to the safety of passengers, and +the protection of property.' Groves _v._ Slaughter, 15 Pet. 449, 505. +The laying of duties is 'a common means of executing the power.' 2 Story +on the Constitution, Sec. 1088."[475] + + +FOREIGN COMMERCE; BANNED ARTICLES + +The forerunners of more recent acts excluding objectionable commodities +from interstate commerce are the laws forbidding the importation of like +commodities from abroad. This power Congress has exercised since 1842. +In that year it forbade the importation of obscene literature or +pictures from abroad.[476] Six years later it passed an act "to prevent +the importation of spurious and adulterated drugs" and to provide a +system of inspection to make the prohibition effective.[477] Such +legislation guarding against the importation of noxiously adulterated +foods, drugs, or liquor has been on the statute books ever since. In +1887 the importation by Chinese nationals of smoking opium was +prohibited,[478] and subsequent statutes passed in 1909 and 1914 made it +unlawful for anyone to import it.[479] In 1897 Congress forbade the +importation of any tea "inferior in purity, quality, and fitness for +consumption" as compared with a legal standard.[480] The act was +sustained in 1904, in the leading case of Buttfield _v._ Stranahan.[481] +In "The Abby Dodge" case an act excluding sponges taken by means of +diving or diving apparatus from the waters of the Gulf of Mexico or +Straits of Florida was sustained, but construed as not applying to +sponges taken from the territorial waters of a State.[482] In Weber _v._ +Freed[483] an act prohibiting the importation and interstate +transportation of prize-fight films or of pictorial representation of +prize fights was upheld. Speaking for the unanimous Court, Chief Justice +White said: "In view of the complete power of Congress over foreign +commerce and its authority to prohibit the introduction of foreign +articles recognized and enforced by many previous decisions of this +court, the contentions are so devoid of merit as to cause them to be +frivolous."[484] In Brolan _v._ United States[485] the Court again +stressed the absolute nature of Congress's power over foreign commerce, +saying: "In the argument reference is made to decisions of this court +dealing with the subject of the power of Congress to regulate interstate +commerce, but the very postulate upon which the authority of Congress to +absolutely prohibit foreign importations as expounded by the decisions +of this court rests is the broad distinction which exists between the +two powers and therefore the cases cited and many more which might be +cited announcing the principles which they uphold have obviously no +relation to the question in hand."[486] + + +INTERSTATE COMMERCE; CONFLICT OF DOCTRINE AND OPINION + +The question whether Congress's power to regulate commerce "among the +several States" embraced the power to prohibit it furnished the topic of +one of the most protracted debates in the entire history of the +Constitution's interpretation, a debate the final resolution of which in +favor of Congressional power is an event of first importance for the +future of American Federalism. The issue was as early as 1841 brought +forward by Henry Clay, in an argument before the Court in which he +raised the specter of an act of Congress forbidding the interstate slave +trade.[487] The debate was concluded ninety-nine years later by the +decision in United States _v._ Darby, in which the Fair Labor Standards +Act was sustained. The resume of it which is given below is based on +judicial opinions, arguments of counsel, and the writings of jurists and +political scientists. Much of this material was evoked by efforts of +Congress, from about 1905 onward, to stop the shipment interstate of the +products of child labor. + + +ACTS OF CONGRESS PROHIBITIVE OF INTERSTATE COMMERCE + +The earliest such acts were in the nature of quarantine regulations and +usually dealt solely with interstate transportation. In 1884 the +exportation or shipment in interstate commerce of livestock having any +infectious disease was forbidden.[488] In 1903 power was conferred upon +the Secretary of Agriculture to establish regulations to prevent the +spread of such diseases through foreign or interstate commerce.[489] In +1905 the same official was authorized to lay an absolute embargo or +quarantine upon all shipments of cattle from one State to another when +the public necessity might demand it.[490] A statute passed in 1905 +forbade the transportation in foreign and interstate commerce and the +mails of certain varieties of moths, plant lice, and other insect pests +injurious to plant crops, trees, and other vegetation.[491] In 1912 a +similar exclusion of diseased nursery stock was decreed,[492] while by +the same act, and again by an act of 1917,[493] the Secretary of +Agriculture was invested with powers of quarantine on interstate +commerce for the protection of plant life from disease similar to those +above described for the prevention of the spread of animal disease. +While the Supreme Court originally held federal quarantine regulations +of this sort to be constitutionally inapplicable to intrastate shipments +of livestock, on the ground that federal authority extends only to +foreign and interstate commerce,[494] this view has today been +abandoned. _See_ pp. 248-249. + + +THE LOTTERY CASE + +The first case to come before the Court in which the issues discussed +above were canvassed at all thoroughly was Champion _v._ Ames,[495] +involving the act of 1895 "for the suppression of lotteries."[496] An +earlier act excluding lottery tickets from the mails had been upheld in +the earlier case of In re Rapier,[497] on the proposition that Congress +clearly had the power to see that the very facilities furnished by it +were not put to bad uses. But in the case of commerce the facilities are +not ordinarily furnished by the National Government, and the right to +engage in foreign and interstate commerce comes from the Constitution +itself, or is anterior to it. + +How difficult the Court found the question produced by the act of 1895, +forbidding any person to bring within the United States or to cause to +be "carried from one State to another" any lottery ticket, or an +equivalent thereof, "for the purpose of disposing of the same," is shown +by the fact that the case was thrice argued before the Court, and the +fact that the Court's decision finally sustaining the act was a +five-to-four decision. The opinion of the Court, on the other hand, +prepared by Justice Harlan, marked an almost unqualified triumph at the +time for the view that Congress's power to regulate commerce among the +States includes the power to prohibit it, especially to supplement and +support State legislation enacted under the police power.[498] Early in +the opinion extensive quotation is made from Chief Justice Marshall's +opinion in Gibbons _v._ Ogden,[499] with special stress upon the +definition there given of the phrase "to regulate." Justice Johnson's +assertion on the same occasion is also given: "The power of a sovereign +State over commerce, * * *, amounts to nothing more than, a power to +limit and restrain it at pleasure." Further along is quoted with evident +approval Justice Bradley's statement in Brown _v._ Houston,[500] that +"the power to regulate commerce among the several States is granted to +Congress in terms as absolute as is the power to regulate commerce with +foreign nations." + + +NATIONAL PROHIBITIONS AND STATE POLICE POWER + +Following in the wake of Champion _v._ Ames, Congress has repeatedly +brought its prohibitory powers over interstate commerce and +communications to the support of certain local policies of the States in +the exercise of their reserved powers, thereby aiding them in the +repression of the liquor traffic,[501] of traffic in game taken in +violation of State laws,[502] of commerce in convict-made goods,[503] of +the white slave traffic,[504] of traffic in stolen motor vehicles,[505] +of kidnapping,[506] of traffic in stolen property,[507] of +racketeering,[508] of prize-fight films or other pictorial +representation of encounters of pugilists.[509] The conception of the +Federal System on which the Court based its validation of this +legislation was stated by it in 1913 in sustaining the Mann "White +Slave" Act in the following words: "Our dual form of government has its +perplexities, State and Nation having different spheres of jurisdiction, +* * *, but it must be kept in mind that we are one people; and the +powers reserved to the States and those conferred on the Nation are +adapted to be exercised, whether independently or concurrently, to +promote the general welfare, material, and moral."[510] At the same +time, the Court made it plain that in prohibiting commerce among the +States, Congress was equally free to support State legislative policy or +to devise a policy of its own. "Congress," it said, "may exercise this +authority in aid of the policy of the State, if it sees fit to do so. It +is equally clear that the policy of Congress acting independently of the +States may induce legislation without reference to the particular policy +or law of any given State. Acting within the authority conferred by the +Constitution it is for Congress to determine what legislation will +attain its purposes. The control of Congress over interstate commerce is +not to be limited by State laws."[511] + + +HAMMER _v._ DAGENHART + +However, it is to be noted that none of this legislation operated in the +field of industrial relations. So when the Court was confronted in 1918, +in the case of Hammer _v._ Dagenhart,[512] with an act which forbade +manufacturers and others to offer child-made goods for transportation in +interstate commerce,[513] it held the act, by the narrow vote of five +Justices to four, to be not an act regulative of commerce among the +States, but one which invaded the reserved powers of the States. "The +maintenance of the authority of the States over matters purely local," +said Justice Day for the Court, "is as essential to the preservation of +our institutions as is the conservation of the supremacy of the federal +power in all matters entrusted to the Nation by the Federal +Constitution."[514] As to earlier decisions sustaining Congress's +prohibitory powers, Justice Day said: "In each of these instances the +use of interstate transportation was necessary to the accomplishment of +harmful results. * * * This element is wanting in the present case. +* * * The goods shipped are in themselves harmless. * * * When offered +for shipment, and before transportation begins, the labor of their +production is over, and the mere fact that they were intended for +interstate commerce transportation does not make their production +subject to federal control under the commerce power. * * * 'When +commerce begins is determined, not by the character of the commodity, +nor by the intention of the owner to transfer it to another State for +sale, * * *, but by its actual delivery to a common carrier for +transportation, * * *' (Mr. Justice Jackson in _In re Greene_, 52 Fed. +Rep. 113). This principle has been recognized often in this court. Coe +_v._ Errol, 116 U.S. 517 * * *."[515] + +The decision in Hammer _v._ Dagenhart was, in short, governed by the +same general conception of the interstate commerce process as that which +governed the decision in the Sugar Trust Case. Commerce was envisaged as +beginning only with an act of transportation from one State to another. +And from this it was deduced that the only commerce which Congress may +prohibit is an act of transportation from one State to the other which +is followed in the latter by an act within the normal powers of +government to prohibit. Commerce, however, is primarily _traffic_; and +the theory of the Child Labor Act was that it was designed to discourage +a widespread and pernicious interstate traffic in the products of child +labor--pernicious because it bore "a real and substantial relation" to +the existence of child labor employment in some States and constituted a +direct inducement to its spread to other States. Deprived of the +interstate market which this decision secured to it, child labor could +not exist. + + +INTERSTATE COMMERCE IN STOLEN GOODS BANNED + +In Brooks _v._ United States,[516] decided in 1925, the Court, in +sustaining the National Motor Vehicle Theft Act of 1919,[517] materially +impaired the _ratio decidendi_ of Hammer _v._ Dagenhart. At the outset +of his opinion for the Court, Chief Justice Taft stated the general +proposition that "Congress can certainly regulate interstate commerce to +the extent of forbidding and punishing the use of such commerce as an +agency to promote immorality, dishonesty or the spread of any evil or +harm to the people of other States from the State of origin." This +statement was buttressed by a review of previous cases, including the +explanation that the goods involved in Hammer _v._ Dagenhart were +"harmless" and did not spread harm to persons in other States. Passing +then to the measure before the Court, the Chief Justice noted "the +radical change in transportation" brought about by the automobile, and +the rise of "elaborately organized conspiracies for the theft of +automobiles * * *, and their sale or other disposition" in another +police jurisdiction from the owner's. This, the opinion declared, "is a +gross misuse of interstate commerce. Congress may properly punish such +interstate transportation by anyone with knowledge of the theft, because +of its harmful result and its defeat of the property rights of those +whose machines against their will are taken into other +jurisdictions."[518] + +The Motor Vehicle Act was sustained, therefore, mainly as protective of +owners of automobiles, that is to say, of interests in "the State of +origin." It was designed to repress automobile thefts, and that +notwithstanding the obvious fact that such thefts must necessarily occur +before transportation of the thing stolen can take place, that is, under +the formula followed in Hammer _v._ Dagenhart, before Congress's power +over interstate commerce becomes operative. Also, the Court took +cognizance of "elaborately organized conspiracies" for the theft and +disposal of automobiles across State lines--that, to say, of a +widespread traffic in such property. + + +THE DARBY CASE + +The formal overruling of Hammer _v._ Dagenhart, however, did not occur +until 1941 when, in sustaining the Fair Labor Standards Act, a unanimous +Court, speaking by Justice Stone, said: "Hammer _v._ Dagenhart has not +been followed. The distinction on which the decision was rested that +Congressional power to prohibit interstate commerce is limited to +articles which in themselves have some harmful or deleterious +property--a distinction which was novel when made and unsupported by any +provision of the Constitution--has long since been abandoned. * * * The +thesis of the opinion that the motive of the prohibition or its effect +to control in some measure the use or production within the States of +the article thus excluded from the commerce can operate to deprive the +regulation of its constitutional authority has long since ceased to have +force. * * * And finally we have declared 'The authority of the Federal +Government over interstate commerce does not differ in extent or +character from that retained by the States over intrastate commerce.' +United States _v._ Rock Royal Co-operative, 307 U.S. 533, 569. The +conclusion is inescapable that Hammer _v._ Dagenhart, was a departure +from the principles which have prevailed in the interpretation of the +Commerce Clause both before and since the decision and that such +vitality, as a precedent, as it then had has long since been exhausted. +It should be and now is overruled."[519] And commenting in a recent case +on the Fair Labor Standards Act, Justice Burton, speaking for the Court +said: "The primary purpose of the act is not so much to regulate +interstate commerce as such, as it is, through the exercise of +legislative power, to prohibit the shipment of goods in interstate +commerce if they are produced under substandard labor conditions."[520] + + +CONGRESS AND THE FEDERAL SYSTEM + +In view of these developments the following dictum by Justice +Frankfurter, was no doubt, intended to be reassuring as to the future of +the Federal System: "The interpenetrations of modern society have not +wiped out State lines. It is not for us [the Court] to make inroads upon +our federal system either by indifference to its maintenance or +excessive regard for the unifying forces of modern technology. +Scholastic reasoning may prove that no activity is isolated within the +boundaries of a single State, but that cannot justify absorption of +legislative power by the United States over every activity."[521] While +this may be conceded, the unmistakable lesson of recent cases is that +the preservation of our Federal System depends today mainly upon +Congress. + + +The Commerce Clause as a Restraint on State Powers + + +DOCTRINAL BACKGROUND + +The grant of power to Congress over commerce, unlike that of power to +levy customs duties, the power to raise armies, and some others, is +unaccompanied by correlative restrictions on State power. This +circumstance does not, however, of itself signify that the States were +expected still to participate in the power thus granted Congress, +subject only to the operation of the supremacy clause. As Hamilton +points out in The Federalist, while some of the powers which are vested +in the National Government admit of their "concurrent" exercise by the +States, others are of their very nature "exclusive," and hence render +the notion of a like power in the States "contradictory and +repugnant."[522] As an example of the latter kind of power Hamilton +mentioned the power of Congress to pass a uniform naturalization law. +Was the same principle expected to apply to the power over foreign and +interstate commerce? + +Unquestionably one of the great advantages anticipated from the grant to +Congress of power over commerce was that State interferences with trade, +which had become a source of sharp discontent under the Articles of +Confederation, would be thereby brought to an end. As Webster stated in +his argument for appellant in Gibbons _v._ Ogden: "The prevailing motive +was to regulate commerce; to rescue it from the embarrassing and +destructive consequences, resulting from the legislation of so many +different States, and to place it under the protection of a uniform +law." In other words, the constitutional grant was itself a regulation +of commerce in the interest of uniformity. Justice Johnson's testimony +in his concurring opinion in the same case is to like effect: "There was +not a State in the Union, in which there did not, at that time, exist a +variety of commercial regulations; * * * By common consent, those laws +dropped lifeless from their statute books, for want of sustaining power +that had been relinquished to Congress";[523] and Madison's assertion, +late in life, that power had been granted Congress over interstate +commerce mainly as "a negative and preventive provision against +injustice among the States,"[524] carries a like implication. + +That, however, the commerce clause, unimplemented by Congressional +legislation, took from the States any and all power over foreign and +interstate commerce was by no means universally conceded; and Ogden's +attorneys directly challenged the idea. Moreover, as was pointed out on +both sides in Gibbons _v._ Ogden, legislation by Congress regulative of +any particular phase of commerce would still leave many other phases +unregulated and consequently raise the question whether the States were +entitled to fill the remaining gaps, if not by virtue of a "concurrent" +power over interstate and foreign commerce, then by virtue of "that +immense mass of legislation," as Marshall termed it, "which embraces +everything within the territory of a State, not surrendered to the +general government,"[525]--in a word, the "police power." + +The commerce clause does not, therefore, without more ado, settle the +question of what power is left to the States to adopt legislation +regulating foreign or interstate commerce in greater or less measure. To +be sure, in cases of flat conflict between an act or acts of Congress +regulative of such commerce and a State legislative act or acts, from +whatever State power ensuing, the act of Congress is today recognized, +and was recognized by Marshall, as enjoying an unquestionable +supremacy.[526] But suppose, _first_, that Congress has passed no act; +or _secondly_, that its legislation does not clearly cover the ground +which certain State legislation before the Court attempts to cover--what +rules then apply? Since Gibbons _v._ Ogden both of these situations +have confronted the Court, especially as regards interstate commerce, +hundreds of times, and in meeting them the Court has, first and last, +coined or given currency to numerous formulas, some of which still +guide, even when they do not govern, its judgment. + + +DOCTRINAL BACKGROUND; WEBSTER'S CONTRIBUTION + +The earliest, and the most successful, attempt to set forth a principle +capable of guiding the Court in adjusting the powers of the States to +unexercised power of Congress under the commerce clause was that which +was made by Daniel Webster in his argument in Gibbons _v._ Ogden, in the +following words: "He contended, * * *, that the people intended, in +establishing the Constitution, to transfer from the several States to a +general government, those high and important powers over commerce, +which, in their exercise, were to maintain a uniform and general system. +From the very nature of the case, these powers must be exclusive; that +is, the higher branches of commercial regulation must be exclusively +committed to a single hand. What is it that is to be regulated? Not the +commerce of the several States, respectively, but the commerce of the +United States. Henceforth, the commerce of the States was to be a unit; +and the system by which it was to exist and be governed, must +necessarily be complete, entire and uniform." At the same time Webster +conceded "that the words used in the Constitution, 'to regulate +commerce,' are so very general and extensive, that they might be +construed to cover a vast field of legislation, part of which has always +been occupied by State laws; and therefore, the words must have a +reasonable construction, and the power should be considered as +exclusively vested in Congress, so far, and so far only, as the nature +of the power requires."[527] + +Webster also dealt with the problem which arises when Congress has +exercised its power. The results of its act, he contended, must be +treated as a unit, so that when Congress had left subject matter within +its jurisdiction unregulated, it must be deemed to have done so of +design, and its omissions, or silences, accordingly be left undisturbed +by State action. Although Marshall, because he thought the New York act +creating the Livingston-Fulton monopoly to be in direct conflict with +the Enrolling and Licensing Act of 1793, was not compelled to pass on +either of Webster's theories, he indicated his sympathy with them.[528] + + +COOLEY _v._ BOARD OF PORT WARDENS + +Aside from Marshall's opinion in 1827 in Brown _v._ Maryland,[529] in +which the famous "original package" formula made its debut, the most +important utterance of the Court touching interpretation of the commerce +clause as a restriction on State legislative power is that for which +Cooley _v._ Board of Wardens of Port of Philadelphia,[530] decided in +1851, is usually cited. The question at issue was the validity of a +Pennsylvania pilotage act so far as it applied to vessels engaged in +foreign commerce and the coastwise trade. The Court, speaking through +Justice Curtis, sustained the act on the basis of a distinction between +those subjects of commerce which "imperatively demand a single uniform +rule" operating throughout the country and those which "as imperatively" +demand "that diversity which alone can meet the local necessities of +navigation," that is to say, of commerce. As to the former the Court +held Congress's power to be "exclusive"--as to the latter it held that +the States enjoyed a power of "concurrent legislation." + +While this formula obviously stems directly from Webster's argument in +Gibbons _v._ Ogden, it covers considerably less ground. Citation, +nevertheless, of the Cooley case throughout the next half century +eliminated the difference and brought the Curtis dictum abreast of +Webster's earlier argument. The doctrine consequently came to be +established, _first_, that Congress's power over interstate commerce is +"exclusive" as to those phases of it which require "uniform regulation"; +_second_, that outside this field, as plotted by the Court, the States +enjoyed a "concurrent" power of regulation, subject to Congress's +overriding power.[531] + + +JUDICIAL FORMULAS + +But meantime other formulas had emerged from the judicial smithy, +several of which are brought together into something like a doctrinal +system, in Justice Hughes' comprehensive opinion for the Court in the +Minnesota Rate Cases,[532] decided in 1913. "Direct" regulation of +foreign or interstate commerce by a State is here held to be out of the +question. At the same time, the States have their police and taxing +powers, and may use them as their own views of sound public policy may +dictate even though interstate commerce may be "incidentally" or +"indirectly" regulated, it being understood that such "incidental" or +"indirect" effects are always subject to Congressional disallowance. +"Our system of government," Justice Hughes reflects, "is a practical +adjustment by which the National authority as conferred by the +Constitution is maintained in its fall scope without unnecessary loss of +local efficiency."[533] + +In more concrete terms, the varied formulas which characterize this +branch of our Constitutional Law have been devised by the Court from +time to time in an endeavor to effect "a practical adjustment" between +two great interests, the maintenance of freedom of commerce except so +far as Congress may choose to restrain it, and the maintenance in the +States of efficient local governments. Thus, while formulas may serve to +steady and guide its judgment, the Court's real function in this area of +judicial review is essentially that of an arbitral or quasi-legislative +body. So much so is this the case that in 1940 three Justices joined in +an opinion in which they urged that the business of drawing the line +between the immunity of interstate commerce and the taxing power of the +States "should be left to the legislatures of the States and the +Congress," with the final remedy in the hands of the latter.[534] + + +State Taxing Power and Foreign Commerce + + +BROWN _v._ MARYLAND; THE ORIGINAL PACKAGE DOCTRINE + +The leading case under this heading is Brown _v._ Maryland,[535] decided +in 1827, the issue in which was the validity of a Maryland statute +requiring "all importers of foreign articles or commodities," +preparatory to selling the same, to take out a license. Holding this act +to be void under both article I, sec. 10, and the commerce clause, the +Court, speaking through Chief Justice Marshall, advanced the following +propositions: (1) that "commerce is intercourse; one of its most +ordinary ingredients is traffic"; (2) that the right to import includes +the right to sell; (3) that a tax on the sale of an article is a tax on +the article itself--a conception of the incidence of taxation which has +at times had important repercussions in other fields of Constitutional +Law; (4) that the taxing power of the State does not extend in any form +to imports from abroad so long as they remain "the property of the +importer, in his warehouse, in the original form or package" in which +they were imported--the famous "original package doctrine"; (5) that +once, however, the importer parts with his importations "or otherwise +mixes them with the general property of the State by breaking up his +packages," the law may treat them as part and parcel of such property; +(6) that even while in the original package imports are subject to the +incidental operation of police measures adopted by the State in good +faith for the protection of the public against apparent dangers. Lastly, +in determining whether a State law amounts to a regulation of commerce +the Court would, Marshall announced, be guided by "substance" and not by +"form"--a proposition which has many times opened the way to extensive +inquiries by the Court into the actualities both of commercial practice +and of State administration. + +The decision in Brown _v._ Maryland, but more especially the "original +package doctrine" there laid down, has been sometimes criticised as +going too far. It would have been sufficient, the critics contend, for +the Court to have held the Maryland act void on account of its obviously +discriminatory character; and they urge that original packages receiving +the protection of the State ought to be subject to nondiscriminatory +taxation by it. The criticism was partially anticipated by Marshall +himself in the apprehensions which he voiced that any concession to "the +great importing States" might be turned by them against the rest of the +country. Indeed, he is uncertain whether the original package doctrine +will prove sufficient for its purposes and accordingly offers it not as +a rule "universal in its application," but rather as a stop-gap +principle. History has proved, however, that in this he builded better +than he knew. For in the field of foreign commerce the original package +doctrine has never been disturbed, and it has scarcely been added to; +and so confined, it has never been surpassed by any later piece of +judicial legislation, whether in point of durability or in that of +definiteness and easy comprehensibility.[536] + + +State Taxation of the Subject Matter of Interstate Commerce + + +GENERAL CONSIDERATIONS + +The task of drawing the line between State power and the commercial +interest has proved a comparatively simple one in the field of foreign +commerce, the two things being in great part territorially distinct. +With "commerce among the States" it is very different. This is conducted +in the interior of the country, by persons and corporations that are +ordinarily engaged also in local business; its usual incidents are acts +which, if unconnected with commerce among the States, would fall within +the State's powers of police and taxation; while the things it deals in +and the instruments by which it is carried on comprise the most ordinary +subject matter of State power. In this field the Court has, +consequently, been unable to rely upon sweeping solutions. To the +contrary, its judgments have often been fluctuating and tentative, even +contradictory; and this is particularly the case as respects the +infringement of the State taxing power on interstate commerce. In the +words of Justice Frankfurter: "The power of the States to tax and the +limitations upon that power imposed by the Commerce Clause have +necessitated a long, continuous process of judicial adjustment. The need +for such adjustment is inherent in a Federal Government like ours, where +the same transaction has aspects that may concern the interests and +involve the authority of both the central government and the constituent +States. The history of this problem is spread over hundreds of volumes +of our Reports. To attempt to harmonize all that has been said in the +past would neither clarify what has gone before nor guide the future. +Suffice it to say that especially in this field opinions must be read in +the setting of the particular cases and as the product of preoccupation +with their special facts."[537] + + +THE STATE FREIGHT TAX CASE + +The great leading case dealing with the relation of the State's taxing +power to interstate commerce is that of the State Freight Tax,[538] +decided in 1873. The question before the Court was the validity of a +Pennsylvania statute, passed eight years earlier, which required every +company transporting freight within the State, with certain exceptions, +to pay a tax at specified rates on each ton of freight carried by it. +Overturning the act, the Court held: "(1) The transportation of freight, +or of the subjects of commerce, is a constituent part of commerce +itself; (2) a tax upon freight, transported from State to State, is a +regulation of commerce among the States; (3) whenever the subjects in +regard to which a power to regulate commerce is asserted are in their +nature National, or admit of one uniform system or plan of regulation, +they are exclusively within the regulating control of Congress; (4) +transportation of passengers or merchandise through a State, or from one +State to another, is of this nature; (5) hence a statute of a State +imposing a tax upon freight, taken up within the State and carried out +of it, or taken up without the State and brought within it, is repugnant +to that provision of the Constitution of the United States, which +ordains that 'Congress shall have power to regulate commerce with +foreign nations and among the several States, and with the Indian +tribes.'"[539] + + +GOODS IN TRANSIT + +States, therefore, may not tax property in transit in interstate +commerce. A nondiscriminatory tax, however, is permitted if the goods +have not yet started in interstate commerce, or have completed the +interstate transit even though still in the original package, unless +they are foreign imports in the original package; and States may also +impose a nondiscriminatory tax when there is a break in an interstate +transit, and the goods have not been restored to the current of +interstate commerce. Such is the law in brief. Two questions arise, +first, when do goods originating in a State pass from under its power to +tax; and, second, when do goods arriving from another State lose their +immunity? + +The leading case dealing with the first of these questions is Coe _v._ +Errol,[540] in which the matter at issue was the right of the town of +Errol, New Hampshire, to tax certain logs on their way to points in +Maine, while they lay in the river before the town or along its shore +awaiting the spring freshets and consequent rise of the river. As to the +logs in the river, which had come from Maine on their way to Lewiston in +the same State, but had been detained at Errol by low water, the Supreme +Court of New Hampshire itself ruled that the local tax did not apply, +the logs being still in transit. As to the logs which had been cut in +New Hampshire and lay on the shore or in tributaries of the river, both +courts were again in agreement that they were still subject to local +taxation, notwithstanding the intention of their owners to send them out +of the State. Said Justice Bradley: "* * * goods do not cease to be part +of the general mass of property in the State, subject, as such, to its +jurisdiction, and to taxation in the usual way, until they have been +shipped, or entered with a common carrier for transportation to another +State, or have been started upon such transportation in a continuous +route or journey."[541] + + +STATE TAXATION OF MANUFACTURING AND MINING + +Under the above rule, obviously, production is not interstate commerce +even though the thing produced is intended for the interstate market. +Thus a Pennsylvania _ad valorem_ tax on anthracite coal when prepared +and ready for shipment was held not to be an interference with +interstate commerce although applied to coal destined for a market in +other States;[542] and in Oliver Iron Company _v._ Lord[543] an +occupation tax on the mining of iron ore was upheld, although +substantially all of the ore was immediately and continuously loaded on +cars and shipped into other States. Said the Court: "Mining is not +interstate commerce, but, * * * subject to local regulation and +taxation. Its character in this regard is intrinsic, is not affected by +the intended use or disposal of the product, is not controlled by +contractual engagements, and persists even though the business be +conducted in close connection with interstate commerce."[544] Likewise +an annual privilege tax on the business of producing natural gas in the +State, computed on the value of the gas produced "as shown by the gross +proceeds derived from the sale thereof by the producer," was held +constitutional even though most of the gas passed into interstate +commerce in continuous movement from the wells.[545] And in Utah Power +and Light Co. _v._ Pfost[546] the generation of electricity in a State +was held to be distinguishable from its transmission over wires to +consumers in another State, and hence taxable by the former State. +Likewise, a State statute imposing a privilege tax on the production of +mechanical power for sale or use did not contravene the interstate +commerce clause although applied to an engine operating a compressor to +increase the pressure of natural gas and thereby permit it to be +transported to purchasers in other States.[547] Similarly, a tax so much +per pound on shrimp taken within the three-mile belt of the coast of the +taxing State was valid, since the taxable event, the taking of the +shrimp, occurred before they could be said to have entered the +interstate commerce stream.[548] + + +PRODUCTION FOR AN ESTABLISHED MARKET + +But while the production of goods intended for the interstate market is +taxable by the State where it takes place, their purchase for an +established market in another State is interstate commerce and as such +is neither regulatable nor taxable by the State of origin, provided at +any rate their trans-shipment is not unduly delayed.[549] Thus, oil +gathered into the pipe lines of a distributing company and intended for +the most part for customers outside the State, is in interstate commerce +from the moment it leaves the wells;[550] and a like result has been +reached as to natural gas.[551] "The typical and actual course of +events," says the Court, "marks the carriage of the greater part as +commerce among the States and theoretical possibilities may be left out +of account."[552] + + +REJECTION OF THE ORIGINAL PACKAGE CONCEPT IN INTERSTATE COMMERCE + +But the question also arises as to when goods entering a State from +another State become part of the mass of property of the former and +hence taxable by it? In Brown _v._ Maryland,[553] Chief Justice +Marshall, had remarked at the close of his opinion, "We suppose the +principles laid down in this case, apply equally to importations from a +sister State."[554] Forty-two years later, in Woodruff _v._ Parham,[555] +an effort was made to induce the Court, in reliance on this dictum, to +apply the original package doctrine against a Mobile, Alabama tax on +sales at auction, so far as it reached "imports" from sister States. +The Court refused the invitation; first on the ground that Marshall's +statement was _obiter_, the point not having been involved in Brown _v._ +Maryland; second, because usage contemporary with the Constitution and +of the Constitution itself confined the term "imports" as employed in +article I, section 10 to imports from abroad; third, because the tax in +question was nondiscriminatory. At the same time, nevertheless, +reference was made to the power of Congress to interpose at any time in +exercise of its power over commerce, "in such a manner as to prevent the +States from any oppressive interference with the free interchange of +commodities by the citizens of one State with those of another."[556] +The same result was reached a few years later in Brown _v._ +Houston,[557] where it was held that coal transported down the +Mississippi from Pennsylvania had been validly subjected by Louisiana to +a general _ad valorem_ property tax, having "come to its place of rest, +for final disposal or use," and hence become "a part of the general mass +of property in the State."[558] Again, however, a caveat was entered in +behalf of the power of Congress to impose a different rule affording "a +temporary exemption" of property transported from one State to another +from taxation by the latter.[559] + + +INSPECTION CHARGES + +Woodruff _v._ Parham and Brown _v._ Houston are still good law for the +most part.[560] Nevertheless, there is one respect in which imports from +sister States are treated as "imports" in the sense of the Constitution, +and that is in being exempt from "unreasonable" inspection charges.[561] +It is true, also, that in a series of cases involving sales of oil about +1920 the Court appeared to be contemplating reviving the original +package doctrine,[562] but these holdings were presently "qualified" in +a sweeping opinion by Chief Justice Taft, reviewing the cases.[563] But +taxation is one thing, prohibition another. In the field of the police +power, where its applicability was not so much as suggested in Brown +_v._ Maryland, the original package doctrine has been frequently invoked +by the Court against State legislation, and even today, perhaps retains +a spark of life.[564] + + +LOCAL SALES: PEDDLERS + +By the same token, local sales of goods brought into a State from +another State are subject to a nondiscriminatory exercise of its taxing +power. Such a tax, the Court has said, "has never been regarded as +imposing a direct burden upon interstate commerce and has no greater or +different effect upon that commerce than a general property tax to which +all those enjoying the protection of the State may be subjected"; and +this is true, even of goods immediately to be used in interstate +commerce.[565] The commerce clause, therefore, does not prohibit a State +from imposing special license taxes on merchants using profit sharing +coupons and trading stamps although the coupons may have been inserted +in retail packages by the manufacturer or shipper outside the State and +are redeemable outside the State, either by such manufacturer or +shipper, or by some other agency outside the State;[566] nor yet a +nondiscriminatory tax upon local peddling of goods and sales thereof by +peddlers even though the goods are foreign or interstate imports, since +the sale occurs after foreign or interstate commerce thereof has +ended.[567] And in Kehrer _v._ Stewart[568] it was held that a State tax +upon resident managing agents of nonresident meatpacking houses did not +conflict with the commerce clause, regardless of the fact that the +greater portion of the business was interstate in character, the tax +having been construed by the highest court of the State as applying only +to the business of selling to local customers from the stock of +"original packages" shipped into the State without a previous sale or +contract to sell, and kept and held for sale in the ordinary course of +trade. Contrariwise, a tax on sales discriminatory in its incidence +against merchandise because of its origin in another State is _ipso +facto_ unconstitutional. The leading case is Welton _v._ Missouri,[569] +decided in 1876, in which a peddler's license tax confined to the sale +of goods manufactured outside the State was set aside. The doctrine of +Welton _v._ Missouri has been reiterated many times.[570] + + +STOPPAGE IN TRANSIT + +It also follows logically from Coe _v._ Errol,[571] and the cases +deriving from it, that a State may impose a nondiscriminatory tax when +there is a break in interstate transit, and the goods have not been +restored to the current of interstate commerce. The effect of an +interruption upon the continuity of an interstate movement depends upon +its causes and purposes. If the delay is due to the necessities of the +journey, as in the Coe case, where the logs were detained for a time +within the State by low water, they are deemed "in the course of +commercial transportation, and * * * clearly under the protection of the +Constitution."[572] Intention thus often enters into the determination +of the question whether goods from another State have come to rest +sufficiently to subject them to the local taxing power. In a typical +case the Court held that oil shipped from Pennsylvania and held in tanks +in Memphis, Tennessee for separation, distribution and reshipment, was +subject to the taxing power of the latter State.[573] The delay in +transportation resulting from these proceedings on the part of the +owners, the Court pointed out, was clearly designed for their own profit +and convenience and was not a necessary incident to the method of +transportation adopted, as had been the delay of the logs coming from +Maine in Coe _v._ Errol. The distinction is fundamental.[574] + +Applying this rule in more recent cases, the Court has upheld State +taxation: on the use and storage of gasoline brought into the State by a +railroad company and unloaded and stored there, to be used for its +interstate trains;[575] on gasoline imported and stored by an airplane +company and withdrawn to fill airplanes that use it in their interstate +travel;[576] on supplies brought into the State by an interstate +railroad company to be used in replacements, repairs and extensions, +and installed immediately upon arrival in the taxing State;[577] on +equipment brought into the State by a telephone and telegraph company +for operation, maintenance, and repair of its interstate system.[578] In +all these cases the Court applied the principle that "use and storage" +are subject to local taxation when "there is an interval after the +articles have reached the end of their interstate movement and before +their consumption in interstate operation has begun."[579] On the other +hand, in the absence of such an "interval," the Court declared invalid +State gasoline taxes imposed per gallon of gasoline imported by +interstate carriers as fuel for use in such vehicles, and used within +the State as well as in their interstate travel.[580] + + +THE DRUMMER CASES; ROBBINS _v._ SHELBY COUNTY TAXING DISTRICT + +But there is one situation in which goods introduced into one State from +another have until recent years enjoyed a special immunity from taxation +by the former, and that is when they were introduced in consequence of a +contract of sale. The leading case is Robbins _v._ Shelby County Taxing +District,[581] in which the Court, after a penetrating survey of +commercial practices, ruled that "the negotiation of sales of goods"--in +this instance by sample--"which are in another State, for the purpose of +introducing them into the State in which the negotiation is made, is +interstate commerce." In short, whereas in foreign commerce, importation +is succeeded by the right to sell in the original package, in interstate +commerce sale was succeeded by the right of importation, which continued +until the goods reached the hands of the purchaser. The benefits of this +holding were extended in a series of rulings in which it was held to +apply whether solicitation of orders was or was not made with +sample,[582] and to sales which were not, accurately speaking, +consummated until the actual delivery of the goods, which was attended +by local incidents. So, where a North Carolina agent of a Chicago firm +took orders for framed pictures, which were then sent to him packed +separately from the frames and then framed by him before delivery, the +rule laid down in the Robbins case was held to apply throughout, with +the result that North Carolina could tax or license no part of the +transaction described;[583] so also as to a sewing machine ordered by a +customer in North Carolina and sent to her C.O.D.;[584] so also as to +brooms sent in quantity for the fulfillment of a number of orders, and +subject to rejection by the purchaser if deemed by him not up to +sample.[585] Said Justice Holmes in the case last referred to: +"'Commerce among the States' is a practical conception not drawn from +the 'witty diversities' * * * of the law of sales. * * * The brooms were +specifically appropriated to specific contracts, in a practical, if not +in a technical, sense. Under such circumstances it is plain that, +wherever might have been the title, the transport of the brooms for the +purpose of fulfilling the contracts was protected commerce."[586] Nor +did it make any difference that the solicitor received his compensation +in form of down payment by the purchaser.[587] Moreover, sales under a +mail order business, with delivery taking place within the State to a +carrier for through shipment to another State to fill orders, was held +to be beyond the taxing power of the first State.[588] The fact that a +concern doing a strictly interstate business had goods on hand within +the State which were capable of being used in intrastate commerce, did +not, the Court declared, take the business out of the protection of the +commerce clause and allow the State to impose a privilege tax on such +concern. + + +LIMITATION OF THE ROBBINS CASE + +On the other hand, it was early held that the rule laid down in the +Robbins case did not prevent a State from taxing a resident citizen who +engaged in a general commission business, on the profits thereof, +although the business consisted "for the time being, wholly or partially +in negotiating sales between resident and nonresident merchants, of +goods situated in another State."[589] Also, it has been held that a +stamp tax on transfers of corporate stock, as applied to a sale between +two nonresidents, of the stock of foreign railway corporations, was not +an interference with interstate commerce.[590] Likewise, the business of +taking orders on commission for the purchase and sale of grain and +cotton for future delivery not necessitating interstate shipment was +ruled not to be interstate commerce, and as such exempt from taxation, +although deliveries were sometimes made by interstate shipment.[591] And +in Banker Bros. Co. _v._ Pennsylvania[592] it was held that a tax upon a +domestic corporation selling automobiles built by a foreign corporation +under an arrangement by which the latter agreed to build for and sell to +the former, for cash, at a specified price less than list price, was not +a tax on interstate transactions, there being nothing which connected +the ultimate buyer with the manufacturer but a warranty and the buyer's +agreement to pay the list price f.o.b. factory. Similarly, in Browning +_v._ Waycross[593] it was held that the business of erecting lightning +rods within the limits of a town by the agent of a nonresident +manufacturer on whose behalf such agent had solicited orders for the +sale of the rods, and from whom he had received them when shipped into +the State, was validly subjected to a municipal license tax. "It was +not," said the Court, "within the power of the parties by the form of +their contract to convert what was exclusively a local business, * * *, +into an interstate commerce business * * *"[594] Also, a municipal +license tax upon persons engaged in the business of buying or selling +cotton for themselves was found not to impose a forbidden burden upon +interstate commerce even though the cotton was purchased with a view to +ultimate shipment in some other State or country.[595] Nor was a +gallonage tax imposed by a State upon a distributor of liquid fuel +rendered repugnant to the commerce clause by the fact that the +distributor caused fuel sold to customers in the State to be shipped +from another State for delivery in tank cars--"deemed original +packages"--on purchaser's siding, as agreed. Said the Court: "The +contracts were executory and related to unascertained goods. * * * It +does not appear that when they were made appellant had any fuels of the +kinds covered, or that those to be delivered were then in existence. +There was no selection of goods by purchasers. Appellant was not +required by the contracts to obtain the fuels at Wilmington but was free +to effect performance by shipping from, any place within or without +Pennsylvania."[596] + + +THE ROBBINS CASE TODAY + +In the cases reviewed in the preceding paragraph protestants against +local taxation appealed, but unavailingly, to the Robbins case. So it +would seem that the generative powers of that prolific precedent had +begun to wane somewhat even before the Depression, an event which +rendered judicial reaction against it still more pronounced. Indeed, by +the Court's decision in McGoldrick _v._ Berwind-White Co.,[597] in 1940, +the authority of the entire line of cases descending from Robbins _v._ +Shelby County Taxing District was seriously impaired, for the time +being, while a second holding the same year seemed to reduce the +significance of the Robbins case itself to that of a reassertion of the +elementary rule against discrimination. "The commerce clause," Justice +Reed remarked sententiously, "forbids discrimination, whether forthright +or ingenious."[598] + + +DEPRESSION CASES: USE TAXES + +With a majority of the States on the verge of bankruptcy, extensive +recourse was had to sales taxes and, as an offset to these in favor of +the local economy, "use" taxes on competing products coming from sister +States. The basic decision sustaining the use tax, in this novel +employment of it, was Henneford _v._ Silas Mason Co.,[599] in which was +involved a State of Washington two per cent tax on the privilege of +using products coming from sister States. Excepted from the tax, on the +other hand, was any property the sole use of which had already been +subjected to an equal or greater tax, whether under the laws of +Washington or any other State. Stressing this provision in its opinion, +the Court said: "Equality is the theme that runs through all the +sections of the statute. * * * When the account is made up, the stranger +from afar is subject to no greater burdens as a consequence of ownership +than the dweller within the gates."[600] There being no actual +discrimination in favor of Washington products, the tax was valid. + + +DEPRESSION CASES: SALES TAXES + +A companion piece of the Henneford case in motivation, although it +occurred three years later, was McGoldrick _v._ Berwind-White Coal +Mining Company,[601] in which it was held that in the absence of +Congressional action, a New York City general sales tax was applicable +to sales of coal under contracts entered into within the municipality +and calling for delivery therein. Speaking for the majority, Justice +Stone declared any "distinction * * * between a tax laid on sales made, +without previous contract, after the merchandise had crossed the State +boundary, and sales, the contracts for which when made contemplate or +require the transportation of merchandise interstate to the taxing +State," to be "without the support of reason or authority";[602] and the +Robbins case was held to be "narrowly limited to fixed-sum license taxes +imposed on the business of soliciting order for the purchase of goods to +be shipped interstate, * * *"[603] Three Justices, speaking by Chief +Justice Hughes, dissented. Three companion cases decided the same day +were found to follow the Berwind-White pattern,[604] while a fourth was +held not to, on the ground that foreign commerce was involved.[605] For +the time being Robbins and family looked to be on the way out. + + +END OF THE DEPRESSION CASES + +Two cases, decided respectively in 1944 and 1946, signalized the end of +the Depression. In McLeod _v._ Dilworth Co.,[606] a divided Court ruled +that a sales tax could not be validly imposed by a State on sales to its +residents which were consummated by acceptance of orders in, and +shipment of goods from another State, in which title passed upon +delivery to the carrier. Said Justice Frankfurter for the majority: "A +sales tax and a use tax in many instances may bring about the same +result. But they are different in conception, are assessments upon +different transactions, * * * A sales tax is a tax on the freedom of +purchase * * * A use tax is a tax on the enjoyment of that which was +purchased. In view of the differences in the basis of these two taxes +and the differences in the relation of the taxing State to them, a tax +on an interstate sale like the one before us and unlike the tax on the +enjoyment of the goods sold, involves an assumption of power by a State +which the Commerce Clause was meant to end."[607] He also +"distinguished" the Berwind-White case--just as it had "distinguished" +the Robbins case--but not to the satisfaction of three of his brethren, +who found the decision to mark a retreat from the Berwind-White +case.[608] + +The second case, Nippert _v._ Richmond,[609] involved a municipal +ordinance imposing upon solicitors of orders for goods a license tax of +fifty dollars and one-half of one per cent of the gross earnings, +commissions, etc., for the preceding year in excess of $1,000. Speaking +for the same majority that had decided McLeod _v._ Dilworth Co., Justice +Rutledge found that "as the case has been made, the issue is +substantially whether the long line of so-called 'drummer cases' +beginning with Robbins _v._ Shelby County Taxing District, 120 U.S. 489, +shall be adhered to in result or shall now be overruled in the light of +what attorneys for the city say are recent trends requiring that +outcome."[610] The tax was held void, Berwind-White being not only +"distinguished" this time, but also "explained." "The drummer," said +Justice Rutledge, "is a figure representative of a by-gone day," citing +Wright, Hawkers and Walkers in Early America (1927). "But his modern +prototype persists under more euphonious appellations. So endure the +basic reasons which brought about his protection from the kind of local +favoritism the facts of this case typify."[611] + +A year later a Mississippi "privilege tax" laid upon each person +soliciting business for a laundry not licensed in the State, was set +aside directly on the authority of the Robbins case.[612] It would +appear that Robbins and his numerous progeny can once more claim full +constitutional status.[613] + + +TAXATION OF CARRIAGE OF PERSONS + +Whether the carriage of persons from one State to another was a branch +of interstate commerce was a question which the Court was able to +side-step in Gibbons _v._ Ogden.[614] A quarter of a century later, +however, an affirmative answer was suggested in the Passenger +Cases,[615] in which a State tax on each passenger arriving on a vessel +from a foreign country was set aside, though chiefly in reliance on +existing treaties and acts of Congress. But similar cases arising after +the Civil War were disposed of by direct recourse to the commerce +clause.[616] Meantime, in 1865, the newly admitted State of Nevada, in +an endeavor to prevent a threatened dissipation of its population, +levied a special tax on railroad and stage companies for every passenger +they carried out of the State, and in Crandall _v._ Nevada[617] this act +was held void on the general ground that the National Government had at +all times the right to require the services of its citizens at the seat +of government and they the correlative right to visit the seat of +government, rights which, if the Nevada tax was valid, were at the mercy +of any State, the power to tax being without limit. Reference was also +made to the right of the government to transport troops at all times by +the most expeditious method. Two of the Justices, however, rejected this +line of reasoning and held the act to be void under the commerce +clause.[618] But it was not until 1885 that the Court, in deciding +Gloucester Ferry Company _v._ Pennsylvania,[619] stated flatly that +"Commerce among the States * * * includes the transportation of +persons,"[620] and hence was not taxable by the States, a proposition +which is still good law.[621] Four years earlier it had been held that +the transmission of telegraph messages from one State to another, being +interstate commerce, was something that the State of origin could not +tax.[622] + + +State Taxation of the Interstate Commerce Privilege: Foreign +Corporations + + +DOCTRINAL HISTORY + +In the famous case of Paul _v._ Virginia,[623] decided in 1869, it was +held that a corporation chartered by one State could enter other States +only with their assent, which might "be granted upon such terms and +conditions as those States may think proper to impose";[624] but along +with this holding went the statement that "the power conferred upon +Congress to regulate commerce includes as well commerce carried on by +corporations as commerce carried on by individuals."[625] And in the +State Freight Tax Case it is implied that no State can regulate or +restrict the right of a "foreign" corporation--one chartered by another +State--to carry on interstate commerce within its borders,[626] an +implication which soon became explicit. In Leloup _v._ Port of +Mobile,[627] decided in 1888, the Court had before it a license tax on a +telegraph company which was engaged in both domestic and interstate +business. The general nature of the exaction did not suffice to save it. +Said the Court: "The question is squarely presented to us, * * *, +whether a State, as a condition of doing business within its +jurisdiction, may exact a license tax from a telegraph company, a large +part of whose business is the transmission of messages from one State to +another and between the United States and foreign countries, and which +is invested with the powers and privileges conferred by the act of +Congress passed July 24, 1866, and other acts incorporated in Title LXV +of the Revised Statutes? Can a State prohibit such a company from doing +such a business within its jurisdiction, unless it will pay a tax and +procure a license for the privilege? If it can, it can exclude such +companies, and prohibit the transaction of such business altogether. We +are not prepared to say that this can be done."[628] + +In Crutcher _v._ Kentucky[629] a like result was reached, without +assistance from an act of Congress, with respect to a Kentucky statute +which provided that the agent of an express company not incorporated by +the laws of that State should not carry on business there without first +obtaining a license from the State, and that, preliminary thereto, he +must satisfy the auditor of the State that the company he represented +was possessed of an actual capital of at least $150,000. The act was +held to be a regulation of interstate commerce so far as applied to a +corporation of another State in that business. "To carry on interstate +commerce," said the Court, "is not a franchise or a privilege granted by +the State; it is a right which every citizen of the United States is +entitled to exercise under the Constitution and laws of the United +States; and the accession of mere corporate facilities, as a matter of +convenience in carrying on their business, cannot have the effect of +depriving them of such right, unless Congress should see fit to +interpose some contrary regulation on the subject."[630] + + +LICENSE TAXES + +The demand for what in effect is a license is, of course, capable of +assuming various guises. In Ozark Pipe Line _v._ Monier[631] an annual +franchise tax on foreign corporations equal to one-tenth of one per cent +of the par value of their capital stock and surplus employed in business +in the State was found to be a privilege tax, and hence one which could +not be exacted of a foreign corporation whose business in the taxing +State consisted exclusively of the operation of a pipe line for +transporting petroleum through the State in interstate commerce, and of +activities the sole purpose of which was the furtherance of its +interstate business. Likewise a Massachusetts tax based on "the +corporate surplus" of a foreign corporation having only an office in the +State for the transaction of interstate business was held in Alpha +Portland Cement Co. _v._ Massachusetts to be virtually an attempt to +license interstate commerce.[632] In the same category of +unconstitutional taxation of the interstate commerce privilege, the +Court has also included the following: a State "franchise" tax on a +foreign corporation, whose sole business in the State consisted in +landing, storing and selling in the original package goods imported by +it from abroad, the tax being imposed annually on the doing of such +business and measured by the value of the goods on hand;[633] a State +privilege or occupation tax on every corporation engaged in the business +of operating and maintaining telephone lines and furnishing telephone +service in the State, of so much for each telephonic instrument +controlled and operated by it, as applied to a company furnishing both +interstate and intrastate service, and employing the same telephones, +wires, etc., in both as integrated parts of its system;[634] a State +occupation tax measured by the entire gross receipts of the business of +a radio broadcasting station, licensed by the Federal Communications +Commission, and engaged in broadcasting advertising "programs" for +customers for hire to listeners within and beyond the State, since it +did not "appear that any of the taxed income ... [was] allocable to +interstate commerce";[635] a State occupation tax on the business of +loading and unloading vessels engaged in interstate and foreign +commerce;[636] an Indiana income tax imposed on the gross receipts from +commerce inasmuch as the tax reached indiscriminately and without +apportionment the gross income from both interstate commerce and +intrastate activities;[637] an Arkansas statute making entry into the +State of motor vehicles carrying more than twenty gallons of gasoline +conditional on the payment of an excise on the excess.[638] + + +DOCTRINE OF WESTERN UNION TELEGRAPH _v._ KANSAS EX REL. COLEMAN + +One of the most striking concessions ever made by the Court to the +interstate commercial interest at the expense of the State's taxing +power was that which appeared originally in 1910, in Western Union +Telegraph. Co. _v._ Kansas ex rel. Coleman,[639] which involved a +percentage tax upon the total capitalization of all foreign corporations +doing or seeking to do a local business in the State. The Court +pronounced the tax, as to the Western Union, a burden upon the company's +interstate business and upon its property located and used outside the +State, and hence void under both the commerce clause and the due process +of law clause of the Fourteenth Amendment. The decision was +substantially aided by the fact that the company had been doing a +general telegraphic business within the State for more than fifty years +without having been subjected to such an exaction.[640] + + +SPREAD OF THE DOCTRINE + +The doctrine of the case, however, soon cast off these initial +limitations. In Looney _v._ Crane Company[641] a similar tax by the +State of Texas was disallowed as to an Illinois corporation, engaged in +its home State in the manufacture of hardware, but maintaining in Texas +depots and warehouses from which orders were filled and sales made, +likewise, in International Paper Company _v._ Massachusetts,[642] it was +clearly stated that "the immunity of interstate commerce from State +taxation" is not confined to what is done by carriers in such commerce, +but "is universal and covers every class of ... [interstate] commerce, +including that conducted by merchants and trading companies." On the +same occasion the general proposition was laid down that "the power of a +State to regulate the transaction of a local business within its +borders by a foreign corporation, ... is not unrestricted or absolute, +but must be exerted in subordination to the limitations which the +Constitution places on State action."[643] + + +STATUS OF THE DOCTRINE TODAY + +The precise standing of this doctrine is, nevertheless, seriously +clouded by certain more recent holdings. In Sprout _v._ South Bend,[644] +decided in 1928, the doctrine was still applied, to disallow a license +tax on concerns operating a bus interstate. Pointing to the fact that +the ordinance made no distinction between busses engaged exclusively +interstate and those engaged intrastate or both interstate and +intrastate, the Court said: "In order that the fee or tax shall be +valid, it must appear that it is imposed solely on account of the +intrastate business; that the amount exacted is not increased because of +the interstate business done; that one engaged exclusively in interstate +commerce would not be subject to the imposition; and that the person +taxed could discontinue the intrastate business without withdrawing also +from the interstate business."[645] Likewise, in Cooney _v._ Mountain +States Telephone and Telegraph Co., the Court asserted that to sustain a +State occupation tax on one whose business is both interstate and +intrastate, "it must appear * * *, and that the one [who is] taxed could +discontinue the intrastate business without [also] withdrawing from the +interstate business."[646] A year later, nevertheless, Justice Brandeis, +speaking for the Court in Pacific Telephone and Telegraph Co. _v._ Tax +Commission,[647] asserted flatly: "No decision of this Court lends +support to the proposition that an occupation tax upon local business, +otherwise valid, must be held void merely because the local and +interstate branches are for some reason inseparable."[648] An occupation +tax, like other taxes and expenses, lessens the benefit derived by +interstate commerce from the joint operation with it of the intrastate +business of the carrier; but it is not an undue burden on interstate +commerce where, as in this case, the advantage to the carrier, and to +the interstate commerce, of continuing the intrastate business is +greatly in excess of the tax. And subsequent holdings in cases involving +foreign corporations doing a mixed business, comprising both interstate +and intrastate elements, have tended on the whole to restore the rule +stated in Paul _v._ Virginia[649] shortly after the Civil War, that the +Constitution does not confer upon a foreign corporation the right to +engage in local business in a State without its assent, which it may +give on such terms as it chooses.[650] + + +State Taxation of Property Engaged in, and of the Proceeds From, +Interstate Commerce + + +GENERAL ISSUE + +In this area of Constitutional Law the principle asserted in the State +Freight Tax Case,[651] that a State may not tax interstate commerce, is +confronted with the principle that a State may tax all purely domestic +business within its borders and all property "within its jurisdiction." +Inasmuch as most large concerns prosecute both an interstate and a +domestic business, while the instrumentalities of interstate commerce +and the pecuniary returns from such commerce are ordinarily property +within the jurisdiction of some State or other, the task before the +Court in drawing the line between the immunity claimed by interstate +business on the one hand and the prerogatives claimed by local power on +the other has at times involved it in self-contradiction, as successive +developments have brought into prominence novel aspects of its complex +problem or have altered the perspective in which the interests competing +for its protection have appeared. In this field words of the late +Justice Rutledge, spoken in 1946, are especially applicable: "For +cleanly as the commerce clause has worked affirmatively on the whole, +its implied negative operation on State power has been uneven, at times +highly variable. * * * Into what is thus left open for inference to +fill, divergent ideas of meaning may be read much more readily than into +what has been made explicit by affirmation. That possibility is +broadened immeasurably when not logic alone, but large choices of +policy, affected in this instance by evolving experience of federalism, +control in giving content to the implied negation."[652] + + +DEVELOPMENT OF THE APPORTIONMENT RULE + +At the outset the Court appears to have thought that it could solve all +difficulties by the simple device of falling back on Marshall's opinion +in Brown _v._ Maryland;[653] and on the same day that it set aside +Pennsylvania's freight tax by appeal to that transcendent precedent, it +sustained, by reference to the same authority, a Pennsylvania tax on the +gross receipts of all railroads chartered by it, the theory being that +such receipts had, by tax time, become "part of the mass of property of +the State."[654] This precedent stood fourteen years, being at last +superseded by a ruling in which substantially the same tax was held void +as to a Pennsylvania chartered steamship company.[655] A year later the +Court sustained Massachusetts in levying a tax on Western Union, a New +York corporation, on account of property owned and used by it in the +State, taking as the basis of the assessment such proportion of the +value of its capital stock as the length of its lines within the State +bore to their entire length throughout the country.[656] The tax was +characterized by the Court as an attempt by Massachusetts "to ascertain +the just amount which any corporation engaged in business within its +limits shall pay as a contribution to the support of its government upon +the amount and value of the capital so employed by it therein."[657] And +drawing on certain decisions in which it had sought to limit the +principle of tax exemption as applied in the case of railroads chartered +by the United States, it expressed concern that "the necessary powers of +the States" should not be destroyed or "their efficient exercise" be +prevented.[658] Three years later Pennsylvania, still in quest of +revenue, was sustained in applying the Massachusetts idea to Pullman's +Palace Car Company, a "foreign" corporation.[659] Pointing to the fact +that the company had at all times substantially the same number of cars +within the State and continuously and constantly used there a portion of +its property, the Court commended the State for taking "as a basis of +assessment such proportion of the capital stock of the company as the +number of miles over which it ran cars within the State bore to the +whole number of miles, in that and other States, * * *" This, said the +Court, was "a just and equitable method of assessment;" one which, "if +it were adopted by all the States through which these cars ran, the +company would be assessed upon the whole value of its capital stock, and +no more."[660] + + +THE UNIT RULE + +And pursuing the same course of thought, the Court, in Adams Express +Company _v._ Ohio,[661] decided in 1897, sustained that State in taxing +property worth less than $70,000.00 at a valuation of more than half a +million, on the ground that the latter figure did not exceed, in +relation to the total capital value of the company, the proportion borne +by the railway mileage which the company covered in Ohio to the total +mileage which it covered in all States. To the objection that "the +intangible values" reached by the tax were derived from interstate +commerce, the Court replied with the "cardinal rule * * * that whatever +property is worth for purposes of income and sale it is also worth for +purposes of taxation,"[662] which obviously does not meet the issue. +What the case indubitably establishes is that a State may tax property +within its limits "as part of a going concern" and hence "at its value +as it is in its organic relations," although those relations constitute +interstate commerce.[663] In short, values created by interstate +commerce _are_ taxed. + +Thus emerged the concept of an "apportioned" tax, or as it is called +when applied to the problem of property valuation, the "unit rule," +which till 1938 afforded the Court its chief reliance in the field of +Constitutional Law now under review. The theory underlying the concept +appears to be that it is always possible for a State to devise a formula +whereby it may assign to the property employed in interstate commerce +within its limits, or to the proceeds from such commerce, a value which +it may tax or by which it may "measure" a tax, without +unconstitutionally burdening or interfering with interstate commerce, +while at the same time exacting from it a fair return for the protection +which the State gives it. The question in each case is, of course, +whether the State has guessed right. + + +APPORTIONED PROPERTY TAXES + +In reliance on the apportionment concept the Court has at various times +sustained, in the case of a sleeping car company, as we have seen, a +valuation based on the ratio of the miles of track over which the +company runs within the State to the whole track mileage over which it +runs;[664] in the case of a railroad company, a valuation based on the +ratio of its mileage within the State to its total mileage;[665] in the +case of a telegraph company, a valuation based upon the ratio of its +length of line within the State to its total length;[666] in the case of +an express company, as we have just seen, a valuation based upon the +ratio of miles covered by it in the State to the mileage covered by it +in all States.[667] Also, a tax has been upheld as to a railroad line +whose principal business was hauling ore from mines in the taxing State +to terminal docks outside the State, where the line and the docks were +treated by the railway as a unit, the charge for the dock service being +absorbed in the charge per ton transported; and where the evidence did +not show that the mileage value of the part of the line outside of the +taxing State, with the docks included, was greater than the mileage +value of part within it.[668] Nor does the commerce clause preclude the +assessment of an interstate railway within a State by taking such part +of the value of the railroad's entire system, less the value of its +localized property, such as terminal buildings, shops and nonoperating +real estate, as is represented by the ratio which the railroad's mileage +within the State bears to its total mileage.[669] To the objection that +the mileage formula was inapplicable in this instance because of the +disparity of the revenue-producing capacity between the lines in and out +of the State, the Court answered that mathematical exactitude in making +an apportionment had never been a constitutional requirement. +"Wherever," it explained, "the State's taxing authorities have been held +to have intruded upon the protected domain of interstate commerce in +their use of a mileage formula, the special circumstances of the +particular situation, in the view which this Court took of them, +precluded a defensible utilization of the mileage basis."[670] The +principle of apportionment is, moreover, applicable to the intangible +property of a company engaged in both interstate and local commerce, as +well as to its tangible property.[671] + + +APPORTIONED GROSS RECEIPTS TAXES + +The first State to attempt to employ the apportionment device in order +to tax the gross receipts of companies engaged in interstate commerce +was Maine, in connection with a so-called "franchise tax," which was +levied on such proportion of the revenues of railroads operating in the +State as their mileage there bore to their total mileage. In Maine _v._ +Grand Trunk Railway Company,[672] a sharply divided Court upheld the tax +on the basis of its designation, giving scant attention to its +apportionment feature. Said Justice Field for the majority: "The +privilege of exercising the franchises of a corporation within a State +is generally one of value, and often of great value, and the subject of +earnest contention. It is natural, therefore, that the corporation +should be made to bear some proportion of the burdens of government. As +the granting of the privilege rests entirely in the discretion of the +State, whether the corporation be of domestic or foreign origin, it may +be conferred upon such conditions, pecuniary or otherwise, as the State +in its judgment may deem most conducive to its interests or +policy."[673] Four Justices, speaking by Justice Bradley, protested +forcefully that the decision directly contradicted a whole series of +decisions holding that the States are without power to tax interstate +commerce;[674] and seventeen years later another sharply divided Court +endorsed this contention when it overturned a Texas gross receipts tax +drawn on the lines of the earlier Maine statute.[675] The Maine tax, +however, the later Court suggested, had been in the nature of a +commutation tax in lieu of all taxes, which the Texas tax was not.[676] + + +FRANCHISE TAXES + +Today the term, franchise tax, possesses no specific saving quality of +its own. If the tax is merely a "just equivalent" of other taxes it is +valid however calculated.[677] Conversely, when such taxes are in +addition to other taxes then their fate will be determined by the same +rules as would apply had the label been omitted.[678] More precisely, +the rule governing this species of tax is ordinarily the apportionment +concept, and if the basis of apportionment adopted by the taxing State +is deemed by the Court to be a fair and reasonable one, the tax will be +sustained; otherwise, not. + +Thus a franchise tax may be measured by such proportion of the company's +net income as its capital invested in the taxing State and its business +carried on there bear to its total capital and business;[679] also by +the net income justly attributable to business done within the State +although a part of this was derived from foreign or interstate +commerce;[680] also by such proportion of the company's outstanding +capital stock, surplus and undivided profits, plus its long-term +obligations, as the gross receipts of its local business bear to its +total gross receipts from its entire business;[681] also by such +proportion of the company's total capital stock as the value of its +property in the taxing State and of the business done there bears to the +total value of its property and of its business.[682] On the other hand, +a "franchise" tax on the unapportioned gross receipts of railroad +companies engaged in interstate commerce, was, as we saw above, held +void;[683] as was also one which was measured by assigning to the +company's property in the State the same proportion of the total value +of its stocks and bonds as its mileage in the State bore to its total +mileage, no account being taken of the greater cost of construction of +the company's lines in other States or of its valuable terminals +elsewhere.[684] Other examples were given earlier.[685] + + +GROSS RECEIPTS TAXES, CLASSES OF + +The late Justice Rutledge classified gross receipts taxes which have +been sustained by the Court as follows: (a) those which were judged to +be fairly apportioned;[686] (b) those which were justified on a "local +incidence" theory, or the burden of which on interstate commerce was +held to be "remote";[687] (c) those which were justified as not inviting +the danger of multiple taxation of interstate commerce.[688] Gross +receipts taxes which, on the other hand, have been invalidated under +the commerce clause he placed in the following groups: (a) those which +were held not to be fairly apportioned;[689] (b) those which were not +apportioned at all and were bound to subject interstate commerce to the +risk of multiple taxation;[690] (c) those in which a discriminatory +element was detected in that they were directed exclusively at +transportation or communication;[691] (d) those in which there was no +discrimination but a possible multiple burden;[692] and, of course, any +tax which it disallows the Court is always free to stigmatize as an +unconstitutional attempt to tax or license the interstate commerce +privilege.[693] + + +"MULTIPLE TAXATION" TEST + +That the Depression--allowing for the customary judicial lag--greatly +altered the Court's conception of Congress's powers under the commerce +clause, was pointed out earlier.[694] To a less, but appreciable degree, +it also affected its views as to the allowable scope under the clause of +the taxing power of the States, a majority of which were on the verge +of bankruptcy. The more evident proofs of this fact occurred in relation +to State taxation of the subject matter of interstate commerce, as is +indicated above.[695] But a certain revision of doctrine, apparently +temporary in nature, however, is to be seen in the connection with State +taxes impinging on property engaged in interstate commerce and the +revenues from such commerce, the principal manifestation of which is to +be seen in the emphasis which was for a time given the "multiple +taxation" test. Thus in his opinion in the Western Live Stock Case,[696] +cited above, Justice Stone seems to be engaged in an endeavor to erect +this into an almost exclusive test of the validity, or invalidity of +State taxation affecting interstate commerce. "It was not," he there +remarks, "the purpose of the commerce clause to relieve those engaged in +interstate commerce from their just share of State tax burden even +though it increases the cost of doing the business. 'Even interstate +business must pay its way,' * * * and the bare fact that one is carrying +on interstate commerce does not relieve him from many forms of State +taxation which add to the cost of his business."[697] Then citing cases, +he continues: "All of these taxes in one way or another add to the +expense of carrying on interstate commerce, and in that sense burden it; +but they are not for that reason prohibited. On the other hand, local +taxes, measured by gross receipts from interstate commerce, have often +been pronounced unconstitutional. The vice characteristic of those which +have been held invalid is that they have placed on the commerce burdens +of such a nature as to be capable, in point of substance, of being +imposed * * * [or added to] with equal right by every State which the +commerce touches, merely because interstate commerce is being done, so +that without the protection of the commerce clause it would bear +cumulative burdens not imposed on local commerce. * * * The +multiplication of State taxes measured by the gross receipts from +interstate transactions would spell the destruction of interstate +commerce and renew the barriers to interstate trade which it was the +object of the commerce clause to remove," citing cases, most of which +have been discussed above.[698] And speaking again for the Court eleven +months later, in Gwin, White and Prince _v._ Henneford,[699] Justice +Stone applied the test to invalidate a State of Washington tax. "Such a +tax," said he, "at least when not apportioned to the activities carried +on within the State, * * * would, if sustained, expose it [interstate +commerce] to multiple tax burdens, each measured by the entire amount of +the commerce, to which local commerce is not subject." The tax thus +discriminated against interstate commerce; and threatened to +"reestablish the barriers to interstate trade which it was the object of +the commerce clause to remove."[700] + +The adoption by the Court of the multiple taxation principle as an +exclusive test of State taxing power in relation to interstate commerce +would have enlarged the former; but this was not the sole reason for its +temporary vogue with the Court, or at least a section of it. Discontent +with the difficulties and uncertainties of the apportionment rule also +played a great part. Thus in his concurring opinion in the Gwin case, +Justice Butler, speaking for himself and Justice McReynolds after +showing the instability of decisions in this area of Constitutional Law, +contend that "the problems of conjectured 'multiple taxation' or +'apportionment'" should be left to Congress,[701] a suggestion which +Justice Black, speaking also for Justices Frankfurter and Douglas a year +later, made the basis of a dissenting opinion,[702] from the doctrines +of which, however, Justice Frankfurter appears since to have +recanted.[703] + + +RECENT CASES + +In Freedman _v._ Hewit,[704] decided in 1946, the Court held void as an +"unconstitutional burden on interstate commerce" an Indiana gross income +tax of the proceeds from certain securities sent outside the State to be +sold. Justice Frankfurter spoke for the Court; Justice Rutledge +concurred in an opinion deploring the majority's failure to employ the +multiple taxation test;[705] three Justices dissented.[706] In Joseph +_v._ Carter and Weekes Stevedoring Co.,[707] also decided in 1947, the +Court, reaffirming an earlier ruling, held void the application of a +Washington gross receipts tax to the receipts of a stevedoring company +from loading and unloading vessels employed in interstate and foreign +commerce, or to the privilege of engaging in such business measured by +their receipts. Said Justice Reed for the Court: "Although State laws do +not discriminate against interstate commerce or * * * subject it to the +cumulative burden of multiple levies, those laws may be unconstitutional +because they burden or interfere with [interstate] commerce."[708] This +time Justice Rutledge was among the dissenters so far as interstate +commerce was concerned.[709] In Central Greyhound Lines, Inc. _v._ +Mealey,[710] decided in 1948, five members of the Court ruled that a New +York tax on the gross income of public utilities doing business in the +State could not be constitutionally imposed on a carrier's unapportioned +receipts from continuous transportation between termini in the State +over a route a material part of which passes through other States. +Justice Frankfurter, speaking for the Court, held, however, that the +tax was sustainable as to receipts apportioned as to the mileage within +the State.[711] Justice Rutledge concurred without opinion. Justice +Murphy, for himself and Justices Black and Douglas, thought the tax was +on an essentially local activity and that the transportation through +other States was "a mere geographic incident," conceding at the same +time, that this view invited the other States involved to levy similar +taxes and exposed the company to the danger of multiple taxation. In +Memphis Natural Gas Co. _v._ Stone,[712] also of the 1948 grist, a +Mississippi franchise tax, measured by the value of capital invested or +employed in the State, was sustained in the case of a gas pipeline +company a portion of whose line passed through the State but which did +no local business there. Three Justices, speaking by Justice Reed, held +that the tax was on the intrastate activities of the company in +maintaining its facilities there, and was no more burdensome than the +concededly valid _ad valorem_ tax on the company's property in the +State. Justice Rutledge held that the tax was valid because it did not +discriminate against interstate commerce nor invite multiple taxation, +while Justice Black concurred without opinion. Four Justices, speaking +by Justice Frankfurter, contended that the pipeline already paid the _ad +valorem_ tax to which Justice Reed had adverted, and that the franchise +tax must therefore be regarded as being on the interstate commerce +privilege. + +This survey of recent cases leaves the impression that the Court is at +loose ends for intermediate guiding principles in this field of +Constitutional Law. The "leave it to Congress" formula is evidently in +the discard, although Justice Black's successive dissents without +opinion may indicate that he still thinks it sound. The multiple tax +test seems to be in an equally bad way, with both Chief Justice Stone +and Justice Rutledge in the grave. The concept of an apportioned tax +still has some vitality however, although just how much is difficult to +assess. Thus in Interstate Oil Pipe Line Co. _v._ Stone,[713] which was +decided in 1949, we find Justice Rutledge, speaking for himself and +Justices Black, Douglas, and Murphy, endorsing the view that Mississippi +was within her rights in imposing on a Delaware corporation, as a +condition of doing a local business, a "privilege" tax equal to two per +cent of its intrastate business even though the exaction amounted to "a +'direct' tax on the 'privilege' of engaging in interstate commerce," an +assertion which was countered by one just as positive, and also endorsed +by four Justices, that no State may "levy privilege, excise or franchise +taxes on a foreign corporation for the privilege of carrying on or the +actual doing of solely interstate business," even though the tax is not +discriminatory and is fairly apportioned between the corporation's +intrastate and interstate business. The tax in controversy was sustained +by the vote of the ninth Justice, who construed it as being levied only +on the privilege of engaging in intrastate commerce, a conclusion which +obviously ignores the question of the tax's actual impact on interstate +commerce, the precise question on which many previous decisions have +turned.[714] + + +TAXES ON NET INCOME + +The leading case under this caption is United States Glue Co. _v._ Oak +Creek[715] where it was held that the State of Wisconsin, in laying a +general income tax upon the gains and profits of a domestic corporation, +was entitled to include in the computation the net income derived from +transportations in interstate commerce. Pointing out the difference +between such a tax and one on gross receipts, the Court said the latter +"affects each transaction in proportion to its magnitude and +irrespective of whether it is profitable or otherwise. Conceivably it +may be sufficient to make the difference between profit and loss, or to +so diminish the profit as to impede or discourage the conduct of the +commerce. A tax upon the net profits has not the same deterrent effect, +since it does not arise at all unless a gain is shown over and above +expenses and losses, and the tax cannot be heavy unless the profits are +large." Such a tax "constitutes one of the ordinary and general burdens +of government, from which persons and corporations otherwise subject to +the jurisdiction of the States are not exempted * * * because they +happen to be engaged in commerce among the States."[716] + +Adhering to this precedent, the Court has held that a tax upon the net +income of a nonresident from business carried on by him in the State is +not a burden on interstate commerce merely because the products of the +business are shipped out of the State;[717] also that a tax which is +levied upon the proportion of the net profits of a foreign corporation +earned by operations conducted within the taxing State is valid, if the +method of allocation employed be not arbitrary or unreasonable.[718] +Where, however, the method of allocating the net income of a foreign +corporation attributed to the State an amount of income out of all +proportion to the business there transacted by the corporation, it was +held void.[719] + +Also, a State may impose a tax upon the net income of property, as +distinguished from the net income of him who owns or operates it, +although the property is used in interstate commerce;[720] also a +"franchise tax" measured by the net income justly attributable to +business done by corporations within the State, although part of the +income so attributable comes from interstate and foreign commerce;[721] +also a tax on corporate net earnings derived from business done wholly +within the State may be applied to the income of a foreign pipeline +corporation which is commercially domiciled there and which pipes +natural gas into that State for delivery to, and sale by, a local +distributing corporation to local consumers.[722] Indeed it was asserted +that even if the taxpayer's business were wholly interstate commerce, +such a nondiscriminatory tax upon its net income "is not prohibited by +the commerce clause," there being no showing that the income was not on +net earnings partly attributable to the taxing State;[723] but a more +recent holding appears to contradict this position.[724] + + +MISCELLANEOUS TAXES AFFECTING INTERSTATE COMMERCE + + +Vessels + +In Gloucester Ferry Company _v._ Pennsylvania,[725] decided in 1885, the +Court held inapplicable to a New Jersey corporation which was engaged +solely in transporting passengers across the Delaware River and entered +Pennsylvania only to discharge and receive passengers and freight, a +statute which taxed the capital stock of all corporations doing business +within the State. Such transactions, the Court held, were interstate +commerce; nor were the company's vessels subject to taxation by +Pennsylvania, their taxing _situs_ being in the company's home State. +The only property held by the company in Pennsylvania was the lease +there of a wharf which could be taxed by the State according to its +appraised value; and the State could also levy reasonable charges by way +of tolls for the use of such facilities as it might itself furnish for +the carrying on of commerce. This ruling rested on two earlier ones. In +1855, the Court had held that vessels registered in New York, owned by a +New York corporation, and plying between New York City and San Francisco +had the former city for their home port, and were not taxable by +California where they remained no longer than necessary to discharge +passengers and freight;[726] and in 1877 it had sustained Keokuk, Iowa +in charging tolls for the use by vessels plying the Mississippi of +wharves owned by the municipality, said tolls being reasonable and not +discriminatory as between interstate and intrastate commerce.[727] Today +it is still the general rule as to vessels plying between ports of +different States and engaged in the coastwise trade, that the domicile +of the owner is deemed to be the _situs_ of the vessel for purposes of +taxation,[728] unless the vessel has acquired actual _situs_ in another +State, by continuous employment there, in which event it may be taxed +there.[729] Recently, however, this long standing rule has been amended +by the addition to it of the apportionment rule as developed in the +Pullman case. This occurred in Ott _v._ Mississippi Barge Line Co.,[730] +decided in 1949, in which the Court sustained Louisiana in levying an +_ad valorem_ tax on vessels owned by an interstate carrier and used +within the State, the assessment for the tax being based on the ratio +between the number of miles of the carrier's lines within the State and +its total mileage. + + +Airplanes + +When, however, it was confronted by an attempt on the part of the State +of Minnesota to impose a personal property tax on the entire air fleet +owned and operated by a company in interstate commerce although only a +part of it was in the State on tax day, the Court found itself unable to +recruit a majority for any of the above formulas.[731] Pointing to the +fact that the company was a Minnesota corporation and that its principal +place of business was located in the State, Justice Frankfurter for +himself and three others wished to stress the prerogatives of the State +of domicile.[732] Justice Black, concurring in this view, added the +caveat that the taxing rights of other States should not be foreclosed +and made reference to his "leave it to Congress" notion.[733] Justice +Jackson, after speaking lightly of the apportionment theory,[734] joined +the affirming brethren on the ground that the record seemed "to +establish Minnesota as a 'home port' within the meaning of the old and +somewhat neglected but to me wise authorities cited," to wit, the Hays +case and those decided by analogy to it.[735] Four Justices, speaking by +Chief Justice Stone dissented, urging the Pullman Case[736] as an +applicable model and the fact that "the rationale found necessary to +support the present tax leaves other States free to impose comparable +taxes on the same property."[737] Evidently in this area of +Constitutional Law the Court is still much at sea or better perhaps, "up +in the air." + + +Motor Vehicles + +In the matter of motor vehicle taxation, on the other hand, durable and +consistent results have been achieved. This is because most such +taxation has been readily classifiable as the exaction of a toll for the +use of the State's highways, and the only question was whether the toll +was exorbitant. Moreover, such taxation is apt to be designed not merely +to raise revenue but to promote safety on the highways. In the leading +case, Hendrick _v._ Maryland,[738] decided in 1915, the Court took +cognizance of the fact that "the movement of motor vehicles over the +highways is attended by constant and serious dangers to the public, and +is also abnormally destructive to the ways themselves";[739] and on this +factual basis it has held that registration may be required by a State +for out-of-State vehicles operated therein,[740] or passing through from +one State to another;[741] that a special fee may be exacted for the +privilege of transporting motor vehicles on their own wheels in +caravans,[742] unless excessive;[743] that taxes may also be imposed on +carriers based on capacity[744] or mileage,[745] or as a flat fee;[746] +but that a privilege tax on motor busses operated exclusively in +interstate commerce, cannot be sustained unless it appears affirmatively +in some way, that it is levied only as compensation for use of the +highways in the State or to defray the expense of regulating motor +traffic.[747] Later decisions follow in the same general track,[748] the +most recent one being Capitol Greyhound Lines _v._ Brice,[749] in which +the Court, speaking by Justice Black passed upon a Maryland excise tax +on the fair market value of motor vehicles used in interstate commerce +as a condition to the issuance of certificates of title as prerequisites +to the registration and operation of motor vehicles in the State. +Because the tax was applied to vehicles used in both interstate and +intrastate commerce and the proceeds were used for road purposes and +because the Court considered the tax, though actually separate, to be an +adjunct of Maryland's mileage tax, it was able to find that the total +charge varied substantially with the mileage travelled, and on that +ground sustained it, being constant, it said with "rough approximation +rather than precision," no showing having been made that Maryland's +taxes considered as a whole exceeded "fair compensation for the +privilege of using State roads." Justice Frankfurter, who was joined by +Justice Jackson, dissented, and in so doing contributed as an Appendix +to his opinion a useful analysis of decisions involving State taxation +of motor vehicles engaged in interstate commerce, for highway +purposes.[750] + + +Public Utilities; Regulatory Charges + +"The principles governing decision [in this class of cases] have +repeatedly been announced and were not questioned below.[751] In the +exercise of its police power the State may provide for the supervision +and regulation of public utilities, such as railroads; may delegate the +duty to an officer or commission; and may exact the reasonable cost of +such supervision and regulation from the utilities concerned and +allocate the exaction amongst the members of the affected class without +violating the rule of equality imposed by the Fourteenth Amendment.[752] +The supervision and regulation of the local structures and activities of +a corporation engaged in interstate commerce, and the imposition of the +reasonable expense thereof upon such corporation, is not a burden upon, +or regulation of, interstate commerce in violation of the commerce +clause of the Constitution.[753] A law exhibiting the intent to impose a +compensatory fee for such a legitimate purpose is _prima facie_ +reasonable.[754] If the exaction be so unreasonable and disproportionate +to the service as to impugn the good faith of the law[755] it cannot +stand either under the commerce clause or the Fourteenth Amendment.[756] +The State is not bound to adjust the charge after the fact, but may, in +anticipation, fix what the legislature deems to be a fair fee for the +expected service, the presumption being that if, in practice, the sum +charged appears inordinate the legislative body will reduce it in the +light of experience.[757] Such a statute may, in spite of the +presumption of validity, show on its face that some part of the exaction +is to be used for a purpose other than the legitimate one of supervision +and regulation and may, for that reason, be void.[758] And a statute +fair upon its face may be shown to be void and unenforceable on account +of its actual operation.[759] If the exaction be clearly excessive it is +bad _in toto_ and the State cannot collect any part of it."[760] + + +Dominance of Congress + +The Supreme Court has never forgotten the lesson which was administered +it by the act of Congress of August 31, 1852,[761] which pronounced the +Wheeling Bridge "a lawful structure," thereby setting aside the Court's +determination to the contrary earlier the same year.[762] This lesson, +stated in the Court's own language thirty years later, was, "It is +Congress, and not the Judicial Department, to which the Constitution has +given the power to regulate commerce * * *."[763] A parallel to the +Wheeling Bridge episode occurred in 1945. + + +THE McCARRAN ACT: REGULATION OF INSURANCE + +Less than a year after the ruling in United States _v._ South-Eastern +Underwriters Association[764] that insurance transactions across State +lines constituted interstate commerce, thereby logically establishing +their immunity from discriminatory State taxation, Congress passed the +McCarran Act[765] authorizing State regulation and taxation of the +insurance business; and in Prudential Insurance Co. _v._ Benjamin,[766] +a statute of South Carolina which imposed on foreign insurance +companies, as a condition of their doing business in the State, an +annual tax of three per cent of premiums from business done in South +Carolina, while imposing no similar tax on local corporations, was +sustained. "Obviously," said Justice Rutledge for the Court, "Congress' +purpose was broadly to give support to the existing and future State +systems for regulating and taxing the business of insurance. This was +done in two ways. One was by removing obstructions which might be +thought to flow from its own power, whether dormant or exercised, +except as otherwise expressly provided in the Act itself or in future +legislation. The other was by declaring expressly and affirmatively that +continued State regulation and taxation of this business is in the +public interest and that the business and all who engage in it 'shall be +subject to' the laws of the several States in these respects. * * * The +power of Congress over commerce exercised entirely without reference to +coordinated action of the States is not restricted, except as the +Constitution expressly provides, by any limitation which forbids it to +discriminate against interstate commerce and in favor of local trade. +Its plenary scope enables Congress not only to promote but also to +prohibit interstate commerce, as it has done frequently and for a great +variety of reasons. * * * This broad authority Congress may exercise +alone, subject to those limitations, or in conjunction with coordinated +action by the States, in which case limitations imposed for the +preservation of their powers become inoperative and only those designed +to forbid action altogether by any power or combination of powers in our +governmental system remain effective."[767] The generality of this +language enforces again the sweeping nature of Congress's power to +prohibit interstate commerce.[768] + + +The Police Power and Foreign Commerce + + +ORIGIN OF POLICE POWER + +In Gibbons _v._ Ogden[769] cognizance was taken of the existence in the +States of an "immense mass" of legislative power to be used for the +protection of their welfare and the promotion of local interests.[770] +In Marshall's opinion in Brown _v._ Maryland[771] this power is +christened "the Police Power," a name which has since come to supply one +of the great titles of Constitutional Law. Counsel for Maryland had +argued that if the State was not permitted to _tax_ imports in the +original package before they left the hands of the importer, it would +also be unable to prevent their introduction into its midst although +they might comprise articles dangerous to the public health and safety. +"The power to direct the removal of gunpowder," the Chief Justice +answered, "is a branch of the police power, which unquestionably +remains, and ought to remain, with the States;" and the power to direct +"the removal or destruction of infectious or unsound articles" fell +within the same category.[772] + + +STATE CURBS ON ENTRY OF FOREIGNERS + +In short, the power to tax was one thing, the police power something +quite different. To concede the former would be to concede a power which +could be exercised to any extent and at the will of its possessor;[773] +to concede the latter was to concede a power which was limited of its +own inherent nature to certain necessary objectives. In New York _v._ +Miln,[774] however, the Court which came after Marshall inclined toward +the notion of a power of internal police which was also unlimited; and +on this ground upheld a New York statute which required masters of all +vessels arriving at the port of New York to make reports as to +passengers carried, and imposed fines for failure to do so. "We are of +opinion," the Court said, "that the act is not a regulation of commerce, +but of police." But, when New York, venturing a step further, passed an +act to authorize State health commissioners to collect certain fees from +captains arriving in ports of that State, and when Massachusetts enacted +a statute requiring captains of ships to give bonds as to immigrants +landed, both measures were pronounced void, either as conflicting with +treaties and laws of the United States or as invading the "exclusive" +power of Congress to regulate foreign commerce.[775] Following the Civil +War, indeed, New York _v._ Miln was flatly overruled, and a New York +statute similar to the one sustained in 1837 was pronounced void as +intruding upon Congress's powers.[776] Nothing was gained, said the +Court, by invoking "[the police power] * * *, it is clear, from the +nature of our complex form of government, that, whenever the statute of +a State invades the domain of legislation which belongs exclusively to +the Congress of the United States, it is void, no matter under what +class of powers it may fall, or how closely allied to powers conceded to +belong to the States."[777] At the same time a California statute +requiring a bond from shipowners as a condition precedent to their being +permitted to land persons whom a State commissioner of immigration might +choose to consider as coming within certain enumerated classes, e.g., +"debauched women," was also disallowed. Said the Court: "If the right of +the States to pass statutes to protect themselves in regard to the +criminal, the pauper, and the diseased foreigner, landing within their +borders, exists at all, it is limited to such laws as are absolutely +necessary for that purpose; and this mere police regulation cannot +extend so far as to prevent or obstruct other classes of persons from +the right to hold personal and commercial intercourse with the people of +the United States."[778] + + +STATE QUARANTINE LAWS + +On the other hand, it has been repeatedly held that the States may, in +the absence of legislation by Congress, enact quarantine laws, even +though in effect they thereby regulate foreign commerce; and furthermore +that such legislation may be, in the interest of effective enforcement, +applied beyond the mere exclusion of diseased persons. Thus in the +leading case the State of Louisiana was sustained in authorizing its +Board of Health in its discretion to prohibit the introduction into any +infected portion of the State of "persons acclimated, unacclimated or +said to be immune, when in its judgment the introduction of such persons +would add to or increase the prevalence of the disease."[779] At the +same time it was emphasized that all such legislation was subject to be +supplanted by Congress at any time. + + +STATE GAME PROTECTION AND FOREIGN COMMERCE + +The Court's tolerance of legal provisions which might not standing alone +be constitutional, when they are designed to make legislation within the +police power practically enforceable, is also illustrated in connection +with State game laws. In the case of Silz _v._ Hesterberg[780] the Court +was confronted with a New York statute establishing a closed season for +certain game, during which season it was a penal offense to take or +possess any of the protected animals, fish or birds; and providing +farther that the ban should equally apply "to such fish, game or flesh +coming from without the State as to that taken within the State." This +provision was held to have been validly applied in the case of a dealer +in imported game who had in his possession during the closed season "one +dead body of an imported grouse, ..., and taken in Russia." Again the +absence of conflicting legislation by Congress was adverted to.[781] + + +The Police Power and Interstate Commerce + + +GENERAL PRINCIPLES + +In Southern Pacific Co. _v._ Arizona,[782] decided in 1945, Chief +Justice Stone made the following systematic statement of principles +which have guided the Court in the exercise of its power of judicial +review of State legislation affecting interstate commerce: "Although the +commerce clause conferred on the national government power to regulate +commerce, its possession of the power does not exclude all state power +of regulation. Ever since Willson _v._ Black-Bird Creek Marsh Co., 2 +Pet. 245, and Cooley _v._ Board of Wardens, 12 How. 299, it has been +recognized that, in the absence of conflicting legislation by Congress, +there is a residuum of power in the state to make laws governing matters +of local concern which nevertheless in some measure affect interstate +commerce or even, to some extent, regulate it.[783] Thus the states may +regulate matters which, because of their number and diversity, may never +be adequately dealt with by Congress.[784] When the regulation of +matters of local concern is local in character and effect, and its +impact on the national commerce does not seriously interfere with its +operation, and the consequent incentive to deal with them nationally is +slight, such regulation has been generally held to be within state +authority.[785] + +"But ever since Gibbons _v._ Ogden, 9 Wheat. 1, the states have not been +deemed to have authority to impede substantially the free flow of +commerce from state to state, or to regulate those phases of the +national commerce which, because of the need of national uniformity, +demand that their regulation, if any, be prescribed by a single +authority.[786] Whether or not this long-recognized distribution of +power between the national and the state governments is predicated upon +the implications of the commerce clause itself,[787] or upon the +presumed intention of Congress, where Congress has not spoken,[788] the +result is the same. + +"In the application of these principles some enactments may be found to +be plainly within and others plainly without state power. But between +these extremes lies the infinite variety of cases, in which regulation +of local matters may also operate as a regulation of commerce, in which +reconciliation of the conflicting claims of state and national power is +to be attained only by some appraisal and accommodation of the competing +demands of the state and national interests involved.[789] + +"For a hundred years it has been accepted constitutional doctrine that +the commerce clause, without the aid of Congressional legislation, thus +affords some protection from state legislation inimical to the national +commerce, and that in such cases, where Congress has not acted, this +Court, and not the state legislature, is under the commerce clause the +final arbiter of the competing demands of state and national +interests.[790] + +"Congress has undoubted power to redefine the distribution of power over +interstate commerce. It may either permit the states to regulate the +commerce in a manner which would otherwise not be permissible,[791] or +exclude state regulation even of matters of peculiarly local concern +which nevertheless affect interstate commerce.[792] + +"But in general Congress has left it to the courts to formulate the +rules thus interpreting the commerce clause in its application, +doubtless because it has appreciated the destructive consequences to the +commerce of the nation if their protection were withdrawn,[793] and has +been aware that in their application state laws will not be invalidated +without the support of relevant factual material which will 'afford a +sure basis' for an informed judgment.[794] Meanwhile, Congress has +accommodated its legislation, as have the states, to these rules as an +established feature of our constitutional system. There has thus been +left to the states wide scope for the regulation of matters of local +state concern, even though it in some measure affects the commerce, +provided it does not materially restrict the free flow of commerce +across state lines, or interfere with it in matters with respect to +which uniformity of regulation is of predominant national concern." + + +State Regulation of Agencies of Interstate Commerce + + +RAILWAY RATE REGULATION + +In one of the Granger Cases decided in 1877 the Court upheld the power +of the legislature of Wisconsin in the absence of legislation by +Congress, to prescribe by law the maximum charges to be made by a +railway company for fare and freight upon the transportation of persons +and property within the State, or taken up outside the State and brought +within it, or taken up inside and carried without it.[795] Ten years +later, in Wabash, St. Louis and Pacific Railway Co. _v._ Illinois[796] +this decision was reversed as to persons and property taken up within +the State and transported out of it and as to persons and property +brought into the State from outside. As to these, the Court held that +the regulation of rates and charges must be uniform and that, therefore, +the States had no power to deal with the subject even when Congress had +not acted. The following year Congress passed the Interstate Commerce +Act[797] to fill the gap created by the Wabash decision. Today, the +States still exercise the power to regulate railway rates for the +carriage of persons and property taken up and put down within their +borders, but do so subject to the rule, which is enforced by the +Interstate Commerce Commission, that such rates may not discriminate +against interstate commerce.[798] + + +ADEQUATE SERVICE REGULATIONS + +In many other respects the power still remains with the States to +require by statute or administrative order a fair and adequate service +for their inhabitants from railway companies, including interstate +carriers operating within their borders, so long as the burdens thus +imposed upon interstate commerce are, in the judgment of the Court, +"reasonable." In an instructive brace of cases the Court was asked to +say whether a carrier, in the interest of providing proper local +facilities of commerce, could be required to stop its interstate trains. +In one case a State regulation requiring all regular passenger trains +operating wholly within the State to stop at all county seats was held +to have been validly applied to interstate connection trains;[799] while +in the other case a statute requiring _all_ passenger trains to stop at +county seats was held invalid, there being "other and ample +accommodation."[800] Comparing these and other like decisions, the Court +has stated "the applicable general doctrine" to be as follows: (1) It is +competent for a State to require adequate local facilities, even to the +stoppage of interstate trains or the rearrangement of their schedules. +(2) Such facilities existing--that is, the local conditions being +adequately met--the obligation of the railroad is performed, and the +stoppage of interstate trains becomes an improper and illegal +interference with interstate commerce. (3) And this, whether the +interference be directly by the legislature or by its command through +the orders of an administrative body. (4) The fact of local facilities +this court may determine, such fact being necessarily involved in the +determination of the Federal question whether an order concerning an +interstate train does or does not directly regulate interstate commerce, +by imposing an arbitrary requirement.[801] "There is, however," it later +added, "no inevitable test of the instances; the facts in each must be +considered."[802] + +In the same way a State regulation requiring intersecting railways to +make track connections was held valid,[803] as was also a regulation +requiring equality of car service between shippers;[804] while a +regulation requiring the delivery of shipments on private sideways[805] +and one requiring cars for local shipments to be furnished on demand, +were held to be invalid.[806] In the first brace of decisions, the +application of the local regulation to interstate commerce was found +not to be "unduly" burdensome; in the second brace the contrary +conclusion was reached. + + +SAFETY AND OTHER REGULATIONS + +A class of regulations as to which the Court has exhibited marked +tolerance although they "incidentally" embrace interstate transportation +within their operation are those which purport to be in furtherance of +"public safety."[807] The leading case is Smith _v._ Alabama,[808] in +which the Court held it to be within the police power of the State to +require locomotive engineers to be examined and licensed, and to enforce +this requirement until Congress should decree otherwise in the case of +an engineer employed exclusively in interstate transportation. Also +upheld as applicable to interstate trains were a statute which forbade +the heating of passenger cars by stoves;[809] a municipal ordinance +restricting the speed of trains within city limits;[810] the order of a +public utility commission requiring the elimination of grade +crossings;[811] a statute requiring electric headlights of a specified +minimum capacity;[812] a statute requiring three brakemen on freight +trains of over twenty-five cars.[813] In the last case the Court +admitted that "under the evidence," there was "some room for +controversy" as to whether the statute was necessary, but thought it +"not so unreasonable as to justify the Court in adjudging it" to be +"merely an arbitrary exercise of power" and "not germane" to objects +which the State was entitled to accomplish.[814] And in 1943 the Court +sustained, though again in somewhat doubtful terms, the order of a State +railroad commission requiring a terminal railroad which served both +interstate and local commerce to provide caboose cars for its +employees.[815] At times, indeed, the Court has made surprising +concession to local views that had nothing to do with safety. Hennington +_v._ Georgia,[816] decided in 1896, where was sustained a Georgia +statute forbidding freight trains to run on Sunday, is perhaps the +supreme example. Whether such an act would pass muster today is +doubtful. And earlier statutes reinforcing the legal liability of +railroads as common carriers and the carriers of passengers were +sustained in the absence of legislation by Congress.[817] + + +INVALID STATE REGULATIONS + +"The principle that, without controlling Congressional action, a State +may not regulate interstate commerce so as substantially to affect its +flow or deprive it of needed uniformity in its regulation is not to be +avoided by 'simply invoking the convenient apologetics of the police +power.'" So remarks Chief Justice Stone in his summarizing opinion cited +above, in Southern Pacific Co. _v._ Arizona.[818] Among others he lists +the following instances in which State legislation was invalidated on +the basis of this rule: "In the Kaw Valley case[819] the Court held that +the State was without constitutional power to order a railroad to remove +a railroad bridge over which its interstate trains passed, as a means of +preventing floods in the district and of improving its drainage, because +it was 'not pretended that local welfare needs the removal of the +defendants' bridges at the expense of the dominant requirements of +commerce with other States, but merely that it would be helped by +raising them.' And in Seaboard Air Line R. Co. _v._ Blackwell,[820] it +was held that the interference with interstate rail transportation +resulting from a State statute requiring as a safety measure that trains +come almost to a stop at grade crossings, outweigh the local interest in +safety, when it appealed that compliance increased the scheduled running +time more than six hours in a distance of one hundred and twenty-three +miles."[821] And "more recently in Kelly _v._ Washington,"[822] the +Chief Justice continued, "we have pointed out that when a State goes +beyond safety measures which are permissible because only local in their +effect upon interstate commerce, and 'attempts to impose particular +standards as to structure, design, equipment and operation [of vessels +plying interstate] which in the judgment of its authorities may be +desirable but pass beyond what is plainly essential to safety and +seaworthiness, the State will encounter the principle that such +requirements, if imposed at all, must be through the action of Congress +which can establish a uniform rule. Whether the State in a particular +matter goes too far must be left to be determined when the precise +question arises.'" + + +STATE REGULATION OF LENGTH OF TRAINS + +Applying the test of these precedents, the Chief Justice concluded that +Arizona, in making it unlawful to operate within the State a railroad +train of more than fourteen passenger or seventy freight cars, had gone +"too far"; and in support of this conclusion he recites the following +facts: "In Arizona, approximately 93% of the freight traffic and 95% of +the passenger traffic is interstate. Because of the Train Limit Law +appellant is required to haul over 30% more trains in Arizona than would +otherwise have been necessary. The record shows a definite relationship +between operating costs and the length of trains, the increase in length +resulting in a reduction of operating costs per car. The additional cost +of operation of trains complying with the Train Limit Law in Arizona +amounts for the two railroads traversing that State to about $1,000,000 +a year. The reduction in train lengths also impedes efficient operation. +More locomotives and more manpower are required; the necessary +conversion and reconversion of train lengths at terminals and the delay +caused by breaking up and remaking long trains upon entering and leaving +the state in order to comply with the law, delays the traffic and +diminishes its volume moved in a given time, especially when traffic is +heavy. + +"At present the seventy freight car laws are enforced only in Arizona +and Oklahoma, with a fourteen car passenger car limit in Arizona. The +record here shows that the enforcement of the Arizona statute results in +freight trains being broken up and reformed at the California border and +in New Mexico, some distance from the Arizona line. Frequently it is not +feasible to operate a newly assembled train from the New Mexico yard +nearest to Arizona, with the result that the Arizona limitation governs +the flow of traffic as far east as El Paso, Texas. For similar reasons +the Arizona law often controls the length of passenger trains all the +way from Los Angeles to El Paso. + +"If one State may regulate train lengths, so may all the others, and +they need not prescribe the same maximum limitation. The practical +effect of such regulation is to control train operations beyond the +boundaries of the State exacting it because of the necessity of breaking +up and reassembling long trains at the nearest terminal points before +entering and after leaving the regulating State. The serious impediment +to the free flow of commerce by the local regulation of train lengths +and the practical necessity that such regulation, if any, must be +prescribed by a single body having a nation-wide authority are apparent. + +"The trial court found that the Arizona law had no reasonable relation +to safety, and made train operation more dangerous. Examination of the +evidence and the detailed findings makes it clear that this conclusion +was rested on facts found which indicate that such increased danger of +accident and personal injury as may result from the greater length of +trains is more than offset by the increase in the number of accidents +resulting from the larger number of trains when train lengths are +reduced. In considering the effect of the statute as a safety measure, +therefore, the factor of controlling significance for present purposes +is not whether there is basis for the conclusion of the Arizona Supreme +Court that the increase in length of trains beyond the statutory maximum +has an adverse effect upon safety of operation. The decisive question is +whether in the circumstances the total effect of the law as a safety +measure in reducing accidents and casualties is so slight or +problematical as not to outweigh the national interest in keeping +interstate commerce free from interferences which seriously impede it +and subject it to local regulation which does not have a uniform effect +on the interstate train journey which it interrupts."[823] + + +THE LESSON OF SOUTHERN PACIFIC CO. _v._ ARIZONA + +The lesson to be extracted from Southern Pacific Co. _v._ Arizona is a +threefold one: 1) Where uniformity is judged by the Court to be +"essential for the functioning of commerce, a State may not interpose +its regulation"; 2) in resolving this question the Court will canvass +what it considers to be relevant facts extensively; 3) its task is, +however, in the last analysis, one of weighing competing values, in +brief, arbitral rather than strictly judicial. + +The lesson of Southern Pacific is further exemplified by the more recent +holding in Morgan _v._ Virginia,[824] in which the Court was confronted +with a State statute which, in providing for the segregation of white +and colored passengers, required passengers to change seats from time to +time as might become necessary to increase the number of seats available +to the one race or the other. First, reciting the rule of uniformity, +Justice Heed, for the Court, said: "Congress, within the limits of the +Fifth Amendment, has authority to burden [interstate] commerce if that +seems to it a desirable means of accomplishing a permitted end. * * * +As no State law can reach beyond its own border nor bar transportation +of passengers across its boundaries, diverse seating requirements for +the races in interstate journeys result. As there is no federal act +dealing with the separation of races in interstate transportation, we +must decide the validity of this Virginia statute on the challenge that +it interferes with commerce, as a matter of balance between the exercise +of the local police power and the need for national uniformity in the +regulations for interstate travel. It seems clear to us that seating +arrangements for the different races in interstate motor travel require +a single, uniform rule to promote and protect national travel. +Consequently, we hold the Virginia statute in controversy invalid." + + +STATE REGULATION OF MOTOR VEHICLES; VALID REGULATIONS + +Cases arising under this caption further illustrate the competition for +judicial recognition between the interstate commerce interest and local +interests, especially that of public safety. A new element enters the +problem, however, which lends some added weight to the claims of the +police power, the fact, namely, that motor vehicles use highways +furnished and maintained by the State. + +A State is entitled to enact a comprehensive scheme for the licensing +and regulation of motor vehicles using its highways with a view to +insuring itself of reasonable compensation for the facilities afforded +and to providing adequate protection of the public safety; and such +scheme may embrace out-of-State vehicles using the State's +highways.[825] Thus legislation limiting the net loads of trucks using +the State's highways is valid;[826] as are also, in the absence of +national legislation on the subject, State regulations limiting the +weight and width of the vehicles themselves, provided such regulations +are applied without discrimination as between vehicles moving in +interstate commerce and those operating only intrastate.[827] Likewise, +a State may deny a certificate of public convenience and necessity to +one desiring to operate a common carrier over a particular highway to an +out-of-State destination in an adjacent State, on the ground that the +specified route is already congested. So it was held in Bradley _v._ +Public Utilities Commission of Ohio,[828] in which the Court took +cognizance of the full hearing accorded the appellant, and of his +failure to choose another route, although he was at liberty to do so. +And in Maurer _v._ Hamilton a Pennsylvania[829] statute prohibiting the +operation over its highways of any motor vehicle carrying any other +vehicle over the head of the operator was upheld in the absence of +conflicting Congressional legislation. Similarly, in Welch _v._ New +Hampshire[830] a statute of that State establishing maximum hours for +drivers of motor vehicles was held not to be superseded by the Federal +Motor Carrier Act prior to the effective date of regulations by the +Interstate Commerce Commission dealing with the subject. Nor was +pendency before the Interstate Commerce Commission of an application +under the Motor Carrier Act for a license to operate a motor carrier in +interstate commerce found to supersede as to the applicant the authority +of a State to enforce "reasonable regulations" of traffic upon its +highways. "In the absence of the exercise of federal authority," said +the Court, "and in the light of local exigencies, the State is free to +act in order to protect its legitimate interests even though interstate +commerce is directly affected."[831] And for the same reason New York +City was entitled to apply to trucks engaged in the delivery of goods +from New Jersey a traffic regulation forbidding the operation on the +streets of an advertising vehicle.[832] Said Justice Douglas for the +Court: "Many of these trucks are engaged in delivering goods in +interstate commerce from New Jersey to New York. Where traffic control +and the use of highways are involved and where there is no conflicting +federal regulation, great leeway is allowed local authorities, even +though the local regulation materially interferes with interstate +commerce."[833] Also, the Court has consistently sustained State +regulations requiring motor carriers to provide adequate insurance +protection for injuries caused by the negligent operation of their +vehicles.[834] + + +INVALID STATE ACTS AFFECTING MOTOR CARRIERS + +A State law which imposes upon all persons engaged in transporting for +hire by motor vehicle over the public highways of the State the burdens +and duties of common carriers and requires them to furnish bonds to +secure the payment of claims and liabilities resulting from injury to +property carried, may not be validly applied to a private carrier which +is engaged exclusively in hauling from one State to another State the +goods of particular factories under standing contracts with their +owners, the said carrier enjoying neither a special franchise nor using +the eminent domain power.[835] On the other hand, a State statute which +prohibits common carriers for hire from using the highways of the State +between fixed termini or over regular routes without having first +obtained from a director of public works a certificate of public +convenience, is primarily not a regulation to secure safety on the +highways or to conserve them, but a ban on competition and, as applied +to a common carrier by motor vehicle of passengers and express purely in +interstate commerce, is both violation of the Commerce Clause and +defeats the express purpose of Congressional legislation rendering +federal aid for the construction of interstate highways.[836] + + +TRANSPORTATION AGENCIES + +The special characteristics of motor travel have brought about a +reversal of the Court's attitude toward State control of transportation +agencies. Sustaining in 1941 a California statute requiring that agents +engaged in negotiating for the transportation of passengers in motor +vehicles over the highways of the State take out a license, Justice +(later Chief Justice) Stone, speaking for the Court, said: "In Di Santo +_v._ Pennsylvania,[837] this Court took a different view * * *, it held +that a Pennsylvania statute requiring others than railroad or steamship +companies, who engage in the intrastate sale of steamship tickets or of +orders for transportation to and from foreign countries, to procure a +license by giving proof of good moral character and filing a bond as +security against fraud and misrepresentation to purchasers, was an +infringement of the Commerce Clause. Since the decision in that case +this Court has been repeatedly called upon to examine the +constitutionality of numerous local regulations affecting interstate +motor vehicle traffic. It has uniformly held that in the absence of +pertinent Congressional legislation there is constitutional power in the +States to regulate interstate commerce by motor vehicle wherever it +affects the safety of the public or the safety and convenient use of its +highways, provided only that the regulation does not in any other +respect unnecessarily obstruct interstate commerce."[838] + + +NAVIGATION; GENERAL DOCTRINE + +In Gibbons _v._ Ogden[839] the Court, speaking by Chief Justice +Marshall, held that New York legislation which excluded from the +navigable waters of that State steam vessels enrolled and licensed +under an act of Congress to engage in the coasting trade was in conflict +with the act of Congress and hence void. In Willson _v._ Blackbird Creek +and Marsh Co.[840] the same Court held that in the absence of an act of +Congress, "the object of which was to control State legislation over +those small navigable creeks into which the tide flows," the State of +Delaware was entitled to incorporate a company vested with the right to +erect a dam across such a creek. From these two cases the Court in +Cooley _v._ the Board of Wardens,[841] decided in 1851, extracted the +rule that in the absence of conflicting legislation by Congress States +were entitled to enact legislation adapted to the local needs of +interstate and foreign commerce, that a pilotage law was of this +description, and was, accordingly, constitutionally applicable until +Congress acted to the contrary to vessels engaged in the coasting trade. +In the main, these three holdings have controlled the decision of cases +under the above and the following caption, there being generally no +applicable act of Congress involved. But the power which the rule +attributed to the States, they must use "reasonably," something they +have not always done in the judgment of the Court. + +Thus an Alabama statute which required that owners of vessels using the +public waters of the enacting State be enrolled, pay fees, file +statements as to ownership, etc., was held to be inapplicable to vessels +licensed under the act of Congress to engage in the coasting trade;[842] +as was also a Louisiana statute ordering masters and wardens of the port +of Orleans to survey the hatches of all vessels arriving there and to +enact a fee for so doing.[843] "The unreason and the oppressive +character of the act" was held to take it out of the class of local +legislation protected by the rule of the Cooley case.[844] Likewise, +while control by a State of navigable waters wholly within its borders +has been often asserted to be complete in the absence of regulation by +Congress,[845] Congress may assume control at any time;[846] and when +such waters connect with other similar waters "so as to form a waterway +to other States or foreign nations, [they] cannot be obstructed or +impeded so as to impair, defeat, or place any burden upon a right to +their navigation granted by Congress."[847] + +On the other hand, in Kelly _v._ Washington,[848] decided in 1937, the +Court sustained the State in applying to motor-driven tugs operating in +navigable waters of the United States legislation which provided for the +inspection and regulation of every vessel operated by machinery if the +same was not subject to inspection under the laws of the United States. +It was conceded that there was "elaborate" federal legislation in the +field, but it was asserted that the Washington statute filled a gap. +"The principle is thoroughly established," said Chief Justice Hughes for +the Court, "that the exercise by the State of its police power, which +would be valid if not superseded by federal action, is superseded only +where the repugnance or conflict is so 'direct and positive' that the +two acts cannot 'be reconciled or consistently stand together.'"[849] +And in Bob-Lo Excursion Co. _v._ Michigan,[850] the Court, elbowing +aside a decision of many years standing,[851] ruled that the commerce +clause does not preclude a State, in the absence of federal statute or +treaty, from forbidding racial discrimination by one carrying passengers +by vessel to and from a port in the United States to an island situated +in Canadian territory. + + +BRIDGES, DAMS, FERRIES, WHARVES + +The holding in Willson _v._ Blackbird Creek Marsh Co.[852] has been +invoked by the Court many times in support of State legislation +permitting the construction across navigable streams of dams, booms, and +other shore protections,[853] as well as in support of State legislation +authorizing the erection of bridges and the operation of ferries across +such streams.[854] Bridges, it is true, may obstruct some commerce, but +they may more than compensate for this by aiding other commerce.[855] In +Justice Field's words in Huse _v._ Glover,[856] it should not be +forgotten that: "the State is interested in the domestic as well as in +the interstate and foreign commerce conducted on the Illinois River, and +to increase its facilities, and thus augment its growth, it has full +power. It is only when, in the judgment of Congress, its action is +deemed to encroach upon the navigation of the river as a means of +interstate and foreign Commerce, that that body may interfere and +control or supersede it. * * * How the highways of a State, whether on +land or by water, shall be best improved for the public good is a matter +for State determination, subject always to the right of Congress to +interpose in the cases mentioned."[857] The same principle applies to +the construction of piers and wharves in a navigable stream,[858] as +well as to harbor improvements by a State for the aid and protection of +navigation;[859] and reasonable tolls may be charged for the use of +such aids, and reasonable regulations laid down governing their +employment.[860] + + +Ferries + +A State may license individuals to operate a ferry across an interstate +river bounding its territory, or may incorporate a company for the +purpose.[861] Nor may a neighbor State make the securing of its consent +and license a condition precedent to the operation of such a ferry to +one of its towns.[862] Earlier the right of a State to regulate the +rates to be charged by an interstate bridge company for passage across +its structure was denied by a closely divided Court.[863] The ruling +does not, however, control the regulation of rates to be charged by an +interstate ferry company. These the chartering State may, in the absence +of action by Congress, regulate except in the case of ferries operated +in connection with railroads,[864] as to which Congress has acted with +the result of excluding all State action.[865] A State may also regulate +the rates of a vessel plying between two points within the State +although the journey is over the high seas; although again action by +Congress may supersede State action at any time.[866] + + +TELEGRAPHS AND TELEPHONES + +An Indiana statute which required telegraph companies to deliver +dispatches by messenger to the persons to whom they were addressed if +the latter resided within one mile of the telegraph station or within +the city or town where it was located, and which prescribed the order of +preference to be given various kinds of messages, was held to be an +unconstitutional interference with interstate commerce;[867] as was also +the order of the Massachusetts Public Service Commission interfering +with the transmission to firms within the State's borders of continuous +quotations of the New York Stock Exchange by means of ticker +service.[868] But a Virginia statute which imposed a penalty on a +telegraph company for failure in its "clear common-law duty" of +transmitting messages without unreasonable delay, was held, in the +absence of legislation by Congress, to be valid;[869] as was also a +Michigan statute which prohibited the stipulation by a company against +liability for nonperformance of such duty.[870] However, a South +Carolina statute which sought to make mental anguish caused by the +negligent nondelivery of a telegram a cause of action, was held to be, +as applied to messages transmitted from one State to another or to the +District of Columbia, an unconstitutional attempt to regulate interstate +commerce.[871] A State has no authority to interfere with the operation +of the lines of telegraph companies constructed along postal routes +within its borders under the authority of the Post Road Act of +1866,[872] nor to exclude altogether a company proposing to take +advantage of the act;[873] but that act does not deprive the State or a +municipality of the right to subject telegraph companies to reasonable +regulations, and an ordinance regulating the erection and use of poles +and wires in the streets does not interfere with the exercise of +authority under that act.[874] The jurisdiction conferred by The +Transportation Act of 1920 upon the Interstate Commerce Commission, and +since transferred to the Federal Communications Commission, over +accounts and depreciation rates of telephone companies does not, in the +absence of exercise by the federal agency of its power, operate to +curtail the analogous State authority;[875] nor is an unconstitutional +burden laid upon interstate commerce by the action of a State agency in +requiring a telephone company to revise its intrastate toll rates so as +to conform to rates charged for comparable distances in interstate +service.[876] + + +GAS AND ELECTRICITY + +The business of piping natural gas from one State to another to local +distributors which sell it locally to consumers is a branch of +interstate commerce which a State may not regulate.[877] Likewise, an +order by a State commission fixing rates on electric current generated +within the States and sold to a distributor in another State, imposes an +unconstitutional burden on interstate commerce, although the regulation +of such rates would necessarily benefit local consumers of electricity +furnished by the same company.[878] In the absence, on the other hand, +of contrary regulation by Congress a State may regulate the sale to +consumers in its cities of natural gas produced in and transmitted from +another State;[879] nor did Congress, by the National Gas Act of 1938, +impose any such contrary regulation.[880] Likewise, a State is left free +by the same act to require a gas company engaged in interstate commerce +to obtain a certificate of convenience before selling directly to +customers in the State.[881] And where a pipe line is used to distribute +both gas that is brought in from without the State and gas that is +produced and used within the State, and the two are commingled, but +their proportionate quantities are known, an order by the State +commission directing the gas company to continue supplying gas from the +line to a certain community does not burden interstate commerce.[882] +The transportation of natural gas from sources outside the State to +local consumers in its municipalities ceases to be interstate commerce +at the point where it passes from a pressure producing station into +local distributing stations, and from that point is subject to State +regulation.[883] A State public utilities commission is entitled to +require a natural gas distributing company seeking an increase of rates +to show the fairness and reasonableness of the rate paid by it to the +pipe line company from which it obtains its supplies, both companies +being subsidiaries of a third.[884] A State agency may require a company +which sells natural gas to local consumers and distributing companies, +transporting it in pipe lines from other States, to file contracts, +agreements, etc., for sales and deliveries to the distributing +companies;[885] nor does the fact that a natural gas pipe line from the +place of production to the distributing points in the same State cuts +across a corner of another State render it improper, in determining +maximum rates for gas sold by the owner of the pipe line to distributing +companies, to include the value of the total line in the rate base.[886] +A State may, as a conservation measure, fix the minimum prices at the +wellhead on natural gas produced in the State and sold interstate.[887] + + +FOREIGN CORPORATIONS + +A State may require that a foreign corporation as a condition of its +being admitted to do a local business or to having access to its courts +obtain a license, and in connection therewith furnish information as to +its home State or country, the location of its principal office, the +names of its officers and directors, its authorized capitalization, and +the like, and that it pay a reasonable license fee;[888] nor is a +corporation licensed by the National Government to act as a customs +broker thereby relieved from meeting such conditions.[889] So it was +decided in 1944. The holding does not necessarily disturb one made +thirty years earlier in which the Court ruled that a statute which +closed the courts of the enacting State to any action on any contract in +the State by a foreign corporation unless it had previously appointed a +resident agent to accept process, could not be constitutionally applied +to the right of a foreign corporation to sue on an interstate +transaction.[890] A suit brought in a State court by a foreign +corporation having its principal place of business in the State against +another foreign corporation engaged in interstate commerce on a cause of +action arising outside the State does not impose an undue burden on such +commerce; and the forum being in other respects appropriate, its +jurisdiction is not forfeited because the property attached is an +instrumentality of interstate commerce.[891] There is nothing in the +commerce clause which immunizes a foreign corporation doing business in +a State from any fair inquiry, judicial or legislative, that is required +by local laws.[892] + + +MISCELLANEOUS + + +Banks and Banking + +A State statute which forbids individuals or partnerships to engage in +the banking business without a license is not, as to one whose business +chiefly consists in receiving deposits for periodic shipment to other +States and to foreign countries, invalid as a regulation of interstate +and foreign commerce.[893] + + +Brokers + +A statute which requires dealers in securities evidencing title or +interest in property to obtain a license from a State officer, is not +invalid as applied to dispositions within the State securities +transported from other States.[894] + + +Commission Men + +A statute requiring commission merchants to give bonds for the +protection of consignees may be validly applied to commission merchants +handling produce shipped to them from without the State.[895] + + +Attachment and Garnishment + +Railway cars are not exempt from attachment under State laws, although +they may have been or are intended to be used in interstate +commerce.[896] + + +Statutory Liens + +A State statute which gives a lien upon all vessels whether domestic or +foreign, and whether engaged in interstate commerce or not, for injuries +to persons and property within the State, does not as applied to +nonmaritime torts offend the commerce clause, there being no act of +Congress in conflict.[897] Nor can the enforcement of a lien for +materials used in the construction of a vessel be avoided because the +vessel is engaged in interstate commerce.[898] + + +The Police Power and the Subject-Matter of Commerce + + +SCOPE OF THE POLICE POWER + +"Quarantine regulations are essential measures of protection which the +States are free to adopt when they do not come into conflict with +Federal action. In view of the need of conforming such measures to local +conditions, Congress from the beginning has been content to leave the +matter for the most part, notwithstanding its vast importance, to the +States and has repeatedly acquiesced in the enforcement of State laws. +* * * Such laws undoubtedly operate upon interstate and foreign +commerce. They could not be effective otherwise. They cannot, of course, +be made the cover for discriminations and arbitrary enactments having no +reasonable relation to health * * *; but the power of the State to take +steps to prevent the introduction or spread of disease, although +interstate and foreign commerce are involved (subject to the paramount +authority of Congress if it decides to assume control), is beyond +question.[899] * * * State inspection laws and statutes designed to +safeguard the inhabitants of a State from fraud and imposition are valid +when reasonable in their requirements and not in conflict with Federal +rules, although they may affect interstate commerce in their relation to +articles prepared for export or by including incidentally those brought +into the State and held for sale in the original imported +packages."[900] + + +QUARANTINE LAWS + +In two earlier cases a Missouri statute which prohibited the driving of +all Texan, Mexican, and Indian cattle into the state during certain +seasons of the year was held void;[901] while a statute making anybody +in the State who had Texas cattle which had not wintered north of a +certain line liable for damage through the communication of disease from +these to other cattle was sustained;[902] as were also the regulations +of a sanitary commission which excluded all cattle, horses, and mules, +from the State at a certain period when anthrax was prevalent.[903] +Reviewing previous cases in the one last cited, the Court declared their +controlling principle to be simply whether the police power of the State +had been exerted to exclude "_beyond what is necessary for any proper +quarantine_," a question predominantly of fact, and one therefore to be +determined for each case with only general guidance from earlier +decisions.[904] + +More recent cases conform to the same pattern. Among measures sustained +are the following: an Ohio statute forbidding the sale in that State of +condensed milk unless made from unadulterated milk;[905] a New York +statute penalizing the sale with intent to defraud of preparations +falsely represented to be Kosher;[906] a New York statute requiring that +cattle shall not be imported for dairy or breeding purposes unless +accompanied by the certificate of a proper sanitary official in the +State of origin, in order to prevent the spread of an infectious +disease;[907] an order of a State Department of Agriculture, pursuant +to a State law, regulating the standards of containers in which +agricultural products (berries) may be marketed within the State;[908] a +State statute restricting the processing of fish found within the waters +of the State with the purpose of conserving it for food, even though it +also operates upon fish brought into the State from without;[909] the +price fixing and licensing provisions of a State Milk and Cream Act, not +applicable to transactions in interstate commerce, by declaration of the +act;[910] a Maine statute requiring the registration with the State +Health Department of cosmetic preparations for the purpose of +ascertaining whether the products are harmless;[911] an Indiana Animals +Disposal Act requiring that animal carcasses, not promptly disposed of +by the owner, be delivered to the representative of a disposal plant +licensed by the State, and prohibiting their transportation on the +public highways for any other purpose;[912] a Pennsylvania statute +providing for the licensing and bonding of all milk dealers and fixing a +minimum price to be paid producers, as applied to a dealer purchasing +milk within the State for shipment to points outside it.[913] + + +STATE INSPECTION LAWS + +The application of State inspection laws to imports from outside the +State has been sustained as warranted by local interests and as not +discriminating against out-of-state products, in the following +instances: A North Carolina statute providing that "every bag, barrel, +or other package" of commercial fertilizer offered for sale in the State +should bear a label truly describing its chemical composition, which +must comply with certain requirements, and charging 25 cents per ton to +meet the cost of inspection;[914] an Indiana statute forbidding the sale +in the original package of concentrated feeding stuffs prior to +inspection and analysis for the purpose of ascertaining whether certain +minimum standards as to composition had been met;[915] a Minnesota +statute requiring as a precondition of its being offered for sale in the +State, the inspection of illuminating oil and gasoline;[916] a Kansas +statute forbidding any moving picture film or reel to be exhibited in +the State unless it had been examined by the State Superintendent of +Instruction and certified by him as moral and instructive and not +tending to debase or corrupt the morals.[917] A Minnesota statute, on +the other hand, which forbade the sale in any city of the State of any +beef, mutton, lamb, or pork which, had not been inspected on the hoof +by local inspectors within twenty-four hours of slaughter, was held +void.[918] Its "necessary operation," said the Court, was to ban from +the State wholesome and properly inspected meat from other States.[919] +Also a Virginia statute which required the inspection and labelling of +all flour brought into the State for sale was disallowed because flour +produced in the State was not subject to inspection;[920] likewise a +Florida statute providing for the inspection of all cement imported into +the State and enacting a fee therefor, but making no provision for the +inspection of the local product, met a like fate;[921] as did also a +Madison, Wisconsin ordinance which sought to exclude a foreign +corporation from selling milk in that city solely because its +pasteurization plants were more than five miles away.[922] + + +STATE PROHIBITION LAWS; THE ORIGINAL PACKAGE DOCTRINE + +The original package doctrine made its debut in Brown _v._ +Maryland,[923] where it was applied to remove imports from abroad which +were still in the hands of the importer in the original package, out of +the reach of the State's taxing power. This rule the Court, overriding a +dictum in Marshall's opinion in Brown _v._ Maryland,[924] rejected +outright after the Civil War as to imports from sister States.[925] +However, when in the late eighties and early nineties State-wide +Prohibition laws began making their appearance, the Court seized on the +rejected dictum and began applying it as a brake on the operation of +such laws with respect to interstate commerce in intoxicants, which the +Court denominated "legitimate articles of commerce." While holding that +a State was entitled to prohibit the manufacture and sale within its +limits of intoxicants,[926] even for an outside market--manufacture +being no part of commerce[927]--it contemporaneously laid down the rule, +in Bowman _v._ Chicago and Northwestern Railroad Co.,[928] that so long +as Congress remained silent in the matter, a State lacked the power, +even as part and parcel of a program of Statewide prohibition of the +traffic in intoxicants, to prevent the shipment into it of intoxicants +from a sister State; and this holding was soon followed by another to +the effect that, so long as Congress remained silent, a State had no +power to prevent the sale in the original package of liquors introduced +from another State.[929] The effect of the latter decision was soon +overcome by an act of Congress, the so-called Wilson Act, repealing its +alleged silence,[930] but the Bowman decision still stood, the act in +question being interpreted by the Court not to subject liquors from +sister States to local authority until their arrival in the hands of the +person to whom consigned.[931] Not till 1913 was the effect of the +decision in the Bowman case fully nullified by the Webb-Kenyon Act,[932] +which placed intoxicants entering a State from another State under the +control of the former for all purposes whatsoever. + + +OLEOMARGARINE AND CIGARETTES + +Long before this the immunity temporarily conferred by the original +package doctrine upon liquors had been extended to cigarettes[933] and, +with an instructive exception, to oleomargarine. The exception referred +to was made in Plumley _v._ Massachusetts,[934] where the Court held +that a statute of that State forbidding the sale of oleomargarine +colored to look like butter could validly be applied to oleomargarine +brought from another State and still in the original package. The +justification of the statute to the Court's mind was that it sought "to +suppress false pretenses and promote fair dealing in the sale of an +article of food." Nor did Leisy and Co. _v._ Hardin[935] apply, said +Justice Harlan for the Court, because the beer in that case was "genuine +beer, and not a liquid or drink colored artificially so as to cause it +to look like beer." That decision was never intended, he continued, to +hold that "a State is powerless to prevent the sale of articles +manufactured in or brought from another State, and subjects of traffic +and commerce, if their sale may cheat the people into purchasing +something they do not intend to buy * * *."[936] Obviously, the argument +was conclusive only on the assumption that a State has a better right to +prevent frauds than it has to prevent drunkenness and like evils; and +doubtless that is the way the Court felt about the matter at that date. +On the one hand, the liquor traffic was a very ancient, if not an +altogether, venerable institution, while oleomargarine was then a +relatively novel article of commerce whose wholesomeness was suspect. On +the other hand, laws designed to secure fair dealing and condemnatory of +fraud followed closely the track of the common law, while anti-liquor +laws most decidedly did not. The real differentiation of the two cases +had to be sought in historical grounds. Yet the State must not put +unreasonable burdens upon interstate commerce even in oleomargarine. +Thus a Pennsylvania statute forbidding the sale of this product even in +the unadulterated condition was pronounced invalid so far as it operated +to prevent the introduction of such oleomargarine from another State and +its sale in the original package;[937] as was also a New Hampshire +statute which required that all oleomargarine marketed in the State be +colored pink.[938] A little later in the case above mentioned involving +cigarettes, the Court discovered some of the difficulties of the +original package doctrine when applied to interstate commerce, in which +the package is not so apt to be standardized as it is in foreign +commerce.[939] + + +DEMISE OF THE ORIGINAL PACKAGE DOCTRINE + +What importance has the original package doctrine today as a restraint +on State legislation affecting interstate commerce? The answer is, very +little, if any. State laws prohibiting the importation of intoxicating +liquor, have since the passage of the Twenty-first Amendment +consistently been upheld, even when imposing a burden on interstate +commerce or discriminating against liquor imported from another +State.[940] Indeed the Court has, without appealing to the Twenty-first +Amendment, even gone so far as to uphold a statute requiring a permit +for transportation of liquor through the enacting State.[941] In +Whitfield _v._ Ohio,[942] moreover, the Court upheld a State law +prohibiting the sale in open market of convict-made goods including +sales of goods imported from other States and still in the original +package. While the decision is based on the Hawes-Cooper Act of +1929,[943] which follows the pattern of the Webb-Kenyon Act, Justice +Sutherland speaking for the Court, takes pains to disparage the +"unbroken-package doctrine, as applied to interstate commerce, * * *, as +more artificial than sound."[944] Indeed, earlier cases make it clear +that the enforcement of State quarantine and inspection acts, otherwise +constitutional, is not to be impeded by the doctrine in any way.[945] + + +CURBS ON THE INTERSTATE MOVEMENT OF PERSONS + +Prior to the Civil War the slaveholding States, ever fearful of a slave +uprising, adopted legislation meant to exclude from their borders free +Negroes whether hailing from abroad or from sister States, and in 1823 a +South Carolina Negro Seamen's Act embodying this objective was held void +by Justice William Johnson, himself a South Carolinian, in a case +arising in the Carolina circuit and involving a colored British +sailor.[946] The basis of the ruling, which created tremendous uproar in +Charleston,[947] was the commerce clause and certain treaties of the +United States. There followed two rulings of Attorneys General, the +earlier by Attorney General Wirt, denouncing such legislation as +unconstitutional;[948] the latter by Attorney General Berrien, +sustaining it;[949] and in City of New York _v._ Miln[950] the Court, +speaking by Justice Barbour of Virginia, asserted, six years after Nat +Turner's rebellion, the power of the States to exclude undesirables in +sweeping terms, which in the Passenger Cases,[951] decided in 1840, a +narrowly divided Court considerably qualified. Shortly after the Civil +War the Court overturned a Nevada statute which sought to halt the +further loss of population by a special tax on railroads on every +passenger carried out of the State.[952] This time only two Justices +invoked the commerce clause; the majority, speaking by Justice Miller +held the measure to be an unconstitutional interference with a right of +national citizenship--a holding today translatable, in the terminology +of the Fourteenth Amendment, as an abridgment of a privilege or immunity +of citizens of the United States. + +Against this background the Court in 1941, in Edwards _v._ +California,[953] held void a statute which penalized the bringing into +that State, or the assisting to bring into it, any nonresident knowing +him to be "an indigent person." Five Justices, speaking by Justice +Byrnes, held the act to be even as to "persons who are presently +destitute of property and without resources to obtain the necessities of +life, and who have no relatives or friends able and willing to support +them,"[954] an unconstitutional interference with interstate commerce. +"The State asserts," Justice Byrnes recites, "that the huge influx of +migrants into California in recent years has resulted in problems of +health, morals, and especially finance, the proportions of which are +staggering. It is not for us to say that this is not true. We have +repeatedly and recently affirmed, and we now reaffirm, that we do not +conceive it our function to pass upon 'the wisdom, need, or +appropriateness' of the legislative efforts of the States to solve such +difficulties. * * * But this does not mean that there are no boundaries +to the permissible area of State legislative activity. There are. And +none is more certain than the prohibition against attempts on the part +of any single State to isolate itself from difficulties common to all of +them by restraining the transportation of persons and property across +its borders. It is frequently the case that a State might gain a +momentary respite from the pressure of events by the simple expedient of +shutting its gates to the outside world. But, in the words of Mr. +Justice Cardozo: 'The Constitution was framed under the dominion of a +political philosophy less parochial in range. It was framed upon the +theory that the peoples of the several States must sink or swim +together, and that in the long run prosperity and salvation are in union +and not division'."[955] Four of the Justices would have preferred to +rest the holding of unconstitutionality on the rights of national +citizenship under the privileges and immunities clause of Amendment +XIV.[956] + + +STATE CONSERVATION AND EMBARGO MEASURES + +In Geer _v._ Connecticut[957] the Court sustained the right of the State +to forbid the shipment beyond its borders of game taken within the +State--this on the ground, in part, that a State has an underlying +property right to wild things found within its limits, and so is +entitled to qualify the right of individual takers thereof to any +extent it chooses; and a similar ruling was laid down in a later case as +to the prohibition by a State of the transportation out of it of water +from its important streams.[958] In Oklahoma _v._ Kansas Natural Gas +Co.,[959] however, this doctrine was held inapplicable to the case of +natural gas, on the ground: first, that "gas, when reduced to +possession, is a commodity, the individual property" of the owner; and +secondly, that "the business welfare of the State," is subordinated by +the commerce clause to that of the nation as a whole. If the States had +the power asserted in the Oklahoma statute, said Justice McKenna, "a +singular situation might result. Pennsylvania might keep its coal, the +Northwest its timber, the mining States their minerals. And why may not +the products of the field be brought within the principle? * * * And yet +we have said that 'in matters of foreign and interstate commerce there +are no State lines.' In such commerce, instead of the States, a new +power appears and a new welfare, a welfare which transcends that of any +State. But rather let us say it is constituted of the welfare of all the +States and that of each State is made greater by a division of its +resources, * * *, with every other State, and those of every other State +with it. This was the purpose, as it is the result, of the interstate +commerce clause of the Constitution of the United States."[960] In +Pennsylvania _v._ West Virginia[961] the same doctrine was enforced in +disallowance of a West Virginia statute whereby that State sought to +require that a preference be accorded local consumers of gas produced +within the State. West Virginia's argument that the supply of gas within +the State was waning and no longer sufficed for both the local and the +interstate markets, and that therefore the statute was a legitimate +measure of conservation in the interest of the people of the State, was +answered in the words just quoted. + +In the above cases the State prohibition overturned was directed +specifically to shipments beyond the State. In two other cases the State +enactments involved reached all commerce, both domestic and interstate +without discrimination. In the first of these, Sligh _v._ Kirkwood,[962] +the Court upheld the application to oranges which were intended for the +interstate market of a Florida statute prohibiting the sale, shipment, +or delivery for shipment of any citrus fruits which were immature or +otherwise unfit for consumption. The burden thus imposed upon interstate +commerce was held by the Court to be incidental merely to the effective +enforcement of a measure intended to safeguard the health of the people +of Florida. Moreover, said the Court, "we may take judicial notice of +the fact that the raising of citrus fruits is one of the great +industries of the State of Florida. It was competent for the +legislature to find that it was essential for the success of that +industry that its reputation be preserved in other States wherein such +fruits find their most extensive market."[963] In Lemke _v._ Farmers +Grain Co.,[964] on the other hand, a North Dakota statute which confined +the purchase of grain within that State to those holding licenses from +the State and which regulated prices, was pronounced void under the +commerce clause. To the argument that such legislation was "in the +interest of the grain growers and essential to protect them from +fraudulent purchases, and to secure payment to them of fair prices for +the grain actually sold," the Court answered that, "Congress is amply +authorized to pass measures to protect interstate commerce if +legislation of that character is needed." + +The differentiation of the above two cases is twofold. The statute under +review in the earlier one was of the ordinary type of inspection law and +was applied without discrimination to fruits designed for the home and +the interstate market. The North Dakota act was far more drastic, +approximating an attempt on the part of the State to license interstate +commerce. What is even more important, however, the later case +represents a new rule of law, and one which at the time the Florida act +was before the Court had not yet been heard of. This is embodied in the +head note of the case in the following words: "The business of buying +grain in North Dakota, practically all of which is intended for shipment +to, and sale at, terminal markets in other States, conformably to the +usual and general course of business in the grain trade, is interstate +commerce."[965] The application of this rule in the field of state +taxation was mentioned on a previous page.[966] + + +STATE CONSERVATION AND EMBARGO MEASURES: THE MILK CASES + +Certain recent cases have had to deal with State regulation of the milk +business. In Nebbia _v._ New York,[967] decided in 1934, that State's +law regulating the price of milk was sustained by the Court against +objections based on the due process clause of Amendment XIV. A year +later, in Baldwin _v._ Seelig[968] the refusal of a license under the +same act to a dealer who had procured his milk at a lower minimum price +than producers were guaranteed in New York, was set aside as an +unconstitutional interference with interstate commerce. However, a +Pennsylvania statute requiring dealers to obtain licenses was sustained +as to one who procured milk from neighboring farms and shipped it all +into a neighboring State for sale.[969] The purpose of the act, +explained Justice Roberts, was to control "a domestic situation in the +interest of the welfare of the producers and consumers," and its +application to the kind of case before the Court was essential to its +effective enforcement and affected interstate commerce only +incidentally.[970] But when a distributor of milk in Massachusetts, who +already had two milk stations in Eastern New York, was refused a license +for a third on the ground, among others, that the further diversion of +milk to Massachusetts would deprive the local market of a supply needed +during the short season, a narrowly divided Court interposed its veto on +the basis of Oklahoma _v._ Kansas Natural Gas Co.[971] + + +STATE CONSERVATION AND EMBARGO MEASURES: THE SHRIMP CASES + +Meantime, Geer _v._ Connecticut has been somewhat overcast by subsequent +rulings. In a case, decided in 1928, it was held that a Louisiana +statute which permitted the shipment of shrimp taken in the tidal waters +of Louisiana marshes only if the heads and hulls have been previously +removed was unconstitutional.[972] Distinguishing Geer _v._ Connecticut +the Court said: "As the representative of its people, the State might +have retained the shrimp for [local] consumption and use therein." But +the object of the Louisiana statute was in direct opposition to the +conservation of a local food supply. Its object was to favor the canning +of shrimp for the interstate market. "* * * by permitting its shrimp to +be taken and all the products thereof to be shipped and sold in +interstate commerce, the State necessarily releases its hold and, as to +the shrimp so taken, definitely terminates its control. * * * And those +taking the shrimp under the authority of the act necessarily thereby +become entitled to the rights of private ownership and the protection of +the commerce clause."[973] On the same reasoning a South Carolina +statute which required that owners of shrimp boats, fishing in the +marine waters off the coast of the State, dock at a State port and +unload, pack and stamp their catch with a tax stamp before shipping or +transporting it to another State, was pronounced void in 1948.[974] +However, a California statute which restricted the processing of fish, +both that taken in the waters of the State and that brought into the +State in a fresh condition, was found by the Court to be purely a food +conservation measure, and hence valid.[975] The application of the act +to fish brought from outside was held to be justified "by rendering +evasion of it less easy."[976] + + +Concurrent Federal and State Legislation + + +THE GENERAL ISSUE + +Since the turn of the century federal legislation under the commerce +clause has penetrated more and more deeply into areas once occupied +exclusively by the police power of the States. The result has been that +State laws have come under increasingly frequent attack as being +incompatible with acts of Congress operating in the same general field. +The Court's decisions resolving such alleged conflicts fall into three +groups: _first_, those which follow Webster's theory, advanced in +Gibbons _v._ Ogden, that when Congress acts upon a particular phase of +interstate commerce, it designs to appropriate the entire field with the +result that no room is left for supplementary State action; _second_, +those in which, in the absence of conflict between specific provisions +of the State and Congressional measures involved, the opposite result is +reached; _third_, those in which the State legislation involved is found +to conflict with certain acts of Congress, and in which the principle of +national supremacy is invoked by the Court. Most of the earlier cases +stemming from State legislation affecting interstate railway +transportation fall in the first class; while illustrations of the +second category usually comprise legislation intended to promote the +public health and fair dealing. More recent cases are more difficult to +classify, especially as between the first and third categories. + + +THE HEPBURN ACT + +No act ever passed by Congress was more destructive of legislation on +the State statute books than the Hepburn Act of 1906,[977] amending the +Interstate Commerce Act. Thus a State statute which, while prohibiting a +railway from giving free passes or free transportation, authorized the +issuance of transportation in payment for printing and advertising, was +found to conflict with the unqualified prohibition by Congress of free +interstate transportation.[978] Likewise, a State statute which +penalized a carrier for refusing to receive freight for transportation +whenever tendered at a regular station was found to conflict with the +Congressional provision that no carrier "shall engage or participate in +the transportation of passengers or property, as defined in this act, +unless the rates, fares, and charges upon which the same are transported +by said carrier have been filed and published in accordance with the +provisions of this act."[979] In enacting this provision, the Court +found, Congress had intended to occupy the entire field. In a third +case, it was held that the Hepburn Act had put it outside the power of a +State to regulate the delivery of cars for interstate shipments;[980] +and on the same ground, a State statute authorizing recovery of a +penalty for delay in giving notice of the arrival of freight was +disallowed;[981] as was also the similar rule of a State railroad +commission with respect to failure to deliver freight at depots and +warehouses within a stated time limit.[982] And in Adams Express Co. +_v._ Croninger[983] it was sweepingly ruled that the so-called Carmack +Amendment to the Hepburn Act, which puts the responsibility for loss of, +or injury to, cargo upon the initial carrier, had superseded all State +statutes limiting recovery for loss or injury to goods in transportation +to an agreed or declared value. Substantially contemporaneous with these +holdings were others in which the Court ruled that the federal +Employers' Liability Act of 1908, as amended in 1910;[984] the federal +Hours of Service Act (Railroads) of 1907;[985] and the federal Safety +Appliance Acts of 1893, as amended in 1903[986] superseded all State +legislation dealing with the same subjects so far as such legislation +affected interstate commerce.[987] However, the States were still able +to regulate the time and manner of payment of the employees of +railroads, including those engaged in interstate commerce,[988] Congress +having not legislated on the subject. + + +QUARANTINE CASES + +In 1904 it was held that a New York statute prohibiting the manufacture +or sale of any adulterated food or drug, or the coloring or coating of +food whereby it is made to appear better than it really is, was not, as +applied to imported coffee, repugnant to either the commerce clause or +the Meat Inspection Act of 1890,[989] prohibiting the importation into +the United States of adulterated and unwholesome food, but as exertion +by the State of power to legislate for the protection of the health and +safety of the community and to provide against deception and fraud.[990] +And in 1912 it was held that an Indiana statute regulating the sale of +concentrated commercial feeding stuff and requiring the disclosure of +ingredients by certificate and label, and providing for inspection and +analysis, was not in conflict with the Pure Food and Drugs Act of +1906.[991] However, when Wisconsin about the same time passed an act +requiring that when certain commodities were offered for sale in that +State they should bear the label required by State law and no other, she +was informed that she could not validly apply it to articles which had +been labeled in accordance with the federal statute nor did it make any +difference that the goods in question had been removed from the +container in which they had been shipped into the State, inasmuch as +they could still be proceeded against under the act of Congress.[992] +The original package doctrine, it was added, "was not intended to limit +the right of Congress, * * *, to keep the channels of interstate +commerce free from the carriage of injurious or fraudulently branded +articles and to choose appropriate means to that end."[993] But a North +Dakota statute requiring that lard compound or substitutes, unless sold +in bulk, should be put up in pails or containers holding one, three, or +five pounds net weight, or some multiple of these numbers, was held not +to be repugnant to the Pure Food and Drugs Act.[994] On the other hand, +a decade later the Court found that the Plant Quarantine Act of 1912, as +amended in 1917,[995] had so completely occupied the field indicated by +its title that a State was left without power to prevent the importation +of plants infected by a particular disease to which the Secretary of +Agriculture's regulations did not apply.[996] Congress promptly +intervened by further amending the federal statute to permit the States +to impose quarantines in such overlooked cases.[997] + + +RECENT CASES SUSTAINING STATE LEGISLATION + +In 1935, it was held[998] that an order of the New York Commissioner of +Agriculture prohibiting the importation of cattle for dairy or breeding +purposes unless such cattle and the herds from which they come had been +certified by the chief sanitary officer of the State of origin as being +free from Bang's disease, was not in conflict with the Cattle Contagious +Diseases Acts.[999] In 1937, it was ruled[1000] that a Georgia statute +fixing maximum charges for handling and selling leaf tobacco did not, as +applied to sales of tobacco destined for export, conflict with the +Tobacco Inspection Act.[1001] In 1942,[1002] it was held that an order +of the Wisconsin Employment Relations Board which commanded a union, its +agents, and members, to desist from mass picketing of a factory, +threatening personal injury or property damage to employees desiring to +work, obstructing the streets about the factory, and picketing the homes +of employees, was not in conflict with the National Labor Relations +Act,[1003] to which the employer was admittedly subject but which had +not been invoked. An "intention of Congress," said the Court, "to +exclude States from exerting their police power must be clearly +manifested."[1004] In 1943,[1005] the Court sustained the marketing +program for the 1940 California raisin crop, adopted pursuant to the +California Agricultural Prorate Act. Although it was conceded that the +program and act operated to eliminate competition among producers +concerning terms of sale and price as to product destined for the +interstate market, they were held not to conflict with the commerce +clause or with the Sherman Act or the Agricultural Marketing Agreement +Act.[1006] To the contrary, said Chief Justice Stone, speaking for the +unanimous court, the program "is one which it has been the policy of +Congress to aid and encourage through federal agencies" under federal +act.[1007] The case was not one, he further observed, which was to be +resolved by "mechanical test," but with the object in view of +accommodating "the competing demands of the State and national interests +involved."[1008] In 1944,[1009] the Court upheld the right of Minnesota +to exclude from its courts a firm licensed by the National Government to +carry on the business of customs broker because of its failure to comply +with a State statute requiring foreign corporations to obtain a license +to do business in the State. Speaking for the Court, Justice +Frankfurter, again disparaged "the generalities" to which certain cases +had given utterance. Actually, he asserted, "the fate of State +legislation in these cases has not been determined by these generalities +but by the weight of the circumstances and the practical and experienced +judgment in applying these generalities to the particular +instances."[1010] In cases, decided in 1947,[1011] the Court ruled that +Indiana had not violated the Natural Gas Act[1012] by attempting to +regulate the rates for natural gas sold within the State by an +interstate pipe line company to local industrial consumers; and that +Illinois was not precluded by the Commodity Exchange Act[1013] from +imposing upon grain exchanges doing business within her borders +regulations not at variance with the provisions of the act or with +regulations promulgated under it by the Secretary of Agriculture. Nor, +it was held by a bare majority of the Court in 1949, did the Motor +Carrier Act of 1935, as amended in 1942,[1014] prevent California from +prohibiting the sale or arrangement of any transportation over its +public highways if the transporting carrier has no permit from the +Interstate Commerce Commission.[1015] The opposed opinions line up most +of the cases on either side of the question. + + +RECENT CASES NULLIFYING STATE ACTION + +On the other side of the ledger appear the following cases, decided +contemporaneously with those just reviewed: one in 1942 in which it was +held that a gas company engaged in the business of piping natural gas +from without the State of Illinois and selling it wholesale to +distributors in that State was subject to the jurisdiction of the +Federal Power Commission under the Natural Gas Act,[1016] and hence +could not be required by the Illinois Commerce Commission to extend its +facilities in the absence of a certificate of convenience from the +Federal Power Commission;[1017] one, in the same year, in which it was +held, by a sharply divided Court, that federal regulation of the +production of renovated butter under the Internal Revenue Code[1018] +prevented the State of Alabama from inspecting, seizing and detaining +stock butter from which such butter was made, some of it being intended +for interstate commerce;[1019] one in 1947 holding that the United +States Warehouse Act, as amended,[1020] must be construed as superseding +State authority to regulate licenses thereunder, and hence overruled the +stricter requirements of Illinois law dealing with such subject as rate +discrimination, the dual position of grain warehousemen storing their +own grain, the mixing of inferior grain owned by the warehousemen with +superior grain of other users of the facility, delay in loading grain, +the sacrificing or rebating of storage charges, retraining desirable +transit tonnage, utilizing preferred storage space, maintenance of +unsafe and inadequate grain elevators, inadequate and ineffectual +warehouse service, the obtaining of a license, the abandonment of +warehousing service, and the rendition of warehousing service without +filing and publishing rate schedules;[1021] one decided the same year in +which it was held that the authority of the Federal Power Commission +under the Natural Gas Act[1022] extended to and superseded State +regulatory power over sales made within a State by a natural gas +producing company to pipe line companies which transported the purchased +gas to markets in other States;[1023] one in 1948, in which a sharply +divided Court held that Michigan law governing the rights of dissenting +stockholders could not be applied to embarrass a merger agreement +between two railroad companies which had been approved by the Interstate +Commerce Commission under the Interstate Commerce Act[1024] as "just and +reasonable";[1025] and finally one decided the same year in which it was +held by a unanimous Court that the Interstate Commerce Commission may, +in approving the acquisition by a railroad corporation of one State of +railroad lines in another, relieve such corporation from being +incorporated under the laws of the latter State.[1026] + + +FEDERAL VERSUS STATE LABOR LAWS + +One group of cases, which has caused the Court some difficulty and its +attitude in which has perhaps shifted in some measure, deals with the +question of the effect of the Wagner, and, latterly, of the Taft-Hartley +Act on State power to govern labor union activities. In a case decided +in 1945[1027] it was held that a Florida statute which required business +agents of a union operating in the State to file annual reports and pay +an annual fee of one dollar conflicted with the Wagner Act,[1028] +standing, as the Court put it, "'as an obstacle to the accomplishment +and execution of the full purposes and objectives of Congress.'"[1029] +In two cases decided in 1949, however, State legislation regulative of +labor relations was sustained. In one a "cease and desist" order of the +Wisconsin Employment Relations Board[1030] implementing the State +Employment Peace Act, which made it an unfair labor practice for an +employee to interfere with production except by leaving the premises in +an orderly manner for the purpose of going on strike, was found not to +conflict with either the Wagner or the Taft-Hartley Act,[1031] both of +which, the Court asserted, designedly left open an area for State +control. In the other,[1032] the Wisconsin board, acting under the same +statute, was held to be within its powers in labelling as "an unfair +labor practice" the discharge by an employer of an employee under a +maintenance of membership clause which had been inserted in the contract +of employment in 1943 under pressure from the National War Labor Board, +but which was contrary to provisions of the Wisconsin Act. On the other +hand, in 1950, the Court invalidated a Michigan mediation statute, and +in 1951, a Wisconsin Public Utility Anti-Strike Act, on the ground that +these matters were governed by the policies embodied in the Wagner and +Taft-Hartley Acts.[1033] + + +Commerce With Indian Tribes + + +UNITED STATES _v._ KAGAMA + +Congress is given power to regulate commerce "with the Indian tribes." +Faced in 1886 with a Congressional enactment which prescribed a system +of criminal laws for Indians living on their reservations, the Court +rejected the government's argument which sought to base the act on the +commerce clause. It sustained the act, however, on the following +grounds: "From their very weakness and helplessness, so largely due to +the course of dealing of the Federal Government with them and the +treaties in which it has been promised, there arises the duty of +protection, and with it the power. This has always been recognized by +the Executive and by Congress, and by this Court, whenever the question +has arisen. * * * The power of the General Government over these +remnants of a race once powerful, now weak and diminished in numbers, +is necessary to their protection, as well as to the safety of those +among whom they dwell. It must exist in that government, because it +never has existed anywhere else, because the theatre of its exercise is +within the geographical limits of the United States, because it has +never been denied, and because it alone can enforce its laws on all the +tribes." Moreover, such power was operative within the States.[1034] + +Obviously, this line of reasoning renders the commerce clause +superfluous as a source of power over the Indian tribes; and some years +earlier, in 1871, Congress had forbidden the further making of treaties +with them.[1035] However, by a characteristic judicial device the effort +has been made at times to absorb the doctrine of the Kagama case into +the commerce clause,[1036] although more commonly the Court, in +sustaining Congressional legislation, prefers to treat the commerce +clause and "the recognized relations of tribal Indians," as joint +sources of Congress's power.[1037] Most of the cases have arisen, in +fact, in connection with efforts by Congress to ban the traffic in "fire +water" with tribal Indians. In this connection it has been held that +even though an Indian has become a citizen, yet so long as he remains a +member of his tribe, under the charge of an Indian agent, and so long as +the United States holds in trust the title to land which has been +allotted him, Congress can forbid the sale of intoxicants to him.[1038] +Also Congress can prohibit the introduction of intoxicating liquors into +land occupied by a tribe of uncivilized Indians within territory +admitted to statehood.[1039] Nor can a State withdraw Indians within its +borders from the operation of acts of Congress regulating trade with +them by conferring on them rights of citizenship and suffrage, whether +by its constitution or its statutes.[1040] And when a State is admitted +into the Union Congress may, in the enabling act, reserve authority to +legislate in the future respecting the Indians residing within the new +State, and may declare that existing acts of Congress relating to +traffic and intercourse with them shall remain in force.[1041] + + +Clause 4. _The Congress shall have Power_ * * * To establish an uniform +Rule of Naturalization, and uniform Laws on the subject of Bankruptcies +throughout the United States. + + +Naturalization and Citizenship + + +CATEGORIES OF NATURALIZED PERSONS + +Naturalization has been defined by the Supreme Court as "the act of +adopting a foreigner, and clothing him with the privileges of a native +citizen, * * *"[1042] In the Dred Scott Case,[1043] the Court asserted +that the power of Congress under this clause applies only to "persons +born in a foreign country, under a foreign government."[1044] These +dicta are much too narrow to sustain the power which Congress has +actually exercised on the subject. The competence of Congress in this +field merges, in fact, with its indefinite, inherent powers in the field +of foreign relations. In the words of the Court: "As a government, the +United States is invested with all the attributes of sovereignty. As it +has the character of nationality it has the powers of nationality, +especially those which concern its relations and intercourse with other +countries."[1045] By the Immigration and Nationality Act of June 27, +1952,[1046] which codifies much previous legislation, it is enacted that +the following shall be citizens of the United States at birth: + +"(1) a person born in the United States, and subject to the jurisdiction +thereof; + +"(2) a person born in the United States to a member of an Indian, Eskimo, +Aleutian, or other aboriginal tribe: _Provided_, That the granting of +citizenship under this subsection shall not in any manner impair or +otherwise affect the right of such person to tribal or other property; + +"(3) a person born outside of the United States and its outlying +possessions of parents both of whom are citizens of the United States +and one of whom has had a residence in the United States or one of its +outlying possessions, prior to the birth of such person; + +"(4) a person born outside of the United States and its outlying +possessions of parents one of whom is a citizen of the United States who +has been physically present in the United States or one of its outlying +possessions for a continuous period of one year prior to the birth of +such person, and the other of whom is a national, but not a citizen of +the United States; + +"(5) a person born in an outlying possession of the United States of +parents one of whom is a citizen of the United States who has been +physically present in the United States or one of its outlying +possessions for a continuous period of one year at any time prior to the +birth of such person; + +"(6) a person of unknown parentage found in the United States while under +the age of five years, until shown, prior to his attaining the age of +twenty-one years, not to have been born in the United States; + +"(7) a person born outside the geographical limits of the United States +and its outlying possessions of parents one of whom is an alien, and the +other a citizen of the United States who, prior to the birth of such +person, was physically present in the United States or its outlying +possessions for a period or periods totaling not less than ten years, at +least five of which were after attaining the age of fourteen years: +_Provided_, That any periods of honorable service in the Armed Forces of +the United States by such citizen parent may be included in computing +the physical presence requirements of this paragraph."[1047] By the same +act, "persons born in the Canal Zone and Panama after February 26, 1904, +one or both of whose parents were at the time of birth of such person +citizens of the United States, are declared to be citizens of the United +States; as likewise are of certain categories of persons born in Puerto +Rico, Alaska, Hawaii, the Virgin Islands and Guam on or after certain +stated dates."[1048] + + +WHO ARE ELIGIBLE FOR NATURALIZATION + +Naturalization is a privilege to be given, qualified, or withheld as +Congress may determine, which an alien may claim only upon compliance +with the terms which Congress imposes. Earlier the privilege was +confined to white persons and persons of African descent, but was +extended by the Act of December 17, 1943, to descendants of races +indigenous to the Western Hemisphere and Chinese persons or persons of +Chinese descent;[1049] and by the Act of June 27, 1952, "the rights of a +person to become a naturalized citizen of the United States shall not be +denied or abridged because of race or sex or because the person is +married."[1050] But, any person "who advocates or teaches or who is a +member of or affiliated with any organization that advocates or teaches +* * *" opposition to all organized government, or "who advocates or +teaches or who is a member of or affiliated with any organization that +advocates or teaches the overthrow by force or violence or other +unconstitutional means of the Government of the United States" may not +be naturalized as a citizen of the United States.[1051] These +restrictive provisions are, moreover, "applicable to any applicant for +naturalization who at any time within a period of ten years immediately +preceding the filing of the petition for naturalization or after such +filing and before taking the final oath of citizenship is, or has been +found to be within any of the classes enumerated within this section, +notwithstanding that at the time the petition is filed he may not be +included within such classes."[1052] + + +THE PROCEDURE OF NATURALIZATION + +This involves as its principal and culminating event the taking in open +court by the applicant of an oath: "(1) to support the Constitution of +the United States; (2) to renounce and abjure absolutely and entirely +all allegiance and fidelity to any foreign prince, potentate, state, or +sovereignty of whom or which the petitioner was before a subject or +citizen; (3) to support and defend the Constitution and the laws of the +United States against all enemies, foreign and domestic; (4) to bear +true faith and allegiance to the same; and (5)(A) to bear arms on behalf +of the United States when required by the law, or (B) to perform +noncombatant service in the Armed Forces of the United States when +required by the law, or (C) to perform work of national importance under +civilian direction when required by law."[1053] Any naturalized person +who takes this oath with mental reservations or conceals beliefs and +affiliations which under the statute disqualify one for naturalization, +is subject, upon these facts being shown in a proceeding brought for the +purpose, to have his certificate of naturalization cancelled.[1054] +Furthermore, if a naturalized person shall within five years "following +his naturalization become a member of or affiliated with any +organization, membership in or affiliation with which at the time of +naturalization would have precluded such person from naturalization +under the provisions of section 313, it shall be considered prima facie +evidence that such person was not attached to the principles of the +Constitution of the United States and was not well disposed to the good +order and happiness of the United States at the time of naturalization, +and, in the absence of countervailing evidence, it shall be sufficient +in the proper proceeding to authorize the revocation and setting aside +of the order admitting such person to citizenship and the cancellation +of the certificate of naturalization as having been obtained by +concealment of a material fact or by willful misrepresentation. * * *" +[1055] + + +RIGHTS OF NATURALIZED PERSONS + +Chief Justice Marshall early stated the dictum that "a naturalized +citizen * * * become[s] a member of the society, possessing all the +rights of a native citizen, and standing, in the view of the +Constitution, on the footing of a native. The Constitution does not +authorize Congress to enlarge or abridge those rights. The simple power +of the national legislature is, to prescribe a uniform rule of +naturalization, and the exercise of this power exhausts it, so far as +respects the individual."[1056] A similar idea was expressed in 1946 in +Knauer _v._ United States:[1057] "Citizenship obtained through +naturalization is not a second-class citizenship. * * * [It] carries +with it the privilege of full participation in the affairs of our +society, including the right to speak freely, to criticize officials and +administrators, and to promote changes in our laws including the very +Charter of our Government."[1058] But, as shown above, a naturalized +citizen is subject at any time to have his good faith in taking the oath +of allegiance to the United States inquired into, and to lose his +citizenship if lack of such faith is shown in proper proceedings.[1059] +Also, "a person who has become a national by naturalization" may lose +his nationality by "having a continuous residence for three years in the +territory of a foreign state of which he was formerly a national or in +which the place of his birth is situated," or by "having a continuous +residence for five years in any other foreign state or states."[1060] +However, in the absence of treaty or statute to the contrary effect, a +child born in the United States who is taken during minority to the +country of his parents' origin, where his parents resume their former +allegiance, does not thereby lose his American citizenship provided that +on attaining his majority he elects to retain it and returns to the +United States to assume its duties.[1061] + + +CONGRESS' POWER EXCLUSIVE + +Congress' power over naturalization is an exclusive power. A State +cannot denationalize a foreign subject who has not complied with federal +naturalization law and constitute him a citizen of the United States, or +of the State, so as to deprive the federal courts of jurisdiction over a +controversy between him and a citizen of a State.[1062] But power to +naturalize aliens may be, and early was, devolved by Congress upon state +courts having a common law jurisdiction.[1063] Also States may confer +the right of suffrage upon resident aliens who have declared their +intention to become citizens, and have frequently done so.[1064] + + +RIGHT OF EXPATRIATION: LOSS OF CITIZENSHIP + +Notwithstanding evidence in early court decisions[1065] and in the +Commentaries of Chancellor Kent of a brief acceptance of the ancient +English doctrine of perpetual and unchangeable allegiance to the +government of one's birth, whereby a citizen is precluded from +renouncing his allegiance without permission of that government, the +United States, since enactment of the act of 1868,[1066] if indeed not +earlier, has expressly recognized the right of everyone to expatriate +himself and choose another country. Retention of citizenship is not +dependent entirely, however, upon the desires of the individual; for, +although it has been "conceded that a change of citizenship cannot be +arbitrarily imposed, that is, imposed without the concurrence of the +citizen," the United States, by virtue of the powers which inhere in it +as a sovereign nation, has been deemed competent to provide that an +individual voluntarily entering into certain designated conditions +shall, as a consequence thereof, suffer the loss of citizenship.[1067] + + +Exclusion of Aliens + +The power of Congress "to exclude aliens from the United States and to +prescribe the terms and conditions on which they come in" is absolute, +being an attribute of the United States as a sovereign nation. In the +words of the Court: "That the government of the United States, through +the action of the legislative department, can exclude aliens from its +territory is a proposition which we do not think open to controversy. +Jurisdiction over its own territory to that extent is an incident of +every independent nation. It is a part of its independence. If it could +not exclude aliens, it would be to that extent subject to the control of +another power. * * * The United States, in their relation to foreign +countries and their subjects or citizens are one nation, invested with +powers which belong to independent nations, the exercise of which can be +invoked for the maintenance of its absolute independence and security +throughout its entire territory."[1068] By the Immigration and +Nationality Act of June 27, 1952, some thirty-one categories of aliens +are excluded from the United States[1069] including "aliens who are, or +at any time have been, members * * * of or affiliated with any +organization that advocates or teaches * * * the overthrow by force, +violence, or other unconstitutional means of the Government of the +United States * * *"[1070] + +With this power of exclusion goes also the power to assert a +considerable degree of control over aliens after their admission to the +country. By the Alien Registration Act of 1940[1071] it was provided +that all aliens in the United States, fourteen years of age and over, +should submit to registration and finger printing, and wilful failure to +do so was made a criminal offense against the United States. This Act, +taken in conjunction with other laws regulating immigration and +naturalization, has constituted a comprehensive and uniform system for +the regulation of all aliens and precludes enforcement of a State +registration act. Said the Court, speaking by Justice Black: "With a +view to limiting prospective residents from foreign lands to those +possessing the qualities deemed essential to good and useful citizenship +in America, carefully defined qualifications are required to be met +before aliens may enter our country. These qualifications include rigid +requirements as to health, education, integrity, character, and +adaptability to our institutions. Nor is the alien left free from the +application of federal laws after entry and before naturalization. If +during the time he is residing here he should be found guilty of conduct +contrary to the rules and regulations laid down by Congress, he can be +deported. At the time he enters the country, at the time he applies for +permission to acquire the full status of citizenship, and during the +intervening years, he can be subjected to searching investigations as to +conduct and suitability for citizenship."[1072] The Act of June 27, +1952, repeats these requirements of the Act of 1940.[1073] + +Recent cases underscore the sweeping nature of the powers of the +National Government to exclude aliens from the United States and to +deport by administrative process members of excluded classes. In Knauff +_v._ Shaughnessy,[1074] decided early in 1950, an order of the Attorney +General excluding, on the basis of confidential information, a wartime +bride who was prima facie entitled to enter the United States under The +War Brides Act of 1945,[1075] was held to be not reviewable by the +courts; nor were regulations on which the order was based invalid as +representing an undue delegation of legislative power. Said the Court: +"Normally Congress supplies the conditions of the privilege of entry +into the United States. But because the power of exclusion of aliens is +also inherent in the executive department of the sovereign, Congress may +in broad terms authorize the executive to exercise the power, e.g., as +was done here, for the best interests of the country during a time of +national emergency. Executive officers may be entrusted with the duty of +specifying the procedures for carrying out the congressional +intent."[1076] + +In cases decided in March and April, 1952, comparable results were +reached: The Internal Security Act of 1950, section 23, in authorizing +the Attorney General to hold in custody, without bail, aliens who are +members of the Communist Party of the United States, pending +determination as to their deportability, is not unconstitutional.[1077] +Nor was it unconstitutional to deport under the Alien Registration Act +of 1940[1078] a legally resident alien because of membership in the +Communist Party, although such membership ended before the enactment of +the Act. Such application of the Act did not make it _ex post facto_, +being but an exercise of the power of the United States to terminate its +hospitality _ad libitum_.[1079] And a statutory provision[1080] which +makes it a felony for an alien against whom a specified order of +deportation is outstanding "to willfully fail or refuse to make timely +application for travel or other documents necessary to his departure" is +not on its face void for "vagueness."[1081] + +The power of Congress to legislate with respect to the conduct of alien +residents is, however, a concomitant of its power to prescribe the terms +and conditions on which they may enter the United States; to establish +regulations for sending out of the country such aliens as have entered +in violation of law; and to commit the enforcement of such conditions +and regulations to executive officers. It is not a power to lay down a +special code of conduct for alien residents or to govern private +relations with them. Purporting to enforce the above distinction, the +Court, in 1909, held void a statutory provision which, in prohibiting +the importation of "any alien woman or girl for the purpose of +prostitution," provided further that whoever should keep for the purpose +of prostitution "any alien woman or girl within three years after she +shall have entered the United States" should be deemed guilty of a +felony and punished therefor.[1082] Three Justices, however, thought the +measure justifiable on the principle that "for the purpose of excluding +those who unlawfully enter this country Congress has power to retain +control over aliens long enough to make sure of the facts. * * * To this +end it may make their admission conditional for three years. * * *" +[And] "if Congress can forbid the entry * * *, it can punish those who +cooperate in their fraudulent entry."[1083] + + +Bankruptcy + + +PERSONS WHO MAY BE RELEASED FROM DEBT + +In an early case on circuit Justice Livingston suggested that inasmuch +as the English statutes on the subject of bankruptcy from the time of +Henry VIII down had applied only to traders it might "well be doubted, +whether an act of Congress subjecting to such a law every description of +persons within the United States, would comport with the spirit of the +powers vested in them in relation to this subject."[1084] Neither +Congress nor the Supreme Court has ever accepted this limited view. The +first bankruptcy law, passed in 1800, departed from the English practice +to the extent of including bankers, brokers, factors and underwriters as +well as traders.[1085] Asserting that the narrow scope of the English +statutes was a mere matter of policy, which by no means entered into the +nature of such laws, Justice Story defined a law on the subject of +bankruptcies in the sense of the Constitution as a law making provisions +for cases of persons failing to pay their debts.[1086] This +interpretation has been ratified by the Supreme Court. In Hanover +National Bank _v._ Moyses,[1087] it held valid the Bankruptcy Act of +1898 which provided that persons other than traders might become +bankrupts and that this might be done on voluntary petition. The Court +has given tacit approval to the extension of the bankruptcy laws to +cover practically all classes of persons and corporations,[1088] +including even municipal corporations.[1089] + + +LIBERALIZATION OF RELIEF GRANTED + +As the coverage of the bankruptcy laws has been expanded, the scope of +the relief afforded to debtors has been correspondingly enlarged. The +act of 1800, like its English antecedents, was designed primarily for +the benefit of creditors. Beginning with the act of 1841, which opened +the door to voluntary petitions, rehabilitation of the debtor has become +an object of increasing concern to Congress. An adjudication in +bankruptcy is no longer requisite to the exercise of bankruptcy +jurisdiction. In 1867 the debtor for the first time was permitted, +either before or after adjudication of bankruptcy, to propose terms of +composition which would become binding upon acceptance by a designated +majority of his creditors and confirmation by a bankruptcy court. This +measure was held constitutional,[1090] as were later acts which provided +for the reorganization of corporations which are insolvent or unable to +meet their debts as they mature,[1091] and for the composition and +extension of debts in proceedings for the relief of individual +farmer-debtors.[1092] Nor is the power of Congress limited to adjustment +of the rights of creditors. The Supreme Court has also ruled that the +rights of a purchaser at a judicial sale of the debtor's property are +within reach of the bankruptcy power, and may be modified by a +reasonable extension of the period for redemption from such sale.[1093] +The sympathetic attitude with which the Court has viewed these +developments is reflected in the opinion in Continental Illinois +National Bank and Trust Co. _v._ Chicago, R.I. and P.R. Co.,[1094] where +Justice Sutherland wrote, on behalf of a unanimous court: "* * * these +acts, far-reaching though they may be, have not gone beyond the limit of +Congressional power; but rather have constituted extensions into a field +whose boundaries may not yet be fully revealed."[1095] + + +CONSTITUTIONAL LIMITATIONS ON THE POWER + +In the exercise of its bankruptcy powers Congress must not transgress +the Fifth and Tenth Amendments. It may not take from a creditor specific +property previously acquired from a debtor nor circumscribe the +creditor's right to such an unreasonable extent as to deny him due +process of law;[1096] neither may it subject the fiscal affairs of a +political subdivision of a State to the control of a federal bankruptcy +court.[1097] Since Congress may not supersede the power of a State to +determine how a corporation shall be formed, supervised and dissolved, a +corporation which has been dissolved by a decree of a State court may +not file a petition for reorganization under the Bankruptcy Acts.[1098] +But Congress may impair the obligation of a contract and may extend the +provisions of the bankruptcy laws to contracts already entered into at +the time of their passage.[1099] It may also empower courts of +bankruptcy to entertain petitions by taxing agencies or +instrumentalities for a composition of their indebtedness where the +State has consented to the proceeding and the federal court is not +authorized to interfere with the fiscal or governmental affairs of the +petitioner.[1100] Also bankruptcy legislation must be uniform, but the +uniformity required is geographic, not personal. Congress may recognize +the laws of the States relating to dower, exemption, the validity of +mortgages, priorities of payment and similar matters, even though such +recognition leads to different results from State to State.[1101] + + +THE POWER NOT EXCLUSIVE + +Prior to 1898 Congress exercised the power to establish "uniform laws on +the subject of bankruptcies" only very intermittently. The first +national bankruptcy law was not enacted until 1800 to be repealed in +1803; the second was passed in 1841 and repealed two years later; the +third was enacted in 1867 and repealed in 1878.[1102] Thus during the +first 89 years under the Constitution a national bankruptcy law was in +existence only sixteen years altogether. Consequently the most important +problems of interpretation which arose during that period concerned the +effect of this clause on State law. The Supreme Court ruled at an early +date that in the absence of Congressional action the States may enact +insolvency laws since it is not the mere existence of the power but +rather its exercise which is incompatible with the exercise of the same +power by the States.[1103] Later cases were to settle further that the +enactment of a national bankruptcy law does not invalidate State laws in +conflict therewith but serves only to relegate them to a state of +suspended animation with the result that upon repeal of the national +statute they again come into operation without reenactment.[1104] + + +CONSTITUTIONAL STATUS OF STATE INSOLVENCY LAWS + +A State is, of course, without power to enforce any law governing +bankruptcies which impairs the obligation of contracts,[1105] extends to +persons or property outside its jurisdiction,[1106] or conflicts with +the national bankruptcy laws.[1107] Giving effect to the policy of the +federal statute, the Supreme Court has held that a State statute +regulating the distribution of property of an insolvent was suspended by +that law,[1108] and that a State court was without power to proceed with +pending foreclosure proceedings after a farmer-debtor had filed a +petition in the federal bankruptcy court for a composition or extension +of time to pay his debts.[1109] A State law governing fraudulent +transfers was found to be compatible with the act of Congress,[1110] as +was a statute which provided that a discharge in bankruptcy should be +unavailing to terminate the suspension of the driver's license of a +person who failed to pay a judgment rendered against him for damages +resulting from his negligent operation of a motor vehicle.[1111] If a +State desires to participate in the assets of a bankrupt it must submit +to the appropriate requirements of the Bankruptcy Court with respect to +the filing of claims by a designated date; it cannot assert a claim for +taxes by filing a demand therefor at a later date.[1112] + + +Clauses 5 and 6. _The Congress shall have Power_ * * * To coin Money, +regulate the Value thereof, and of foreign Coin, and fix the Standard of +Weights and Measures. + +* * * To provide for the Punishment of counterfeiting the Securities and +current Coin of the United States. + + +Fiscal and Monetary Powers of Congress + + +COINAGE, WEIGHTS AND MEASURES + +The power "to coin money" and "regulate the value thereof" has been +broadly construed to authorize regulation of every phase of the subject +of currency. Congress may charter banks and endow them with the right to +issue circulating notes,[1113] and may restrain the circulation of notes +not issued under its own authority.[1114] To this end it may impose a +prohibitive tax upon the circulation of the notes of State banks[1115] +or of municipal corporations.[1116] It may require the surrender of gold +coin and of gold certificates in exchange for other currency not +redeemable in gold. A plaintiff who sought payment for the gold coin and +certificates thus surrendered in an amount measured by the higher market +value of gold, was denied recovery on the ground that he had not proved +that he would suffer any actual loss by being compelled to accept an +equivalent amount of other currency.[1117] Inasmuch as "every contract +for the payment of money, simply, is necessarily subject to the +constitutional power of the government over the currency, whatever that +power may be, and the obligation of the parties is, therefore, assumed +with reference to that power,"[1118] the Supreme Court sustained the +power of Congress to make Treasury notes legal tender in satisfaction of +antecedent debts,[1119] and, many years later, to abrogate the clauses +in private contracts calling for payment in gold coin, even though such +contracts were executed before the legislation was passed.[1120] The +power to coin money also imports authority to maintain such coinage as a +medium of exchange at home, and to forbid its diversion to other uses by +defacement, melting or exportation.[1121] + + +THE PUNISHMENTS OF COUNTERFEITING + +In its affirmative aspect this clause has been given a narrow +interpretation; it has been held not to cover the circulation of +counterfeit coin or the possession of equipment susceptible of use for +making counterfeit coin.[1122] At the same time the Supreme Court has +rebuffed attempts to read into this provision a limitation upon either +the power of the States or upon the powers of Congress under the +preceding clause. It has ruled that a State may punish the utterance of +forged coins.[1123] On the ground that the power of Congress to coin +money imports "the correspondent and necessary power and obligation to +protect and to preserve in its purity this constitutional currency for +the benefit of the nation,"[1124] it has sustained federal statutes +penalizing the importation or circulation of counterfeit coin,[1125] or +the willing and conscious possession of dies in the likeness of those +used for making coins of the United States.[1126] In short, the above +clause is entirely superfluous. Congress would have had the power which +it purports to confer under the necessary and proper clause; and the +same is the case with the other enumerated crimes which it is authorized +to punish. The enumeration was unnecessary and is not exclusive.[1127] + + +THE BORROWING POWER VERSUS THE FISCAL POWER + +Usually the aggregate of the fiscal and monetary powers of the National +Government--to lay and collect taxes, to borrow money and to coin money +and regulate the value thereof--have reinforced each other, and, +cemented by the necessary and proper clause, have provided a secure +foundation for acts of Congress chartering banks and other financial +institutions,[1128] or making its treasury notes legal tender in the +payment of antecedent debts.[1129] But in 1935 the opposite situation +arose--one in which the power to regulate the value of money collided +with the obligation incurred in the exercise of the power to borrow +money. By a vote of eight-to-one the Supreme Court held that the +obligation assumed by the exercise of the latter was paramount, and +could not be repudiated to effectuate the monetary policies of +Congress.[1130] In a concurring opinion Justice Stone declined to join +with the majority in suggesting that "the exercise of the sovereign +power to borrow money on credit, which does not override the sovereign +immunity from suit, may nevertheless preclude or impede the exercise of +another sovereign power, to regulate the value of money; or to suggest +that although there is and can be no present cause of action upon the +repudiated gold clause, its obligation is nevertheless, in some manner +and to some extent, not stated, superior to the power to regulate the +currency which we now hold to be superior to the obligation of the +bonds."[1131] + + +Clause 7. _The Congress shall have Power_ * * * To establish Post +Offices and post Roads. + + +The Postal Power + + +"ESTABLISH" + +The great question raised in the early days with reference to the postal +clause concerned the meaning to be given to the word "establish"--did it +confer upon Congress the power to _construct_ post offices and post +roads, or only the power to _designate_ from existing places and routes +those that should serve as post offices and post roads? As late as 1855 +Justice McLean stated that this power "has generally been considered as +exhausted in the designation of roads on which the mails are to be +transported," and concluded that neither under the commerce power nor +the power to establish post roads could Congress construct a bridge over +a navigable water.[1132] A decade earlier, however, the Court, without +passing upon the validity of the original construction of the Cumberland +Road, held that being "charged, * * *, with the transportation of the +mails," Congress could enter a valid compact with the State of +Pennsylvania regarding the use and upkeep of the portion of the road +lying in that State.[1133] The debate on the question was terminated in +1876 by the decision in Kohl _v._ United States[1134] sustaining a +proceeding by the United States to appropriate a parcel of land in +Cincinnati as a site for a post office and courthouse. + + +POWER TO PROTECT THE MAILS + +The postal powers of Congress embrace all measures necessary to insure +the safe and speedy transit and prompt delivery of the mails.[1135] And +not only are the mails under the protection of the National Government, +they are in contemplation of law its property. This principle was +recognized by the Supreme Court in 1845 in holding that wagons carrying +United States mail were not subject to a State toll tax imposed for use +of the Cumberland Road pursuant to a compact with the United +States.[1136] Half a century later it was availed of as one of the +grounds on which the national executive was conceded the right to enter +the national courts and demand an injunction against the authors of any +wide-spread disorder interfering with interstate commerce and the +transmission of the mails.[1137] + + +ANTI-SLAVERY AND THE MAILS + +Prompted by the efforts of Northern anti-slavery elements to disseminate +their propaganda in the Southern States through the mails, President +Jackson, in his annual message to Congress in 1835, suggested "the +propriety of passing such a law as will prohibit, under severe +penalties, the circulation in the Southern States, through the mail, of +incendiary publications intended to instigate the slaves to +insurrection."[1138] In the Senate John C. Calhoun resisted this +recommendation, taking the position that it belonged to the States and +not to Congress to determine what is and what is not calculated to +disturb their security. He expressed the fear that if Congress might +determine what papers were incendiary, and as such prohibit their +circulation through the mail, it might also determine what were not +incendiary and enforce their circulation.[1139] + + +POWER TO PREVENT HARMFUL USE OF THE POSTAL FACILITIES + +Some thirty years later Congress passed the first of a series of acts to +exclude from the mails publications designed to defraud the public or +corrupt its morals. In the pioneer case of Ex parte Jackson,[1140] the +Court sustained the exclusion of circulars relating to lotteries on the +general ground that "the right to designate what shall be carried +necessarily involves the right to determine what shall be +excluded."[1141] The leading fraud order case, decided in 1904, holds to +the same effect.[1142] Pointing out that it is "an indispensable adjunct +to a civil government," to supply postal facilities, the Court restated +its premise that the "legislative body in thus establishing a postal +service, may annex such conditions to it as it chooses."[1143] Later +cases appear to have qualified these sweeping declarations. In upholding +requirements that publishers of newspapers and periodicals seeking +second-class mailing privileges file complete information regarding +ownership, indebtedness and circulation and that all paid advertisements +in such publications be marked as such, the Court emphasized that these +provisions were reasonably designed to safeguard the second-class +privilege from exploitation by mere advertising publications. Chief +Justice White warned that the Court by no means intended to imply that +it endorsed the government's "broad contentions concerning the existence +of arbitrary power through the classification of the mails, or by way of +condition * * *"[1144] Again, in Milwaukee Social Democratic Publishing +Co. _v._ Burleson,[1145] where the Court sustained an order of the +Postmaster General excluding from the second-class privilege a newspaper +which he found to have systematically published matter banned by the +Espionage Act of 1917, the claim of absolute power in Congress to +withhold this privilege was sedulously avoided. More recently, when +reversing an order denying the second-class privilege to a mailable +publication because of the poor taste and vulgarity of its contents, on +the ground that the Postmaster General exceeding his statutory +authority, Justice Douglas assumed, in the opinion of the Court, "that +Congress has a broad power of classification and need not open +second-class mail to publications of all types."[1146] + + +THE EXCLUSION POWER AS AN ADJUNCT TO OTHER POWERS + +In the cases just reviewed the mails were closed to particular types of +communication which were deemed to be harmful. A much broader power of +exclusion was asserted in the Public Utility Holding Company Act of +1935.[1147] To induce compliance with the regulatory requirements of +that act, Congress denied the privilege of using the mails for any +purpose to holding companies which failed to obey that law, irrespective +of the character of the material to be carried. Viewing the matter +realistically, the Supreme Court treated this provision as a penalty. +While it held this statute constitutional because the regulations whose +infractions were thus penalized were themselves valid,[1148] it declared +that "Congress may not exercise its control over the mails to enforce a +requirement which lies outside its constitutional province, +* * *."[1149] + + +STATE REGULATIONS AFFECTING THE MAILS + +In determining the extent to which State laws may impinge upon persons +or corporations whose services are utilized by Congress in executing its +postal powers, the task of the Supreme Court has been to determine +whether particular measures are consistent with the general policies +indicated by Congress. Broadly speaking, the Court has approved +regulations which have a trivial or remote relation to the operation of +the postal service, while disallowing those which constitute a serious +impediment to it. Thus a State statute which granted to one company an +exclusive right to operate a telegraph business in the State was found +to be incompatible with a federal law which, in granting to any +telegraph company the right to construct its lines upon post roads, was +interpreted as a prohibition of State monopolies in a field which +Congress was entitled to regulate in the exercise of its combined power +over commerce and post roads.[1150] An Illinois statute which, as +construed by the State courts, required an interstate mail train to make +a detour of seven miles in order to stop at a designated station, also +was held to be an unconstitutional interference with the power of +Congress under this clause.[1151] But a Minnesota statute which required +intrastate trains to stop at county seats was found to be +unobjectionable.[1152] Local laws classifying postal workers with +railroad employees for the purpose of determining a railroad's liability +for personal injuries,[1153] or subjecting a union of railway mail +clerks to a general law forbidding any "labor organization" to deny any +person membership because of his race, color or creed,[1154] have been +held not to conflict with national legislation or policy in this field. +Despite the interference _pro tanto_ with the performance of a federal +function, a State may arrest a postal employee charged with murder while +he is engaged in carrying out his official duties,[1155] but it cannot +punish a person for operating a mail truck over its highways without +procuring a driver's license from State authorities.[1156] + + +Clause 8. _The Congress shall have Power_ * * * To promote the Progress +of Science and useful Arts, by securing for limited Times to Authors and +Inventors the exclusive Right to their respective Writings and +Discoveries. + + +Copyrights and Patents + + +SCOPE OF THE POWER + +This clause is the foundation upon which the national patent and +copyright laws rest, although it uses neither of those terms. So far as +patents are concerned, modern legislation harks back to the Statute of +Monopolies of 1624, whereby Parliament endowed inventors with the sole +right to their inventions for fourteen years.[1157] Copyright law, in +turn, traces back to the statute of 1710 which secured to authors of +books the sole right of publishing them for designated periods.[1158] +Congress was not, however, by this provision, vested with anything akin +to the royal prerogative in the creation and bestowal of monopolistic +privileges. Its power is limited as to subject matter, and as to the +purpose and duration of the rights granted. Only the writings and +discoveries of authors and inventors may be protected, and then only to +the end of promoting science and the useful arts.[1159] While Congress +may grant exclusive rights only for a limited period, it may extend the +term upon the expiration of the period originally specified, and in so +doing may protect the rights of purchasers and assignees.[1160] The +copyright and patent laws do not have, of their own force, any +extraterritorial operation.[1161] + + +PATENTABLE DISCOVERIES + +The protection afforded by acts of Congress under this clause is limited +to new and useful inventions,[1162] and while a patentable invention is +a mental achievement,[1163] yet for an idea to be patentable it must +have first taken physical form.[1164] Despite the fact that the +Constitution uses the term "discovery" rather than "invention," a patent +may not issue for the discovery of a hitherto unknown phenomenon of +nature; "if there is to be invention from such a discovery, it must come +from the application of the law of nature to a new and useful +end."[1165] Conversely, the mental processes which are thus applied must +display "more ingenuity * * * than the work of a mechanic skilled in the +art";[1166] and while combination patents have been at times +sustained,[1167] the accumulation of old devices is patentable "only +when the whole in some way exceeds the sum of its parts."[1168] The +Court's insistence on the presence of "inventive genius" as the test of +patentability goes far back and has been reiterated again and again in +slightly varying language,[1169] although it seems to have had little +effect on the point of view of the Patent Office.[1170] + + +PROCEDURE IN ISSUING PATENTS + +The standard of patentability is a constitutional standard, and the +question of the validity of a patent is a question of law.[1171] +Congress may authorize the issuance of a patent for an invention by a +special, as well as by general law, provided the question as to whether +the patentees device is in truth an invention is left open to +investigation under the general law.[1172] The function of the +Commissioner of Patents in issuing letters patent is deemed to be +quasi-judicial in character. Hence an act granting a right of appeal +from the Commission to the Court of Appeals for the District of Columbia +is not unconstitutional as conferring executive power upon a judicial +body.[1173] + + +NATURE AND SCOPE OF THE RIGHT SECURED + +The leading case bearing on the nature of the rights which Congress is +authorized to _secure_ is that of Wheaton _v._ Peters. Wheaton charged +Peters with having infringed his copyright on the twelve volumes of +"Wheaton's Reports" wherein are reported the decisions of the United +States Supreme Court for the years from 1816 to 1827 inclusive. Peters's +defense turned on the proposition that inasmuch as Wheaton had not +complied with all of the requirements of the act of Congress, his +alleged copyright was void. Wheaton, while denying this assertion of +fact, further contended that the statute was only intended to _secure_ +him in his pre-existent rights at common law. These at least, he +claimed, the Court should protect. A divided Court held in favor of +Peters on the legal question. It denied, in the first place, that there +was any principle of the common law which protected an author in the +sole right to continue to publish a work once published. It denied, in +the second place, that there is any principle of law, common or +otherwise, which pervades the Union except such as are embodied in the +Constitution and the acts of Congress. Nor, in the third place, it held, +did the word "securing" in the Constitution recognize the alleged common +law principle which Wheaton invoked. The exclusive right which Congress +is authorized to _secure_ to authors and inventors owes its existence +solely to the acts of Congress securing it,[1174] from which it follows +that the rights granted by a patent or copyright are subject to such +qualifications and limitations as Congress, in its unhampered +consultation of the public interest, sees fit to impose.[1175] + +In giving to authors the exclusive right to dramatize any of their +works, Congress did not exceed its powers under this clause. Even as +applied to pantomime dramatization by means of silent motion pictures, +the act was sustained against the objection that it extended the +copyright to ideas rather than to the words in which they were +clothed.[1176] But the copyright of the description of an art in a book +was held not to lay a foundation for an exclusive claim to the art +itself. The latter can be protected, if at all, only by letters +patent.[1177] Since copyright is a species of property distinct from the +ownership of the equipment used in making copies of the matter +copyrighted, the sale of a copperplate under execution did not pass any +right to print and publish the map which the copperplate was designed to +produce.[1178] A patent right may, however, be subjected, by bill in +equity, to payment of a judgment debt of the patentee.[1179] + + +POWER OF CONGRESS OVER PATENT RIGHTS + +Letters patent for a new invention or discovery in the arts confer upon +the patentee an exclusive property in the patented invention which +cannot be appropriated or used by the Government without just +compensation.[1180] Congress may, however, modify rights under an +existing patent, provided vested property rights are not thereby +impaired,[1181] but it does not follow that it may authorize an inventor +to recall rights which he has granted to others or reinvest in him +rights of property which he had previously conveyed for a valuable and +fair consideration.[1182] Furthermore, the rights which the present +statutes confer are subject to the Anti-Trust Acts, though it can be +hardly said that the cases in which the Court has endeavored to draw the +line between the rights claimable by patentees and the kind of +monopolistic privileges which are forbidden by those acts exhibit entire +consistency in their holdings.[1183] + + +STATE POWER AFFECTING PATENTS AND COPYRIGHTS + +Nor do the patent laws displace the police or taxing powers of the +States. Whatever rights are secured to inventors must be enjoyed in +subordination to the general authority of the State over all property +within its limits. A statute of Kentucky requiring the condemnation of +illuminating oils which were inflammable at less than 130 degrees +Fahrenheit, was held not to interfere with any right secured by the +patent laws, although the oil for which the patent was issued could not +be made to comply with State specifications.[1184] In the absence of +federal legislation, a State may prescribe reasonable regulations for +the transfer of patent rights so as to protect its citizens from fraud. +Hence a requirement of State law that the words "given for a patent +right" appear on the face of notes given in payment for such right is +not unconstitutional.[1185] Royalties received from patents or +copyrights are subject to a nondiscriminating State income tax, a +holding to the contrary in 1928 having been subsequently +overruled.[1186] + + +TRADE-MARKS AND ADVERTISEMENTS + +In the famous Trade-Mark Cases,[1187] decided in 1879, the Supreme Court +held void acts of Congress which, in apparent reliance upon this clause, +extended the protection of the law to trade-marks registered in the +Patent Office. "The ordinary trade-mark" said Justice Miller for the +Court, "has no necessary relation to invention or discovery"; nor is it +to be classified "under the head of writings of authors." It does not +"depend upon novelty, invention, discovery, or any work of the +brain."[1188] Not many years later the Court, again speaking through +Justice Miller, ruled that a photograph may be constitutionally +copyright,[1189] while still more recently a circus poster was held to +be entitled to the same protection. In answer to the objection of the +Circuit Court that a lithograph which "has no other use than that of a +mere advertisement * * * (would not be within) the meaning of the +Constitution," Justice Holmes summoned forth the shades of Velasquez, +Whistler, Rembrandt, Ruskin, Degas, and others in support of the +proposition that it is not for the courts to attempt to judge the worth +of pictorial illustrations outside the narrowest and most obvious +limits.[1190] + + +Clause 9. _The Congress shall have Power_ * * * To constitute Tribunals +inferior to the supreme Court; _See_ article III, p. 528. + +Clause 10. _The Congress shall have Power_ * * * To define and punish +Piracies and Felonies committed on the high Seas, and Offences against +the Law of Nations. + + +Piracies, Felonies, and Offenses Against the Law of Nations + + +ORIGIN OF THE CLAUSE + +"When the United States ceased to be a part of the British empire, and +assumed the character of an independent nation, they became subject to +that system of rules which reason, morality, and custom had established +among civilized nations of Europe, as their public law. * * * The +faithful observance of this law is essential to national character, +* * *"[1191] These words of Chancellor Kent expressed the view of the +binding character of International Law which was generally accepted at +the time the Constitution was adopted. During the Revolutionary War, +Congress took cognizance of all matters arising under the law of nations +and professed obedience to that law.[1192] Under the Articles of +Confederation, it was given exclusive power to appoint courts for the +trial of piracies and felonies committed on the high seas, but no +provision was made for dealing with offenses against the law of +nations.[1193] The draft of the Constitution submitted to the Convention +of 1787 by its Committee of Detail empowered Congress "to declare the +law and punishment of piracies and felonies committed on the high seas, +and the punishment of counterfeiting the coin of the United States, and +of offences against the law of nations."[1194] In the debate on the +floor of the Convention the discussion turned on the question as to +whether the terms, "felonies" and the "law of nations," were +sufficiently precise to be generally understood. The view that these +terms were often so vague and indefinite as to require definition +eventually prevailed and Congress was authorized to define as well as +punish piracies, felonies and offenses against the law of nations.[1195] + + +DEFINITION OF OFFENSES + +The fact that the Constitutional Convention considered it necessary to +give Congress authority to define offenses against the law of nations +does not mean that in every case Congress must undertake to codify that +law or mark its precise boundaries before prescribing punishments for +infractions thereof. An act punishing "the crime of piracy, as defined +by the law of nations" was held to be an appropriate exercise of the +constitutional authority to "define and punish" the offense, since it +adopted by reference the sufficiently precise definition of +International Law.[1196] Similarly, in Ex parte Quirin,[1197] the Court +found that by the reference in the Fifteenth Article of War to +"offenders or offenses that * * * by the law of war may be triable by +such military commissions * * *," Congress had "exercised its authority +to define and punish offenses against the law of nations by sanctioning, +within constitutional limitations, the jurisdiction of military +commissions to try persons for offenses which, according to the rules +and precepts of the law of nations, and more particularly the law of +war, are cognizable by such tribunals."[1198] Where, conversely, +Congress defines with particularity a crime which is "an offense against +the law of nations," the law is valid, even if it contains no recital +disclosing that it was enacted pursuant to this clause. Thus the duty +which the law of nations casts upon every government to prevent a wrong +being done within its own dominion to another nation with which it is at +peace, or to the people thereof, was found to furnish a sufficient +justification for the punishment of the counterfeiting within the United +States, of notes, bonds and other securities of foreign +governments.[1199] + + +EXTRATERRITORIAL REACH OF THE POWER + +Since this clause contains the only specific grant of power to be found +in the Constitution for the punishment of offenses outside the +territorial limits of the United States, a lower federal court held in +1932[1200] that the general grant of admiralty and maritime jurisdiction +by article III, section 2, could not be construed as extending either +the legislative or judicial power of the United States to cover offenses +committed on vessels outside the United States but not on the high seas. +Reversing that decision, the Supreme Court held that this provision +"cannot be deemed to be a limitation on the powers, either legislative +or judicial, conferred on the National Government by article III, Sec. 2. +The two clauses are the result of separate steps independently taken in +the Convention, by which the jurisdiction in admiralty, previously +divided between the Confederation and the States, was transferred to the +National Government. It would be a surprising result, and one plainly +not anticipated by the framers or justified by principles which ought to +govern the interpretation of a constitution devoted to the +redistribution of governmental powers, if part of them were lost in the +process of transfer. To construe the one clause as limiting rather than +supplementing the other would be to ignore their history, and without +effecting any discernible purpose of their enactment, to deny to both +the States and the National Government powers which were common +attributes of sovereignty before the adoption of the Constitution. The +result would be to deny to both the power to define and punish crimes of +less gravity than felonies committed on vessels of the United States +while on the high seas, and crimes of every grade committed on them +while in foreign territorial waters."[1201] Within the meaning of this +section an offense is committed on the high seas even where the vessel +on which it occurs is lying at anchor on the road in the territorial +waters of another country.[1202] + + +Clauses 11, 12, 13, and 14. _The Congress shall have power_ * * *: + +To declare War, grant Letters of Marque and Reprisal, and make Rules +concerning Captures on Land and Water. + +To raise and support Armies, but no Appropriation of Money to that Use +shall be for a longer Term than two Years. + +To provide and maintain a Navy. + +To make Rules for the Government and Regulation of the land and naval +Forces. + + +The War Power + + +SOURCE AND SCOPE + +Three different views regarding the source of the war power found +expression in the early years of the Constitution and continued to vie +for supremacy for nearly a century and a half. Writing in The +Federalist,[1203] Hamilton elaborated the theory that the war power is +an aggregate of the particular powers granted by article I, section 8. +Not many years later, in 1795, the argument was advanced that the war +power of the National Government is an attribute of sovereignty and +hence not dependent upon the affirmative grants of the written +Constitution.[1204] Chief Justice Marshall appears to have taken a still +different view, namely that the power to wage war is implied from the +power to declare it. In McCulloch _v._ Maryland[1205] he listed the +power "to declare _and conduct_ a war"[1206] as one of the "enumerated +powers" from which the authority to charter the Bank of the United +States was deduced. During the era of the Civil War the two latter +theories were both given countenance by the Supreme Court. Speaking for +four Justices in Ex Parte Milligan, Chief Justice Chase described the +power to declare war as "necessarily" extending "to all legislation +essential to the prosecution of war with vigor and success, except such +as interferes with the command of the forces and conduct of +campaigns."[1207] In another case, adopting the terminology used by +Lincoln in his Message to Congress on July 4, 1861,[1208] the Court +referred to "the war power" as a single unified power.[1209] + + +AN INHERENT POWER + +Thereafter we find the phrase, "the war power," being used by both Chief +Justice White[1210] and Chief Justice Hughes,[1211] the former declaring +the power to be "complete and undivided."[1212] Not until 1936 however +did the Court explain the logical basis for imputing such an inherent +power to the Federal Government. In United States _v._ Curtiss-Wright +Export Corp.,[1213] the reasons for this conclusion were stated by +Justice Sutherland as follows: "As a result of the separation from Great +Britain by the colonies acting as a unit, the powers of external +sovereignty passed from the Crown not to the colonies severally, but to +the colonies in their collective and corporate capacity as the United +States of America. Even before the Declaration, the colonies were a unit +in foreign affairs, acting through a common agency--namely the +Continental Congress, composed of delegates from the thirteen colonies. +That agency exercised the powers of war and peace, raised an army, +created a navy, and finally adopted the Declaration of Independence. +* * * It results that the investment of the Federal Government with the +powers of external sovereignty did not depend upon the affirmative +grants of the Constitution. The power to declare and wage war, to +conclude peace, to make treaties, to maintain diplomatic relations with +other sovereignties, if they had never been mentioned in the +Constitution, would have vested in the Federal Government as necessary +concomitants of nationality."[1214] + + +A COMPLEXUS OF GRANTED POWERS + +In the more recent case of Lichter _v._ United States,[1215] on the +other hand, the Court speaks of the "war powers" of Congress. Upholding +the Renegotiation Act, it declared that: "In view of this power 'To +raise and support Armies, * * *' and the power granted in the same +Article of the Constitution 'to make all Laws which shall be necessary +and proper for carrying into Execution the foregoing Powers, * * *' the +only question remaining is whether the Renegotiation Act was a law +'necessary and proper for carrying into Execution' the war powers of +Congress and especially its power to support armies."[1216] In a +footnote it listed the Preamble, the necessary and proper clause, the +provisions authorizing Congress to lay taxes and provide for the common +defense, to declare war, and to provide and maintain a navy, together +with the clause designating the President as Commander in Chief of the +Army and Navy, as being "among the many other provisions implementing +the Congress and the President with powers to meet the varied demands of +war, * * *"[1217] + + +A DECLARATION OF WAR, WHEN REQUIRED + +In the first draft of the Constitution presented to the Convention of +1787 by its Committee of Detail Congress was empowered "to make +war."[1218] On the floor of the Convention according to Madison's +Journal "Mr. Madison and Mr. Gerry, moved to insert '_declare_' striking +out '_make_' war; leaving to the Executive the power to repel sudden +attacks"[1219] and their motion was adopted. When the Bey of Tripoli +declared war upon the United States in 1801 a sharp debate was +precipitated as to whether a formal declaration of war by Congress was +requisite to create the legal status of war. Jefferson sent a squadron +of frigates to the Mediterranean to protect our commerce but its mission +was limited to defense in the narrowest sense of the term. After one of +the vessels in this squadron had been engaged by, and had defeated, a +Tripolitan cruiser, the latter was permitted to return home. Jefferson +defended this course in a message to Congress saying, "Unauthorized by +the Constitution, without the sanction of Congress, to go beyond the +line of defence, the vessel being disabled from committing further +hostilities, was liberated with its crew."[1220] Hamilton promptly +espoused a different interpretation of the power given to Congress to +declare war. "It is the peculiar and exclusive province of Congress," he +declared "_when the nation is at peace_ to change that state into a +state of war; whether from calculations of policy, or from provocations, +or injuries received; in other words, it belongs to Congress only _to go +to War_. But when a foreign nation declares or openly and avowedly makes +war upon the United States, they are then by the very fact _already at +war_, and any declaration on the part of Congress is nugatory; it is at +least unnecessary."[1221] Apparently Congress shared the view that a +formal declaration of war was unnecessary. It enacted a statute which +authorized the President to instruct the commanders of armed vessels of +the United States to "seize and make prize of all vessels, goods and +effects, belonging to the Bey of Tripoli, * * *; and also to cause to be +done all such other acts of precaution or hostility as _the state of +war_ will justify, * * *"[1222] + + +THE PRIZE CASES, 1863 + +Sixty years later the Supreme Court, in sustaining the blockade of the +Southern ports which Lincoln had instituted in April 1861, at a time +when Congress was not in session, adopted virtually the same line of +reasoning as Hamilton had advanced. "This greatest of civil wars" said +the Court "was not gradually developed * * * it * * * sprung forth +suddenly from the parent brain, a Minerva in the full panoply of _war_. +The President was bound to meet it in the shape it presented itself, +without waiting for Congress to baptize it with a name; and no name +given to it by him or them could change the fact."[1223] This doctrine +was sharply challenged by a powerful minority of the Court on the ground +that while the President could unquestionably adopt such measures as the +statutes permitted for the enforcement of the laws against insurgents, +Congress alone could stamp an insurrection with the character of war and +thereby authorize the legal consequences which ensue a state of +war.[1224] Inasmuch as the Court finally conceded that the blockade had +been retroactively sanctioned by Congress, that part of its opinion +dealing with the power of the President, acting alone, was really +_obiter_. But a similar opinion was voiced by Chief Justice Chase on +behalf of a unanimous Court, after the war was over. In Freeborn _v._ +The "Protector,"[1225] it became necessary to ascertain the exact dates +on which the war began and ended in order to determine whether the +statute of limitation had run against the asserted claim. To answer this +question the Chief Justice said that "it is necessary, therefore, to +refer to some public act of the political departments of the government +to fix the dates; and, for obvious reasons, those of the executive +department, which may be, and, in fact, was, at the commencement of +hostilities, obliged to act during the recess of Congress, must be +taken. The proclamation of intended blockade by the President may +therefore be assumed as marking the first of these dates, and the +proclamation that the war had closed, as marking the second."[1226] + + +The Power To Raise and Maintain Armed Forces + + +PURPOSE OF SPECIFIC GRANTS + +The clauses of the Constitution which give Congress authority "to raise +and support armies, to provide and maintain a navy" and so forth, were +not inserted for the purpose of endowing the National Government with +power to do these things, but rather to designate the department of +government which should exercise such powers. Moreover, they permit +Congress to take measures essential to the national defense in time of +peace as well as during a period of actual conflict. That these +provisions grew out of the conviction that the Executive should be +deprived of the "sole power of raising and regulating fleets and armies" +which Blackstone attributed to the King under the British +Constitution,[1227] was emphasized by Story in his Commentaries. He +wrote: "Our notions, indeed, of the dangers of standing armies, in time +of peace, are derived in a great measure from the principles and +examples of our English ancestors. In England, the King possessed the +power of raising armies in the time of peace according to his own good +pleasure. And this prerogative was justly esteemed dangerous to the +public liberties. Upon the revolution of 1688, Parliament wisely +insisted upon a bill of rights, which should furnish an adequate +security for the future. But how was this done? Not by prohibiting +standing armies altogether in time of peace; but (as has been already +seen) by prohibiting them _without the consent of Parliament_. This is +the very proposition contained in the Constitution; for Congress can +alone raise armies; and may put them down, whenever they choose."[1228] + + +THE TIME LIMIT ON APPROPRIATIONS FOR THE ARMY + +Prompted by the fear of standing armies to which Story alluded, the +framers inserted the limitation that "no appropriation of money to that +use shall be for a longer term than two years." In 1904 the question +arose whether this provision would be violated if the Government +contracted to pay a royalty for use of a patent in constructing guns and +other equipment where the payments were likely to continue for more than +two years. Solicitor-General Hoyt ruled that such a contract would be +lawful; that the appropriations limited by the Constitution "are those +only which are to raise and support armies in the strict sense of the +word 'support,' and that the inhibition of that clause does not extend +to appropriations for the various means which an army may use in +military operations, or which are deemed necessary for the common +defense, * * *"[1229] Relying on this earlier opinion, Attorney +General Clark ruled in 1948 that there was "no legal objection to a +request to the Congress to appropriate funds to the Air Force for the +procurement of aircraft and aeronautical equipment to remain available +until expended."[1230] + + +ESTABLISHMENT OF THE AIR FORCE + +By the National Security Act of 1947[1231] there was established within +the National Military Establishment "an executive department to be known +as the Department of the Air Force" which was made coordinate with the +Departments of the Army and the Navy. Shortly after the passage of this +Act a Joint Resolution was offered in the House of Representatives, +proposing an amendment to the Constitution whereby Congress would be +authorized to "provide and maintain an Air Force and to make rules for +the government and regulation thereof," and the President would be +designated as Commander in Chief of the Air Force.[1232] Apparently in +the belief that the broad sweep of the war power warranted the creation +of the Air Force, without a constitutional amendment, Congress took no +action on this proposal. + + +CONSCRIPTION + +The constitutions adopted during the Revolutionary War by at least nine +of the States sanctioned compulsory military service.[1233] Towards the +end of the War of 1812, conscription of men for the army was proposed by +James Monroe, then Secretary of War, but opposition developed and peace +came before the bill could be enacted.[1234] In 1863 a compulsory draft +law was adopted and put into operation without being challenged in the +federal courts.[1235] Not so the Selective Service Act of 1917. This +measure was attacked on the grounds that it tended to deprive the States +of the right to "a well-regulated militia," that the only power of +Congress to exact compulsory service was the power to provide for +calling forth the militia for the three purposes specified in the +Constitution, which did not comprehend service abroad, and finally that +the compulsory draft imposed involuntary servitude in violation of the +Thirteenth Amendment. The Supreme Court rejected all of these +contentions. It held that the powers of the States with respect to the +militia were exercised in subordination to the paramount power of the +National Government to raise and support armies, and that the power of +Congress to mobilize an army was distinct from its authority to provide +for calling the militia and was not qualified or in any wise limited +thereby.[1236] Before the United States entered the first World War, the +Court had anticipated the objection that compulsory military service +would violate the Thirteenth Amendment and had answered it in the +following words: "It introduced no novel doctrine with respect of +services always treated as exceptional, and certainly was not intended +to interdict enforcement of those duties which individuals owe to the +State, such as services in the army, militia, on the jury, etc. The +great purpose in view was liberty under the protection of effective +government, not the destruction of the latter by depriving it of +essential powers."[1237] Accordingly, in the Selective Draft Law +Cases[1238] it dismissed the objection under that amendment as a +contention that was "refuted by its mere statement."[1239] + + +CARE OF ARMED FORCES + +Congress has a plenary and exclusive power to determine the age at which +a soldier or seaman shall be received, the compensation he shall be +allowed and the service to which he shall be assigned. This power may be +exerted to supersede parents' control of minor sons who are needed for +military service. Where the statute which required the consent of +parents for enlistment of a minor son did not permit such consent to be +qualified, their attempt to impose a condition that the son carry war +risk insurance for the benefit of his mother was not binding on the +Government.[1240] Since the possession of government insurance payable +to the person of his choice, is calculated to enhance the morale of the +serviceman, Congress may permit him to designate any beneficiary he +desires, irrespective of State law, and may exempt the proceeds from the +claims of creditors.[1241] To safeguard the health and welfare of the +armed forces, Congress may authorize the suppression of houses of ill +fame in the vicinity of the places where such forces are +stationed.[1242] + + +TRIAL AND PUNISHMENT OF OFFENSES + +Under its power to make rules for the Government and regulation of the +land and naval forces, Congress may provide for the trial and punishment +of military and naval offenses in the manner practiced by civilized +nations. This authority is independent of the judicial power conferred +by article III.[1243] "Cases arising in the land and naval forces" are +expressly excepted from the provision of the Fifth Amendment requiring +presentment by a grand jury for capital or infamous and by implication +they are also excepted from Amendment VI,[1244] which relates to the +trial of criminal offenses. Also the Fifth Amendment's provision against +double-jeopardy apparently does not apply to military courts.[1245] A +statute which provided that offenses not specifically mentioned therein +should be punished "according to the laws and customs of such cases at +sea" was held sufficient to give a naval court-martial jurisdiction to +try a seaman of the United States Navy for the unspecified offense of +attempted desertion.[1246] In _habeas corpus_ proceedings a court can +consider only whether the military tribunal had jurisdiction to act in +the case under consideration.[1247] The acts of a court-martial, within +the scope of its jurisdiction and duty, cannot be controlled or reviewed +in the civil courts, by a writ of prohibition or otherwise.[1248] + + +War Legislation + + +THE REVOLUTIONARY WAR LEGISLATION + +The American Revolution affords many precedents for extensive and +detailed regulation of the nation's economy in time of war. But since +the resolves of Congress under the Articles of Confederation were in +practical effect mere recommendations to the State legislatures, it was +the action of the latter which made these policies effective. On +November 22, 1777, for example, Congress recommended to the States that +they take steps "to regulate and ascertain the price of labour, +manufactures, [and] internal produce."[1249] A month later the same body +further recommended "to the respective legislatures of the United +States, forthwith to enact laws, appointing suitable persons to seize +and take, for the use of the continental army of the said States, all +woolen cloths, blankets, linens, shoes, stockings, hats, and other +necessary articles of clothing, * * *"[1250] Responding to such +appeals, or acting on their own initiative, the State legislatures +enacted measure after measure which entrenched upon the normal life of +the community very drastically. Laws were passed forbidding the +distillation of whiskey and other spirits in order to conserve grain +supplies;[1251] fixing prices of labor and commodities, sometimes in +greatest detail;[1252] levying requisitions upon the inhabitants for +supplies needed by the army;[1253] and so on. In one instance a statute +authorized the erection of an arms manufactory for the United +States;[1254] in another, Negro Slaves were impressed for labor on +fortifications.[1255] The fact that all this legislation came from the +State legislatures whereas the war power was attributed to the "United +States in Congress assembled" served to obscure the fact that the +former was really an outgrowth of the latter. + + +CIVIL WAR LEGISLATION + +The most pressing economic problem of the Civil War was that of finance. +When Congress found itself unable to raise money to pay the soldiers in +the field, it authorized the issuance of Treasury notes which, although +not redeemable in specie, were made legal tender in payment of private +debts. Upon its first consideration of this measure, the Supreme Court +held it unconstitutional. It concluded that even if the circulation of +such notes was facilitated by giving them the quality of legal tender, +that result did not suffice to make the expedient an appropriate and +plainly adapted means for the execution of the power to declare and +carry on war.[1256] Three of the seven Justices then constituting the +Court dissented from this decision,[1257] and it was reversed within a +little more than a year, after two vacancies in the membership of the +Court had been filled. One of the grounds relied upon by the new +majority to sustain the statute was that the exigencies of war justified +its enactment under the necessary and proper clause.[1258] + + +WORLD WAR I LEGISLATION + +In meeting the strain which World War I put on our national resources of +men and material, the economic activities of the people were directed or +restricted by the Government on a scale previously unparalleled. The +most sweeping measure of control was the Lever Food and Fuel Control +Act,[1259] which authorized the President to regulate by license the +importation, manufacture, storage, mining or distribution of +necessaries; to requisition foods, feeds, and fuels; to take over and +operate factories, packinghouses, pipelines, mines or other plants; to +fix a minimum price for wheat; to limit, regulate or prohibit the use of +food materials in the production of alcoholic beverages; and to fix the +price of coal and coke and to regulate the production, sale and +distribution thereof. Other statutes clothed him with power to determine +priority in car service,[1260] to license trade with the enemy and his +allies,[1261] and to take over and operate the rail and water +transportation system,[1262] and the telephonic and telegraphic +communication systems,[1263] of the country. + + +WORLD WAR II LEGISLATION + +Several of these World War I measures were still on the statute books +when World War II broke out. Moreover, in the period of preparation +preceding the latter, Congress had enacted the Priorities Act of May 31, +1941[1264] which gave the President power to allocate any material where +necessary to facilitate the defense effort. By the Second War Powers +Act,[1265] passed early in 1942, the authority to allocate materials was +extended to facilities. These two acts furnished the statutory +foundation for the extensive system of consumer rationing administered +by the Office of Price Administration, as well as for the comprehensive +control of industrial materials and output which was exercised by the +War Production Board. Under the Emergency Price Control Act[1266] the +Office of Price Administration regulated the price of almost all +commodities, as well as the rentals for housing accommodations in scores +of defense rental areas. The War Labor Disputes Act[1267] permitted the +President to commandeer plants which were closed by strikes. + + +MOBILIZATION OF INDUSTRIAL RESOURCES + +While the validity of several of the measures just reviewed was assailed +on one constitutional ground or another, the general power of Congress +to regulate their subject matter in time of war was not disputed. Not +until the Government sought to recover excessive profits realized on war +contracts did the Supreme Court have occasion to affirm the broad +authority of the National Government to mobilize the industrial +resources of the nation in time of war. Using the power of Congress to +conscript men for the armed forces as a measure of its power to regulate +industry, the Court sustained the legislation, saying: "The +Renegotiation Act was developed as a major wartime policy of Congress +comparable to that of the Selective Service Act. The authority of +Congress to authorize each of them sprang from its war powers. * * * +With the advent of * * * [global] warfare, mobilized property in the +form of equipment and supplies became as essential as mobilized +manpower. Mobilization of effort extended not only to the uniformed +armed services but to the entire population. Both Acts were a form of +mobilization. The language of the Constitution authorizing such +measures is broad rather than restrictive. * * * [It] * * * places +emphasis upon the supporting as well as upon the raising of armies. The +power of Congress as to both is inescapably express, not merely +implied."[1268] + + +DELEGATION OF LEGISLATIVE POWER IN WARTIME + +While insisting that, "in peace or in war it is essential that the +Constitution be scrupulously obeyed, and particularly that the +respective branches of the Government keep within the powers assigned to +each,"[1269] the Supreme Court has recognized that in the conduct of a +war delegations of power may be valid which would not be admissible in +other circumstances. The cases in which this issue has been raised have +been few in number. In one, the Selective Draft Law cases,[1270] the +objection was dismissed without discussion. In a second, the +price-fixing authority exercised by the Office of Price Administration +during the second world war, was, on the issue of delegation of power, +sustained by reference to peace time precedents.[1271] Where the war +power has been the basis of decision, two different theories concerning +its significance can be recognized. The first is that since the war +power is an inherent power shared by the legislative and executive +departments rather than an enumerated power granted to the former, +Congress does not delegate _legislative_ power when it authorizes the +President to exercise the war power in a prescribed manner. Opposed to +this is the view that the right of Congress to delegate power to the +President is limited in this as in other cases but that where the +validity of the delegation depends upon whether or not too great a +latitude of discretion has been conferred upon the Executive, the +existence of a state of war is a factor to be considered in determining +whether the delegation in the particular case is necessary and hence +permissible. + +The idea that a delegation of discretion in the exercise of the war +power stands on a different footing than delegation of authority to levy +a tax is implicit in Justice Bradley's opinion in Hamilton _v._ +Dillin.[1272] The plaintiffs in that case contended that the sum they +were required to pay for the privileges of buying cotton in the South +was a tax, which, since it was imposed by the Secretary of the Treasury, +was invalid because the taxing power was not susceptible of delegation +to the Executive Department. To this argument the Court replied: "It is +hardly necessary, under the view we have taken of the character of the +regulations in question, * * *, to discuss the question of the +constitutionality of the act of July 13th, 1861, regarded as authorizing +such regulations. * * *, the power of the Government to impose such +conditions upon commercial intercourse with an enemy in time of war +* * * does not belong to the same category as the power to levy and +collect taxes, duties, and excises. It belongs to the war powers of the +Government * * *."[1273] + + +The Mergence of Legislative and Executive in Wartime + +Both theories receive countenance in different passages in the opinion +of Chief Justice Stone in Hirabayashi _v._ United States.[1274] In +disposing of the contention that the curfew imposed upon a citizen of +Japanese descent involved an invalid delegation of legislative power, +the Chief Justice said: "The question then is not one of Congressional +power to delegate to the President the promulgation of the Executive +Order, but whether, acting in cooperation, Congress and the Executive +have constitutional authority to impose the curfew restriction here +complained of. * * *, we conclude that it was within the constitutional +power of Congress and the executive arm of the Government to prescribe +this curfew order for the period under consideration and that its +promulgation by the military commander involved no unlawful delegation +of legislative power. * * * Where, as in the present case, the standard +set up for the guidance of the military commander, and the action taken +and the reasons for it, are in fact recorded in the military orders, so +that Congress, the courts and the public are assured that the orders, in +the judgment of the commander, conform to the standards approved by the +President and Congress, there is no failure in the performance of the +legislative function."[1275] He went on to say, however, that: "The +essentials of [the legislative] * * * function are the determination by +Congress of the legislative policy and its approval of a rule of conduct +to carry that policy into execution. The very necessities which attend +the conduct of military operations in time of war in this instance as in +many others preclude Congress from holding committee meetings to +determine whether there is danger, before it enacts legislation to +combat the danger."[1276] + + +Doctrine of Lichter _v._ United States + +A similar ambiguity is found in Lichter _v._ United States,[1277] but on +the whole the opinion seems to espouse the second theory, as the +following excerpts indicate: "_A constitutional power implies a power of +delegation of authority under it sufficient to effect its +purposes_.--This power is especially significant in connection with +constitutional war powers under which the exercise of broad discretion +as to methods to be employed may be essential to an effective use of its +war powers by Congress. The degree to which Congress must specify its +policies and standards in order that the administrative authority +granted may not be an unconstitutional delegation of its own legislative +power is not capable of precise definition.[1278] * * * Thus, while the +constitutional structure and controls of our Government are our guides +equally in war and in peace, they must be read with the realistic +purposes of the entire instrument fully in mind. In 1942, in the early +stages of total global warfare, the exercise of a war power such as the +power 'To raise and support Armies, * * *' and 'To provide and maintain +a Navy; * * *,' called for the production by us of war goods in +unprecedented volume with the utmost speed, combined with flexibility of +control over the product and with a high degree of initiative on the +part of the producers. Faced with the need to exercise that power, the +question was whether it was beyond the constitutional power of Congress +to delegate to the high officials named therein the discretion contained +in the Original Renegotiation Act of April 28, 1942, and the amendments +of October 21, 1942. We believe that the administrative authority there +granted was well within the constitutional war powers then being put to +their predestined uses."[1279] + + +WAR POWERS IN TIME OF PEACE + +To some indeterminate extent the power to wage war embraces the power to +prepare for it and the further power to deal with the problem of +adjustment after hostilities have ceased. In his Commentaries, Justice +Story wrote as follows with specific reference to the question of +preparation for war: "'It is important also to consider, that the surest +means of avoiding war is to be prepared for it in peace. * * * How could +a readiness for war in time of peace be safely prohibited, unless we +could in like manner prohibit the preparations and establishments of +every hostile nation? The means of security can be only regulated by the +means and the danger of attack. * * * It will be in vain to oppose +constitutional barriers to the impulse of self-preservation.'"[1280] +Authoritative judicial recognition of the power is found in Ashwander +_v._ Tennessee Valley Authority,[1281] where, in sustaining the power of +the Government to construct and operate Wilson Dam and the power plant +connected with it, pursuant to the National Defense Act of June 3, +1916,[1282] the Court said: "While the District Court found that there +is no intention to use the nitrate plants or the hydroelectric units +installed at Wilson Dam for the production of war materials in time of +peace, 'the maintenance of said properties in operating condition and +the assurance of an abundant supply of electric energy in the event of +war, constitute national defense assets.' This finding has ample +support."[1283] + + +Atomic Energy Act + +By far the most significant example of legislation adopted at a time +when no actual "shooting war" was in progress, with the object of +providing for the national defense, is the Atomic Energy Act of +1946.[1284] That law establishes an Atomic Energy Commission of five +members which is empowered to conduct through its own facilities, or by +contracts with, or loans to private persons, research and developmental +activity relating to nuclear processes, the theory and production of +atomic energy and the utilization of fissionable and radioactive +materials for medical, industrial and other purposes. The act further +provides that the Commission shall be the exclusive owner of all +facilities (with minor exceptions) for the production of fissionable +materials; that all fissionable material produced shall become its +property; that it shall allocate such materials for research and +developmental activities, and shall license all transfer of source +materials. The Commission is charged with the duty of producing atomic +bombs, bomb parts, and other atomic military weapons at the direction of +the President. Patents relating to fissionable materials must be filed +with the Commission, the "just compensation" payable to the owners to be +determined by a Patent Compensation Board designated by the Commission +from among its employees. + + +POSTWAR LEGISLATION + +The war power "is not limited to victories in the field. * * * It +carries with it inherently the power to guard against the immediate +renewal of the conflict, and to remedy the evils which have arisen from +its rise and progress."[1285] Accordingly, the Supreme Court held in +1871 that it was within the competence of Congress to deduct from the +period limited by statute for the bringing of an action the time during +which plaintiff had been unable to prosecute his suit in consequence of +the Civil War. This principle was given a much broader application after +the first world war in Hamilton _v._ Kentucky Distilleries and Wine +Co.,[1286] where the War Time Prohibition Act adopted after the signing +of the Armistice was upheld as an appropriate measure for increasing war +efficiency. It was conceded that the measure was valid when enacted, +since the mere cessation of hostilities did not end the war or terminate +the war powers of Congress. The plaintiff contended however that in +October 1919, when the suit was brought, the war emergency had in fact +passed, and that the law was therefore obsolete. Inasmuch as the treaty +of peace had not yet been concluded and other war activities had not +been brought to a close, the Court said it was "unable to conclude" that +the act had ceased to be valid. But in 1924 it held upon the facts that +we judicially know that the rent control law for the District of +Columbia, which had previously been upheld,[1287] had ceased to operate +because the emergency which justified it had come to an end.[1288] A +similar issue was present after World War II in Woods _v._ Miller,[1289] +where the Supreme Court reversed a decision of a lower court to the +effect that the authority of Congress to regulate rents by virtue of the +war power ended with the Presidential proclamation terminating +hostilities on December 31, 1946. This decision was coupled with a +warning that: "We recognize the force of the argument that the effects +of war under modern conditions may be felt in the economy for years and +years, and that if the war power can be used in days of peace to treat +all the wounds which war inflicts on our society, it may not only +swallow up all other powers of Congress but largely obliterate the Ninth +and the Tenth Amendments as well. There are no such implications in +today's decision."[1290] In 1948, a sharply divided Court further ruled +that the power which Congress has conferred upon the President to deport +enemy aliens in time of a declared war was not exhausted when the +shooting war stopped. Speaking for the majority of five, Justice +Frankfurter declared: "It is not for us to question a belief by the +President that enemy aliens who were justifiably deemed fit subjects for +internment during active hostilites [sic] do not lose their potency for +mischief during the period of confusion and conflict which is +characteristic of a state of war even when the guns are silent but the +peace of Peace has not come."[1291] + + +Private Rights in Wartime + + +ENEMY COUNTRY + +Although, broadly speaking, the constitutional provisions designed for +the protection of individual rights are operative in war as well as in +peace, the incidents of war repeatedly give rise to situations in which +judicially enforceable constitutional restraints are inapplicable. In +the first place persons in enemy territory are entirely beyond the reach +of constitutional limitations. They are subject, in relation to the war +powers of the National Government, to the laws of war as interpreted and +applied by Congress and by the President as Commander in Chief. To the +question: "What is the law which governs an army invading an enemy's +country?" the Court gave the following answer in Dow _v._ Johnson:[1292] +"It is not the civil law of the invaded country; it is not the civil law +of the conquering country: it is military law,--the law of war,--and its +supremacy for the protection of the officers and soldiers of the army, +when in service in the field in the enemy's country, is as essential to +the efficiency of the army as the supremacy of the civil law at home, +and, in time of peace, is essential to the preservation of +liberty."[1293] + + +THEATRE OF MILITARY OPERATIONS + +That substantially the same rule, resting on the same considerations, +applies in the field of active military operations, was assumed by all +members of the Court in Ex parte Milligan.[1294] There the Court held +that the trial by a military commission of a civilian charged with acts +of disloyalty committed in a part of the country which was remote from +the theatre of military operations, and in which the civil courts were +open and functioning, was invalid under the Fifth and Sixth Amendments. +Although unanimous in holding that the military tribunal lacked +jurisdiction to try the case, the Court divided, five-to-four, as to the +grounds of the decision. The point on which the Justices differed was +which department of the Government had authority to say with finality +what regions lie within the theatre of military operation. Claiming this +as a function of the courts, the majority held that the theatre of war +did not embrace an area in which the civil courts were open and +functioning.[1295] The minority argued that this was a question to be +determined by Congress.[1296] All rejected the argument of the +government that the President's determination was conclusive in the +absence of restraining legislation. A similar result was reached in +Duncan _v._ Kahanamoku[1297] where, upon an examination of the +circumstances existing in Hawaii after Pearl Harbor, a divided Court +found that the authority which Congress had granted to the Territorial +Governor to declare martial law "in case of rebellion or invasion, or +imminent danger thereof," did not warrant the trial of civilians by +military tribunals. + + +ENEMY PROPERTY + +The position of enemy property was dealt with by Chief Justice Marshall +in the early case of Brown _v._ United States.[1298] Here it was held +that the mere declaration of war by Congress does not effect a +confiscation of enemy property situated within the territorial +jurisdiction of the United States, but the right of Congress by further +enactment to subject such property to confiscation was asserted in the +most positive terms. Being an exercise of the war powers of the +Government, such confiscation is not affected by the restrictions of the +Fifth and Sixth Amendments. Since it has no relation to the personal +guilt of the owner, it is immaterial whether the property belongs to an +alien, a neutral, or even to a citizen of the United States. The whole +doctrine of confiscation is built upon the foundation that it is an +instrument of coercion, which, by depriving an enemy of property within +the reach of his power, whether within his territory or without it, +impairs his ability to resist the confiscating government, while at the +same time it furnishes to that government means for carrying on the war. +Any property which the enemy can use, either by actual appropriation, or +by the exercise of control over the owner, no matter what his +nationality, is a proper subject of confiscation. Congress may provide +for immediate seizure of property which the President or his agent +determines to be enemy property, leaving the question of enemy ownership +to be settled later at the suit of a claimant. For these reasons the +Confiscation Act of 1862,[1299] and the Trading with the Enemy Act of +1917 and amendments thereto, were held to be within the power of +Congress to "make rules concerning captures on land and water."[1300] + + +PRIZES OF WAR + +The power of Congress with respect to prizes is plenary; no one can have +any interest in prizes captured except by permission of Congress.[1301] +Nevertheless, since International Law is a part of our law, the Court +will administer it so long as it has not been modified by treaty or by +legislative or executive action. Thus, during the Civil War, the Court +found that the Confiscation Act of 1861, and the Supplementary Act of +1863, which, in authorizing the condemnation of vessels, made provision +for the protection of interests of loyal citizens, merely created a +municipal forfeiture and did not override or displace the law of prize. +It decided, therefore, that when a vessel was liable to condemnation +under either law, the government was at liberty to proceed under the +more stringent rules of International Law, with the result that the +citizen would be deprived of the benefit of the protective provisions of +the statute.[1302] Similarly, when Cuban ports were blockaded during the +Spanish-American War, the Court held, over the vigorous dissent of three +of its members, that the rule of International Law exempting unarmed +fishing vessels from capture was applicable in the absence of any treaty +provision, or other public act of the Government in relation to the +subject.[1303] + + +POLICE REGULATIONS; RENT CONTROL + +In enforcing the requirement of due process of law in its modern +expanded sense of "reasonable law" the Court has recognized that a war +emergency may justify legislation which would otherwise be an +unconstitutional invasion of private rights. Shortly after the first +world war, it sustained, by a narrow margin, a rent control law for the +District of Columbia, which not merely limited the rents which might be +charged but which also gave the existing tenants the right to continue +in occupancy of their dwellings at their own option, provided they paid +rent and performed other stipulated conditions. The Court, while +conceding that ordinarily such legislation would transcend +constitutional limitations, declared that "a public exigency will +justify the legislature in restricting property rights in land to a +certain extent without compensation. * * * A limit in time, to tide over +a passing trouble, well may justify a law that could not be upheld as a +permanent change."[1304] During World War II an apartment house owner +who complained that the rentals allowed by the Office of Price +Administration did not afford a "fair return" on the property was told +by the Court that, "a nation which can demand the lives of its men and +women in the waging of * * * war is under no constitutional necessity of +providing a system of price control * * * which will assure each +landlord a 'fair return' on his property."[1305] Moreover, such rentals +may be established without a prior hearing because "national security +might not be able to afford the luxuries of litigation and the long +delays which preliminary hearings traditionally have entailed. * * * +Where Congress has provided for judicial review after the regulations or +orders have been made effective it has done all that due process under +the war emergency requires."[1306] The more specific clauses of the Bill +of Rights yield less readily, however, to the impact of a war emergency. +In United States _v._ Cohen Grocery Company,[1307] the Court held that a +statute which penalized the making of "'any unjust or unreasonable rate +or charge in handling * * * any necessaries,'" was void on the ground +that it set up no "ascertainable standard of guilt" and so was +"repugnant to the Fifth and Sixth Amendments * * * which require due +process of law and that persons accused of crime shall be adequately +informed of the nature and cause of the accusation."[1308] + + +PERSONAL LIBERTY IN WARTIME + +That the power of Congress to punish seditious utterances in time of war +is limited by the First Amendment was assumed by the Supreme Court in +the series of cases[1309] in which it affirmed convictions for violation +of the Espionage Act of 1917.[1310] But in the famous opinion of Justice +Holmes in Schenck _v._ United States,[1311] it held that: "When a nation +is at war many things that might be said in time of peace are such a +hindrance to its effort that their utterance will not be endured so long +as men fight and that no Court could regard them as protected by any +constitutional right."[1312] A State also has power to make it unlawful +to advocate that citizens of the State should not assist in prosecuting +a war against public enemies of the United States.[1313] The most +drastic restraint of personal liberty imposed during World War II was +the detention and relocation of the Japanese residents of the Western +States, including those who were native-born citizens of the United +States. When various phases of this program were challenged, the Court +held that in order to prevent espionage and sabotage, the freedom of +movement of such persons could be restricted by a curfew order,[1314] +even by a regulation excluding them from a defined area,[1315] but that +a citizen of Japanese ancestry whose loyalty was concerned could not be +detained against her will in a relocation camp.[1316] + + +ALIEN ENEMIES + +The status of alien enemies was first considered in connection with the +passage of the Alien Act of 1798,[1317] whereby the President was +authorized to deport any alien or to license him to reside within the +United States at any place to be designated by the President. Critics of +the measure conceded its constitutionality so far as enemy aliens were +concerned, because, as Madison wrote, "The Constitution having expressly +delegated to Congress the power to declare war against any nation, and, +of course, to treat it and all its members as enemies."[1318] The +substance of this early law was reenacted during the first world war. +Under it the President is authorized, in time of war, to prescribe "the +manner and degree of the restraint to which [alien enemies] shall be +subject and in what cases, and upon what security their residence shall +be permitted," or to provide for their removal from the United +States.[1319] This measure was held valid in Ludecke _v._ Watkins.[1320] + + +EMINENT DOMAIN + +An often-cited dictum uttered shortly after the Mexican War asserted the +right of an owner to compensation for property destroyed to prevent its +falling into the hands of the enemy, or for that taken for public +use.[1321] In United States _v._ Russell,[1322] decided following the +Civil War, a similar conclusion was based squarely on the Fifth +Amendment, although the case did not necessarily involve the point. +Finally, in United States _v._ Pacific Railroad,[1323] also a Civil War +case, the Court held that the United States was not responsible for the +injury or destruction of private property by military operations, but +added that it did not have in mind claims for property of loyal citizens +which was taken for the use of the national forces. "In such cases," the +Court said, "it has been the practice of the government to make +compensation for the property taken. * * *, although the seizure and +appropriation of private property under such circumstances by the +military authorities may not be within the terms of the constitutional +clauses."[1324] Meantime, however, in 1874, a committee of the House of +Representatives, in an elaborate report on war claims growing out of the +Civil War, had voiced the opinion that the Fifth Amendment embodied the +distinction between a taking of property in the course of military +operations or other urgent military necessity, and other takings for war +purposes, and required compensation of owners in the latter class of +cases.[1325] In determining what constitutes just compensation for +property requisitioned for war purposes during World War II, the Court +has assumed that the Fifth Amendment is applicable to such +takings.[1326] + + +Clause 15. _The Congress shall have Power_ * * * To provide for calling +forth the Militia to execute the Laws of the Union, suppress +Insurrections and repel Invasions. + +Clause 16. _The Congress shall have Power_ * * * To provide for +organizing, arming, and disciplining, the Militia, and for governing +such Part of them as may be employed in the Service of the United +States, reserving to the States respectively, the Appointment of the +Officers, and the Authority of training the Militia according to the +discipline prescribed by Congress. + + +The Militia Clauses + + +CALLING OUT THE MILITIA + +The States as well as Congress may prescribe penalties for failure to +obey the President's call of the militia. They also have a concurrent +power to aid the National Government by calls under their own authority, +and in emergencies may use the militia to put down armed +insurrection.[1327] The Federal Government may call out the militia in +case of civil war; its authority to suppress rebellion is found in the +power to suppress insurrection and to carry on war.[1328] The act of +February 28, 1795,[1329] which delegated to the President the power to +call out the militia, was held constitutional.[1330] A militiaman who +refused to obey such a call was not "employed in the service of the +United States so as to be subject to the article of war," but was liable +to be tried for disobedience of the act of 1795.[1331] + + +REGULATION OF THE MILITIA + +The power of Congress over the militia "being unlimited, except in the +two particulars of officering and training them, * * *, it may be +exercised to any extent that may be deemed necessary by Congress. * * * +The power of the State government to legislate on the same subjects, +having existed prior to the formation of the Constitution, and not +having been prohibited by that instrument, it remains with the States, +subordinate nevertheless to the paramount law of the General Government, +* * *"[1332] Under the National Defense Act of 1916,[1333] the militia, +which hitherto had been an almost purely State institution, was brought +under the control of the National Government. The term "militia of the +United States" was defined to comprehend "all able-bodied male citizens +of the United States and all other able-bodied males who have * * * +declared their intention to become citizens of the United States," +between the ages of eighteen and forty-five. The act reorganized the +National Guard, determined its size in proportion to the population of +the several States, required that all enlistments be for "three years in +service and three years in reserve," limited the appointment of officers +to those who "shall have successfully passed such tests as to * * * +physical, moral and professional fitness as the President shall +prescribe," and authorized the President in certain emergencies to +"draft into the military service of the United States to serve therein +for the period of the war unless sooner discharged, any and all members +of the National Guard and National Guard Reserve," who thereupon should +"stand discharged from the militia." + + +Clause 17. _Congress shall have power_ * * * To exercise exclusive +Legislation in all Cases whatsoever, over such District (not exceeding +ten Miles square) as may, by Cession of particular States, and the +Acceptance of Congress, become the Seat of the Government of the United +States, and to exercise like Authority over all Places purchased by the +Consent of the Legislature of the State in which the Same shall be, for +the Erection of Forts, Magazines, Arsenals, dock-Yards, and other +needful Buildings;--And + + +The Seat of Government + +The jurisdiction of the United States over the District of Columbia +vested on the first Monday of December, 1800.[1334] By the act of +February 27, 1801,[1335] the District was divided into two counties and +in the following year the city of Washington was erected into a +municipality.[1336] The present form of government dates from 1876; all +legislative powers with respect to District affairs are retained by +Congress, while an executive board of three commissioners vested with +ordinance powers is appointed by the President.[1337] As a municipal +corporation, the District has the legal capacity to sue and be +sued.[1338] But the District Commissioners are merely administrative +officers, having only the ministerial powers given them by statute; +accordingly they were found to have no power to submit a claim against +the District to arbitration.[1339] + + +NATURE AND EXTENT OF RIGHTS CEDED TO UNITED STATES + +In ceding the territory which became the District of Columbia, both +Maryland and Virginia provided that the United States should not acquire +any right of property in the soil except by transfer by the individual +owner. This proviso was held not to prevent the Federal Government from +exercising the power of eminent domain within the District.[1340] Under +the agreement made between the original proprietors of the land on which +the city of Washington was laid out, and the Commissioners appointed by +the President to survey, define and locate the district for the seat of +government, the United States became the owner in fee of the streets of +the city although the trustees never carried out their agreement to +convey them.[1341] Both the right of dominion and of property of +navigable waters and of the soil under them in the District, which +originally had been granted by Charles I, King of England to the Lord +Proprietary of Maryland, and to which Maryland succeeded upon the +American Revolution, became vested in the United States by the cession +from Maryland.[1342] + + +RETROCESSION OF ALEXANDRIA COUNTY + +Originally the District of Columbia embraced the maximum area permitted +by the Constitution. In 1846, however, Congress authorized a referendum +on the question of retroceding Alexandria County to Virginia, and +declared that jurisdiction should be relinquished to that State if a +majority of the voters in the county voted in favor of the change. The +proposal was approved, whereupon, without any further action by +Congress, Virginia declared the county annexed and resumed full +jurisdiction over it. Thirty years later, in a suit to recover taxes +paid to the State, the Supreme Court called the retrocession "a +violation of the Constitution" but held that since Congress had +recognized the transfer as a settled fact, a resident of the county was +estopped from challenging it.[1343] + + +CONTINUANCE OF STATE LAWS + +Under the act of July 16, 1790,[1344] which provided for the +establishment of the seat of government, State laws were continued in +operation until Congress created a government for the District. The +Supreme Court intimated that this was "perhaps, only declaratory of a +principle which would have been in full operation without such +declaration."[1345] In 1801 Congress declared that the laws of Virginia +and Maryland "as they now exist, shall be and continue in force" in the +respective portions of the District ceded by those States.[1346] The +only effect of the cession upon individuals was to terminate their State +citizenship and the jurisdiction of the State governments over +them;[1347] contract obligations were not affected,[1348] and liens on +property for debt were continued.[1349] + + +STATUS OF THE DISTRICT TODAY + +Chief Justice Marshall ruled in the early case of Hepburn _v._ +Ellzey[1350] that the District of Columbia is not a State within the +meaning of the diversity of citizenship clause of article III. This view +was consistently adhered to for nearly a century and a half in the +interpretation of later acts of Congress regulating the jurisdiction of +federal courts.[1351] In 1940, however, Congress expressly authorized +those courts to take jurisdiction of nonfederal controversies between +residents of the District of Columbia and citizens of a State. By a +five-to-four decision that statute was held constitutional, but the +Justices who voted to sustain it were not in agreement as to the grounds +of the decision.[1352] Three found it to be an appropriate exercise of +the power of Congress to legislate for the District of Columbia without +reference to article III.[1353] Six members of the Court rejected this +theory, but two of the six joined in upholding the act on another ground +which seven of their brethren considered untenable,--namely, that +Hepburn _v._ Ellzey was erroneously decided and that the District of +Columbia should be deemed to be a "State" within the meaning of article +III, section 2.[1354] + +It is not disputed that the District is a part of "the United States," +and that its residents are entitled to the privilege of trial by jury, +whether in civil or criminal cases,[1355] and of presentment by a grand +jury.[1356] Legislation which is restrictive of the rights of liberty +and property in the District must find justification in facts adequate +to support like legislation by a State in the exercise of its police +power.[1357] + + +LEGISLATIVE POWER OVER DISTRICT OF COLUMBIA + +Congress possesses over the District of Columbia the blended powers of a +local and national legislature.[1358] Even when legislating for the +District, Congress remains the legislature of the Union, with the result +that it may give its enactments nation-wide operations so far as is +"necessary and proper" in order to make them locally effective. As was +pointed out in Cohens _v._ Virginia,[1359] if a felon escapes from the +State in which the crime was committed, the government of such State +cannot pursue him into another State and there apprehend him, "but must +demand him from the executive power of that other State." On the other +hand, a felon escaping from the District of Columbia or any other place +subject to the exclusive power of Congress, may be apprehended by the +National Government anywhere in the United States. "And the reason," +declared Chief Justice Marshall, "is, that Congress is not a local +legislature, but exercises this particular power, [of exclusive +legislation], like all its other powers, in its high character, as the +legislature of the Union."[1360] + + +TAXATION IN THE DISTRICT + +Persons and property within the District of Columbia are subject to +taxation by Congress under both the first and seventeenth clauses of +this section. A general tax levied throughout the United States may be +applied to the District of Columbia upon the same conditions as +elsewhere;--e.g., if a direct tax, it must be levied in proportion to +the census.[1361] But in laying taxes for District purposes only, +"Congress, like any State legislature unrestricted by constitutional +provisions, may its discretion wholly exempt certain classes of property +from taxation, or may tax them at a lower rate than other +property."[1362] It is no impediment to the exercise of either power +that residents of the District lack the suffrage and have politically no +voice in the expenditure of the money raised by taxation.[1363] + + +DELEGATION OF LEGISLATIVE POWER TO MUNICIPAL OFFICERS + +Congress may delegate to municipal authorities legislative functions +which are strictly local in character.[1364] It may confer upon them the +power to improve or repair streets, to assess adjacent property +therefor,[1365] and to regulate public markets.[1366] It may confirm +assessments previously made by the District government without authority +of law.[1367] But in Stoutenburgh _v._ Hennick,[1368] the Court held +that Congress would not, and did not intend to, delegate to the District +the power to impose a license tax on commercial agents who offered +merchandise for sale by sample, since such a license amounted to a +regulation of interstate commerce. + + +COURTS OF THE DISTRICT + +In its capacity as a local legislature Congress may create courts for +the District of Columbia and may confer upon them powers and duties +which lie outside the judicial power vested in "constitutional" courts. +On appeal from an order of the District Public Utilities Commission, a +court for the District of Columbia may be empowered to modify +valuations, rates and regulations established by the Commission and to +make such orders as in its judgment the Commission should have made. But +inasmuch as the issuance of such orders is a legislative as +distinguished from a judicial function, the provision for an appeal from +them to the Supreme Court was held unconstitutional.[1369] + +Despite the fact that Congress, acting under this clause, imposed +nonjudicial duties upon the Supreme Court and the Court of Appeals for +the District of Columbia, those tribunals were held to be constitutional +courts, established under article III, with the result that the +compensation of the judges thereof may not be diminished during their +continuance in office.[1370] Since the courts established for the +District are courts of the United States, their judgments stand upon the +same footing, so far as concerns the obligations created by them, as +domestic judgments of the States, wherever rendered and wherever sought +to be enforced.[1371] + + +Authority Over Places Purchased + + +"PLACES" + +This clause has been broadly construed to cover all structures necessary +for carrying on the business of the National Government.[1372] It +includes post offices,[1373] a hospital and a hotel located in a +national park,[1374] and locks and dams for the improvement of +navigation.[1375] But it does not cover lands acquired for forests, +parks, ranges, wild life sanctuaries or flood control.[1376] +Nevertheless the Supreme Court has held that a State may convey, and +that Congress may accept, either exclusive or qualified jurisdiction +over property acquired within the geographical limits of a State, for +purposes other than those enumerated in Clause 17.[1377] + +After exclusive jurisdiction over lands within a State has been ceded to +the United States, Congress alone has the power to punish crimes +committed within the ceded territory.[1378] Private property located +thereon is not subject to taxation by the State,[1379] nor can State +statutes enacted subsequent to the transfer have any operation +therein.[1380] But the local laws in force at the date of cession which +are protective of private rights continue in force until abrogated by +Congress.[1381] + + +DURATION OF FEDERAL JURISDICTION + +A State may qualify its cession of territory by a condition that +jurisdiction shall be retained by the United States only so long as the +place is used for specified purposes.[1382] Such a provision operates +prospectively and does not except from the grant that portion of a +described tract which is then used as a railroad right of way.[1383] In +1892, the Court upheld the jurisdiction of the United States to try a +person charged with murder on a military reservation, over the objection +that the State had ceded jurisdiction only over such portions of the +area as were used for military purposes, and that the particular place +on which the murder was committed was used solely for farming. The Court +held that the character and purpose of the occupation having been +officially established by the political department of the government, it +was not open to the Court to inquire into the actual uses to which any +portion of the area was temporarily put.[1384] A few years later, +however, it ruled that the lease to a city, for use as a market, of a +portion of an area which had been ceded to the United States for a +particular purpose, suspended the exclusive jurisdiction of the United +States.[1385] + +Recently the question arose whether the United States retains +jurisdiction over a place which was ceded to it unconditionally after it +has abandoned the use of the property for governmental purposes and +entered into a contract for the sale thereof to private persons. +Minnesota asserted the right to tax the equitable interest of the +purchaser in such land, and the Supreme Court upheld its right to do so. +The majority assumed that "the Government's unrestricted transfer of +property to nonfederal hands is a relinquishment of the exclusive +legislative power."[1386] In separate concurring opinions Chief Justice +Stone and Justice Frankfurter reserved judgment on the question of +territorial jurisdiction.[1387] + + +RESERVATION OF JURISDICTION BY STATES + +For more than a century the Supreme Court kept alive, by repeated +dicta,[1388] the doubt expressed by Justice Story "whether Congress are +by the terms of the Constitution, at liberty to purchase lands for +forts, dockyards, etc., with the consent of a State legislature, where +such consent is so qualified that it will not justify the 'exclusive +legislation' of Congress there. It may well be doubted if such consent +be not utterly void."[1389] But when the issue was squarely presented in +1937, the Court ruled that where the United States purchases property +within a State with the consent of the latter, it is valid for the State +to convey, and for the United States to accept, "concurrent +jurisdiction" over such land, the State reserving to itself the right to +execute process "and such other jurisdiction and authority over the same +as is not inconsistent with the jurisdiction ceded to the United +States."[1390] The holding logically renders the second half of Clause +17 superfluous. In a companion case, the Court ruled further that even +if a general State statute purports to cede exclusive jurisdiction, such +jurisdiction does not pass unless the United States accepts it.[1391] + + +Clause 18. _The Congress shall have Power_ * * * To make all Laws which +shall be necessary and proper for carrying into Execution the foregoing +Powers, and all other Powers vested by this Constitution in the +Government of the United States, or in any Department or Officer +thereof. + + +The Coefficient or Elastic Clause + + +SCOPE OF INCIDENTAL POWERS + +That this clause is an enlargement, not a constriction, of the powers +expressly granted to Congress, that it enables the lawmakers to select +any means reasonably adapted to effectuate those powers, was established +by Marshall's classic opinion in McCulloch _v._ Maryland.[1392] "Let the +end be legitimate," he wrote, "let it be within the scope of the +Constitution, and all means which are appropriate, which are plainly +adapted to that end, which are not prohibited, but consist with the +letter and spirit of the Constitution, are constitutional."[1393] +Moreover, this provision gives Congress a share in the responsibilities +lodged in other departments, by virtue of its right to enact legislation +necessary to carry into execution all powers vested in the National +Government. Conversely, where necessary for the efficient execution of +its own powers, Congress may delegate some measure of legislative power +to other departments.[1394] + + +OPERATION OF COEFFICIENT CLAUSE + +Practically every power of the National Government has been expanded in +some degree by the coefficient clause. Under its authority Congress has +adopted measures requisite to discharge the treaty obligations of the +nation;[1395] it has organized the federal judicial system and has +enacted a large body of law defining and punishing crimes. Effective +control of the national economy has been made possible by the authority +to regulate the internal commerce of a State to the extent necessary to +protect and promote interstate commerce.[1396] Likewise the right of +Congress to utilize all known and appropriate means for collecting the +revenue, including the distraint of property for Federal taxes,[1397] +and its power to acquire property needed for the operation of the +government by the exercise of the power of eminent domain,[1398] have +greatly extended the range of national power. But the widest application +of the necessary and proper clause has occurred in the field of monetary +and fiscal controls. Inasmuch as the various specific powers granted by +article I, section 8, do not add up to a general legislative power over +such matters, the Court has relied heavily upon this clause in +sustaining the comprehensive control which Congress has asserted over +this subject.[1399] + + +DEFINITION AND PUNISHMENT OF CRIMES + +Although the only crimes which Congress is expressly authorized to +punish are piracies, felonies on the high seas, offenses against the law +of nations, treason and counterfeiting of the securities and current +coin of the United States, its power to create, define and punish crimes +and offenses whenever necessary to effectuate the objects of the Federal +Government is universally conceded.[1400] Illustrative of the offenses +which have been punished under this power are the alteration of +registered bonds;[1401] the bringing of counterfeit bonds into the +country;[1402] conspiracy to injure prisoners in custody of a United +States marshal;[1403] impersonation of a federal officer with intent to +defraud;[1404] conspiracy to injure a citizen in the free exercise or +enjoyment of any right or privilege secured by the Constitution or laws +of the United States;[1405] the receipt by government officials of +contributions from government employees for political purposes;[1406] +advocating, etc., the overthrow of the Government by force.[1407] Part I +of Title 18 of the United States Code comprises more than 500 sections +defining penal offenses against the United States. + + +CHARTERING OF BANKS + +As an appropriate means for executing "the great powers, to lay and +collect taxes; to borrow money; to regulate commerce; to declare and +conduct a war; and to raise and support armies * * *" Congress may +incorporate banks and kindred institutions.[1408] Moreover, it may +confer upon them private powers which, standing alone, have no relation +to the functions of the Federal Government, if those privileges are +essential to the effective operation of such corporations.[1409] Where +necessary to meet the competition of State banks, Congress may authorize +national banks to perform fiduciary functions, even though, apart from +the competitive situation, federal instrumentalities might not be +permitted to engage in such business.[1410] The Court will not undertake +to assess the relative importance of the public and private functions of +a financial institution which Congress has seen fit to create. It +sustained the act setting up the Federal Farm Loan Banks to provide +funds for mortgage loans on agricultural land against the contention +that the right of the Secretary of the Treasury, which he had not +exercised, to use these banks as depositaries of public funds, was +merely a pretext for chartering these banks for private purposes.[1411] + + +CURRENCY REGULATIONS + +Reinforced by the necessary and proper clause, the powers "'to lay and +collect taxes, to pay the debts and provide for the common defence and +general welfare of the United States,' and 'to borrow money on the +credit of the United States and to coin money and regulate the value +thereof * * *'";[1412] have been held to give Congress virtually +complete control over money and currency. A prohibitive tax on the +notes of State banks;[1413] the issuance of treasury notes impressed +with the quality of legal tender in payment of private debts[1414] and +the abrogation of clauses in private contracts which called for payment +in gold coin,[1415] were sustained as appropriate measures for carrying +into effect some or all of the foregoing powers. + + +POWER TO CHARTER CORPORATIONS + +In addition to the creation of banks, Congress has been held to have +authority to charter a railroad corporation,[1416] or a corporation to +construct an interstate bridge,[1417] as instrumentalities for promoting +commerce among the States, and to create corporations to manufacture +aircraft[1418] or merchant vessels[1419] as incidental to the war power. + + +COURTS AND JUDICIAL PROCEEDINGS + +Inasmuch as the Constitution "delineated only the great outlines of the +judicial power * * *, leaving the details to Congress, * * * The +distribution and appropriate exercise of the judicial power must * * * +be made by laws passed by Congress, * * *"[1420] As a necessary and +proper provision for the exercise of the jurisdiction conferred by +article III, section 2 Congress may direct the removal from a State to a +federal court of a criminal prosecution against a federal officer for +acts done under color of federal law,[1421] and may authorize the +removal before trial of civil cases arising under the laws of the United +States.[1422] It may prescribe the effect to be given to judicial +proceedings of the federal courts,[1423] and may make all laws necessary +for carrying into execution the judgments of federal courts.[1424] When +a territory is admitted as a State, Congress may designate the Court to +which the records of the territorial courts shall be transferred, and +may prescribe the mode for enforcement and review of judgments rendered +by those courts.[1425] In the exercise of other powers conferred by the +Constitution, apart from article III, Congress may create legislative +courts and "clothe them with functions deemed essential or helpful in +carrying those powers into execution."[1426] + + +SPECIAL ACTS CONCERNING CLAIMS + +This clause enables Congress to pass special laws to require other +departments of the Government to prosecute or adjudicate particular +claims, whether asserted by the Government itself or by private persons. +In 1924,[1427] Congress adopted a Joint Resolution directing the +President to cause suit to be instituted for the cancellation of certain +oil leases alleged to have been obtained from the Government by fraud, +and to prosecute such other actions and proceedings, civil and criminal, +as were warranted by the facts. This resolution also authorized the +appointment of special counsel to have charge of such litigation. +Private acts providing for a review of an order for compensation under +the Longshoreman's and Harbor Workers' Compensation Act,[1428] or +conferring jurisdiction upon the Court of Claims to hear and determine +certain claims of a contractor against the Government, in conformity +with directions given by Congress, after that court had denied recovery +on such claims, have been held constitutional.[1429] + + +MARITIME LAW + +Congress may implement the admiralty and maritime jurisdiction conferred +upon the federal courts by revising and amending the maritime law which +existed at the time the Constitution was adopted, but in so doing, it +cannot go beyond the reach of that jurisdiction.[1430] This power cannot +be delegated to the States; hence acts of Congress which purported to +make State Workmen's Compensation laws applicable to maritime cases were +held unconstitutional.[1431] + + +Section 9. Clause 1. The Migration or Importation of such +Persons as any of the States now existing shall think proper to admit, +shall not be prohibited by the Congress prior to the Year one thousand +eight hundred and eight, but a Tax or duty may be imposed on such +Importation, not exceeding ten dollars for each Person. + + +Powers Denied to Congress + + +GENERAL PURPOSE OF THE SECTION + +This section of the Constitution (containing eight clauses restricting +or prohibiting legislation affecting the importation of slaves, the +suspension of the writ of _habeas corpus_, the enactment of bills of +attainder or _ex post facto_ laws, the levying of taxes on exports, the +granting of preference to ports of one State over another, the granting +of titles of nobility, etc.,) is devoted to restraints upon the power of +Congress and of the National Government,[1432] and in no respect affects +the States in the regulation of their domestic affairs.[1433] + +The above clause, which sanctioned the importation of slaves by the +States for twenty years after the adoption of the Constitution, when +considered with the section requiring escaped slaves to be returned to +their masters (art. IV, Sec. 1, cl. 3), was held by Chief Justice Taney +in Scott _v._ Sanford,[1434] to show conclusively that such persons and +their descendants were not embraced within the term "citizen" as used in +the Constitution. Today is interesting only as an historical curiosity. + + +Clause 2. The Privilege of the Writ of Habeas Corpus shall not be +suspended, unless when in Cases of Rebellion or Invasion the public +Safety may require it. + + +HABEAS CORPUS + + +Purpose of the Writ + +This section, which restricts only the Federal Government and not the +States,[1435] is the only place in the Constitution where the writ of +_habeas corpus_ is mentioned. The framers took for granted that the +courts of the United States would be given jurisdiction to issue this, +the greatest of the safeguards of personal liberty embodied in the +common law, and the Judiciary Act of 1789[1436] provided for the +issuance of the writ according to "the usages and principles of law." At +common law the purpose of such a proceeding was to obtain the +liberation of persons who were imprisoned without just cause.[1437] +While the Supreme Court conceded at an early date that the authority of +the federal courts to entertain petitions for _habeas corpus_ derived +solely from acts of Congress,[1438] a narrow majority recently asserted +the right to expand the scope of the writ by judicial interpretation and +to sanction its use for a purpose unknown to the common law, i.e., to +bring a prisoner into court to argue his own appeal. Speaking for the +majority Justice Murphy declared that: "However, we do not conceive that +a circuit court of appeals, in issuing a writ of _habeas corpus_ under +Sec. 262 of the Judicial Code, is necessarily confined to the precise +forms of that writ in vogue at the common law or in the English judicial +system. Section 262 says that the writ must be agreeable to the usages +and principles of 'law,' a term which is unlimited by the common law or +the English law. And since 'law' is not a static concept, but expands +and develops as new problems arise, we do not believe that the forms of +the _habeas corpus_ writ authorized by Sec. 262 are only those recognized +in this country in 1789, when the original Judiciary Act containing the +substance of this section came into existence."[1439] + + +Errors Which May Be Corrected on Habeas Corpus + +The writ of _habeas corpus_ provides a remedy for jurisdictional and +constitutional errors at the trial without limit as to time.[1440] It +may be used to correct errors of that order made by military as well as +by civil courts.[1441] Under the common law and the Act 31 Car. II c. 2 +(1679), where a person was detained pursuant to a conviction by a court +having jurisdiction of the subject matter, _habeas corpus_ was available +only if a want of jurisdiction appeared on the face of the record of the +Court which convicted him. A showing in a return to a writ that the +prisoner was held under final process based upon a judgment of a court +of competent jurisdiction closed the inquiry.[1442] Under the Judiciary +Act of 1789[1443] the same rule obtained.[1444] But by the act of +February 5, 1867,[1445] Congress extended the writ to all persons +restrained of their liberty in violation of the Constitution or a law or +treaty of the United States, and required the Court to ascertain the +facts and to "dispose of the party as law and justice require." This +gave the prisoner a right to have a judicial inquiry in a court of the +United States into the very truth and substance of the causes of his +detention. The Supreme Court has said that there is "no doubt of the +authority of the Congress to thus liberalize the common law procedure on +_habeas corpus_ * * *" .[1446] + + +Habeas Corpus Not a Substitute for Appeal + +Since the writ of _habeas corpus_ is appellate in nature, Congress may +confer jurisdiction to issue it upon the Supreme Court as well as upon +the inferior federal courts.[1447] The proceeding may not, however, be +used as a substitute for an appeal or writ of error.[1448] But if +special circumstances make it advantageous to use this writ in aid of a +just disposition of a cause pending on appeal it may be used for that +purpose.[1449] Where facts dehors the record, which are not open to +consideration upon appeal, are alleged to show a denial of +constitutional rights, a judicial hearing must be granted to ascertain +the truth or falsity of the allegations.[1450] + + +Issuance of the Writ + +On application for a writ of _habeas corpus_, the Court may either issue +the writ, and, on the return, dispose of the case, or it may waive the +issuing of the writ and consider whether, upon the facts presented in +the petition, the prisoner, if brought before it, could be +discharged.[1451] The proceeding may not be used to secure an +adjudication of a question which, if determined in the prisoner's favor, +could not result in his immediate release.[1452] A discharge of a +prisoner on _habeas corpus_ is granted only in the exercise of a sound +judicial discretion.[1453] While the strict doctrine of _res judicata_ +does not apply to this proceeding,[1454] the Court may, in its +discretion, dismiss a petition for _habeas corpus_ where the ground on +which it is sought had been alleged in a prior application, but the +evidence to support it had been unjustifiably withheld for use on a +second attempt if the first failed.[1455] Where the Government did not +deny the allegation in a prisoner's fourth petition for _habeas corpus_, +but sought dismissal of the proceedings on the ground that the prisoner +had abused the writ, the prisoner was held to be entitled to a hearing +to determine whether the charge of abusive use of the writ was well +founded.[1456] + + +Suspension of the Privilege + +A critical question under this section is who determines with finality +whether the circumstances warrant suspension of the privilege of the +writ. In England the writ may be suspended only by Act of +Parliament,[1457] and in an early case Chief Justice Marshall asserted +that the decision as to when public safety calls for this drastic action +depends "on political considerations, on which the legislature is to +decide."[1458] At the beginning of the Civil War Lincoln authorized the +Commanding General of the Army of the United States to suspend the writ +along any military line between Philadelphia and Washington.[1459] In Ex +parte Merryman,[1460] Chief Justice Taney strongly denounced the +President's action and reasserted the proposition that only Congress +could suspend the writ. Attorney General Bates promptly challenged +Taney's opinion. Noting that in Ex parte Bollman, Marshall did "not +speak of suspending the _privilege_ of the writ, but of suspending the +_powers vested in the Court_ by the act," he took the position that the +constitutional provision was itself the equivalent of an Act of +Parliament.[1461] Thereafter, by an express provision of the act of +March 3, 1863, Congress declared, "That, during the present rebellion, +the President of the United States, whenever, in his judgment, the +public safety may require it, is authorized to suspend the privilege of +the writ of _habeas corpus_ in any case throughout the United States, or +any part thereof."[1462] The validity of this statute was assumed in Ex +parte Milligan,[1463] but a narrow majority of the Court declared that +the suspension of the writ did not authorize the arrest of any one, but +simply denied to one arrested the privilege of the writ in order to +obtain his liberty.[1464] + + +Clause 3. No Bill of Attainder or ex post facto Law shall be passed. + + +BILLS OF ATTAINDER + +Historically, the term "bills of attainder" was applied to "such special +acts of the legislature as inflict capital punishment upon persons +supposed to be guilty of high offences, such as treason and felony, +without any conviction in the ordinary course of judicial proceedings." +An act which inflicted a milder degree of punishment was called a bill +of pains and penalties.[1465] Within the meaning of the Constitution, +however, bills of attainder include bills of pains and penalties.[1466] +As interpreted by the Supreme Court, this clause prohibits all +legislative acts, "no matter what their form, that apply either to named +individuals or to easily ascertainable members of a group in such a way +as to inflict punishment on them without a judicial trial * * *"[1467] +Two acts of Congress--one which required attorneys practicing in the +federal courts to take an oath that they had never given aid to persons +engaged in hostility to the United States,[1468] and another which +prohibited the payment of compensation to certain named government +employees who have been charged with subversive activity,[1469]--have +been held unconstitutional on the ground that they amounted to bills of +attainder. + + +EX POST FACTO LAWS + + +Definition + +At the time the Constitution was adopted, many persons understood the +terms _ex post facto_ laws, to "embrace all retrospective laws, or laws +governing or controlling past transactions, whether * * * of a civil or +a criminal nature."[1470] But in the early case of Calder _v._ +Bull,[1471] the Supreme Court decided that the phrase, as used in the +Constitution, applies only to penal and criminal statutes. But although +it is inapplicable to retroactive legislation of any other kind,[1472] +the constitutional prohibition may not be evaded by giving a civil form +to a measure which is essentially criminal.[1473] Every law which makes +criminal an act which was innocent when done, or which inflicts a +greater punishment than the law annexed to the crime when committed, is +an _ex post facto_ law within the prohibition of the Constitution.[1474] +A prosecution under a temporary statute which was extended before the +date originally set for its expiration does not offend this provision +even though it is instituted subsequent to the extension of the +statute's duration for a violation committed prior thereto.[1475] Since +this provision has no application to crimes committed outside the +jurisdiction of the United States against the laws of a foreign country, +it is immaterial in extradition proceedings whether the foreign law is +_ex post facto_ or not.[1476] + + +What Constitutes Punishment + +An act of Congress which prescribed as a qualification for practice +before the federal courts an oath that the attorney had not participated +in the Rebellion was found unconstitutional since it operated as a +punishment for past acts.[1477] But a statute which denied to +polygamists the right to vote in a territorial election, was upheld even +as applied to a person who had not practiced polygamy since the act was +passed, because the law did not operate as an additional penalty for the +offense of polygamy but merely defined it as a disqualification of a +voter.[1478] A deportation law authorizing the Secretary of Labor to +expel aliens for criminal acts committed before its passage is not _ex +post facto_ since deportation is not a punishment.[1479] Likewise an act +permitting the cancellation of naturalization certificates obtained by +fraud prior to the passage of the law was held not to impose a +punishment but simply to deprive the alien of his ill-gotten +privileges.[1480] + + +Change in Place or Mode of Trial + +A change of the place of trial of an alleged offense after its +commission, is not an _ex post facto_ law. If no place of trial was +provided when the offense was committed, Congress may designate the +place of trial thereafter.[1481] A law which alters the rule of evidence +to permit a person to be convicted upon less or different evidence than +was required when the offense was committed is invalid,[1482] but a +statute which simply enlarges the class of persons who may be competent +to testify in criminal cases is not _ex post facto_ as applied to a +prosecution for a crime committed prior to its passage.[1483] + + +Clause 4. No Capitation, or other direct, Tax shall be laid, unless in +Proportion to the Census or Enumeration herein before directed to be +taken. + + +DIRECT TAXES + + +The Hylton Case + +The crucial problem under this section is to distinguish "direct" from +other taxes. In its opinion in Pollock _v._ Farmers' Loan and Trust +Co., we find the Court declaring: "It is apparent * * * that the +distinction between direct and indirect taxation was well understood by +the framers of the Constitution and those who adopted it."[1484] Against +this confident dictum may be set the following brief excerpt from +Madison's Notes on the Convention: "Mr. King asked what was the precise +meaning of _direct_ taxation? No one answered."[1485] The first case to +come before the Court on this issue was Hylton _v._ United States,[1486] +which was decided early in 1796. Congress had levied, according to the +rule of uniformity, a specific tax upon all carriages, for the +conveyance of persons, which shall be kept by, or for any person, for +his own use, or to be let out for hire, or for the conveying of +passengers. In a fictitious statement of facts, it was stipulated that +the carriages involved in the case were kept exclusively for the +personal use of the owner and not for hire. The principal argument for +the constitutionality of the measure was made by Hamilton, who treated +it as an "excise tax,"[1487] while Madison both on the floors of +Congress and in correspondence attacked it as "direct" and so void, +inasmuch as it was levied without apportionment.[1488] The Court, taking +the position that the direct tax clause constituted in practical +operation an exception to the general taxing powers of Congress, held +that no tax ought to be classified as "direct" which could not be +conveniently apportioned, and on this basis sustained the tax on +carriages as one on their "use" and therefore an "excise." Moreover, +each of the judges advanced the opinion that the direct tax clause +should be restricted to capitation taxes and taxes on land, or that at +most, it might cover a general tax on the aggregate or mass of things +which generally pervade all the States, especially if an assessment +should intervene; while Justice Paterson, who had been a member of the +Federal Convention, testified to his recollection that the principal +purpose of the provision had been to allay the fear of the Southern +States lest their Negroes and lands should be subjected to a specific +tax.[1489] + + +From the Hylton to the Pollock Case + +The result of the Hylton case was not challenged until after the Civil +War. A number of the taxes imposed to meet the demands of that war were +assailed during the postwar period as direct taxes, but without result. +The Court sustained successively as "excises" or "duties," a tax on an +insurance company's receipts for premiums and assessments;[1490] a tax +on the circulating notes of State banks,[1491] an inheritance tax on +real estate,[1492] and finally a general tax on incomes.[1493] In the +last case, the Court took pains to state that it regarded the term +"direct taxes" as having acquired a definite and fixed meaning-to-wit, +capitation taxes, and taxes on hand.[1494] Then, almost one hundred +years after the Hylton case, the famous case of Pollock _v._ Farmers' +Loan and Trust Company[1495] arose under the Income Tax Act of +1894.[1496] Undertaking to correct "a century of error" the Court held, +by a vote of five-to-four, that a tax on income from property was a +direct tax within the meaning of the Constitution and hence void because +not apportioned according to the census. + + +Restriction of the Pollock Decision + +The Pollock decision encouraged taxpayers to challenge the right of +Congress to levy by the rule of uniformity numerous taxes which had +always been reckoned to be excises. But the Court evinced a strong +reluctance to extend the doctrine to such exactions. Purporting to +distinguish taxes levied "because of ownership" or "upon property as +such" from those laid upon "privileges,"[1497] it sustained as "excises" +a tax on sales on business exchanges;[1498] a succession tax which was +construed to fall on the recipients of the property transmitted, rather +than on the estate of the decedent,[1499] and a tax on manufactured +tobacco in the hands of a dealer, after an excise tax had been paid by +the manufacturer.[1500] Again, in Thomas _v._ United States,[1501] the +validity of a stamp tax on sales of stock certificates was sustained on +the basis of a definition of "duties, imposts and excises." These terms, +according to the Chief Justice, "were used comprehensively to cover +customs and excise duties imposed on importation, consumption, +manufacture and sale of certain commodities, privileges, particular +business transactions, vocations, occupations and the like."[1502] On +the same day it ruled, in Spreckels Sugar Refining Co. _v._ +McClain,[1503] that an exaction denominated a special excise tax imposed +on the business of refining sugar and measured by the gross receipts +thereof, was in truth an excise and hence properly levied by the rule of +uniformity. The lesson of Flint _v._ Stone Tracy Co.[1504] is the same. +Here what was in form an income tax was sustained as a tax on the +privilege of doing business as a corporation, the value of the privilege +being measured by the income, including income from investments. +Similarly, in Stanton _v._ Baltic Mining Co.[1505] a tax on the annual +production of mines was held to be "independently of the effect of the +operation of the Sixteenth Amendment * * * not a tax upon property as +such because of its ownership, but a true excise levied on the results +of the business of carrying on mining operations."[1506] + +A convincing demonstration of the extent to which the Pollock decision +had been whittled down by the time the Sixteenth Amendment was adopted +is found in Billings _v._ United States.[1507] In challenging an annual +tax assessed for the year 1909 on the use of foreign built yachts--a +levy not distinguishable in substance from the carriage tax involved in +the Hylton case as construed by the Supreme Court-counsel did not even +suggest that the tax should be classed as a direct tax. Instead, he +based his argument that the exaction constituted a taking of property +without due process of law upon the premise that it was an excise, and +the Supreme Court disposed of the case upon the same assumption. + +In 1921 the Court cast aside the distinction drawn in Knowlton _v._ +Moore between the right to transmit property on the one hand and the +privilege of receiving it on the other, and sustained an estate tax as +an excise. "Upon this point" wrote Justice Holmes for a unanimous court, +"a page of history is worth a volume of logic."[1508] This proposition +being established, the Court has had no difficulty in deciding that the +inclusion in the computation of the estate tax of property held as joint +tenants,[1509] or as tenants by the entirety,[1510] or the entire value +of community property owned by husband and wife,[1511] or the proceeds +of insurance upon the life of the decedent,[1512] did not amount to +direct taxation of such property. Similarly it upheld a graduated tax on +gifts as an excise, saying that it was "a tax laid only upon the +exercise of a single one of those powers incident to ownership, the +power to give the property owned to another."[1513] In vain did Justice +Sutherland, speaking for himself and two associates, urge that "the +right to give away one's property is as fundamental as the right to sell +it or, indeed, to possess it."[1514] + + +Miscellaneous + +The power of Congress to levy direct taxes is not confined to the States +which are represented in that body. Such a tax may be levied in +proportion to population in the District of Columbia.[1515] A penalty +imposed for nonpayment of a direct tax is not a part of the tax itself +and hence is not subject to the rule of apportionment. Accordingly, the +Supreme Court sustained the penalty of fifty percent which Congress +exacted for default in the payment of the direct tax on land in the +aggregate amount of twenty million dollars which was levied and +apportioned among the States during the Civil War.[1516] + + +Clause 5. No Tax or Duty shall be laid on Articles exported from any +State. + + +TAXES ON EXPORTS + +This prohibition applies only to the imposition of duties on goods by +reason of exportation.[1517] The word "export" signifies goods exported +to a foreign country, not to an unincorporated territory of the United +States.[1518] A general tax laid on all property alike, including that +intended for export, is not within the prohibition, if it is not levied +on goods in course of exportation nor because of their intended +exportation.[1519] Where the sale to a commission merchant for a foreign +consignee was consummated by delivery of the goods to an exporting +carrier, the sale was held to be a step in the exportation and hence +exempt from a general tax on sales of such commodity.[1520] The giving +of a bond for exportation of distilled liquor is not the commencement of +exportation so as to exempt from an excise tax spirits which were not +exported pursuant to such bond.[1521] A tax on the income of a +corporation derived from its export trade is not a tax on "articles +exported" within the meaning of the Constitution.[1522] + + +Stamp Taxes + +A stamp tax imposed on foreign bills of lading,[1523] charter +parties,[1524] or marine insurance policies,[1525] is in effect a tax or +duty upon exports, and so void; but an act requiring the stamping of all +packages of tobacco intended for export in order to prevent fraud was +held not to be forbidden as a tax on exports.[1526] + + +Clause 6. No Preference shall be given by any Regulation of Commerce or +Revenue to the Ports of one State over those of another: nor shall +Vessels bound to, or from, one State, be obliged to enter, clear, or pay +duties in another. + + +THE "NO PREFERENCE" CLAUSE + +The limitations imposed by this section were designed to prevent +preferences as between ports on account of their location in different +States. They do not forbid such discriminations as between individual +ports. Acting under the commerce clause, Congress may do many things +which benefit particular ports and which incidentally result to the +disadvantage of other ports in the same or neighboring States. It may +establish ports of entry, erect and operate lighthouses, improve rivers +and harbors, and provide structures for the convenient and economical +handling of traffic.[1527] A rate order of the Interstate Commerce +Commission which allowed an additional charge to be made for ferrying +traffic across the Mississippi to cities on the east bank of the river +was sustained over the objection that it gave an unconstitutional +preference to ports in Texas.[1528] Although there were a few early +intimations that this clause was applicable to the States as well as to +Congress,[1529] the Supreme Court declared emphatically in 1886 that +State legislation was unaffected by it.[1530] After more than a century +the Court confirmed, over the objection that this clause was offended, +the power which the First Congress had exercised[1531] in sanctioning +the continued supervision and regulation of pilots by the States.[1532] +Alaska is not deemed to be a State within the meaning of this +clause.[1533] + + +Clause 7. No Money shall be drawn from the Treasury, but in Consequence +of Appropriations made by Law; and a regular Statement and Account of +the Receipts and Expenditures of all public Money shall be published +from time to time. + + +APPROPRIATIONS + +This clause is a limitation upon the power of the executive department +and does not restrict Congress in appropriating moneys in the +Treasury.[1534] That body may recognize and pay a claim of an equitable, +moral or honorary nature. Where it directs a specific sum to be paid to +a certain person, neither the Secretary of the Treasury nor any court +has discretion to determine whether the person is entitled to receive +it.[1535] In making appropriations to pay claims arising out of the +Civil War, the Court held that it was lawful to provide that certain +persons, i.e., those who had aided the rebellion, should not be paid out +of the funds made available by the general appropriation, but that such +persons should seek relief from Congress.[1536] The Court has also +recognized that Congress has a wide discretion as to the extent to which +it shall prescribe details of expenditures for which it appropriates +funds and has approved the frequent practice of making general +appropriations of large amounts to be allotted and expended as directed +by designated government agencies. Citing as an example the act of June +17, 1902[1537] where all moneys received from the sale and disposal of +public lands in a large number of States and territories were set aside +as a special fund to be expended under the direction of the Secretary of +the Interior upon such projects as he determined to be practicable and +advisable for the reclamation of arid and semi-arid lands within those +States and territories, the Court declared: "The constitutionality of +this delegation of authority has never been seriously questioned."[1538] + + +PAYMENT OF CLAIMS + +No officer of the Federal Government is authorized to pay a debt due +from the United States, whether reduced to judgment or not, without an +appropriation for that purpose.[1539] After the Civil War, a number of +controversies arose out of attempts by Congress to restrict the payment +of the claims of persons who had aided the Rebellion, but had thereafter +received a pardon from the President. The Supreme Court held that +Congress could not prescribe the evidentiary effect of a pardon in a +proceeding in the Court of Claims for property confiscated during the +Civil War,[1540] but that where the confiscated property had been sold +and the proceeds paid into the Treasury, a pardon did not of its own +force authorize the restoration of such proceeds.[1541] It was within +the competence of Congress to declare that the amounts due to persons +thus pardoned should not be paid out of the Treasury and that no general +appropriation should extend to their claims.[1542] + + +Clause 8. No Title of Nobility shall be granted by the United States: +And no Person holding any Office of Profit or Trust under them, shall, +without the Consent of the Congress, accept of any present, Emolument, +Office, or Title, of any kind whatever, from any King, Prince, or +foreign State. + + +In 1871 the Attorney General of the United States ruled that: "A +minister of the United States abroad is not prohibited by the +Constitution from rendering a friendly service to a foreign power, even +that of negotiating a treaty for it, provided he does not become an +officer of that power, but the acceptance of a formal commission, as +minister plenipotentiary, creates an official relation between the +individual thus commissioned and the government which in this way +accredits him as its representative, which is prohibited by this clause +of the Constitution."[1543] + + +Section 10. No State Shall enter into any Treaty, Alliance, or +Confederation; grant Letters of Marque and Reprisal; coin Money; emit +Bills of Credit; make any Thing but gold and silver Coin a Tender in +Payment of Debts; pass any Bill of Attainder, ex post facto Law, or Law +impairing the Obligation of Contracts, or grant any Title of Nobility. + + +Powers Denied to the States + + +TREATIES, ALLIANCES OR CONFEDERATIONS + +At the time of the Civil War this clause was one of the provisions upon +which the Court relied in holding that the Confederation formed by the +seceding States could not be recognized as having any legal +existence.[1544] Today, its practical significance lies in the +limitations which it implies upon the power of the States to deal with +matters having a bearing upon international relations. In the early case +of Holmes _v._ Jennison,[1545] Chief Justice Taney invoked it as a +reason for holding that a State had no power to deliver up a fugitive +from justice to a foreign State. Recently the kindred idea that the +responsibility for the conduct of foreign relations rests exclusively +with the Federal Government prompted the Court to hold that, since the +oil under the three mile marginal belt along the California coast might +well become the subject of international dispute and since the ocean, +including this three mile belt, is of vital consequence to the nation in +its desire to engage in commerce and to live in peace with the world, +the Federal Government has paramount rights in and power over that belt, +including full dominion over the resources of the soil under the water +area.[1546] In Skiriotes _v._ Florida,[1547] the Court, on the other +hand, ruled that this clause did not disable Florida from regulating the +manner in which its own citizens may engage in sponge fishing outside +its territorial waters. Speaking for a unanimous Court, Chief Justice +Hughes declared: "When its action does not conflict with federal +legislation, the sovereign authority of the State over the conduct of +its citizens upon the high seas is analogous to the sovereign authority +of the United States over its citizens in like circumstances."[1548] + + +BILLS OF CREDIT + +Within the sense of the Constitution, bills of credit signify a paper +medium of exchange, intended to circulate between individuals; and +between the Government and individuals, for the ordinary purposes of +society. It is immaterial whether the quality of legal tender is +imparted to such paper. Interest bearing certificates, in denominations +not exceeding ten dollars, which were issued by loan offices established +by the State of Missouri, and made receivable in payment of taxes or +other moneys due to the State, and in payment of the fees and salaries +of State officers, were held to be bills of credit whose issuance was +banned by this section.[1549] The States are not forbidden, however, to +issue coupons receivable for taxes,[1550] nor to execute instruments +binding themselves to pay money at a future day for services rendered or +money borrowed.[1551] Bills issued by State banks are not bills of +credit;[1552] it is immaterial that the State is the sole stockholder of +the bank,[1553] that the officers of the bank were elected by the State +legislature,[1554] or that the capital of the bank was raised by the +sale of State bonds.[1555] + + +LEGAL TENDER + +Relying on this clause, which applies only to the States and not to the +Federal Government,[1556] the Supreme Court has held that where the +marshal of a State court received State bank notes in payment and +discharge of an execution, the creditor was entitled to demand payment +in gold or silver.[1557] Since, however, there is nothing in the +Constitution which prohibits a bank depositor from consenting when he +draws a check, that payment may be made by draft, a State law which +provided that checks drawn on local banks should, at the option of the +bank, be payable in exchange drafts was held valid.[1558] + + +BILLS OF ATTAINDER + +Statutes passed after the Civil War with the intent and result of +excluding persons who had aided the Confederacy from following certain +callings, by the device of requiring them to take an oath that they had +never given such aid, were held invalid as being bills of attainder, as +well as _ex post facto_ laws.[1559] + + +EX POST FACTO LAWS + + +Scope of Provision + +This clause, like the cognate restriction imposed on the Federal +Government by section 9, relates only to penal and criminal legislation +and not to civil laws which affect private rights adversely.[1560] It is +directed only against legislative action and does not touch erroneous or +inconsistent decisions by the courts.[1561] Even though a law is _ex +post facto_ and invalid as to crimes committed prior to its enactment, +it is nonetheless valid as to subsequent offenses.[1562] If it mitigates +the rigor of the law in force at the time the crime was committed,[1563] +or if it merely penalizes the continuance of conduct which was lawfully +begun before its passage, the statute is not _ex post facto_. Thus +measures penalizing the failure of a railroad to cut drains through +existing embankments,[1564] or making illegal the continued possession +of intoxicating liquors which were lawfully acquired,[1565] have been +held valid. + + +Denial of Future Privileges to Past Offenders + +The right to practice a profession may be denied to one who was +convicted of an offense before the statute was enacted if the offense +may reasonably be regarded as a continuing disqualification for the +profession. Without offending the Constitution, a statute making it a +misdemeanor to practice medicine after conviction of a felony may be +enforced against a person so convicted before the act was passed.[1566] +But the test oath prescribed after the Civil War, whereby office +holders, teachers, or preachers were required to swear that they had not +participated in the Rebellion, were held invalid on the ground that it +had no reasonable relation to fitness to perform official or +professional duties, but rather was a punishment for past +offenses.[1567] A similar oath required of suitors in the courts also +was held void.[1568] + + +Changes in Punishment + +Statutes which changed an indeterminate sentence law to require a judge +to impose the maximum sentence, whereas formerly he could impose a +sentence between the minimum and maximum;[1569] abolished a rule which +prevented a subsequent conviction of first-degree murder after a jury +had found the accused guilty in the second-degree by a verdict which had +been set aside;[1570] required criminals sentenced to death to be kept +thereafter in solitary confinement,[1571] or allowed a warden to fix, +within limits of one week, and keep secret the time of execution,[1572] +were held to be _ex post facto_ as applied to offenses committed prior +to their enactment. But laws providing heavier penalties for new crimes +thereafter committed by habitual criminals;[1573] changing the +punishment from hanging to electrocution, fixing the place therefor in +the penitentiary, and permitting the presence of a greater number of +invited witnesses;[1574] or providing for close confinement of six to +nine months in the penitentiary, in lieu of three to six months in jail +prior to execution, and substituting the warden for the sheriff as +hangman, have been sustained.[1575] + + +Changes in Procedure + +An accused person does not have a right to be tried in all respects in +accordance with the law in force when the crime charged was +committed.[1576] The mode of procedure may be changed so long as the +substantial rights of the accused are not curtailed.[1577] Laws shifting +the place of trial from one county to another,[1578] increasing the +number of appellate judges and dividing the appellate court into +divisions,[1579] granting a right of appeal to the State,[1580] changing +the method of selecting and summoning jurors,[1581] making separate +trials for persons jointly indicted a matter of discretion for the trial +court rather than a matter of right,[1582] and allowing a comparison of +handwriting experts[1583] have been sustained over the objection that +they were _ex post facto_. The contrary conclusion was reached with +respect to the application to felonies committed before a Territory was +admitted to the Union, of the provision in the State constitution which +permitted the trial of criminal cases by a jury of eight persons, +instead of the common law jury of twelve which was guaranteed by the +Sixth Amendment during the period of territorial government.[1584] + + +OBLIGATION OF CONTRACTS + + +Definition of Terms + +"Law."--The term comprises statutes, constitutional +provisions,[1585] municipal ordinances,[1586] and administrative +regulations having the force and operation of statutes.[1587] How is it +as to judicial decisions? Not only does the abstract principle of the +separation of powers forbid the idea that the courts "make" law, but the +word "pass" in the above clause seems to confine it to the formal and +acknowledged methods of exercise of the law-making function. +Accordingly, the Court has frequently said that the clause does not +cover judicial decisions, however erroneous, or whatever their effect on +existing contract rights.[1588] Nevertheless, there are important +exceptions to this rule which are hereinafter set forth. + +Status of Judicial Decisions.--Also, while the highest State +court usually has final authority in determining the construction as +well as the validity of contracts entered into under the laws of the +State, and the national courts will be bound by their decision of such +matters, nevertheless, for reasons which are fairly obvious, this rule +does not hold when the contract is one whose obligation is alleged to +have been impaired by State law.[1589] Otherwise, the challenged State +authority could be vindicated through the simple device of a +modification or outright nullification by the State court of the +contract rights in issue. Likewise, the highest State court usually has +final authority in construing State statutes and determining their +validity in relation to the State constitution. But this rule too has +had to bend to some extent to the Supreme Court's interpretation of the +obligation of contracts clause.[1590] + +Suppose the following situation: (1) a municipality, acting under +authority conferred by a State statute, has issued bonds in aid of a +railway company; (2) the validity of this statute has been sustained by +the highest State court; (3) later the State legislature passes an act +to repeal certain taxes to meet the bonds; (4) it is sustained in doing +so by a decision of the highest State court holding that the statute +authorizing the bonds was unconstitutional _ab initio_. In such a case +the Supreme Court would take an appeal from the State court and would +reverse the latter's decision of unconstitutionally because of its +effect in rendering operative the act to repeal the tax.[1591] + +Suppose further, however, that the State court has reversed itself on +the question of the constitutionality of the bonds in a suit by a +creditor for payment without there having been an act of repeal. In this +situation, as the cases stand today, the Supreme Court will still afford +relief if the case is one between citizens of different States, which +reaches it via a lower federal court.[1592] This is because in cases of +this nature the Court formerly felt free to determine questions of +fundamental justice for itself. Indeed, in such a case, the Court has +apparently in the past regarded itself as free to pass upon the +constitutionality of the State law authorizing the bonds even though +there has been no prior decision by the highest State court sustaining +them, the idea being that contracts entered into simply on the faith of +the _presumed_ constitutionality of a State statute are entitled to +this protection.[1593] + +In other words, in cases of which it has jurisdiction because of +diversity of citizenship, the Court has held that the obligation of +contracts is capable of impairment by subsequent judicial decisions no +less than by subsequent statutes and that it is able to prevent such +impairment. In cases, on the other hand, of which it obtains +jurisdiction only on the constitutional ground, and by appeal from a +State court, it has always adhered in terms to the doctrine that the +word "laws" as used in article I, section 10, does not comprehend +judicial decisions. Yet even in these cases, it will intervene to +protect contracts entered into on the faith of existing decisions from +an impairment which is the direct result of a reversal of such +decisions, but there must be in the offing, as it were, a statute of +some kind--one possibly many years older than the contract rights +involved--on which to pin its decision.[1594] + +In 1922 Congress, through an amendment to the Judicial Code, endeavored +to extend the reviewing power of the Supreme Court to suits involving +"'* * * the validity of a contract wherein it is claimed that a change +in the rule of law or construction of statutes by the highest court of a +State applicable to such contract would be repugnant to the Constitution +of the United States * * *'" This appeared to be an invitation to the +Court to say frankly that the obligation of a contract can be impaired +as well by a subsequent decision as by a subsequent statute. The Court, +however, declined the invitation in an opinion by Chief Justice Taft +which reviewed many of the cases covered in the preceding paragraphs. +Dealing with the Gelpcke and adherent decisions, Chief Justice Taft +said: "These cases were not writs of error to the Supreme Court of a +State. They were appeals or writs of error to federal courts where +recovery was sought upon municipal or county bonds or some other form of +contracts, the validity of which had been sustained by decisions of the +Supreme Court of a State prior to their execution, and had been denied +by the same court after their issue or making. In such cases the federal +courts exercising jurisdiction between citizens of different States held +themselves free to decide what the State law was, and to enforce it as +laid down by the State Supreme Court before the contracts were made +rather than in later decisions. They did not base this conclusion on +Article I, Sec. 10, of the Federal Constitution, but on the State law as +they determined it, which, in diverse citizenship cases, under the third +Article of the Federal Constitution they were empowered to do. Burgess +_v._ Seligman, 107 U.S. 20 (1883)."[1595] While doubtless this was an +available explanation in 1924, the decision in 1938 in Erie Railroad Co. +_v._ Tompkins, 304 U.S. 64, so cuts down the power of the federal courts +to decide diversity of citizenship cases according to their own notions +of "general principles of common law" as to raise the question whether +the Court will not be required eventually to put Gelpcke and its +companions and descendants squarely on the obligation of contracts +clause, or else abandon them. + +"Obligation."--A contract is analyzable into two elements: the +_agreement_, which comes from the parties, and the _obligation_ which +comes from the law and makes the agreement binding on the parties. The +concept of obligation is an importation from the Civil Law and its +appearance in the contracts clause is supposed to have been due to James +Wilson, a graduate of Scottish universities and a Civilian. Actually the +term as used in the contracts clause has been rendered more or less +superfluous by the doctrine that the law in force when a contract is +made enters into and comprises a part of the contract itself.[1596] +Hence the Court sometimes recognizes the term in its decisions applying +the clause, sometimes ignores it. In Sturges _v._ Crowninshield,[1597] +decided in 1819, Marshall defines "obligation of contract" as "the law +which binds the parties to perform their agreement"; but a little later +the same year he sets forth the points presented for consideration in +Trustees of Dartmouth College _v._ Woodward[1598] to be: "1. Is this +contract protected by the Constitution of the United States? 2. Is it +impaired by the acts under which the defendant holds?"[1599] The word +"obligation" undoubtedly does carry the implication that the +Constitution was intended to protect only _executory_ contracts--i.e., +contracts still awaiting performance; but as is indicated in a moment, +this implication was early rejected for a certain class of contracts, +with immensely important result for the clause. + +"Impair."--"The obligations of a contract," says Chief Justice +Hughes for the Court in Home Building and Loan Association _v._ +Blaisdell,[1600] "are impaired by a law which renders them invalid, or +releases or extinguishes them * * * and impairment, * * *, has been +predicated of laws which without destroying contracts derogate from +substantial contractual rights."[1601] But he straight-away adds: "Not +only are existing laws read into contracts in order to fix obligations +as between the parties, but the reservation of essential attributes of +sovereign power is also read into contracts as a postulate of the legal +order. The policy of protecting contracts against impairment presupposes +the maintenance of a government by virtue of which contractual relations +are worth while,--a government which retains adequate authority to +secure the peace and good order of society. This principle of +harmonizing the constitutional prohibition with the necessary residuum +of State power has had progressive recognition in the decisions of this +Court."[1602] In short, the law from which the obligation stems must be +understood to include Constitutional Law and, moreover, a "progressive" +Constitutional Law.[1603] + +"Contracts," Extended to Cover Public Contracts.--Throughout +the first century of government under the Constitution, according to +Benjamin F. Wright, the contract clause had been considered in almost +forty per cent of all cases involving the validity of State legislation, +and of these the vast proportion involved legislative grants of one type +or other, the most important category being charters of +incorporation.[1604] Nor does this numerical prominence of such grants +in the cases overrate their relative importance from the point of view +of public interest. The question consequently arises whether the clause +was intended to be applied solely in protection of private contracts, or +in the protection also of public grants or, more broadly, in protection +of public contracts, in short, those to which a State is party? + +Writing late in life, Madison explained the clause by allusion to what +had occurred "in the internal administration of the States," in the +years immediately preceding the Constitutional Convention, in regard to +private debts. "A violation of contracts," said he, "had become familiar +in the form of depreciated paper made a legal tender, of property +substituted for money, and installment laws, and the occlusions of the +courts of justice."[1605] He had, in fact, written to the same effect in +The Federalist, while the adoption of the Constitution was +pending.[1606] + +The broader view of the intended purpose of the clause is, +nevertheless, not without considerable support. For one thing, the +clause departs from the comparable provision in the Northwest Ordinance +(1787) in two respects: First, in the _presence_ of the word +"obligation"; secondly, in the _absence_ of the word "private"; and +there is good reason for believing that Wilson may have been responsible +for both alterations, inasmuch as two years earlier he had denounced a +current proposal to repeal the Bank of North America's Pennsylvania +charter, in the following words: "If the act for incorporating the +subscribers to the Bank of North America shall be repealed in this +manner, a precedent will be established for repealing, in the same +manner, every other legislative charter in Pennsylvania. A pretence, as +specious as any that can be alleged on this occasion, will never be +wanting on any future occasion. Those acts of the State, which have +hitherto been considered as the sure anchors of privilege and of +property, will become the sport of every varying gust of politics, and +will float wildly backwards and forwards on the irregular and impetuous +tides of party and faction."[1607] + +Furthermore, in its first important constitutional case, that of +Chisholm _v._ Georgia,[1608] the Court ruled that its original +jurisdiction extended to an action in assumpsit brought by a citizen of +South Carolina against the State of Georgia. This construction of the +federal judicial power was, to be sure, promptly repealed by the +Eleventh Amendment, but without affecting the implication that the +contracts protected by the Constitution included public contracts. + +One important source of this diversity of opinion is to be found in that +ever welling spring of constitutional doctrine in early days, the +prevalence of Natural Law notions and the resulting vague significance +of the term "law." In Sturges _v._ Crowninshield, as we saw, Marshall +defined the _obligation of contracts_ as "the law which binds the +parties to perform their undertaking." Whence, however, comes this law? +If it comes from the State alone, which Marshall was later to deny even +as to private contracts,[1609] then it is hardly possible to hold that +the States' own contracts are covered by the clause, which manifestly +does not _create_ an obligation for contracts but only protects such +obligation as already exists. But if, on the other hand, the law +furnishing the obligation of contracts comprises Natural Law and kindred +principles, as well as law which springs from State authority, then, +inasmuch as the State itself is presumably bound by such principles, the +State's own obligations, so far as harmonious with them, are covered by +the clause. + + +Fletcher _v._ Peck + +Fletcher _v._ Peck,[1610] which was decided in 1810, has the double +claim to fame that it was the first case in which the Supreme Court held +a State enactment to be in conflict with the Constitution,[1611] and +also the first case to hold that the contracts clause protected public +grants. By an act passed on January 7, 1795, the Georgia Legislature +directed the sale to four land companies of public lands comprising most +of what are now the States of Alabama and Mississippi. As soon became +known, the passage of the measure had been secured by open and wholesale +bribery. So when a new legislature took over in the winter of 1795-1796, +almost its first act was to revoke the sale made the previous year. + +Meantime, however, the land companies had disposed of several millions +of acres of their holdings to speculators and prospective settlers, and +following the rescinding act some of these took counsel with Alexander +Hamilton as to their rights. In an opinion which was undoubtedly known +to the Court when it decided Fletcher _v._ Peck, Hamilton characterized +the repeal as contravening "the first principles of natural justice and +social policy," especially so far as it was made, "to the prejudice +* * * of third persons * * * innocent of the alleged fraud or +corruption; * * * [Moreover, he added,] the Constitution of the United +States, article first, section tenth, declares that no State shall pass +a law impairing the obligations of contract. This must be equivalent to +saying no State shall pass a law revoking, invalidating, or altering a +contract. Every grant from one to another, whether the grantor be a +State or an individual, is virtually a contract that the grantee shall +hold and enjoy the thing granted against the grantor, and his +representatives. It, therefore, appears to me that taking the terms of +the Constitution in their large sense, and giving them effect according +to the general spirit and policy of the provisions, the revocation of +the grant by the act of the legislature of Georgia may justly be +considered as contrary to the Constitution of the United States, and, +therefore null. And that the courts of the United States, in cases +within their jurisdiction, will be likely to pronounce it so."[1612] In +the debate to which the "Yazoo Land Frauds," as they were +contemporaneously known, gave rise in Congress, Hamilton's views were +quoted frequently. + +So far as it invokes the obligation of contracts clause, Marshall's +opinion in Fletcher _v._ Peck performs two creative acts. He recognizes +that an obligatory contract is one still to be performed--in other +words, is an executory contract; also that a grant of land is an +executed contract--a conveyance. But, he asserts, every grant is +attended by "an implied contract" on the part of the grantor not to +claim again the thing granted. Thus, grants are brought within the +category of contracts having continuing obligation and so within article +I, Sec. 10. But the question still remained of the nature of this +obligation. Marshall's answer to this can only be inferred from his +statement at the end of his opinion. The State of Georgia, he says, "was +restrained" from the passing of the rescinding act "either by general +principles which are common to our free institutions, or by particular +provisions of the Constitution of the United States."[1613] + + +New Jersey _v._ Wilson + +The protection thus thrown about land grants was presently extended, in +the case of New Jersey _v._ Wilson,[1614] to a grant of immunity from +taxation which the State of New Jersey had accorded certain Indian +lands; and several years after that, in the Dartmouth College +Case,[1615] to the charter privileges of an eleemosynary corporation. + + +Corporate Charters, Different Ways of Regarding + +There are three ways in which the charter of a corporation may be +regarded. In the first place, it may be thought of simply as a license +terminable at will by the State, like a liquor-seller's license or an +auctioneer's license, but affording the incorporators, so long as it +remains in force, the privileges and advantages of doing business in the +form of a corporation. Nowadays, indeed, when corporate charters are +usually issued to all legally qualified applicants by an administrative +officer who acts under a general statute, this would probably seem to be +the natural way of regarding them were it not for the Dartmouth College +decision. But in 1819 charters were granted directly by the State +legislatures in the form of special acts, and there were very few +profit-taking corporations in the country.[1616] The later extension of +the benefits of the Dartmouth College decision to corporations organized +under general law took place without discussion. + +Secondly, a corporate charter may be regarded as a franchise +constituting a vested or property interest in the hands of the holders, +and therefore as forfeitable only for abuse or in accordance with its +own terms. This is the way in which some of the early State courts did +regard them at the outset.[1617] It is also the way in which Blackstone +regards them in relation to the royal prerogative, although not in +relation to the sovereignty of Parliament; and the same point of view +finds expression in Story's concurring opinion in Dartmouth College _v._ +Woodward, as it did also in Webster's argument in that case.[1618] + + +The Dartmouth College Case + +The third view is the one formulated by Chief Justice Marshall in his +controlling opinion in Trustees of Dartmouth College _v._ +Woodward.[1619] This is that the charter of Dartmouth College, a purely +private institution, was the outcome and partial record of a contract +between the donors of the college, on the one hand, and the British +Crown, on the other, which contract still continued in force between the +State of New Hampshire, as the successor to the Crown and Government of +Great Britain, and the trustees, as successors to the donors. The +charter, in other words, was not simply a grant--rather it was the +documentary record of a still existent agreement between still existent +parties.[1620] Taking this view, which he developed with great ingenuity +and persuasiveness, Marshall was able to appeal to the obligation of +contracts clause directly, and without further use of his fiction in +Fletcher _v._ Peck of an executory contract accompanying the grant. + +A difficulty still remained, however, in the requirement that a contract +must, before it can have obligation, import consideration, that is to +say, must be shown not to have been entirely gratuitous on either side. +Nor was the consideration which induced the Crown to grant a charter to +Dartmouth College a merely speculative one. It consisted of the +donations of the donors to the important public interest of education. +Fortunately or unfortunately, in dealing with this phase of the case, +Marshall used more sweeping terms than were needful. "The objects for +which a corporation is created," he wrote, "are universally such as the +government wishes to promote. They are deemed beneficial to the country; +and this benefit constitutes the consideration, and in most cases, the +sole consideration of the grant." In other words, the simple fact of the +charter having been granted imports consideration from the point of view +of the State.[1621] With this doctrine before it, the Court in +Providence Bank _v._ Billings,[1622] and again in Charles River Bridge +Company _v._ Warren Bridge Company,[1623] admitted, without discussion +of the point, the applicability of the Dartmouth College decision to +purely business concerns. + + +Classes of Cases Under the Clause + +The cases just reviewed produce two principal lines of decisions +stemming from the obligation of contracts clause: first, public grants; +second, private executory contracts. The chief category of the first +line of cases consists, in turn, of those involving corporate +privileges, both those granted directly by the States and those granted +by municipalities by virtue of authority conferred upon them by the +State;[1624] while private debts, inclusive of municipal debts, exhaust +for the most part the second line. + + +Public Grants + +Municipal Corporations.--Not all grants by a State constitute +"contracts" within the sense of article I, section 10. In his Dartmouth +College decision Chief Justice Marshall conceded that "if the act of +incorporation be a grant of political power, if it creates a civil +institution, to be employed in the administration of the government, +* * *, the subject is one in which the legislature of the State may act +according to its own justment," unrestrained by the +Constitution[1625]--thereby drawing a line between "public" and +"private" corporations which remained undisturbed for more than half a +century.[1626] It has been subsequently held many times that municipal +corporations are mere instrumentalities of the State for the more +convenient administration of local governments, whose powers may be +enlarged, abridged, or entirely withdrawn at the pleasure of the +legislature.[1627] The same principle applies, moreover, to the property +rights which the municipality derives either directly or indirectly from +the State. This was first held as to the grant of a franchise to a +municipality to operate a ferry, and has since then been recognized as +the universal rule.[1628] As was stated in a case decided in 1923: "The +distinction between the municipality as an agent of the State for +governmental purposes and as an organization to care for local needs in +a private or proprietary capacity," while it limits the legal liability +of municipalities for the negligent acts or omissions of its officers or +agents, does not, on the other hand, furnish ground for the application +of constitutional restraints against the State in favor of its own +municipalities.[1629] Thus no contract rights are impaired by a statute +removing a county seat, even though the former location was by law to be +"permanent" when the citizens of the community had donated land and +furnished bonds for the erection of public buildings.[1630] Likewise a +statute changing the boundaries of a school district, giving to the new +district the property within its limits which had belonged to the former +district, and requiring the new district to assume the debts of the old +district, does not impair the obligation of contracts.[1631] Nor was the +contracts clause violated by State legislation authorizing State control +over insolvent communities through a Municipal Finance Commission.[1632] + +Public Offices.--On the same ground of public agency, neither +appointment nor election to public office creates a contract in the +sense of article I, section 10, whether as to tenure, or salary, or +duties, all of which remain, so far as the Constitution of the United +States is concerned, subject to legislative modification or outright +repeal.[1633] Indeed there can be no such thing in this country as +property in office, although the common law sustained a different view +which sometimes found reflection in early cases.[1634] When, however, +services have once been rendered, there arises an implied contract that +they shall be compensated at the rate which was in force at the time +they were rendered.[1635] Also, an express contract between the State +and an individual for the performance of specific services falls within +the protection of the Constitution. Thus a contract made by the governor +pursuant to a statute authorizing the appointment of a commissioner to +conduct, over a period of years, a geological, mineralogical, and +agricultural survey of the State, for which a definite sum had been +authorized, was held to have been impaired by repeal of the +statute.[1636] But a resolution of a New Jersey local board of education +reducing teachers' salaries for the school year 1933-1934, pursuant to +an act of the legislature authorizing such action, was held not to +impair the contract of a teacher who, having served three years, was by +earlier legislation exempt from having his salary reduced except for +inefficiency or misconduct.[1637] Similarly, it was held that an +Illinois statute which reduced the annuity payable to retire teachers +under an earlier act did not violate the contracts clause, since it had +not been the intention of the earlier act to propose a contract but only +to put into effect a general policy.[1638] On the other hand, the right +of one, who had become a "permanent teacher" under the Indiana Teachers +Tenure Act of 1927, to continued employment was held to be contractual +and to have been impaired by the repeal in 1933 of the earlier +act.[1639] + +Revocable Privileges Versus "Contracts": Tax Exemptions.--From +a different point of view, the Court has sought to distinguish between +grants of privileges, whether to individuals or to corporations, which +are contracts and those which are mere revocable licenses, although on +account of the doctrine of presumed consideration mentioned earlier, +this has not always been easy to do. In pursuance of the precedent set +in New Jersey _v._ Wilson,[1640] the legislature of a State "may exempt +particular parcels of property or the property of particular persons or +corporations from taxation, either for a specified period or +perpetually, or may limit the amount or rate of taxation, to which such +property shall be subjected," and such an exemption is frequently a +contract within the sense of the Constitution. Indeed this is always so +when the immunity is conferred upon a corporation by the clear terms of +its charter.[1641] When, on the other hand, an immunity of this sort +springs from general law, its precise nature is more open to doubt, as a +comparison of decisions will serve to illustrate. + +In Piqua Branch of the State Bank _v._ Knoop,[1642] a closely divided +Court held that a general banking law of the State of Ohio which +provided that companies complying therewith and their stockholders +should be exempt from all but certain taxes, was, as to a bank organized +under it and its stockholders, a contract within the meaning of article +I, section 10. "The provision was not," the Court said, "a legislative +command nor a rule of taxation until changed, but a contract stipulating +against any change, from the nature of the language used and the +circumstances under which it was adopted."[1643] When, however, the +State of Michigan pledged itself, by a general legislative act, not to +tax any corporation, company, or individual undertaking to manufacture +salt in the State from water there obtained by boring on property used +for this purpose and, furthermore, to pay a bounty on the salt so +manufactured, it was held not to have engaged itself within the +constitutional sense. "General encouragements," said the Court, "held +out to all persons indiscriminately, to engage in a particular trade or +manufacture, whether such encouragement be in the shape of bounties or +drawbacks, or other advantage, are always under the legislative control, +and may be discontinued at any time."[1644] So far as exemption from +taxation is concerned the difference between these two cases is +obviously slight; but the later one is unquestionable authority for the +proposition that legislative bounties are repealable at will. + +Furthermore, exemptions from taxation have in certain cases been treated +as gratuities repealable at will, even when conferred by specific +legislative enactments. This would seem always to be the case when the +beneficiaries were already in existence when the exemption was created +and did nothing of a more positive nature to qualify for it than to +continue in existence.[1645] Yet the cases are not always easy to +explain in relation to each other, except in light of the fact that the +Court's wider point of view has altered from time to time.[1646] + +Vested Rights.--Lastly, the term "contracts" is used in the +contracts clause in its popular sense of an agreement of minds. The +clause therefore does not protect vested rights that are not referable +to such an agreement between the State and an individual, such as the +right to recovery under a judgment. The individual in question may have +a case under the Fourteenth Amendment, but not one under article I, +section 10.[1647] + + +Reservation of the Right to Alter and Repeal + +So much for the meaning of the word "contract" when public grants are +meant. It is next in order to consider four principles or doctrines +whereby the Court has itself broken down the force of the Dartmouth +College decision in great measure in favor of State legislative power. +By the logic of the Dartmouth College decision itself the State may +reserve in a corporate charter the right to "amend, alter, and repeal" +the same, and such reservation becomes a part of the contract between +the State and the incorporators, the obligation of which is accordingly +not impaired by the exercise of the right.[1648] Later decisions +recognize that the State may reserve the right to amend, alter, and +repeal by general law, with the result of incorporating the reservation +in all charters of subsequent date.[1649] There is, however, a +difference between a reservation by a statute and one by constitutional +provision. While the former may be repealed as to a subsequent charter +by the specific terms thereof, the latter may not.[1650] + +The Right to Reserve: When Limited.--Is the right which is +reserved by a State to "amend" or "alter" a charter without restriction? +When it is accompanied, as it generally is, by the right to "repeal," +one would suppose that the answer to this question was self-evident. +None the less, there are a number of judicial dicta to the effect that +this power is not without limit, that it must be exercised reasonably +and in good faith, and that the alterations made must be consistent with +the scope and object of the grant, etc.[1651] Such utterances amount, +apparently, to little more than an anchor to windward, for while some of +the State courts have applied tests of this nature to the disallowance +of legislation, it does not appear that the Supreme Court of the United +States has ever done so.[1652] + +Quite different is it with the distinction pointed out in the cases +between the franchises and privileges which a corporation derives from +its charter and the rights of property and contract which accrue to it +in the course of its existence. Even the outright repeal of the former +does not wipe out the latter or cause them to escheat to the State. The +primary heirs of the defunct organization are its creditors; but +whatever of value remains after their valid claims are met goes to the +former shareholders.[1653] By the earlier weight of authority, on the +other hand, persons who contract with companies whose charters are +subject to legislative amendment or repeal do so at their own risk: any +"such contracts made between individuals and the corporation do not vary +or in any manner change or modify the relation between the State and the +corporation in respect to the right of the State to alter, modify, or +amend such a charter, * * *"[1654] But later holdings becloud this +rule.[1655] + +Corporations As Persons Subject To The Law.--But suppose the +State neglects to reserve the right to amend, alter, or repeal--is it, +then, without power to control its corporate creatures? By no means. +Private corporations, like other private persons, are always presumed to +be subject to the legislative power of the State; from which it follows +that immunities conferred by charter are to be treated as exceptions to +an otherwise controlling rule. This principle was recognized by Chief +Justice Marshall in the case of Providence Bank _v._ Billings,[1656] in +which he held that in the absence of express stipulation or reasonable +implication to the contrary in its charter, the bank was subject to the +taxing power of the State, notwithstanding that the power to tax is the +power to destroy. + +Corporations and the Police Power.--And of course the same +principle is equally applicable to the exercise by the State of its +police powers. Thus, in what was perhaps the leading case before the +Civil War, the Supreme Court of Vermont held that the legislature of +that State had the right, in furtherance of the public safety, to +require chartered companies operating railways to fence in their tracks +and provide cattle yards. In a matter of this nature, said the Court, +corporations are on a level with individuals engaged in the same +business, unless, from their charter, they can prove the contrary.[1657] +Since then the rule has been applied many times in justification of +State regulation of railroads,[1658] and even of the application of a +State prohibition law to a company which had been chartered expressly to +manufacture beer.[1659] + + +The Strict Construction of Public Grants + +Long, however, before the cases last cited were decided, the principle +which they illustrate had come to be powerfully reinforced by two +others, the first of which is that all charter privileges and immunities +are to be strictly construed as against the claims of the State; or as +it is otherwise often phrased, "nothing passes by implication in a +public grant." + +The Charles River Bridge Case.--The leading case is that of the +Charles River Bridge Company _v._ Warren Bridge Company,[1660] which was +decided shortly after Chief Justice Marshall's death by a substantially +new Court. The question at issue was whether the charter of the +complaining company, which authorized it to operate a toll bridge, stood +in the way of the State's permitting another company of later date to +operate a free bridge in the immediate vicinity. Inasmuch as the first +company could point to no clause in its charter which specifically +vested it with an exclusive right, the Court held the charter of the +second company to be valid on the principle just stated. Justice Story, +who remained from the old Bench, presented a vigorous dissent, in which +he argued cogently, but unavailingly, that the monopoly claimed by the +Charles River Bridge Company was fully as reasonable an implication from +the terms of its charter and the circumstances surrounding its +concession as perpetuity had been from the terms of the Dartmouth +College charter and the environing transaction. + +The Court was in fact making new law, because it was looking at things +from a new point of view. This was the period when judicial recognition +of the Police Power began to take on a doctrinal character. It was also +the period when the railroad business was just beginning. Chief Justice +Taney's opinion evinces the influence of both these developments. The +power of the State to provide for its own internal happiness and +prosperity was not, he asserted, to be pared away by mere legal +intendments; nor was its ability to avail itself of the lights of modern +science to be frustrated by obsolete interests such as those of the old +turnpike companies, the charter privileges of which, he apprehended, +might easily become a bar to the development of transportation along new +lines.[1661] + +Applications of the Strict Construction Rule.--The rule of +strict construction has been reiterated by the Court many times. A good +illustration is afforded by the following passage from its opinion in +Blair _v._ Chicago,[1662] decided nearly seventy years after the Charles +River Bridge Case: "Legislative grants of this character should be in +such unequivocal form of expression that the legislative mind may be +distinctly impressed with their character and import, in order that the +privileges may be intelligently granted or purposely withheld. It is a +matter of common knowledge that grants of this character are usually +prepared by those interested in them, and submitted to the legislature +with a view to obtain from such bodies the most liberal grant of +privileges which they are willing to give. This is one among many +reasons why they are to be strictly construed. * * * 'The principle is +this, that all rights which are asserted against the State must be +clearly defined, and not raised by inference or presumption; and if the +charter is silent about a power, it does not exist. If, on a fair +reading of the instrument, reasonable doubts arise as to the proper +interpretation to be given to it, those doubts are to be solved in favor +of the State; and where it is susceptible of two meanings, the one +restricting and the other extending the powers of the corporation, that +construction is to be adopted which works the least harm to the +State.'"[1663] + +Strict Construction of Tax Exemptions.--An excellent +illustration of the operation of the rule in relation to tax exemptions +is furnished by the derivative doctrine that an immunity of this +character must be deemed as intended solely for the benefit of the +corporation receiving it and hence may not, in the absence of express +permission by the State, be passed on to a successor.[1664] Thus, where +two companies, each exempt from taxation, were permitted by the +legislature to consolidate the new corporation was held to be subject to +taxation.[1665] Again, a statute which granted a corporation all "the +rights and privileges" of an earlier corporation was held not to confer +the latter's "immunity" from taxation.[1666] Yet again, a legislative +authorization of the transfer by one corporation to another of the +former's "estate, property, right, privileges, and franchises" was held +not to clothe the later company with the earlier one's exemption from +taxation.[1667] + +Furthermore, an exemption from taxation is to be strictly construed +even in the hands of one clearly entitled to it. So the exemption +conferred by its charter on a railway company was held not to extend to +branch roads constructed by it under a later statute.[1668] Also, a +general exemption of the property of a corporation from taxation was +held to refer only to the property actually employed in its +business.[1669] Also, the charter exemption of the capital stock of a +railroad from taxation "for ten years after completion of the said road" +was held not to become operative until the completion of the road.[1670] +So also the exemption of the campus and endowment fund of a college was +held to leave other lands of the college, though a part of its +endowment, subject to taxation.[1671] Likewise, provisions in a statute +that bonds of the State and its political subdivisions are not to be +taxed and shall not be taxed were held not to exempt interest on them +from taxation as income of the owners.[1672] + +Strict Construction and the Police Power.--The police power, +too, has frequently benefited from the doctrine of strict construction, +although, for a reason pointed out below, this recourse is today seldom, +if ever, necessary in this connection. Some of the more striking cases +may be briefly summarized. The provision in the charter of a railway +company permitting it to set reasonable charges still left the +legislature free to determine what charges were reasonable.[1673] On the +other hand, when a railway agreed to accept certain rates for a +specified period, it thereby foreclosed the question of the +reasonableness of such rates.[1674] The grant to a company of the right +to supply a city with water for twenty-five years was held not to +prevent a similar concession to another company by the same city.[1675] +The promise by a city in the charter of a water company not to make a +similar grant to any other person or corporation was held not to prevent +the city itself from engaging in the business.[1676] A municipal +concession to a water company which was to run for thirty years and +which was accompanied by the provision that the "said company shall +charge the following rates," was held not to prevent the city from +reducing such rates.[1677] But more broadly, the grant to a municipality +of the power to regulate the charges of public service companies was +held not to bestow the right to contract away this power.[1678] Indeed, +any claim by a private corporation that it received the rate-making +power from a municipality must survive a two-fold challenge: first, as +to the right of the municipality under its charter to make such a grant; +secondly, as to whether it has actually done so; and in both respects +an affirmative answer must be based on express words and not on +implication.[1679] + + +The Doctrine of Inalienable State Powers + +The second of the doctrines mentioned above whereby the principle of the +subordination of all persons, corporate and individual alike, to the +legislative power of the State has been fortified, is the doctrine that +certain of the State's powers are inalienable, and that any attempt by a +State to alienate them, upon any consideration whatsoever, is _ipso +facto_ void, and hence incapable of producing a "contract" within the +meaning of article I, section 10. One of the earliest cases to assert +this principle occurred in New York in 1826. The corporation of the City +of New York, having conveyed certain lands for the purposes of a church +and cemetery together with a covenant for quiet enjoyment, later passed +a by-law forbidding their use as a cemetery. In denying an action +against the city for breach of covenant, the State court said the +defendants "had no power as a party, [to the covenant] to make a +contract which should control or embarrass their legislative powers and +duties."[1680] + +The Eminent Domain Power Inalienable.--The Supreme Court first +applied similar doctrine in 1848 in a case involving a grant of +exclusive right to construct a bridge at a specified locality. +Sustaining the right of the State of Vermont to make a new grant to a +competing company, the Court held that the obligation of the earlier +exclusive grant was sufficiently recognized in making just compensation +for it; and that corporate franchises, like all other forms of +property, are subject to the overruling power of eminent domain.[1681] +This reasoning was reinforced by an appeal to the theory of State +sovereignty, which was held to involve the corollary of the +inalienability of all the principal powers of a State. + +The subordination of all charter rights and privileges to the power of +eminent domain has been maintained by the Court ever since; not even an +explicit agreement by the State to forego the exercise of the power will +avail against it.[1682] Conversely, the State may revoke an improvident +grant of the public petitionary without recourse to the power of eminent +domain, such a grant being inherently beyond the power of the State to +make. So when the legislature of Illinois in 1869 devised to the +Illinois Central Railroad Company, its successors and assigns, the +State's right and title to nearly a thousand acres of submerged land +under Lake Michigan along the harbor front of Chicago, and four years +later sought to repeal the grant, the Court, in a four-to-three +decision, sustained an action by the State to recover the lands in +question. Said Justice Field, speaking for the majority: "Such +abdication is not consistent with the exercise of that trust which +requires the government of the State to preserve such waters for the use +of public. The trust devolving upon the State for the public, and which +can only be discharged by the management and control of property in +which the public has an interest, cannot be relinquished by a transfer +of the property. * * * Any grant of the kind is necessarily revocable, +and the exercise of the trust by which the property was held by the +State can be resumed at any time."[1683] The case affords an interesting +commentary on Fletcher _v._ Peck.[1684] + +The Taxing Power Not Inalienable.--On the other hand, repeated +endeavors to subject tax exemptions to the doctrine of inalienability +though at times supported by powerful minorities on the Bench, have +always failed.[1685] As recently as January, 1952, the Court ruled that +the Georgia Railway Company was entitled to seek an injunction in the +federal courts against an attempt by Georgia's Revenue Commission to +compel it to pay _ad valorem_ taxes contrary to the terms of its special +charter issued in 1833. To the argument that this was a suit contrary to +the Eleventh Amendment it returned the answer that the immunity from +Federal jurisdiction created by the Amendment "does not extend to +individuals who act as officers without constitutional authority."[1686] + +The Police Power; When Inalienable.--The leading case involving +the police power is Stone _v._ Mississippi, 101 U.S. 814, decided in +1880. In 1867 the legislature of Mississippi chartered a company to +which it expressly granted the power to conduct a lottery. Two years +later the State adopted a new Constitution which contained a provision +forbidding lotteries; and a year later the legislature passed an act to +put this provision into effect. In upholding this act and the +constitutional provision on which it was based, the Court said: "The +power of governing is a trust committed by the people to the government, +no part of which can be granted away. The people, in their sovereign +capacity, have established their agencies for the preservation of the +public health and the public morals, and the protection of public and +private rights," and these agencies can neither give away nor sell their +discretion. All that one can get by a charter permitting the business of +conducting a lottery "is suspension of certain governmental rights in +his favor, subject to withdrawal at will."[1687] + +The Court shortly afterward applied the same reasoning in a case in +which was challenged the right of Louisiana to invade the exclusive +privilege of a corporation engaged in the slaughter of cattle in New +Orleans by granting another company the right to engage in the same +business. Although the State did not offer to compensate the older +company for the lost monopoly, its action was sustained on the ground +that it had been taken in the interest of the public health.[1688] When, +however, the City of New Orleans, in reliance on this precedent, sought +to repeal an exclusive franchise which it had granted a company for +fifty years to supply gas to its inhabitants, the Court interposed its +veto, explaining that in this instance neither the public health, the +public morals, nor the public safety was involved.[1689] + +Later decisions, nonetheless, apply the principle of inalienability +broadly. To quote from one: "It is settled that neither the 'contract' +clause nor the 'due process' clause has the effect of overriding the +power to the State to establish all regulations that are reasonably +necessary to secure the health, safety, good order, comfort, or general +welfare of the community; that this power can neither be abdicated nor +bargained away, and is inalienable even by express grant; and all +contract and property rights are held subject to its fair +exercise."[1690] Today, indeed, it scarcely pays a company to rely upon +its charter privileges or upon special concessions from a State in +resisting the application to it of measures claiming to have been +enacted by the police power thereof. For if this claim is sustained by +the Court, the obligation of the contract clause will not avail; while +if it is not, the due process of law clause of the Fourteenth Amendment +will furnish a sufficient reliance. That is to say, the discrepancy +which once existed between the Court's theory of an overriding police +power in these two adjoining fields of Constitutional Law is today +apparently at an end. Indeed, there is usually no sound reason why +rights based on public grant should be regarded as more sacrosanct than +rights which involve the same subject matter but are of different +provenience. + + +Private Contracts + +Scope of the Term.--The term "private contracts" is, naturally, +not all-inclusive. A judgment, though granted in favor of a creditor, is +not a contract in the sense of the Constitution;[1691] nor is +marriage.[1692] And whether a particular agreement is a valid contract +is a question for the courts, and finally for the Supreme Court, when +the protection of the contract clause is invoked.[1693] + +Source of the Obligation.--The question of the nature and +source of the obligation of a contract, which went by default in +Fletcher _v._ Peck and the Dartmouth College case, with such vastly +important consequences, had eventually to be met and answered by the +Court in connection with private contracts. The first case involving +such a contract to reach the Supreme Court was Sturges _v._ +Crowninshield[1694] in which a debtor sought escape behind a State +insolvency act of later date than his note. The act was held +inoperative; but whether this was because of its retroaction in this +particular case or for the broader reason that it assumed to excuse +debtors from their promises, was not at the time made clear. As noted +earlier, Chief Justice Marshall's definition on this occasion of the +obligation of a contract as the law which binds the parties to perform +their undertakings was not free from ambiguity, owing to the uncertain +connotation of the term _law_. + +Ogden _v._ Saunders.--These obscurities were finally +cleared up for most cases in Ogden _v._ Saunders,[1695] in which the +temporal relation of the statute and the contract involved was exactly +reversed--the former antedating the latter. Marshall contended, but +unsuccessfully, that the statute was void, inasmuch as it purported to +release the debtor from that original, intrinsic obligation which always +attaches under natural law to the acts of free agents. "When," he wrote, +"we advert to the course of reading generally pursued by American +statesmen in early life, we must suppose that the framers of our +Constitution were intimately acquainted with the writings of those wise +and learned men whose treatises on the laws of nature and nations have +guided public opinion on the subjects of obligation and contract," and +that they took their views on these subjects from those sources. He also +posed the question of what would happen to the obligation of contracts +clause if States might pass acts declaring that all contracts made +subsequently thereto should be subject to legislative control.[1696] + +For the first and only time majority of the Court abandoned the Chief +Justice's leadership. Speaking by Justice Washington it held that the +obligation of private contracts is derived from the municipal law--State +statutes and judicial decisions--and that the inhibition of article I, +section 10, is confined to legislative acts made after the contracts +affected by them, with one exception. For by a curiously complicated +line of reasoning it was also held in this same case that when the +creditor is a nonresident, then a State may not by an insolvent law +rights under a contract, albeit one of later date. + +With the proposition established that the obligation of a private +contract comes from the _municipal_ law in existence when the contract +is made, a further question presents itself, namely, what part of the +municipal law is referred to? No doubt, the law which determines the +validity of the contract itself is a part of such law. Also, the law +which interprets the terms used in the contract, or which supplies +certain terms when others are used; as for instance, constitutional +provisions or statutes which determine what is "legal tender" for the +payment of debts; or judicial decisions which construe the term "for +value received" as used in a promissory note, and so on. In short, any +law which at the time of the making of a contract goes to measure the +rights and duties of the parties to it in relation to each other enters +into its obligation. + + +Remedy a Part of the Obligation + +Suppose, however, that one of the parties to a contract fails to live up +to his obligation as thus determined. The contract itself may now be +regarded as at an end; but the injured party, nevertheless, has a new +set of rights in its stead, those which are furnished him by the +remedial law, including the law of procedure. In the case of a mortgage, +he may foreclose; in the case of a promissory note, he may sue; in +certain cases, he may demand specific performance. Hence the further +question arises, whether this remedial law is to be considered a part of +the law supplying the obligation of contracts. Originally, the +predominating opinion was negative, since as we have just seen, this law +does not really come into operation until the contract has been broken. +Yet it is obvious that the sanction which this law lends to contracts is +extremely important--indeed, indispensable. In due course it became the +accepted doctrine that that part of the law which supplies one party to +a contract with a remedy if the other party does not live up to his +agreement, as authoritatively interpreted, entered into the "obligation +of contracts" in the constitutional sense of this term, and so might not +be altered to the material weakening of existing contracts. In the +court's own words, "Nothing can be more material to the obligation than +the means of enforcement. Without the remedy the contract may, indeed, +in the sense of the law, be said not to exist, and its obligation to +fall within the class of those moral and social duties which depend for +their fulfillment wholly upon the will of the individual. The ideas of +validity and remedy are inseparable, * * *"[1697] + +Establishment Of The Rules.--This rule was first definitely +announced in 1843 in the case of Bronson _v._ Kinzie.[1698] Here an +Illinois mortgage giving the mortgagee an unrestricted power of sale in +case of the mortgagor's fault was involved, along with a later act of +the legislature which required mortgaged premises to be sold for not +less than two-thirds of the appraised value, and allowed the mortgagor a +year after the sale to redeem them. It was held that the statute, in +altering the preexisting remedies to such an extent, violated the +constitutional prohibition, and hence was void. The year following a +like ruling was made in the case of McCracken _v._ Hayward[1699] as to a +statutory provision that personal property should not be sold under +execution for less than two-thirds of its appraised value. + +Qualifications Of The Rule.--But the rule illustrated by these +cases does not signify that a State may make no changes in its remedial +or procedural law which affect existing contracts. "Provided," the Court +has said, "a substantial or efficacious remedy remains or is given, by +means of which a party can enforce his rights under the contract, the +Legislature may modify or change existing remedies or prescribe new +modes of procedure."[1700] Thus States are constantly remodelling their +judicial systems and modes of practice unembarrassed by the obligation +of contracts clause.[1701] The right of a State to abolish imprisonment +for debt was early asserted.[1702] Again the right of a State to shorten +the time for the bringing of actions has been affirmed even as to +existing causes of action, but with the proviso added that a reasonable +time must be left for the bringing of such actions.[1703] On the other +hand, a statute which withdrew the judicial power to enforce +satisfaction of a certain class of judgments by mandamus was held +invalid.[1704] In the words of the Court: "Every case must be determined +upon its own circumstances;"[1705] and it later added: "In all such +cases the question becomes, * * *, one of reasonableness, and of that +the legislature is primarily the judge."[1706] + +The Municipal Bond Cases.--There is one class of cases +resulting from the doctrine that the law of remedy constitutes a part of +the obligation of a contract to which a special word is due. This +comprises cases in which the contracts involved were municipal bonds. +While a city is from one point of view but an emanation from the +government's sovereignty and an agent thereof, when it borrows money it +is held to be acting in a corporate or private capacity, and so to be +suable on its contracts. Furthermore, as was held in the leading case of +Von Hoffman _v._ Quincy,[1707] "where a State has authorized a municipal +corporation to contract and to exercise the power of local taxation to +the extent necessary to meet its engagements, the power thus given +cannot be withdrawn until the contract is satisfied." In this case the +Court issued a mandamus compelling the city officials to levy taxes for +the satisfaction of a judgment on its bonds in accordance with the law +as it stood when the bonds were issued.[1708] Nor may a State by +dividing an indebted municipality among others enable it to escape its +obligations. In such a case the debt follows the territory, and the duty +of assessing and collecting taxes to satisfy it devolves upon the +succeeding corporations and their officers.[1709] But where a municipal +organization has ceased practically to exist through the vacation of its +offices, and the government's function is exercised once more by the +State directly, the Court has thus far found itself powerless to +frustrate a program of repudiation.[1710] However, there is no reason +why the State should enact the role of _particeps criminis_ in an +attempt to relieve its municipalities of the obligation to meet their +honest debts. Thus in 1931, during the Great Depression, New Jersey +created a Municipal Finance Commission with power to assume control over +its insolvent municipalities. To the complaint of certain bondholders +that this legislation impaired the contract obligations of their +debtors, the Court, speaking by Justice Frankfurter, pointed out that +the practical value of an unsecured claim against a city is "the +effectiveness of the city's taxing power," which the legislation under +review was designed to conserve.[1711] + + +Private Contracts and the Police Power + +The increasing subjection of public grants to the State's police power +has been previously pointed out. That purely private contracts should be +in any stronger situation in this respect would obviously be anomalous +in the extreme. In point of fact, the ability of private parties to +curtail governmental authority by the easy devise of contracting with +one another is, with an exception to be noted, even less than that of +the State to tie its own hands by contracting away its own powers. So, +when it was contended in an early Pennsylvania case, than an act +prohibiting the issuance of notes by unincorporated banking associations +was violative of the obligation of contracts clause because of its +effect upon certain existing contracts of members of such associations, +the State Supreme Court answered: "But it is said, that the members had +formed a contract _between themselves_, which would be dissolved by the +stoppage of their business; and what then? Is that such a violation of +contracts as is prohibited by the Constitution of the United States? +Consider to what such a construction would lead. Let us suppose, that in +one of the States there is no law against gaming, cock-fighting, +horse-racing or public masquerades, and that companies should be formed +for the purpose of carrying on these practices; * * *" Would the +legislature then be powerless to prohibit them? The answer returned, of +course, was no.[1712] + +The prevailing doctrine is stated by the Supreme Court of the United +States in the following words: "It is the settled law of this court that +the interdiction of statutes impairing the obligation of contracts does +not prevent the State from exercising such powers as are vested in it +for the promotion of the common weal, or are necessary for the general +good of the public, though contracts previously entered into between +individuals may thereby be affected. * * * In other words, that parties +by entering into contracts may not estop the legislature from enacting +laws intended for the public good."[1713] + +So, in an early case we find a State recording act upheld as applying to +deeds dated before the passage of the act.[1714] Later cases have +brought the police power in its more customary phases into contact with +private, as well as with public contracts. Lottery tickets, valid when +issued, were necessarily invalidated by legislation prohibiting the +lottery business;[1715] contracts for the sale of beer, valid when +entered into, were similarly nullified by a State prohibition law;[1716] +and contracts of employment were modified by later laws regarding the +liability of employers and workmen's compensation.[1717] Likewise a +contract between plaintiff and defendant did not prevent the State from +making the latter a concession which rendered the contract +worthless;[1718] nor did a contract as to rates between two railway +companies prevent the State from imposing different rates;[1719] nor did +a contract between a public utility company and a customer protect the +rates agreed upon from being superseded by those fixed by the +State.[1720] Similarly, a contract for the conveyance of water beyond +the limits of a State did not prevent the State from prohibiting such +conveyance.[1721] + +Emergency Legislation.--But the most striking exertions of the +police power touching private contracts, as well as other private +interests, within recent years have been evoked by war and economic +depression. Thus in World War I the State of New York enacted a statute +which, declaring that a public emergency existed, forbade the +enforcement of covenants for the surrender of the possession of premises +on the expiration of leases, and wholly deprived for a period owners of +dwellings, including apartment and tenement houses, within the City of +New York and contiguous counties of possessory remedies for the eviction +from their premises of tenants in possession when the law took effect, +providing the latter were able and willing to pay a reasonable rent. In +answer to objections leveled against this legislation on the basis of +the obligation of contracts clause, the Court said: "But contracts are +made subject to this exercise of the power of the State when otherwise +justified, as we have held this to be."[1722] In a subsequent case, +however, the Court added that, while the declaration by the legislature +of a justifying emergency was entitled to great respect, it was not +conclusive; that a law "depending upon the existence of an emergency or +other certain state of facts to uphold it may cease to operate if the +emergency ceases or the facts change," and that whether they have +changed was always open to judicial inquiry.[1723] + +Individual Rights Versus Public Welfare.--Summing up the result +of the cases above referred to, Chief Justice Hughes, speaking for the +Court in Home Building and Loan Association _v._ Blaisdell,[1724] +remarked in 1934: "It is manifest from this review of our decisions that +there has been a growing appreciation of public needs and of the +necessity of finding ground for a rational compromise between individual +rights and public welfare. The settlement and consequent contraction of +the public domain, the pressure of a constantly increasing density of +population, the interrelation of the activities of our people and the +complexity of our economic interests, have inevitably led to an +increased use of the organization of society in order to protect the +very bases of individual opportunity. Where, in earlier days, it was +thought that only the concerns of individuals or of classes were +involved, and that those of the State itself were touched only remotely, +it has later been found that the fundamental interests of the State are +directly affected; and that the question is no longer merely that of one +party to a contract as against another, but of the use of reasonable +means to safeguard the economic structure upon which the good of all +depends. * * * The principle of this development is, * * * [he added] +that the reservation of the reasonable exercise of the protective power +of the States is read into all contracts * * *."[1725] + + +Evaluation of the Clause Today + +Yet it should not be inferred that the obligation of contracts clause is +today totally moribund even in times of stress. As we have just seen it +still furnishes the basis for some degree of judicial review as to the +substantiality of the factual justification of a professed exercise by a +State legislature of its police power; and in the case of legislation +affecting the remedial rights of creditors, it still affords a solid and +palpable barrier against legislative erosion. Nor is this surprising in +view of the fact that, as we have seen, such rights were foremost in +the minds of the framers of the clause. The court's attitude toward +insolvency laws, redemption laws, exemption laws, appraisement laws and +the like has always been that they may not be given retroactive +operation;[1726] and the general lesson of these earlier cases is +confirmed by the court's decisions between 1934 and 1945 in certain +cases involving State moratorium statutes. In Home Building and Loan +Association _v._ Blaisdell,[1727] the leading case, a closely divided +Court sustained the Minnesota Moratorium Act of April 18, 1933, which, +reciting the existence of a severe financial and economic depression for +several years and the frequent occurrence of mortgage foreclosure sales +for inadequate prices, and asserting that these conditions had created +an economic emergency calling for the exercise of the State's police +power, authorized its courts to extend the period for redemption from +foreclosure sales for such additional time as they might deem just and +equitable, although in no event beyond May 1, 1935. The act also left +the mortgagor in possession during the period of extension, subject to +the requirement that he pay a reasonable rental for the property as +fixed by the Court, at such time and in such manner as should be +determined by the Court. Contemporaneously, however, less carefully +drawn statutes from Missouri and Arkansas, acts which were less +considerate of creditor's rights, were set aside as violative of the +contracts clause.[1728] "A State is free to regulate the procedure in +its courts even with reference to contracts already made," said Justice +Cardozo for the Court, "and moderate extensions of the time for pleading +or for trial will ordinarily fall within the power so reserved. A +different situation is presented when extensions are so piled up as to +make the remedy a shadow. * * * What controls our judgment at such times +is the underlying reality rather than the form or label. The changes of +remedy now challenged as invalid are to be viewed in combination, with +the cumulative significance that each imparts to all. So viewed they are +seen to be an oppressive and unnecessary destruction of nearly all the +incidents that give attractiveness and value to collateral +security."[1729] On the other hand, in the most recent of this category +of cases, the Court gave its approval to an extension by the State of +New York of its moratorium legislation. While recognizing that business +conditions had improved, the Court was of the opinion that there was +reason to believe that "'the sudden termination of the legislation which +has damned up normal liquidation of these mortgages for more than eight +years might well result in an emergency more acute than that which the +original legislation was intended to alleviate.'"[1730] + +And meantime the Court had sustained legislation of the State of New +York under which a mortgagee of real property was denied a deficiency +judgment in a foreclosure suit where the State court found that the +value of the property purchased by the mortgagee at the foreclosure sale +was equal to the debt secured by the mortgage.[1731] "Mortgagees," the +Court said, "are constitutionally entitled to no more than payment in +full. * * * To hold that mortgagees are entitled under the contract +clause to retain the advantages of a forced sale would be to dignify +into a constitutionally protected property right their chance to get +more than the amount of their contracts. * * * The contract clause does +not protect such a strategical, procedural advantage."[1732] + + +Statistical Data Pertinent to the Clause + +The obligation of contracts clause attained the high point of its +importance in our Constitutional Law in the years immediately following +the Civil War.[1733] Between 1865 and 1873 there were twenty cases in +which State acts were held invalid under the clause, of which twelve +involved public contracts. During the next fifteen years, which was the +period of Waite's chief justiceship, twenty-nine cases reached the Court +in which State legislation was set aside under the clause. Twenty-four +of these involved public contracts. The decline of the importance of the +clause as a title in Constitutional Law began under Chief Justice Fuller +(1888 to 1910). During this period less than 25% of the cases involving +the validity of State legislation involved this rubric. In twenty-eight +of these cases, of which only two involved private contracts, the +statute involved was set aside. During Chief Justice White's term (1910 +to 1921) the proportion of contract cases shrank to 15%, and in that of +Chief Justice Taft, to 9%.[1734] + +In recent years the clause has appeared to undergo something of a +revival, not however as a protection of public grants, but as a +protection of private credits. During the Depression, which began in +1929 and deepened in 1932, State legislatures enacted numerous +moratorium statutes, and beginning with Home Loan Association _v._ +Blaisdell, which was decided in 1934, the Court was required to pass +upon several of these. At the same time the clause was, in effect, +treated by the Court in two important cases as interpretive of the due +process clause, Amendment V, and thus applied indirectly as a +restriction on the power of Congress.[1735] But this emergence of the +clause into prominence was a flash in the pan. During the last decade +hardly a case a term involving the clause has reached the Court, +counting even those in which it is treated as a tail to the due process +of law kite.[1736] The reason for this declension has been twofold: +first, the subordination of public grants to the police power; secondly, +the expansion of the due process clause, which has largely rendered it a +fifth wheel to the Constitutional Law coach. + + +Clause 2. No State shall, without the Consent of the Congress, lay any +Imposts or Duties on Imports or Exports, except what may be absolutely +necessary for executing it's inspection Laws: and the net Produce of all +Duties and Imposts, laid by any State on Imports or Exports, shall be +for the Use of the Treasury of the United States; and all such Laws +shall be subject to the Revision and Controul of the Congress. + + +DUTIES ON EXPORTS AND IMPORTS + + +Scope + +Only articles imported from or exported to a foreign country, or "a +place over which the Constitution has not extended its commands with +respect to imports and their taxation," e.g., the Philippine Islands, +are comprehended by the terms "imports" and "exports,"[1737] goods +brought from another State are not affected by this section.[1738] To +determine how long imported wares remain under the protection of this +clause, the Supreme Court enunciated the original package doctrine in +the leading case of Brown _v._ Maryland.[1739] "When the importer has so +acted upon the thing imported," wrote Chief Justice Marshall, "that it +has become incorporated and mixed up with the mass of property in the +country, it has, perhaps, lost its distinctive character as an import, +and has become subject to the taxing power of the State; but while +remaining the property of the importer, in his warehouse, in the +original form or package in which it was imported, a tax upon it is too +plainly a duty on imports, to escape the prohibition in the +Constitution."[1740] A box, case or bale in which separate parcels of +goods have been placed by the foreign seller is regarded as the original +package, and upon the opening of such container for the purpose of using +the separate parcels, or of exposing them for sale, each parcel loses +its character as an import and becomes subject to taxation as a part of +the general mass of property in the State.[1741] Imports for manufacture +cease to be such when the intended processing takes place,[1742] or when +the original packages are broken.[1743] Where a manufacturer imports +merchandise and stores it in his warehouse in the original packages, +that merchandise does not lose its quality as an import, at least so +long as it is not required to meet such immediate needs.[1744] The +purchaser of imported goods is deemed to be the importer if he was the +efficient cause of the importation, whether the title to the goods +vested in him at the time of shipment, or after its arrival in this +country.[1745] A State franchise tax measured by properly apportioned +gross receipts may be imposed upon a railroad company in respect of the +company's receipts for services in handling imports and exports at its +marine terminal.[1746] + + +Privilege Taxes + +A State law requiring importers to take out a license to sell imported +goods amounts to an indirect tax on imports and hence is +unconstitutional.[1747] Likewise, a franchise tax upon foreign +corporations engaged in importing nitrate and selling it in the original +packages,[1748] a tax on sales by brokers[1749] and auctioneers[1750] +of imported merchandise in original packages, and a tax on the sale of +goods in foreign commerce consisting of an annual license fee plus a +percentage of gross sales,[1751] have been held invalid. On the other +hand, pilotage fees,[1752] a tax upon the gross sales of a purchaser +from the importer,[1753] a license tax upon dealing in fish which, +through processing, handling, and sale, have lost their distinctive +character as imports,[1754] an annual license fee imposed on persons +engaged in buying and selling foreign bills of exchange,[1755] and a tax +upon the right of an alien to receive property as heir, legatee, or +donee of a deceased person[1756] have been held not to be duties on +imports or exports. + + +Property Taxes + +Property brought into the United States from without is immune from _ad +valorem_ taxation so long as it retains its character as an +import,[1757] but the proceeds of the sale of imports, whether in the +form of money or notes, may be taxed by a State.[1758] A property tax +levied on warehouse receipts for whiskey exported to Germany was held +unconstitutional as a tax on exports.[1759] + + +Inspection Laws + +Inspection laws "are confined to such particulars as, in the estimation +of the legislature and according to the customs of trade, are deemed +necessary to fit the inspected article for the market, by giving the +purchaser public assurance that the article is in that condition, and of +that quality, which makes it merchantable and fit for use or +consumption."[1760] In Turner _v._ Maryland[1761] the Supreme Court +listed as recognized elements of inspection laws, the "quality of the +article, form, capacity, dimensions, and weight of package, mode of +putting up, and marking and branding of various kinds, * * *" .[1762] It +sustained as an inspection law a charge for storage and inspection +imposed upon every hogshead of tobacco grown in the State and intended +for export, which the law required to be brought to a State warehouse +to be inspected and branded. The Court has cited this section as a +recognition of a general right of the States to pass inspection laws, +and to bring, within their reach articles of interstate, as well as of +foreign, commerce.[1763] But on the ground that, "it has never been +regarded as within the legitimate scope of inspection laws to forbid +trade in respect to any known article of commerce, irrespective of its +condition and quality, merely on account of its intrinsic nature and the +injurious consequences of its use or abuse," it held that a State law +forbidding the importation of intoxicating liquors into the State could +not be sustained as an inspection law.[1764] Since the adoption of the +Twenty-first Amendment, such State legislation is valid whether +classified as an inspection law or not. + + +Clause 3. No State shall, without the Consent of Congress, lay any Duty +of Tonnage, keep Troops, or Ships of War in time of Peace, enter into +any Agreement or Compact with another State, or with a foreign Power, or +engage in War, unless actually invaded, or in such imminent Danger as +will not admit of delay. + + +TONNAGE DUTIES + +The prohibition against tonnage duties embraces all taxes and duties, +regardless of their name or form, whether measured by the tonnage of the +vessel or not, which are in effect charges for the privilege of +entering, trading in, or lying in a port.[1765] But it does not extend +to charges made by State authority, even if graduated according to +tonnage,[1766] for services rendered to the vessel, such as pilotage, +towage, charges for loading and unloading cargoes, wharfage, or +storage.[1767] For the purpose of determining wharfage charges, it is +immaterial whether the wharf was built by the State, a municipal +corporation or an individual; where the wharf is owned by a city, the +fact that the city realized a profit beyond the amount expended does not +render the toll objectionable.[1768] The services of harbor masters for +which fees are allowed must be actually rendered, and a law permitting +harbor masters or port wardens to impose a fee in all cases is +void.[1769] A State may not levy a tonnage duty to defray the expenses +of its quarantine system,[1770] but it may exact a fixed fee for +examination of all vessels passing quarantine.[1771] A State license fee +for ferrying on a navigable river is not a tonnage tax, but rather is a +proper exercise of the police power, and the fact that a vessel is +enrolled under federal law does not exempt it.[1772] In the State +Tonnage Tax Cases,[1773] an annual tax on steamboats measured by their +registered tonnage was held invalid despite the contention that it was a +valid tax on the steamboat as property. + + +KEEPING TROOPS + +This provision contemplates the use of the State's military power to put +down an armed insurrection too strong to be controlled by civil +authority;[1774] and the organization and maintenance of an active State +militia is not a keeping of troops in time of peace within the +prohibition of this clause.[1775] + + +INTERSTATE COMPACTS + + +Background of Clause + +Except for the single limitation that the consent of Congress must be +obtained, the original inherent sovereign rights of the States to make +compacts with each other was not surrendered under the +Constitution.[1776] "The compact," as the Supreme Court has put it, +"adapts to our Union of sovereign States the age-old treaty-making power +of independent sovereign nations."[1777] In American history the compact +technique can be traced back to the numerous controversies which arose +over the ill-defined boundaries of the original colonies. These disputes +were usually resolved by negotiation, with the resulting agreement +subject to approval by the Crown.[1778] When the political ties with +Britain were broken the Articles of Confederation provided for appeal +to Congress in all disputes between two or more States over boundaries +or "any cause whatever"[1779] and required the approval of Congress for +any "treaty confederation or alliance" to which a State should be a +party.[1780] The framers of the Constitution went further. By the first +clause of this section they laid down an unqualified prohibition against +"any treaty, alliance or confederation"; and by the third clause they +required the consent of Congress for "any agreement or compact." The +significance of this distinction was pointed out by Chief Justice Taney +in Holmes _v._ Jennison.[1781] "As these words ('agreement or compact') +could not have been idly or superfluously used by the framers of the +Constitution, they cannot be construed to mean the same thing with the +word treaty. They evidently mean something more, and were designed to +make the prohibition more comprehensive. * * * The word 'agreement,' +does not necessarily import and direct any express stipulation; nor is +it necessary that it should be in writing. If there is a verbal +understanding, to which both parties have assented, and upon which both +are acting, it is an 'agreement.' And the use of all of these terms, +'treaty,' 'agreement,' 'compact,' show that it was the intention of the +framers of the Constitution to use the broadest and most comprehensive +terms; and that they anxiously desired to cut off all connection or +communication between a State and a foreign power; and we shall fail to +execute that evident intention, unless we give to the word 'agreement' +its most extended signification; and so apply it as to prohibit every +agreement, written or verbal, formal or informal, positive or implied, +by the mutual understanding of the parties."[1782] But in Virginia _v._ +Tennessee,[1783] decided more than a half century later, the Court +shifted position, holding that the unqualified prohibition of compacts +and agreements between States without the consent of Congress did not +apply to agreements concerning such minor matters as adjustments of +boundaries, which have no tendency to increase the political powers of +the contractant States or to encroach upon the just supremacy of the +United States. This divergence of doctrine may conceivably have +interesting consequences.[1784] + + +Subject Matter of Interstate Compacts + +For many years after the Constitution was adopted, boundary disputes +continued to predominate as the subject matter of agreements among the +States. Since the turn of the twentieth century, however, the interstate +compact has been used to an increasing extent as an instrument for State +cooperation in carrying out affirmative programs for solving common +problems. The execution of vast public undertakings, such as the +development of the Port of New York by the Port Authority created by +compact between New York and New Jersey, flood control, the prevention +of pollution, and the conservation and allocation of water supplied by +interstate streams, are among the objectives accomplished by this +means.[1785] Another important use of this device was recognized by +Congress in the act of June 6, 1934,[1786] whereby it consented in +advance to agreements for the control of crime. The first response to +this stimulus was the Crime Compact of 1934, providing for the +supervision of parolees and probationers, to which forty-five States had +given adherence by 1949.[1787] Subsequently Congress has authorized, on +varying conditions, compacts touching the production of tobacco, the +conservation of natural gas, the regulation of fishing in inland waters, +the furtherance of flood and pollution control, and other matters. +Moreover, since 1935 at least thirty-six States, beginning with New +Jersey, have set up permanent commissions for interstate cooperation, +which have led to the formation of a Council of State Governments +("Cosgo" for short), the creation of special commissions for the study +of the crime problem, the problem of highway safety, the trailer +problem, problems created by social security legislation, etc., and the +framing of uniform State legislation for dealing with some of +these.[1788] + + +Consent of Congress + +The Constitution makes no provision as to the time when the consent of +Congress shall be given or the mode or form by which it shall be +signified.[1789] While the consent will usually precede the compact or +agreement, it may be given subsequently where the agreement relates to a +matter which could not be well considered until its nature is fully +developed.[1790] The required consent is not necessarily an expressed +consent; it may be inferred from circumstances.[1791] It is sufficiently +indicated, when not necessary to be made in advance, by the approval of +proceedings taken under it.[1792] The consent of Congress may be +granted conditionally "upon terms appropriate to the subject and +transgressing no constitutional limitations."[1793] And in a recent +instance it has not been forthcoming at all. In Sipuel _v._ Board of +Regents,[1794] decided in 1948, the Supreme Court ruled that the equal +protection clause of Amendment XIV requires a State maintaining a law +school for white students to provide legal education for a Negro +applicant, and to do so as soon as it does for applicants of any other +group. Shortly thereafter the governors of 12 Southern States convened +to canvass methods for meeting the demands of the Court. There resulted +a compact to which 13 State legislatures have consented and by which a +Board of Control for Southern Regional Education is set up. Although +some early steps were taken toward obtaining Congress's consent to the +agreement, the effort was soon abandoned, but without affecting the +cooperative educational program, which to date has not been extended to +the question of racial segregation.[1795] Finally, Congress does not, by +giving its consent to a compact, relinquish or restrict its own powers, +as for example, its power to regulate interstate commerce.[1796] + + +Grants of Franchise to Corporation by Two States + +It is competent for a railroad corporation organized under the laws of +one State, when authorized so to do by the consent of the State which +created it, to accept authority from another State to extend its +railroad into such State and to receive a grant of powers to own and +control, by lease or purchase, railroads therein, and to subject itself +to such rules and regulations as may be prescribed by the second State. +Such legislation on the part of two or more States is not, in the +absence of inhibitory legislation by Congress, regarded as within the +constitutional prohibition of agreements or compacts between +States.[1797] + + +Legal Effect of Interstate Compacts + +Whenever, by the agreement of the States concerned and the consent of +Congress, an interstate compact comes into operation, it has the same +effect as a treaty between sovereign powers. Boundaries established by +such compacts become binding upon all citizens of the signatory States +and are conclusive as to their rights.[1798] Private rights may be +affected by agreements for the equitable apportionment of the water of +an interstate stream, without a judicial determination of existing +rights.[1799] Valid interstate compacts are within the protection of the +obligation of contracts clause and specific enforcement of them is +within the original jurisdiction of the Supreme Court.[1800] Congress +also has authority to compel compliance with such a compact.[1801] + + +ADDENDUM + +Nor may a State read herself out of a compact which she has ratified and +to which Congress has consented by pleading that under the State's +constitution as interpreted by the highest State court she had lacked +power to enter into such an agreement and was without power to meet +certain obligations thereunder. The final construction of the State +constitution in such a case rests with the Supreme Court.[1802] + + +Notes + +[1] 4 Wheat. 316, 405 (1819). + +[2] _See_ pp. 378-379. + +[3] 206 U.S. 46, 82 (1907). + +[4] 4 Wheat. at 407. + +[5] Ibid. 411. + +[6] Ibid. 421. + +[7] 2 Story, Commentaries, Sec. 1256. _See also_ ibid. Sec. 1286 and 1330. + +[8] 1 Pet. 511 (1828). + +[9] Ibid. at 542. + +[10] Ibid. 543. + +[11] Prigg _v._ Pennsylvania, 16 Pet. 539, 616, 618-619 (1842). + +[12] Juilliard _v._ Greenman, 110 U.S. 421, 449-450 (1884). _See also_ +Justice Bradley's concurring opinion in Knox _v._ Lee, 12 Wall. 457, 565 +(1871). + +[13] United States _v._ Jones, 109 U.S. 513 (1883). + +[14] United States _v._ Kagama, 118 U.S. 375 (1886). + +[15] Fong Yue Ting _v._ United States, 149 U.S. 698 (1893). + +[16] Hines _v._ Davidowitz et al., 312 U.S. 52 (1941). + +[17] 299 U.S. 304 (1936). + +[18] Ibid. 315, 316-317, 318 _passim_. For anticipations of this +conception of the powers of the National Government in the field of +foreign relations, _see_ Penhallow _v._ Doane, 3 Dall. 54, 80, 81 +(1795); _also_ ibid. 74 and 76 (argument of counsel); _also_ Chief +Justice Taney's opinion in Holmes _v._ Jennison, 14 Pet. 540, 575-576 +(1840). + +[19] Locke, Second Treatise on Government, Chapter XI Sec. 141 (1691). + +[20] 276 U.S. 394 (1928). + +[21] Ibid. 405, 406. + +[22] Wayman _v._ Southard, 10 Wheat. 1 (1825). + +[23] The Brig Aurora, 7 Cr. 382 (1813). + +[24] Wayman _v._ Southard, 10 Wheat. 1, 42 (1825). + +[25] Sunshine Anthracite Coal Co. _v._ Adkins, 310 U.S. 381, 398 (1940); +United States _v._ Rock Royal Co-operative, 307 U.S. 533, 577 (1939). + +[26] United States _v._ Rock Royal Co-operative, 307 U.S. 533, 576 +(1939). + +[27] Schechter Poultry Corp. _v._ United States, 295 U.S. 495, 539 +(1935); Opp Cotton Mills _v._ Administrator, 312 U.S. 126, 144 (1941); +American Power & Light Co. _v._ Securities & Exchange Comm., 329 U.S. +90, 107, 108 (1946). _Cf._ Wichita R. & L. Co. _v._ Public Utilities +Comm., 260 U.S. 48, 59 (1922). + +[28] New York Cent. Securities Corp. _v._ United States, 287 U.S. 12, 24 +(1932). + +[29] Federal Radio Commission _v._ Nelson Bros. Bond & Mortgage Co., 289 +U.S. 266, 285 (1933); National Broadcasting Co. _v._ United States, 319 +U.S. 190, 225 (1943); Federal Communications Commission _v._ Pottsville +Broadcasting Co., 309 U.S. 134, 138 (1940). + +[30] Lichter _v._ United States, 334 U.S. 742, 783 (1948). + +[31] Panama Refining Co. _v._ Ryan, 293 U.S. 388 (1935); Schechter +Poultry Corp. _v._ United States, 295 U.S. 495 (1985). + +[32] United States _v._ Rock Royal Co-operative, 307 U.S. 533 (1939); +Sunshine Anthracite Coal Co. _v._ Adkins, 310 U.S. 381 (1940); Bowles +_v._ Willingham, 321 U.S. 503, 514 (1944); Yakus _v._ United States, 321 +U.S. 414, 424 (1944). + +[33] Fahey _v._ Mallonee, 332 U.S. 245 (1947). + +[34] Ibid. 250. + +[35] Ex parte Kollock, 165 U.S. 526 (1897). + +[36] Buttfield _v._ Stranahan, 192 U.S. 470 (1904). + +[37] United States _v._ Grimaud, 220 U.S. 506 (1911). + +[38] United States _v._ Shreveport Grain & Elevator Co., 287 U.S. 77, 85 +(1932). + +[39] Currin _v._ Wallace, 306 U.S. 1 (1939). + +[40] Avent _v._ United States, 266 U.S. 127 (1924). + +[41] United States _v._ Rock Royal Co-operative, 307 U.S. 533 (1939). + +[42] Yakus _v._ United States, 321 U.S. 414 (1944). + +[43] Bowles _v._ Willingham, 321 U.S. 503 (1944). + +[44] Sunshine Anthracite Coal Co. _v._ Adkins, 310 U.S. 381, 397 (1940). + +[45] Hirabayashi _v._ United States, 320 U.S. 81, 104 (1943); Korematsu +_v._ United States, 323 U.S. 214 (1944). + +[46] Fahey _v._ Mallonee, 332 U.S. 245 (1947). + +[47] Mulford _v._ Smith, 307 U.S. 38 (1939). + +[48] Interstate Commerce Comm'n. _v._ Goodrich Transit Co., 224 U.S. +194, 214 (1912). + +[49] Although reversing the decision of the State supreme court that +rates fixed by the commission were not subject to judicial review, the +Supreme Court implicitly sanctioned the exercise of rate-making power by +such bodies. Chicago, M. & St. P.R. Co. _v._ Minnesota, 134 U.S. 418 +(1890). + +[50] Hampton & Co. _v._ United States, 276 U.S. 394, 408 (1928). + +[51] State of Minnesota _v._ Chicago, M. & St. P.R. Co. 38 Minn. 281, +301 (1888). + +[52] Interstate Commerce Commission _v._ Louisville & N.R. Co., 227 U.S. +88 (1913); New York _v._ United States, 331 U.S. 284, 340-350 (1947) and +cases cited therein. _See also_ New York et al. _v._ United States, 342 +U.S. 882 (1951). + +[53] Union Bridge Co. _v._ United States, 204 U.S. 364 (1907). + +[54] First Nat. Bank _v._ Fellows, ex rel. Union Trust Co., 244 U.S. 416 +(1917). + +[55] Mahler _v._ Eby, 264 U.S. 32 (1924); United States ex rel. Tisi +_v._ Tod, 264 U.S. 131 (1924). + +[56] New York Central Securities Corp. _v._ United States, 287 U.S. 12, +25 (1932). + +[57] Federal Radio Comm'n. _v._ Nelson Bros. Bond & Mortgage Co., 289 +U.S. 266 (1933). + +[58] National Broadcasting Co. _v._ United States, 319 U.S. 190 (1943). + +[59] 50 Stat. 246, as amended, 7 U.S.C. Sec. 601 _et seq._ + +[60] Brannan _v._ Stark, 342 U.S. 451 (1952). Justice Black, with whom +Justices Reed and Douglas concurred, dissented, saying: "In striking +down these provisions of the Secretary's order, the Court has departed +from many principles it has previously announced in connection with its +supervision over administrative agents. Under these principles, the +Court would refrain from setting aside administrative findings of fact +when supported by substantial evidence; we would give weight to the +interpretation of a statute by its administrators; when, administrators +have interpreted broad statutory terms, such, as here involved, we would +recognize that it is our duty to accept this interpretation even though +it was not 'the only reasonable one' or the one 'we would have reached +had the question arisen in the first instance in judicial proceedings.' +Unemployment Comm'n _v._ Aragon, 329 U.S. 143, 153 (1946)." Ibid. 484. + +[61] Jackson _v._ Roby, 109 U.S. 440 (1883); Erhardt _v._ Boaro, 113 +U.S. 527 (1885); Butte City Water Co. _v._ Baker, 196 U.S. 119 (1905). + +[62] St. Louis, I.M. & S.R. Co. _v._ Taylor, 210 U.S. 281, 286 (1908). + +[63] 295 U.S. 495, 537 (1935). + +[64] 298 U.S. 238, 311 (1936). + +[65] Currin _v._ Wallace, 306 U.S. 1 (1939); United States _v._ Rock +Royal Co-operative, 307 U.S. 533, 577 (1939). + +[66] Currin _v._ Wallace, 306 U.S. 1, 15, 16 (1939). + +[67] 7 Cr. 382 (1813). + +[68] Ibid. 388. + +[69] 143 U.S. 649 (1892). + +[70] Ibid. 691. + +[71] Ibid. 692, 693. + +[72] Hampton Jr. & Co. _v._ United States, 276 U.S. 394 (1928). + +[73] 299 U.S. 304, 312 (1936). + +[74] Ibid. 319-322.--United States _v._ Chemical Foundation, 272 U.S. 1 +(1926) presented the anomalous situation of the United States suing to +set aside a sale of alien property sold by one of its agents, the Alien +Property Custodian, by authority of the President. The government +contended that statute under which the sale was made was +unconstitutional because, in giving the President full power of +disposition of the property, it delegated legislative power to the +President. Declaring that "It was peculiarly within the province of the +Commander-in-Chief to know the facts and to determine what disposition +should be made of enemy properties in order effectively to carry on the +war," the Court affirmed a decree dismissing the suit. Ibid. 12. + +[75] 293 U.S. 388 (1935). + +[76] 312 U.S. 126 (1941). + +[77] Ibid. 144, 145. + +[78] White House Digest of Provisions of Law Which Would Become +Operative upon Proclamation of a National Emergency by the President. +The Digest is dated December 11, 1950. It was released to the press on +December 16th. 15 F.R. 9029. + +[79] United States _v._ Grimaud, 220 U.S. 506 (1911). + +[80] Steuart & Bros. Inc. _v._ Bowles, 322 U.S. 398, 404 (1944). + +[81] United States _v._ Eaton, 144 U.S. 677 (1892). + +[82] Steuart & Bros. Inc. _v._ Bowles, 322 U.S. 398 (1944). + +[83] Kraus & Bros. _v._ United States, 327 U.S. 614 (1946). + +[84] Landis, Constitutional Limitations on the Congressional Power of +Investigation, 40 Harvard Law Review, 153, 159-166 (1926). + +[85] 3 Annals of Congress, 493 (1792). + +[86] In 1800, Secretary of the Treasury, Oliver Wolcott, Jr., addressed +a letter to the House of Representatives advising them of his +resignation from office and inviting an investigation of his office. +Such an inquiry was made. 10 Annals of Congress 786-788 (1800). + +[87] 8 Cong. Deb. 2160 (1832). + +[88] 13 Cong. Deb. 1057 (1836). + +[89] H.R. Rep. No. 194, 24th Cong., 2d sess., Ser. No. 307, 1, 12, 31 +(1837). + +[90] Cong. Globe, 36th Cong. 1st sess. 1100-1109 (1860). + +[91] 103 U.S. 168 (1881). + +[92] 273 U.S. 135, 177, 178 (1927). + +[93] 4 Cong. Deb. 862, 868, 888, 889 (1827). + +[94] 103 U.S. 168 (1881). + +[95] 154 U.S. 447 (1894). + +[96] Ibid. 478. _See also_ Harriman _v._ Interstate Commerce Commission, +211 U.S. 407 (1908); Smith _v._ Interstate Commerce Commission, 245 U.S. +33 (1917). + +[97] 273 U.S. 135 (1927). + +[98] Ibid. 154, 175. + +[99] 103 U.S. 168, 192-196 (1881). + +[100] 166 U.S. 661 (1897). + +[101] Ibid. 670. + +[102] 273 U.S. 135, 178 (1927). + +[103] 279 U.S. 263 (1929). + +[104] Ibid. 295. + +[105] In re Chapman, 166 U.S. 661 (1897). + +[106] 279 U.S. 597 (1929). + +[107] 6 Wheat. 204 (1821). + +[108] 243 U.S. 521 (1917). + +[109] Ibid. 542. + +[110] 294 U.S. 125 (1935). + +[111] Ibid. 147, 150. + +[112] 6 Wheat. 204, 231 (1821). + +[113] In re Chapman, 166 U.S. 661, 671-672 (1897). + +[114] United States _v._ Bryan, 339 U.S. 323, 330 (1950); United States +_v._ Fleischman, 339 U.S. 349 (1950). + +[115] Christoffel _v._ United States, 338 U.S. 84, 89, 90 (1949). + +[116] Minor _v._ Happersett, 21 Wall. 162, 171 (1875); Breedlove _v._ +Suttles, 302 U.S. 277 (1937). + +[117] Ex parte Yarbrough, 110 U.S. 651 (1884); Wiley _v._ Sinkler, 179 +U.S. 58, 62 (1900); Swafford _v._ Templeton, 185 U.S. 487 (1902); United +States _v._ Classic, 313 U.S. 299 (1941). + +[118] United States _v._ Classic, 313 U.S. 299, 315 (1941). + +[119] United States _v._ Mosley, 238 U.S. 383 (1915); United States _v._ +Saylor, 322 U.S. 385, 387 (1944). + +[120] United States _v._ Classic, 313 U.S. 299 (1941). + +[121] United States _v._ Mosley, 238 U.S. 383 (1915). + +[122] 35 Stat. 1092 (1909); 18 U.S.C. Sec. 51 (1946), superseded by 62 +Stat. 696 (1948); 18 U.S.C. Sec. 241 (Supp. II, 1946 ed.). + +[123] United States _v._ Mosley, 238 U.S. 383 (1915). + +[124] United States _v._ Saylor, 322 U.S. 385 (1944). + +[125] United States _v._ Bathgate, 246 U.S. 220 (1918). _See also_ +United States _v._ Gradwell, 243 U.S. 476 (1917). + +[126] Sen. Rep. 904, 74th Cong., 1st sess. (1935); 79 Cong. Rec. +9651-9653 (1935). + +[127] No. LX. + +[128] Hinds' Precedents of the House of Representatives, +I: Sec. 443, 448-458 (1907). + +[129] 202 U.S. 344 (1906). + +[130] Ibid. 369-370. + +[131] Hinds' Precedents of the House of Representatives, +I: Sec. 474-477 (1907). + +[132] 69 Cong. Rec. 1718 (1928). + +[133] Hinds' Precedents of the House of Representatives, I: Sec. 414 +(1907). + +[134] Ibid. Sec. 415-417. + +[135] The part of this clause relating to the mode of apportionment of +Representative among the several States, was changed by the Fourteenth +Amendment, Sec. 2 (p. 1170) and as to taxes on incomes without +apportionment, by the Sixteenth Amendment (p. 1191). + +[136] Legal Tender Cases, 12 Wall. 457, 536 (1871). + +[137] 46 Stat. 21 (1929). This same act penalizes refusal to cooperate +properly with the census taker by answering his questions and in other +ways. 13 U.S.C. 209. + +[138] The Senate is a "continuing body"--McGrain _v._ Daugherty, 273 +U.S. 135, 181-182 (1927). + +[139] 5 Stat. 491 (1842). This requirement was dropped in 1850 (9 Stat. +428, 432-433) but was renewed in 1862 (12 Stat. 572). _See also_ Joel +Francis Paschal, The House of Representatives "Grand Depository of the +Democratic Principle", Spring 1952 Issue of Law and Contemporary +Problems (Duke University School of Law), 276-289. + +[140] 14 Stat. 243 (1866). + +[141] 16 Stat. 144 (1870); 16 Stat. 254 (1870); 17 Stat. 347-349 (1872). + +[142] 28 Stat. 36 (1894). + +[143] United States _v._ Reese, 92 U.S. 214 (1876). + +[144] Ex parte Siebold, 100 U.S. 371 (1880); Ex parte Clarke, 100 U.S. +399 (1880); United States _v._ Gale, 109 U.S. 65 (1883). + +[145] 241 U.S. 565 (1916). + +[146] Smiley _v._ Holm, 285 U.S. 355 (1932); Koenig _v._ Flynn, 285 U.S. +375 (1932); Carroll _v._ Becker, 285 U.S. 380 (1932). + +[147] 46 Stat. 21 (1929). + +[148] 37 Stat. 13, 14 (1911). + +[149] Wood _v._ Broom, 287 U.S. 1 (1932). + +[150] 328 U.S. 549 (1946). + +[151] Ibid. 556, 566. + +[152] Ibid. 570-571. + +[153] Ex parte Yarbrough, 110 U.S. 651, 661 (1884); United States _v._ +Mosley, 238 U.S. 383 (1915); United States _v._ Saylor, 322 U.S. 385 +(1944). + +[154] In re Coy, 127 U.S. 731, 752 (1888). + +[155] Ex parte Siebold, 100 U.S. 371 (1880); Ex parte Clarke, 100 U.S. +309 (1880); United States _v._ Gale, 109 U.S. 65 (1883). + +[156] United States _v._ Wurzbach, 280 U.S. 396 (1930). + +[157] Newberry _v._ United States, 256 U.S. 232 (1921). + +[158] United States _v._ Classic, 313 U.S. 299, 318 (1941). + +[159] Barry _v._ United States ex rel. Cunningham, 279 U.S. 597, 616 +(1929). + +[160] In re Loney, 134 U.S. 372 (1890). + +[161] Cannon's Precedents of the House of Representatives, VI: Sec. 72-74, +180 (1936). _Cf._ Newberry _v._ United States, 256 U.S. 232, 258 (1921). + +[162] Barry _v._ United States ex rel. Cunningham, 279 U.S. 597, 614 +(1929). + +[163] Ibid. 615. + +[164] Hinds' Precedents of the House of Representatives, +IV: Sec. 2895-2905 (1907). + +[165] 144 U.S. 1 (1892). + +[166] Ibid. 5-6. + +[167] Rule V. + +[168] Hinds' Precedents of the House of Representatives, IV: Sec. +2910-2915 (1907); Cannon's Precedents of the House of Representatives, +VI: Sec. 645, 646 (1936). + +[169] United States _v._ Ballin, 144 U.S. 1, 5 (1892). It is, of course, +by virtue of its power to determine "rules of its proceedings" that the +Senate enables its members to prevent the transaction of business by +what are termed "filibusters". The question has been raised whether the +rules which support a filibuster are constitutionally compatible with +the clause in the preceding section: "A majority of each [House] shall +constitute a quorum to do business". _See_ Franklin Burdette, +Filibustering in the Senate (Princeton University Press, 1940), 6, 61, +111-112, 227-229, 232-233, 237-238. The Senate is "a continuing body". +McGrain _v._ Daugherty, 273 U.S. 139, 181-182 (1927). Hence its rules +remain in force from Congress to Congress except as they are changed +from time to time, whereas those of the House are readopted at the +outset of each new Congress. + +[170] 286 U.S. 6 (1932). + +[171] 338 U.S. 84 (1949). + +[172] Title 22, Sec. 2501. + +[173] 338 U.S. at 93-95, citing Field _v._ Clark, 143 U.S. 649, 669-673 +(1892); United States _v._ Ballin, 144 U.S. 1, 5 (1892); and other +cases. + +[174] Burton _v._ United States, 202 U.S. 344, 356 (1906). + +[175] In re Chapman, 166 U.S. 661, 669, 670 (1897). + +[176] I Story, Constitution, Sec. 840, quoted with approval in Field _v._ +Clark, 143 U.S. 649, 670 (1892). + +[177] United States _v._ Ballin, 144 U.S. 1, 4 (1892). + +[178] Field _v._ Clark, 143 U.S. 649 (1892); Flint _v._ Stone Tracy Co., +220 U.S. 107, 143 (1911). A parallel rule holds in the case of a duly +authenticated official notice to the Secretary of State that a State +legislature has ratified a proposed amendment to the Constitution. Leser +_v._ Garnett, 258 U.S. 130, 137 (1922); _see also_ Coleman _v._ Miller, +307 U.S. 433 (1939). In Christoffel _v._ United States, 338 U.S. 84 +(1949), a sharply divided Court ruled that, in a case brought under the +Perjury Statute of the District of Columbia (Sec. 22-2501 of the D.C. +Code) for alleged perjurious testimony before a Committee of the House of +Representatives, the trial Court erred in charging the jury that it was +free to ignore testimony that less than a quorum of the Committee was in +attendance when the alleged perjury was committed. Four Justices +dissented; and curiously enough only four of the majority were present +when the opinion was delivered, the fifth being indisposed. Remarks +Justice Jackson in his concurring opinion in United States _v._ Bryan +(339 U.S. 323 (1950)), in which the ruling in Christoffel was held to be +inapplicable: "It is ironic that this interference with legislative +procedures was promulgated by exercise within the Court of the very +right of absentee participation denied to Congressmen." Ibid. 344. It +seems unlikely that the Christoffel decision seriously undermines Field +_v._ Clark. + +[179] Page _v._ United States, 127 U.S. 67 (1888). + +[180] Long _v._ Ansell, 293 U.S. 76 (1934). + +[181] Ibid. 83. + +[182] United States _v._ Cooper, 4 Dall. 341 (1800). + +[183] Williamson _v._ United States, 207 U.S. 425, 446 (1908). + +[184] Kilbourn _v._ Thompson, 103 U.S. 168 (1881). + +[185] Ibid. + +[186] 4 Mass. 1 (1808). + +[187] Kilbourn _v._ Thompson, 103 U.S. 168, 203, 204 (1881). + +[188] Ibid. 205. + +[189] Justice Frankfurter for the Court in Tenney _v._ Brandhove, 341 +U.S. 367, 377 (1951). Justice Douglas dissented: "* * * I do not agree +that all abuses of legislative committees are solely for the legislative +body to police. We are dealing here with a right protected by the +Constitution--the right of free speech. The charge * * * is that a +legislative committee brought the weight of its authority down on +respondent for exercising his right of free speech. Reprisal for +speaking is as much an abridgment as a prior restraint. If a committee +departs so far from its domain [as?] to deprive a citizen of a right +protected by the Constitution, I can think of no reason why it should be +immune". Ibid. 382. _See also_ Barsky _v._ United States, 167 F. (2d) +241 (1948); certiorari denied, 334 U.S. 843 (1948). + +[190] Hinds' Precedents of the House of Representatives, I: Sec. 493 +(1907); Cannon's Precedents of the House of Representatives, VI: Sec. 63, +64 (1936). + +[191] Hinds' Precedents of the House of Representatives, I: Sec. 496-499 +(1907). + +[192] 34 Stat. 948 (1907). + +[193] 35 Stat. 626 (1909). + +[194] The situation gave rise to the case of Ex parte Albert Levitt, +Petitioner, 302 U.S. 633 (1937). This was the case in which the Court +declined to pass upon the validity of Justice Black's appointment. It +seems curious that the Court, in rejecting petitioner's application, did +not point out that it was being asked to assume original jurisdiction +contrary to the decision in Marbury _v._ Madison, 1 Cr. 137 (1803). + +[195] I Story, Constitution, Sec. 880. + +[196] Twin City Nat. Bank _v._ Nebeker, 167 U.S. 196 (1897). + +[197] Millard _v._ Roberts, 202 U.S. 429 (1906). + +[198] Flint _v._ Stone Tracy Co., 220 U.S. 107, 143 (1911). + +[199] Rainey _v._ United States, 232 U.S. 310 (1914). + +[200] La Abra Silver Mining Co. _v._ United States, 175 U.S. 423, 453 +(1899). + +[201] Edwards _v._ United States, 286 U.S. 482 (1932). On one occasion +in 1936, delay in presentation of a bill enabled the President to sign +it 23 days after the adjournment of Congress. Schmeckebier, Approval of +Bills After Adjournment of Congress, 33 American Political Science +Review 52 (1939). + +[202] Gardner _v._ Collector, 6 Wall. 499 (1868). + +[203] Ibid. 504. _See also_ Burgess _v._ Salmon, 97 U.S. 381, 383 +(1878). + +[204] Matthews _v._ Zane, 7 Wheat. 164, 211 (1822). + +[205] Lapeyre _v._ United States, 17 Wall. 191, 198 (1873). + +[206] Okanogan Indians _v._ United States, 279 U.S. 655 (1929). + +[207] Wright _v._ United States, 302 U.S. 583 (1938). + +[208] Missouri P.R. Co. _v._ Kansas, 248 U.S. 276 (1919). + +[209] 20 Wall. 92, 112, 113 (1874). + +[210] 12 Stat. 589 (1862). + +[211] 54th Cong., 2d sess., S. Doc. 1335; Hinds' Precedents of the House +of Representatives, IV: Sec. 3483 (1907). + +[212] _See e.g._, Lend Lease Act of March 11, 1941 (55 Stat. 31); First +War Powers Act of December 18, 1941 (55 Stat. 838); Emergency Price +Control Act of January 30, 1942 (56 Stat. 23); Stabilization Act of +October 2, 1942 (56 Stat. 765); War Labor Disputes Act of June 25, 1943 +(57 Stat. 163). + +[213] Reorganization Act of June 20, 1949 (63 Stat. 203). + +[214] Reorganization Act of April 3, 1939 (53 Stat. 561). + +[215] Hollingsworth _v._ Virginia, 3 Dall. 378 (1798). + +[216] License Tax Cases, 5 Wall. 462, 471 (1867). + +[217] Brushaber _v._ Union Pac. R.R., 240 U.S. 1 (1916). + +[218] Ibid. 12. + +[219] 253 U.S. 245 (1920). + +[220] 268 U.S. 501 (1925). + +[221] 307 U.S. 277 (1939). + +[222] 11 Wall. 113 (1871). + +[223] Graves _v._ O'Keefe, 306 U.S. 466 (1939). + +[224] 304 U.S. 405, 414 (1938). + +[225] Veazie Bank _v._ Fenno, 8 Wall. 533 (1869). + +[226] United States _v._ Baltimore & O.R. Co., 17 Wall. 322 (1873). + +[227] 157 U.S. 429 (1895). + +[228] 4 Wheat. 316 (1819). + +[229] Indian Motorcycle Co. _v._ United States, 283 U.S. 570 (1931). + +[230] 12 Wheat. 419, 444 (1827). + +[231] Snyder _v._ Bettman, 190 U.S. 249, 254 (1903). + +[232] South Carolina _v._ United States, 199 U.S. 437 (1905). _See also_ +Ohio _v._ Helvering, 292 U.S. 360 (1934). + +[233] 220 U.S. 107 (1911). + +[234] Greiner _v._ Lewellyn, 258 U.S. 384 (1922). + +[235] Wheeler Lumber Bridge & Supply Co. _v._ United States, 281 U.S. +572 (1930). + +[236] University of Illinois _v._ United States, 289 U.S. 48 (1933). + +[237] Allen _v._ Regents, 304 U.S. 439 (1938). + +[238] Wilmette Park District _v._ Campbell, 338 U.S. 411 (1949). + +[239] Metcalf _v._ Mitchell, 269 U.S. 514 (1926). + +[240] Helvering _v._ Powers, 293 U.S. 214 (1934). + +[241] Willcutts _v._ Bunn, 282 U.S. 216 (1931). + +[242] Helvering _v._ Mountain Producers Corp., 303 U.S. 376 (1938), +overruling Burnet _v._ Coronado Oil & Gas Co., 285 U.S. 393 (1932). + +[243] New York _v._ United States, 326 U.S. 572, 584 (1946), (concurring +opinion of Justice Rutledge). + +[244] 304 U.S. 405 (1938). + +[245] Ibid. 419-420. + +[246] 326 U.S. 572 (1946). + +[247] Ibid. 584. + +[248] Ibid. 589-590. + +[249] Ibid. 596. + +[250] Wilmette Park District _v._ Campbell, 338 U.S. 411 (1949). + +[251] _See also_ article I, section 9, clause 4. + +[252] LaBelle Iron Works _v._ United States, 256 U.S. 377 (1921); +Brushaber _v._ Union P.R. Co., 240 U.S. 1 (1916); Head Money Cases, 112 +U.S. 580 (1884). + +[253] Knowlton _v._ Moore, 178 U.S. 41 (1900). + +[254] Fernandez _v._ Wiener, 326 U.S. 340 (1945); Riggs _v._ Del Drago, +317 U.S. 95 (1942); Phillips _v._ Commissioner of Internal Revenue, 283 +U.S. 589 (1931); Poe _v._ Seaborn, 282 U.S. 101, 117 (1930). + +[255] Florida _v._ Mellon, 273 U.S. 12 (1927). + +[256] Downes _v._ Bidwell, 182 U.S. 244 (1901). + +[257] 194 U.S. 486 (1904). The Court recognized that Alaska was an +incorporated territory but took the position that the situation in +substance was the same as if the taxes had been directly imposed by a +territorial legislature for the support of the local government. + +[258] License Tax Cases, 5 Wall. 462, 471 (1867). + +[259] United States _v._ Yuginovich, 256 U.S. 450 (1921). + +[260] United States _v._ Constantine, 296 U.S. 287, 293 (1935). + +[261] License Tax Cases, 5 Wall. 462, 471 (1867). + +[262] Felsenheld _v._ United States, 186 U.S. 126 (1902). + +[263] In re Kollock, 105 U.S. 526 (1897). + +[264] United States _v._ Doremus, 249 U.S. 86 (1919). _Cf._ Nigro _v._ +United States, 276 U.S. 332 (1928). + +[265] Sonzinsky _v._ United States, 300 U.S. 506 (1937). + +[266] McCray _v._ United States, 195 U.S. 27 (1904). + +[267] Justice Clark speaking for the Court in United States _v._ +Sanchez, 340 U.S. 42, 44 (1950). _See also_ Sonzinsky _v._ United +States, 300 U.S. 506, 513-514 (1937). + +[268] Sunshine Anthracite Coal Co. _v._ Adkins, 310 U.S. 381, 383 +(1940). _See also_ Head Money Cases, 112 U.S. 580, 596 (1884). + +[269] Bailey _v._ Drexel Furniture Co., 259 U.S. 20 (1922); Hill _v._ +Wallace, 259 U.S. 44 (1922); Helwig _v._ United States, 188 U.S. 605 +(1903). + +[270] 296 U.S. 287 (1935). + +[271] 1 Stat. 24 (1789). + +[272] 276 U.S. 394 (1928). + +[273] Ibid. 411-412. + +[274] III Writings of Thomas Jefferson, 147-149 (Library Edition, 1904). + +[275] James Francis Lawson, The General Welfare Clause (1926). + +[276] The Federalist Nos. 30 and 34. + +[277] Ibid. No. 41. + +[278] 1 Stat. 229 (1792). + +[279] 2 Stat. 357 (1806). + +[280] In an advisory opinion which it rendered for President Monroe at +his request on the power of Congress to appropriate funds for public +improvements, the Court answered that such appropriations might be +properly made under the war and postal powers. _See_ E.F. Albertsworth, +"Advisory Functions in the Supreme Court," 23 Georgetown L.J. 643, +644-647 (1935). Monroe himself ultimately adopted the broadest view of +the spending power, from which, however, he carefully excluded any +element of regulatory or police power. _See_ his "Views of the President +of the United States on the Subject of Internal Improvements," of May 4, +1822, 2 Richardson, Messages and Papers of the Presidents, 713-752. + +[281] The Council of State Governments, Federal Grants-in-Aid, 6-14 +(1949). + +[282] 127 U.S. 1 (1888). + +[283] 255 U.S. 180 (1921). + +[284] 262 U.S. 447 (1923). _See also_ Alabama Power Co. _v._ Ickes, 302 +U.S. 464 (1938). + +[285] 160 U.S. 668 (1896). + +[286] Ibid. 681. + +[287] 297 U.S. 1 (1936). _See also_ Cleveland _v._ United States, 323 +U.S. 329 (1945). + +[288] 297 U.S. 1, 65, 66 (1936). + +[289] Justice Stone, speaking for himself and two other Justices, +dissented on the ground that Congress was entitled when spending the +national revenues for the "general welfare" to see to it that the +country got its money's worth thereof, and that the condemned provisions +were "necessary and proper" to that end. United States _v._ Butler, 297 +U.S. 1, 84-86 (1936). + +[290] 301 U.S. 548 (1937). + +[291] Ibid. 591. + +[292] Ibid. 590. + +[293] Cincinnati Soap Co. _v._ United States, 301 U.S. 308 (1937). + +[294] 301 U.S. 619 (1937). + +[295] 301 U.S. 548, 589, 590 (1937). + +[296] 330 U.S. 127 (1947). + +[297] 54 Stat. 767 (1940). + +[298] 330 U.S. 127, 143. + +[299] United States _v._ Realty Co., 163 U.S. 427 (1896); Pope _v._ +United States, 323 U.S. 1, 9 (1944). + +[300] Cincinnati Soap Co. _v._ United States, 301 U.S. 308 (1937). + +[301] Cr. 358 (1805). + +[302] Ibid. 396. + +[303] 2 Madison, Notes on the Constitutional Convention, 81 (Hunt's ed. +1908). + +[304] Ibid. 181. + +[305] Legal Tender Cases, 12 Wall. 457 (1871), overruling Hepburn _v._ +Griswold, 8 Wall. 603 (1870). + +[306] Perry _v._ United States, 294 U.S. 330, 351 (1935). _See also_ +Lynch _v._ United States, 292 U.S. 571 (1934). + +[307] Prentice and Egan, The Commerce Clause of the Federal Constitution +(1898) 14. The balance began inclining the other way with the enactment +of the Interstate Commerce Act in 1887. + +[308] 9 Wheat. 1, 189-192 (1824). _Cf._ Webster for the appellant: +"Nothing was more complex than commerce; and in such an age as this, no +words embraced a wider field than _commercial_ regulation. Almost all +the business and intercourse of life may be connected, incidently, more +or less, with commercial regulations." (ibid. 9-10); also Justice +Johnson, in his concurring opinion: "Commerce, in its simplest +signification, means an exchange of goods; but in the advancement of +society, labor, transportation, intelligence, care, and various mediums +of exchange, become commodities, and enter into commerce; the subject, +the vehicle, the agent, and their various operations, become the objects +of commercial regulation. Shipbuilding, the carrying trade, and +propagation of seamen, are such vital agents of commercial prosperity, +that the nation which could not legislate over these subjects, would not +possess power to regulate commerce." (ibid. 229-230). "It is all but +impossible in our own age to sense fully its eighteenth-century meaning +(i.e., the meaning of commerce). The Eighteenth Century did not separate +by artificial lines aspects of a culture which are inseparable. It had +no lexicon of legalisms extracted from the law reports in which judicial +usage lies in a world apart from the ordinary affairs of life. Commerce +was then more than we imply now by business or industry. It was a name +for the economic order, the domain of political economy, the realm of a +comprehensive public policy. It is a word which makes trades, activities +and interests an instrument in the culture of a people. If trust was to +be reposed in parchment, it was the only word which could catch up into +a single comprehensive term all activities directly affecting the wealth +of the nation," Walton H. Hamilton and Douglass Adair, The Power to +Govern, 62-63 (New York: 1937). + +[309] Ibid. 191. + +[310] 9 Wheat. 1, 193 (1824). + +[311] _See_ Pennsylvania _v._ Wheeling & Belmont Bridge Co., 18 How. 421 +(1856); Mobile _v._ Kimball, 102 U.S. 691 (1881); Covington Bridge Co. +_v._ Kentucky, 154 U.S. 204 (1894); Kelley _v._ Rhoads, 188 U.S. 1 +(1903); United States _v._ Hill, 248 U.S. 420 (1919); Edwards _v._ +California, 314 U.S. 160 (1941). + +[312] Pensacola Tel. Co. _v._ Western Union Tel. Co., 96 U.S. 1, 9 +(1878); International Text Book Co. _v._ Pigg, 217 U.S. 91, 106-107 +(1910); Western Union Tel. Co. _v._ Foster, 247 U.S. 105 (1918); Federal +Radio Com. _v._ Nelson Bros., 289 U.S. 266 (1933). + +[313] Swift & Co. _v._ United States, 196 U.S. 375, 398-399 (1905); +Dahnke-Walker Milling Co. _v._ Bondurant, 257 U.S. 282, 290-291 (1921); +Stafford _v._ Wallace, 258 U.S. 495 (1922); Federal Trade Com. _v._ +Pacific States Paper Trade Assoc., 273 U.S. 52, 64-65 (1927). + +[314] Kidd _v._ Pearson, 128 U.S. 1 (1888); Oliver Iron Co. _v._ Lord, +262 U.S. 172 (1923). + +[315] Paul _v._ Virginia, 8 Wall. 168 (1869). _See also_ New York L. +Ins. Co. _v._ Deer Lodge County, 231 U.S. 495 (1913); New York L. Ins. +Co. _v._ Cravens, 178 U.S. 389, 401 (1900); Fire Assoc. of Philadelphia +_v._ New York, 119 U.S. 110 (1886); Bothwell _v._ Buckbee-Mears Co., 275 +U.S. 274 (1927); Metropolitan Casualty Ins. Co. _v._ Brownell, 294 U.S. +580 (1935). + +[316] Federal Baseball Club _v._ National League, 259 U.S. 200 (1922). + +[317] Blumenstock Bros. _v._ Curtis Pub. Co., 252 U.S. 436 (1920). + +[318] Williams _v._ Fears, 179 U.S. 270 (1900). + +A contract entered into for the erection of a factory which was to be +supervised and operated by the officers of a foreign corporation was +held not a transaction of interstate commerce in the constitutional +sense merely because of the fact that the products of the factory are +largely to be sold and shipped to other factories. Diamond Glue Co. _v._ +United States Glue Co., 187 U.S. 611, 616 (1903). In Browning _v._ +Waycross, 233 U.S. 16 (1914), it was held that the installation of +lightning rods sold by a foreign corporation was not interstate +commerce, although provided for in the contract of purchase. Similarly +in General Railway Signal Co. _v._ Virginia, 246 U.S. 500 (1918), where +a foreign corporation installed signals in Virginia, bringing in +materials, supplies, and machinery from without the State, the Court +held that local business was involved, separate and distinct from +interstate commerce, and subject to the licensing power of the State. +However, in an interstate contract for the sale of a complicated +ice-making plant, where it was stipulated that the parts should be +shipped into the purchaser's State and the plant there assembled and +tested under the supervision of an expert to be sent by the seller, it +was held that services of the expert did not constitute the doing of a +local business subjecting the seller to regulations of Texas concerning +foreign corporations. York Mfg. Co. _v._ Colley, 247 U.S. 21 (1918). +_See also_ Kansas City Structural Steel Co. _v._ Arkansas, 269 U.S. 148 +(1925). + +[319] Associated Press _v._ United States, 326 U.S. 1 (1945). + +[320] American Medical Association _v._ United States, 317 U.S. 519 +(1943). _Cf._ United States _v._ Oregon State Medical Society, 343 U.S. +326 (1952). + +[321] United States _v._ South-Eastern Underwriters Assoc, 322 U.S. 533 +(1944). The interstate character of the insurance business as today +organized and carried on is stressed, although its intrastate elements +are not overlooked. The Court's business is to determine in each case +whether "the competing * * * State and national interests * * * can be +accommodated." Ibid. 541 and 548. + +[322] Article I, Sec. 8, cl. 18. + +[323] _See infra_ CONGRESSIONAL REGULATIONS OF PRODUCTION AND INDUSTRIAL +RELATIONS. + +[324] 6 Wheat. 264, 413 (1821). + +[325] 9 Wheat. 1, 195 (1824). + +[326] New York _v._ Miln, 11 Pet. 102 (1837), overturned in Henderson +_v._ New York, 92 U.S. 259 (1876); License Cases, 5 How. 504, 573-574, +588, 613 (1847); Passenger Cases, 7 How. 283, 399-400, 465-470 (1849); +The Passaic Bridges, 3 Wall. 782 (Appendix), 793 (1866); United States +_v._ Dewitt, 9 Wall. 41, 44 (1870); Patterson _v._ Kentucky, 97 U.S. +501, 503 (1879); Trade-Mark Cases, 100 U.S. 82 (1879); Kidd _v._ +Pearson, 128 U.S. 1 (1888); Illinois Central R. Co. _v._ McKendree, 203 +U.S. 514 (1906); Keller _v._ United States, 213 U.S. 138, 144-149 +(1909); Hammer _v._ Dagenhart, 247 U.S. 251 (1918). _See also infra._ + +[327] United States _v._ Wrightwood Dairy Co., 315 U.S. 110, 119 (1942). + +[328] Gibbons _v._ Ogden, 9 Wheat. 1, 196. Commerce "among the several +States" does not comprise commerce of the District of Columbia nor the +territories of the United States. Congress's power over their commerce +is an incident of its general power over them. Stoutenburgh _v._ +Hennick, 129 U.S. 141 (1889); Atlantic Cleaners and Dyers, Inc. _v._ +United States, 286 U.S. 427 (1932); In re Bryant, 4 Fed. Cas. No. 2067 +(1865). Transportation between two points in the same State, when a +large part of the route is a loop outside the State, is "commerce among +the several States." Hanley _v._ Kansas City Southern R. Co., 187 U.S. +617 (1903); followed in Western Union Telegraph Co. _v._ Speight, 254 +U.S. 17 (1920), as to a message sent from one point to another in North +Carolina via a point in Virginia. + +[329] 9 Wheat. 1, 196-197. + +[330] Champion _v._ Ames (Lottery Case), 188 U.S. 321, 373-374. + +[331] Brolan _v._ United States, 236 U.S. 216, 222 (1915). + +[332] Thurlow _v._ Massachusetts (License Cases), 5 How. 504, 578 +(1847). + +[333] Pittsburgh & S. Coal Co. _v._ Bates, 156 U.S. 577, 587 (1895). + +[334] United States _v._ Carolene Products Co., 304 U.S. 144, 147-148 +(1938). _See also infra._ + +[335] The "Daniel Ball," 10 Wall. 557, 564 (1871). + +[336] Mobile County _v._ Kimball, 102 U.S. 691, 696, 697 (1881). + +[337] Second Employers' Liability Cases, 223 U.S. 1, 47, 53-54 (1912). + +[338] The above case. And _see infra_. + +[339] 9 Wheat. 1, 217, 221 (1824). + +[340] Pensacola Teleg. Co. _v._ Western Union Teleg. Co., 96 U.S. 1 +(1878). _See also_ Western Union Teleg. Co. _v._ Texas, 105 U.S. 460 +(1882). + +[341] Ibid. 9. "Commerce embraces appliances necessarily employed in +carrying on transportation by land and water."--Chicago & N.W.R. Co. +_v._ Fuller, 17 Wall. 560, 568 (1873). + +[342] "No question is presented as to the power of the Congress, in its +regulation of interstate commerce, to regulate radio communications." +Chief Justice Hughes speaking for the Court in Federal Radio Com _v._ +Nelson Bros. B. & M. Co., 289 U.S. 266, 279 (1933). _Said_ Justice +Stone, speaking for the Court in 1936: "Appellant is thus engaged in the +business of transmitting advertising programs from its stations in +Washington to those persons in other States who 'listen in' through the +use of receiving sets. In all essentials its procedure does not differ +from that employed in sending telegraph or telephone messages across +State lines, which is interstate commerce. Western Union Teleg. Co. _v._ +Speight, 254 U.S. 17 (1920); New Jersey Bell Teleph. Co. _v._ State Bd. +of Taxes & Assessments, 280 U.S. 338 (1930); Cooney _v._ Mountain States +Teleph. & Teleg. Co., 294 U.S. 384 (1935); Pacific Teleph. & Teleg. Co. +_v._ Tax Commission, 297 U.S. 403 (1936). In each, transmission is +effected by means of energy manifestations produced at the point of +reception in one State which are generated and controlled at the sending +point in another. Whether the transmission is effected by the aid of +wires, or through a perhaps less well understood medium, 'the ether,' is +immaterial, in the light of those practical considerations which have +dictated the conclusion that the transmission of information interstate +is a form of 'intercourse,' which is commerce. _See_ Gibbons _v._ Ogden, +9 Wheat. 1, 189." Fisher's Blend Station _v._ Tax Commission, 297 U.S. +650, 654-655 (1936). + +[343] 13 How. 518. + +[344] 10 Stat. 112 (1852). + +[345] Pennsylvania _v._ Wheeling & Belmont Bridge Co., 18 How. 421, 430 +(1856). "It is Congress, and not the Judicial Department, to which the +Constitution has given the power to regulate commerce with foreign +nations and among the several States. The courts can never take the +initiative on this subject." Parkersburg & O. River Transportation Co. +_v._ Parkersburg, 107 U.S. 691, 701 (1883). _See also_ Prudential +Insurance Co. _v._ Benjamin, 328 U.S. 408 (1946); and Robertson _v._ +California, 328 U.S. 440 (1946). + +[346] 3 Wall. 713. + +[347] Ibid. 724-725. + +[348] Union Bridge Co. _v._ United States, 204 U.S. 364 (1907). _See +also_ Monongahela Bridge Co. _v._ United States, 216 U.S. 177 (1910); +and Wisconsin _v._ Illinois, 278 U.S. 367 (1929). Of collateral interest +are the following: South Carolina _v._ Georgia, 93 U.S. 4, 13 (1876); +Bedford _v._ United States, 192 U.S. 217 (1904); Jackson _v._ United +States, 230 U.S. 1 (1913); United States _v._ Arizona, 295 U.S. 174 +(1935). + +[349] Gibson _v._ United States, 166 U.S. 269 (1897). _See also_ Newport +& Cincinnati Bridge Co. _v._ United States, 105 U.S. 470 (1882); United +States _v._ Rio Grande Dam & Irrig. Co., 174 U.S. 690 (1899); United +States _v._ Chandler-Dunbar Water Power Co., 229 U.S. 53 (1913); Seattle +_v._ Oregon & W.R. Co., 255 U.S. 56, 63 (1921); Economy Light & Power +Co. _v._ United States, 256 U.S. 113 (1921); United States _v._ River +Rouge Improv. Co., 269 U.S. 411, 419 (1926); Henry Ford & Son _v._ +Little Falls Fibre Co., 280 U.S. 369 (1930); United States _v._ +Commodore Park, 324 U.S. 386 (1945). + +[350] United States _v._ Cress, 243 U.S. 316 (1917). + +[351] United States _v._ Chicago, M., St. P. & P.R. Co., 312 U.S. 592, +597 (1941); United States _v._ Willow River Power Co., 324 U.S. 499 +(1945). + +[352] United States _v._ Rio Grande Dam & Irrig. Co., 174 U.S. 690 +(1899); and _cf._ below the discussion of United States _v._ Appalachian +Electric P. Co., 311 U.S. 377 (1940). + +[353] The "Daniel Ball" _v._ United States, 10 Wall. 557 (1871). + +[354] Ibid. 560. + +[355] Ibid. 565. + +[356] Ibid. 566. "The regulation of commerce implies as much control, as +far-reaching power, over an artificial as over a natural highway." +Justice Brewer for the Court in Monongahela Navigation Co. _v._ United +States, 148 U.S. 312, 342 (1893). + +[357] Congress had the right to confer upon the Interstate Commerce +Commission the power to regulate interstate ferry rates. (New York C. & +H.R.R. Co. _v._ Board of Chosen Freeholders, 227 U.S. 248 (1913)); and +to authorize the Commission to govern the towing of vessels between +points in the same State but partly through waters of an adjoining State +(Cornell Steamboat Co. _v._ United States, 321 U.S. 634 (1944)). _Also_ +Congress's power over navigation extends to persons furnishing wharfage, +dock, warehouse, and other terminal facilities to a common carrier by +water. Hence an order of the United States Maritime Commission banning +certain allegedly "unreasonable practices" by terminals in the Port of +San Francisco, and prescribing schedules of maximum free time periods +and of minimum charges was constitutional. (California _v._ United +States, 320 U.S. 577 (1944)). The same power also comprises regulation +of the registry, enrollment, license, and nationality of ships and +vessels; the method of recording bills of sale and mortgages thereon; +the rights and duties of seamen; the limitations of the responsibility +of shipowners for the negligence and misconduct of their captains and +crews; and many other things of a character truly maritime. _See_ Rodd +_v._ Heartt (The "Lottawanna"), 21 Wall. 558, 577 (1875); Providence & +N.Y.S.S. Co. _v._ Hill Mfg. Co., 109 U.S. 578, 589 (1883); Old Dominion +S.S. Co. _v._ Gilmore, 207 U.S. 398 (1907); O'Donnell _v._ Great Lakes +Dredge & Dock Co., 318 U.S. 36 (1943). _See also_ below article III, +Sec. 2, (Admiralty and Maritime clause). + +[358] Pollard _v._ Hagan, 3 How. 212 (1845); Shively _v._ Bowlby, 152 +U.S. 1 (1894). "The shores of navigable waters, and the soils under +them, were not granted by the Constitution to the United States, but +were reserved to the States respectively; and the new States have the +same rights, sovereignty, and jurisdiction over this subject as the +original States." 3 How. 212, headnote 3. + +[359] Green Bay & M. Canal Co. _v._ Patten Paper Co., 172 U.S. 58, 80 +(1898). + +[360] 229 U.S. 53 (1913). + +[361] Ibid. 72-73, citing Kaukauna Water Power Co. _v._ Green Bay & M. +Canal Co., 142 U.S. 254 (1891). + +[362] 283 U.S. 423. + +[363] 311 U.S. 377. + +[364] 283 U.S. at 455, 456. + +[365] 311 U.S. at 407, 409-410. + +[366] 311 U.S. at 426. + +[367] Oklahoma ex rel. Phillips _v._ Atkinson Co., 313 U.S. 508, 523-534 +_passim_ (1941). + +[368] Ashwander _v._ Tennessee Valley Authority, 297 U.S. 288 (1936). +_See infra._ + +[369] 12 Stat. 489 (1862). + +[370] Thomson _v._ Pacific Railroad, 9 Wall. 579, 589 (1870); California +_v._ Central Pacific Railroad, 127 U.S. 1, 39 (1888); Cherokee Nation +_v._ Southern Kansas R. Co., 135 U.S. 641 (1890); Luxton _v._ North +River Bridge Co., 153 U.S. 525, 530 (1894). + +[371] 14 Stat. 66 (1866). In his first annual message (December 4, +1865), President Johnson had asked Congress "to prevent any selfish +impediment [by the States] to the free circulation of men and +merchandise." 6 Richardson, Messages and Papers of the Presidents, 362. + +[372] 14 Stat. 221; Pensacola Teleg. Co. _v._ Western Union Teleg. Co., +96 U.S. 1, 3-4, 11 (1878). + +[373] R.S. Secs. 4386-4390; replaced today by the Live Stock +Transportation Act of 1906 (34 Stat. 607). + +[374] 94 U.S. 113 (1877). + +[375] 118 U.S. 557. + +[376] 24 Stat. 379 (1887). + +[377] 154 U.S. 447. + +[378] Interstate Commerce Com. _v._ Alabama Midland R. Co., 168 U.S. +144, 176 (1897). _See also_ Cincinnati, N.O. & T.P.R. Co. _v._ +Interstate Commerce Commission, 162 U.S. 184 (1896). + +[379] 34 Stat. 584. + +[380] 36 Stat. 539 (1910). + +[381] By the Federal Communications Act of 1934 (48 Stat. 1081), this +jurisdiction was handed over to the Federal Communications Commission, +created by the act. + +[382] 41 Stat. 474 Sec. 400; 488 Sec. 422. The act must today be read in +conjunction with the Transportation Act of 1940 (54 Stat. 898), which +"was intended, together with the old law, to provide a completely +integrated interstate regulatory system over motor, railroad, and water +carriers." United States _v._ Pennsylvania R. Co., 323 U.S. 612, 618-619 +(1945). + +[383] Houston E. & W.T.R. Co. _v._ United States (Shreveport Case), 234 +U.S. 342 (1914). Forty States, through their Attorneys General, +intervened in the case against the Commission's order. + +[384] Ibid. 351-352. + +[385] Ibid. 353. _See_ to the same effect American Express Co. _v._ +Caldwell, 244 U.S. 617, 627 (1917); Pacific Teleph. & Teleg. Co. _v._ +Tax Commission (Washington), 297 U.S. 403 (1936); Weiss _v._ United +States, 308 U.S. 321 (1939); Bethlehem Steel Co. _v._ New York Labor +Relations Bd., 330 U.S. 767, 772 (1947); and United States _v._ Walsh, +331 U.S. 432, 438 (1947). + +[386] 257 U.S. 563 (1922). + +[387] In North Carolina _v._ United States, 325 U.S. 507 (1945), the +Court disallowed as _ultra vires_ an order of the Interstate Commerce +Commission, setting aside State-prescribed intrastate passenger rates, +on the ground that it was unsupported by clear findings and evidence +sufficient to show its necessity. + +Among the various provisions of the Interstate Commerce Commission Act +that have been sustained in specific decisions are the following: a +provision penalizing shippers for obtaining transportation at less than +published rates, Armour Packing Co. _v._ United States, 209 U.S. 56 +(1908); the so-called "commodities clause" of the Hepburn Act of June +29, 1906, construed as prohibiting the hauling of commodities in which +the carrier had at the _time of haul_ a proprietary interest, United +States _v._ Delaware & H. Co., 213 U.S. 366 (1909); a provision of the +same act abrogating life passes, Louisville & N.R. Co. _v._ Mottley, 219 +U.S. 467 (1911); a provision of the same act authorizing the Commission +to regulate the entire system of bookkeeping of interstate carriers, +including intrastate accounts, Interstate Commerce Commission _v._ +Goodrich Transit Co., 224 U.S. 194 (1912); the "long and short haul" +clause of the Interstate Commerce Act, United States _v._ Atchison, T. & +S.F.R. Co. (Intermountain Rate Cases), 234 U.S. 476 (1914); an order of +the Commission establishing the so-called uniform zone or block system +of express rates, American Express Co. _v._ South Dakota ex rel. +Caldwell, 244 U.S. 617 (1917); an order of the Commission directing the +abandonment of an intrastate branch of an interstate railroad, Colorado +_v._ United States, 271 U.S. 153 (1926); an order of the Commission +fixing rates of a transportation company operating solely in the +District of Columbia, on the ground that its carriage of passengers +constituted part of an interstate movement, United States _v._ Capital +Transit Co., 338 U.S. 286 (1949). + +[388] United States _v._ Ohio Oil Co. (Pipe Line Cases), 234 U.S. 548 +(1914). + +[389] _See also_ State Corp. Commission _v._ Wichita Gas Co., 290 U.S. +561 (1934); Eureka Pipe Line Co. _v._ Hallanan, 257 U.S. 265 (1921); +United Fuel Gas Co. _v._ Hallanan, 257 U.S. 277 (1921); Pennsylvania +_v._ West Virginia, 262 U.S. 553 (1923); Missouri ex rel. Barrett _v._ +Kansas Natural Gas Co., 265 U.S. 298 (1924). + +[390] Public Utilities Com. _v._ Attleboro Steam and Electric Co., 273 +U.S. 83 (1927). _See also_ Utah Power & Light Co. _v._ Pfost, 286 U.S. +165 (1932). + +[391] 49 Stat. 838. + +[392] The Natural Gas Act of 1938, 52 Stat. 821. + +[393] 315 U.S. 575 (1942). + +[394] Ibid. 582. Sales to distributors by a wholesaler of natural gas +which is delivered to it from an out-of-State source are subject to the +rate-making powers of the Federal Power Commission. Colorado-Wyoming Co. +_v._ Comm'n., 324 U.S. 626 (1945). _See also_ Illinois Natural Gas Co. +_v._ Central Illinois Pub. Serv. Co., 314 U.S. 498 (1942); _also_ +Federal Power Commission _v._ East Ohio Gas Co., 338 U.S. 464, decided +January 9, 1950, where it was held that a natural gas company which, +while operating exclusively in one State, sold there directly to +consumers gas transported into the State through the interstate lines of +other companies, "a natural gas company" within the meaning of the act +of 1938, and so could be required by the Commission to keep uniform +accounts and submit reports. + +[395] 48 Stat. 1064. + +[396] 49 Stat. 543; since amended in some respects in 1938 (52 Stat. +973) and 1940 (54 Stat. 735). + +[397] 52 Stat. 973. + +[398] 27 Stat. 531. As early as 1838 laws were passed requiring the +installation of safety devices on steam vessels. 5 Stat. 304 and 626. +Along with the Safety Appliance Acts mention should also be made of acts +requiring the use of ashpans on locomotives (35 Stat. 476 (1908)); the +inspection of boilers (36 Stat. 913 (1911) and 38 Stat. 1192 (1915)); +the use of ladders, drawbars, etc., on cars (36 Stat. 298 (1910)); etc. + +[399] 32 Stat. 943. + +[400] 222 U.S. 20 (1911). + +[401] Ibid. 26-27. _See also_ Texas & P.R. Co. _v._ Rigsby, 241 U.S. 33 +(1916); and United States _v._ California, 297 U.S. 175 (1936). In the +latter case the intrastate railway involved was property of the State. + +[402] 34 Stat. 1415. + +[403] Baltimore & O.R. Co. _v._ Interstate Commerce Com., 221 U.S. 612, +618-619 (1911). + +[404] 34 Stat. 232, disallowed in part in Howard _v._ Illinois Central +R. Co., 207 U.S. 463 (1908); 35 Stat. 65, sustained in the Second +Employers' Liability Cases (Mondou _v._ New York, N.H. & H.R. Co.), 223 +U.S. 1 (1912). + +[405] _See_ 223 U.S. at 19-22. + +[406] Ibid. 48. Because the injured employee must, in order to benefit +from the act, be employed at the time of his injury "in interstate +commerce," the Court's application of it has given rise to some narrow +distinctions. _See_ Illinois Central R. Co. _v._ Peery, 242 U.S. 292 +(1916); New York Central R. Co. _v._ White, 243 U.S. 188 (1917); +Chicago, B. & Q.R. Co. _v._ Harrington, 241 U.S. 177 (1916); Louisville +& N.R. Co. _v._ Parker, 242 U.S. 13 (1916); Illinois Central R. Co. _v._ +Behrens, 233 U.S. 473 (1914); St. Louis, S.F. & T.R. Co. _v._ Seale, 229 +U.S. 156 (1913); Pedersen _v._ Delaware, L. & W.R. Co., 229 U.S. 146 +(1913); Shanks _v._ Delaware, L. & W.R. Co., 239 U.S. 556 (1916); Lehigh +Valley R. Co. _v._ Barlow, 244 U.S. 183 (1917); Southern R. Co. _v._ +Puckett, 244 U.S. 571 (1917); Reed _v._ Director General of Railroads, +258 U.S. 92 (1922). That Congress might "legislate as to the +qualifications, duties, and liabilities of employes and others on +railway trains engaged in that [interstate] commerce," was stated by the +Court in Nashville, C. & St. L.R. Co. _v._ Alabama, 128 U.S. 96, 99 +(1888). + +[407] 208 U.S. 161 (1908). + +[408] 30 Stat. 424. + +[409] 44. Stat. 577. + +[410] Texas & N.O.R. Co. _v._ Brotherhood of R. & S.S. Clerks, 281 U.S. +548 (1930). The provision of Railway Labor Act of 1926 (44 Stat. 577), +preventing interference by either party with organization or designation +of representatives by the other, is within the constitutional authority +of Congress. Similarly, "back shop" employees of an interstate carrier, +who engaged in making heavy repairs on locomotives and cars withdrawn +from service for that purpose for long periods (an average of 105 days +for locomotives and 109 days for cars), were held to be within the terms +of the act as amended in 1934 (48 Stat. 1185). "The activities in which +these employees are engaged have such a relation to the other +confessedly interstate activities of the * * * [carrier] that they are +to be regarded as a part of them. All taken together fall within the +power of Congress over interstate commerce." Virginian R. Co. _v._ +System Federation No. 40, 300 U.S. 515, 556 (1937). + +By the Adamson Act of 1916 a temporary increase in wages was imposed +upon the railways of the country in order to meet a sudden threat to +strike by important groups of their employees. The act was assailed on +the dual ground that it was not a regulation of commerce among the +States and that it was violative of the carriers' rights under the Fifth +Amendment. A closely divided Court, speaking through Chief Justice +White, answered both objections by pointing to the magnitude of the +emergency which had threatened the country with commercial paralysis and +grave loss and suffering. To the familiar argument that "emergency may +not create power" (Ex parte Milligan, 4 Wall. 2 (1806)), the Chief +Justice answered that "it may afford a reason for exerting a power +already enjoyed." A further answer to objections based on the rights of +carriers under the Fifth Amendment, particularly the right of "freedom +of contract," was that the situation met by the statute had arisen in +consequence of a failure to exercise these rights--a far from +satisfactory answer, as the dissent pointed out, since one element of a +right is freedom of choice regarding its use or nonuse. Wilson _v._ New, +243 U.S. 332, 387 (1917). + +[411] 48 Stat. 1283. + +[412] 295 U.S. 330 (1935). + +[413] Ibid. 374. + +[414] Ibid. 384. + +[415] 326 U.S. 446 (1946). Indeed, in a case decided in June, 1948, +Justice Rutledge, speaking for a majority of the Court, listed the Alton +case as one "foredoomed to reversal," though the formal reversal has +never taken place. _See_ Mandeville Is. Farms _v._ American C.S. Co., +334 U.S. 219, 230 (1948). + +[416] 250 U.S. 199 (1919). + +[417] Ibid. 203-204. + +[418] 26 Stat. 209 (1890). + +[419] 156 U.S. 1 (1895). + +[420] Ibid. 13. + +[421] 156 U.S. 1, 13-16 (1895). "Slight reflection will show that if the +national power extends to all contracts and combinations in manufacture, +agriculture, mining, and other productive industries, whose ultimate +result may effect external commerce, comparatively little of business +operations and affairs would be left for State control." + +[422] Ibid. 17. The doctrine of the case simmered down to the +proposition that commerce was transportation only; a doctrine which +Justice Harlan undertook to refute in his notable dissenting opinion: +"Interstate commerce does not, therefore, consist in transportation +simply. It includes the purchase and sale of articles that are intended +to be transported from one State to another--every species of commercial +intercourse among the States and with foreign nations." (p. 22). "Any +combination, therefore, that disturbs or unreasonably obstructs freedom +in buying and selling articles manufactured to be sold to persons in +other States or to be carried to other States--a freedom that cannot +exist if the right to buy and sell is fettered by unlawful restraints +that crush out competition--affects, not incidentally, but directly, the +people of all the States; and the remedy for such an evil is found only +in the exercise of powers confided to a government which, this court has +said, was the government of all, exercising powers delegated by all, +representing all, acting for all. McCulloch _v._ Maryland, 4 Wheat. 316, +405." (p. 33). "It is said that manufacture precedes commerce and is not +a part of it. But it is equally true that when manufacture ends, that +which has been manufactured becomes a subject of commerce; that buying +and selling succeed manufacture, come into existence after the process +of manufacture is completed, precede transportation, and are as much +commercial intercourse, where articles are bought _to be_ carried from +one State to another, as is the manual transportation of such articles +after they have been so purchased. The distinction was recognized by +this court in Gibbons _v._ Ogden, where the principal question was +whether commerce included navigation. Both the Court and counsel +recognized buying and selling or barter _as included in commerce_. * * * +The power of Congress covers and protects the absolute freedom of such +intercourse and trade among the States as may or must succeed +manufacture and precede transportation from the place of purchase." (p. +35-36). "When I speak of trade I mean the buying and selling of articles +of every kind that are recognized articles of interstate commerce. +Whatever improperly obstructs the free course of interstate intercourse +and trade, as involved in the buying and selling of articles to be +carried from one State to another, may be reached by Congress, under its +authority to regulate commerce among the States." (p. 37). "If the +national power is competent to repress _State_ action in restraint of +interstate trade as it may be involved in purchases of refined sugar to +be transported from one State to another State, surely it ought to be +deemed sufficient to prevent unlawful restraints attempted to be imposed +by combinations of corporations or individuals upon those identical +purchases; otherwise, illegal combinations of corporations or +individuals may--so far as national power and interstate commerce are +concerned--do, with impunity, what no State can do." (p. 38). "Whatever +a State may do to protect its completely interior traffic or trade +against unlawful restraints, the general government is empowered to do +for the protection of the people of all the States--for this purpose one +people--against unlawful restraints imposed upon interstate traffic or +trade in articles that are to enter into commerce among the several +States." (p. 42). + +[423] 175 U.S. 211 (1899). + +[424] 196 U.S. 375.--The Sherman Act was applied to break up +combinations of interstate carriers in United States _v._ Trans-Missouri +Freight Asso., 166 U.S. 290 (1897); United States _v._ Joint-Traffic +Asso., 171 U.S. 505 (1898); and Northern Securities Co. _v._ United +States, 193 U.S. 197 (1904). In the first of these cases the Court was +confronted with the contention that the act had been intended only for +the industrial combinations, and hence was not designed to apply to the +railroads, for whose governance the Interstate Commerce Act had been +enacted three years prior. Justice Peckham answered the argument by +saying that "to exclude agreements as to rates by competing railroads * +* * would leave [very] little for the act to take effect upon," +referring in this connection to the decision in the Sugar Trust Case, +166 U.S. at 313. + +Alluding in his opinion for the Court in Mandeville Island Farms _v._ +American C.S. Co., 334 U.S. 219 (1948) to the Sugar Trust Case, Justice +Rutledge said: "Like this one, that case involved the refining and +interstate distribution of sugar. But because the refining was done +wholly within a single state, the case was held to be one involving +'primarily' only 'production' or 'manufacturing,' although the vast part +of the sugar produced was sold and shipped interstate, and this was the +main end of the enterprise. The interstate distributing phase, however, +was regarded as being only 'incidentally,' 'indirectly,' or 'remotely' +involved; and to be 'incidental,' 'indirect,' or 'remote' was to be, +under the prevailing climate, beyond Congress' power to regulate, and +hence outside the scope of the Sherman Act. _See_ Wickard _v._ Filburn, +317 U.S. at 119 et seq. (1942). + +"The _Knight_ decision made the statute a dead letter for more than a +decade and, had its full force remained unmodified, the Act today would +be a weak instrument, as would also the power of Congress, to reach +evils in all the vast operations of our gigantic national industrial +system antecedent to interstate sale and transportation of manufactured +products. Indeed, it and succeeding decisions, embracing the same +artificially drawn lines, produced a series of consequences for the +exercise of national power over industry conducted on a national scale +which the evolving nature of our industrialism foredoomed to reversal." +Ibid. 229-230. + +[425] Swift & Co. _v._ United States, 196 U.S. 375, 396 (1905). + +[426] 196 U.S. at 398-399. + +[427] Ibid. 399-401. + +[428] Ibid. 400. + +[429] Loewe _v._ Lawlor, 208 U.S. 274 (1908); Duplex Printing Press Co. +_v._ Deering, 254 U.S. 443 (1921); Coronado Coal Co. _v._ United Mine +Workers of America, 268 U.S. 295 (1925); United States _v._ Brime, 272 +U.S. 549 (1926); Bedford Co. _v._ Stone Cutters Assn., 274 U.S. 37 +(1927); Local 167 _v._ United States, 291 U.S. 293 (1934); Allen Bradley +Co. _v._ Union, 325 U.S. 797 (1945). + +[430] 42 Stat. 159. + +[431] Ibid. 998 (1922). + +[432] 258 U.S. 495 (1922). + +[433] Ibid. 514. + +[434] Ibid. 515-516. _See also_ Lemke _v._ Farmers' Grain Co., 258 U.S. +50 (1922); Minnesota _v._ Blasius, 290 U.S. 1 (1933). + +[435] 262 U.S. 1 (1923). + +[436] Ibid. 35. + +[437] Ibid. 40. + +[438] 258 U.S. at 521; 262 U.S. at 37. + +[439] 48 Stat. 881. + +[440] 49 Stat. 803. + +[441] Electric Bond Co. _v._ Comm'n., 303 U.S. 419 (1938); North +American Co. _v._ S.E.C., 327 U.S. 686 (1946); American Power & Light +Co. _v._ S.E.C., 329 U.S. 90 (1946). + +[442] "The Bond and Share system, including American and Electric, +possesses an undeniable interstate character which makes it properly +subject, from the statutory standpoint, to the provisions of Sec. 11 (b) +(2). This vast system embraces utility properties in no fewer than 32 +States, from New Jersey to Oregon and from Minnesota to Florida, as well +as in 12 foreign countries. Bond and Share dominates and controls this +system from its headquarters in New York City. * * * the proper control +and functioning of such an extensive multi-state network of corporations +necessitates continuous and substantial use of the mails and the +instrumentalities of interstate commerce. Only in that way can Bond and +Share, or its subholding companies or service subsidiary, market and +distribute securities, control and influence the various operating +companies, negotiate inter-system loans, acquire or exchange property, +perform service contracts, or reap the benefits of stock ownership. * * +* Moreover, many of the operating companies on the lower echelon sell +and transmit electric energy or gas in interstate commerce to an extent +that cannot be described as spasmodic or insignificant. * * * Congress, +of course, has undoubted power under the commerce clause to impose +relevant conditions and requirements on those who use the channels of +interstate commerce so that those channels will not be conduits for +promoting or perpetuating economic evils. * * * Thus to the extent that +corporate business is transacted through such channels, affecting +commerce in more States than one, Congress may act directly with respect +to that business to protect what it conceives to be the national +welfare. * * * It may compel changes in the voting rights and other +privileges of stockholders. It may order the divestment or rearrangement +of properties. It may order the reorganization or dissolution of +corporations. In short, Congress is completely uninhibited by the +commerce clause in selecting the means considered necessary for bringing +about the desired conditions in the channels of interstate commerce. Any +limitations are to be found in other sections of the Constitution. +Gibbons _v._ Ogden, 9 Wheat. 1, 196." American Power & Light Co. _v._ +S.E.C., 329 U.S. 90, 98-100 (1946). + +[443] Appalachian Coals, Inc. _v._ United States, 288 U.S. 344, 372 +(1933). + +[444] 48 Stat. 195. + +[445] 295 U.S. 495 (1935). + +[446] Ibid. 548. _See also_ Ibid. 546. + +[447] In United States _v._ Sullivan, 332 U.S. 689 (1948), the Court +interpreted the Federal Food, Drug, and Cosmetics Act of 1938 as +applying to the sale by a retailer of drugs purchased from his +wholesaler within the State nine months after their interstate shipment +had been completed. The Court, speaking by Justice Black, cited United +States _v._ Walsh, 331 U.S. 432 (1947); Wickard _v._ Filburn, 317 U.S. +111 (1942); United States _v._ Wrightwood Dairy Co., 315 U.S. 110 +(1942); United States _v._ Darby, 312 U.S. 100 (1941). The last three of +these cases are discussed below. _See_ pp. 155, 159. Justice Frankfurter +dissented on the basis of Federal Trade Commission _v._ Bunte Bros., 312 +U.S. 349 (1941). It is apparent that the Schechter case has been +thoroughly repudiated so far as the distinction "direct" and "indirect" +effects is concerned. _See also_ McDermott _v._ Wisconsin, 228 U.S. 115 +(1913), which preceded the Schechter decision by more than two decades. + +The N.I.R.A., however, was found to have several other constitutional +infirmities besides its disregard, as illustrated by the Live Poultry +Code, of the "fundamental" distinction between "direct" and "indirect" +effects, namely, the delegation of uncanalized legislative power; the +absence of any administrative procedural safeguards; the absence of +judicial review; and the dominant role played by private groups in the +general scheme of regulation. These objections are dealt with elsewhere +in this volume. _Supra_, pp. 75, 78, 80. + +[448] 48 Stat 31 (1933). + +[449] United States _v._ Butler, 297 U.S. 1, 63-64, 68 (1936). + +[450] 49 Stat. 991. + +[451] Carter _v._ Carter Coal Co., 298 U.S. 238 (1936). + +[452] Ibid. 308-309. + +[453] United States _v._ E.C. Knight Co., 156 U.S. 1 (1895). + +[454] 301 U.S. 1 (1937). + +[455] 49 Stat. 449. + +[456] 301 U.S. at 38, 41-42 (1937). + +[457] National Labor Relations Board _v._ Fruehauf Trailer Co., 301 U.S. +49 (1937); National Labor Relations Board _v._ Friedman-Harry Marks +Clothing Co., 301 U.S. 58 (1937). + +[458] National Labor Relations Board _v._ Fainblatt, 306 U.S. 601, 606 +(1939). + +[459] _See_ Santa Cruz Fruit Packing Co. _v._ National Labor Relations +Board, 303 U.S. 453, 465 (1938). + +[460] 52 Stat. 1060. + +[461] United States _v._ Darby, 312 U.S. 100, 115 (1941). + +[462] _See_ ibid. 113, 114, 118. + +[463] Ibid. 123-124. + +[464] Owen J. Roberts, The Court and the Constitution, The Oliver +Wendell Holmes Lectures 1951, (Harvard University Press 1951), 56. + +[465] The Act provided originally that "for the purposes of this Act an +employee shall be deemed to have been engaged in the production of goods +if such employee was employed * * * in any process or occupation +necessary to the production thereof, in any State." By 63 Stat. 910 +(1949), "necessary to the production thereof" becomes "directly +essential to the production thereof." The effect of this change, which +has not yet registered itself in judicial decision, seems likely to be +slight, in view of the power, which the act gives the Administrator to +lay down "such terms and conditions" as he "finds necessary to carry out +the purposes of" his orders to prevent their evasion or circumvention. +_See_ Gemsco, Inc. _v._ Walling, 324 U.S. 244 (1945). The employees +involved in the following cases have been held to be covered by the act: + +(1) Operating and maintenance employees of the owner of a loft building, +space in which is rented to persons producing goods principally for +interstate commerce (Kirschbaum _v._ Walling, 316 U.S. 517 (1942)); + +(2) an employee of an interstate motor transportation company, who acted +as rate clerk and performed other incidental duties (Overnight Motor Co. +_v._ Missel, 316 U.S. 572 (1942)); + +(3) members of a rotary drilling crew, engaged within a State, as +employees of an independent contractor, in partially drilling oil wells, +a portion of the products from which later moved in interstate commerce +(Warren-Bradshaw Co. _v._ Hall, 317 U.S. 88 (1942)); + +(4) employees of a wholesale paper company who are engaged in the +delivery, from company warehouse within a State to customers within that +State, after a temporary pause at such warehouses, of goods procured +outside of the State upon prior orders from, or pursuant to contracts +with, such customers (Walling _v._ Jacksonville Paper Co., 317 U.S. 564 +(1943)); + +(5) employees of a private corporation who are engaged in the operation +and maintenance of a drawbridge which is part of a toll road used +extensively by persons and vehicles traveling in interstate commerce, +and which spans an intercoastal waterway used in interstate commerce +(Overstreet _v._ North Shore Corp., 318 U.S. 125 (1943)); + +(6) a night watchman employed in a plant in which veneer was +manufactured from logs and from which a substantial portion of the +manufactured product was shipped in interstate commerce (Walton _v._ +Southern Package Corp., 320 U.S. 540 (1944)); + +(7) employees putting in stand-by time in the auxiliary fire-fighting +service of an employer engaged in interstate commerce (Armour & Co. _v._ +Wantock, 323 U.S. 126 (1944)); + +(8) warehouse and central office employees of an interstate retail chain +store system (Phillips Co. _v._ Walling, 324 U.S. 490 (1945)); + +(9) employees of an independent contractor engaged in repairing +abutments and substructures of bridges which were part of the line of an +interstate railroad (Fitzgerald Co. _v._ Pedersen, 324 U.S. 720 (1945)); + +(10) maintenance employees of an office building which was owned and +operated by a manufacturing corporation and in which 58 per cent of the +rental space was used for its central offices, where its production of +goods for interstate commerce was administered, managed and controlled, +although the goods were actually produced at plants located elsewhere +(Borden Company _v._ Borella, 325 U.S. 679 (1945)); + +(11) the employees of an electrical contractor, locally engaged in +commercial and industrial wiring and dealing in electrical motors and +generators for commercial and industrial uses, whose customers are +engaged in the production of goods for interstate commerce (Roland Co. +_v._ Walling, 326 U.S. 657-678 (1946)); + +(12) employees of a window-cleaning company, the greater part of whose +work is done on the windows of industrial plants of producers of goods +for interstate commerce (Martino _v._ Michigan Window Cleaning Company, +327 U.S. 173-178 (1946)); + +(13) mechanics engaged in servicing and maintaining equipment of a motor +transportation company which is engaged in interstate commerce (Boutell +_v._ Walling, 327 U.S. 463 (1946)). Nor does the maxim "_de minimis_" +apply to the act. Hence the publishers of a daily newspaper only about +one half of one per cent of whose circulation is outside the State of +publication are not by that fact excluded from the operation of the act. +(Mabee _v._ White Plains Publishing Co., 327 U.S. 178 (1946)). On the +other hand, an employee whose work it is to prepare meals and serve them +to maintenance-of-way employees of an interstate railroad in pursuance +of a contract between his employer and the railroad company is not +"engaged in commerce" within the meaning of Sec. 6 and 7 of the Fair +Labor Standards Act (McLeod _v._ Threlkeld, 319 U.S. 491 (1943)); nor are +maintenance employees of a typical metropolitan office building operated +as an independent enterprise, which is used and is to be used for +offices by every variety of tenants, including some producers of goods +for commerce (10 East 40th St. _v._ Callus, 325 U.S. 578 (1945)); nor +are maintenance employees of a building corporation which furnishes loft +space to tenants engaged in production for interstate commerce "unless +an adequate proportion of such tenants are so engaged." (Schulte _v._ +Gangi, 328 U.S. 108 (1946)). _Also_ Section 12 (a) of the Fair Labor +Standards Act, which provides that "no producer, * * * shall ship or +deliver for shipment in commerce any goods produced in an establishment +* * * in or about which * * * any oppressive child labor has been +employed * * *" was held inapplicable to a company engaged in the +transmission in interstate commerce of telegraph messages, (Western +Union _v._ Lenroot, 323 U.S. 490 (1945)). The decision was a +five-to-four one. It should be added that the Court has not always been +unanimous in favoring coverage by the act. In the Borden case above, +Chief Justice Stone, speaking for himself and Justice Roberts, +protested, as follows: "No doubt there are philosophers who would argue, +what is implicit in the decision now rendered, that in a complex modern +society there is such interdependence of its members that the activities +of most of them are necessary to the activities of most others. But I +think that Congress did not make that philosophy the basis of the +coverage of the Fair Labor Standards Act. It did not, by a +'house-that-Jack-built' chain of causation, bring within the sweep of +the statute the ultimate _causa causarum_ which result in the production +of goods for commerce. Instead it defined production as a physical +process. It said in Sec. 3 (j) 'Produced means produced, manufactured, +mined, handled, or in any other manner worked on' and declared that +those who participate in any of these processes 'or in any process or +occupation necessary to' them are engaged in production and subject to +the Act." 325 U.S. 679, 685. On the other hand, the holding in 10 East +40th St., above, was a five-to-four decision, and Justice Frankfurter, +speaking for the Court took pains to explain that Congress in enacting +the Fair Labor Standards Act, "did not see fit, * * *, to exhaust its +constitutional power over commerce." 325 U.S. 578-579. _See_ 87 Law Ed. +pp. 87-105 for a note reviewing both Supreme Court, lower Federal Court, +and State court cases defining "engaged in commerce" as that term is +used in the Fair Labor Standards Act. + +[466] 50 Stat. 246. + +[467] 315 U.S. 110 (1942). + +[468] Ibid. 118-119. + +[469] 317 U.S. 111 (1942). + +[470] 52 Stat. 31. + +[471] 317 U.S. at 128-129. + +[472] Ibid. 120-124 _passim_. In United States _v._ Rock Royal +Co-operative, 307 U.S. 533 (1939), the Court sustained an order under +the Agricultural Marketing Agreement Act of 1937 (50 Stat. 752) +regulating the price of milk in certain instances. Said Justice Reed for +the majority of the Court: "The challenge is to the regulation 'of the +price to be paid upon the sale by a dairy farmer who delivers his milk +to some country plant.' It is urged that the sale, a local transaction, +is fully completed before any interstate commerce begins and that the +attempt to fix the price or other elements of that incident violates the +Tenth Amendment. But where commodities are bought for use beyond State +lines, the sale is a part of interstate commerce. We have likewise held +that where sales for interstate transportation were commingled with +intrastate transactions, the existence of the local activity did not +interfere with the federal power to regulate inspection of the whole. +Activities conducted within the State lines do not by this fact alone +escape the sweep of the Commerce Clause. Interstate commerce may be +dependent upon them. Power to establish quotas for interstate marketing +gives power to name quotas for that which is to be left within the State +of production. Where local and foreign milk alike are drawn into a +general plan for protecting the interstate commerce in the commodity +from the interferences, burdens and obstructions, arising from excessive +surplus and the social and sanitary evils of low values, the power of +the Congress extends also to the local sales."' Ibid. 568-569. _See +also_ H.P. Hood & Sons _v._ United States, 307 U.S. 588 (1939), another +milk case; and Mulford _v._ Smith, 307 U.S. 38 (1939), in which certain +restrictions on the sale of tobacco, under the Agricultural Adjustment +Act of 1938 (52 Stat. 31), were sustained in an opinion by Justice +Roberts, who spoke for the Court in the latter case. + +[473] United States _v._ The William, 28 Fed. Cas. No. 16,700, 614, +620-623 _passim_ (1808). Other parts of this opinion are considered +below in connection with the prohibiting of interstate commerce. _See +also_ Gibbons _v._ Ogden, 9 Wheat. 1, 191 (1824); United States _v._ +Marigold, 9 How. 560 (1850). + +[474] 289 U.S. 48 (1933). + +[475] Ibid. 57, 58. + +[476] 5 Stat. 566 Sec. 28. + +[477] 9 Stat. 237 (1848). + +[478] 24 Stat. 409. + +[479] 35 Stat. 614; 38 Stat. 275. + +[480] 29 Stat. 605. + +[481] 192 U.S. 470 (1904). + +[482] 223 U.S. 166 (1912); _cf._ United States _v._ California, 332 U.S. +19 (1947). + +[483] 239 U.S. 325 (1915). + +[484] Ibid. 329. + +[485] 236 U.S. 216 (1915). + +[486] Ibid. 222. _See also_ Robert B. Cushman, National Police Power +Under the Commerce Clause, 3 Selected Essays on Constitutional Law, +62-79. + +[487] Groves _v._ Slaughter, 15 Pet. 449, 488-489 (1841). + +The Issue + +A little reflection will suffice to show that, as a matter of fact, any +regulation at all of commerce implies some measure of power to prohibit +it, since it is the very nature of regulation to lay down terms on which +the activity regulated will be permitted and for noncompliance with +which it will not be permitted. It is also evident that when occasion +does arise for an outright prohibition of an activity, the power to +enact the required prohibition ordinarily must belong to the body which +is vested with authority to regulate it, which in this instance is +Congress. + +What, then, are the outstanding differences between such conditional +prohibitions of commerce and that with which this resume deals? There +seem to be three such differences. First, there is often a difference of +_modus operandi_ between the statutes already considered and those about +to be considered. The former impinge upon persons or agencies engaged in +interstate commerce and their activities in connection therewith, +whereas the latter look primarily to things, or the subject matter, of +the trade or commerce prohibited. Secondly, there is a difference in +purpose between the two categories of Congressional statutes. The +purpose of the acts already treated is to lay down the conditions on +which a designated branch of commerce among the States may be carried +on; that of the acts now to be treated is to eliminate outright a +designated branch of trade among the States. In other words, whereas the +former acts were, in general, preservative of the commerce which they +regulated because of its value to society, the latter regard the +commerce which they reach as detrimental to society. The third, and most +important difference from the point of view of Constitutional Law, is +the difference in relation of the two categories of acts respectively to +the reserved powers of the States. The enactments of Congress already +dealt with frequently intrude upon the ordinary field of jurisdiction of +the States; but when they do so, it is because the acts or things which +they thus bring under national control are regarded as "local incidents" +of interstate commerce itself. The relation of the enactments about to +be considered to the reserved powers of the States is precisely the +inverse of this. Their very purpose is to reach and control matters +ordinarily governed by the State's police power, sometimes in order to +make State policy more effective, sometimes in order to supply a +corrective to it. + +The Argument Denying Congress' Power To Prohibit Interstate Commerce + +The principal argument against the constitutionality of prohibitory +Congressional legislation pivoted on the dual conception of the Federal +System "The Federal Equilibrium". The Constitution, the argument ran, +clearly contemplates two spheres of governmental activity, that of the +States, that of the United States; and while the latter government is +generally supreme when the two collide with one another in the exercise +of their respective powers, yet collision is not contemplated as the +rule of life of the system, but the contrary. And since there are these +two spheres, the line to be drawn between them, in order to secure +harmony instead of collision, should recognize that the objects which +the National Government was established to promote are relatively few, +while those which the States were retained to advance comprise the +principal objectives of government, the protection of the public health, +safety, morals, and welfare. The power to promote these ends is, indeed, +the very definition of the police power of the States--that power for +which all other powers of the States exist. Seriously to impair the +police power of the States, or to diminish their autonomy in its +employment, would be, in fact to remove their reason for being, and so +the reason for the Federal System itself. + +So while the power of Congress to regulate commerce among the States and +with foreign nations is in terms a single power, in the intention of the +framers it comprised two very different powers. In the field of foreign +relations, the National Government is completely sovereign, and the +power to regulate commerce with foreign nations is but a branch of this +sovereign power. The power to regulate commerce among the States is, on +the other hand, not a sovereign power except for purposes of commercial +advantage; in other respects it is confronted at every turn by the +police power of the States, and hence requires to be defined in relation +to the known and frequently reiterated objectives of that power. + +Indeed, it was urged on the authority of Madison that the power to +regulate commerce among the States was not bestowed upon the National +Government "to be used for * * * positive purposes," but merely as "a +negative and preventive provision against injustice among the States +themselves." Madison IV, Letters and Other Writings, 15 (Philadelphia, +1865). Furthermore, it is a power which was designed for the _promotion_ +and _advancement_ of commerce, not a power to strike commerce down in +order to advance other purposes and programs. Grant that the power to +regulate commerce among the States is the power to prohibit it at the +discretion of Congress, and you at once endow Congress with power which +it may use as a weapon to consolidate substantially all power in the +hands of the National Government. + +Thus, if Congress may prohibit _ad libitum_ the carrying on of +interstate commerce, it may make deprivation of the right to engage in +interstate commerce in any of its phases, even the right to move from +one State to another, a sanction of ever-increasing efficacy for +whatever standards of conduct it may choose to lay down in any field of +human action; and since laws passed by Congress in pursuance of its +powers are generally supreme over conflicting State laws, these +standards would supersede the conflicting standards imposed under the +police powers of the States. Henceforth, in effect, the police power +would exist solely by "leave and license" of Congress--as "the power to +govern men and things" it would be at an end; and by the same token the +Federal System, which is the outstanding feature of government under the +Constitution, would be at an end. In the First Employers' Liability +Cases, (Howard _v._ Illinois Central R. Co., 207 U.S. 463 (1908)), the +majority of the Court, speaking through Justice White, gave special +attention to the Government's argument that though the act, in terms, +governed the liability of "every" interstate carrier to "any" of its +employees, whether engaged in interstate commerce or not when the +liability fell, it was none the less constitutional "because one who +engaged in interstate commerce thereby submits all his business concerns +to the regulating power of Congress." Justice White answered: "To state +the proposition is to refute it. It assumes that because one engages in +interstate commerce he thereby endows Congress with power not delegated +to it by the Constitution; in other words, with the right to legislate +concerning matters of purely State concern. It rests upon the conception +that the Constitution destroyed that freedom of commerce which it was +its purpose to preserve, since it treats the right to engage in +interstate commerce as a privilege which cannot be availed of except +upon such conditions as Congress may prescribe, even although the +conditions would be otherwise beyond the power of Congress. It is +apparent that if the contention were well founded it would extend the +power of Congress to every conceivable subject, however inherently +local, would obliterate all the limitations of power imposed by the +Constitution, and would destroy the authority of the States as to all +conceivable matters which from the beginning have been, and must +continue to be, under their control so long as the Constitution +endures." Ibid. 502-503. _See also_ Justice White's dissenting opinion, +for himself, Chief Justice Fuller, and Justices Peckham and Holmes, in +Northern Securities Co. _v._ United States, 193 U.S. 197, 396-397 +(1904). + +The Argument Asserting the Power + +The thesis that the power to regulate commerce among the States +comprises in general the power to prohibit it turns on the proposition +stated by Marshall in his opinion in Gibbons _v._ Ogden, that this power +is vested "in Congress as absolutely as it would be in a single +government, having in its Constitution the same restrictions on the +exercise of the power as are found in the Constitution of the United +States. The wisdom and discretion of Congress," Marshall continued, +"their identity with the people, and the influence which their +constituents possess at elections, are, in this, as in many other +instances, as that, for example, of declaring war, the sole restraints +on which they have relied, to secure them from its abuse." 9 Wheat. 1, +196-197 (1824). + +That the National Government is a government of limited powers, the +advocates of this view conceded; but the powers which it +uncontrovertibly possesses, they urged, may be utilized to promote all +good causes, of which fact, it was asserted, the Preamble of the +Constitution itself was proof. There the objectives of the Constitution +and so, presumably, of the Government created by it, are stated to be +"more perfect union," "justice," "domestic tranquillity," "the common +defense," "the general welfare," and "liberty." It was to forward these +broad general purposes, then, that the commercial power, like its other +powers, was bestowed upon the National Government. No doubt it was +expected that the States, too, would use the powers still left them to +assist the same purposes, which indeed are those of good government +always. Yet that circumstance should not operate to withdraw the powers +delegated to the National Government from the service of these same +ends. The fact, in other words, that the power to govern commerce among +the States was bestowed by the Constitution on the National Government +should not imply that it thereby became available merely for the purpose +of fostering such commerce. It ought, on the contrary, to be applicable, +as would be the equivalent power in England or France for instance, to +aid and support all recognized objectives of government. _See_ Juilliard +_v._ Greenman (Legal Tender Case), 110 U.S. 421, 447-448 (1884). As +originally possessed by the several States, the power to regulate +commerce with one another included the power to prohibit it at +discretion; on what principle, then, it was asked, can it be contended +that the power delegated to Congress is not as exhaustive and complete +as the power it was designed to supersede? _See_ especially Justice +Holmes' dissenting opinion in Hammer _v._ Dagenhart, 247 U.S. 251, +277-281 (1918). + +And, the protagonists of this view continued, if the public health, +safety, morals, and general welfare must depend solely upon the police +powers of the States, they must in modern conditions, often fail of +realization in this country. With goods flowing over State lines in +ever-increasing quantities, and people in ever-increasing numbers, how +was it possible to regard the States as watertight compartments? At +least, then, when local legislative programs break down on account of +the division of the country into States, it becomes the clear duty of +Congress to adopt supplementary legislation to remedy the situation. In +doing so, it is not undermining the Federal System; it is supporting it, +by making it viable in modern conditions. The assemblage of the States +in one Union was never intended to put one State at the mercy of +another. If, however, well considered programs of legislation are +rendered abortive in a State in consequence of the flow of commerce into +it from other States, then it becomes the duty--certainly it is within +the discretion of Congress--which alone can govern commerce among the +States, to supply the required relief. _See_ especially Assistant +Attorney General Maury's argument. In re Rapier, 143 U.S. 110, 127-129 +(1892). + +In this connection the advocates of this view cited discussion +contemporaneous with Jefferson's Embargo, and under the embargo itself, +as supporting their position. In the case of the Brigantine William the +validity of the embargo was challenged before the United States District +Court of Massachusetts on the ground that the power to regulate commerce +did not embrace the power to prohibit it. Judge Davis answered: "It will +be admitted that partial prohibitions are authorized by this expression; +and how shall the degree, or extent, of the prohibition be adjusted, but +by the discretion of the National Government, to whom the subject +appears to have been committed? * * * The power to regulate commerce is +not to be confined to the adoption of measures, exclusively beneficial +to commerce itself, or tending to its advancement; but, in our national +system, as in all modern sovereignties, it is also to be considered as +an instrument for other purposes of general policy and interest. * * * +the national right, or power, under the Constitution, to adapt +regulations of commerce to other purposes, than the mere advancement of +commerce, appears to be unquestionable. * * * The situation of the +United States, in ordinary times, might render legislative +interferences, relative to commerce, less necessary; but the capacity +and power of managing and directing it, for the advancement of great +national purposes, seems an important ingredient of sovereignty." And in +confirmation of this argument Judge Davis cited the clause of Sec. 9 of +article I of the Constitution interdicting a prohibition of the slave +trade till 1808. This clause clearly proves that those who framed the +Constitution perceived that "under the power of regulating commerce, +Congress would be authorized to abridge it, in favour of the great +principles of humanity and justice." Fed. Cas. No. 16,700, 614, 621 +(1808). + +The embargo, to be sure, operated on foreign commerce; but that there is +any difference between Congress's power in relation to foreign and to +interstate commerce the advocates of the view under consideration +denied. The power to "regulate" is the power which belongs to Congress +as to the one as well as to the other; and if this comprehends the power +to prohibit in the one case, it must equally, by acknowledged principles +of statutory construction, comprehend it in the other case as well. Nor +in fact, the argument continued, does it make any difference, by +approved principles of statutory construction, what purposes the framers +of the Constitution may have immediately in mind when they gave Congress +power to regulate commerce among the States; the governing consideration +is that they gave Congress the power, to be exercised in accordance with +its judgment of what are proper occasions for its use. "The reasons +which may have caused the framers of the Constitution to repose the +power to regulate interstate commerce in Congress do not, however, +affect or limit the extent of the power itself." Justice Peckham for the +Court in Addyston Pipe & Steel Co. _v._ United States, 175 U.S. 211, 228 +(1899). + +References + +_See_ especially the arguments of counsel In re Rapier, 143 U.S. 110 +(1892); Champion _v._ Ames (Lottery Case), 188 U.S. 321 (1903); Hammer +_v._ Dagenhart, 247 U.S. 251 (1918); 3 Selected Essays on Constitutional +Law, 103, 138, 165, 295, 314, 336. Indeed, regulation of interstate +commerce by Congress may take the form of a positive adoption by it of a +regime of State regulation in the form of statutes (e.g., pilotage) or +of administrative regulations in some degree (as in the Motor Carrier +Act of 1935); or Congress may "regulate" through the device of +divestment of a subject matter of its interstate character, thus +indirectly causing State laws to apply, as was done by the Wilson Act of +1890 in respect to intoxicating liquors, or by the McCarran Act of 1945 +following the United States _v._ South-Eastern Underwriters Association, +322 U.S. 533 (1944), in respect to the insurance business. In a sense, +Congress may delegate to the States its power to regulate interstate +commerce. + +[488] 23 Stat. 31. + +[489] 32 Stat. 791. + +[490] 33 Stat. 1264. + +[491] 33 Stat. 1269. + +[492] 37 Stat. 315. + +[493] 39 Stat. 1165. + +[494] Illinois Central R. Co. _v._ McKendree, 203 U.S. 514 (1906). _See +also_ United States _v._ DeWitt, 9 Wall. 41 (1870). Of the nature of a +quarantine act is the Federal Firearms Act of 1938 (52 Stat 1250). + +[495] Champion _v._ Ames (The Lottery Case), 188 U.S. 321 (1903). + +[496] 28 Stat 963. + +[497] 143 U.S. 110 (1892). + +[498] Champion _v._ Ames (The Lottery Case), 188 U.S. 321 (1903). + +[499] 9 Wheat. 1, 227 (1824). + +[500] 114 U.S. 622, 630 (1885). + +[501] 26 Stat. 313 (1890); 37 Stat. 699 (1913), "The Webb-Kenyon Act." + +[502] 31 Stat. 188 (1900). + +[503] 45 Stat. 1084 (1929), "The Hawes-Cooper Act." + +[504] 36 Stat. 825 (1910), "The Mann Act." + +[505] 41 Stat. 324 (1919). + +[506] 47 Stat. 326 (1932). + +[507] 48 Stat. 794 (1934). + +[508] 48 Stat. 979 (1934). + +[509] 54 Stat. 686 (1940). + +[510] Hoke _v._ United States, 227 U.S. 308, 322 (1913). In Caminetti +_v._ United States, 242 U.S. 470 (1917) the act was held to apply to the +case of transportation of a woman for immoral purposes, although no +commercial motive was present; and in Cleveland _v._ United States, 329 +U.S. 14 (1946), to the transportation of a plural wife by the member of +a religious sect a tenet of which is polygamy. + +[511] United States _v._ Hill, 248 U.S. 420, 425 (1919). + +[512] 247 U.S. 251 (1918). + +[513] 39 Stat. 675 (1916). + +[514] 247 U.S. at 275. + +[515] Ibid. 271-272. + +[516] 267 U.S. 432 (1925). + +[517] 41 Stat. 324 (1919). + +[518] 267 U.S. at 436-439. _See also_ Kentucky Whip & Collar Co. _v._ +Illinois C.R. Co., 299 U.S. 334 (1937). + +[519] United States _v._ Darby, 312 U.S. 100, 116-117 (1941). + +[520] Roland Co. _v._ Walling, 326 U.S. 657, 669 (1946). + +[521] Polish Alliance _v._ Labor Board, 322 U.S. 643, 650 (1944). _Cf._ +the opinion of Chief Justice Vinson for the Court in Bus Employees _v._ +Wisconsin Board, 340 U.S. 383 (1951). + +[522] Federalist No. 32. + +[523] 9 Wheat. 1, 11, 226 (1824). + +[524] Madison, IV, Letters and Other Writings, 14-15 (Philadelphia, +1865). + +[525] 9 Wheat. 1, 203. + +[526] 9 Wheat. at 210-211. + +[527] 9 Wheat. at 13-14; _also_ ibid. 16. + +[528] 9 Wheat. 17-18, 209. + +[529] 12 Wheat. 419 (1827). + +[530] 12 How. 299 (1851). + +[531] Congressional regulation of commerce, however, does not have to be +uniform. The uniformity rule is a test of the invalidity of State +legislation affecting commerce, not the validity of Congressional +legislation regulating commerce. Clark Distilling Co. _v._ W.M.R. Co., +242 U.S. 311, 327 (1917); Currin _v._ Wallace, 306 U.S. 1, 14 (1939); +Prudential Ins. Co. _v._ Benjamin, 328 U.S. 408 (1946). + +[532] Simpson _v._ Shepard, 230 U.S. 352 (1913). + +[533] Ibid. 400-402. + +[534] McCarroll _v._ Dixie Greyhound Lines, 309 U.S. 176, 188-189 +(1940). F.D.G. Ribble's _State and National Power Over Commerce_ +(Columbia University Press, 1937) is an excellent study both of the +Court's formulas and of the arbitral character of its task in this field +of Constitutional Law. On the latter point, see especially Chapters X +and XII. The late Chief Justice Stone took repeated occasion to stress +the "balancing" and "adjusting" role of the Court when applying the +commerce clause in relation to State power. _See_ his words in South +Carolina State Highway Dept. _v._ Barnwell Bros., 303 U.S. 177, 184-192 +(1938); California _v._ Thompson, 313 U.S. 109, 113-116 (1941); Parker +_v._ Brown, 317 U.S. 341, 362-363 (1943); and Southern Pacific _v._ +Arizona, 325. U.S. 761, 766-770 (1945). _See also_ Justice Black for the +Court in United States _v._ South-Eastern Underwriters Assoc., 322 U.S. +533, 548-549 (1944). + +[535] 12 Wheat. 419 (1827). + +[536] Compare, for example, May _v._ New Orleans, 178 U.S. 496 (1900); +and the recent case of Hooven & Allison Co. _v._ Evatt, 324 U.S. 652 +(1945). In the latter case the benefits of the original package doctrine +were extended to imports from the Philippine Islands title to which did +not vest in the importer until their arrival in the United States. + +[537] Freeman _v._ Hewit, 329 U.S. 249, 251 (1946). + +[538] Philadelphia & R.R. Co. _v._ Pennsylvania (State Freight Tax +Case), 15 Wall. 232 (1873). + +[539] Headnotes. Said the Court: "The rule has been asserted with great +clearness, that whenever the subjects over which a power to regulate +commerce is asserted are in their nature national, or admit of one +uniform system or plan of regulation, they may justly be said to be of +such a nature as to require exclusive legislation by Congress. Surely +transportation of passengers or merchandise through a State, or from one +State to another, is of this nature. It is of national importance that +over that subject there should be but one regulating power, for if one +State can directly tax persons or property passing through it, or tax +them indirectly by levying a tax upon their transportation, every other +may, and thus commercial intercourse between States remote from each +other may be destroyed." 15 Wall. at 279-280, citing Cooley _v._ Port +Wardens, 12 How. 299 (1851); Gilman. _v._ Philadelphia, 3 Wall. 713 +(1866); Crandall _v._ Nevada, 6 Wall. 35, 42 (1868). + +[540] 116 U.S. 517 (1886). + +[541] Ibid. 527. + +[542] Heisler _v._ Thomas Colliery Co., 260 U.S. 245 (1922). + +[543] 262 U.S. 172 (1923). + +[544] Ibid. 178. _See also_ Diamond Match Co. _v._ Ontonagon 188 U.S. 82 +(1903). + +[545] Hope Natural Gas Co. _v._ Hall, 274 U.S. 284 (1927). _See also_ +American Manufacturing Co. _v._ St. Louis, 250 U.S. 459 (1919) in which +there was imposed a license tax on manufacture of goods computed upon +the amount of sales of the goods. + +[546] 286 U.S. 165 (1932). + +[547] Coverdale _v._ Arkansas-Louisiana Pipe Line Co., 303 U.S. 604 +(1938). + +[548] Toomer _v._ Witsell, 334 U.S. 385 (1948). + +[549] Dahnke-Walker Milling Co. _v._ Bondurant, 257 U.S. 282 (1921). +Here a Tennessee corporation, in pursuance of its practice of purchasing +grain in Kentucky to be transported to and used in its Tennessee mill, +made a contract for the purchase of wheat, to be delivered in Kentucky +on the cars of a public carrier, intending to forward it as soon as +delivery was made. It was held that the transaction was in interstate +commerce, notwithstanding the contract was made and to be performed in +Kentucky; and that the possibility that the purchaser might change its +mind after delivery and sell the grains in Kentucky or consign it to +some other place in that State did not affect the essential character of +the transaction. Interstate commerce, said the Court, "is not confined +to transportation from one State to another, but comprehends all +commercial intercourse between different States and all the component +parts of that intercourse." Ibid. 290. Followed in Lemke _v._ Farmers +Grain Co., 258 U.S. 50 (1922); and Flanagan _v._ Federal Coal Co., 267 +U.S. 222 (1925). + +[550] Eureka Pipe Line Co. _v._ Hallanan, 257 U.S. 265 (1921). + +[551] United Fuel Gas Co. _v._ Hallanan, 257 U.S. 277 (1921). + +[552] Ibid. 281. _See also_ State Tax Commission _v._ Interstate Natural +Gas Co., 284 U.S. 41 (1931) holding invalid a State privilege tax +imposed on a foreign corporation selling to distributors in the State +natural gas piped in from another State, whose only activity was the use +of a thermometer and meter and reduction of pressure to permit vendee to +draw off the gas. "The work done by the plaintiff is done upon the +flowing gas to help the delivery and seems to us plainly to be an +incident to the interstate commerce between Louisiana and Mississippi." +Ibid. 44. + +[553] 12 Wheat. 419 (1827). + +[554] Ibid. 449. + +[555] 8 Wall. 123 (1860). + +[556] Ibid. 140. + +[557] 114 U.S. 622 (1885). _See also_ Pittsburgh & S. Coal Co. _v._ +Bates, 156 U.S. 577 (1895). + +[558] 114 U.S. at 632-633. + +[559] Ibid. 634. + +[560] _See_ Wagner _v._ Covington, 251 U.S. 95 (1919). + +[561] Brimmer _v._ Rebman, 138 U.S. 78 (1891); Patapsco Guano Co. _v._ +Board of Agriculture, 171 U.S. 345 (1898); Red "C" Oil Mfg. Co. _v._ +Board of Agriculture, 222 U.S. 380 (1912); Savage _v._ Jones, 225 U.S. +501 (1912); Foote & Co. _v._ Stanley, 232 U.S. 494 (1914). + +[562] Standard Oil Co. _v._ Graves, 249 U.S. 389 (1919); Askren _v._ +Continental Oil Co., 252 U.S. 444 (1920); Bowman _v._ Continental Oil +Co., 256 U.S. 642 (1921); Texas Co. _v._ Brown, 258 U.S. 466 (1922). + +[563] Sonneborn Bros. _v._ Cureton, 262 U.S. 506 (1923). Reviewing +cases. _Cf._ Phipps _v._ Cleveland Refining Co., 261 U.S. 449 (1923). + +[564] _See_ pp. 178, 238-239. + +[565] Eastern Air Transport, Inc. _v._ South Carolina Tax Comm'n., 285 +U.S. 147, 153 (1932). + +[566] Rast _v._ Van Deman and Lewis, 240 U.S. 342 (1916). _See also_ +Tanner _v._ Little, 240 U.S. 369 (1916), and Pitney _v._ Washington, 240 +U.S. 387 (1916) upholding a Washington statute imposing a prohibitive +license tax upon merchants using trading stamps or coupons redeemable in +merchandise. + +[567] Howe Machine Co. _v._ Gage, 100 U.S. 676 (1880); Emert _v._ +Missouri, 156 U.S. 296 (1895); Singer Sewing Machine Co. _v._ Brickell, +233 U.S. 304 (1914); Wagner _v._ City of Covington, 251 U.S. 95 (1919); +Caskey Baking Co. _v._ Virginia, 313 U.S. 117 (1941). + +[568] 197 U.S. 60 (1905). _See also_ Armour Packing Co. _v._ Lacy, 200 +U.S. 226 (1906). + +[569] 91 U.S. 275 (1876); _see also_ Ward _v._ Maryland, 12 Wall. 418 +(1871). + +[570] _See_ Cook _v._ Pennsylvania, 97 U.S. 566 (1878); Guy _v._ +Baltimore, 100 U.S. 434 (1880); Tiernan _v._ Rinker, 102 U.S. 123 +(1880); Howe Machine Co. _v._ Gage, 100 U.S. 676 (1880); Webber _v._ +Virginia, 103 U.S. 344 (1881); Walling _v._ Michigan, 116 U.S. 446 +(1886); Darnell & Son Co. _v._ Memphis, 208 U.S. 113 (1908), where was +held void a property tax on lumber which discriminated in favor of the +local product: Bethlehem Motor Corp. _v._ Flynt, 256 U.S. 421 (1921), +where a license tax on distributors was held to be invalidated by the +provision made for a rebate under conditions that could be met only by +manufacturers within the taxing State. + +[571] Coe _v._ Errol, 116 U.S. 517 (1886). + +[572] Ibid. 525. + +[573] General Oil Co. _v._ Crain, 209 U.S. 211 (1908). + +[574] American Steel & Wire Co. _v._ Speed, 192 U.S. 500 (1904); Bacon +_v._ Illinois, 227 U.S. 504 (1913); Susquehanna Coal Co. _v._ South +Amboy, 228 U.S. 665 (1913); Minnesota _v._ Blasius, 290 U.S. 1 (1933); +Independent Warehouses _v._ Scheele, 331 U.S. 70 (1947). + +[575] Nashville, C. & St. L.R. Co. _v._ Wallace, 288 U.S. 249 (1933). + +[576] Edelman _v._ Boeing Air Transport, Inc., 289 U.S. 249 (1933). The +Court also upheld a tax on the sale of gasoline for use by an air +transport line in conducting interstate transportation across the State +in Eastern Air Transport, Inc. _v._ South Carolina Tax Comm., 285 U.S. +147 (1932). + +[577] Southern Pacific Co. _v._ Gallagher, 306 U.S. 167 (1939). + +[578] Pacific Telephone & Telegraph Co. _v._ Gallagher, 306 U.S. 182 +(1939). + +[579] Southern Pacific Co. _v._ Gallagher, 306 U.S. 167 (1939), as +formulated in the headnotes; _see also_ Monamotor Oil Co. _v._ Johnson, +292 U.S. 86 (1934). + +[580] Bingaman _v._ Golden Eagle Western Lines, 297 U.S. 626 (1936); +McCarroll _v._ Dixie Greyhound Lines, 309 U.S. 176 (1940). In Helson +_v._ Kentucky, 279 U.S. 245 (1929), the Court held that gasoline +purchased in Illinois and used in an Illinois-Kentucky ferry could not +be taxed by Kentucky, being, as it were, a part of the ferry, an +instrument of commerce between the two States. _See also_ Kelley _v._ +Rhoads, 188 U.S. 1 (1903); Champlain Realty Co. _v._ Brattleboro, 260 +U.S. 366 (1922); Hughes Bros. Timber Co. _v._ Minnesota, 272 U.S. 469 +(1926); Carson Petroleum Co. _v._ Vial, 279 U.S. 95 (1929). + +[581] 120 U.S. 489 (1887). + +[582] Corson _v._ Maryland, 120 U.S. 502 (1887); Asher _v._ Texas, 128 +U.S. 129 (1888); Stoutenburgh _v._ Hennick, 129 U.S. 141 (1889); Brennan +_v._ Titusville, 153 U.S. 289 (1894); Stockard _v._ Morgan, 185 U.S. 27 +(1902); Crenshaw _v._ Arkansas, 227 U.S. 389 (1913); Rogers _v._ +Arkansas, 227 U.S. 401 (1913); Stewart _v._ Michigan, 232 U.S. 665 +(1914); Western Oil Refining Co. _v._ Lipscomb, 244 U.S. 346 (1917); +Cheney Bros. _v._ Massachusetts, 246 U.S. 147 (1918). + +[583] Caldwell _v._ North Carolina, 187 U.S. 622 (1903). + +[584] Norfolk & W.R. Co. _v._ Sims, 191 U.S. 441 (1903). + +[585] Rearick _v._ Pennsylvania, 203 U.S. 507 (1906); Dozier _v._ +Alabama, 218 U.S. 124 (1910); Davis _v._ Virginia, 236 U.S. 697 (1915). + +[586] 203 U.S. at 512. + +[587] Real Silk Hosiery Mills _v._ Portland, 268 U.S. 325 (1925). + +[588] Heyman _v._ Hays, 236 U.S. 178 (1915). _See also_ Hump Hairpin Co. +_v._ Emmerson, 258 U.S. 290 (1922), holding that business done by a +corporation through orders which were approved in a State where its +tangible property and offices were located, but which were first taken +by its salesmen in other States, was interstate, although the tax +involved was sustained. + +[589] Ficklen _v._ Shelby County Taxing District, 145 U.S. 1, 21 (1892). + +[590] New York ex rel. Hatch _v._ Reardon, 204 U.S. 152 (1907); _Cf._ +Nathan _v._ Louisiana, 8 How. 73 (1850). + +[591] Ware _v._ Mobile County, 209 U.S. 405 (1908). _See also_ Brodnax +_v._ Missouri, 219 U.S. 285 (1911). + +[592] 222 U.S. 210 (1911). + +[593] 233 U.S. 16 (1914). + +[594] Ibid. 23. _See also_ Superior Oil _v._ Mississippi ex rel. Knox, +280 U.S. 390 (1930). + +[595] Chassaniol _v._ Greenwood, 291 U.S. 584 (1934). + +[596] Wiloil Corp. _v._ Pennsylvania, 294 U.S. 169, 173 (1935); _see +also_ Minnesota _v._ Blasius, 290 U.S. 1 (1933). + +[597] 309 U.S. 33 (1940). + +[598] Best & Co. _v._ Maxwell. 311 U.S. 454, 455 (1940). + +[599] 300 U.S. 577 (1937). _Cf._ Hinson _v._ Lott, 8 Wall. 148 (1869). +Here was involved a tax of fifty cents per gallon on all spiritous +liquors brought into the State. Comparing the tax with a similar one +imposed upon liquors manufactured in the State, the Court upheld the +statute. "The taxes were complementary and were intended to effect +equality." + +[600] 300 U.S. at 583-584. Some subsequent use tax cases in the +Henneford pattern are the following: Bacon & Sons _v._ Martin was +decided in a unanimous _per curiam_ opinion. It involved a Kentucky +statute which imposed a tax "on the 'receipt' of cosmetics in the State +by any Kentucky retailer" equal to twenty per cent of the invoice price +plus transportation cost, if any to the Kentucky dealer. The Kentucky +court held that "the imposition of the tax against the retailer is not +on the act of receiving the cosmetics, but on the sale and use thereof, +after the retailer has received them." On this interpretation the +Supreme Court sustained the tax. Obviously, other things being equal, +there is little difference between a tax on receiving and a tax on +possession a moment later. 305 U.S. 380 (1939). In Felt & Tarrant +Manufacturing Co. _v._ Gallagher, 306 U.S. 62 (1939), a California use +tax was upheld applicable to a nonresident corporation which solicited +orders from California purchasers through agents for whom it hired +offices in the State and took orders subject to the vendor's approval. +In Nelson _v._ Sears, Roebuck & Company and Nelson _v._ Montgomery Ward +& Company, 312 U.S. 359 and 373 (1941) it was held that a foreign +corporation which maintained retail stores in Iowa could be validly +required to collect an Iowa use tax in respect of mail orders sent by +Iowa purchasers to out-of-state branches of the corporation and filled +by direct shipment by mail or common carrier from those branches to the +purchasers. In General Trading Company _v._ State Tax Commission, 322 +U.S. 335 (1944), also involving the Iowa tax, it was held that a company +carrying on no operations in Iowa other than the solicitation of orders +by traveling salesmen was liable for collection of the tax on goods sold +to Iowa residents, even though the corporation was not licensed to do +business in the State and the orders were forwarded for acceptance to +Minnesota where they were filled by direct shipment to Iowa customers. + +[601] 309 U.S. 33 (1940). + +[602] Ibid. 53-54. + +[603] Ibid. 57, citing Ficklen _v._ Shelby County Taxing District, 145 +U.S. 1 (1892); Howe Machine Co. _v._ Gage, 100 U.S. 676 (1880); and +Wagner _v._ Covington, 251 U.S. 95 (1919). In the first it was held that +the Robbins case did not apply to a firm of agents and brokers +maintaining an office and samples throughout the year in the taxing +district. The other two cases were totally irrelevant. + +[604] 309 U.S. 70 and 430. + +[605] Ibid. 414. + +[606] 322 U.S. 327 (1944). + +[607] Ibid. 330. + +[608] Ibid. 332. + +[609] 327 U.S. 416 (1946). + +[610] Ibid. 417-418. + +[611] Ibid. 435. + +[612] Memphis Steam Laundry _v._ Stone, 342 U.S. 389 (1952). + +[613] Norton Co. _v._ Dept. of Revenue, 340 U.S. 534 (1951), although +decided by a closely divided Court, further confirms this impression. + +[614] 9 Wheat. 1, 217-219 (1824). + +[615] Smith _v._ Turner (Passenger Cases), 7 How. 283 (1849). + +[616] Henderson _v._ Mayor of New York, 92 U.S. 259 (1876); New York +_v._ Compagnie Generale Transatlantique, 107 U.S. 59 (1883). + +[617] 6 Wall. 35 (1868). + +[618] Ibid. 49. + +[619] 114 U.S. 196 (1885). + +[620] Ibid. 203. + +[621] _See_ Covington & C. Bridge Co. _v._ Kentucky, 154 U.S. 204 +(1894); _also_ Edwards _v._ California, 314 U.S. 160 (1941), the +decision in which represents the exact inverse of that in the Crandall +Case, being based by the majority on the commerce clause, while several +of the Justices preferred to put it on the broader grounds invoked by +Justice Miller in the Crandall Case. + +[622] Western Union Telegraph Company _v._ Texas, 105 U.S. 460 (1882) +State Freight Tax Case, 15 Wall. 232 (1873) and Pensacola Telegraph Co. +_v._ Western Union Telegraph Co., 96 U.S. 1 (1878) were the precedents +principally relied on. + +[623] 8 Wall. 168 (1869). + +[624] Ibid. 181. + +[625] Ibid. 182. + +[626] 15 Wall. 232, 233-234, 278-279 (1873). + +[627] 127 U.S. 640 (1888). + +[628] Ibid. 645. + +[629] Crutcher _v._ Kentucky, 141 U.S. 47 (1891). + +[630] Ibid. 57. + +[631] 266 U.S. 555 (1925). + +[632] 268 U.S. 203 (1925); followed in Cudahy Packing Co. _v._ Hinkle, +278 U.S. 460 (1929). _Cf._, however, Western Live Stock _v._ Bureau of +Revenue, 303 U.S. 250, 255 (1938). + +[633] Anglo-Chilean Nitrate Sales Corp. _v._ Alabama, 288 U.S. 218 +(1933). + +[634] Cooney _v._ Mountain States Telephone & Telegraph Co., 294 U.S. +384 (1935). + +[635] Fisher's Blend Station _v._ State Tax Commission, 297 U.S. 650, +656 (1936). + +[636] Puget Sound Stevedoring Co. _v._ Tax Commission of Washington, 302 +U.S. 90 (1937). + +[637] Adams Mfg. Co. _v._ Storen, 304 U.S. 307 (1938). + +[638] McCarroll _v._ Dixie Greyhound Lines, 309 U.S. 176 (1940). _See +also_ the following cases in which the Court found a tax to be an +unconstitutional interference with the interstate commerce privilege: +Tax on maintenance of office in Pennsylvania for use of stockholders, +officers, employees, and agents of railroad not operating in +Pennsylvania but a link in a line operating therein, Norfolk & W.R. Co. +_v._ Pennsylvania, 136 U.S. 114 (1890); license tax on sale of liquor as +applied to a sale out of State by mail, Heyman _v._ Hays, 236 U.S. 178 +(1915); tax on pipe lines transporting oil or gas produced in State but +which might pass out of State, Eureka Pipe Line Co. _v._ Hallanan, 257 +U.S. 265 (1921); United Fuel Gas Co. _v._ Hallanan, 257 U.S. 277 (1921); +Kentucky tax on gasoline purchased in Illinois and used in an +Illinois-Kentucky ferry, Helson & Randolph _v._ Kentucky, 279 U.S. 245 +(1929); tax laid on privilege of operating a bus in interstate commerce +because not imposed solely as compensation for use of highways or to +defray expenses of regulating motor traffic, Interstate Transit, Inc. +_v._ Lindsey, 283 U.S. 183 (1931); tax on gas pipe line whose only +activity in State was the use of a thermometer and reduction of pressure +to permit a vendee to draw off gas, State Tax Commission _v._ Interstate +Natural Gas Co., 284 U.S. 41 (1931)--but see East Ohio Gas Co. _v._ Tax +Commission, 283 U.S. 465 (1931); gasoline tax imposed per gallon of +gasoline imported by interstate carriers as fuel for use in their +vehicles within the State as well as in their interstate travel, +Bingaman _v._ Golden Eagle Western Lines, 297 U.S. 626 (1936). _See +also_, for reiteration of the basic rule that the commerce clause +forbids States to tax the privilege of engaging in interstate commerce, +Gwin, White & Prince _v._ Henneford, 305 U.S. 434, 438-439 (1939). In +California _v._ Thompson, 313 U.S. 109 (1941), the Court, overruling Di +Santo _v._ Pennsylvania, 273 U.S. 34 (1927), sustained, as not a +"revenue measure," but "a measure to safeguard the traveling public by +motor vehicle," who are "particularly unable" to protect themselves +against overreaching by those "engaged in a business notoriously subject +to abuses," a California statute requiring that agents for this type of +transportation take out a license for both their interstate and their +intrastate business. + +[639] 216 U.S. 1 (1910). _Cf._ Osborne _v._ Florida, 164 U.S. 650 +(1897), involving an express business; in Pullman Company _v._ Adams, +189 U.S. 420 (1903); and in Allen _v._ Pullman's Palace Car Co., 191 +U.S. 171 (1903). Here State taxes levied on the local business of +companies engaged also in interstate commerce were sustained "on the +assumption" that the companies in question were free to abandon their +local business. + +[640] _See also_ Pullman Co. _v._ Kansas ex rel. Coleman, 216 U.S. 56 +(1910); Ludwig _v._ Western Union Teleg. Co., 216 U.S. 146 (1910); +Atchison, T. & S.F.R. Co. _v._ O'Connor, 223 U.S. 280, 285 (1912). + +[641] 245 U.S. 178 (1917). _Cf._ Baltic Mining Co. _v._ Massachusetts, +231 U.S. 68 (1914); Kansas City Ry. _v._ Kansas, 240 U.S. 227 (1916); +and Kansas City, M. & B.R. Co. _v._ Stiles, 242 U.S. 111 (1916). In each +of these a tax like that involved in Looney _v._ Crane was sustained, in +the first two because the statute set a maximum limit to the tax; in the +third because the amount collected under the act was held to be +"reasonable." The ideology of these decisions is clearly opposed to that +of the cases treated in the text. The rule in Looney _v._ Crane Co. was +held not applicable in the case of a West Virginia corporation doing +business in Illinois and owning practically all of its property there. +An Illinois tax on the local business, which was measured by the total +capitalization of the company was sustained, it being shown further that +the tax was little more than it would have been if levied at the same +rate directly on the property of the company that was in Illinois. Hump +Hairpin Mfg. Co. _v._ Emmerson, 258 U.S. 290 (1922). + +[642] 246 U.S. 135 (1918). _See also_ Locomobile Co. of America _v._ +Massachusetts, 246 U.S. 146 (1918); Cheney Brothers Co. _v._ +Massachusetts, 246 U.S. 147 (1918); Union Pacific R.R. Co. _v._ Pub. +Service Comm., 248 U.S. 67 (1918). + +[643] 246 U.S. at 141. + +[644] 277 U.S. 163 (1928). + +[645] Ibid. 171. + +[646] 294 U.S. 384 (1935). + +[647] 297 U.S. 403 (1936). + +[648] Ibid. 415. Headnote 6. + +[649] 8 Wall. 168, 181 (1869). _See also_ Bank of Augusta _v._ Earle, 13 +Pet. 519 (1839); and Security Mut. L. Ins. Co. _v._ Prewitt, 202 U.S. +246 (1906). + +[650] _See_ Atlantic Lumber Co. _v._ Commissioner, 298 U.S. 553 (1936); +Southern Natural Gas Corp. _v._ Alabama, 301 U.S. 148 (1937); Atlantic +Refining Co. _v._ Virginia, 302 U.S. 22 (1937); Coverdale _v._ +Arkansas-Louisiana Pipe Line Co., 303 U.S. 604 (1938); Ford Motor Co. +_v._ Beauchamp, 308 U.S. 331 (1939); Treasury of Indiana _v._ Wood +Corp., 313 U.S. 62 (1941); Wheeling Steel Corp. _v._ Glander, 337 U.S. +562, 571 (1949); _Cf._ however, James _v._ Dravo Contracting Co., 302 +U.S. 134 (1937); Memphis Natural Gas Co. _v._ Stone, 335 U.S. 80, 85-86 +(1948). + +[651] Philadelphia & R.R. Co. _v._ Pennsylvania (State Freight Tax +Case), 15 Wall. 232 (1873). + +[652] Prudential Ins. Co. _v._ Benjamin, 328 U.S. 408, 418 (1946). + +[653] 12 Wheat. 419 (1827). + +[654] Philadelphia & R.R. Co. _v._ Pennsylvania, 15 Wall. 284 (1873). + +[655] Philadelphia & S. Mail S.S. Co. _v._ Pennsylvania, 122 U.S. 326 +(1887). + +[656] Western Union Tel. Co. _v._ Massachusetts, 125 U.S. 530 (1888). + +[657] Ibid. 547. + +[658] _See_ Railroad Co. _v._ Peniston, 18 Wall. 5, 30-31 (1873). + +[659] Pullman's Palace Car Co. _v._ Pennsylvania, 141 U.S. 18 (1891). + +[660] Ibid. 26. + +[661] 165 U.S. 194; upon rehearing 166 U.S. 185 (1897). + +[662] 166 U.S. at 220. + +[663] _See_ Justice Holmes' language in Galveston, Harrisburg, & S.A. +Ry. Co. _v._ Texas, 210 U.S. 217, 225, 227 (1908). _See also_ Cudahy +Packing Co. _v._ Minnesota 246 U.S. 450 (1918); and Pullman Co. _v._ +Richardson, 261 U.S. 330 (1923); and Virginia _v._ Imperial Coal Sales +Co., 293 U.S. 15 (1934). + +[664] Pullman's Palace Car Co. _v._ Pennsylvania, 141 U.S. 18 (1891). + +[665] Pittsburgh, C.C. & St. L.R. Co. _v._ Backus, 154 U.S. 421 (1894); +Cleveland, C.C. & St. L.R. Co. _v._ Backus, 154 U.S. 439 (1894). + +[666] Western Union Teleg. Co. _v._ Taggart, 163 U.S. 1 (1896). _See +also_ Western Union Teleg. Co. _v._ Massachusetts, 125 U.S. 530 (1888). + +[667] Adams Express Co. _v._ Ohio, 165 U.S. 194 (1897), upon rehearing +166 U.S. 185 (1897). + +[668] Great Northern Railway Co. _v._ Minnesota, 278 U.S. 503 (1929). + +[669] Nashville, C. & St. L. Railway _v._ Browning, 310 U.S. 362 (1910). + +[670] Ibid. 366, citing Union Tank Line Co. _v._ Wright, 249 U.S. 275 +(1919); Wallace _v._ Hines, 253 U.S. 66 (1920); Southern R. Co. _v._ +Kentucky, 274 U.S. 76 (1927). + +[671] Atlantic Lumber Co. _v._ Commissioner, 298 U.S. 553 (1936). _Cf._ +Alpha Portland Cement Co. _v._ Massachusetts, 268 U.S. 203 (1925). + +[672] 142 U.S. 217 (1891). + +[673] Ibid. 227-228. + +[674] Citing Pickard _v._ Pullman Southern Car Co., 117 U.S. 34 (1886); +Leloup _v._ Port of Mobile, 127 U.S. 640 (1888); Crutcher _v._ Kentucky, +141 U.S. 47 (1891); Philadelphia & S. Mail Steamship Co. _v._ +Pennsylvania, 122 U.S. 326 (1887). + +[675] Galveston, Harrisburg & S.A.R. Co. _v._ Texas, 210 U.S. 217 +(1908). + +[676] Ibid. 226. + +[677] Postal Telegraph Cable Co. _v._ Adams, 155 U.S. 688, 697 (1895). +_See also_ Illinois Central R. Co. _v._ Minnesota, 309 U.S. 157 (1940), +in which was sustained a five percent gross earnings tax on all +railroads operating in the State, payable in lieu of all other taxes and +found to have "a fair relation to the property employed in the State." + +[678] New Jersey Bell Telephone Co. _v._ State Bd. of Taxes & +Assessments, 280 U.S. 338 (1930). + +[679] Bass, Ratcliff & Gretton _v._ State Tax Com., 266 U.S. 271 (1924). + +[680] Matson Navigation Co. _v._ State Board, 297 U.S. 441 (1936). _See +also_ International Shoe Co. _v._ Shartel, 279 U.S. 429 (1929). + +[681] Ford Motor Co. _v._ Beauchamp, 308 U.S. 331 (1939). + +[682] International Harvester Co. _v._ Evatt, 329 U.S. 416 (1947). + +[683] Galveston, Harrisburg & San Antonio R. Co. _v._ Texas, 210 U.S. +217 (1908). + +[684] Wallace _v._ Hines, 253 U.S. 66 (1920). + +[685] _See_ pp. 194, 202. _See also_ Interstate Oil Pipe Line Co. _v._ +Stone, 337 U.S. 662 (1949) for an extensive review and evaluation of +cases. + +[686] Illinois Central R. Co. _v._ Minnesota, 309 U.S. 157 (1940). _See +also_ Wisconsin and Michigan Ry. _v._ Powers, 191 U.S. 379 (1903); +United States Express Co. _v._ Minnesota, 223 U.S. 335 (1912). _See_ +note 13 to Justice Rutledge's opinion in Freeman _v._ Hewit, 329 U.S. at +pp. 265-266. + +[687] Western Live Stock _v._ Bureau of Revenue, 303 U.S. 250 (1938). +_See also_ United States Express Co. _v._ Minnesota, 223 U.S. 335 +(1912); Dept. of Treasury of Indiana _v._ Wood Corp., 313 U.S. 62 +(1941); Dept. of Treasury of Indiana _v._ Mfg. Co., 313 U.S. 252 (1941); +Harvester Co. _v._ Dept. of Treasury, 322 U.S. 340 (1944). + +[688] Western Live Stock _v._ Bureau of Revenue, 303 U.S. 250 (1938). + +[689] Meyer _v._ Wells, Fargo & Co., 223 U.S. 298 (1912); _also_ the +following note. + +[690] Philadelphia & S. Mail S.S. Co. _v._ Pennsylvania, 122 U.S. 326 +(1887); Ratterman _v._ Western Union Teleg. Co., 127 U.S. 411 (1888); +Western Union Teleg. Co. _v._ Alabama Board of Assessment (Seay), 132 +U.S. 472 (1889); Adams Mfg. Co. _v._ Storen, 304 U.S. 307 (1938); Gwin, +White & Prince _v._ Henneford, 305 U.S. 434 (1939). _Cf._ Fargo _v._ +Michigan (Fargo _v._ Stevens), 121 U.S. 230 (1887), as explained in +Western Live Stock _v._ Bureau of Revenue, 303 U.S. 250 (1938). + +[691] Lockhart, Gross Receipts Taxes on Interstate Transportation and +Communication, 57 Harvard L. Rev. 40, 65, 66 (1943); Galveston, H. & +S.A.R. Co. _v._ Texas, 210 U.S. 217 (1908); New Jersey Bell Teleph. Co. +_v._ State Bd. of Taxes and Assessments, 280 U.S. 338 (1930). But _Cf._ +Nashville, C. and St. L. Ry. _v._ Browning, 310 U.S. 362 (1940). In both +the Galveston and New Jersey Telephone Company cases, although the +taxable events all occurred within the taxing State, the possibility of +multiple taxation was nevertheless present. _See also_ Puget Sound +Stevedoring Co. _v._ State Tax Commission, 302 U.S. 90 (1937), the +decision in which might have been rested upon the clause of the +Constitution forbidding the States to tax exports. _See also_ Richfield +Oil Corp. _v._ State Board of Equalization, 329 U.S. 69 (1946). + +[692] Fisher's Blend Station _v._ State Tax Comm., 297 U.S. 650 (1936); +Western Live Stock _v._ Bureau of Revenue, 303 U.S. 250 (1938). + +[693] _See_ p. 193. + +[694] _See_ pp. 150-160. + +[695] _See_ p. 189. + +[696] 303 U.S. 250 (1938). + +[697] Ibid. 254. + +[698] Ibid. 255-256. + +[699] 305 U.S. 434 (1939). + +[700] Ibid. 439-440. + +[701] 305 U.S. at 455 (1939). + +[702] _See_ McCarroll _v._ Dixie Greyhound Lines, Inc., 309 U.S. 176, +188-189 (1940). + +[703] Freeman _v._ Hewit, 329 U.S. 249 (1946). + +[704] 329 U.S. 249. + +[705] The Court relied particularly on Adams Mfg. Co. _v._ Storen, 304 +U.S. 307 (1938) in which the multiple taxation test had been used. + +[706] Justice Black dissented without opinion. Justice Douglas, speaking +also for Justice Murphy, contended that the sale had been local, and +that the only interstate agency employed had been the mails, an argument +which squares badly with the attitude of the same Justices in United +States _v._ South-Eastern Underwriters Assoc., 322 U.S. 533 (1944). + +[707] 330 U.S. 422 (1947), reaffirming Puget Sound Stevedoring Co. _v._ +Tax Comm., 302 U.S. 90 (1937). + +[708] 330 U.S. at 433. + +[709] Justices Murphy, Douglas, and Rutledge thought the decision +correct as to receipts from foreign commerce. Speaking for them, Justice +Douglas made an effort to resurrect Maine _v._ Grand Trunk R. Co., 142 +U.S. 217 (1891). Justice Black dissented without opinion. + +[710] 334 U.S. 653. + +[711] Ibid. 663, citing Western Live Stock _v._ Bureau of Revenue, 303 +U.S. 250 (1938); and Ratterman _v._ Western Union Teleg. Co., 127 U.S. +411 (1888). + +[712] 335 U.S. 80. + +[713] 337 U.S. 662, 666, 677-678, 680. + +[714] _See supra_, pp. 196, 204-207. + +[715] 247 U.S. 321 (1918). + +[716] Ibid. 328-329. + +[717] Shaffer _v._ Carter, 252 U.S. 37 (1920). + +[718] Underwood Typewriter Co. _v._ Chamberlain, 254 U.S. 113 (1920); +Bass, Ratcliff & Gretton _v._ State Tax Commission, 266 U.S. 271 (1924). + +[719] Hans Rees' Sons _v._ North Carolina, 283 U.S. 123, 132, 133 +(1931). In this case a North Carolina tax was assessed on the income of +a New York corporation, which bought leather, manufactured it in North +Carolina, and sold its products at wholesale and retail in New York. The +Court observed: "The difficulty of making an exact apportionment is +apparent and hence, when the State has adopted a method not +intrinsically arbitrary, it will be sustained until proof is offered of +an unreasonable and arbitrary application in particular cases." The +decisions in the Underwood and Bass cases, _supra_, "are not authority +for the conclusion that where a corporation manufactures in one State +and sells in another, the net profits of the entire transaction, as a +unitary enterprise, may be attributed, regardless of evidence, to either +State." + +[720] Atlantic Coast Line _v._ Daughton, 262 U.S. 413 (1923). + +[721] Matson Nav. Co. _v._ State Board, 297 U.S. 441 (1936). _See also_ +Butler Bros. _v._ McColgan, 315 U.S. 501 (1942), where the tax was +sustained under the Fourteenth Amendment. + +[722] Memphis Gas Co. _v._ Beeler, 315 U.S. 649 (1942). + +[723] Ibid. 656-657 + +[724] Spector Motor Service _v._ O'Connor, 340 U.S. 602 (1951). + +[725] 114 U.S. 196 (1885). + +[726] Hays _v._ Pacific Mail S.S. Co., 17 How. 596 (1855). + +[727] Packet Co. _v._ Keokuk, 95 U.S. 80 (1877); _see also_ +Transportation Co. _v._ Parkersburg, 107 U.S. 691 (1883). + +[728] Ayer & L. Tie Co. _v._ Kentucky, 202 U.S. 409 (1906). For a resume +of the rules for taxing vessels _see_ Northwest Airlines _v._ Minnesota, +322 U.S. 292, 314-315 (1944), note 2. + +[729] Old Dominion S.S. Co. _v._ Virginia, 198 U.S. 299 (1905): a vessel +enrolled in New York at domicile of owner, but operating wholly in +Virginia, was held taxable in Virginia. + +[730] 336 U.S. 169 (1949). + +[731] Northwest Airlines _v._ Minnesota, 322 U.S. 292 (1944). + +[732] He also invoked New York Central and H.R.R. Co. _v._ Miller, 202 +U.S. 584 (1906), where although 12 to 64 per cent of the rolling stock +of the railroad was outside of New York throughout the tax year, New +York was nevertheless allowed to tax it all because no part was in any +other State throughout the year. The case is atypical, a constitutional +sport; _cf._ Union Refrigerator Transit Co. _v._ Kentucky, 199 U.S. 194 +(1905). + +[733] 322 U.S. at 301-302. + +[734] "The apportionment theory is a mongrel one, a cross between desire +not to interfere with State taxation and desire at the same time not +utterly to crush out interstate commerce. It is a practical, but rather +illogical, device to prevent duplication of tax burdens on vehicles in +transit. It is established in our decisions and has been found more or +less workable with more or less arbitrary formulae of apportionment. +Nothing either in theory or in practice commends it for transfer to air +commerce."--Ibid. 306. + +[735] Ibid. 308. + +[736] Pullman's Palace Car Co. _v._ Pennsylvania, 141 U.S. 18 (1891). + +[737] 322 U.S. 309. + +[738] 235 U.S. 610 (1915). + +[739] Ibid. 622. + +[740] Hendrick _v._ Maryland, 235 U.S. 610 (1915). + +[741] Kane _v._ New Jersey, 242 U.S. 160 (1916). + +[742] Morf _v._ Bingaman, 298 U.S. 407 (1936). + +[743] Ingels _v._ Morf, 300 U.S. 290 (1937). + +[744] Clark _v._ Poor, 274 U.S. 554 (1927); Hicklin _v._ Coney, 290 U.S. +109 (1933). + +[745] Interstate Busses Corp. _v._ Blodgett, 276 U.S. 245 (1928); +Continental Baking Co. _v._ Woodring, 286 U.S. 352 (1932). + +[746] Aero Mayflower Transit Co. _v._ Georgia Pub. Serv. Commission, 295 +U.S. 285 (1935). + +[747] Interstate Transit _v._ Lindsey, 283 U.S. 183 (1931). _Cf._ Sprout +_v._ South Bend, 277 U.S. 163 (1928). + +[748] _See_ Dixie Ohio Express Co. _v._ State Rev. Comm., 306 U.S. 72 +(1939); _also_ Clark _v._ Paul Gray, Inc., 306 U.S. 583 (1939); Aero +Mayflower Transit Co. _v._ Board of R.R. Commrs., 332 U.S. 495, 503-504 +(1947). Here was sustained a State statute imposing a flat tax of $10 +annually upon each vehicle operated by a motor carrier over the State's +highways, and a fee of one half of one per cent of the carrier's gross +operating revenue from its operations within the State, with an annual +minimum of $15 per vehicle, in consideration of the use of the highways +and in addition to all other motor vehicle license fees and taxes. This +was held, as applied to a carrier engaged solely in interstate commerce, +not to burden such commerce unconstitutionally, although the proceeds +went into the State's general fund subject to appropriation for other +than highway purposes. (Opinion by Rutledge, J., all concurring.) While +a "State may not discriminate against or exclude such interstate traffic +generally in the use of its highways, * * * [it is not] required to +furnish those facilities to it free of charge or indeed on equal terms +with other traffic not inflicting similar destructive effects. * * * +Interstate traffic equally with intrastate may be required to pay a fair +share of the cost and maintenance reasonably related to the use made of +the highways." Ibid., headnote 6. + +[749] 339 U.S. 542 (1950). + +[750] Ibid. 561. + +[751] Justice Roberts for the Court in Great Northern R. Co. _v._ +Washington, 300 U.S. 154, 159-161 (1937). + +[752] Charlotte, C. & A.R. Co. _v._ Gibbes, 142 U.S. 386 (1892); New +York ex rel. New York Electric Lines Co. _v._ Squire, 145 U.S. 175, 191 +(1892). + +[753] Atlantic & P. Teleg. Co. _v._ Philadelphia, 190 U.S. 160 (1903); +Mackay Teleg. & Cable Co. _v._ Little Rock, 250 U.S. 94, 99 (1919). + +[754] Western U. Teleg. Co. _v._ New Hope, 187 U.S. 419, 425 (1903); +Pure Oil Co. _v._ Minnesota, 248 U.S. 158, 162 (1918). + +[755] New Mexico ex rel. McLean _v._ Denver & R.G.R. Co., 203 U.S. 38, +55 (1906). _Cf._ Red "C" Oil Mfg. Co. _v._ Board of Agriculture, 222 +U.S. 380, 393 (1912); Western U. Teleg. Co. _v._ New Hope, 187 U.S. 419 +(1903). + +[756] Brimmer _v._ Rebman, 138 U.S. 78, 83 (1891); Postal Teleg. & Cable +Co. _v._ Taylor, 192 U.S. 64 (1904); Pure Oil Co. _v._ Minnesota, 248 +U.S. 158, 162 (1918). + +[757] Atlantic & P. Teleg. Co. _v._ Philadelphia, 190 U.S. 160, 164 +(1903); Postal Teleg. Cable Co. _v._ Taylor, 192 U.S. 64, 69 (1904); +Foote & Co. _v._ Stanley, 232 U.S. 494, 503, 504 (1914). + +[758] Foote & Co. _v._ Stanley, 232 U.S. 494, 505 (1914); Lugo _v._ +Suazo, 59 F. (2d) 386 (1932). + +[759] Western U. Teleg. Co. _v._ New Hope, 187 U.S. 419, 425 (1903); +Foote & Co. _v._ Stanley, 232 U.S. 494, 507 (1914). + +[760] Postal Teleg. Cable Co. _v._ New Hope, 192 U.S. 55 (1904); Foote & +Co. _v._ Stanley, 232 U.S. 494, 508 (1914). + +[761] 10 Stat. 112. Sustained in Pennsylvania _v._ Wheeling & Belmont +Bridge Co., 18 How. 421 (1856). + +[762] Pennsylvania _v._ Wheeling & Belmont Bridge Co., 13 How. 518 +(1852). + +[763] Transportation Co. _v._ Parkersburg, 107 U.S. 691, 701 (1883). + +[764] 322 U.S. 533 (1944). + +[765] 59 Stat. 33 (1945). + +[766] 328 U.S. 408 (1946). + +[767] Ibid. 429-430, 434-435. + +[768] _See_ pp. 163-172. + +[769] 9 Wheat. 1 (1824). + +[770] Ibid. 203. + +[771] 12 Wheat. 419 (1827). + +[772] Ibid. 443-444. + +[773] _Cf._ 12 Wheat. at 439-440. + +[774] 11 Pet. 102 (1837). + +[775] Smith _v._ Turner (Passenger Cases), 7 How. 283 (1849). + +[776] Henderson _v._ New York, 92 U.S. 259 (1876). + +[777] Ibid. 272. + +[778] Chy Lung _v._ Freeman, 92 U.S. 275 (1876). + +[779] Compagnie Francaise de Navigation _v._ Bd. of Health, 186 U.S. +380, 398, (1902). _See also_ Morgan's L. & T.R.S.S. Co. _v._ Bd. of +Health, 118 U.S. 455 (1886); Louisiana _v._ Texas, 176 U.S. 1, 21 +(1900). + +[780] 211 U.S. 31, 36-37 (1908). + +[781] As to concessions by the Court to the practical necessities of +enforcement, _see also_ Bayside Fish Flour Co. _v._ Gentry, 297 U.S. 422 +(1936); and Whitfield _v._ Ohio, 297 U.S. 431 (1936). + +[782] 325 U.S. 761, 766-767. + +[783] Ibid. 767; citing: Minnesota Rate Cases, 230 U.S. 352, 399, 400 +(1913); South Carolina Highway Dept. _v._ Barnwell Bros., 303 U.S. 177, +187 (1938), et seq.; California _v._ Thompson, 313 U.S. 109, 113, 114 +(1941) and cases cited; Parker _v._ Brown, 317 U.S. 341, 359, 360 +(1943). + +[784] 325 U.S. at 767; citing: Cooley _v._ Board of Wardens, 12 How. at +319 (1851); South Carolina Highway Dept. _v._ Barnwell Bros., 303 U.S. +at 185; California _v._ Thompson, 313 U.S. at 113; Duckworth _v._ +Arkansas, 314 U.S. 390, 394 (1941); Parker _v._ Brown, 317 U.S. at 362, +363. + +[785] 325 U.S. at 767; citing: South Carolina Highway Dept. _v._ +Barnwell Bros., 303 U.S. at 188 and cases cited; Lone Star Gas Co. _v._ +Texas, 304 U.S. 224, 238 (1938); Milk Board _v._ Eisenberg Co., 306 U.S. +346, 351 (1939); Maurer _v._ Hamilton, 309 U.S. 598, 603 (1940); +California _v._ Thompson, 313 U.S. 113, 114 and cases cited. + +[786] 325 U.S. at 767, 768; citing: Cooley _v._ Board of Wardens, 12 +How. at 319 (1851); Leisy _v._ Hardin, 135 U.S. 100, 108, 109 (1890); +Minnesota Rate Cases, 230 U.S. at 399, 400 (1913); Edwards _v._ +California, 314 U.S. 160, 176 (1941). + +[787] 325 U.S. at 768; citing: Brown _v._ Maryland, 12 Wheat. 419, 447 +(1827); Minnesota Rate Cases, 230 U.S. at 399, 400; Pennsylvania _v._ +West Virginia, 262 U.S. 553, 596 (1923); Baldwin _v._ Seelig, 294 U.S. +511, 522 (1935); South Carolina Highway Dept. _v._ Barnwell Bros., 303 +U.S. at 185 (1938). + +[788] 325 U.S. at 768; citing: Welton _v._ Missouri, 91 U.S. 275, 282 +(1876); Hall _v._ DeCuir, 95 U.S. 485, 490 (1878); Brown _v._ Houston, +114 U.S. 622, 631 (1885); Bowman _v._ Chicago & N.W.R. Co., 125 U.S. +465, 481, 482 (1888); Leisy _v._ Hardin, 135 U.S. at 109; In re Rahrer, +140 U.S. 545, 559, 560 (1891); Brennan _v._ Titusville, 153 U.S. 289, +302 (1894); Covington & C. Bridge Co. _v._ Kentucky, 154 U.S. 204, 212 +(1894); Graves _v._ New York ex rel. O'Keefe, 306 U.S. 466, 479 (1939); +Dowling, Interstate Commerce and State Power, 27 Va. Law Rev. 1 (1940). + +[789] 325 U.S. at 769; citing: Parker _v._ Brown. 317 U.S. at 362 +(1943); Terminal Railroad Assn. _v._ Brotherhood, 318 U.S. 1, 8 (1943); +_see_ Di Santo _v._ Pennsylvania, 273 U.S. 34, 44 (1927) (and compare +California _v._ Thompson, 313 U.S. 109 (1941)); Illinois Gas Co. _v._ +Public Service Co., 314 U.S. 498, 504, 505 (1942). + +[790] 325 U.S. at 769; citing: Cooley _v._ Board of Wardens, 12 How. 299 +(1851); Kansas City Southern R. Co. _v._ Kaw Valley District, 233 U.S. +75, 79 (1914); South Covington R. Co. _v._ Covington, 235 U.S. 537, 546 +(1915); Missouri, K. & T.R. Co. _v._ Texas, 245 U.S. 484, 488 (1918); +St. Louis & S.F.R. Co. _v._ Public Service Comm'n., 254 U.S. 535, 537 +(1921): Foster-Fountain Packing Co. _v._ Haydel, 278 U.S. 1, 10 (1928); +Gwin, White & Prince _v._ Henneford, 305 U.S. 434, 441 (1939); McCarroll +_v._ Dixie Lines, 309 U.S. 176 (1940). + +[791] 325 U.S. at 769; citing: In re Rahrer, 140 U.S. at 561, 562 +(1891); Adams Express Co. _v._ Kentucky, 238 U.S. 190, 198 (1915); +Rosenberger _v._ Pacific Express Co., 241 U.S. 48, 50, 51 (1916); Clark +Distilling Co. _v._ Western Maryland R. Co., 242 U.S. 311, 325, 326 +(1917); Whitfield _v._ Ohio, 297 U.S. 431, 438-440 (1936); Kentucky Whip +& Collar Co. _v._ Illinois Central R. Co., 299 U.S. 334, 350, 351 +(1937); Hooven & Allison Co. _v._ Evatt, 324 U.S. 652, 679 (1945). + +[792] 325 U.S. at 769, 770; citing: Addyston Pipe & Steel Co. _v._ +United States, 175 U.S. 211, 230 (1899); Louisville & Nashville R. Co. +_v._ Mottley, 219 U.S. 467 (1911); Houston, E. & W.T.R. Co. _v._ United +States, 234 U.S. 342 (1914); American Express Co. _v._ Caldwell, 244 +U.S. 617, 626 (1917); Illinois Central R. Co. _v._ Public Utilities +Comm'n., 245 U.S. 493, 506 (1918); New York _v._ United States, 257 U.S. +591, 601 (1922); Louisiana Public Service Comm'n. _v._ Texas & N.O.R. +Co., 284 U.S. 125, 130 (1931); Pennsylvania R. Co. _v._ Illinois Brick +Co., 297 U.S. 447, 459, (1936). + +[793] 325 U.S. at 770; citing: Gwin, White & Prince _v._ Henneford, 305 +U.S. 434, 441 (1939). + +[794] 325 U.S. at 770; citing: Terminal Railroad Assn. _v._ Brotherhood, +318 U.S. 1, 8 (1943); Southern R. Co. _v._ King, 217 U.S. 524 (1910). + +[795] Peik _v._ Chicago & N.W.R. Co., 94 U.S. 164 (1877). + +[796] Wabash, St. L. & P.R. Co. _v._ Illinois, 118 U.S. 557 (1886). + +[797] 24 Stat. 379 (1887). + +[798] Wisconsin Railroad Com. _v._ Chicago, B. & Q.R.R. Co., 257 U.S. +563 (1922). + +[799] Gladson _v._ Minnesota, 166 U.S. 427 (1897); followed in Lake +Shore & M.S.R. Co. _v._ Ohio ex rel. Lawrence, 173 U.S. 285 (1899), in +which an Ohio statute requiring that "each company shall cause three, +each way, of its regular trains carrying passengers, * * * Sundays +excepted, to stop at a station, city or village, containing three +thousand inhabitants, for a time sufficient to receive and let off +passengers; * * *" was sustained. + +[800] Illinois Central R.R. Co. _v._ Illinois, 163 U.S. 142, 153 (1896). + +[801] Chicago, Burlington & Quincy R.R. Co. _v._ Wisconsin R.R. Com., +237 U.S. 220, 226 (1915); St. Louis & San Francisco R. Co. _v._ Public +Service Com., 254 U.S. 535, 536-537 (1921). + +[802] St. Louis & San Francisco R. Co. _v._ Public Service Com., 261 +U.S. 369, 371 (1923). + +[803] Wisconsin, Minnesota & Pacific R.R. _v._ Jacobson, 179 U.S. 287 +(1900). + +[804] Missouri P.R. Co. _v._ Larabee Flour Mills Co., 211 U.S. 612 +(1909). + +[805] McNeill _v._ Southern R. Co., 202 U.S. 543 (1906). + +[806] St. Louis S.W.R. Co. _v._ Arkansas, 217 U.S. 136 (1910). + +[807] _See e.g._ The Court's language in Hannibal & St. L.R. Co. _v._ +Husen, 95 U.S. 465, 470 (1878); New York, N.H. & H.R. Co. _v._ New York, +165 U.S. 628, 631 (1897); Lake Shore & M.S.R. Co. _v._ Ohio ex rel. +Lawrence, 173 U.S. 285, 292 (1899); Hennington _v._ Georgia, 163 U.S. +299 (1896); Simpson _v._ Shepard (Minnesota Rate Cases), 230 U.S. 352, +402-410 (1913). + +[808] Smith _v._ Alabama, 124 U.S. 465 (1888); _see also_ Nashville, C. +& St. L.R. Co. _v._ Alabama, 128 U.S. 96 (1888); McCall _v._ California, +136 U.S. 104 (1890); Missouri, K. & T.R. Co. _v._ Haber, 109 U.S. 613, +633 (1898). + +[809] New York, N.H. & H.R. Co. _v._ New York, 165 U.S. 628 (1807). _See +also_ Chicago, M. & St. P.R. Co. _v._ Solan, 169 U.S. 133, 137 (1898). + +[810] Erb _v._ Morasch, 177 U.S. 584 (1900). + +[811] Erie R.R. Co. _v._ Public Utility Commrs., 254 U.S. 394 (1921). + +[812] Atchison, T. & S.F.R. Co. _v._ R.R. Comm., 283 U.S. 380 (1931). + +[813] Chicago, R.I. & P.R. Co. _v._ Arkansas, 219 U.S. 453 (1911). + +[814] Ibid, 453, 466. _See also_ St. Louis, I.M. & S. Co. _v._ Arkansas, +240 U.S. 518 (1916); Missouri P.R. Co. _v._ Norwood, 283 U.S. 249 +(1931). + +[815] Terminal Railroad Assn. _v._ Brotherhood, 318 U.S. 1 (1943). + +[816] 163 U.S. 299 (1896). In South Covington R. Co. _v._ Covington, 235 +U.S. 537 (1915), the Court sustained a municipal ordinance which +prohibits the company from allowing passengers to ride on the rear or +front platforms without suitable barriers, and requires that the cars be +kept clean and ventilated and fumigated. However, provisions of the +ordinance that cars shall never be permitted to fall below a certain +temperature and regulating the number of passengers to be carried in the +cars were held to be unreasonable and violative of the commerce clause. +There was no unconstitutional interference with interstate commerce by a +municipal ordinance which directed a railway company to remove its +tracks from a busy street intersection. Denver & R.G.R. Co. _v._ Denver, +250 U.S. 241 (1919). + +[817] Chicago, M. & St. P.R. Co. _v._ Solan, 169 U.S. 133 (1898); +Richmond & A.R. Co. _v._ Patterson Tobacco Co., 169 U.S. 311 (1898). + +[818] 325 U.S. 761, 779-780 (1945). + +[819] Kansas City Southern R. Co. _v._ Kaw Valley Drainage Dist., 233 +U.S. 75, 79 (1914). + +[820] 244 U.S. 310 (1917). + +[821] _Cf._ Southern R. Co. _v._ King, 217 U.S. 524 (1910), where the +crossings were fewer and the burden to interstate commerce was shown not +to be unduly heavy. + +[822] 302 U.S. 1, 15 (1937). + +[823] 325 U.S. 761, 771-776. + +[824] 328 U.S. 373, 380, 386 (1946). + +[825] Hendrick _v._ Maryland, 235 U.S. 610 (1915); Kane _v._ New Jersey, +242 U.S. 160 (1916). + +[826] Sproles _v._ Binford, 286 U.S. 374 (1932). _See also_ Morris _v._ +Duby, 274 U.S. 135 (1927). + +[827] South Carolina State Highway Dept. _v._ Barnwell Bros. Inc., 303 +U.S. 177 (1938). + +[828] 289 U.S. 92 (1933). + +[829] 309 U.S. 598 (1940). + +[830] 306 U.S. 79 (1939). + +[831] Eichholz _v._ Public Service Com. of Missouri, 306 U.S. 268 +(1939), citing Cooley _v._ Board of Wardens, 12 How. 299 (1851). + +[832] Railway Express Agency _v._ New York, 336 U.S. 106 (1949). + +[833] Ibid. 111. For a more extreme application of this idea by a +narrowly divided Court, in a quite special situation, _see_ Buck et al. +_v._ California, 342 U.S. 99 (1952). + +[834] Continental Baking Co. _v._ Woodring, 286 U.S. 352 (1932); +Stephenson _v._ Binford, 287 U.S. 251 (1932); Hicklin _v._ Coney, 290 +U.S. 169 (1933). + +[835] Michigan Pub. Utilities Com. _v._ Duke, 266 U.S. 570 (1925). _See +also_ Smith _v._ Cahoon, 283 U.S. 553 (1931); and Continental Baking Co. +_v._ Woodring, 286 U.S. 352 (1932). + +[836] Buck _v._ Kuykendall, 267 U.S. 307 (1925). _See also_, Bush & Sons +Co. _v._ Maloy, 267 U.S. 317 (1925); Interstate Busses Corp. _v._ +Holyoke Street R. Co., 273 U.S. 45 (1927). + +[837] 273 U.S. 34 (1927). _See also_ McCall _v._ California, 136 U.S. +104 (1890). In the former case, agents soliciting patronage for +steamship lines were involved; in the latter, an agent soliciting +patronage for a particular railway line. + +[838] California _v._ Thompson, 313 U.S. 109, 115-116 (1941). + +[839] 9 Wheat. 1 (1824). + +[840] 2 Pet. 245, 252 (1829). + +[841] 12 How. 299 (1851). + +[842] Foster _v._ Davenport, 22 How. 244 (1859); Sinnot _v._ Davenport, +22 How. 227 (1859). _See also_ Lord _v._ Steamship Co., 102 U.S. 541 +(1881). + +[843] Foster _v._ Master & Wardens of Port of New Orleans, 94 U.S. 246 +(1877). + +[844] Ibid. 247. + +[845] Northern Transp. Co. _v._ Chicago, 99 U.S. 635, 643 (1879); +Willamette Iron Bridge Co. _v._ Hatch, 125 U.S. 1 (1888); Illinois _v._ +Economy Power Light Co., 234 U.S. 497 (1914). + +[846] Economy Light and Power Co. _v._ United States, 256 U.S. 113 +(1921). + +[847] Harman _v._ Chicago, 147 U.S. 396, 412 (1893). + +[848] 302 U.S. 1 (1937). + +[849] Ibid. 10. + +[850] 333 U.S. 28 (1948). + +[851] Hall _v._ De Cuir, 95 U.S. 485 (1878). + +[852] 2 Pet. 245 (1829). + +[853] Pound _v._ Turck, 95 U.S. 459 (1878); Lindsay & Phelps Co. _v._ +Mullen, 176 U.S. 126 (1900). + +[854] 3 Wall. 713 (1866). + +[855] Ibid. 729. _See also_, Escanaba & L.M. Transp. Co. _v._ Chicago, +107 U.S. 678 (1883); and Cardwell _v._ American River Bridge Co., 113 +U.S. 205 (1885). + +[856] 119 U.S. 543 (1886). + +[857] Ibid. 548-549. + +[858] Packet Co. _v._ Keokuk, 95 U.S. 80 (1877); Ouachita Packet Co. +_v._ Aiken, 121 U.S. 444 (1887). + +[859] Prosser _v._ Northern P.R. Co., 152 U.S. 59 (1894). _See also_ +Sands _v._ Manistee R. Imp. Co., 123 U.S. 288 (1887); Gring _v._ Ives, +222 U.S. 365 (1912). + +[860] Cases cited in note 7 above;[Transcriber's Note: Reference is to +Footnote 858, above.] Parkersburg & O. Transp. Co. _v._ Parkersburg, 107 +U.S. 691 (1883). + +[861] Gloucester Ferry Co. _v._ Pennsylvania, 114 U.S. 196, 215 (1885); +Conway _v._ Taylor, 1 Black 603 (1862); Wiggins Ferry Co. _v._ East St. +Louis, 107 U.S. 365 (1883). + +[862] Mayor and Board of Aldermen of Vidalia _v._ McNeely, 274 U.S. 676 +(1927). _See also_ Helson _v._ Kentucky, 279 U.S. 245, 249 (1929). + +[863] Covington & C. Bridge Co. _v._ Kentucky, 154 U.S. 204 (1894). + +[864] Port Richmond and Bergen Point Ferry Co. _v._ Bd. of Chosen +Freeholders, 234 U.S. 317 (1914). + +[865] New York Central & H.R.R. Co. _v._ Bd. of Chosen Freeholders, 227 +U.S. 248 (1913). + +[866] Wilmington Transp. Co. _v._ R.R. Com., 236 U.S. 151 (1915). + +[867] Western U. Teleg. Co. _v._ Pendleton, 122 U.S. 347 (1887). + +[868] Western U. Teleg. Co. _v._ Foster, 247 U.S. 105 (1918). + +[869] Western U. Teleg. Co. _v._ Crovo, 220 U.S. 364 (1911). + +[870] Western U. Teleg. Co. _v._ Commercial Milling Co., 218 U.S. 406 +(1910). + +[871] Western U. Teleg. Co. _v._ Brown, 234 U.S. 542 (1914). + +[872] Essex _v._ New England Teleg. Co., 239 U.S. 313 (1915). + +[873] Pensacola Teleg. Co. _v._ Western U. Teleg. Co., 96 U.S. 1 (1878). + +[874] Western Union Teleg. Co. _v._ Richmond, 224 U.S. 160 (1912). _See +also_ Postal Teleg. Cable Co. _v._ Richmond, 249 U.S. 252 (1919). + +[875] Northwestern Bell Teleph. Co. _v._ Nebraska State R. Com., 297 +U.S. 471 (1936). + +[876] Bell Tel. Co. _v._ Pennsylvania Public Util. Com., 309 U.S. 30 +(1940). + +[877] Missouri ex rel. Barrett _v._ Kansas Natural Gas Co., 265 U.S. 298 +(1924). + +[878] Public Utilities Com. _v._ Attleboro Steam & Electric Co., 273 +U.S. 83 (1927). + +[879] Pennsylvania Natural Gas Co. _v._ Public Serv. Com., 252 U.S. 23 +(1920); Public Utilities Com. _v._ Landon, 249 U.S. 236 (1919). + +[880] Panhandle Eastern Pipe Lines Co. _v._ Public Serv. Com., 332 U.S. +507 (1947). + +[881] Panhandle Co. _v._ Michigan Comm'n., 341 U.S. 329 (1951). + +[882] Peoples Natural Gas Co. _v._ Public Serv. Com., 270 U.S. 550 +(1926). + +[883] East Ohio Gas Co. _v._ Tax Com. of Ohio, 283 U.S. 465 (1931). + +[884] Western Distributing Co. _v._ Public Serv. Com. of Kansas, 285 +U.S. 119 (1932). + +[885] Arkansas Louisiana Gas Co. _v._ Dept. of Public Utilities, 304 +U.S. 61 (1938). + +[886] Lone Star Gas Co. _v._ Texas, 304 U.S. 224 (1938). + +[887] Cities Service Co. _v._ Peerless Co., 340 U.S. 179 (1950). + +[888] Union Brokerage Co. _v._ Jensen, 322 U.S. 202 (1944). _See also_ +International Harvester Co. _v._ Kentucky, 234 U.S. 579 (1914); Sioux +Remedy Co. _v._ Cope, 235 U.S. 197 (1914); Interstate Amusement Co. _v._ +Albert, 239 U.S. 560 (1916). + +[889] 322 U.S. at 207-209. + +[890] Sioux Remedy Co. _v._ Cope, 235 U.S. 197 (1914). + +[891] International Milling Co. _v._ Columbia T. Co., 292 U.S. 511 +(1934). + +[892] Natural Gas Pipeline Co. _v._ Slattery, 302 U.S. 300 (1937). + +[893] Engel _v._ O'Malley, 219 U.S. 128 (1911). + +[894] Merrick _v._ Halsey & Co., 242 U.S. 568 (1917). _See also_ Hall +_v._ Geiger-Jones Co., 242 U.S. 539 (1917); Caldwell _v._ Sioux Falls +Stock Yards Co., 242 U.S. 559 (1917). + +[895] Hartford Accident & Indemnity Co. _v._ Illinois ex rel. +McLaughlin, 298 U.S. 155 (1936), citing Cargill Co. _v._ Minnesota, 180 +U.S. 452, 470 (1901); Simpson _v._ Shepard (Minnesota Rate Case), 230 +U.S. 352, 410 (1913); Hall _v._ Geiger-Jones Co., 242 U.S. 539, 557 +(1917); Federal Compress & Warehouse Co. _v._ McLean, 291 U.S. 17 +(1934). + +[896] Davis _v._ Cleveland, C.C. & St. L. Co., 217 U.S. 157 (1910). + +[897] Martin _v._ West, 222 U.S. 191 (1911). + +[898] The "Winnebago," 205 U.S. 354, 362 (1907). + +[899] Justice Hughes for the Court in Minnesota Rate Cases (Simpson _v._ +Shepard), 230 U.S. 352, 406 (1913). + +[900] Ibid. 408. + +[901] Railroad Co. _v._ Husen, 95 U.S. 465 (1878). + +[902] Kimmish _v._ Ball, 129 U.S. 217 (1889). + +[903] Smith _v._ St. Louis & S.W.R. Co., 181 U.S. 248 (1901). + +[904] Ibid. 255. Morgan's S.S. Co. _v._ Louisiana Bd. of Health, 118 +U.S. 455 (1886) is cited. + +[905] Hebe Co. _v._ Shaw, 248 U.S. 297 (1919). + +[906] Hygrade Provision Co. _v._ Sherman, 266 U.S. 497 (1925). + +[907] Mintz _v._ Baldwin, 289 U.S. 346 (1933). + +[908] Pacific States Box & Basket Co. _v._ White, 296 U.S. 176 (1935). + +[909] Bayside Fish Flour Co. _v._ Gentry, 297 U.S. 422 (1936). + +[910] Highland Farms Dairy, Inc. _v._ Agnew, 300 U.S. 608 (1937). + +[911] Bourjois, Inc. _v._ Chapman, 301 U.S. 183 (1937). + +[912] Clason _v._ Indiana, 306 U.S. 439 (1939). + +[913] Milk Control Bd. _v._ Eisenberg Farm Products, 306 U.S. 346 +(1939). + +[914] Patapsco Guano Co. _v._ North Carolina, 171 U.S. 345 (1898). + +[915] Savage _v._ Jones, 225 U.S. 501 (1912); followed in Corn Products +Refining Co. _v._ Eddy, 249 U.S. 427 (1919). + +[916] Pure Oil Co. _v._ Minnesota, 248 U.S. 158 (1918). + +[917] Mutual Film Corp. _v._ Hodges, 236 U.S. 248 (1915). + +[918] Minnesota _v._ Barber, 136 U.S. 313 (1890); _see also_ Brimmer +_v._ Rebman, 138 U.S. 78 (1891). + +[919] 136 U.S. at 322. _See also_ pp. 328-329. + +[920] Voight _v._ Wright, 141 U.S. 62 (1891). + +[921] Hale _v._ Bimco Trading Co., 306 U.S. 375 (1939). + +[922] Dean Milk Co. _v._ Madison, 340 U.S. 349 (1951). + +[923] 12 Wheat. 419 (1827). + +[924] Ibid. 449. + +[925] Woodruff _v._ Parham, 8 Wall. 123 (1869). There were later some +departures from the rule, apparently due to inattention, in cases +involving oil. _See_ Standard Oil _v._ Graves, 249 U.S. 389 (1919); +Askren _v._ Continental Oil Co., 252 U.S. 444 (1920); Bowman _v._ +Continental Oil Co., 256 U.S. 642 (1921) and Texas Co. _v._ Brown, 258 +U.S. 466 (1922). These cases were "qualified," and in fact disavowed in +Sonneborn Bros. _v._ Cureton, 262 U.S. 506, 520 (1923). _Cf._ the +contemporary case of Wagner _v._ Covington, 251 U.S. 95 (1912) where the +true rule is followed. + +[926] Mugler _v._ Kansas, 123 U.S. 623 (1887). + +[927] Kidd _v._ Pearson, 128 U.S. 1 (1888). + +[928] 125 U.S. 465 (1888). + +[929] Leisy & Co. _v._ Hardin, 135 U.S. 100 (1890). + +[930] 26 Stat. 313 (1890); sustained in In re Rahrer, 140 U.S. 545 +(1891). + +[931] Rhodes _v._ Iowa, 170 U.S. 412 (1898). + +[932] 37 Stat. 699 (1913); sustained in Clark Distilling Co. _v._ +Western Md. Ry. Co., 242 U.S. 311 (1917). + +[933] Austin _v._ Tennessee, 179 U.S. 343 (1900). + +[934] 155 U.S. 461 (1894). + +[935] 135 U.S. 100 (1890). + +[936] 155 U.S. at 474. + +[937] Schollenberger _v._ Pennsylvania, 171 U.S. 1 (1898). + +[938] Collins _v._ New Hampshire, 171 U.S. 30 (1898). + +[939] _See_ note 1 above. [Transcriber's Note: Reference is to Footnote +933, above.] + +[940] State Board _v._ Young's Market Co., 299 U.S. 59 (1936); Finch & +Co. _v._ McKittrick, 305 U.S. 395 (1939); Brewing Co. _v._ Liquor +Comm'n., 305 U.S. 391 (1939); Ziffrin, Inc. _v._ Reeves, 308 U.S. 132 +(1939). + +[941] Duckworth _v._ Arkansas, 314 U.S. 390 (1941); followed in Carter +_v._ Virginia, 321 U.S. 131 (1944). Justice Jackson would have preferred +to rest the decision on the Twenty-first Amendment instead of "what I +regard as an unwise extension of State power over interstate commerce," +314 U.S. at 397; and appears to have converted Justice Frankfurter. +_See_ latter's opinion in 321 U.S. at 139-143. + +[942] 297 U.S. 431 (1936). + +[943] 45 Stat 1084 (1929). + +[944] 297 U.S. at 440. _See also_ Justice Cardozo's remarks in Baldwin +_v._ Seelig, 294 U.S. 511, 526-527 (1935). + +[945] _Cf._ Plumley _v._ Massachusetts, 155 U.S. 461 (1894); Savage _v._ +Jones, 225 U.S. 501 (1912); Corn Products Refining Co. _v._ Eddy, 249 +U.S. 427 (1919). + +[946] Elkison _v._ Deliesseline, 8 Fed. Cas. No. 4366 (1823). + +[947] For interesting particulars _see_ 2 Charles Warren, The Supreme +Court in United States History, 84-87. + +[948] 1 Op. Atty. Gen. 659. + +[949] 2 Op. Atty. Gen. 426. + +[950] 11 Pet. 102 (1837). + +[951] Smith _v._ Turner (Passenger Cases), 7 How. 283 (1849). + +[952] Crandall _v._ Nevada, 6 Wall. 35 (1868). + +[953] 314 U.S. 160 (1941). + +[954] Ibid. 172. + +[955] Ibid. 173. Justice Cardozo's words, quoted by Justice Byrnes, +occur in Baldwin _v._ Seelig, 294 U.S. 511, 523 (1935). Justice Byrnes' +answer to another argument of the State, based on historical conceptions +of the word "indigent," was, "poverty and immorality are not +synonymous." + +[956] _See_ especially Justice Douglas' forceful opinion. 314 U.S. +177-181. + +[957] 161 U.S. 519 (1896). + +[958] Hudson County Water Co. _v._ McCarter, 209 U.S. 349 (1908). + +[959] 221 U.S. 229 (1911). + +[960] Ibid. 255-256. + +[961] 262 U.S. 553 (1923). + +[962] 237 U.S. 52 (1915). + +[963] Ibid. 61. + +[964] 258 U.S. 50, 61 (1922). + +[965] 258 U.S. 50 (1922); 66 L. Ed. 458, Hd. 2. + +[966] _See_ pp. 193-195. + +[967] 291 U.S. 502 (1934); followed in Hegeman Farms Corp. _v._ Baldwin, +293 U.S. 163 (1934). + +[968] 294 U.S. 511 (1935). + +[969] Milk Control Bd. _v._ Eisenberg Farm Products, 306 U.S. 346 +(1939). + +[970] Ibid. 352. + +[971] Hood _v._ Du Mond, 336 U.S. 525, 535 (1949). + +[972] Foster-Fountain Packing Co. _v._ Haydel, 278 U.S. 1 (1928). + +[973] Ibid. 13. + +[974] Toomer _v._ Witsell, 334 U.S. 385 (1948). Other features of the +South Carolina act were found to violate article IV, section 2. _See_ p. +690. + +[975] Bayside Fish Flour Co. _v._ Gentry, 297 U.S. 422 (1936). + +[976] Ibid. 426, citing Silz _v._ Hesterberg, 211 U.S. 31, 39 (1908). + +[977] 34 Stat. 584 (1906). + +[978] Chicago, I. & L.R. Co. _v._ United States, 219 U.S. 486 (1911). + +[979] Southern R. Co. _v._ Reid, 222 U.S. 424 (1912); Southern R. Co. +_v._ Burlington Lumber Co., 225 U.S. 99 (1912). + +[980] Chicago, R.I. & P.R. Co. _v._ Hardwick Farmers Elevator Co., 226 +U.S. 426 (1913). + +[981] St. Louis, I.M. & S.R. Co. _v._ Edwards, 227 U.S. 265 (1913). + +[982] Yazoo & M.V.R. Co. _v._ Greenwood Grocery Co., 227 U.S. 1 (1913). +In this case the severity of the regulation furnished additional reason +for its disallowance. + +[983] 226 U.S. 491 (1913). For the Court's reiteration of the formula +governing such cases, _see_ ibid. 505-506. _See also_ Barrett _v._ New +York, 232 U.S. 14 (1914); Chicago, R.I. & P.R. Co. _v._ Cramer, 232 U.S. +490 (1914); Atchison, T. & S.F.R. Co. _v._ Harold, 241 U.S. 371 (1916); +Missouri P.R. Co. _v._ Porter, 273 U.S. 341 (1927). A year before the +enactment of the Carmack Amendment the Court had held that the +imposition by a State upon the initial or any connecting carrier of the +duty of tracing the freight and informing the shipper in writing when, +where, how, and by which carrier the freight was lost, damaged, or +destroyed, and of giving the names of the parties and their official +position, by whom the truth of the facts set out in the information +could be established, was, when applied to interstate commerce, a +violation of the commerce clause. Central of Georgia R. Co. _v._ +Murphey, 196 U.S. 194, 202 (1905). The Court's opinion definitely +invited Congress to deal with the subject, as it does in the Carmack +Amendment. + +[984] 35 Stat. 65 (1908); 36 Stat. 291 (1910). + +[985] 34 Stat. 1415 (1907). + +[986] 27 Stat. 531 (1893); 32 Stat. 943 (1903). + +[987] Mondou _v._ New York, N.H. & H.R. Co. (Second Employers' Liability +Cases), 223 U.S. 1 (1912); Southern R. Co. _v._ Railroad Com., 236 U.S. +439 (1915). + +[988] Erie R. Co. _v._ New York, 233 U.S. 671 (1914). + +[989] 26 Stat. 414 (1890). + +[990] Crossman _v._ Lurman, 192 U.S. 189 (1904). + +[991] 34 Stat. 768 (1906); Savage _v._ Jones, 225 U.S. 501 (1912), +citing Missouri, Kansas & Texas Ry. Co. _v._ Haber, 169 U.S. 613 (1898); +Reid _v._ Colorado, 187 U.S. 137 (1902); Asbell _v._ Kansas, 209 U.S. +251 (1908); Southern Ry. Co. _v._ Reid, 222 U.S. 424, 442 (1912). + +[992] McDermott _v._ Wisconsin, 228 U.S. 115 (1913). + +[993] Ibid. 137. + +[994] Armour & Co. _v._ North Dakota, 240 U.S. 510 (1916). + +[995] 37 Stat. 315 (1912); 39 Stat. 1165 (1917). + +[996] Oregon-Washington R. & Nav. Co. _v._ Washington, 270 U.S. 87 +(1926). + +[997] 44 Stat. 250 (1926). + +[998] Mintz _v._ Baldwin, 289 U.S. 346 (1933). + +[999] 32 Stat. 791 (1903); 33 Stat. 1264 (1905). + +[1000] Townsend _v._ Yeomans, 301 U.S. 441 (1937). + +[1001] 49 Stat. 731 (1935). + +[1002] Allen-Bradley Local _v._ Employment Relations Board, 315 U.S. 740 +(1942). + +[1003] 49 Stat. 449 (1935). + +[1004] Quoting Napier _v._ Atlantic Coast Line R. Co., 272 U.S. 605, 611 +(1926). + +[1005] Parker _v._ Brown, 317 U.S. 341 (1943). + +[1006] 50 Stat. 246 (1937). + +[1007] 317 U.S. at 368. + +[1008] Ibid. 362. + +[1009] Union Brokerage Co. _v._ Jensen, 322 U.S. 202 (1944). + +[1010] Ibid. 211. + +[1011] Panhandle Eastern Pipe Line Co. _v._ Public Serv. Com. of +Indiana, 332 U.S. 507 (1947); Rice _v._ Chicago Board of Trade, 331 U.S. +247 (1947). + +[1012] 52 Stat. 821 (1938). + +[1013] 49 Stat. 1491 (1936). + +[1014] 49 Stat. 543 (1935); 54 Stat. 919-920 (1940). + +[1015] California _v._ Zook, 336 U.S. 725 (1949). + +[1016] 52 Stat. 821 (1938). + +[1017] Illinois Gas Co. _v._ Public Service Co., 314 U.S. 498 (1942). + +[1018] 26 U.S.C.A. Sec. 2320-2327. + +[1019] Cloverleaf Co. _v._ Patterson, 315 U.S. 148 (1942). Four +Justices, speaking by Chief Justice Stone dissented, on the basis of +Mintz _v._ Baldwin, 289 U.S. 346 (1933); Kelly _v._ Washington ex rel. +Foss Co., 302 U.S. 1 (1937); and Welch Co. _v._ New Hampshire, 306 U.S. +79 (1939). + +[1020] 39 Stat. 486 (1916); amended by 46 Stat. 1463 (1931). + +[1021] Rice _v._ Santa Fe Elevator Corp., 331 U.S. 218 (1947). + +[1022] _See_ note 1 above. [Transcriber's Note: Reference is to Footnote +1016, above.] + +[1023] Interstate Natural Gas Co. _v._ Federal Power Com., 331 U.S. 682 +(1947). + +[1024] 49 U.S.C.A. 5. + +[1025] Schwabacher _v._ United States, 334 U.S. 182 (1948). + +[1026] Seaboard Air Line R. Co. _v._ Daniel, 333 U.S. 118 (1948). + +[1027] Hill _v._ Florida, 325 U.S. 538 (1945). + +[1028] 49 Stat. 449 (1935). + +[1029] 325 U.S. at 542. + +[1030] Auto Workers _v._ Wisconsin Board, 336 U.S. 245 (1949). + +[1031] 49 Stat. 449 (1935); 61 Stat. 136 (1947). + +[1032] Algoma Plywood & Veneer Co. _v._ Wisconsin Bd., 336 U.S. 301 +(1949). + +[1033] Automobile Workers _v._ O'Brien, 339 U.S. 454 (1950); Bus +Employees _v._ Wisconsin Board, 340 U.S. 383 (1951). + +[1034] United States _v._ Kagama, 118 U.S. 375, 384 (1886); _Cf._ United +States _v._ Holliday, 3 Wall. 407 (1866). + +[1035] 16 Stat. 544, 566; R.S. 2079. + +[1036] _See_ United States _v._ Sandoval, 231 U.S. 28 (1914). + +[1037] _See_ Perrin _v._ United States, 232 U.S. 478 (1914); Johnson +_v._ Gearlds, 234 U.S. 422 (1914); Dick _v._ United States, 208 U.S. 340 +(1908). + +[1038] United States _v._ Nice, 241 U.S. 591 (1916), overruling Re Heff, +197 U.S. 488, 509 (1905). + +[1039] United States _v._ Sandoval, 231 U.S. 28 (1914). + +[1040] United States _v._ Holliday, 3 Wall. 407, 419 (1866). + +[1041] Ex parte Webb, 225 U.S. 663 (1912). + +[1042] Boyd _v._ Nebraska, 143 U.S. 135, 162 (1892). + +[1043] 10 How. 393 (1857). + +[1044] Ibid. 417, 419. + +[1045] Mackenzie _v._ Hare, 239 U.S. 299, 311 (1915). + +[1046] 66 Stat. 163; Public Law 414, 82d Cong., 2d Sess. (1952). + +[1047] Ibid. tit. III, Sec. 301. The first category comprises, it should +be noted, those who are citizens by the opening clause of Amendment XIV, +which embodies Chief Justice Marshall's holding in Gassies _v._ Ballon, +that a citizen of the United States, residing in any State of the Union, +is a citizen of that State. 6 Pet. 761, 762 (1832). + +[1048] 66 Stat. 163; tit. III, Sec. 302-307. These categories illustrate +collective naturalization. "Instances of collective naturalization by +treaty or by statute are numerous." Boyd _v._ Nebraska, 143 U.S. 135, +162 (1892). _See also_ Elk _v._ Wilkins, 112 U.S. 94 (1884). + +[1049] 57 Stat. 600. + +[1050] 66 Stat. 163, tit. III, Sec. 311. + +[1051] Ibid. Sec. 313 (a) (4-6). + +[1052] Ibid. Sec. 313 (c). + +[1053] 66 Stat. 163, Sec. 337 (a). In United States _v._ Schwimmer, 279 +U.S. 644 (1929); and United States _v._ Macintosh, 283 U.S. 605 (1931) +it was held, by a divided Court, that clauses (3) and (4) of the oath, +as previously prescribed, required the candidate for naturalization to +be ready and willing to bear arms for the United States, but these +holdings were overruled in Girouard _v._ United States, 328 U.S. 61 +(1946). + +[1054] 66 Stat. 163, Sec. 340 (a); _see also_ Johannessen _v._ United +States, 225 U.S. 227 (1912). + +[1055] Ibid. Sec. 340 (c). For cancellation proceedings under the +Nationality Act of 1910 (54 Stat. 1158, Sec. 338); _see_ Schneiderman _v._ +United States, 320 U.S. 118 (1943); Baumgartner _v._ United States 322 +U.S. 665 (1944), where district court decisions ordering cancellation +were reversed on the ground that the Government had not discharged the +burden of proof resting upon it. Knauer _v._ United States, 328 U.S. 654 +(1946) represents a less rigid view. + +[1056] Osborn _v._ Bank of the United States, 9 Wheat. 738, 827 (1824). + +[1057] 328 U.S. 654 (1946). + +[1058] Ibid. 658. + +[1059] Johannessen _v._ United States, 225 U.S. 227 (1912) and Knauer +_v._ United States, 328 U.S. 654, 673 (1946). + +[1060] 66 Stat. 163, tit. III, Sec. 352 (a). + +[1061] Perkins _v._ Elg, 307 U.S. 325, 329, 334 (1939). Naturalization +has a retroactive effect and removes all liability to forfeiture of land +held while an alien (Osterman _v._ Baldwin, 6 Wall. 116, 122 (1867)); +the subsequent naturalization of an alien who takes land by grant or by +location on public land relates back and obviates every consequence of +his alien disability (Manuel _v._ Wulff, 152 U.S. 505, 511 (1894); Doe +ex dem. Governeur's Heirs _v._ Robertson, 11 Wheat. 332, 350 (1826)). A +certificate of naturalization, while conclusive as a judgment of +citizenship, cannot be introduced in a distinct proceeding as evidence +of residence, age or good character of the person naturalized (Mutual +Ben. L. Ins. Co. _v._ Tisdale, 91 U.S. 238 (1876)). + +[1062] Chirac _v._ Chirac, 2 Wheat. 259, 269 (1817). + +[1063] Holmgren _v._ United States, 217 U.S. 509 (1910), where it was +also held that Congress may provide for the punishment of false swearing +in such proceedings in State court. Ibid. 520. + +[1064] Spragins _v._ Houghton, 3 Ill. 377 (1840); Stewart _v._ Foster, 2 +Binney's (Pa.) 110 (1809). + +[1065] Shanks _v._ Dupont, 3 Pet. 242, 240 (1830). + +[1066] 15 Stat. 223; 8 U.S.C.A. Sec. 800. + +[1067] MacKenzie _v._ Hare, 239 U.S. 299, 309, 311-312 (1915). In this +case, a now obsolete statute (34 Stat. 1228), known as the Citizenship +Act of 1907, which divested the citizenship of a woman marrying an +alien, was upheld as constitutional. Under the Act of June 27, 1952, +these conditions comprise the following: (1) Obtaining naturalization in +a foreign State; (2) Taking an oath of allegiance to a foreign State; +(3) Serving in the armed forces of a foreign State without authorization +and with consequent acquisition of foreign nationality; (4) Assuming +public office under the government of a foreign State, for which only +nationals of that State are eligible; (5) Voting in an election or +participating in a plebiscite in a foreign State; (6) Formal +renunciation of citizenship before an American foreign service officer +abroad; (7) Conviction and discharge from the armed services for +desertion in time of war; (8) Conviction of treason or an attempt at +forceful overthrow of the United States; (9) Formal renunciation of +citizenship within the United States in time of war, subject to approval +by the Attorney General; (10) Fleeing or remaining outside the United +States in time of war or proclaimed emergency in order to evade military +training; (11) Residence by a naturalized citizen, subject to certain +exceptions, for two to three years in the country of his birth or in +which he formerly was a national or for five years in any other foreign +State, and (12) Minor children, of naturalized citizens losing +citizenship by such foreign residence, also lose their United States +citizenship if they acquire the nationality of a foreign State; but not +until they attain the age of 25 without having acquired permanent +residence in the United States. 66 Stat. 163; Tit. III Sec. 349-357. + +[1068] Chinese Exclusion Case, 130 U.S. 581, 603, 604 (1889); _See also_ +Fong Yue Ting _v._ United States, 149 U.S. 698, 705 (1893); Japanese +Immigrant Case, 189 U.S. 86 (1903); Turner _v._ Williams, 194 U.S. 279 +(1904); Bugajewitz _v._ Adams, 228 U.S. 585 (1913); Hines _v._ +Davidowitz, 312 U.S. 52 (1941). + +[1069] 66 Stat. 163; Tit. II, Sec. 212. + +[1070] Ibid. Sec. 212 (a) (28) (F). + +[1071] 54 Stat. 670. + +[1072] Hines _v._ Davidowitz, 312 U.S. 52, 69-70. + +[1073] 66 Stat. 163; Tit. II, Sec. 261-266. + +[1074] 338 U.S. 537 (1950). + +[1075] 59 Stat. 659. + +[1076] 338 U.S. at 543. + +[1077] Carlson _v._ Landon, 342 U.S. 524 (1952). + +[1078] 54 Stat. 670. + +[1079] Harisiades _v._ Shaughnessy, 342 U.S. 580, 587 (1952). + +[1080] 8 U.S.C, Sec. 156 C was the provision in question. + +[1081] United States _v._ Spector, 343 U.S. 169 (1952). + +[1082] Keller _v._ United States, 213 U.S. 138 (1909). + +[1083] Ibid. 149-150. For the requirements of due process of law in the +deportation of alien, _see_ p. 852 (Amendment V). + +[1084] Adams _v._ Storey, 1 Fed. Cas. No. 66 (1817). + +[1085] 2 Stat. 19 (1800). + +[1086] Story's Commentaries, II, 1113 (Cooley's ed. 1873). + +[1087] 186 U.S. 181 (1902). + +[1088] Continental Illinois Nat. Bank & Trust Co. _v._ Chicago, R.I. & +P.R. Co., 294 U.S. 648, 670 (1935). + +[1089] United States _v._ Bekins, 304 U.S. 27 (1938), distinguishing +Ashton _v._ Cameron County Water Improv. Dist., 298 U.S. 513 (1936). + +[1090] In re Reiman, Fed. Cas. No. 11,673 (1874), cited with approval in +Continental Illinois Nat. Bank & Trust Co. _v._ Chicago, R.I. & P.R. +Co., 294 U.S. 648, 672 (1935). + +[1091] Continental Illinois Nat. Bank & Trust Co. _v._ Chicago, R.I. & +P.R. Co., 294 U.S. 648 (1935). + +[1092] Wright _v._ Mountain Trust Bank, 300 U.S. 440 (1937); Adair _v._ +Bank of America Assn., 303 U.S. 350 (1938). + +[1093] Wright _v._ Union Central Insurance Co., 304 U.S. 502 (1938). + +[1094] 294 U.S. 648 (1935). + +[1095] Ibid. 671. + +[1096] Louisville Joint Stock Land Bank _v._ Radford, 295 U.S. 555, 589, +602 (1935). + +[1097] Ashton _v._ Cameron County Water Improvement District, 298 U.S. +513 (1936). _But see_ United States _v._ Bekins, 304 U.S. 27 (1938). + +[1098] Chicago Title & Trust Co. _v._ 4136 Wilcox Bldg. Corp., 302 U.S. +120 (1937). + +[1099] Re Klein, 1 How. 277 (1843); Hanover Nat. Bank _v._ Moyses, 186 +U.S. 181 (1902). + +[1100] United States _v._ Bekins, 304 U.S. 27 (1938). + +[1101] Stellwagen _v._ Clum, 245 U.S. 605 (1918); Hanover Nat. Bank _v._ +Moyses, 186 U.S. 181, 190 (1902). + +[1102] Hanover Nat. Bank _v._ Moyses, 186 U.S. 181, 184 (1902). + +[1103] Sturges _v._ Crowninshield, 4 Wheat. 122, 199 (1819); Ogden _v._ +Saunders, 12 Wheat. 212, 368 (1827). + +[1104] Tua _v._ Carriere, 117 U.S. 201 (1886); Butler _v._ Goreley, 146 +U.S. 303, 314 (1892). + +[1105] Sturges _v._ Crowninshield, 4 Wheat. 122 (1819). + +[1106] Ogden _v._ Saunders, 12 Wheat. 212, 358 (1827); Denny _v._ +Bennett, 128 U.S. 489, 498 (1888); Brown _v._ Smart, 145 U.S. 454 +(1892). + +[1107] Re Watts, 190 U.S. 1, 27 (1903); International Shoe Co. _v._ +Pinkus, 278 U.S. 261, 264 (1929). + +[1108] International Shoe Co. _v._ Pinkus, 278 U.S. 261, 265 (1929). + +[1109] Kalb _v._ Feuerstein, 308 U.S. 433 (1940). + +[1110] Stellwagen _v._ Clum, 245 U.S. 605, 615 (1918). + +[1111] Reitz _v._ Mealey, 314 U.S. 33 (1941). + +[1112] New York _v._ Irving Trust Co., 288 U.S. 329 (1933). + +[1113] McCulloch _v._ Maryland, 4 Wheat. 316 (1819). + +[1114] Veazie Bank _v._ Fenno, 8 Wall. 533 (1869). + +[1115] Ibid. 548. + +[1116] Merchants Nat. Bank _v._ United States, 101 U.S. 1 (1880). + +[1117] Nortz _v._ United States, 294 U.S. 317 (1935). + +[1118] Legal Tender Cases, 12 Wall. 457, 549 (1871); Juilliard _v._ +Greenman, 110 U.S. 421, 449 (1884). + +[1119] Legal Tender Cases, 12 Wall. 457 (1871). + +[1120] Norman _v._ Baltimore & O.R. Co., 294 U.S. 240 (1935). + +[1121] Ling Su Fan _v._ United States, 218 U.S. 302 (1910). + +[1122] United States _v._ Marigold, 9 How. 560, 568 (1850). + +[1123] Fox _v._ Ohio, 5 How. 410 (1847). + +[1124] United States _v._ Marigold, 9 How. 560, 568 (1850). + +[1125] Ibid. + +[1126] Baender _v._ Barnett, 255 U.S. 224 (1921). + +[1127] Knox _v._ Lee (Legal Tender Cases), 12 Wall. 457, 536 (1871). + +[1128] McCulloch _v._ Maryland, 4 Wheat. 316, 407 (1819); Osborn _v._ +Bank of United States, 9 Wheat. 738, 861 (1824); Farmers' & Mechanics' +Nat. Bank _v._ Dearing, 91 U.S.C. 29, 33 (1875); Smith _v._ Kansas City +Title & Trust Co., 255 U.S. 180, 208 (1921). + +[1129] Legal Tender Cases, 12 Wall. 457, 540-547 (1871). + +[1130] Perry _v._ United States, 294 U.S. 330, 353 (1935). + +[1131] Ibid. 361. + +[1132] United States _v._ Railroad Bridge Co., Fed. Cas. No. 16,114 +(1855). + +[1133] Searight _v._ Stokes, 3 How. 151, 166 (1845). + +[1134] 91 U.S. 367 (1876). + +[1135] Ex parte Jackson, 96 U.S. 727, 732 (1878). + +[1136] Searight _v._ Stokes, 3 How. 151, 169 (1845). + +[1137] Re Debs, 158 U.S. 564, 599 (1895). + +[1138] 2 Cong. Globe 4, 10 (1835). + +[1139] Ibid. 298. On this point his reasoning would appear to be +vindicated by such decisions, as Bowman _v._ Chicago & N.W.R. Co., 125 +U.S. 465 (1888) and Leisy _v._ Hardin, 135 U.S. 100 (1890) denying the +right of the States to prevent the importation of alcoholic beverages +from other States. + +[1140] 96 U.S. 727 (1878). + +[1141] Ibid. 732. + +[1142] Public Clearing House _v._ Coyne, 194 U.S. 497 (1904), followed +in Donaldson _v._ Read Magazine, 333 U.S. 178 (1948). + +[1143] 194 U.S. at 506. + +[1144] Lewis Publishing Co. _v._ Morgan, 229 U.S. 288, 316 (1913). + +[1145] 255 U.S. 407 (1921). + +[1146] Hannegan _v._ Esquire, Inc., 327 U.S. 146, 155 (1946). + +[1147] 49 Stat. 803, 812, 813 (1935), 15 U.S.C. 79d, 79e (1946). + +[1148] Electric Bond & Share Co. _v._ Securities and Exchange Comm'n., +303 U.S. 419 (1938). + +[1149] Ibid. 442. + +[1150] Pensacola Teleg. Co. _v._ Western U. Teleg. Co., 90 U.S. 1 +(1878). + +[1151] Illinois C.R. Co. _v._ Illinois ex rel. Butler, 163 U.S. 142 +(1896). + +[1152] Gladson _v._ Minnesota, 166 U.S. 427 (1897). + +[1153] Price _v._ Pennsylvania R. Co., 113 U.S. 218 (1885); Martin _v._ +Pittsburgh & L.E.R. Co., 203 U.S. 284 (1906). + +[1154] Railway Mail Assn. _v._ Corsi, 326 U.S. 88 (1945). + +[1155] United States _v._ Kirby, 7 Wall. 482 (1869). + +[1156] Johnson _v._ Maryland, 254 U.S. 51 (1920). + +[1157] Pennock _v._ Dialogue, 2 Pet. 1, 17, 18 (1829). + +[1158] Wheaton _v._ Peters, 8 Pet. 591, 656, 658 (1834). + +[1159] Kendall _v._ Winsor, 21 How. 322, 328 (1859); Great Atlantic & +Pacific Tea Co. _v._ Supermarket Equipment Corp., 340 U.S. 147 (1950). + +[1160] Evans _v._ Jordan, 9 Cr. 199 (1815); Bloomer _v._ McQuewan, 14 +How. 539, 548 (1852); Bloomer _v._ Millinger, 1 Wall. 340, 350 (1864); +Eunson _v._ Dodge, 18 Wall. 414, 416 (1873). + +[1161] Brown _v._ Duchesne, 19 How. 183, 195 (1857). + +[1162] Seymour _v._ Osborne, 11 Wall. 516, 549 (1871). _Cf._ Union Paper +Collar Co. _v._ Van Dusen, 23 Wall. 530, 563 (1875); Reckendorfer _v._ +Faber, 92 U.S. 347, 356 (1876). + +[1163] Smith _v._ Nichols, 21 Wall. 112, 118 (1875). + +[1164] Rubber-Tip Pencil Co. _v._ Howard, 20 Wall. 498, 507 (1874); +Clark Thread Co. _v._ Willimantic Linen Co., 140 U.S. 481, 489 (1891). + +[1165] Funk Bros. Seed Co. _v._ Kalo Co., 333 U.S. 127, 130 (1948). +_Cf._ Dow Chemical Co. _v._ Halliburton Co., 324 U.S. 320 (1945); Cuno +Corp. _v._ Automatic Devices Corp., 314 U.S. 84, 89 (1941). + +[1166] Sinclair & Carroll Co. _v._ Interchemical Corp., 325 U.S. 327 +(1945); Marconi Wireless Teleg. Co. _v._ United States, 320 U.S. 1 +(1943). + +[1167] Keystone Mfg. Co. _v._ Adams, 151 U.S. 139 (1894); Diamond Rubber +Co. _v._ Consolidated Tire Co., 220 U.S. 428 (1911). + +[1168] Great Atlantic & Pacific Tea Co. _v._ Supermarket Equipment +Corp., 340 U.S. 147 (1950). An interesting concurring opinion was filed +by Justice Douglas for himself and Justice Black: "It is not enough," +says Justice Douglas, "that an article is new and useful. The +Constitution never sanctioned the patenting of gadgets. Patents serve a +higher end--the advancement of science. An invention need not be as +startling as an atomic bomb to be patentable. But it has to be of such +quality and distinction that masters of the scientific field in which it +falls will recognize it as an advance." Ibid. 154-155. He then quotes +the following from an opinion of Justice Bradley's given 70 years ago: + +"It was never the object of those laws to grant a monopoly for every +trifling device, every shadow of a shade of an idea, which would +naturally and spontaneously occur to any skilled mechanic or operator in +the ordinary progress of manufactures. Such an indiscriminate creation +of exclusive privileges tends rather to obstruct than to stimulate +invention. It creates a class of speculative schemers who make it their +business to watch the advancing wave of improvement, and gather its foam +in the form of patented monopolies, which enable them to lay a heavy tax +upon the industry of the country, without contributing anything to the +real advancement of the arts. It embarrasses the honest pursuit of +business with fears and apprehensions of concealed liens and unknown +liabilities to lawsuits and vexatious accountings for profits made in +good faith. (Atlantic Works _v._ Brady, 107 U.S. 192, 200 (1882))." +Ibid. 155. + +The opinion concludes: "The attempts through the years to get a broader, +looser conception of patents than the Constitution contemplates have +been persistent. The Patent Office, like most administrative agencies, +has looked with favor on the opportunity which the exercise of +discretion affords to expand its own jurisdiction. And so it has placed +a host of gadgets under the armour of patents--gadgets that obviously +have had no place in the constitutional scheme of advancing scientific +knowledge. A few that have reached this Court show the pressure to +extend monopoly to the simplest of devices: + +"Hotchkiss _v._ Greenwood, 11 How. 248 (1850): Doorknob made of clay +rather than metal or wood, where different shaped doorknobs had +previously been made of clay. + +"Rubber-Tip Pencil Co. _v._ Howard, 20 Wall. 498 (1874): Rubber caps put +on wood pencils to serve as erasers. + +"Union Paper Collar Co. _v._ Van Dusen, 23 Wall. 530 (1875): Making +collars of parchment paper where linen paper and linen had previously +been used. + +"Brown _v._ Piper, 91 U.S. 37 (1875): A method for preserving fish by +freezing them in a container operating in the same manner as an ice +cream freezer. + +"Reckendorfer _v._ Faber, 92 U.S. 347 (1876): Inserting a piece of +rubber in a slot in the end of a wood pencil to serve as an eraser. + +"Dalton _v._ Jennings, 93 U.S. 271 (1876): Fine thread placed across +open squares in a regular hairnet to keep hair in place more +effectively. + +"Double-Pointed Tack Co. _v._ Two Rivers Mfg. Co., 109 U.S. 117 (1883): +Putting a metal washer on a wire staple. + +"Miller _v._ Foree, 116 U.S. 22 (1885): A stamp for impressing initials +in the side of a plug of tobacco. + +"Preston _v._ Manard, 116 U.S. 661 (1886): A hose reel of large diameter +so that water may flow through hose while it is wound on the reel. + +"Hendy _v._ Miners' Iron Works, 127 U.S. 370 (1888): Putting rollers on +a machine to make it moveable. + +"St. Germain _v._ Brunswick, 135 U.S. 227 (1890): Revolving cue rack. + +"Shenfield _v._ Nashawannuck Mfg. Co., 137 U.S. 56 (1890): Using flat +cord instead of round cord for the loop at the end of suspenders. + +"Florsheim _v._ Schilling, 137 U.S. 64 (1890): Putting elastic gussets +in corsets. + +"Cluett _v._ Claflin, 140 U.S. 180 (1891): A shirt bosom or dickie sewn +onto the front of a shirt. + +"Adams _v._ Bellaire Stamping Co., 141 U.S. 539 (1891): A lantern lid +fastened to the lantern by a hinge on one side and a catch on the other. + +"Patent Clothing Co. _v._ Glover, 141 U.S. 560 (1891): Bridging a strip +of cloth across the fly of pantaloons to reinforce them against tearing. + +"Pope Mfg. Co. _v._ Gormully Mfg. Co., 144 U.S. 238 (1892): Placing +rubber hand grips on bicycle handlebars. + +"Knapp _v._ Morss, 150 U.S. 221 (1893): Applying the principle of the +umbrella to a skirt form. + +"Morgan Envelope Co. _v._ Albany Perforated Wrapping Paper Co., 152 U.S. +425 (1894): An oval rather than cylindrical toilet paper roll, to +facilitate tearing off strips. + +"Dunham _v._ Dennison Mfg. Co., 154 U.S. 103 (1894): An envelope flap +which could be fastened to the envelope in such a fashion that the +envelope could be opened without tearing. + +"The patent involved in the present case belongs to this list of +incredible patents which the Patent Office has spawned. The fact that a +patent as flimsy and as spurious as this one has to be brought all the +way to this Court to be declared invalid dramatically illustrates how +far our patent system frequently departs from the constitutional +standards which are supposed to govern." Ibid. 156-158. + +[1169] "Inventive genius"--Justice Hunt in Reckendorfer _v._ Faber, 92 +U.S. 347, 357 (1875); "Genius or invention"--Chief Justice Fuller in +Smith _v._ Whitman Saddle Co., 148 U.S. 674, 681 (1893); "Intuitive +genius"--Justice Brown in Potts _v._ Creager, 155 U.S. 597, 607 (1895); +"Inventive genius"--Justice Stone in Concrete Appliances Co. _v._ +Gomery, 269 U.S. 177, 185 (1925); "Inventive genius"--Justice Roberts in +Mantle Lamp Co. _v._ Aluminum Co., 301 U.S. 544, 546 (1937); Justice +Douglas in Cuno Corp. _v._ Automatic Devices Corp., 314 U.S. 84, 91 +(1941); "the flash of creative genius, not merely the skill of the +calling." _See also_ Note 2 above. [Transcriber's Note: Reference is to +Footnote 1163, above.] + +[1170] _See_ Note 7 above. [Transcriber's Note: Reference is to Footnote +1168, above.] + +[1171] Great Atlantic & Pacific Tea Co. _v._ Supermarket Equipment +Corp., 340 U.S. 147 (1950); Mahn _v._ Harwood, 112 U.S. 354, 358 (1884). + +[1172] Evans _v._ Eaton, 3 Wheat. 454, 512 (1818). + +[1173] United States _v._ Duell, 172 U.S. 576, 586-589 (1899). _See +also_ Butterworth _v._ Hoe, 112 U.S. 50 (1884). + +[1174] Wheaton _v._ Peters, 8 Pet. 591, 660 (1834); Holmes _v._ Hurst, +174 U.S. 82 (1899). _Cf._ E. Burke Inlow, The Patent Clause (1950) +Chaps. III and IV, for evidence of a judicial recognition of an +inventor's inchoate right to have his invention patented. + +[1175] Wheaton _v._ Peters, 8 Pet. 591, 662 (1834); Evans _v._ Jordan, 9 +Cr. 199 (1815). + +[1176] Kalem Co. _v._ Harper Bros. 222 U.S. 55 (1911). + +[1177] Baker _v._ Selden, 101 U.S. 99, 105 (1880). + +[1178] Stevens _v._ Gladding, 17 How. 447 (1855). + +[1179] Ager _v._ Murray, 105 U.S. 126 (1882). + +[1180] James _v._ Campbell, 104 U.S. 356, 358 (1882). _See also_ United +States _v._ Burns, 12 Wall. 246, 252 (1871); Cammeyer _v._ Newton, 94 +U.S. 225, 234 (1877); Hollister _v._ Benedict Manufacturing Co., 113 +U.S. 59, 67 (1885); United States _v._ Palmer, 128 U.S. 262, 271 (1888); +Belknap _v._ Schild, 161 U.S. 10, 16 (1896). + +[1181] McClurg _v._ Kingsland, 1 How. 202, 206 (1843). + +[1182] Bloomer _v._ McQuewan, 14 How. 539, 553 (1852). + +[1183] _See_ Motion Picture Co. _v._ Universal Film Co., 243 U.S. 502 +(1917); Morton Salt Co. _v._ Suppiger Co., 314 U.S. 488 (1942); United +States _v._ Masonite Corp., 316 U.S. 265 (1942); and United States _v._ +New Wrinkle, Inc., 342 U.S. 371 (1952), where the Justices divide 6 to 3 +as to the significance for the case of certain leading precedents. _See +also_ Inlow, The Patent Clause, Chap. V. + +[1184] Patterson _v._ Kentucky, 97 U.S. 501 (1879). + +[1185] Allen _v._ Riley, 203 U.S. 347 (1906): Woods & Sons _v._ Carl, +203 U.S. 358 (1906); Ozan Lumber Co. _v._ Union County Bank, 207 U.S. +251 (1907). + +[1186] Fox Film Corp. _v._ Doyal, 280 U.S. 123 (1932)--overruling Long +_v._ Rockwood, 277 U.S. 142 (1928). + +[1187] 100 U.S. 82 (1879). + +[1188] Ibid. 94. + +[1189] Burrow-Giles Lithographic Co. _v._ Sarony, 111 U.S. 53 (1884). + +[1190] Bleistein _v._ Donaldson Lithographing Co., 188 U.S. 239, 252 +(1903). + +[1191] Kent, Commentaries, 1-2, (12th ed. 1873). + +[1192] XIX Journals of the Continental Congress 315, 361 (1912). XX Id. +762, XXI id. 1136-1137, 1158. + +[1193] Article IX. + +[1194] Madison, Journal of the Constitutional Convention, II, 82 (Hunt's +ed. 1908). + +[1195] Ibid. 185-186, 372. + +[1196] United States _v._ Smith, 5 Wheat. 153, 160, 162 (1820). _See +also_ The Marianna Flora, 11 Wheat. 1, 40-41 (1826); United States _v._ +Brig Malek Abhel, 2 How. 210, 232 (1844). + +[1197] 317 U.S. 1, 27 (1942). + +[1198] Ibid. 28. + +[1199] United States _v._ Arjona, 120 U.S. 479, 487, 488 (1887). + +[1200] United States _v._ Flores, 3 F. Supp. 134 (1932). + +[1201] 289 U.S. 137, 149-150 (1933). + +[1202] United States _v._ Furlong, 5 Wheat. 184, 200 (1920). + +[1203] The Federalist No. 23. + +[1204] Penhallow _v._ Doane, 3 Dall. 54 (1795). + +[1205] 4 Wheat. 316 (1819). + +[1206] Ibid. 407. Emphasis supplied. + +[1207] Ex parte Milligan, 4 Wall. 2, 139 (1866) (dissenting opinion); +_see also_ Miller _v._ United States, 11 Wall. 268, 305 (1871); and +United States _v._ Macintosh, 283 U.S. 605, 622 (1931). + +[1208] 58 Cong. Globe, 37th Cong., 1st sess., App. 1 (1861). + +[1209] Hamilton _v._ Dillin, 21 Wall. 73, 86 (1875). + +[1210] Northern P.R. Co. _v._ North Dakota, 250 U.S. 135, 149 (1919). + +[1211] Home Bldg. & Loan Assoc. _v._ Blaisdell, 290 U.S. 398 (1934). + +[1212] Northern P.R. Co. _v._ North Dakota, 250 U.S. 135, 149 (1919). + +[1213] 299 U.S. 304 (1936). + +[1214] Ibid. 316, 318. + +[1215] 334 U.S. 742 (1948). + +[1216] Ibid. 757-758. + +[1217] Ibid. 755. + +[1218] II Madison Journal of the Constitutional Convention 82 (Hunt's +ed. 1908). + +[1219] Ibid. 188. + +[1220] 11 Annals of Congress 11 (1801). + +[1221] Works of Alexander Hamilton, VII, 746 (Hamilton's ed. 1851). +_Cf._ Bas _v._ Tingy, 4 Dall. 37 (1800). + +[1222] 2 Stat. 129, 130 (1802). Emphasis supplied. + +[1223] The Prize Cases, 2 Bl. 635, 668 (1863). + +[1224] Ibid. 683, 688. + +[1225] 12 Wall. 700 (1872). + +[1226] Ibid. 702. + +[1227] I Blackstone, Commentaries 263, (Wendell's ed. 1857). + +[1228] II Story, Commentaries, Sec. 1187 (4th ed. 1873). + +[1229] 25 Op. Atty. Gen. 105, 108 (1904). + +[1230] 40 Op. Atty. Gen. 555 (1948). + +[1231] 61 Stat. 405 (1947). + +[1232] H.J. Res. 298, 80th Cong., 2d sess. (1948). + +[1233] Selective Draft Law Cases, 245 U.S. 366, 380 (1918); Cox _v._ +Wood, 247 U.S. 3 (1918). + +[1234] 245 U.S. at 385. + +[1235] Ibid. 386-388. The measure was upheld by a State court, Kneedler +_v._ Lane, 45 Pa. 238 (1863). + +[1236] Selective Draft Law Cases, 245 U.S. 366, 381, 382 (1918) + +[1237] Butler _v._ Perry, 240 U.S. 328, 333 (1916). + +[1238] 245 U.S. 366 (1918). + +[1239] Ibid. 390. + +[1240] United States _v._ Williams, 302 U.S. 46 (1937). _See also_ In re +Grimley, 137 U.S. 147, 153 (1890); In re Morrissey, 137 U.S. 157 (1890). + +[1241] Wissner _v._ Wissner, 338 U.S. 655, 660 (1950). + +[1242] McKinley _v._ United States, 249 U.S. 397 (1919). + +[1243] Dynes _v._ Hoover, 20 How. 65, 79 (1858). + +[1244] Ex parte Milligan, 4 Wall. 2, 123, 138-139 (1866). Ex parte +Quirin, 317 U.S. 1, 40 (1942). + +[1245] Wade _v._ Hunter, 336 U.S. 684, 687 (1949). + +[1246] Dynes _v._ Hoover, 20 How. 65, 82 (1858). + +[1247] Swaim _v._ United States, 165 U.S. 553 (1897); Carter _v._ +Roberts, 177 U.S. 496 (1900); Hiatt _v._ Brown, 339 U.S. 103 (1950). + +[1248] Mullan _v._ United States, 212 U.S. 516 (1909); Smith _v._ +Whitney, 116 U.S. 167, 177 (1886); Hiatt _v._ Brown, 339 U.S. 103 +(1950). + +[1249] Clark, Emergency Legislation Passed Prior to December 1917, 211 +(1918). + +[1250] Ibid. 214 + +[1251] Ibid. 250, 332, 380, 438, 497. + +[1252] Ibid. 420, 466, 535, 595, 636, 823. Many of these were soon +suspended or repealed. Ibid. 458, 553, 601, 733. + +[1253] Ibid. 482, 543, 963, 969. + +[1254] Ibid. 916. + +[1255] Ibid. 280. + +[1256] Hepburn _v._ Griswold, 8 Wall. 603, 617 (1870). + +[1257] Ibid. 626. + +[1258] Knox _v._ Lee (Legal Tender Cases), 12 Wall. 457, 540 (1871). + +[1259] 40 Stat. 276 (1917). + +[1260] Ibid. 272. + +[1261] Ibid. 411. + +[1262] Ibid. 451 (1918). + +[1263] Ibid. 904. + +[1264] 55 Stat. 236 (1941). + +[1265] 56 Stat. 176 (1942). + +[1266] Ibid. 23. + +[1267] 57 Stat. 163 (1943). + +[1268] Lichter _v._ United States, 334 U.S. 742, 754-756, 765, 766 +(1948). _See also_ United States _v._ Bethlehem Steel Corp., 315 U.S. +289, 305 (1942); Clallam County _v._ United States, 263 U.S. 341 (1923); +Sloan Shipyards _v._ United States Fleet Corp., 258 U.S. 549 (1922). + +[1269] Lichter _v._ United States, 334 U.S. 742, 779 (1948). + +[1270] 245 U.S. 366, 389 (1918). + +[1271] Yakus _v._ United States, 321 U.S. 414, 424 (1944). + +[1272] 21 Wall. 73 (1875). + +[1273] Ibid. 96-97. _Cf._ United States _v._ Chemical Foundation, 272 +U.S. 1 (1926). + +[1274] 320 U.S. 81 (1943). + +[1275] Ibid. 91-92, 104. + +[1276] Ibid. 104. + +[1277] 334 U.S. 742 (1948). + +[1278] Ibid. 778-779. + +[1279] Ibid. 782-783. + +[1280] Story Commentaries on the Constitution, II, Sec. 1185 (4th ed., +1873). + +[1281] 297 U.S. 288 (1936). + +[1282] 39 Stat. 166 (1916). + +[1283] 297 U.S. 288, 327-328 (1936). + +[1284] 60 Stat. 755 (1946). + +[1285] Stewart _v._ Kahn, 11 Wall. 493, 507 (1871). _See also_ Mayfield +_v._ Richards, 115 U.S. 137 (1885). + +[1286] 251 U.S. 146, 163 (1919). _See also_ Ruppert _v._ Caffey, 251 +U.S. 264 (1920). + +[1287] Block _v._ Hirsh, 256 U.S. 135 (1921). + +[1288] Chastleton Corp. _v._ Sinclair, 264 U.S. 543 (1924). + +[1289] 333 U.S. 138 (1948). _See also_ Fleming _v._ Mohawk Wrecking & +Lumber Co., 331 U.S. 111 (1947). + +[1290] 333 U.S. 138, 143-144 (1948). + +[1291] Ludecke _v._ Watkins, 335 U.S. 160, 170 (1948). + +[1292] 100 U.S. 158 (1880). + +[1293] Ibid. 170. + +[1294] 4 Wall. 2 (1866). + +[1295] Ibid. 127. + +[1296] Ibid. 132, 138. + +[1297] 327 U.S. 304 (1946). + +[1298] 8 Cr. 110 (1814). _See also_ Conrad _v._ Waples, 96 U.S. 279, 284 +(1878). + +[1299] Miller _v._ United States, 11 Wall. 268 (1871). + +[1300] Stoehr _v._ Wallace, 255 U.S. 239 (1921); Central Union Trust Co. +_v._ Garvan, 254 U.S. 554 (1921); United States _v._ Chemical +Foundation, 272 U.S. 1 (1926); Silesian-American Corp. _v._ Clark, 332 +U.S. 469 (1947); Cities Service Co. _v._ McGrath, 342 U.S. 330 (1952). + +[1301] The "Siren," 13 Wall. 389 (1871). + +[1302] The "Hampton," 5 Wall. 372, 376 (1867). + +[1303] The "Paquete Habana," 175 U.S. 677, 700, 711 (1900). + +[1304] Block _v._ Hirsh, 256 U.S. 135, 156, 157 (1921). + +[1305] Bowles _v._ Willingham, 321 U.S. 503, 519 (1944). + +[1306] Ibid. 521. + +[1307] 255 U.S. 81 (1921). + +[1308] Ibid. 89. + +[1309] Schenck _v._ United States, 249 U.S. 47 (1919); Debs _v._ United +States, 249 U.S. 211 (1919); Sugarman _v._ United States, 249 U.S. 182 +(1919); Frohwerk _v._ United States, 249 U.S. 204 (1919); Abrams _v._ +United States, 250 U.S. 616 (1919). + +[1310] 40 Stat. 217 (1917); amended by 40 Stat. 553 (1918). + +[1311] 249 U.S. 47 (1919). + +[1312] Ibid. 52. + +[1313] Gilbert _v._ Minnesota, 254 U.S. 325 (1920). + +[1314] Hirabayashi _v._ United States, 320 U.S. 81 (1943). + +[1315] Korematsu _v._ United States, 323 U.S. 214 (1944). + +[1316] Ex parte Endo, 323 U.S. 283 (1944). + +[1317] 1 Stat. 577 (1798). + +[1318] Writings of James Madison, VI, 360-361 (Hunt's ed., 1906). + +[1319] 40 Stat. 531 (1918). + +[1320] 335 U.S. 160 (1948). + +[1321] Mitchell _v._ Harmony, 13 How. 115, 134 (1852). + +[1322] 13 Wall. 623, 627 (1871). + +[1323] 120 U.S. 227 (1887). + +[1324] Ibid. 239. + +[1325] H.R. Rep. No. 262, 43d Cong., 1st sess., 39-40 (1874). + +[1326] United States _v._ Commodities Trading Corp., 339 U.S. 121 +(1950); United States _v._ Toronto Nav. Co., 338 U.S. 396 (1949); +Kimball Laundry Co. _v._ United States, 338 U.S. 1 (1949); United States +_v._ Cors, 337 U.S. 325 (1949); United States _v._ John J. Felin & Co., +334 U.S. 624 (1948); United States _v._ Petty Motor Co., 327 U.S. 372 +(1946); United States _v._ General Motors Corp., 323 U.S. 373 (1945). + +[1327] Moore _v._ Houston, 3 S. & R. (Pa.) 169 (1817), affirmed in +Houston _v._ Moore, 5 Wheat. 1 (1820). + +[1328] Texas _v._ White, 7 Wall. 700 (1869); Tyler _v._ Defrees, 11 +Wall. 331 (1871). + +[1329] 1 Stat. 424 (1795). + +[1330] Martin _v._ Mott, 12 Wheat. 19, 32 (1827). + +[1331] Houston _v._ Moore, 5 Wheat. 1 (1820); Martin _v._ Mott, 12 +Wheat. 19 (1827). + +[1332] Houston _v._ Moore, 5 Wheat. 1, 16 (1820). + +[1333] 39 Stat. 166, 197 (1916).--By the act of June 28, 1947 (61 Stat. +191, 192) the age of enlistment in the National Guard was lowered to 17 +years. + +[1334] United States _v._ Hammond, 1 Cr. C.C. 15 (1801). + +[1335] 2 Stat. 103 (1801). + +[1336] 2 Stat. 195 (1802). + +[1337] 20 Stat. 102 (1878). + +[1338] Metropolitan R. Co. _v._ District of Columbia, 132 U.S. 1, 9 +(1889). + +[1339] District of Columbia _v._ Bailey, 171 U.S. 161 (1898). + +[1340] Shoemaker _v._ United States, 147 U.S. 282, 299 (1893). + +[1341] Morris _v._ United States, 174 U.S. 196 (1899). + +[1342] United States ex rel. Greathouse _v._ Dern, 289 U.S. 352, 354 +(1933); Smoot Sand & Gravel Corp. _v._ Washington Airport, 283 U.S. 348 +(1931); Maryland _v._ West Virginia, 217 U.S. 577 (1910); Marine R. & +Coal Co. _v._ United States, 257 U.S. 47 (1921); Morris _v._ United +States, 174 U.S. 196 (1899). + +[1343] Phillips _v._ Payne, 92 U.S. 130 (1876). + +[1344] 1 Stat. 139 (1790). + +[1345] United States _v._ Simms, 1 Cr. 252, 256 (1803). + +[1346] 2 Stat. 103, 104 (1801). _See_ Tayloe _v._ Thomson, 5 Pet. 358, +368 (1831); Ex parte Watkins, 7 Pet. 568 (1833); Stelle _v._ Carroll, 12 +Pet. 201, 205 (1838); Van Ness _v._ Bank of United States, 13 Pet. 17 +(1839); United States _v._ Eliason, 16 Pet. 291, 301 (1842). + +[1347] Reily _v._ Lamar, 2 Cr. 344, 356 (1805). + +[1348] Korn _v._ Mutual Assur. Soc., 6 Cr. 192, 199 (1810). + +[1349] Mutual Assur. Soc. _v._ Watts, 1 Wheat. 279 (1816). + +[1350] Hepburn _v._ Ellzey, 2 Cr. 445, 452 (1805); _see also_ Sere _v._ +Pitot, 6 Cr. 332, 336 (1810); New Orleans _v._ Winter, 1 Wheat. 91, 94 +(1816). The District has been held to be a "State" within the terms of a +treaty regulating the inheritance of property within the "States of the +Union." De Geofroy _v._ Riggs, 133 U.S. 258 (1890). + +[1351] Barney _v._ Baltimore, 6 Wall. 280 (1868); Hooe _v._ Jamieson, +166 U.S. 395 (1897); Hooe _v._ Werner, 166 U.S. 399 (1897). + +[1352] National Mut. Ins. Co. _v._ Tidewater Transfer Co., Inc., 337 +U.S. 582 (1949). + +[1353] Ibid. 588-600 (opinion of Justice Jackson, with whom Justices +Black and Burton concurred). + +[1354] Ibid. 604 (opinion of Justice Rutledge, with whom Justice Murphy +concurred). + +[1355] Callan _v._ Wilson, 127 U.S. 540 (1888); Capital Traction Co. +_v._ Hof, 174 U.S. 1 (1899). + +[1356] United States _v._ Moreland, 258 U.S. 433 (1922). + +[1357] Wight _v._ Davidson, 181 U.S. 371, 384 (1901); _Cf._ Adkins _v._ +Children's Hospital, 261 U.S. 525 (1923) overruled by West Coast Hotel +Co. _v._ Parrish, 300 U.S. 379 (1937). + +[1358] Kendall _v._ United States ex rel. Stokes, 12 Pet. 524, 619 +(1838); Shoemaker _v._ United States, 147 U.S. 282, 300 (1893); Atlantic +Cleaners & Dyers _v._ United States, 286 U.S. 427, 435 (1932); +O'Donoghue _v._ United States 289 U.S. 516, 518 (1933). + +[1359] 6 Wheat. 264 (1821). + +[1360] Ibid. 428. + +[1361] Loughborough _v._ Blake, 5 Wheat. 317 (1820). + +[1362] Gibbons _v._ District of Columbia, 116 U.S. 404, 408 (1886); +Welch _v._ Cook, 97 U.S. 541 (1879). + +[1363] Loughborough _v._ Blake, 5 Wheat. 317, 320 (1820); Heald _v._ +District of Columbia, 259 U.S. 114 (1922). + +[1364] Thompson _v._ Roe ex dem. Carroll, 22 How. 422, 435 (1860); +Stoutenburgh _v._ Hennick, 129 U.S. 141, 147 (1889). + +[1365] Willard _v._ Presbury, 14 Wall. 676, 680 (1870); Briscoe _v._ +Rudolph, 221 U.S. 547 (1911). + +[1366] Washington Market Co. _v._ District of Columbia, 172 U.S. 361, +367 (1899). + +[1367] Mattingly _v._ District of Columbia, 97 U.S. 687, 690 (1878). + +[1368] 129 U.S. 141, 148 (1889). + +[1369] Keller _v._ Potomac Electric Power Co., 261 U.S. 428 (1923). + +[1370] O'Donoghue _v._ United States, 289 U.S. 516 (1933). + +[1371] Embry _v._ Palmer, 107 U.S. 3 (1883). + +[1372] James _v._ Dravo Contracting Co., 302 U.S. 134, 143 (1937). + +[1373] Battle _v._ United States, 209 U.S. 36 (1908). + +[1374] Arlington Hotel Co. _v._ Fant, 278 U.S. 439 (1929). + +[1375] James _v._ Dravo Contracting Co, 302 U.S. 134, 143 (1937). + +[1376] Collins _v._ Yosemite Park Co., 304 U.S. 518, 530 (1938). + +[1377] Ibid. 528. + +[1378] Battle _v._ United States, 209 U.S. 36 (1908); Johnson _v._ +Yellow Cab Co., 321 U.S. 383 (1944); Bowen _v._ Johnston, 306 U.S. 19 +(1939). + +[1379] Surplus Trading Co. _v._ Cook, 281 U.S. 647 (1930). + +[1380] Western Union Teleg. Co. _v._ Chiles, 214 U.S. 274 (1909); +Arlington Hotel Co. _v._ Fant, 278 U.S. 439 (1929); Pacific Coast Dairy +_v._ Dept. of Agri., 318 U.S. 285 (1943). + +[1381] Chicago, R.I. & P.R. Co. _v._ McGlinn, 114 U.S. 542, 545 (1885); +James Stewart & Co. _v._ Sadrakula, 309 U.S. 94 (1940). + +[1382] Palmer _v._ Barrett, 162 U.S. 399 (1896). + +[1383] United States _v._ Unzeuta, 281 U.S. 138 (1930). + +[1384] Benson _v._ United States, 146 U.S. 325, 331 (1892). + +[1385] Palmer _v._ Barrett, 162 U.S. 399 (1896). + +[1386] S.R.A., Inc. _v._ Minnesota, 327 U.S. 558, 564 (1946). + +[1387] Ibid. 570, 571. + +[1388] Fort Leavenworth R. Co. _v._ Lowe, 114 U.S. 525, 532 (1885); +United States _v._ Unzeuta, 281 U.S. 138, 142 (1930); Surplus Trading +Co. _v._ Cook, 281 U.S. 647, 652 (1930). + +[1389] United States _v._ Cornell, 25 Fed. Cas. No. 14,867 (1819). + +[1390] James _v._ Dravo Contracting Co., 302 U.S. 134, 145 (1937). + +[1391] Silas Mason Co. _v._ Tax Commission of Washington, 302 U.S. 186 +(1937). _See also_ Atkinson _v._ State Tax Commission, 303 U.S. 20 +(1938). + +[1392] 4 Wheat. 316 (1819). + +[1393] Ibid. 420. This decision had been clearly foreshadowed fourteen +years earlier by Marshall's opinion in United States _v._ Fisher, 2 Cr. +358, 396 (1805). Upholding an act which gave priority to claims of the +United States against the estate of a bankrupt he wrote: "The government +is to pay the debt of the Union, and must be authorized to use the means +which appear to itself most eligible to effect that object. It has, +consequently, a right to make remittances, by bills or otherwise, and to +take those precautions which will render the transaction safe." + +[1394] _See_ pp. 74-82, _supra_. + +[1395] Neely _v._ Henkel, 180 U.S. 109, 121 (1901). _See also_ Missouri +_v._ Holland, 252 U.S. 416 (1920). + +[1396] _See_ p. 426, _supra_. + +[1397] Den ex dem. Murray _v._ Hoboken Land & Improvement Co., 18 How. +272, 281 (1856). + +[1398] Kohl _v._ United States, 91 U.S. 367, 373 (1876); United Slates +_v._ Fox, 94 U.S. 315, 320 (1877). + +[1399] _See_ pp. 110-117, 266-267. + +[1400] United States _v._ Fox, 95 U.S. 670, 672 (1878); United States +_v._ Hall, 98 U.S. 343, 357 (1879); United States _v._ Worrall, 2 Dall. +384, 394 (1790); McCulloch _v._ Maryland, 4 Wheat. 316 (1819). That this +power has been freely exercised is attested by the 180 pages of the +United States Code (1950 ed.) devoted to Title 18, entitled "Criminal +Code and Criminal Procedure." In addition numerous regulatory measures +prescribe criminal penalties for infractions thereof. + +[1401] Ex parte Carll, 106 U.S. 521 (1883). + +[1402] United States _v._ Marigold, 9 How. 560, 567 (1850). + +[1403] Logan _v._ United States, 144 U.S. 263 (1892). + +[1404] United States _v._ Barnow, 239 U.S. 74 (1915). + +[1405] Ex parte Yarbrough, 110 U.S. 651 (1884); United States _v._ +Waddell, 112 U.S. 76 (1884); In re Quarles, 158 U.S. 532, 537 (1895); +Motes _v._ United States, 178 U.S. 458 (1900); United States _v._ +Mosley, 238 U.S. 383 (1915). _See also_ Rakes _v._ United States, 212 +U.S. 55 (1909). + +[1406] Ex parte Curtis, 106 U.S. 371 (1882). + +[1407] The Alien Registration Act of 1940, 54 Stat. 670, 18 U.S.C.A. +Sec. 2385. + +[1408] McCulloch _v._ Maryland, 4 Wheat. 316, 407 (1819). + +[1409] Osborn _v._ Bank of the United States, 9 Wheat. 738, 862 (1824). +_See also_ Pittman _v._ Home Owners' Loan Corp., 308 U.S. 21 (1939). + +[1410] First Nat. Bank _v._ Fellows ex rel. Union Trust Co., 244 U.S. +416 (1917); Burnes Nat. Bank _v._ Duncan, 265 U.S. 17 (1924). + +[1411] Smith _v._ Kansas City Title and Trust Co., 255 U.S. 180 (1921). + +[1412] Juilliard _v._ Greenman, 110 U.S. 421, 449 (1884). + +[1413] Veazie Bank _v._ Fenno, 8 Wall. 533 (1869). + +[1414] Juilliard _v._ Greenman, 110 U.S. 421 (1884). _See also_ Legal +Tender Cases, 12 Wall. 457 (1871). + +[1415] Norman _v._ Baltimore & O.R. Co., 294 U.S. 240, 303 (1935). + +[1416] Pacific Railroad Removal Cases (Union P.R. Co. _v._ Myers), 115 +U.S. 1, 18 (1885); California _v._ Central P.R. Co., 127 U.S. 1, 39 +(1888). + +[1417] Luxton _v._ North River Bridge Co., 153 U.S. 525 (1894). + +[1418] Clallam County _v._ United States, 263 U.S. 341 (1923). + +[1419] Sloan Shipyards _v._ United States Fleet Corp., 258 U.S. 549 +(1922). In 1944, the Congressional Joint Committee on Nonessential +Federal Expenditures reported that there were then in existence one +hundred government corporations, including subsidiaries and +quasi-private corporations in which the Government had some special +contractual or proprietary interest. S. Doc. No. 227, 78th Cong., 2d +sess. 2 (1944). + +[1420] Rhode Island _v._ Massachusetts, 12 Pet. 657, 721 (1838). + +[1421] Tennessee _v._ Davis, 100 U.S. 257, 263 (1880). + +[1422] Chicago & Northwestern R. Co. _v._ Whitton, 13 Wall. 270, 287 +(1872). + +[1423] Embry _v._ Palmer, 107 U.S. 3 (1883). + +[1424] Bank of United States _v._ Halstead, 10 Wheat. 51, 53 (1825). + +[1425] United States Exp. Co. _v._ Kountze Bros., 8 Wall. 342, 350 +(1860). + +[1426] Ex parte Bakelite Corp., 279 U.S. 438, 449 (1929). + +[1427] 43 Stat. 5 (1924). _See_ Sinclair _v._ United States, 279 U.S. +263 (1929). + +[1428] Paramino Lumber Co. _v._ Marshall, 309 U.S. 370 (1940). + +[1429] Pope _v._ United States, 323 U.S. 1 (1944). + +[1430] Detroit Trust Company _v._ The "Thomas Barium," 293 U.S. 21 +(1934). + +[1431] Knickerbocker Ice Co. _v._ Stewart, 253 U.S. 149 (1920); +Washington _v._ Dawson & Co., 264 U.S. 219 (1924). + +[1432] Barron _v._ Baltimore, 7 Pet. 243 (1833); Morgan's L. & T.R. & +S.S. Co. _v._ Louisiana Board of Health, 118 U.S. 455, 467 (1886). + +[1433] Munn _v._ Illinois, 94 U.S. 113, 135 (1877); Johnson _v._ Chicago +& P. Elevator Co., 119 U.S. 388, 400 (1886). + +[1434] 19 How. 393, 411 (1857). + +[1435] Gasquet _v._ Lapeyre, 242 U.S. 367 (1917). + +[1436] 1 Stat. 73, 81 (1789). + +[1437] Ex parte Watkins, 3 Pet. 193, 202 (1830). + +[1438] Ex parte Bollman, 4 Cr. 75, 101 (1807). + +[1439] Price _v._ Johnston, 334 U.S. 266, 282 (1948). + +[1440] United States _v._ Smith, 331 U.S. 469, 475 (1947). + +[1441] Gusik _v._ Schilder, 339 U.S. 977 (1950). + +[1442] Frank _v._ Mangum, 237 U.S. 309, 330 (1915). + +[1443] 1 Stat. 73, 81 (1789). + +[1444] Ex parte Watkins, 3 Pet. 193, 202 (1830); Ex parte Kearney, 7 +Wheat. 38 (1822). + +[1445] 14 Stat. 385 (1867). + +[1446] Frank _v._ Mangum, 237 U.S. 309, 331 (1915). + +[1447] Ex parte Bollman, 4 Cr. 75 (1807). + +[1448] Adams _v._ United States ex rel. McCann, 317 U.S. 269, 274 +(1942); Glasgow _v._ Moyer, 225 U.S. 420, 428 (1912); Matter of Gregory, +219 U.S. 210, 213 (1911). + +[1449] Adams _v._ United States ex rel. McCann, 317 U.S. 269, 274 +(1942). + +[1450] Walker _v._ Johnston, 312 U.S. 275 (1941); Waley _v._ Johnston, +316 U.S. 101 (1942). + +[1451] Ex parte Milligan, 4 Wall. 2, 110 (1866). + +[1452] McNally _v._ Hill, 293 U.S. 131 (1934). + +[1453] Goto _v._ Lane, 265 U.S. 393 (1924). + +[1454] Salinger _v._ Loisel, 265 U.S. 224 (1924). + +[1455] Wong Doo _v._ United States, 265 U.S. 239 (1924). + +[1456] Price _v._ Johnston, 334 U.S. 266, 294 (1948). + +[1457] Corwin, The President, Office and Powers, 178 (3d ed., 1948). + +[1458] Ex parte Bollman, 4 Cr. 75, 101 (1807). + +[1459] Messages and Papers of the Presidents, VII, 3219 (1897). + +[1460] Fed. Cas. No. 9, 487 (1861). + +[1461] 10 Op. Atty. Gen. 74, 89 (1861-1863). + +[1462] 12 Stat. 755 (1863). + +[1463] 4 Wall. 2 (1866). + +[1464] Ibid. 114. + +[1465] Story, Commentaries on the Constitution, II, Sec. 1344 (4th ed., +1873). + +[1466] Cummings _v._ Missouri, 4 Wall. 277, 323 (1867). + +[1467] United States _v._ Lovett, 328 U.S. 303, 315 (1946). + +[1468] Ex parte Garland, 4 Wall. 333, 377 (1867). + +[1469] United States _v._ Lovett, 328 U.S. 303 (1946). + +[1470] Story, Commentaries on the Constitution, II, Sec. 1345. + +[1471] 3 Dall. 386, 393 (1798). + +[1472] Bankers Trust Co. _v._ Blodgett, 260 U.S. 647, 652 (1923). + +[1473] Burgess _v._ Salmon, 97 U.S. 381 (1878). + +[1474] Calder _v._ Bull, 3 Dall. 386, 390 (1798); Ex parte Garland, 4 +Wall. 333, 377 (1867); Burgess _v._ Salmon, 97 U.S. 381, 384 (1878). + +[1475] United States _v._ Powers, 307 U.S. 214 (1939). + +[1476] Neely _v._ Henkel, 180 U.S. 109, 123 (1901). _Cf._ In re +Yamashita, 327 U.S. 1, 26 (1946) (dissenting opinion of Justice Murphy); +Hirota _v._ MacArthur, 338 U.S. 197, 199 (1948) (concurring opinion of +Justice Douglas). + +[1477] Ex parte Garland, 4 Wall. 333 (1867). + +[1478] Murphy _v._ Ramsey, 114 U.S. 15 (1885). + +[1479] Mahler _v._ Eby, 264 U.S. 32 (1924); Bugajewitz _v._ Adams, 228 +U.S. 585 (1913). + +[1480] Johannessen _v._ United States, 225 U.S. 227 (1912). + +[1481] Cook _v._ United States, 138 U.S. 157, 183 (1891). + +[1482] Calder _v._ Bull, 3 Dall. 386, 390 (1798). + +[1483] Hopt _v._ Utah, 110 U.S. 574, 589 (1884). + +[1484] 157 U.S. 429, 573 (1895). + +[1485] 2 Madison, The Constitutional Convention, 208 (Hunt's ed., 1908). + +[1486] 3 Dall. 171 (1796). + +[1487] 7 Hamilton's Works, 845, 848 (Hamilton's ed., 1851). "If the +meaning of the word _excise_ is to be sought in the British statutes, it +will be found to include the duty on carriages, which is there +considered as an _excise_, and then must necessarily be uniform and +liable to apportionment; consequently, not a direct tax." Ibid. + +[1488] 4 Annals of Congress, 730 (1794); 2 Madison's Writings, 14, +(Library of Congress ed., 1865) (Letter to Thomas Jefferson, May 11, +1794). + +[1489] 3 Dall. 171, 177 (1796). + +[1490] Pacific Ins. Co. _v._ Soule, 7 Wall. 433 (1869). + +[1491] Veazie Bank _v._ Fenno, 8 Wall. 533 (1869). + +[1492] Scholey _v._ Rew, 23 Wall. 331 (1875). + +[1493] Springer _v._ United States, 102 U.S. 586 (1881). + +[1494] Ibid. 602. + +[1495] 157 U.S. 429 (1895); 158 U.S. 601 (1895). + +[1496] 28 Stat. 509 (1894). + +[1497] Stanton _v._ Baltic Mining Co., 240 U.S. 103 (1916); Knowlton +_v._ Moore, 178 U.S. 41, 80 (1900). + +[1498] Nicol _v._ Ames, 173 U.S. 509 (1899). + +[1499] Knowlton _v._ Moore, 178 U.S. 41 (1900). + +[1500] Patton _v._ Brady, 184 U.S. 608 (1902). + +[1501] 192 U.S. 363 (1904). + +[1502] Ibid. 370. + +[1503] 192 U.S. 397 (1904). + +[1504] 220 U.S. 107 (1911). + +[1505] 240 U.S. 103 (1916). + +[1506] Ibid. 114. + +[1507] 232 U.S. 261 (1914). + +[1508] New York Trust Co. _v._ Eisner, 256 U.S. 345, 349 (1921). + +[1509] Phillips _v._ Dime Trust & Safe Deposit Co., 284 U.S. 160 (1931). + +[1510] Tyler _v._ United States, 281 U.S. 497 (1930). + +[1511] Fernandez _v._ Wiener, 326 U.S. 340 (1945). + +[1512] Chase National Bank _v._ United States, 278 U.S. 327 (1929). + +[1513] Bromley _v._ McCaughn, 280 U.S. 124, 136 (1929). _See also_ +Helvering _v._ Bullard, 303 U.S. 297 (1938). + +[1514] Bromley _v._ McCaughn, 280 U.S. 124, 140 (1929). + +[1515] Loughborough _v._ Blake, 5 Wheat. 317 (1820). + +[1516] De Treville _v._ Smalls, 98 U.S. 517, 527 (1879). + +[1517] Turpin & Bro. _v._ Burgess, 117 U.S. 504, 507 (1886). _Cf._ Almy +_v._ California, 24 How. 169, 174 (1861). + +[1518] Dooley _v._ United States, 183 U.S. 151, 154 (1901). + +[1519] Cornell _v._ Coyne, 192 U.S. 418, 428 (1904); Turpin & Bro. _v._ +Burgess, 117 U.S. 504, 507 (1886). + +[1520] Spalding & Bros. _v._ Edwards, 262 U.S. 66 (1923). + +[1521] Thompson _v._ United States, 142 U.S. 471 (1892). + +[1522] Peck & Co. _v._ Lowe, 247 U.S. 165 (1918); National Paper & Type +Co. _v._ Bowers, 266 U.S. 373 (1924). + +[1523] Fairbank _v._ United States, 181 U.S. 283 (1901). + +[1524] United States _v._ Hvoslef, 237 U.S. 1 (1915). + +[1525] Thames & Mersey Ins. Co. _v._ United States, 237 U.S. 19 (1915). + +[1526] Pace _v._ Burgess, 92 U.S. 372 (1876); Turpin & Bro. _v._ +Burgess, 117 U.S. 504, 505 (1886). + +[1527] Louisiana Public Service Comm'n. _v._ Texas & N.O.R. Co., 284 +U.S. 125, 131 (1931); Pennsylvania _v._ Wheeling & Belmont Bridge Co., +18 How. 421, 433 (1856); South Carolina _v._ Georgia, 93 U.S. 4 (1876). +In Williams _v._ United States, 255 U.S. 336 (1921) the argument that an +act of Congress which prohibited interstate transportation of liquor +into States whose laws prohibited manufacture or sale of liquor for +beverage purposes was repugnant to this clause was rejected as plainly +wanting in merit. + +[1528] Louisiana Public Service Comm'n. _v._ Texas & N.O.R. Co., 284 +U.S. 125, 132 (1931). + +[1529] Smith _v._ Turner (Passenger Cases), 7 How. 283, 414 (1849) +(opinion of Justice Wayne); _cf._ Cooley _v._ Board of Port Wardens, 12 +How. 299, 314 (1851). + +[1530] Morgan's L. & T.R. & S.S. Co. _v._ Louisiana Bd. of Health, 118 +U.S. 455, 467 (1886). _See also_ Munn _v._ Illinois, 94 U.S. 113, 135 +(1877); Johnson _v._ Chicago & P. Elevator Co., 119 U.S. 388, 400 +(1886). + +[1531] 1 Stat. 53, 54 (1789). + +[1532] Thompson _v._ Darden, 198 U.S. 310 (1905). + +[1533] Alaska _v._ Troy, 258 U.S. 101 (1922). + +[1534] Cincinnati Soap Co. _v._ United States, 301 U.S. 308, 321 (1937); +Knote _v._ United States, 95 U.S. 149, 154 (1877). + +[1535] United States _v._ Price, 116 U.S. 43 (1885); United States _v._ +Realty Co., 163 U.S. 427, 439 (1896); Allen _v._ Smith, 173 U.S. 389, +393 (1899). + +[1536] Hart _v._ United States, 118 U.S. 62, 67 (1886). + +[1537] 32 Stat. 388 (1902). + +[1538] Cincinnati Soap Co. _v._ United States, 301 U.S. 308, 322 (1937). + +[1539] Reeside _v._ Walker, 11 How. 272 (1851). + +[1540] United States _v._ Klein, 13 Wall. 128 (1872). + +[1541] Knote _v._ United States, 95 U.S. 149, 154 (1877); Austin _v._ +United States, 155 U.S. 417, 427 (1894). + +[1542] Hart _v._ United States, 118 U.S. 62, 67 (1886). + +[1543] 13 Op. Atty. Gen. 538 (1871). + +[1544] Williams _v._ Bruffy, 96 U.S. 176, 183 (1878). + +[1545] 14 Pet. 540 (1840). + +[1546] United States _v._ California, 332 U.S. 19 (1947). + +[1547] 313 U.S. 69 (1941). + +[1548] Ibid. 78-79. + +[1549] Craig _v._ Missouri, 4 Pet. 410, 425 (1830); Byrne _v._ Missouri, +8 Pet. 40 (1834). + +[1550] Poindexter _v._ Greenhow, 114 U.S. 270 (1885); Chaffin _v._ +Taylor, 116 U.S. 567 (1886). + +[1551] Houston & T.C.R. Co. _v._ Texas, 177 U.S. 66 (1900). + +[1552] Briscoe _v._ Bank of Kentucky, 11 Pet. 257 (1837). + +[1553] Darrington _v._ Bank of Alabama, 13 How. 12, 15 (1851); Curran +_v._ Arkansas, 15 How. 304, 317 (1853). + +[1554] Briscoe _v._ Bank of Kentucky, 11 Pet. 257 (1837). + +[1555] Woodruff _v._ Trapnall, 10 How. 190, 205 (1851). + +[1556] Legal Tender Cases, 110 U.S. 421, 446 (1884). + +[1557] Gwin _v._ Breedlove, 2 How. 29, 38 (1844). _See also_ Griffin +_v._ Thompson, 2 How. 244 (1844). + +[1558] Farmers & Merchants Bank _v._ Federal Reserve Bank, 262 U.S. 649, +659 (1923). + +[1559] Cummings _v._ Missouri, 4 Wall. 277, 323 (1867); Klinger _v._ +Missouri, 13 Wall. 257 (1872); Pierce _v._ Carskadon, 16 Wall. 234, 239 +(1873). _See_ p. 317, _supra_, and p. 327, _post_. + +[1560] Calder _v._ Bull, 3 Dall. 386, 390 (1798); Watson _v._ Mercer, 8 +Pet. 88, 110 (1834); Baltimore & S.R. Co. _v._ Nesbit, 10 How. 395, 401 +(1850); Carpenter _v._ Pennsylvania, 17 How. 456, 463 (1855); Loche _v._ +New Orleans, 4 Wall. 172 (1867); Orr _v._ Gilman, 183 U.S. 278, 285 +(1902); Kentucky Union Co. _v._ Kentucky, 219 U.S. 140 (1911). + +[1561] Frank _v._ Mangum, 237 U.S. 300, 344 (1915); Ross _v._ Oregon, +227 U.S. 150, 161 (1913). + +[1562] Jaehne _v._ New York, 128 U.S. 189, 190 (1888). + +[1563] Rooney _v._ North Dakota, 196 U.S. 319, 325 (1905). + +[1564] Chicago & A.R. Co. _v._ Tranbarger, 238 U.S. 67 (1915). + +[1565] Samuels _v._ McCurdy, 267 U.S. 188 (1925). + +[1566] Hawker _v._ New York, 170 U.S. 189, 190 (1898). _See also_ Reetz +_v._ Michigan, 188 U.S. 505, 509 (1903); Lehmann _v._ State Board of +Public Accountancy, 263 U.S. 394 (1923). + +[1567] Cummings _v._ Missouri, 4 Wall. 277, 316 (1867). + +[1568] Pierce _v._ Carskadon, 16 Wall. 234 (1873). + +[1569] Lindsey _v._ Washington, 301 U.S. 397 (1937). + +[1570] Kring _v._ Missouri, 107 U.S. 221 (1883). + +[1571] Holden _v._ Minnesota, 137 U.S. 483, 491 (1890). + +[1572] Ex parte Medley, 134 U.S. 160, 171 (1890). + +[1573] Gryger _v._ Burke, 334 U.S. 728 (1948); McDonald _v._ +Massachusetts, 180 U.S. 311 (1901); Graham _v._ West Virginia, 224 U.S. +616 (1912). + +[1574] Malloy _v._ South Carolina, 237 U.S. 180 (1915). + +[1575] Rooney _v._ North Dakota, 196 U.S. 319, 324 (1905). + +[1576] Gibson _v._ Mississippi, 162 U.S. 565, 590 (1896). + +[1577] Duncan _v._ Missouri, 152 U.S. 377, 382 (1894). + +[1578] Gut _v._ Minnesota, 9 Wall. 35, 37 (1870). + +[1579] Duncan _v._ Missouri, 152 U.S. 377 (1894). + +[1580] Mallett _v._ North Carolina, 181 U.S. 589, 593 (1901). + +[1581] Gibson _v._ Mississippi, 162 U.S. 565, 588 (1896). + +[1582] Beazell _v._ Ohio, 269 U.S. 167 (1925). + +[1583] Thompson _v._ Missouri, 171 U.S. 380, 381 (1898). + +[1584] Thompson _v._ Utah, 170 U.S. 343 (1898). + +[1585] Dodge _v._ Woolsey, 18 How. 331 (1856); Railroad Co. _v._ +McClure, 10 Wall. 511 (1871); New Orleans Gaslight Co. _v._ Louisiana +Light & Heat Producing & Mfg. Co., 115 U.S. 650 (1885); Bier _v._ +McGehee, 148 U.S. 137, 140 (1893). + +[1586] New Orleans Waterworks Co. _v._ Rivers, 115 U.S. 674 (1885); +Walla Walla _v._ Walla Walla Water Co., 172 U.S. 1 (1898); Vicksburg +_v._ Vicksburg Waterworks Co., 202 U.S. 453 (1906); Atlantic Coast Line +R. Co. _v._ Goldsboro, 232 U.S. 548 (1914); Cuyahoga River Power Co. +_v._ Akron, 240 U.S. 462 (1916). + +[1587] The above; _also_ Grand Trunk Western R. Co. _v._ Railroad +Commission, 221 U.S. 400 (1911); Louisville & N.R. Co. _v._ Garrett, 231 +U.S. 298 (1913); Appleby _v._ Delaney, 271 U.S. 403 (1926). + +[1588] Central Land Co. _v._ Laidley, 159 U.S. 103 (1895). _See also_ +New Orleans Waterworks Co. _v._ Louisiana Sugar Ref. Co., 125 U.S. 18 +(1888); Hanford _v._ Davies, 163 U.S. 273 (1896); Ross _v._ Oregon, 227 +U.S. 150 (1913); Detroit United R. Co. _v._ Michigan, 242 U.S. 238 +(1916); Long Sault Development Co. _v._ Call, 242 U.S. 272 (1916); McCoy +_v._ Union Elev. Co., 247 U.S. 354 (1918); Columbia R. Gas & E. Co. _v._ +South Carolina, 261 U.S. 236 (1923); Tidal Oil Co. _v._ Flanagan, 263 +U.S. 444 (1924). + +[1589] Jefferson Branch Bank _v._ Skelly, 1 Bl. 436, 443 (1862); Bridge +Proprietors _v._ Hoboken Co., 1 Wall. 116, 145 (1863); Wright _v._ +Nagle, 101 U.S. 791, 793 (1880); and McGahey _v._ Virginia, 135 U.S. +662, 667 (1890); Scott _v._ McNeal, 154 U.S. 34, 45 (1894); Stearns _v._ +Minnesota, 179 U.S. 223, 232-233 (1900); Coombes _v._ Getz, 285 U.S. +434, 441 (1932); Atlantic C.L.R. Co. _v._ Phillips, 332 U.S. 168, 170 +(1947). + +[1590] McCullough _v._ Virginia, 172 U.S. 102 (1898); Houston & Texas +Central R.R. Co. _v._ Texas, 177 U.S. 66, 76, 77 (1900); Hubert _v._ New +Orleans, 215 U.S. 170, 175 (1909); Carondelet Canal Co. _v._ Louisiana, +233 U.S. 362, 376 (1914); Louisiana Ry. & Nav. Co. _v._ New Orleans, 235 +U.S. 164, 171 (1914). + +[1591] State Bank of Ohio _v._ Knoop, 16 How. 369 (1854), and Ohio Life +Insurance & Trust Co. _v._ Debolt, 16 How. 416 (1854) are the leading +cases. _See also_ Jefferson Branch Bank _v._ Skelly, 1 Bl. 436 (1862); +Louisiana _v._ Pilsbury, 105 U.S. 278 (1882); McGahey _v._ Virginia, 135 +U.S. 662 (1890); Mobile & Ohio R.R. Co. _v._ Tennessee, 153 U.S. 486 +(1894); Bacon _v._ Texas, 163 U.S. 207 (1896); McCullough _v._ Virginia, +172 U.S. 102 (1898). + +[1592] Gelpcke _v._ Dubuque, 1 Wall. 175, 206 (1864); Havemeyer _v._ +Iowa County, 3 Wall. 294 (1866); Thompson _v._ Lee County, 3 Wall. 327 +(1866); Kenosha _v._ Lamson, 9 Wall. 477 (1870); Olcott _v._ Fond du Lac +County, 16 Wall. 678 (1873); Taylor _v._ Ypsilanti, 105 U.S. 60 (1882); +Anderson _v._ Santa Anna, 116 U.S. 356 (1886); Wilkes County _v._ Coler, +180 U.S. 506 (1901). + +[1593] Great Southern Fire Proof Hotel Co. _v._ Jones, 193 U.S. 532, 548 +(1904). + +[1594] Sauer _v._ New York, 206 U.S. 536 (1907); Muhlker _v._ New York & +H.R. Co., 197 U.S. 544, 570 (1905). + +[1595] Tidal Oil Company _v._ Flanagan, 263 U.S. 444, 450, 451-452 +(1924). + +[1596] Walker _v._ Whitehead, 16 Wall. 314 (1873); Wood _v._ Lovett, 313 +U.S. 362, 370 (1941). + +[1597] 4 Wheat. 122, 197 (1819); _see also_ Curran _v._ Arkansas, 15 +How. 304 (1853). + +[1598] 4 Wheat. 518 (1819). + +[1599] Ibid. 627. + +[1600] 290 U.S. 398 (1934). + +[1601] Ibid. 431. + +[1602] Ibid. 435. + +[1603] "The _Blaisdell_ decision represented a realistic appreciation of +the fact that ours is an evolving society and that the general words of +the contract clause were not intended to reduce the legislative branch +of government to helpless impotency." Justice Black, in Wood _v._ +Lovett, 313 U.S. 362, 383 (1941). + +[1604] Wright, The Contract Clause of the Constitution, 95 (Cambridge, +1938). + +[1605] Farrand, Records, III, 548. + +[1606] The Federalist, No. 44. + +[1607] Works of James Wilson, I, 567, (Andrews, ed., 1896). + +[1608] 2 Dall. 410 (1793). + +[1609] Ogden _v._ Saunders, 12 Wheat. 213, 338 (1827). + +[1610] 6 Cr. 87 (1810). + +[1611] In Ware _v._ Hylton, 3 Dall. 199 (1797) the Court had earlier set +aside an act of Virginia as being in conflict with the Treaty of Peace, +of 1783, with Great Britain. + +[1612] As given by Professor Wright in his treatise, The Contract Clause +of the Constitution, 22. Professor Wright dates Hamilton's pamphlet, +1796. + +[1613] 6 Cr. 87, 139 (1810). Justice Johnson, in his concurring opinion, +relied exclusively on general principles. "I do not hesitate to declare, +that a State does not possess the power of revoking its own grants. But +I do it, on a general principle, on the reason and nature of things; a +principle which will impose laws even on the Deity." Ibid. 143. _See +also_ his words in Satterlee _v._ Matthewson, 2 Pet. 380, 686 (1829); +and those of the North Carolina Supreme Court in Barnes _v._ Barnes, 8 +Jones L. 53 (N.C.) 366 (1861), quoted in Thomas Henry Calvert. The +Constitution and the Courts, I, 948 (Northport, L.I., 1924). In both +these opinions it is asseverated that the contracts clause has been made +to do the work of "fundamental principles." + +[1614] 7 Cr. 164 (1812). The exemption from taxation which was involved +in this case was held in 1886 to have lapsed through the acquiescence +for sixty years of the owners of the lands in the imposition of taxes +upon these. Given _v._ Wright, 117 U.S. 648 (1886). + +[1615] Dartmouth College _v._ Woodward, 4 Wheat. 518 (1819). + +[1616] It was not until well along in the eighteenth century that the +first American business corporation was created: "This was the New +London Society United for Trade and Commerce, which was chartered in +Connecticut in 1732. It had, however, an early demise. Following this +was a second Connecticut charter, namely, for building 'Union Wharf,' on +'Long Wharf,' at New Haven. A similar company, 'The Proprietors of +Boston Pier,' or 'The Long Wharf in the Town of Boston in New England,' +was chartered by the Massachusetts General Court in 1772. In 1768 the +Pennsylvania Assembly incorporated 'The Philadelphia Contributionship +for the Insuring of Houses from Loss by Fire.' Alone of the colonial +business corporations it has had a continuous existence to the present +day. + +"Apparently the only other business corporations of the colonies were +companies for supplying water. One was incorporated in Massachusetts in +1652, and three in Rhode Island in 1772 and 1773. Alongside of these +corporations, and, indeed, preceding them, were a large number of +unincorporated associations, partnerships, societies, groups of +'undertakers,' 'companies,' formed for a great variety of business +purposes. In the eye of the law all of them were probably mere +partnerships or tenancies in common. Whaling and fishing companies, +so-called, were numerous. There were a number of mining companies, +chiefly for producing iron or copper. There were some manufacturing +companies, but they were not numerous. Banking institutions were +represented notably by the 'Bank of Credit Lumbard,' promoted in Boston +by John Blackwell and authorized by the General Court in 1686, and by +the 'Land Bank or Manufacturing Scheme' in the same colony in 1739-41. + +"In addition to these there were a few insurance companies, a number of +companies formed for the Indian trade, numerous land companies, large +and small, a number of associations for erecting bridges, building or +repairing roads, and improving navigation of small streams or rivers. +Besides these there were a few colonial corporations not easily classed, +such as libraries, chambers of commerce, etc. + +"During the Revolution few corporations of any sort were chartered. +After the conclusion of peace the situation was materially altered. +Capital had accumulated during the war. The disbanding of the army set +free a labor supply, which was rapidly increased by throngs of +immigrants. The day was one of bold experimentation, enthusiastic +exploitation of new methods, eager exploration of new paths, confident +undertaking of new enterprises. Everything conspired to bring about a +considerable extension of corporate enterprise in the field of business +before the end of the eighteenth century, notably after the critical +period of disunion and Constitution-making has passed. Prior to 1801 +over three hundred charters were granted for business corporations; 90 +per cent. of them after 1789. Judged by twentieth-century standards +these seem few, indeed, but neither in the colonies nor in the mother +country was there precedent for such a development." 105 The Nation 512 +(New York, Nov. 8, 1917), reviewing Joseph Stancliffe Davis, Essays in +the Earlier History of American Corporations (2 vols., Harvard +University Press, 1917). + +[1617] In 1806 Chief Justice Parsons of the Supreme Judicial Court of +Massachusetts, without mentioning the contracts clause, declared that +rights legally vested in a corporation cannot be "controuled or +destroyed by a subsequent statute, unless a power be reserved to the +legislature in the act of incorporation," Wales _v._ Stetson, 2 Mass. +143 (1806). _See also_ Stoughton _v._ Baker et al., 4 Mass. 522 (1808) +to like effect; _cf._ Locke _v._ Dane, 9 Mass. 360 (1812) in which it is +said that the purpose of the contracts clause was to "provide against +paper money and insolvent laws." Together these holdings add up to the +conclusion that the reliance of the Massachusetts court was on +"fundamental principles," rather than the contracts clause. + +[1618] 4 Wheat., especially at 577-595 (Webster's argument); ibid. 666 +(Story's opinion). _See also_ Story's opinion for the Court in Terrett +_v._ Taylor, 9 Cr. 43 (1815). + +[1619] 4 Wheat. 518 (1819). + +[1620] Ibid. 627. + +[1621] 4 Wheat. at 637; _see also_ Home of the Friendless _v._ Rouse, 8 +Wall. 430, 437 (1869). + +[1622] 4 Pet. 514 (1830). + +[1623] 11 Pet. 420 (1837). + +[1624] Note the various cases to which municipalities are parties. + +[1625] 4 Wheat. at 629. + +[1626] In Munn _v._ Illinois, 94 U.S. 113 (1877) a category of "business +affected with a public interest" and whose property is "impressed with a +public use" was recognized. A corporation engaged in such a business +becomes a "quasi-public" corporation, the power of the State to regulate +which is larger than in the case of a purely private corporation. +Inasmuch as most corporations receiving public franchises are of this +character, the final result of Munn _v._ Illinois was to enlarge the +police power of the State in the case of the most important +beneficiaries of the Dartmouth College decision. + +[1627] Meriwether _v._ Garrett, 102 U.S. 472 (1880); Covington _v._ +Kentucky, 173 U.S. 231 (1899); Hunter _v._ Pittsburgh, 207 U.S. 161 +(1907). + +[1628] East Hartford _v._ Hartford Bridge Co., 10 How. 511 (1851); +Hunter _v._ Pittsburgh, 207 U.S. 161 (1907). + +[1629] Trenton _v._ New Jersey, 262 U.S. 182, 191 (1923). + +[1630] Newton _v._ Mahoning County, 100 U.S. 548 (1880). + +[1631] Attorney General ex rel. Kies _v._ Lowrey, 199 U.S. 233 (1905). + +[1632] Faitoute Iron & Steel Co. _v._ Asbury Park, 316 U.S. 502 (1942). +In this case the contracts involved were municipal bonds, and hence +"private" contracts; but the overruling power of the State in relation +to its municipalities was one of the grounds invoked by the Court in +sustaining the legislation. _See_ Ibid. 509. "'A municipal corporation * +* * is a representative not only of the State, but is a portion of its +governmental power. * * * The State may withdraw these local powers of +government at pleasure, and may, through its legislature or other +appointed channels, govern the local territory as it governs the State +at large. It may enlarge or contract its powers or destroy its +existence.'" United States _v._ Baltimore & O.R. Co., 17 Wall. 322, 329 +(1873); and _see_ Hunter _v._ Pittsburgh, 207 U.S. 161 (1907). + +[1633] Butler _v._ Pennsylvania, 10 How. 402 (1850); Fisk _v._ Police +Jury, 116 U.S. 131 (1885); Dodge _v._ Board of Education, 302 U.S. 74 +(1937); Mississippi Use of Robertson _v._ Miller, 276 U.S. 174 (1928). + +[1634] Butler _v._ Pennsylvania, 10 How. 420 (1850). _Cf._ Marbury _v._ +Madison, 1 Cr. 137 (1803); Hoke _v._ Henderson, 15 N.C., (4 Dev.) 1 +(1833). _See also_ United States _v._ Fisher, 109 U.S. 143 (1883); +United States _v._ Mitchell, 109 U.S. 146 (1883); Crenshaw _v._ United +States, 134 U.S. 99 (1890). + +[1635] Fisk _v._ Police Jury, 116 U.S. 131 (1885); Mississippi Use of +Robertson _v._ Miller, 276 U.S. 174 (1928). + +[1636] Hall _v._ Wisconsin, 103 U.S. 5 (1880). _Cf._ Higginbotham _v._ +Baton Rouge, 306 U.S. 535 (1939). + +[1637] Phelps _v._ Board of Education, 300 U.S. 319 (1937). + +[1638] Dodge _v._ Board of Education, 302 U.S. 74 (1937). + +[1639] Indiana ex rel. Anderson _v._ Brand 303 U.S. 95 (1938). + +[1640] 7 Cr. 164 (1812). + +[1641] Delaware Railroad Tax, 18 Wall. 206, 225 (1874); Pacific R. Co. +_v._ Maguire, 20 Wall. 36, 43 (1874); Humphrey _v._ Pegues, 16 Wall. +244, 249 (1873); Home of Friendless _v._ Rouse, 8 Wall. 430, 438 (1869). + +[1642] 16 How. 369 (1854). + +[1643] Ibid. 382-383. + +[1644] Salt Co. _v._ East Saginaw, 13 Wall. 373, 379 (1872). _See also_ +Welch _v._ Cook, 97 U.S. 541 (1879); Grand Lodge, F. & A.M. _v._ New +Orleans, 166 U.S. 143 (1897); Wisconsin & M.R. Co. _v._ Powers, 191 U.S. +379 (1903). _Cf._ Ettor _v._ Tacoma, 228 U.S. 148 (1913), in which it +was held that the repeal of a statute providing for consequential +damages caused by changes of grades of streets could not +constitutionally affect an already accrued right to compensation. + +[1645] _See_ Christ Church _v._ Philadelphia County, 24 How. 300, 302 +(1861); Seton Hall College _v._ South Orange, 242 U.S. 100 (1916). + +[1646] Compare the above case with Home of Friendless _v._ Rouse, 8 +Wall. 430, 437 (1869); _also_ Illinois Central R. Co. _v._ Decatur, 147 +U.S. 190 (1893) with Wisconsin & M.R. Co. _v._ Powers, 191 U.S. 379 +(1903). + +[1647] Crane _v._ Hahlo, 258 U.S. 142, 145-146 (1922); Louisiana ex rel. +Folsom _v._ New Orleans, 109 U.S. 285, 288 (1883); Morley _v._ Lakeshore +& M.S.R. Co., 146 U.S. 162, 169 (1892). That the obligation of contracts +clause did not protect vested rights merely as such was stated by the +Court as early as Satterlee _v._ Matthewson, 2 Pet. 380, 413 (1829); and +again in the Charles River Bridge Co. _v._ Warren Bridge Co., 11 Pet. +420, 539-540 (1837). + +[1648] _See_ Story's opinion. 4 Wheat. at 712. + +[1649] Home of Friendless _v._ Rouse, 8 Wall. 430, 438 (1869); +Pennsylvania College Cases, 13 Wall. 190, 213 (1872); Miller _v._ New +York, 15 Wall. 478 (1873); Murray _v._ Charleston, 96 U.S. 432 (1878); +Greenwood _v._ Union Freight R. Co., 105 U.S. 13 (1882); Chesapeake & +O.R. Co. _v._ Miller, 114 U.S. 176 (1885); Louisville Water Co. _v._ +Clark, 143 U.S. 1 (1892). + +[1650] New Jersey _v._ Yard, 95 U.S. 104, 111 (1877). + +[1651] _See_ Holyoke Water Power Co. _v._ Lyman, 15 Wall. 500, 520 +(1873), following Fisheries _v._ Holyoke Water Power Co., 104 Mass. 446, +451 (1870); _also_ Shields _v._ Ohio, 95 U.S. 319 (1877); Fair Haven & +W.R. Co. _v._ New Haven, 203 U.S. 379 (1906); Berea College _v._ +Kentucky, 211 U.S. 45 (1908). _See also_ Lothrop _v._ Stedman, 15 Fed. +Cas. No. 8,519 (1875), where the principles of natural justice are +thought to set a limit to the power. Earlier is Zabriskie _v._ +Hackensack & N.Y.R. Co., 18 N.J. Eq. 178 (1867) where it is said that a +new charter may not be substituted; _also_ Allen _v._ McKean, 1 Fed. +Cas. No. 229 (1833) in which a federal court set aside a Maine statute +somewhat like the one involved in the Dartmouth College case, on the +ground that it went beyond the power of mere alteration. In this case, +however, only the right to alter had been reserved, in the charter +itself, and not the right to repeal. + +[1652] _See_ in this connection the cases cited by Justice Sutherland in +his opinion for the Court in Phillips Petroleum Co. _v._ Jenkins, 297 +U.S. 629 (1936). + +[1653] Curran _v._ Arkansas, 15 How. 304 (1853); Shields _v._ Ohio, 95 +U.S. 319 (1877); Greenwood _v._ Union Freight R. Co., 105 U.S. 13 +(1882); Adirondack R. Co. _v._ New York, 176 U.S. 335 (1900); Stearns +_v._ Minnesota, 179 U.S. 223 (1900); Chicago, M. & St. P.R. Co. _v._ +Wisconsin, 238 U.S. 491 (1915); Coombes _v._ Getz, 285 U.S. 434 (1932). + +[1654] Pennsylvania College Cases, 13 Wall. 190, 218 (1872). _See also_ +Calder _v._ Michigan, 218 U.S. 591 (1910). + +[1655] Lakeshore & M.S.R. Co. _v._ Smith, 173 U.S. 684, 690 (1899); +Coombes _v._ Getz, 285 U.S. 434 (1932). Both these decisions cite +Greenwood _v._ Union Freight R. Co., 105 U.S. 13, 17 (1882), but without +apparent justification. + +[1656] 4 Pet. 514 (1830). + +[1657] Thorpe _v._ Rutland & Burlington Railroad Co., 27 Vt. 140 (1854). + +[1658] Thus a railroad may be required, at its own expense and +irrespective of benefits to itself, to eliminate grade crossings in the +interest of public safety, (New York & N.E.R. Co. _v._ Bristol, 151 U.S. +556 (1894)); to make highway crossings reasonably safe and convenient +for public use, (Great Northern R. Co. _v._ Minnesota, 246 U.S. 434 +(1918)); to repair viaducts, (Northern Pac. R. Co. _v._ Minnesota, 208 +U.S. 583 (1908)); and to fence its right of way, (Minneapolis & St. L.R. +Co. _v._ Emmons, 149 U.S. 364 (1893)). Though a railroad company owns +the right of way along a street, the city may require it to lay tracks +to conform to the established grade; to fill in tracks at street +intersections; and to remove tracks from a busy street intersection, +when the attendant disadvantages and expense are small and the safety of +the public appreciably enhanced, (Denver & R.G.R. Co. _v._ Denver, 250 +U.S. 241 (1919)). + +Likewise the State, in the public interest, may require a railroad to +reestablish an abandoned station, even though the railroad commission +had previously authorized its abandonment on condition that another +station be established elsewhere, a condition which had been complied +with, (New Haven & N. Co. _v._ Hamersley, 104 U.S. 1 (1881)). It may +impose upon a railroad liability for fire communicated by its +locomotives, even though the State had previously authorized the company +to use said type of locomotive power, (St. Louis & S.F.R. Co. _v._ +Mathews, 165 U.S. 1, 5 (1897)); and it may penalize the failure to cut +drains through embankments so as to prevent flooding of adjacent lands, +(Chicago & A.R. Co. _v._ Tranbarger, 238 U.S. 67 (1915)). + +[1659] Boston Beer Co. _v._ Massachusetts, 97 U.S. 25 (1878). _See also_ +Fertilizing Co. _v._ Hyde Park, 97 U.S. 659 (1878); and Hammond Packing +_v._ Arkansas, 212 U.S. 322, 345 (1909). + +[1660] 11 Pet. 420 (1837). + +[1661] 11 Pet. at 548-553. + +[1662] 201 U.S. 400 (1906). + +[1663] Ibid. 471-472, citing The Binghamton Bridge, 3 Wall. 51, 75 +(1865). + +[1664] Memphis & L.R.R. Co. _v._ Berry, 112 U.S. 609, 617 (1884). _See +also_ Picard _v._ East Tennessee, Virginia & Georgia R. Co., 130 U.S. +637, 641 (1889); Louisville & N.R. Co. _v._ Palmes, 109 U.S. 244, 251 +(1883); Morgan _v._ Louisiana, 93 U.S. 217 (1876); Wilson _v._ Gaines, +103 U.S. 417 (1881); Norfolk & W.R. Co. _v._ Pendleton, 156 U.S. 667, +673 (1895). + +[1665] Railroad Co. _v._ Georgia, 98 U.S. 359, 365 (1879). + +[1666] Phoenix F. & M. Insurance Co. _v._ Tennessee, 161 U.S. 174 +(1896). + +[1667] Rochester R. Co. _v._ Rochester, 205 U.S. 236 (1907); followed in +Wright _v._ Georgia R. & Bkg. Co., 216 U.S. 420 (1910); and New York +Rapid Transit Co. _v._ City of New York, 303 U.S. 573 (1938). _Cf._ +Tennessee _v._ Whitworth, 117 U.S. 139 (1886) the authority of which is +respected in the preceding case. + +[1668] Chicago, B. & K.C.R. Co. _v._ Missouri ex rel. Guffey, 120 U.S. +569 (1887). + +[1669] Ford _v._ Delta & Pine Land Co., 164 U.S. 662 (1897). + +[1670] Vicksburg, S. & P.R. Co. _v._ Dennis, 116 U.S. 665 (1886). + +[1671] Millsaps College _v._ Jackson, 275 U.S. 129 (1927). + +[1672] Hale _v._ Iowa State Board of Assessment, 302 U.S. 95 (1937). + +[1673] Stone _v._ Farmers' Loan & Trust Co. (Railroad Commission Cases), +116 U.S. 307, 330 (1886) extended in Southern Pacific Co. _v._ Campbell, +230 U.S. 537 (1913) to cases in which the word "reasonable" does not +appear to qualify the company's right to prescribe tolls. _See also_ +American Toll Bridge Co. _v._ Railroad Com. of California et al., 307 +U.S. 486 (1939). + +[1674] Georgia R. & Power Co. _v._ Decatur, 262 U.S. 432 (1923). _See +also_ Southern Iowa Electric Co. _v._ Chariton, 255 U.S. 539 (1921). + +[1675] Walla Walla _v._ Walla Walla Water Co., 172 U.S. 1, 15 (1898). + +[1676] Skaneateles Water Works Co. _v._ Skaneateles, 184 U.S. 354 +(1902); Knoxville Water Co. _v._ Knoxville, 200 U.S. 22 (1906); Madera +Water Works _v._ Madera, 228 U.S. 454 (1913). + +[1677] Rogers Park Water Co. _v._ Fergus, 180 U.S. 624 (1901). + +[1678] Home Telephone Co. _v._ Los Angeles, 211 U.S. 265 (1908); +Wyandotte Gas Co. _v._ Kansas, 231 U.S. 622 (1914). + +[1679] _See also_ Puget Sound Traction, Light & P. Co. _v._ Reynolds, +244 U.S. 574 (1917). "Before we can find impairment of a contract we +must find an obligation of the contract which has been impaired. Since +the contract here relied upon is one between a political subdivision of +a state and private individuals, settled principles of construction +require that the obligation alleged to have been impaired be clearly and +unequivocally expressed." Justice Black for the Court in Keefe _v._ +Clark, 322 U.S. 393, 396-397 (1944). + +[1680] Corporation of Brick Church _v._ Mayor et al., 5 Cowen (N.Y.) +538, 540 (1826). + +[1681] West River Bridge Co. _v._ Dix, 6 How. 507 (1848). _See also_ +Backus _v._ Lebanon, 11 N.H. 19 (1840); White River Turnpike Co. _v._ +Vermont Cent. R. Co., 21 Vt. 590 (1849); and Bonaparte _v._ Camden & +A.R. Co., 3 Fed. Cas. No. 1,617 (1830); cited in Calvert I, 960-961. + +[1682] Pennsylvania Hospital _v._ Philadelphia, 245 U.S. 20 (1917). + +[1683] Illinois Central Railroad _v._ Illinois, 146 U.S. 387, 453, 455 +(1892). + +[1684] _See_ pp. 335-336. + +[1685] _See_ especially Home of the Friendless _v._ Rouse, 8 Wall. 430 +(1869), and Washington University _v._ Rouse, 8 Wall. 439 (1869). + +[1686] Georgia Railway Co. _v._ Redwine, 342 U.S. 299, 305-06 (1952). +The Court distinguishes In re Ayers, 123 U.S. 443 (1887) on the ground +that the action there was barred "as one in substance directed against +the State to obtain specific performance of a contract with the State". +342 U.S. 305. + +[1687] Stone _v._ Mississippi, 101 U.S. 814, 820 (1880). + +[1688] Butcher's Union Co. _v._ Crescent City Co., 111 U.S. 746 (1884). + +[1689] New Orleans Gas Co. _v._ Louisiana Light Co., 115 U.S. 630 +(1885). + +[1690] Atlantic Coast Line R. Co. _v._ Goldsboro, 232 U.S. 548, 558 +(1914). _See also_ Chicago & A.R. Co. _v._ Tranbarger, 238 U.S. 67 +(1915); _also_ Pennsylvania Hospital _v._ Philadelphia, 245 U.S. 20 +(1917), where the police power and eminent domain are treated on the +same basis in respect of inalienability; also Wabash R. Co. _v._ +Defiance, 167 U.S. 88, 97 (1897); Home Telephone Co. _v._ Los Angeles, +211 U.S. 265 (1908); and Calvert I, 962. + +[1691] Morley _v._ Lake Shore & M.S.R. Co., 146 U.S. 162 (1892); New +Orleans _v._ New Orleans Waterworks Co., 142 U.S. 79 (1891); Missouri & +A. Lumber & Min. Co. _v._ Greenwood Dist, 249 U.S. 170 (1919). But _cf._ +Livingston _v._ Moore, 7 Pet. 469, 549 (1833); and Garrison _v._ New +York, 21 Wall. 196, 203 (1875), suggesting that a different view was +earlier entertained in the case of judgments in actions of debt. + +[1692] Maynard _v._ Hill, 125 U.S. 190 (1888); Dartmouth College _v._ +Woodward, 4 Wheat. 518, 629 (1819). _Cf._ Andrews _v._ Andrews, 188 U.S. +14 (1903). The question whether a wife's rights in the community +property under the laws of California were of a contractual nature was +raised but not determined in Moffitt _v._ Kelly, 218 U.S. 400 (1910). + +[1693] New Orleans _v._ New Orleans Waterworks Co., 142 U.S. 79 (1891); +Zane _v._ Hamilton County, 189 U.S. 370, 381 (1903). + +[1694] 4 Wheat. 122 (1819). For the first such case in a Federal Circuit +Court, _see_ Charles Warren, The Supreme Court in United States History, +I, 67 (Boston, 1922). + +[1695] 12 Wheat. 213 (1827). + +[1696] Ibid. 353-354. + +[1697] Von Hoffman _v._ Quincy, 4 Wall. 535, 552 (1867). + +[1698] 1 How. 311 (1843). + +[1699] 2 How. 608 (1844). + +[1700] Oshkosh Waterworks Co. _v._ Oshkosh, 187 U.S. 437, 439 (1903); +New Orleans & L.R. Co. _v._ Louisiana, 157 U.S. 219 (1895). + +[1701] Antoni _v._ Greenhow, 107 U.S. 769 (1883). + +[1702] The right was unheld in Mason _v._ Haile, 12 Wheat. 370 (1827); +and again in Vial _v._ Penniman (Penniman's Case), 103 U.S. 714 (1881). +On early English and Colonial law touching the subject, _see_ argument +of counsel in Sturges _v._ Crowninshield, 4 Wheat. 122, 140-145 (1819). + +[1703] McGahey _v._ Virginia, 135 U.S. 662 (1890). + +[1704] Louisiana ex rel. Ranger _v._ New Orleans, 102 U.S. 203 (1880). + +[1705] Von Hoffman _v._ Quincy, 4 Wall. 535, 554 (1867). + +[1706] Antoni _v._ Greenhow, 107 U.S. 769, 775.--Illustrations of +changes in remedies, which have been sustained, may be seen in the +following cases: Jackson ex dem. Hart _v._ Lamphire, 3 Pet. 280 (1830); +Hawkins _v._ Barney, 5 Pet. 457 (1831); Crawford _v._ Branch Bank of +Alabama, 7 How. 279 (1849); Curtis _v._ Whitney, 13 Wall. 68 (1872); +Cairo & F.R. Co. _v._ Hecht, 95 U.S. 168 (1877); Terry _v._ Anderson, 95 +U.S. 628 (1877); Tennessee _v._ Sneed, 96 U.S. 69 (1877); South Carolina +_v._ Gaillard, 101 U.S. 433 (1880); Louisiana _v._ New Orleans, 102 U.S. +203 (1880); Connecticut Mut. L. Ins. Co. _v._ Cushman, 108 U.S. 51 +(1883); Vance _v._ Vance, 108 U.S. 514 (1883); Gilfillan _v._ Union +Canal Co., 109 U.S. 401 (1883); Hill _v._ Merchants' Mut. Ins. Co., 134 +U.S. 515 (1890); New Orleans City & Lake R. Co. _v._ Louisiana, 157 U.S. +219 (1895); Red River Valley Nat. Bank _v._ Craig, 181 U.S. 548 (1901); +Wilson _v._ Standefer, 184 U.S. 399 (1902); Oshkosh Waterworks Co. _v._ +Oshkosh, 187 U.S. 437 (1903); Waggoner _v._ Flack, 188 U.S. 595 (1903); +Bernheimer _v._ Converse, 206 U.S. 516 (1907); Henley _v._ Myers, 215 +U.S. 373 (1910); Selig _v._ Hamilton, 234 U.S. 652 (1914); Security Sav. +Bank _v._ California, 263 U.S. 282 (1923); United States Mortgage Co. +_v._ Matthews, 293 U.S. 232 (1934). + +Compare the following cases, where changes in remedies were deemed to be +of such a character as to interfere with substantial rights: Wilmington +& W.R. Co. _v._ King, 91 U.S. 3 (1875); Memphis _v._ United States, 97 +U.S. 293 (1878); Poindexter _v._ Greenhow, 114 U.S. 269, 270, 298, 299 +(1885); Effinger _v._ Kenney, 115 U.S. 566 (1885); Fisk _v._ Jefferson +Police Jury, 116 U.S. 131 (1885); Bradley _v._ Lightcap, 195 U.S. 1 +(1904); Bank of Minden _v._ Clement, 256 U.S. 126 (1921). + +[1707] Von Hoffman _v._ Quincy, 4 Wall. 535, 554-555 (1867). + +[1708] _See also_ Louisiana ex rel. Nelson _v._ St. Martin's Parish, 111 +U.S. 716 (1884). + +[1709] Mobile _v._ Watson, 116 U.S. 289 (1886); Graham _v._ Folsom, 200 +U.S. 248 (1906). + +[1710] Heine _v._ Levee Commissioners, 19 Wall. 655 (1874). _Cf._ +Virginia _v._ West Virginia, 246 U.S. 565 (1918). + +[1711] Faitoute Iron & Steel Co. _v._ Asbury Park, 316 U.S. 502, 510 +(1942). Alluding to the ineffectiveness of purely judicial remedies +against defaulting municipalities, Justice Frankfurter says: "For there +is no remedy when resort is had to 'devices and contrivances' to nullify +the taxing power which can be carried out only through authorized +officials. _See_ Rees _v._ City of Watertown, 19 Wall. 107, 124 (1874). +And so we have had the spectacle of taxing officials resigning from +office in order to frustrate tax levies through mandamus, and officials +running on a platform of willingness to go to jail rather than to +enforce a tax levy (_see_ Raymond, State and Municipal Bonds, 342-343), +and evasion of service by tax collectors, thus making impotent a court's +mandate. Yost _v._ Dallas County, 236 U.S. 50, 57 (1915)." 316 U.S. at +511. + +[1712] Myers _v._ Irwin, 2 Sergeant and Rawle's (Pa.), 367, 371 (1816); +_also_, to same effect, Lindenmuller _v._ The People, 33 Barbour (N.Y.), +548 (1861). _See also_ Brown _v._ Penobscot Bank, 8 Mass. 445 (1812). + +[1713] Manigault _v._ Springs, 199 U.S. 473, 480 (1905). + +[1714] Jackson _v._ Lamphire, 3 Pet. 280 (1830). _See also_ Phalen _v._ +Virginia, 8 How. 163 (1850). + +[1715] Stone _v._ Mississippi, 101 U.S. 814 (1880). + +[1716] Boston Beer Co. _v._ Massachusetts, 97 U.S. 25 (1878). + +[1717] New York C.R. Co. _v._ White, 243 U.S. 188 (1917). In this and +the preceding two cases the legislative act involved did not except from +its operation existing contracts. + +[1718] Manigault _v._ Springs, 199 U.S. 473 (1905). + +[1719] Portland Railway, Light & Power Co. _v._ Railroad Comm. of +Oregon, 229 U.S. 397 (1913). + +[1720] Midland Realty Co. _v._ Kansas City Power & Light Co., 300 U.S. +109 (1937). + +[1721] Hudson County Water Co. _v._ McCarter, 209 U.S. 349 (1908). + +[1722] Brown (Marcus) Holding Co. _v._ Feldman, 256 U.S. 170, 198 +(1921); followed in Levy Leasing Co. _v._ Siegel, 258 U.S. 242 (1922). + +[1723] Chastleton Corp. _v._ Sinclair, 264 U.S. 543, 547-548 (1924). + +[1724] 290 U.S. 398 (1934). + +[1725] Ibid. 442, 444. _See also_ Veix _v._ Sixth Ward Building and Loan +Assn. of Newark, 310 U.S. 32 (1940) in which was sustained a New Jersey +statute, amending, in view of the Depression, the law governing building +and loan associations. The authority of the State to safeguard the vital +interests of the people, said Justice Reed, "is not limited to health, +morals and safety. It extends to economic needs as well." Ibid. 38-39. + +[1726] _See_ especially Edwards _v._ Kearzey, 96 U.S. 595 (1878); and +Barnitz _v._ Beverly, 163 U.S. 118 (1896). + +[1727] 290 U.S. 398 (1934). As to conditions surrounding the enactment +of moratorium statutes in 1933, _see_ New York Times of January 22, +1933, sec. II, pp. 1-2. + +[1728] Worthen Co. _v._ Thomas, 292 U.S. 426 (1934); Worthen Co. _v._ +Kavanaugh, 295 U.S. 56 (1935). + +[1729] 295 U.S. at 62. + +[1730] East New York Savings Bank _v._ Hahn, 326 U.S. 230, 235 (1945). + +[1731] Honeyman _v._ Jacobs, 306 U.S. 539 (1939). _See also_ Gelfert +_v._ National City Bank, 313 U.S. 221 (1941). + +[1732] 313 U.S. at 233-234. + +[1733] One reason for this is indicated in the following passage from +Justice Field's opinion for the Court in Paul _v._ Virginia, decided in +1869: "At the present day corporations are multiplied to an almost +indefinite extent. There is scarcely a business pursued requiring the +expenditure of large capital, or the union of large numbers, that is not +carried on by corporations. It is not too much to say that the wealth +and business of the country are to a great extent controlled by them." 8 +Wall. 168, 181-182. + +[1734] Wright, The Contract Clause, 91-100. + +[1735] Perry _v._ United States, 294 U.S. 330 (1935); Louisville Joint +Stock Bank _v._ Radford, 295 U.S. 555 (1935). The Court has pointed out, +what of course, is evident on a reading of the Constitution, that the +contract clause is a limitation on the powers of the States and not of +the United States. Central P.R. Co. _v._ Gallatin (Sinking Fund Cases), +99 U.S. 700, 718 (1879). _See also_ Mitchell _v._ Clark, 110 U.S. 633, +643 (1884); Legal Tender Cases, 12 Wall. 457, 529 (1871); Continental +Ill. Nat. Bank & Trust Co. _v._ Chicago, R.I. & P.R. Co., 294 U.S. 648 +(1935); St. Anthony Falls Water Power Co. _v._ Board of Water +Commissioners, 168 U.S. 349, 372 (1897); Dubuque, S.C.R. Co. _v._ +Richmond, 19 Wall. 584 (1874); New York _v._ United States, 257 U.S. 591 +(1922). _Cf._ however, Hepburn _v._ Griswold, 8 Wall. 603, 623 (1870); +and Central Pacific R.R. Co. _v._ Gallatin (Sinking Fund Cases), 99 U.S. +700, 737 (1879). + +[1736] _See_, e.g., Neblett et al. _v._ Carpenter, et al., 305 U.S. 297 +(1938); Asbury Hospital _v._ Cass County, 326 U.S. 207 (1945); +Connecticut Mutual L. Ins. Co. _v._ Moore, 333 U.S. 541 (1948). For a +notable case in which the obligations clause was mustered into service, +by rather heroic logic, to do work that was afterwards put upon the due +process clause, _see_ State Tax On Foreign-Held Bonds, 15 Wall. 300 +(1873). + +[1737] Hooven & Allison Co. _v._ Evatt, 324 U.S. 652, 673 (1945). + +[1738] Woodruff _v._ Parham, 8 Wall. 123 (1869). + +[1739] 12 Wheat. 419 (1827). + +[1740] Ibid. 441. + +[1741] May & Co. _v._ New Orleans, 178 U.S. 496, 502 (1900). + +[1742] Ibid. 501; Gulf Fisheries Co. _v._ MacInerney, 276 U.S. 124 +(1928); McGoldrick _v._ Gulf Oil Corp., 309 U.S. 414 (1940). + +[1743] Low _v._ Austin, 13 Wall. 29 (1872); May & Co. _v._ New Orleans, +178 U.S. 496 (1900). + +[1744] Hooven & Allison Co. _v._ Evatt, 324 U.S. 652, 667 (1945). + +[1745] Ibid. 664. + +[1746] Canton R. Co. _v._ Rogan, 340 U.S. 511 (1951). + +[1747] Brown _v._ Maryland, 12 Wheat. 419, 447 (1827). + +[1748] Anglo-Chilean Nitrate Sales Corp. _v._ Alabama, 288 U.S. 218 +(1933). + +[1749] Low _v._ Austin, 13 Wall. 29, 33 (1872). + +[1750] Cook _v._ Pennsylvania, 97 U.S. 566, 573, (1878). + +[1751] Crew Levick Co. _v._ Pennsylvania, 245 U.S. 292 (1917). + +[1752] Cooley _v._ Board of Port Wardens, 12 How. 299, 313 (1851). + +[1753] Waring _v._ Mobile, 8 Wall. 110, 122 (1869). _See also_ Pervear +_v._ Massachusetts, 5 Wall. 475, 478 (1867); Schollenberger _v._ +Pennsylvania, 171 U.S. 1, 24 (1898). + +[1754] Gulf Fisheries Co. _v._ MacInerney, 276 U.S. 124 (1928). + +[1755] Nathan _v._ Louisiana, 8 How. 73, 81 (1850). + +[1756] Mager _v._ Grima, 8 How. 490 (1850). + +[1757] Brown _v._ Maryland, 12 Wheat. 419, 441 (1827); Hooven & Allison +Co. _v._ Evatt, 324 U.S. 652 (1945). + +[1758] New York ex rel. Burke _v._ Wells, 208 U.S. 14 (1908). + +[1759] Selliger _v._ Kentucky, 213 U.S. 200 (1909); _cf._ Almy _v._ +California, 24 How. 169, 174 (1861). + +[1760] Bowman _v._ Chicago & N.W.R. Co., 125 U.S. 465, 488 (1888). + +[1761] 107 U.S. 38 (1883). + +[1762] Ibid. 55. + +[1763] Patapsco Guano Co. _v._ North Carolina Bd. of Agriculture, 171 +U.S. 345, 301 (1898). For a discussion of the limitations on State power +to pass inspection laws resulting from the commerce clause, _see_ pp. +183, 237. + +[1764] Bowman _v._ Chicago & N.W.R. Co., 125 U.S. 465, 488-489 (1888). + +[1765] Clyde Mallory Lines _v._ Alabama ex rel. State Docks Commission, +296 U.S. 261, 265 (1935); Cannon _v._ New Orleans, 20 Wall. 577, 581 +(1874); Wheeling, P. & C. Transportation Co. _v._ Wheeling, 99 U.S. 273, +283 (1879). + +[1766] Keokuk Northern Line Packet Co. _v._ Keokuk, 95 U.S. 80 (1877); +Parkersburg & Ohio River Transportation Co. _v._ Parkersburg, 107 U.S. +691 (1883); Ouachita Packet Co. _v._ Aiken, 121 U.S. 444 (1887). + +[1767] Cooley _v._ Board of Port Wardens, 12 How. 299, 314 (1851); Ex +parte McNiel, 13 Wall. 236 (1872); Inman Steamship Co. _v._ Tinker, 94 +U.S. 238, 243 (1877); Northwestern Union Packet Co. _v._ St. Louis, 100 +U.S. 423 (1880); Vicksburg _v._ Tobin, 100 U.S. 430 (1880); Cincinnati, +P.B.S. & P. Packet Co. _v._ Catlettsburg, 105 U.S. 559 (1882). + +[1768] Huse _v._ Glover, 119 U.S. 543, 549 (1886). + +[1769] Southern S.S. Co. _v._ Portwardens, 6 Wall. 31 (1867). + +[1770] Peete _v._ Morgan, 19 Wall. 581 (1874). + +[1771] Morgan's L. & T.R. & S.S. Co. _v._ Board of Health, 118 U.S. 455, +462 (1886). + +[1772] Wiggins Ferry Co. _v._ East St. Louis, 107 U.S. 365 (1883). _See +also_ Gloucester Ferry Co. _v._ Pennsylvania, 114 U.S. 196, 212 (1885); +Philadelphia & S. Mail Steamship Co. _v._ Pennsylvania, 122 U.S. 326, +338 (1887); Osborne _v._ Mobile, 16 Wall. 479, 481 (1873). + +[1773] Cox _v._ Lott (State Tonnage Tax Cases), 12 Wall. 204, 217 +(1871). + +[1774] Luther _v._ Borden, 7 How. 1, 45 (1849). + +[1775] Presser _v._ Illinois, 116 U.S. 252 (1886). + +[1776] Poole _v._ Fleeger, 11 Pet 185, 209 (1837). + +[1777] Hinderlider _v._ La Plata Co., 304 U.S. 92, 104 (1938). + +[1778] Frankfurter and Landis, The Compact Clause of the Constitution--A +Study in Interstate Adjustments, 34 Yale Law Journal, 685, 691 (1925). + +[1779] Article IX. + +[1780] Article VI. + +[1781] 14 Pet. 540 (1840). + +[1782] Ibid. 570, 571, 572. + +[1783] 148 U.S. 503, 518 (1893). _See also_ Stearns _v._ Minnesota, 179 +U.S. 223, 244 (1900); _also_ reference in next note, at pp. 761-762. + +[1784] _See_ Leslie W. Dunbar, Interstate Compacts and Congressional +Consent, 36 Virginia Law Review, 753 (October, 1950). + +[1785] Frankfurter and Landis, The Compact Clause of the Constitution--A +Study in Interstate Adjustments, 34 Yale Law Journal, 685, 735 (1925); +Frederick L. Zimmerman and Mitchell Wendell, Interstate Compacts Since +1925 (1951), 8 Book of States, 26 (1950-1951). + +[1786] 48 Stat. 909 (1934). + +[1787] 8 Book of the States, 45 (1950-1951). + +[1788] 7 U.S.C. Sec. 515; 15 U.S.C. Sec. 717j; 16 U.S.C. Sec. 552, +667a; 33 U.S.C. Sec. 11, 567-567b. + +[1789] Green _v._ Biddle, 8 Wheat. 1, 85 (1823). + +[1790] Virginia _v._ Tennessee, 148 U.S. 503 (1893). + +[1791] Virginia _v._ West Virginia, 11 Wall. 39 (1871). + +[1792] Wharton _v._ Wise, 153 U.S. 155, 173 (1894). + +[1793] James _v._ Dravo Contracting Co., 302 U.S. 134 (1937). _See also_ +Arizona _v._ California, 292 U.S. 341, 315 (1934). + +[1794] 332 U.S. 631 (1948). + +[1795] On the activities of the Board, in which representatives of both +races participate and from which both races have benefited, _see_ +Remarks of Hon. Spessard L. Holland of Florida. Cong. Rec., 81st Cong., +2d sess., v. 96, p. 465-470. + +[1796] Pennsylvania _v._ Wheeling & Belmont Bridge Co., 18 How. 421, 433 +(1856). + +[1797] St. Louis & S.F.R. Co. _v._ James, 161 U.S. 545, 562 (1896). + +[1798] Poole _v._ Fleeger, 11 Pet. 185, 209 (1837); Rhode Island _v._ +Massachusetts, 12 Pet. 657, 725 (1838). + +[1799] Hinderlider _v._ La Plata Co., 304 U.S. 92, 104, 106 (1938). + +[1800] Green _v._ Biddle, 8 Wheat. 1, 13 (1823); Virginia _v._ West +Virginia, 246 U.S. 565 (1918). _See also_ Pennsylvania _v._ Wheeling & +Belmont Bridge Co., 13 How. 518, 566 (1852); Olin _v._ Kitzmiller, 259 +U.S. 260 (1922). + +[1801] Virginia _v._ West Virginia, 246 U.S. 565, 601 (1918). + +[1802] Dyer _v._ Sims, 341 U.S. 22 (1951). The case stemmed from +mandamus proceedings brought to compel the auditor of West Virginia to +pay out money to a commission which had been created by a compact +between West Virginia and other States to control pollution of the Ohio +River. The decision of the Supreme Court of Appeals of West Virginia +denying mandamus was reversed by the Supreme Court, and the case +remanded. The opinion of the Court, by Justice Frankfurter, reviews and +revises the West Virginia Court's interpretation of the State +constitution, thereby opening up, temporarily at least, a new field of +power for judicial review. Justice Reed, challenging this extension of +judicial review, thought the issue determined by the Supremacy Clause. +Justice Jackson urged that the compact power was "inherent in +sovereignty" and hence was limited only by the requirement of +congressional consent. Justice Black concurred in the result without +opinion. + + + + +ARTICLE II + +EXECUTIVE DEPARTMENT + + +Section 1. The President: Page + Clause 1. Powers and term of the President 377 + Nature and scope of Presidential power 377 + Contemporary source of the Presidency 377 + Presidency in the federal convention 378 + Executive power; Hamilton's contribution 378 + Myers case 379 + Curtiss-Wright case 380 + Theory of the Presidential office 380 + Term of four years 382 + Anti-third term tradition 382 + Clauses 2, 3, 4, 5, 6, 7, and 8. Election, qualifications, + succession, compensation, and oath of the President 383 + Maintenance of the office of President 384 + "Electoral college" 384 + Constitutional status of electors 385 + "Natural-born citizen" 386 + Presidential succession 387 + Act of 1792 387 + Acts of 1886 and 1947 388 + Compensation and emoluments 388 + Oath of office 388 + Effect of the oath 389 +Section 2. Powers and duties of the President 389 + Clause 1. Commander in chiefship; opinions from heads of + departments; pardons 389 + Commander in chiefship 389 + Historical 389 + Prize cases 390 + Impact of the Prize cases on World Wars I and II 391 + Presidential theory of the commander in chiefship in + World War II 392 + Presidential war agencies 393 + Constitutional status of Presidential agencies 394 + West Coast Japanese 394 + Act of March 21, 1942 395 + Presidential government of labor relations 395 + "Sanctions" 397 + Constitutional basis of sanctions 397 + Martial law and constitutional limitations 398 + Martial law in Hawaii 400 + Case of the Nazi saboteurs 401 + War crimes cases 402 + President as commander of the forces 403 + Commander in chief a civilian officer 404 + Presidential advisers 405 + The Cabinet 405 + Pardons and reprieves 406 + Legal nature of a pardon 406 + Qualification of above theory 407 + Scope of the power 408 + "Offenses against the United States"; contempt of court 408 + Effects of a pardon: Ex parte Garland 409 + Limits to the efficacy of a pardon 410 + Congress and Amnesty 411 + Clauses 2 and 3. Treaties and appointment of officers 412 + Treaty-making power 412 + President and Senate 412 + Negotiation a Presidential monopoly 412 + Treaties as law of the land 413 + Origin of the conception 414 + Treaty rights versus State power 415 + Recent cases 417 + When is a treaty self-executing; when not 417 + Constitutional freedom of Congress with respect to + treaties 418 + Treaty-making power and revenue laws 419 + Congressional repeal of treaties 420 + Treaties versus prior acts of Congress 421 + Interpretation and termination of treaties as + international compacts 423 + Termination of treaties by notice 423 + Determination whether a treaty has lapsed 425 + Status of a treaty a political question 426 + Treaties and the "necessary and proper" clause 426 + Constitutional limits of the treaty-making power: + Missouri _v._ Holland 428 + Indian treaties 431 + Present status of Indian treaties 432 + International Agreements without Senate approval 433 + Routine executive agreements 433 + Law-making executive agreements 434 + President McKinley's contribution 435 + Executive agreements affecting Far Eastern Relations 436 + International obligation of executive agreements 436 + Litvinov agreement of 1933 437 + United States _v._ Belmont 437 + United States _v._ Pink; National supremacy 438 + Hull-Lothian agreement, 1940 439 + War-time agreements 440 + Executive agreements by authorization of Congress 441 + Reciprocal trade agreements 441 + Constitutionality of trade agreements 442 + Lend-Lease Act 443 + President plus Congress versus Senate 443 + Arbitration agreements 444 + Agreements under the United Nations Charter 444 + United Nations Participation Act 445 + Executive establishment 445 + "Office" 445 + "Ambassadors and other public ministers" 445 + Presidential diplomatic agents 447 + Congressional regulation of offices 449 + Conduct in office 450 + The loyalty issue 451 + Legislation increasing duties of an officer 452 + "Inferior officers"; "employees" 452 + Stages of appointment process 453 + Nomination 453 + Senate approval 453 + When Senate consent is complete 453 + Commissioning the officer 454 + Recess appointments 455 + Ad interim designations 455 + Removal power; Myers case 455 + "Nature of the office" concept 458 + Humphrey case 458 + Other phases of the removal power 459 + Presidential aegis 460 +Section 3. Legislative, diplomatic, and law enforcement duties + of the President 462 + Legislative role of the President 462 + Right of Reception 463 + Scope of the power 463 + A Presidential monopoly 464 + "The Logan Act" 464 + A formal or a formative power 465 + President's diplomatic role 465 + Jefferson's real position 466 + Power of recognition 467 + The case of Cuba 468 + Power of nonrecognition 469 + President and Congress 470 + Congressional implementation of Presidential policies 471 + Doctrine of political questions 471 + Recent statements of the doctrine 473 + The President as law enforcer 475 + Types of executive power 475 + How the President's own powers are exercised 476 + Power and duty of the President in relation to subordinate + executive officers 478 + Administrative Decentralization _v._ Jacksonian + Centralism 478 + Congressional Power _v._ Presidential Duty to the Law 479 + Myers Case _v._ Humphrey Case 480 + Power of the President to guide enforcement of the penal + law 481 + President as law interpreter 481 + Military power in law enforcement: the posse comitatus 482 + Suspension of Habeas Corpus by President 484 + Preventive martial law 484 + Debs case 484 + Status of the Debs case, today 485 + President's duty in cases of domestic violence 486 + President as executive of the law of nations 486 + Protection of American rights of person and property abroad 487 + Presidential world policing 488 + The Atlantic Pact 488 + Presidential action in the domain of Congress: Steel + Seizure Case 489 + Presidential immunity from judicial direction 499 + President's subordinates and the courts 500 +Section 4. Impeachment 501 + Impeachment 501 + "Civil" officer 501 + "High crimes and misdemeanors" 502 + Chase impeachment 502 + Johnson impeachment 503 + Later impeachments 503 + + +EXECUTIVE DEPARTMENT + + +Article II + +Section 1: The executive Power shall be vested in a President +of the United States of America. He shall hold his Office during the +Term of four Years, and, together with the Vice President, chosen for +the same Term, be elected, as follows: + + +The Nature and Scope of Presidential Power + + +CONTEMPORARY SOURCE OF THE PRESIDENCY + +The immediate source of article II was the New York constitution of +1777,[1] of which the relevant provisions are the following: "Art. +XVIII. * * * The governor * * * shall by virtue of his office, be +general and commander in chief of all the militia, and admiral of the +navy of this state; * * * he shall have power to convene the assembly +and senate on extraordinary occasions; to prorogue them from time to +time, provided such prorogations shall not exceed sixty days in the +space of any one year; and, at his discretion, to grant reprieves and +pardons to persons convicted of crimes, other than treason and murder, +in which he may suspend the execution of the sentence, until it shall be +reported to the legislature at their subsequent meeting; and they shall +either pardon or direct the execution of the criminal, or grant a +further reprieve. + +"Art. XIX. * * * It shall be the duty of the governor to inform the +legislature at every session of the condition of the State so far as may +concern his department; to recommend such matters to their consideration +as shall appear to him to concern its good government, welfare, and +prosperity; to correspond with the Continental Congress and other +States; to transact all necessary business with the officers of +government, civil and military; to take care that the laws are executed +to the best of his ability; and to expedite all such measures as may be +resolved upon by the legislature. + +"To these, of course, are to be added the important powers of qualified +appointment and qualified veto. It is to be observed also that there is +no question of the interposition of the law of the land to regulate +these powers. They are the governor's, by direct grant of the people, +and his alone. Another distinguishing characteristic, equally important, +is the fact that the governor was to be chosen by a constitutionally +defined electorate, not by the legislature. He was also to have a +three-year term, and there were to be no limitations on his +re-eligibility to office. In short, all the isolated principles of +executive strength in other constitutions were here brought into a new +whole. Alone they were of slight importance; gathered together they gain +new meaning. And, in addition, we have new elements of strength utilized +for the first time on the American continent."[2] The appellation +"President" appears to have been suggested to the Federal Convention by +Charles Pinckney,[3] to whom it may have been suggested by the title at +that date of the chief magistrate of Delaware. + + +THE PRESIDENCY IN THE FEDERAL CONVENTION + +The relevant clause in the Report from the Committee of Detail of August +6, 1787 to the Federal Convention read as follows: "The Executive Power +of the United States shall be vested in a single person. His stile shall +be 'The President of the United States of America'; and his title shall +be 'His Excellency.'"[4] This language recorded the decision of the +Convention, sitting in committee of the whole, that the national +executive power should be vested in a single person, not a body. For the +rest, it is a simple designation of office. The final form of the clause +came from the Committee of Style,[5] and was never separately acted on +by the Convention. + + +"EXECUTIVE POWER"; HAMILTON'S CONTRIBUTION + +Is this term a summary description merely of the powers which are +granted in more specific terms in succeeding provisions of article II, +or is it also a grant of powers; and if the latter, what powers +specifically does it comprise? In the debate on the location of the +removal power in the House of Representatives in 1789[6] Madison and +others urged that this was "in its nature" an "executive power";[7] and +their view prevailed so far as executive officers appointed without +stated term by the President, with the advice and consent of the Senate, +were concerned. Four years later Hamilton, in defending President +Washington's course in issuing a Proclamation of Impartiality upon the +outbreak of war between France and Great Britain, developed the +following argument: "The second article of the Constitution of the +United States, section first, establishes this general proposition, that +'the Executive Power shall be vested in a President of the United States +of America.' The same article, in a succeeding section, proceeds to +delineate particular cases of executive power. It declares, among other +things, that the president shall be commander in chief of the army and +navy of the United States, and of the militia of the several states, +when called into the actual service of the United States; that he shall +have power, by and with the advice and consent of the senate, to make +treaties; that it shall be his duty to receive ambassadors and other +public ministers, _and to take care that the laws be faithfully +executed._ It would not consist with the rules of sound construction, to +consider this enumeration of particular authorities as derogating from +the more comprehensive grant in the general clause, further than as it +may be coupled with express restrictions or limitations; as in regard to +the co-operation of the senate in the appointment of officers, and the +making of treaties; which are plainly qualifications of the general +executive powers of appointing officers and making treaties. The +difficulty of a complete enumeration of all the cases of executive +authority, would naturally dictate the use of general terms, and would +render it improbable that a specification of certain particulars was +designed as a substitute for those terms, when antecedently used. The +different mode of expression employed in the constitution, in regard to +the two powers, the legislative and the executive, serves to confirm +this inference. In the article which gives the legislative powers of the +government, the expressions are, 'All legislative powers herein granted +shall be vested in a congress of the United States.' In that which +grants the executive power, the expressions are, 'The _executive power_ +shall be vested in a President of the United States.' The enumeration +ought therefore to be considered, as intended merely to specify the +principal articles implied in the definition of executive power; leaving +the rest to flow from the general grant of that power, interpreted in +conformity with other parts of the Constitution, and with the principles +of free government. The general doctrine of our Constitution then is, +that the _executive power_ of the nation is vested in the President; +subject only to the _exceptions_ and _qualifications_, which are +expressed in the instrument."[8] + + +THE MYERS CASE + +These enlarged conceptions of the executive power clause have been +ratified by the Supreme Court within recent times. In the Myers case,[9] +decided in 1926, not only was Madison's contention as to the location +of the removal power adopted, and indeed extended, but Hamilton's +general theory as to the proper mode of construing the clause was +unqualifiedly endorsed. Said Chief Justice Taft, speaking for the Court: +"The executive power was given in general terms, strengthened by +specific terms where emphasis was regarded as appropriate, and was +limited by direct expressions where limitation was needed, * * *"[10] + + +THE CURTISS-WRIGHT CASE + +Ten years later Justice Sutherland, speaking for the Court in United +States _v._ Curtiss-Wright Corporation,[11] joined Hamilton's conception +of the President's role in the foreign relations field to the conception +that in this field the National Government is not one of enumerated but +of inherent powers;[12] and the practical conclusion he drew was that +the constitutional objection to delegation of legislative power does not +apply to a delegation by Congress to the President of its "cognate" +powers in this field; that, in short, the merged powers of the two +departments may be put at the President's disposal whenever Congress so +desires.[13] + +Nor is it alone in the field of foreign relations that the opening +clause of article II has promoted latitudinarian conceptions of +Presidential power. Especially has his role as "Commander in Chief in +wartime" drawn nourishment from the same source, in recent years. The +matter is treated in later pages.[14] + + +THEORY OF THE PRESIDENTIAL OFFICE + +The looseness of the grants of power to the President has been more than +once the subject of animadversion.[15] This and the unity of the office +furnished a text for opponents of the Constitution while its +ratification was pending. "Here," according to Hamilton, writing in The +Federalist, "the writers against the Constitution, seem to have taken +pains to signalize their talent of misrepresentation."[16] Once the +Constitution was adopted, however, the tables were turned, and some +members of the first Congress, including certain former members of the +Federal Convention, sought to elaborate the monarchical aspects of the +office. They would fain give him a title, _His Excellency_ (already +applied in several States to the governors thereof), _Highness_, +_Elective Majesty_, being suggestions. Ellsworth of Connecticut wished +to see his _name or place_ inserted in the enacting clause of statutes. +They contrived to make a ceremony of the President's appearances before +Congress, his annual address to which, given in person, was answered by +a reply equally formal.[17] They sought to enact that "all writs and +processes, issuing out of the Supreme or circuit courts shall be in the +name of the President of the United States." Although the attempt +failed, owing to opposition in the House, the idea was adopted by the +Supreme Court itself in its first term, that of February 1790, when it +"_ordered_, That (unless, and until, it shall be otherwise provided by +law) all process of this court shall be in the name of 'the President of +the United States,'"[18] and it has never been otherwise provided by +law. Meantime, on October 3, 1789, President Washington had, at the +request of a joint committee of "both Houses of Congress," issued the +first Thanksgiving Proclamation.[19] + +The "revolution of 1800" was, in the opinion of its principal author, a +revolution against monarchical tendencies, and making a virtue of the +fact that he was a bad public speaker, Jefferson, in a symbolic gesture, +substituted the written message for the presidential address. But the +claims of the presidential office to power Jefferson in no wise +abated,[20] although Marshall had predicted that he would;[21] to the +contrary he in some respects enlarged upon them. After his day, however, +the office passed into temporary eclipse behind its own creature, the +Cabinet,[22] an ignominy from which Andrew Jackson rescued it. As "the +People's Choice," as all by himself "one of the three _equal_ +departments of government,"[23] as the leader of his party, as the +embodiment of the unity of the country,[24] Jackson stamped upon the +Presidency the outstanding features of its final character, thereby +reviving, in the opinion of Henry Jones Ford, "the oldest political +institution of the race, the elective Kingship."[25] The modern theory +of Presidential power was the contribution primarily of Alexander +Hamilton; the modern conception of the Presidential office was the +contribution primarily of Andrew Jackson and his times. + + +"THE TERM OF FOUR YEARS" + +Formerly the term of four years during which the President "shall hold +office" was reckoned from March 4 of the alternate odd years beginning +with 1789. This came about from the circumstance that under the act of +September 13, 1788, of "the Old Congress," the first Wednesday in March, +which was March 4, 1789, was fixed as the time for commencing +proceedings under the said Constitution. Although as a matter of fact +Washington was not inaugurated until April 30 of that year, by an act +approved March 1, 1792, it was provided that the presidential term +should be reckoned from the fourth day of March next succeeding the date +of election. And so things stood until the adoption of the Twentieth +Amendment by which the terms of the President and Vice President end at +noon on the 20th of January.[26] + + +THE ANTI-THIRD TERM TRADITION + +The prevailing sentiment of the Philadelphia Convention favored the +indefinite eligibility of the President. It was Jefferson who raised the +objection that indefinite eligibility would in fact be for life and +degenerate into an inheritance. Prior to 1940 the idea that no President +should hold for more than two terms was generally thought to be a fixed +tradition, although some quibbles had been raised as to the meaning of +the word "term". President Franklin D. Roosevelt's violation of the +tradition led to the proposal by Congress on March 24, 1947, of an +amendment to the Constitution to rescue the tradition by embodying it in +the Constitutional Document. The proposal became a part of the +Constitution on February 27, 1951, in consequence of its adoption by the +necessary thirty-sixth State, which was Minnesota. _See_ pp. 54, +1236.[Transcriber's Note: Page 1236 is blank.][27] + + +Clause 2. Each State shall appoint, in such Manner as the Legislature +thereof may direct, a Number of Electors, equal to the whole Number of +Senators and Representatives to which the State may be entitled in the +Congress; but no Senator or Representative, or Person holding an Office +of Trust or Profit under the United States, shall be appointed an +Elector. + +Clause 3. The Electors shall meet in their respective States, and vote +by Ballot for two Persons, of whom one at least shall not be an +Inhabitant of the same State with themselves. And they shall make a List +of all the Persons voted for, and of the Number of Votes for each; which +List they shall sign and certify, and transmit sealed to the Seat of +Government of the United States, directed to the President of the +Senate. The President of the Senate shall, in the Presence of the Senate +and House of Representatives, open all the Certificates, and the Votes +shall then be counted. The Person having the greatest Number of Votes +shall be the President, if such Number be a Majority of the whole Number +of Electors appointed; and if there be more than one who have such +Majority, and have an equal Number of Votes, then the House of +Representatives shall immediately chuse by Ballot one of them for +President; and if no Person have a Majority, then from the five highest +on the List the said House shall in like Manner chuse the President. But +in chusing the President, the Votes shall be taken by States, the +Representation from each State having one Vote; A quorum for this +Purpose shall consist of a Member or Members from two thirds of the +States, and a Majority of all the States shall be necessary to a Choice. +In every Case, after the Choice of the President, the Person having the +greatest Number of Votes of the Electors shall be the Vice President. +But if there should remain two or more who have equal Votes, the Senate +shall chuse from them by Ballot the Vice President. + +Clause 4. The Congress may determine the Time of chusing the Electors, +and the Day on which they shall give their Votes; which Day shall be the +same throughout the United States. + +Clause 5. No Person except a natural born Citizen, or a Citizen of the +United States, at the time of the Adoption of this Constitution, shall +be eligible to the Office of President; neither shall any Person be +eligible to that Office who shall not have attained to the Age of thirty +five Years, and been fourteen Years a Resident within the United States. + +Clause 6. In Case of the Removal of the President from Office, or of his +Death, Resignation, or Inability to discharge the Powers and Duties of +the said Office, the Same shall devolve on the Vice President, and the +Congress may by law provide for the Case of Removal, Death, Resignation +or Inability, both of the President and Vice President, declaring what +Officer shall then act as President, and such Officer shall act +accordingly, until the Disability be removed, or a President shall be +elected. + +Clause 7. The President shall, at stated Times, receive for his +Services, a Compensation, which shall neither be encreased nor +diminished during the Period for which he shall have been elected, and +he shall not receive within that Period any other Emolument from the +United States, or any of them. + +Clause 8. Before he enter on the Execution of his Office, he shall take +the following Oath or Affirmation:--"I do solemnly swear (or affirm) +that I will faithfully execute the Office of President of the United +States, and will to the best of my Ability, preserve, protect and defend +the Constitution of the United States." + + +Maintenance of the Office of President + + +"THE ELECTORAL COLLEGE" + +The word "appoint" is used in clause 2 "as conveying the broadest power +of determination."[28] This power has been used. "Therefore, on +reference to contemporaneous and subsequent action under the clause, we +should expect to find, as we do, that various modes of choosing the +electors were pursued, as, by the legislature itself on joint ballot; by +the legislature through a concurrent vote of the two houses; by vote of +the people for a general ticket; by vote of the people in districts; by +choice partly by the people voting in districts and partly by +legislature; by choice by the legislature from candidates voted for by +the people in districts; and in other ways, as, notably, by North +Carolina in 1792, and Tennessee in 1796 and 1800. No question was raised +as to the power of the State to appoint, in any mode its legislature saw +fit to adopt, and none that a single method, applicable without +exception, must be pursued in the absence of an amendment to the +Constitution. The district system was largely considered the most +equitable, and Madison wrote that it was that system which was +contemplated by the framers of the Constitution, although it was soon +seen that its adoption by some States might place them at a disadvantage +by a division of their strength, and that a uniform rule was +preferable."[29] In the Federal Convention James Wilson had proposed +that the Electors be "taken by lot from the national Legislature," but +the suggestion failed to come to a vote.[30] + + +CONSTITUTIONAL STATUS OF ELECTORS + +Dealing with the question of the constitutional status of the Electors, +the Court said in 1890: "The sole function of the presidential electors +is to cast, certify and transmit the vote of the State for President and +Vice President of the nation. Although the electors are appointed and +act under and pursuant to the Constitution of the United States, they +are no more officers or agents of the United States than are the members +of the State legislatures when acting as electors of federal senators, +or the people of the States when acting as electors of representatives +in Congress. * * * In accord with the provisions of the Constitution, +Congress has determined the time as of which the number of electors +shall be ascertained, and the days on which they shall be appointed and +shall meet and vote in the States, and on which their votes shall be +counted in Congress; has provided for the filling by each State, in such +manner as its legislature may prescribe, of vacancies in its college of +electors; and has regulated the manner of certifying and transmitting +their votes to the seat of the national government, and the course of +proceeding in their opening and counting them."[31] The truth of the +matter is that the Electors are not "officers" at all, by the usual +tests of office.[32] They have neither tenure nor salary, and having +performed their single function they cease to exist as Electors. This +function is, moreover, "a federal function,"[33] their capacity to +perform which results from no power which was originally resident in the +States, but springs directly from the Constitution of the United +States.[34] In the face, therefore, of the proposition that Electors are +State officers, the Court has upheld the power of Congress to protect +the right of all citizens who are entitled to vote to lend aid and +support in any legal manner to the election of any legally qualified +person as a Presidential Elector;[35] and more recently its power to +protect the choice of Electors from fraud or corruption.[36] "'If this +government,' said the Court, 'is anything more than a mere aggregation +of delegated agents of other States and governments, each of which is +superior to the general government, it must have the power to protect +the elections on which its existence depends from violence and +corruption. If it has not this power it is left helpless before the two +great natural and historical enemies of all republics, open violence and +insidious corruption.'"[37] The conception of Electors as State officers +is still, nevertheless, of some importance, as was shown in the recent +case of Ray _v._ Blair,[38] which is dealt with in connection with +Amendment XII.[39] + + +"NATURAL-BORN" CITIZEN + +Clause 3 of this section, while requiring that the Electors each vote +for two persons, did not require them to distinguish their choices for +President and Vice President, the assumption being that the Vice +President would be the runner-up of the successful candidate for +President. As a result of this arrangement the election of 1800 produced +a dangerous tie between Jefferson and Burr, the candidates of the +Republican-Democrat Party for President and Vice President respectively. +Amendment XII, which was adopted in 1803 and replaces clause 3, makes a +recurrence of the 1800 contretemps impossible. _See_ pp. 941-942. Clause +4 testifies still further to the national character of Presidential +Electors. Clause 5 is today chiefly of historical interest, all +Presidents since, and including Martin Van Buren, except his immediate +successor, William Henry Harrison, having been born in the United States +subsequently to the Declaration of Independence. The question, however, +has been frequently mooted, whether a child born abroad of American +parents is "a natural-born citizen" in the sense of this clause. The +answer depends upon whether the definition of "citizens of the United +States" in section I of Amendment XIV is to be given an exclusive or +inclusive interpretation. _See_ pp. 963-964. + + +PRESIDENTIAL SUCCESSION + +Was it the thought of the Constitution that a Vice President, in +succeeding to "the powers and duties" of the office of President, should +succeed also to the title? In answering this question in the affirmative +in 1841, John Tyler established a precedent which has been followed ever +since; but inasmuch as all successions have taken place in consequence +of the death in office of a President, the precedent would not +necessarily hold in the case of a succession on account of the temporary +inability of the incumbent President. Nor has any procedure been +established for determining the question of inability, with the result +that in the two instances of disability which have occurred, those of +Presidents Garfield and Wilson, the former continued in office until his +death and the other, after his partial recovery, till the end of his +term. + + +The Act of 1792 + +In pursuance of its power to provide for the disappearance, whether +permanently or temporarily, from the scene of both President and Vice +President, Congress has passed three Presidential Succession Acts. A law +enacted March 1, 1792[40] provided for the succession first of the +President _pro tempore_ of the Senate and then of the Speaker; but in +the event that both of these offices were vacant, then the Secretary of +State was to inform the executive of each State of the fact and at the +same time give public notice that Electors will be appointed in each +State to elect a President and Vice President, unless the regular time +of such election was so near at hand as to render the step unnecessary. +It is unlikely that Congress ever passed a more ill-considered law. As +Madison pointed out at the time, it violated the principle of the +Separation of Powers and flouted the probability that neither the +President _pro tempore_ nor the Speaker is an "officer" in the sense of +this paragraph of the Constitution. It thus contemplated the possibility +of there being nobody to exercise the powers of the President for an +indefinite period, and at the same time set at naught, by the provision +made for an interim presidential election, the synchrony evidently +contemplated by the Constitution in the choice of a President with a new +House of Representatives and a new one-third of the Senate. Yet this +inadequate enactment remained on the statute book for nearly one +hundred years, becoming all the time more and more unworkable from +obsolescence. One provision of it, moreover, still survives, that which +ordains that the only evidence of refusal to accept, or of resignation +from the office of President or Vice President, shall be an instrument +in writing declaring the same and subscribed by the person refusing to +accept, or resigning, as the case may be, and delivered into the office +of the Secretary of State.[41] + + +The Acts of 1886 and 1947 + +By the Presidential Succession Act of January 19, 1886,[42] recently +repealed, Congress provided that, in case of the disqualification of +both President and Vice President, the Secretary of State should act as +President provided he possessed the qualifications laid down in clause +5, above; if not, then the Secretary of the Treasury, etc. The act +apparently assumed that while a member of the Cabinet acted as President +he would retain his Cabinet post. The Succession Act now in force was +urged by President Truman, who argued that it was "undemocratic" for a +Vice President who had succeeded to the Presidency to be able to appoint +his own successor. By the act of July 18, 1947[43] the Speaker of the +House and the President _pro tempore_ of the Senate are put ahead of the +members of the Cabinet in the order of succession, but when either +succeeds he must resign both his post and his seat in Congress; and a +member of the Cabinet must in the like situation resign his Cabinet +post. The new act also implements Amendment XX by providing for +vacancies due to failure to qualify of both a newly elected President +and Vice President. + + +COMPENSATION AND EMOLUMENTS + +Clause 7 may be advantageously considered in the light of what has been +determined as to the application of the parallel provision regarding +judicial salaries. _See_ pp. 530-531.[44] + + +OATH OF OFFICE + +What is the time relationship between a President's assumption of office +and his taking the oath? Apparently the former comes first. This answer +seems to be required by the language of the clause itself, and is +further supported by the fact that, while the act of March 1, 1792 +assumes that Washington became President March 4, 1789, he did not take +the oath till April 30th. Also, in the parallel case of the coronation +oath of the British Monarch, its taking has been at times postponed for +years after the heir's succession. + + +Effect of the Oath + +Does the oath add anything to the President's powers? Again to judge +from its English-British antecedent, its informing purpose is to +restrain rather than to aggrandize power. Jackson, it is true, appealed +to the oath in his Bank Veto Message of July 10, 1832; and Lincoln did +so in his Message of July 4, 1861; as did Johnson's counsel in his +impeachment trial; but in each of these instances the Presidential +exercise of power involved rested primarily on other grounds. + + +Section 2. Clause 1. The President shall be Commander in Chief +of the Army and Navy of the United States, and of the Militia of the +several States, when called into the actual Service of the United +States; he may require the Opinion, in writing, of the principal Officer +in each of the executive Departments, upon any Subject relating to the +Duties of their respective Offices, and he shall have Power to grant +Reprieves and Pardons for Offences against the United States, except in +Cases of Impeachment. + + +The Commander in Chiefship + + +HISTORICAL + +The purely military aspects of the Commander in Chiefship were those +which were originally stressed. Hamilton said the office "would amount +to nothing more than the supreme command and direction of the Military +and naval forces, as first general and admiral of the confederacy."[45] +Story wrote in his Commentaries: "The propriety of admitting the +president to be commander in chief, so far as to give orders, and have a +general superintendency, was admitted. But it was urged, that it would +be dangerous to let him command in person, without any restraint, as he +might make a bad use of it. The consent of both houses of Congress +ought, therefore, to be required, before he should take the actual +command. The answer then given was, that though the president might, +there was no necessity that he should, take the command in person; and +there was no probability that he would do so, except in extraordinary +emergencies, and when he was possessed of superior military +talents."[46] In 1850 Chief Justice Taney, for the Court, said: "His +[the President's] duty and his power are purely military. As commander +in chief, he is authorized to direct the movements of the naval and +military forces placed by law at his command, and to employ them in the +manner he may deem most effectual to harass and conquer and subdue the +enemy. He may invade the hostile country, and subject it to the +sovereignty and authority of the United States. But his conquests do not +enlarge the boundaries of this Union, nor extend the operation of our +institutions and laws beyond the limits before assigned to them by the +legislative power. * * * But in the distribution of political power +between the great departments of government, there is such a wide +difference between the power conferred on the President of the United +States, and the authority and sovereignty which belong to the English +crown, that it would be altogether unsafe to reason from any supposed +resemblance between them, either as regards conquest in war, or any +other subject where the rights and powers of the executive arm of the +government are brought into question."[47] Even after the Civil War a +powerful minority of the Court described the role of President as +Commander in Chief simply as "the command of the forces and the conduct +of campaigns."[48] + + +THE PRIZE CASES + +The basis for a broader conception was laid in certain early acts of +Congress authorizing the President to employ military force in the +execution of the laws.[49] In his famous message to Congress of July 4, +1861,[50] Lincoln advanced the claim that the "war power" was his for +the purpose of suppressing rebellion; and in the Prize Cases[51] of +1863, a sharply divided Court sustained this theory. The immediate issue +of the case was the validity of the blockade which the President, +following the attack on Fort Sumter, had proclaimed of the Southern +ports.[52] The argument was advanced that a blockade to be valid must be +an incident of a "public war" validly declared, and that only Congress +could, by virtue of its power "to declare war," constitutionally impart +to a military situation this character and scope. Speaking for the +majority of the Court, Justice Grier answered: "If a war be made by +invasion of a foreign nation, the President is not only authorized but +bound to resist force by force. He does not initiate the war, but is +bound to accept the challenge without waiting for any special +legislative authority. And whether the hostile party be a foreign +invader, or States organized in rebellion, it is none the less a war, +although the declaration of it be '_unilateral_.' Lord Stowell (1 +Dodson, 247) observes, 'It is not the less a war on _that account_, for +war may exist without a declaration on either side. It is so laid down +by the best writers on the law of nations. A declaration of war by one +country only is not a mere challenge to be accepted or refused at +pleasure by the other.' The battles of Palo Alto and Resaca de la Palma +had been fought before the passage of the act of Congress of May 13, +1846, which recognized '_a state of war as existing by the act of the +Republic of Mexico_.' This act not only provided for the future +prosecution of the war, but was itself a vindication and ratification of +the Act of the President in accepting the challenge without a previous +formal declaration of war by Congress. This greatest of civil wars was +not gradually developed by popular commotion, tumultuous assemblies, or +local unorganized insurrections. However long may have been its previous +conception, it nevertheless sprung forth suddenly from the parent brain, +a Minerva in the full panoply of _war_. The President was bound to meet +it in the shape it presented itself, without waiting for Congress to +baptize it with a name; and no name given to it by him or them could +change the fact. * * * Whether the President in fulfilling his duties, +as Commander in Chief, in suppressing an insurrection, has met with such +armed hostile resistance, and a civil war of such alarming proportions +as will compel him to accord to them the character of belligerents, is a +question to be decided _by him_, and this Court must be governed by the +decisions and acts of the political department of the Government to +which this power was entrusted. 'He must determine what degree of force +the crisis demands.' The proclamation of blockade is itself official and +conclusive evidence to the Court that a state of war existed which +demanded and authorized a recourse to such a measure, under the +circumstances peculiar to the case."[53] + + +IMPACT OF THE PRIZE CASES ON WORLD WARS I AND II + +In brief, the powers claimable for the President under the Commander in +Chief clause at a time of wide-spread insurrection were equated with his +powers under the clause at a time when the United States is engaged in a +formally declared foreign war; and--impliedly--vice versa. And since +Lincoln performed various acts especially in the early months of the +Civil War which, like increasing the Army and Navy, admittedly fell +within the constitutional province of Congress, it seems to have been +assumed during World War I and World War II that the Commander in +Chiefship carries with it the power to exercise like powers practically +at discretion; and not merely in wartime but even at a time when war +becomes a strong possibility. Nor was any attention given the fact that +Lincoln had asked Congress to ratify and confirm his acts, which +Congress promptly did,[54] with the exception of his suspension of the +_habeas corpus_ privilege which was regarded by many as attributable to +the President in the situation then existing, by virtue of his duty to +take care that the laws be faithfully executed.[55] Nor is this the only +respect in which war or the approach of war operates to enlarge the +scope of power which is claimable by the President as Commander in Chief +in wartime.[56] For at such time the maxim that Congress may not +delegate its powers is, by the doctrine of the Curtiss-Wright case,[57] +in a state of suspended animation.[58] + + +PRESIDENTIAL THEORY OF THE COMMANDER IN CHIEFSHIP IN WORLD WAR II + +In his message of September 7, 1942 to Congress, in which he demanded +that Congress forthwith repeal certain provisions of the Emergency Price +Control Act of the previous January 30th,[59] the late President +Roosevelt formulated his conception of his powers as "Commander in Chief +in wartime" as follows: + +"I ask the Congress to take this action by the first of October. +Inaction on your part by that date will leave me with an inescapable +responsibility to the people of this country to see to it that the war +effort is no longer imperiled by threat of economic chaos. + +"In the event that the Congress should fail to act, and act adequately, +I shall accept the responsibility, and I will act. + +"At the same time that farm prices are stabilized, wages can and will be +stabilized also. This I will do. + +"The President has the powers, under the Constitution and under +Congressional acts, to take measures necessary to avert a disaster which +would interfere with the winning of the war. + +"I have given the most thoughtful consideration to meeting this issue +without further reference to the Congress. I have determined, however, +on this vital matter to consult with the Congress. * * * + +"The American people can be sure that I will use my powers with a full +sense of my responsibility to the Constitution and to my country. The +American people can also be sure that I shall not hesitate to use every +power vested in me to accomplish the defeat of our enemies in any part +of the world where our own safety demands such defeat. + +"When the war is won, the powers under which I act automatically revert +to the people--to whom they belong."[60] + + +PRESIDENTIAL WAR AGENCIES + +While congressional compliance with the President's demand rendered +unnecessary an effort on his part to amend the Price Control Act, there +were other matters as to which he repeatedly took action within the +normal field of congressional powers, not only during the war, but in +some instances prior to it. Thus in exercising both the powers which he +claimed as Commander in Chief and those which Congress conferred upon +him to meet the emergency, Mr. Roosevelt employed new emergency +agencies, created by himself and responsible directly to him, rather +than the established departments or existing independent regulatory +agencies. Oldest of all these Presidential agencies was the Office for +Emergency Management (OEM), which was created by an executive order +dated May 25, 1940. Others were the Board of Economic Warfare (BEW), the +National Housing Agency (NHA), the National War Labor Board (NWLB), or +more shortly (WLB), the Office of Censorship (OC), the Office of +Civilian Defense (OCD), the Office of Defense Transportation (ODT), the +Office of Facts and Figures (OFF), presently absorbed into the Office of +War Information (OWI), the War Production Board (WPB), which superseded +the earlier Office of Production Management (OPM), the War Manpower +Commission (WMC), etc. Earlier there had been the Office of Price +Administration and Civilian Supply (OPACS), but was replaced under the +Emergency Price Control Act of January 30, 1942, by OPA. Later OWI was +created by executive order, as was also the Office of Economic +Stabilization (OES). The Office of War Mobilization and Reconversion +(OWMR), one of the last of the war agencies to appear, was established +by the War Mobilization and Reconversion Act of October 3, 1944.[61] + + +CONSTITUTIONAL STATUS OF PRESIDENTIAL AGENCIES + +The question of the legal status of the presidential agencies was dealt +with judicially but once. This was in the decision, in June 1944, of the +United States Court of Appeals of the District of Columbia in a case +styled Employers Group of Motor Freight Carriers _v._ National War Labor +Board,[62] which was a suit to annul and enjoin a "directive order" of +the War Labor Board. The Court refused the injunction on the ground that +at the time when the directive was issued any action of the Board was +"informatory," "at most advisory." In support of this view the Court +quoted approvingly a statement by the chairman of the Board itself: +"These orders are in reality mere declarations of the equities of each +industrial dispute, as determined by a tripartite body in which +industry, labor, and the public share equal responsibility; and the +appeal of the Board is to the moral obligation of employers and workers +to abide by the nonstrike, no-lock-out agreement and * * * to carry out +the directives of the tribunal created under that agreement by the +Commander in Chief." Nor, the Court continued, had the later War Labor +Disputes Act vested War Labor Board's orders with any greater authority, +with the result that they were still judicially unenforceable and +unreviewable. Following this theory, War Labor Board was not an office +wielding power, but a purely advisory body, such as Presidents have +frequently created in the past without the aid or consent of Congress. +Congress itself, nevertheless, both in its appropriation acts and in +other legislation, treated the Presidential agencies as in all respects +offices.[63] + + +THE WEST COAST JAPANESE + +On February 19, 1942 the President issued an executive order the +essential paragraphs of which read as follows: + +"Whereas the successful prosecution of the war requires every possible +protection against espionage and against sabotage to national-defense +material, national-defense premises, and national-defense utilities +* * * + +"Now, therefore, by virtue of the authority vested in me as +President of the United States, and Commander in Chief of the Army and +Navy, I hereby authorize and direct the Secretary of War, and the +Military Commanders whom he may from time to time designate, whenever he +or any designated Commander deems such action necessary or desirable, to +prescribe military areas in such places and of such extent as he or the +appropriate Military Commander may determine, from which any or all +persons may be excluded, and with respect to which, the right of any +person to enter, remain in, or leave shall be subject to whatever +restrictions the Secretary of War or the appropriate Military Commander +may impose in his discretion. The Secretary of War is hereby authorized +to provide for residents of any such area who are excluded therefrom, +such transportation, food, shelter, and other accommodations as may be +necessary, in the judgment of the Secretary of War or the said Military +Commander, and until other arrangements are made, to accomplish the +purpose of this order. * * * + +"I hereby further authorize and direct all Executive Departments, +independent establishments and other Federal Agencies, to assist the +Secretary of War or the said Military Commanders in carrying out this +Executive Order, including the furnishing of medical aid, +hospitalization, food, clothing, transportation, use of land, shelter, +and other supplies, equipment, utilities, facilities and services."[64] +In pursuance of this order more than 112,000 Japanese residents of +Western States, of whom nearly two out of every three were natural-born +citizens of the United States, were eventually removed from their farms +and homes and herded, first in temporary camps, later in ten so-called +"relocation centers," situated in the desert country of California, +Arizona, Idaho, Utah, Colorado, and Wyoming and in the delta areas of +Arkansas. + + +The Act of March 21, 1942 + +It was apparently the original intention of the Administration to rest +its measures concerning this matter on the general principle of military +necessity and the power of the Commander in Chief in wartime. But before +any action of importance was taken under Executive Order 9066, Congress +ratified and adopted it by the act of March 21, 1942,[65] by which it +was made a misdemeanor to knowingly enter, remain in, or leave +prescribed military areas contrary to the orders of the Secretary of War +or of the commanding officer of the area. The cases which subsequently +arose in consequence of the order were decided under the order plus the +act. The question at issue, said Chief Justice Stone for the Court, "is +not one of Congressional power to delegate to the President the +promulgation of the Executive Order, but whether, acting in cooperation, +Congress and the Executive have constitutional * * * [power] to impose +the curfew restriction here complained of."[66] This question was +answered in the affirmative, as was the similar question later raised by +an exclusion order.[67] + + +PRESIDENTIAL GOVERNMENT OF LABOR RELATIONS + +The most important segment of the home front regulated by what were in +effect Presidential edicts was the field of labor relations. Exactly six +months before Pearl Harbor, on June 7, 1941, Mr. Roosevelt, citing his +proclamation thirteen days earlier of an unlimited national emergency, +issued an Executive Order seizing the North American Aviation Plant at +Inglewood, California, where, on account of a strike, production was at +a standstill. Attorney General Jackson justified the seizure as growing +out of the "'duty constitutionally and inherently rested upon the +President to exert his civil and military as well as his moral authority +to keep the defense efforts of the United States a going concern,'" as +well as "to obtain supplies for which Congress has appropriated the +money, and which it has directed the President to obtain."[68] Other +seizures followed, and on January 12, 1942, Mr. Roosevelt, by Executive +Order 9017, created the National War Labor Board. "Whereas," the order +read in part, "by reason of the state of war declared to exist by joint +resolutions of Congress, * * *, the national interest demands that there +shall be no interruption of any work which contributes to the effective +prosecution of the war; and Whereas as a result of a conference of +representatives of labor and industry which met at the call of the +President on December 17, 1941, it has been agreed that for the duration +of the war there shall be no strikes or lockouts, and that all labor +disputes shall be settled by peaceful means, and that a National War +Labor Board be established for a peaceful adjustment of such disputes. +Now, therefore, by virtue of the authority vested in me by the +Constitution and the statutes of the United States, it is hereby +ordered: 1. There is hereby created in the Office for Emergency +Management a National War Labor Board, * * *"[69] In this field, too, +Congress intervened by means of the War Labor Disputes Act of June 25, +1943,[70] which however still left ample basis for Presidential activity +of a legislative character.[71] + + +"SANCTIONS" + +To implement his directives as Commander in Chief in wartime, and +especially those which he issued in governing labor relations, Mr. +Roosevelt often resorted to "sanctions," which may be described as +penalties lacking statutory authorization. Ultimately, the President +sought, by Executive Order 9370 of August 16, 1943, to put sanctions in +this field on a systematic basis. This order read: + +"(a) To other departments or agencies of the Government directing the +taking of appropriate action relating to withholding or withdrawing from +a noncomplying employer any priorities, benefits or privileges extended, +or contracts entered into, by executive action of the Government, until +the National War Labor Board has reported that compliance has been +effectuated; + +"(b) To any Government agency operating a plant, mine or facility, +possession of which has been taken by the President under section 3 of +the War Labor Disputes Act, directing such agency to apply to the +National War Labor Board, under section 5 of said act, for an order +withholding or withdrawing from a noncomplying labor union any benefits, +privileges or rights accruing to it under the terms of conditions of +employment in effect (whether by agreement between the parties or by +order of the National War Labor Board, or both) when possession was +taken, until such time as the noncomplying labor union has demonstrated +to the satisfaction of the National War Labor Board its willingness and +capacity to comply; but, when the check-off is denied, dues received +from the check-off shall be held in escrow for the benefit of the union +to be delivered to it upon compliance by it. + +"(c) To the War Manpower Commission, in the case of noncomplying +individuals, directing the entry of appropriate orders relating to the +modification or cancellation of draft deferments or employment +privileges, or both. + +"Franklin D. Roosevelt. + +"The White House, _Aug. 16, 1943._"[72] + + +CONSTITUTIONAL BASIS OF SANCTIONS + +Sanctions were also occasionally employed by statutory agencies, as by +OPA, to supplement the penal provisions of the Emergency Price Control +Act of January 30, 1942;[73] and in the case of Steuart and Bro., Inc. +_v._ Bowles,[74] the Supreme Court had the opportunity to attempt to +regularize this type of executive emergency legislation. Here a retail +dealer in fuel oil in the District of Columbia was charged with having +violated a rationing order of OPA by obtaining large quantities of oil +from its supplier without surrendering ration coupons, by delivering +many thousands of gallons of fuel oil without requiring ration coupons, +and so on, and was prohibited by the agency from receiving oil for +resale or transfer for the ensuing year. The offender conceded the +validity of the rationing order in support of which the suspension order +was issued, but challenged the validity of the latter as imposing a +penalty that Congress has not enacted, and asked the district court to +enjoin it. The Court refused to do so and was sustained by the Supreme +Court in its position. Said Justice Douglas, speaking for the Court: +"Without rationing, the fuel tanks of a few would be full; the fuel +tanks of many would be empty. Some localities would have plenty; +communities less favorably situated would suffer. Allocation or +rationing is designed to eliminate such inequalities and to treat all +alike who are similarly situated. * * * But middlemen--wholesalers and +retailers--bent on defying the rationing system could raise havoc with +it. * * * These middlemen are the chief if not the only conduits between +the source of limited supplies and the consumers. From the viewpoint of +a rationing system a middleman who distributes the product in violation +and disregard of the prescribed quotas is an inefficient and wasteful +conduct. * * * Certainly we could not say that the President would lack +the power under this Act to take away from a wasteful factory and route +to an efficient one a previous supply of material needed for the +manufacture of articles of war. * * * From the point of view of the +factory owner from whom the materials were diverted the action would be +harsh. * * * But in times of war the national interest cannot wait on +individual claims to preference. * * * Yet if the President has the +power to channel raw materials into the most efficient industrial units +and thus save scarce materials from wastage it is difficult to see why +the same principle is not applicable to the distribution of fuel +oil."[75] Sanctions were, therefore, constitutional when the +deprivations they wrought were a reasonably implied amplification of the +substantive power which they supported and were directly conservative of +the interests which this power was created to protect and advance. It is +certain, however, that sanctions not uncommonly exceeded this +pattern.[76] + + +MARTIAL LAW AND CONSTITUTIONAL LIMITATIONS + +Two theories of martial law are reflected in decisions of the Supreme +Court. By one, which stems from the Petition of Right, 1628, the common +law knows no such thing as martial law;[77] at any rate martial law is +not established by official authority of any sort, but arises from the +nature of things, being the law of paramount necessity, of which +necessity the civil courts are the final judges.[78] By the other +theory, martial law can be validly and constitutionally established by +supreme political authority in wartime. The latter theory is recognized +by the Court in Luther _v._ Borden,[79] where it was held that the Rhode +Island legislature had been within its rights in 1842 in resorting to +the rights and usages of war in combating insurrection in that State. +The decision in the Prize Cases,[80] while not dealing directly with the +subject of martial law, gave national scope to the same general +principle in 1863. The Civil War being safely over, however, a sharply +divided Court, in the elaborately argued Milligan case,[81] reverting to +the older doctrine, pronounced void President Lincoln's action, +following his suspension of the writ of _habeas corpus_ in September, +1863, in ordering the trial by military commission of persons held in +custody as "spies" and "abettors of the enemy." The salient passage of +the Court's opinion bearing on this point is the following: "If, in +foreign invasion or civil war, the courts are actually closed, and it is +impossible to administer criminal justice according to law, _then_, on +the theatre of active military operations, where war really prevails, +there is a necessity to furnish a substitute for the civil authority, +thus overthrown, to preserve the safety of the army and society; and as +no power is left but the military, it is allowed to govern by martial +rule until the laws can have their free course. As necessity creates the +rule, so it limits its duration; for, if this government is continued +_after_ the courts are reinstated, it is a gross usurpation of power. +Martial rule can never exist where the courts are open, and in proper +and unobstructed exercise of their jurisdiction. It is also confined to +the locality of actual war."[82] Four Justices, speaking by Chief +Justice Chase, while holding Milligan's trial to have been void because +violative of the act of March 3, 1863 governing the custody and trial of +persons who had been deprived of the _habeas corpus_ privilege, declared +their belief that Congress could have authorized Milligan's trial. Said +the Chief Justice: "Congress has the power not only to raise and support +and govern armies but to declare war. It has, therefore, the power to +provide by law for carrying on war. This power necessarily extends to +all legislation essential to the prosecution of war with vigor and +success, except such as interferes with the command of the forces and +the conduct of campaigns. That power and duty belong to the President as +Commander in Chief. Both these powers are derived from the Constitution, +but neither is defined by that instrument. Their extent must be +determined by their nature, and by the principles of our institutions. +* * * We by no means assert that Congress can establish and apply the +laws of war where no war has been declared or exists. Where peace exists +the laws of peace must prevail. What we do maintain is, that when the +nation is involved in war, and some portions of the country are invaded, +and all are exposed to invasion, it is within the power of Congress to +determine in what States or districts such great and imminent public +danger exists as justifies the authorization of military tribunals for +the trial of crimes and offences against the discipline or security of +the army or against the public safety."[83] In short, only Congress can +authorize the substitution of military tribunals for civil tribunals for +the trial of offenses; and Congress can do so only in wartime. + + +MARTIAL LAW IN HAWAII + +The question of the constitutional status of martial law was raised in +World War II by the proclamation of Governor Poindexter of Hawaii, on +December 7, 1941, suspending the writ of _habeas corpus_ and conferring +on the local commanding General of the Army all his own powers as +governor and also "all of the powers normally exercised by the judicial +officers * * * of this territory * * * during the present emergency and +until the danger of invasion is removed." Two days later the Governor's +action was approved by President Roosevelt. The regime which the +proclamation set up continued with certain abatements until October 24, +1944. + +By section 67 of the Organic Act of April 30, 1900,[84] the Territorial +Governor is authorized "in case of rebellion or invasion, or imminent +danger thereof, when the public safety requires it, [to] suspend the +privilege of the writ of _habeas corpus_, or place the Territory, or any +part thereof, under martial law until communication can be had with the +President and his decision thereon made known." By section 5 of the +Organic Act, "the Constitution, * * *, shall have the same force and +effect within the said Territory as elsewhere in the United States." In +a brace of cases which reached it in February 1945 but which it +contrived to postpone deciding till February 1946,[85] the Court, +speaking by Justice Black, held that the term "martial law" as employed +in the Organic Act, "while intended to authorize the military to act +vigorously for the maintenance of an orderly civil government and for +the defense of the Islands against actual or threatened rebellion or +invasion, was not intended to authorize the supplanting of courts by +military tribunals."[86] The Court relied on the majority opinion in Ex +parte Milligan. Chief Justice Stone concurred in the result. "I assume +also," said he, "that there could be circumstances in which the public +safety requires, and the Constitution permits, substitution of trials by +military tribunals for trials in the civil courts";[87] but added that +the military authorities themselves had failed to show justifying facts +in this instance. Justice Burton, speaking for himself and Justice +Frankfurter, dissented. He stressed the importance of Hawaii as a +military outpost and its constant exposure to the danger of fresh +invasion. He warned that "courts must guard themselves with special care +against judging past military action too closely by the inapplicable +standards of judicial, or even military, hindsight."[88] + + +THE CASE OF THE NAZI SABOTEURS[89] + +The saboteurs were eight youths, seven Germans and one an American, who, +following a course of training in sabotage in Berlin, were brought to +this country in June 1942 aboard two German submarines and put ashore, +one group on the Florida coast, the other on Long Island, with the idea +that they would proceed forthwith to practice their art on American +factories, military equipment, and installations. Making their way +inland, the saboteurs were soon picked up by the FBI, some in New York, +others in Chicago, and turned over to the Provost Marshal of the +District of Columbia. On July 2, the President appointed a military +commission to try them for violation of the laws of war, to wit: for not +wearing fixed emblems to indicate their combatant status. In the midst +of the trial, the accused petitioned the Supreme Court and the United +States District Court for the District of Columbia for leave to bring +_habeas corpus_ proceedings. Their argument embraced the contentions: +(1) that the offense charged against them was not known to the laws of +the United States; (2) that it was not one arising in the land and naval +forces; and (3) that the tribunal trying them had not been constituted +in accordance with the requirements of the Articles of War. + +The first argument the Court met as follows: The act of Congress in +providing for the trial before military tribunals of offenses against +the law of war is sufficiently definite, although Congress has not +undertaken to codify or mark the precise boundaries of the law of war, +or to enumerate or define by statute all the acts which that law +condemns. "* * * those who during time of war pass surreptitiously from +enemy territory into * * * [that of the United States], discarding +their uniforms upon entry, for the commission of hostile acts involving +destruction of life or property, have the status of unlawful combatants +punishable as such by military commission."[90] The second argument it +disposed of by showing that petitioners' case was of a kind that was +never deemed to be within the terms of Amendments V and VI, citing in +confirmation of this position the trial of Major Andre.[91] The third +contention the Court overruled by declining to draw the line between the +powers of Congress and the President in the premises,[92] thereby, in +effect, attributing to the latter the right to amend the Articles of War +in a case of the kind before the Court _ad libitum_. + +The decision might well have rested on the ground that the Constitution +is without restrictive force in wartime in a situation of this sort. The +saboteurs were invaders; their penetration of the boundary of the +country, projected from units of a hostile fleet, was essentially a +military operation, their capture was a continuation of that operation. +Punishment of the saboteurs was therefore within the President's purely +martial powers as Commander in Chief. Moreover, seven of the petitioners +were enemy aliens, and so, strictly speaking, without constitutional +status. Even had they been civilians properly domiciled in the United +States at the outbreak of the war they would have been subject under the +statutes to restraint and other disciplinary action by the President +without appeal to the courts.[93] + + +THE WAR CRIMES CASES + +As a matter of fact, in General Yamashita's case,[94] which was brought +after the termination of hostilities for alleged "war crimes," the Court +abandoned its restrictive conception altogether. In the words of Justice +Rutledge's dissenting opinion in this case: "The difference between the +Court's view of this proceeding and my own comes down in the end to the +view, on the one hand, that there is no law restrictive upon these +proceedings other than whatever rules and regulations may be prescribed +for their government by the executive authority or the military and, on +the other hand, that the provisions of the Articles of War, of the +Geneva Convention and the Fifth Amendment apply."[95] And the adherence +of the United States to the Charter of London in August 1945, under +which the Nazi leaders were brought to trial, is explicable by the same +theory. These individuals were charged with the crime of instigating +aggressive war, which at the time of its commission was not a crime +either under International Law or under the laws of the prosecuting +governments. It must be presumed that the President is not in his +capacity as Supreme Commander bound by the prohibition in the +Constitution of _ex post facto_ laws; nor does International Law forbid +_ex post facto_ laws.[96] + + +THE PRESIDENT AS COMMANDER OF THE FORCES + +While the President customarily delegates supreme command of the forces +in active service, there is no constitutional reason why he should do +so; and he has been known to resolve personally important questions of +military policy. Lincoln early in 1862 issued orders for a general +advance in the hope of stimulating McClellan to action; Wilson in 1918 +settled the question of an independent American command on the Western +Front; Truman in 1945 ordered that the bomb be dropped on Hiroshima and +Nagasaki. As against an enemy in the field the President possesses all +the powers which are accorded by International Law to any supreme +commander. "He may invade the hostile country, and subject it to the +sovereignty and authority of the United States."[97] In the absence of +attempts by Congress to limit his power, he may establish and prescribe +the jurisdiction and procedure of military commissions, and of tribunals +in the nature of such commissions, in territory occupied by Armed Forces +of the United States, and his authority to do this sometimes survives +cessation of hostilities.[98] He may employ secret agents to enter the +enemy's lines and obtain information as to its strength, resources, and +movements.[99] He may, at least with the assent of Congress, authorize +intercourse with the enemy.[100] He may also requisition property and +compel services from American citizens and friendly aliens who are +situated within the theatre of military operations when necessity +requires, thereby incurring for the United States the obligation to +render "just compensation."[101] By the same warrant he may bring +hostilities to a conclusion by arranging an armistice, stipulating +conditions which may determine to a great extent the ensuing peace.[102] +He may not, however, effect a permanent acquisition of territory;[103] +though he may govern recently acquired territory until Congress sets up +a more permanent regime.[104] He is the ultimate tribunal for the +enforcement of the rules and regulations which Congress adopts for the +government of the forces, and which are enforced through +courts-martial.[105] Indeed, until 1830, courts-martial were convened +solely on his authority as Commander in Chief.[106] Such rules and +regulations are, moreover, it would seem, subject in wartime to his +amendment at discretion.[107] Similarly, the power of Congress to "make +rules for the government and regulation of the law and naval forces" +(Art. I, Sec. 8, cl. 14) did not prevent President Lincoln from +promulgating in April, 1863 a code of rules to govern the conduct in the +field of the armies of the United States which was prepared at his +instance by a commission headed by Francis Lieber and which later +became the basis of all similar codifications both here and abroad.[108] +One important power he lacks, that of choosing his subordinates, whose +grades and qualifications are determined by Congress and whose +appointment is ordinarily made by and with the advice and consent of the +Senate, though undoubtedly Congress could if it wished vest their +appointment in "the President alone."[109] Also, the President's power +to dismiss an officer from the service, once unlimited, is today +confined by statute in time of peace to dismissal "in pursuance of the +sentence of a general court-martial or in mitigation thereof."[110] But +the provision is not regarded by the Court as preventing the President +from displacing an officer of the Army or Navy by appointing with the +advice and consent of the Senate another person in his place.[111] The +President's power of dismissal in time of war Congress has never +attempted to limit. + + +THE COMMANDER IN CHIEF A CIVILIAN OFFICER + +Is the Commander in Chiefship a military or civilian office in the +contemplation of the Constitution? Unquestionably the latter. A recent +opinion by a New York surrogate deals adequately, though not +authoritatively, with the subject: "The President receives his +compensation for his services, rendered as Chief Executive of the +Nation, not for the individual parts of his duties. No part of his +compensation is paid from sums appropriated for the military or naval +forces; and it is equally clear under the Constitution that the +President's duties as Commander in Chief represents only a part of +duties _ex officio_ as Chief Executive [Article II, sections 2 and 3 of +the Constitution] and that the latter's office is a civil office. +[Article II, section 1 of the Constitution; vol. 91, Cong. Rec. +4910-4916; Beard, The Republic (1943) pp. 100-103.] The President does +not enlist in, and he is not inducted or drafted into the armed forces. +Nor, is he subject to court-martial or other military discipline. On the +contrary, article II, section 4 of the Constitution provides that 'The +President, [Vice President] and All Civil Officers of the United States +shall be removed from Office on Impeachment for, and Conviction of +Treason, Bribery or other high Crimes and Misdemeanors.' * * * The last +two War Presidents, President Wilson and President Roosevelt, both +clearly recognized the civilian nature of the President's position as +Commander in Chief. President Roosevelt, in his Navy Day Campaign speech +at Shibe Park, Philadelphia, on October 27, 1944, pronounced this +principle as follows:--'It was due to no accident and no oversight that +the framers of our Constitution put the command of our armed forces +under civilian authority. It is the duty of the Commander in Chief to +appoint the Secretaries of War and Navy and the Chiefs of Staff.' It is +also to be noted that the Secretary of War, who is the regularly +constituted organ of the President for the administration of the +military establishment of the Nation, has been held by the Supreme Court +of the United States to be merely a civilian officer, not in military +service. (United States _v._ Burns, 79 U.S. 246 (1871)). On the general +principle of civilian supremacy over the military, by virtue of the +Constitution, it has recently been said: 'The supremacy of the civil +over the military is one of our great heritages.' Duncan _v._ +Kahanamoku, 324 U.S. 833 (1945), 14 L.W. 4205 at page 4210."[112] + + +Presidential Advisers + + +THE CABINET + +The above provisions are the meager residue from a persistent effort in +the Federal Convention to impose a council on the President.[113] The +idea ultimately failed, partly because of the diversity of ideas +concerning the Council's make-up. One member wished it to consist of +"members of the two houses," another wished it to comprise two +representatives from each of three sections, "with a rotation and +duration of office similar to those of the Senate." The proposal which +had the strongest backing was that it should consist of the heads of +departments and the Chief Justice of the Supreme Court, who should +preside when the President was absent. Of this proposal the only part +to survive was the above cited provision. The consultative relation here +contemplated is an entirely one-sided affair, is to be conducted with +each principal officer separately and in writing, and to relate only to +the duties of their respective offices.[114] The _Cabinet_, as we know +it today, that is to say, the Cabinet _meeting_, was brought about +solely on the initiative of the first President, and may be dispensed +with on Presidential initiative at any time, being totally unknown to +the Constitution. Several Presidents have in fact reduced the Cabinet +meeting to little more than a ceremony with social trimmings.[115] + + +Pardons and Reprieves + + +THE LEGAL NATURE OF A PARDON + +In the first case to be decided concerning the pardoning power, Chief +Justice Marshall, speaking for the Court, said: "As this power had been +exercised from time immemorial by the executive of that nation whose +language is our language, and to whose judicial institutions ours bear a +close resemblance; we adopt their principles respecting the operation +and effect of a pardon, and look into their books for the rules +prescribing the manner in which it is to be used by the person who would +avail himself of it. A pardon is an act of grace, proceeding from the +power entrusted with the execution of the laws, which exempts the +individual, on whom it is bestowed, from the punishment the law inflicts +for a crime he has committed. It is the private, though official act of +the executive magistrate, delivered to the individual for whose benefit +it is intended, and not communicated officially to the Court. * * * A +pardon is a deed, to the validity of which delivery is essential, and +delivery is not complete without acceptance. It may then be rejected by +the person to whom it is tendered; and if it be rejected, we have +discovered no power in a court to force it on him." Marshall thereupon +proceeded to lay down the doctrine, that "a pardon is a deed to the +validity of which delivery is essential, and delivery is not complete +without acceptance"; and that to be noticed judicially this deed must be +pleaded, like any private instrument.[116] + + +Qualification of the Above Theory + +In the case of Burdick _v._ United States,[117] decided in 1915, +Marshall's doctrine was put to a test that seems to have overtaxed it, +perhaps fatally. Burdick, having declined to testify before a federal +grand jury on the ground that his testimony would tend to incriminate +him, was proffered by President Wilson "a full and unconditional pardon +for all offenses against the United States" which he might have +committed or participated in in connection with the matter he had been +questioned about. Burdick, nevertheless, refused to accept the pardon +and persisted in his contumacy with the unanimous support of the Supreme +Court. "The grace of a pardon," remarked Justice McKenna sententiously, +"may be only a pretense * * * involving consequences of even greater +disgrace than those from which it purports to relieve. Circumstances may +be made to bring innocence under the penalties of the law. If so +brought, escape by confession of guilt implied in the acceptance of a +pardon may be rejected, * * *"[118] Nor did the Court give any +attention to the fact that the President had accompanied his proffer to +Burdick with a proclamation, although a similar procedure had been held +to bring President Johnson's amnesties to the Court's notice.[119] In +1927, however, in sustaining the right of the President to commute a +sentence of death to one of life imprisonment, against the will of the +prisoner, the Court abandoned this view. "A pardon in our days," it +said, "is not a private act of grace from an individual happening to +possess power. It is a part of the Constitutional scheme. When granted +it is the determination of the ultimate authority that the public +welfare will be better served by inflicting less than what the judgment +fixed."[120] Whether these words sound the death knell of the acceptance +doctrine is perhaps doubtful.[121] They seem clearly to indicate that by +substantiating a commutation order for a deed of pardon, a President can +always have his way in such matters, provided the substituted penalty is +authorized by law and does not in common understanding exceed the +original penalty.[122] + + +SCOPE OF THE POWER + +The power embraces all "offences against the United States," except +cases of impeachment, and includes the power to remit fines, penalties, +and forfeitures, except as to money covered into the Treasury or paid an +informer;[123] also the power to pardon absolutely or conditionally; and +includes the power to commute sentences, which, as seen above, is +effective without the convict's consent.[124] It has been held, +moreover, in face of earlier English practice, that indefinite +suspension of sentence by a court of the United States is an invasion of +the Presidential prerogative, amounting as it does to a condonation of +the offense.[125] It was early assumed that the power included the power +to pardon specified classes or communities wholesale, in short, the +power to amnesty, which is usually exercised by proclamation. General +amnesties were issued by Washington in 1795, by Adams in 1800, by +Madison in 1815, by Lincoln in 1863, by Johnson in 1865, 1867, and 1868, +and by the first Roosevelt--to Aguinaldo's followers--in 1902.[126] Not, +however, till after the Civil War was the point adjudicated, when it was +decided in favor of Presidential prerogative.[127] + + +"OFFENSES AGAINST THE UNITED STATES"; CONTEMPT OF COURT + +In the first place, such offenses are not offenses against the States. +In the second place, they are completed offenses;[128] the President +cannot pardon by anticipation, otherwise he would be invested with the +power to dispense with the laws, his claim to which was the principal +cause of James II's forced abdication.[129] Lastly, the term has been +held to include criminal contempts of court. Such was the holding in Ex +parte Grossman,[130] where Chief Justice Taft, speaking for the Court, +resorted once more to English conceptions as being authoritative in +construing this clause of the Constitution. Said he: "The King of +England before our Revolution, in the exercise of his prerogative, had +always exercised the power to pardon contempts of court, just as he did +ordinary crimes and misdemeanors and as he has done to the present day. +In the mind of a common law lawyer of the eighteenth century the word +pardon included within its scope the ending by the King's grace of the +punishment of such derelictions, whether it was imposed by the court +without a jury or upon indictment, for both forms of trial for contempts +were had. [Citing cases.] These cases also show that, long before our +Constitution, a distinction had been recognized at common law between +the effect of the King's pardon to wipe out the effect of a sentence for +contempt in so far as it had been imposed to punish the contemnor for +violating the dignity of the court and the King, in the public interest, +and its inefficacy to halt or interfere with the remedial part of the +court's order necessary to secure the rights of the injured suitor. +Blackstone IV, 285, 397, 398; Hawkins Pleas of the Crown, 6th Ed. +(1787), Vol. 2, 553. The same distinction, nowadays referred to as the +difference between civil and criminal contempts, is still maintained in +English law[131]." Nor was any new or special danger to be apprehended +from this view of the pardoning power. "If," says the Chief Justice, "we +could conjure up in our minds a President willing to paralyze courts by +pardoning all criminal contempts, why not a President ordering a general +jail delivery?" Indeed, he queries further, in view of the peculiarities +of procedure in contempt cases, "may it not be fairly said that in order +to avoid possible mistake, undue prejudice or needless severity, the +chance of pardon should exist at least as much in favor of a person +convicted by a judge without a jury as in favor of one convicted in a +jury trial[132]?" + + +EFFECTS OF A PARDON; EX PARTE GARLAND + +The great leading case is Ex parte Garland[133] which was decided +shortly after the Civil War. By an act passed in 1865 Congress had +prescribed that before any person should be permitted to practice in a +federal court he must take oath asserting that he had never voluntarily +borne arms against the United States, had never given aid or comfort to +enemies of the United States, and so on. Garland, who had been a +Confederate sympathizer and so was unable to take the oath, had however +received from President Johnson the same year "a full pardon 'for all +offences by him committed, arising from participation, direct or +implied, in the Rebellion,' * * *" The question before the Court was +whether, armed with this pardon, Garland was entitled to practice in the +federal courts despite the act of Congress just mentioned. Said Justice +Field for a sharply divided Court: "The inquiry arises as to the effect +and operation of a pardon, and on this point all the authorities concur. +A pardon reaches both the punishment prescribed for the offence and the +guilt of the offender; and when the pardon is full, it releases the +punishment and blots out of existence the guilt, so that in the eye of +the law the offender is as innocent as if he had never committed the +offense. If granted before conviction, it prevents any of the penalties +and disabilities consequent upon conviction from attaching; [thereto], +if granted after conviction, it removes the penalties and disabilities, +and restores him to all his civil rights; it makes him, as it were, a +new man, and gives him a new credit and capacity."[134] Justice Miller +speaking for the minority protested that the act of Congress involved +was not penal in character, but merely laid down an appropriate test of +fitness to practice the law. "The man who, by counterfeiting, by theft, +by murder, or by treason, is rendered unfit to exercise the functions of +an attorney or counsellor at law, may be saved by the executive pardon +from the penitentiary or the gallows, but he is not thereby restored to +the qualifications which are essential to admission to the bar."[135] +Justice Field's language must today be regarded as much too sweeping in +light of a decision rendered in 1914 in the case of Carlesi _v._ New +York.[136] Carlesi had some years before been convicted of committing a +federal offense. In the instant case the prisoner was being tried for a +subsequent offense committed in New York. He was convicted as a second +offender, although the President had pardoned him for the earlier +federal offense. In other words, the fact of prior conviction by a +federal court was considered in determining the punishment for a +subsequent State offense. This conviction and sentence were upheld by +the Supreme Court. While this case involved offenses against different +sovereignties, the Court declared by way of dictum that its decision +"must not be understood as in the slightest degree intimating that a +pardon would operate to limit the power of the United States in +punishing crimes against its authority to provide for taking into +consideration past offenses committed by the accused as a circumstance +of aggravation even although for such past offenses there had been a +pardon granted."[137] + + +LIMITS TO THE EFFICACY OF A PARDON + +But Justice Field's latitudinarian view of the effect of a pardon +undoubtedly still applies ordinarily where the pardon is issued _before +conviction_. He is also correct in saying that a full pardon restores a +_convict_ to his "civil rights," and this is so even though simple +completion of the convict's sentence would not have had that effect. One +such right is the right to testify in court, and in Boyd _v._ United +States the Court held that the disability to testify being a +consequence, according to principles of the common law, of the judgment +of conviction, the pardon obliterated that effect.[138] But a pardon +cannot "make amends for the past. It affords no relief for what has +been suffered by the offender in his person by imprisonment, forced +labor, or otherwise; it does not give compensation for what has been +done or suffered, nor does it impose upon the government any obligation +to give it. The offence being established by judicial proceedings, that +which has been done or suffered while they were in force is presumed to +have been rightfully done and justly suffered, and no satisfaction for +it can be required. Neither does the pardon affect any rights which have +vested in others directly by the execution of the judgment for the +offence, or which have been acquired by others whilst that judgment was +in force. If, for example, by the judgment a sale of the offender's +property has been had, the purchaser will hold the property +notwithstanding the subsequent pardon. And if the proceeds of the sale +have been paid to a party to whom the law has assigned them, they cannot +be subsequently reached and recovered by the offender. The rights of the +parties have become vested, and are as complete as if they were acquired +in any other legal way. So, also, if the proceeds have been paid into +the treasury, the right to them has so far become vested in the United +States that they can only be secured to the former owner of the property +through an act of Congress. Moneys once in the treasury can only be +withdrawn by an appropriation by law."[139] + + +CONGRESS AND AMNESTY + +Congress cannot limit the effects of a Presidential amnesty. Thus the +act of July 12, 1870, making proof of loyalty necessary to recover +property abandoned and sold by the government during the Civil War, +notwithstanding any Executive proclamation, pardon, amnesty, or other +act of condonation or oblivion, was pronounced void. Said Chief Justice +Chase for the majority: "* * * the legislature cannot change the effect +of such a pardon any more than the executive can change a law. Yet this +is attempted by the provision under consideration. The Court is required +to receive special pardons as evidence of guilt and to treat them as +null and void. It is required to disregard pardons granted by +proclamation on condition, though the condition has been fulfilled, and +to deny them their legal effect. This certainly impairs the executive +authority and directs the Court to be instrumental to that end."[140] On +the other hand, Congress may itself, under the necessary and proper +clause, enact amnesty laws remitting penalties incurred under the +national statutes,[141] and may stipulate that witnesses before courts +or other bodies qualified to take testimony shall not be prosecuted by +the National Government for any offenses disclosed by their +testimony.[142] + + +Clause 2. He shall have Power, by and with the Advice and Consent of the +Senate, to make Treaties, provided two thirds of the Senators present +concur; and he shall nominate, and by and with the Advice and Consent of +the Senate, shall appoint Ambassadors, other public Ministers and +Consuls, Judges of the supreme Court, and all other Officers of the +United States, whose Appointments are not herein otherwise provided for, +and which shall be established by Law: but the Congress may by Law vest +the Appointment of such inferior Officers, as they think proper, in the +President alone, in the Courts of Law, or in the Heads of Departments. + + +The Treaty-Making Power + + +PRESIDENT AND SENATE + +The plan which the Committee of Detail reported to the Federal +Convention on August 6, 1787 provided that "the Senate of the United +States shall have power to make treaties, and to appoint Ambassadors, +and Judges of the Supreme Court."[143] Not until September 7, ten days +before the Convention's final adjournment, was the President made a +participant in these powers.[144] The constitutional clause evidently +assumes that the President and Senate will be associated throughout the +entire process of making a treaty, although Jay, writing in The +Federalist, foresaw that the initiative must often be seized by the +President without benefit of Senatorial counsel.[145] Yet so late as +1818 Rufus King, Senator from New York, who had been a member of the +Convention, declared on the floor of the Senate: "In these concerns the +Senate are the Constitutional and the only responsible counsellors of +the President. And in this capacity the Senate may, and ought to, look +into and watch over every branch of the foreign affairs of the nation; +they may, therefore, at any time call for full and exact information +respecting the foreign affairs, and express their opinion and advice to +the President respecting the same, when, and under whatever other +circumstances, they may think such advice expedient."[146] + + +NEGOTIATION A PRESIDENTIAL MONOPOLY + +Actually, the negotiation of treaties had long since been taken over by +the President; the Senate's role in relation to treaties is today +essentially legislative in character.[147] "He alone negotiates. Into +the field of negotiation, the Senate cannot intrude; and Congress itself +is powerless to invade it," declared Justice Sutherland for the Court +in 1936.[148] The Senate must, moreover, content itself with such +information as the President chooses to furnish it.[149] In performing +the function that remains to it, however, it has several options. It may +consent unconditionally to a proposed treaty, or it may refuse its +consent, or it may stipulate conditions in the form of amendments to the +treaty or of reservations to the act of ratification, the difference +between the two being that, whereas amendments, if accepted by the +President and the other party or parties to the Treaty,[150] change it +for all parties, reservations limit only the obligations of the United +States thereunder. The act of ratification for the United States is the +President's act, but may not be forthcoming unless the Senate has +consented to it by the required two-thirds of the Senators present, +which signifies two-thirds of a quorum, otherwise the consent rendered +would not be that of the Senate as organized under the Constitution to +do business.[151] Conversely, the President may, if dissatisfied with +amendments which have been affixed by the Senate to a proposed treaty or +with the conditions stipulated by it to ratification, decide to abandon +the negotiation, which he is entirely free to do.[152] + + +TREATIES AS LAW OF THE LAND + +Treaty commitments of the United States are of two kinds. In the +language of Chief Justice Marshall in 1829; "A treaty is, in its nature, +a contract between two nations, not a legislative act. It does not +generally effect, of itself, the object to be accomplished; especially, +so far as its operation is infraterritorial; but is carried into +execution by the sovereign power of the respective parties to the +instrument. In the United States, a different principle is established. +Our constitution declares a treaty to be the law of the land. It is, +consequently, to be regarded in courts of justice as equivalent to an +act of the legislature, whenever it operates of itself, without the aid +of any legislative provision. But when the terms of the stipulation +import a contract--when either of the parties engages to perform a +particular act, the treaty addresses itself to the political, not the +judicial department; and the legislature must execute the contract, +before it can become a rule for the Court."[153] To the same effect, but +more accurate, is Justice Miller's language for the Court a half century +later, in Head Money Cases: "A treaty is primarily a compact between +independent nations. It depends for the enforcement of its provisions on +the interest and the honor of the governments which are parties to it. +* * * But a treaty may also contain provisions which confer certain +rights upon the citizens or subjects of one of the nations residing in +the territorial limits of the other, which partake of the nature of +municipal law, and which are capable of enforcement as between private +parties in the courts of the country."[154] + + +Origin of the Conception + +How did this distinctive feature of the Constitution come about, by +virtue of which the treaty-making authority is enabled to stamp upon its +promises the quality of municipal law, thereby rendering them +"self-executory," as it is said; in other words, enforceable by the +courts? The answer is that article VI, paragraph 2 was, at its +inception, an outgrowth of a major weakness of the Articles of +Confederation. Although the Articles entrusted the treaty-making power +to Congress, fulfillment of Congress' promises was dependent on the +State legislatures. The result was that two highly important Articles +of the Treaty of Peace of 1783 not only went unenforced, but were in +some instances directly flouted by the local legislatures. These were +articles IV and VI, which contained stipulations in favor, respectively, +of British creditors of American citizens and of the former Loyalists; +in short of _private persons_. Confronted with the reiterated protests +of the British government, John Jay, Secretary of the United States for +Foreign Affairs, suggested to Congress late in 1786 that it request the +State legislatures to repeal all legislation repugnant to the Treaty of +Peace, and at the same time authorize their courts in all cases arising +from the said treaty to decide and adjudge according to the true intent +and meaning of the same, "anything in the said acts * * * to the +contrary notwithstanding." On April 13, 1787 Congress unanimously voted +Jay's proposal, which on the eve of the assembling of the Federal +Convention was transmitted to the State legislatures, by seven of which +it was promptly adopted.[155] + + +TREATY RIGHTS VERSUS STATE POWER + +The first case to arise under article VI, clause 2, was Ware _v._ +Hylton.[156] The facts and bearing of the decision are indicated in the +syllabus: "A debt, due before the war from an American to a British +subject, was during the war, paid into the loan office of Virginia, in +pursuance of a law of that State of the 20th of December, 1777, +sequestering British property and providing that such payment, and a +receipt therefor, should discharge the debt. Held: That the legislature +of Virginia which from the 4th of July, 1776, and before the +Confederation of the United States, * * * possessed and exercised all +the rights of independent governments, had authority to make such law +and that the same was obligatory, since every nation at war with another +may confiscate all property of, including private debts due, the enemy. +Such payment and discharge would therefore be a bar to a subsequent +action, unless the creditor's right was revived by the treaty of peace, +by which alone the restitution of, or compensation for, British property +confiscated during the war by any of the United States could only be +provided for. Held, that the fourth article of the treaty of peace +between Great Britain and the United States, of September 3, 1783, +nullifies said law of Virginia, destroys the payment made under it, and +revives the debt, and gives a right of recovery against the principal +debtor, notwithstanding such payment thereof, under the authority of +State law." In Hopkirk _v._ Bell[157] the Court further held that this +same treaty provision prevented the operation of a Virginia statute of +limitation to bar collection of antecedent debts. In numerous subsequent +cases the Court invariably ruled that treaty provisions supersede +inconsistent State laws governing the right of aliens to inherit real +estate.[158] Such a case was Hauenstein _v._ Lynham,[159] in which the +Court upheld the right of a citizen of the Swiss Republic, under the +treaty of 1850 with that country, to recover the estate of a relative +dying intestate in Virginia, to sell the same and to export the proceeds +from the sale.[160] + + +Recent Cases + +Certain more recent cases stem from California legislation, most of it +directed against Japanese immigrants. A statute which excluded aliens +ineligible to American citizenship from owning real estate was upheld in +1923 on the ground that the treaty in question did not secure the rights +claimed.[161] But in Oyama _v._ California,[162] decided in 1948, a +majority of the Court indicated a strongly held opinion that this +legislation conflicted with the equal protection clause of Amendment +XIV, a view which has since received the endorsement of the California +Supreme Court by a narrow majority.[163] Meantime, California was +informed that the rights of German nationals, under the Treaty of +December 8, 1923 between the United States and the Reich, to whom real +property in the United States had descended or been devised, to dispose +of it, had survived the recent war and certain war legislation, and +accordingly prevailed over conflicting State legislation.[164] + + +WHEN IS A TREATY SELF-EXECUTING? + +What is the scope of the power of American courts under article VI, +clause 2, to lend ear to private claims based on treaty provisions, on +the ground that such provisions are self-executing? Jay had in mind +certain intended victims of State legislation; and in fact the cases +reviewed above all arose within the normal field of State legislative +power. Nevertheless, as early as 1801, in United States _v._ Schooner +Peggy,[165] the Supreme Court, speaking by Chief Justice Marshall, took +notice of a treaty with France, executed after a court of admiralty had +entered a final judgment condemning a captured French vessel, and +finding it applicable to the situation before it, set the judgment aside +and ordered the vessel restored to her owners. Since that time the Court +has declared repeatedly in cases in which State law was not involved +that when a treaty prescribes a rule by which private rights are to be +determined, the courts are bound to take judicial notice thereof and to +accept it as a rule of decision in any appropriate proceeding to enforce +such rights.[166] In short, whether a given treaty provision is +self-executing is a question for the Court; although it does not +altogether lack guiding principles in deciding it, the most important of +which is the doctrine of political questions.[167] _See_ pp. 426, +471-472. + + +CONSTITUTIONAL FREEDOM OF CONGRESS WITH RESPECT TO TREATIES + +From the foregoing two other questions arise: first, are there types of +treaty provisions which only Congress can put into effect? Second, +assuming an affirmative answer to the above question, is Congress under +constitutional obligation to supply such implementation? For such answer +as exists to the first question resort must be had to the record of +practice and nonjudicial opinion. The question arose originally in 1796 +in connection with the Jay Treaty, certain provisions of which required +appropriations to carry them into effect. In view of the third clause of +article I, section 9 of the Constitution, which says that "no money +shall be drawn from the Treasury, but in Consequence of Appropriations +made by law; * * *," it was universally agreed that Congress must be +applied to if the treaty provisions alluded to were to be put into +execution. But at this point the second question arose, to the solution +of which the Court has subsequently contributed indirectly. (_See_ pp. +420-421). A bill being introduced into the House of Representatives to +vote the needed funds, supporters of the treaty, Hamilton, Chief Justice +Ellsworth, and others, argued that the House must make the appropriation +willy nilly; that the treaty, having been ratified by and with the +advice and consent of the Senate, was "supreme law of the land," and +that the legislative branch was bound thereby no less than the +executive and judicial branches.[168] Madison, a member of the House, +opposed this thesis in a series of resolutions, the nub of which is +comprised in the following statement: "When a Treaty stipulates +regulations on any of the subjects submitted by the Constitution to the +power of Congress, it must depend for its execution, as to such +stipulations, on a law or laws to be passed by Congress. And it is the +Constitutional right and duty of the House of Representatives, in all +such cases, to deliberate on the expediency or inexpediency of carrying +such Treaty into effect, and to determine and act thereon, as, in their +judgment, may be most conducive to the public good."[169] The upshot of +the matter was that the House adopted Madison's resolutions, while at +the same time voting the required funds.[170] + + +THE TREATY-MAKING POWER AND REVENUE LAWS + +On the whole, Madison's position has prospered. Discussion whether there +are other treaty provisions than those calling for an expenditure of +money which require legislation to render them legally operative has +centered chiefly on the question whether the treaty-making power can of +itself alone modify the revenue laws. From an early date spokesmen for +the House have urged that a treaty does not, and cannot, _ex proprio +vigore_, become supreme law of the land on this subject; and while the +Senate has never conceded this claim formally, yet in a number of +instances, "the treaty-making power has inserted in treaties negotiated +by it and affecting the revenue laws of the United States, a proviso +that they should not be deemed effective until the necessary laws to +carry them into operation should be enacted by Congress, and the House +has claimed that the insertion of such requirements has been, in +substance, a recognition of its claim in the premises,"[171] although +there are judicial dicta which inferentially support the Senate's +position. Latterly the question has become largely academic. Commercial +agreements nowadays are usually executive agreements contracted by +authorization of Congress itself. Today the vital issue in this area of +Constitutional Law is whether the treaty-making power is competent to +assume obligations for the United States in the discharge of which the +President can, without violation of his oath to support the +Constitution, involve the country in large scale military operations +abroad without authorization by the war-declaring power, Congress to +wit. Current military operations in Korea appear to assume an +affirmative answer to this question. + + +CONGRESSIONAL REPEAL OF TREATIES + +It is in respect to his contention that when it is asked to carry a +treaty into effect Congress has the constitutional right, and indeed the +duty, to determine the matter according to its own ideas of what is +expedient, that Madison has been most completely vindicated by +developments. This is seen in the answer which the Court has returned to +the question, as to what happens when a treaty provision and an act of +Congress conflict. The answer is, that neither has any intrinsic +superiority over the other and that therefore the one of later date will +prevail _leges posteriores priores contrarias abrogant_. In short, the +treaty commitments of the United States in no wise diminish Congress's +constitutional powers. To be sure, legislative repeal of a treaty as law +of the land may amount to a violation of it as an international contract +in the judgment of the other party to it. In such case, as the Court has +said, "Its infraction becomes the subject of international negotiations +and reclamations, so far as the injured party chooses to seek redress, +which may in the end be enforced by actual war. It is obvious that with +all this the judicial courts have nothing to do and can give no +redress."[172] + + +TREATIES _Versus_ PRIOR ACTS OF CONGRESS + +The cases are numerous in which the Court has enforced statutory +provisions which were recognized by it as superseding prior treaty +engagements. How as to the converse situation? Two early cases in which +Chief Justice Marshall spoke for the Court, stand for the proposition +that treaties, so far as self-executing, repeal earlier conflicting acts +of Congress. In the case of the "_Peggy_,"[173] certain statutory +provisions dealing with the trial of prize cases were held to have been +modified by a subsequent treaty with France; and in Foster _v._. +Neilson,[174] while holding--mistakenly as he later admitted[175]--that +the treaty of January 24, 1818 with Spain was not self-executing with +respect to certain land grants, he went on to say that if it had been it +would have repealed acts of Congress repugnant to it. With one +exception, however, judicial dicta which reiterate this idea are obiter, +and are disparaged by Willoughby, as follows: "In fact, however, there +have been few (the writer is not certain that there have been any) +instances in which a treaty inconsistent with a prior act of Congress +has been given full force and effect as law in this country without the +assent of Congress. There may indeed have been cases in which, by +treaty, certain action has been taken without reference to existing +Federal laws, as, for example, where by treaty certain populations have +been collectively naturalized, but such treaty action has not operated +to repeal or annul the existing law upon the subject. Furthermore, with +specific reference to commercial arrangements with foreign powers, +Congress has explicitly denied that a treaty can operate to modify the +arrangements which it, by statute, has provided, and, in actual +practice, has in every instance succeeded in maintaining this +point."[176] The single exception just alluded to is Cook _v._ United +States,[177] which may be regarded as part of the aftermath of National +Prohibition. Here a divided Court, speaking by Justice Brandeis, ruled +that the authority conferred by Sec. 581 of the Tariff Act of 1922 and its +reenactment in the tariff Act of 1930, upon officers of the Coast Guard +to stop and board any vessel at any place within four leagues (12 miles) +of the coast of the United States and to seize the vessel, if upon +examination it shall appear that any violation of the law has been +committed by reason of which the vessel or merchandise therein is liable +to forfeiture, is, as respects British vessels suspected of being +engaged in attempting to import alcoholic beverages into the United +States in violation of its laws, modified by the Treaty of May 22, 1924, +between the United States and Great Britain, so as to allow seizure of +such vessels only within the distance from the coast which can be +traversed in one hour by the vessel suspected of endeavoring to commit +the offense.[178] Only one case is cited in support of the proposition +that the treaty, being of later date than the act of Congress, +superseded it so far as they were in conflict. This is Whitney _v._ +Robertson,[179] in which an act of Congress was held to have superseded +conflicting provisions of a prior treaty. Moreover, the act of Congress +involved in the Cook case had, as above indicated, been reenacted +subsequently to the treaty involved. The decision actually accomplishes +the singular result of reversing the maxim _leges posteriores_. It may +be suspected that it was devised to avoid a diplomatic controversy which +in the low estate of Prohibition at that date would not have been +worthwhile.[180] + + +INTERPRETATION AND TERMINATION OF TREATIES AS INTERNATIONAL COMPACTS + +The repeal by Congress of the "self-executing" clauses of a treaty as +"law of the land" does not of itself terminate the treaty as an +international contract, although it may very well provoke the other +party to the treaty to do so. Hence the question arises of where the +Constitution lodges this power; also the closely related question of +where it lodges the power to interpret the contractual provisions of +treaties. The first case of outright abrogation of a treaty by the +United States occurred in 1798, when Congress, by the act of July 7 of +that year, pronounced the United States freed and exonerated from the +stipulations of the Treaties of 1778 with France.[181] This act was +followed two days later by one authorizing limited hostilities against +the same country; and in the case of Bas _v._ Tingy[182] the Supreme +Court treated the act of abrogation as simply one of a bundle of acts +declaring "public war" upon the French Republic. + + +TERMINATION OF TREATIES BY NOTICE + +The initial precedent in the matter of termination by notice occurred in +1846, when by the Joint Resolution of April 27, Congress authorized the +President at his discretion to notify the British Government of the +abrogation of the Convention of August 6, 1827, relative to the joint +occupation of the Oregon Territory. As the President himself had +requested the resolution, the episode supports the theory that +international conventions to which the United States is party, even +those terminable on notice, are terminable only by act of Congress.[183] +Subsequently Congress has often passed resolutions denouncing treaties +or treaty provisions which by their own terms were terminable on notice, +and Presidents have usually carried out such resolutions, though not +invariably.[184] By the La Follette-Furuseth Seamen's Act, approved +March 4, 1915,[185] President Wilson was directed, "within ninety days +after the passage of the act, to give notice to foreign governments that +so much of any treaties as might be in conflict with the provisions of +the act would terminate on the expiration of the periods of notice +provided for in such treaties," and the required notice was given.[186] +When, however, by section 34 of the Jones Merchant Marine Act of 1920 +the same President was authorized and directed within ninety days to +give notice to the other parties to certain treaties, which the act +infracted, of the termination thereof, he refused to comply, asserting +that he "did not deem the direction contained in section 34 * * * an +exercise of any constitutional power possessed by Congress."[187] The +same intransigent attitude was continued by Presidents Harding and +Coolidge. + + +DETERMINATION WHETHER A TREATY HAS LAPSED + +At the same time, there is clear judicial recognition that the President +may without consulting Congress validly determine the question whether +specific treaty provisions have lapsed. The following passage from +Justice Lurton's opinion in Charlton _v._ Kelly[188] is pertinent: "If +the attitude of Italy was, as contended, a violation of the obligation +of the treaty, which, in international law, would have justified the +United States in denouncing the treaty as no longer obligatory, it did +not automatically have that effect. If the United States elected not to +declare its abrogation, or come to a rupture, the treaty would remain in +force. It was only voidable, not void; and if the United States should +prefer, it might waive any breach which in its judgment had occurred and +conform to its own obligation as if there had been no such breach. * * * +That the political branch of the Government recognizes the treaty +obligation as still existing is evidenced by its action in this case. +* * * The executive department having thus elected to waive any right to +free itself from the obligation to deliver up its own citizens, it is +the plain duty of this court to recognize the obligation to surrender +the appellant as one imposed by the treaty as the supreme law of the +land as affording authority for the warrant of extradition."[189] So +also it is primarily for the political departments to determine whether +certain provisions of a treaty have survived a war in which the other +contracting state ceased to exist as a member of the international +community.[190] + + +STATUS OF A TREATY A POLITICAL QUESTION + +All in all, it would seem that the vast weight both of legislative +practice and of executive opinion supports the proposition that the +power of terminating outright international compacts to which the United +States is party belongs, as a prerogative of sovereignty, to Congress +alone, but that the President may, as an incident of his function of +interpreting treaties preparatory to enforcing them, sometimes +authoritatively find that a treaty contract with another power has or +has not been breached by the latter and whether, for that reason, it is +or is not longer binding on the United States.[191] At any rate, it is +clear that any such questions which arise concerning a treaty are of a +political nature and will not be decided by the courts. In the words of +Justice Curtis in Taylor _v._ Morton:[192] It is not "a judicial +question, whether a treaty with a foreign sovereign has been violated by +him; whether the consideration of a particular stipulation in a treaty, +has been voluntarily withdrawn by one party, so that it is no longer +obligatory on the other; whether the views and acts of a foreign +sovereign, manifested through his representative have given just +occasion to the political departments of our government to withhold the +execution of a promise contained in a treaty, or to act in direct +contravention of such promise. * * * These powers have not been confided +by the people to the judiciary, which has no suitable means to exercise +them; but to the executive and the legislative departments of our +government. They belong to diplomacy and legislation, and not to the +administration of existing laws. And it necessarily follows, that if +they are denied to Congress and the Executive, in the exercise of their +legislative power, they can be found nowhere, in our system of +government." Chief Justice Marshall's language in Foster _v._ +Neilson[193] is to the same effect. + + +TREATIES AND THE NECESSARY AND PROPER CLAUSE + +What power, or powers, does Congress exercise when it enacts legislation +for the purpose of carrying treaties of the United States into effect? +When the subject matter of the treaty falls within the ambit of +Congress's enumerated powers (those listed in the first 17 clauses of +article I, section 8 of the Constitution), then it is these powers which +it exercises in carrying such treaty into effect. But if the treaty +deals with a subject which falls normally to the States to legislate +upon, or a subject which falls within the national jurisdiction because +of its international character, then recourse is had to the necessary +and proper clause. Thus, of itself, Congress would have no power to +confer judicial powers upon foreign consuls in the United States, but +the treaty-power can do this and has done it repeatedly and Congress has +supplemented these treaties by appropriate legislation.[194] Again, +Congress could not confer judicial power upon American consuls abroad to +be there exercised over American citizens, but the treaty-power can and +has, and Congress has passed legislation perfecting such agreements and +such legislation has been upheld.[195] Again, Congress of itself could +not provide for the extradition of fugitives from justice, but the +treaty-power can and has done so scores of times, and Congress has +passed legislation carrying our extradition treaties into effect.[196] +Again, Congress could not ordinarily penalize private acts of violence +within a State, but it can punish such acts if they deprive aliens of +their rights under a treaty.[197] Referring to such legislation the +Court has said: "The power of Congress to make all laws necessary and +proper for carrying into execution as well the powers enumerated in +section 8 of article I of the Constitution, as all others vested in the +Government of the United States, or in any Department or the officers +thereof, includes the power to enact such legislation as is appropriate +to give efficacy to any stipulations which it is competent for the +President by and with the advice and consent of the Senate to insert in +a treaty with a foreign power."[198] In a word, the treaty-power cannot +purport to amend the Constitution by adding to the list of Congress's +enumerated powers, but having acted, the consequence will often be that +it has provided Congress with an opportunity to enact measures which +independently of a treaty Congress could not pass; and the only question +that can be raised as to such measures will be whether they are +"necessary and proper" measures for the carrying of the treaty in +question into operation. The matter is further treated under the next +heading. + + +CONSTITUTIONAL LIMITS OF THE TREATY-MAKING POWER; MISSOURI _v._ +HOLLAND + +Our system being theoretically opposed to the lodgement anywhere in +government of unlimited power, the question of the scope of this +exclusive power has often been pressed upon the Court, which has +sometimes used language vaguely suggestive of limitation, as in the +following passage from Justice Field's opinion for the Court in Geofroy +_v._ Riggs,[199] which was decided in 1890: "The treaty power, as +expressed in the Constitution, is in terms unlimited except by those +restraints which are found in that instrument against the action of the +government or of its departments, and those arising from the nature of +the government itself and of that of the States. It would not be +contended that it extends so far as to authorize what the Constitution +forbids, or a change in the character of the government or in that of +one of the States, or a cession of any portion of the territory of the +latter, without its consent. * * * But with these exceptions, it is not +perceived that there is any limit to the questions which can be adjusted +touching any matter which is properly the subject of negotiation with a +foreign country."[200] The fact is none the less, that no treaty of the +United States nor any provision thereof has ever been found by the Court +to be unconstitutional. The most persistently urged proposition in +limitation of the treaty-making power has been that it must not invade +certain reserved powers of the States. In view of the sweeping language +of the supremacy clause, it is hardly surprising that this argument has +not prevailed.[201] Nevertheless, the Court was forced to answer it as +recently as 1923. This was in the case of Missouri _v._ Holland,[202] in +which the Court sustained a treaty between the United States and Great +Britain providing for the reciprocal protection of migratory birds which +make seasonal flights from Canada into the United States and vice versa, +and an act of Congress passed in pursuance thereof which authorized the +Department of Agriculture to draw up regulations to govern the hunting +of such birds, subject to the penalties specified by the act. To the +objection that the treaty and implementing legislation invaded the +acknowledged police power of the State in the protection of game within +its borders, Justice Holmes, speaking for the Court, answered: "Acts of +Congress are the supreme law of the land only when made in pursuance of +the Constitution, while treaties are declared to be so when made under +the authority of the United States. It is open to question whether the +authority of the United States means more than the formal acts +prescribed to make the convention. We do not mean to imply that there +are no qualifications to the treaty-making power; but they must be +ascertained in a different way. It is obvious that there may be matters +of the sharpest exigency for the national well being that an act of +Congress could not deal with but that a treaty followed by such an act +could, and it is not lightly to be assumed that, in matters requiring +national action, 'a power which must belong to and somewhere reside in +every civilized government' is not to be found. (Andrews _v._ Andrews, +188 U.S. 14, 33 (1903)). What was said in that case with regard to the +powers of the States applies with equal force to the powers of the +nation in cases where the States individually are incompetent to act. +* * * The treaty in question does not contravene any prohibitory words +to be found in the Constitution. The only question is whether it is +forbidden by some invisible radiation from the general terms of the +Tenth Amendment. We must consider what this country has become in +deciding what that Amendment has reserved."[203] And again: "Here a +national interest of very nearly the first magnitude is involved. It can +be protected only by national action in concert with that of another +power. The subject-matter is only transitorily within the State and has +no permanent habitat therein. But for the treaty and the statute there +soon might be no birds for any powers to deal with. We see nothing in +the Constitution that compels the Government to sit by while a food +supply is cut off and the protectors of our forests and our crops are +destroyed. It is not sufficient to rely upon the States. The reliance is +vain, and were it otherwise, the question is whether the United States +is forbidden to act. We are of opinion that the treaty and statute must +be upheld."[204] + +Justice Sutherland's later assertion in the Curtiss-Wright case[205] +that the powers "to declare and wage war, to conclude peace, to make +treaties," etc., belong to "the Federal Government as the necessary +concomitants of nationality" leaves even less room for the notion of a +limited treaty-making power, as indeed appears from his further +statement that "as a member of the family of nations, the right and +power of the United States * * * are equal to the right and power of the +other members of the international family."[206] No doubt there are +specific limitations in the Constitution in favor of private rights +which "go to the roots" of all power. But these do not include the +reserved powers of the States; nor do they appear to limit the National +Government in its choice of matters concerning which it may treat with +other governments.[207] + + +INDIAN TREATIES + +In the early cases of Cherokee Nation _v._ Georgia[208] and Worcester +_v._ Georgia[209] the Court, speaking by Chief Justice Marshall, held, +first, that the Cherokee Nation was not a foreign state within the +meaning of that clause of the Constitution which extends the judicial +power of the United States to controversies "between a State or the +citizens thereof and foreign states, citizens or subjects"; secondly, +that: "The Constitution, by declaring treaties already made, as well as +those to be made, to be the supreme law of the land, had adopted and +sanctioned the previous treaties with the Indian nations, and +consequently admits their rank among those powers who are capable of +making treaties. The words 'treaty' and 'nation' are words of our own +language, selected in our diplomatic and legislative proceedings, by +ourselves, having each a definite and well understood meaning. We have +applied them to Indians, as we have applied them to the other nations of +the earth. They are applied to all in the same sense."[210] + +Later cases established that the power to make treaties with the Indian +tribes was coextensive with the power to make treaties with foreign +nations;[211] that the States were incompetent to interfere with rights +created by such treaties;[212] that as long as the United States +recognized the national character of a tribe, its members were under the +protection of treaties and of the laws of Congress and their property +immune from taxation by a State;[213] that a stipulation in an Indian +treaty that laws forbidding the introduction of liquors into Indian +territory was operative without legislation, and binding on the courts +although the territory was within an organized county of the +States;[214] that an act of Congress contrary to a prior Indian treaty +repealed it.[215] + + +Present Status of Indian Treaties + +Today Indian treaties is a closed account in the Constitutional Law +ledger. By a rider inserted in the Indian Appropriation Act of March 3, +1871 it was provided "That hereafter no Indian nation or tribe within +the territory of the United States shall be acknowledged or recognized +as an independent nation, tribe, or power with whom the United States +may contract by treaty: _Provided, further_, that nothing herein +contained shall be construed to invalidate or impair the obligation of +any treaty heretofore lawfully made and ratified with any such Indian +nation or tribe."[216] Subsequently, the power of Congress to withdraw +or modify tribal rights previously granted by treaty has been invariably +upheld. Thus the admission of Wyoming as a State was found to abrogate, +_pro tanto_, a treaty guaranteeing certain Indians the right to hunt on +unoccupied lands of the United States so long as game may be found +thereon and to bring hunting by the Indians within the police power of +the State.[217] Similarly, statutes modifying rights of members in +tribal lands,[218] granting a right of way for a railroad through lands +ceded by treaty to an Indian tribe,[219] or extending the application of +revenue laws respecting liquor and tobacco over Indian territories, +despite an earlier treaty exemption,[220] have been sustained. When, on +the other hand, definite property rights have been conferred upon +individual Indians, whether by treaty or under an act of Congress, they +are protected by the Constitution to the same extent and in the same way +as the private rights of other residents or citizens of the United +States. Hence it was held that certain Indian allottees under an +agreement according to which, in part consideration of their +relinquishment of all their claim to tribal property, they were to +receive in severalty allotments of lands which were to be nontaxable for +a specified period, acquired vested rights of exemption from State +taxation which were protected by the Fifth Amendment against abrogation +by Congress.[221] + + +International Agreements Without Senate Approval + +The capacity of the United States to enter into agreements with other +nations is not exhausted in the treaty-making power. The Constitution +recognizes a distinction between "treaties" and "agreements" or +"compacts," but does not indicate what the difference is; and what +difference there once may have been has been seriously blurred in +practice within recent decades. The President's power to enter into +agreements or compacts with other governments without consulting the +Senate must be referred to his powers as organ of foreign relations and +as Commander in Chief. From an early date, moreover, Congress has +authorized executive agreements within the field of its powers, postal +agreements, trade-mark and copyright agreements, reciprocal trade +agreements. Executive agreements may also stem from treaties.[222] + + +ROUTINE EXECUTIVE AGREEMENTS + +Many types of executive agreements comprise the ordinary daily grist of +the diplomatic mill. Among these are such as apply to minor territorial +adjustments, boundary rectifications, the policing of boundaries, the +regulation of fishing rights, private pecuniary claims against another +government or its nationals, in Story's words, "the mere private rights +of sovereignty."[223] Crandall lists scores of such agreements entered +into with other governments by the authorization of the President.[224] +Such agreements are ordinarily directed to particular and comparatively +trivial disputes and by the settlement the effect of these cease _ipso +facto_ to be operative. Also there are such time-honored diplomatic +devices as the "protocol" which marks a stage in the negotiation of a +treaty, and the _modus vivendi_, which is designed to serve as a +temporary substitute for one. Executive agreements become of +constitutional significance when they constitute a determinative factor +of future foreign policy and hence of the country's destiny. Within +recent decades, in consequence particularly of our participation in +World War II and our immersion in the conditions of international +tension which have prevailed both before and after this war, Presidents +have entered into agreements with other governments some of which have +approximated temporary alliances. It cannot be justly said, however, +that in so doing they have acted without considerable support from +precedent. + + +LAW-MAKING EXECUTIVE AGREEMENTS + +An early instance of executive treaty-making was the agreement by which +President Monroe in 1817 brought about a delimitation of armaments on +the Great Lakes. The arrangement was effected by an exchange of notes, +which nearly a year later was laid before the Senate with a query as to +whether it was within the President's power, or whether advice and +consent of the Senate were required. The Senate approved the agreement +by the required two-thirds vote, and it was forthwith proclaimed by the +President without there having been a formal exchange of +ratifications.[225] Of a kindred type, and owing much to the President's +capacity as Commander in Chief, was a series of agreements entered into +with Mexico between 1882 and 1896 according each country the right to +pursue marauding Indians across the common border.[226] Commenting on +such an agreement, the Court remarked, a bit uncertainly: "While no act +of Congress authorizes the executive department to permit the +introduction of foreign troops, the power to give such permission +without legislative assent was probably assumed to exist from the +authority of the President as commander in chief of the military and +naval forces of the United States. It may be doubted, however, whether +such power could be extended to the apprehension of deserters [from +foreign vessels] in the absence of positive legislation to that +effect."[227] Justice Gray and three other Justices were of the opinion +that such action by the President must rest upon express treaty or +statute.[228] + + +PRESIDENT McKINLEY'S CONTRIBUTION + +Notable expansion of Presidential power in this field first became +manifest in the administration of President McKinley. At the outset of +war with Spain the President proclaimed that the United States would +consider itself bound for the duration by the last three principles of +the Declaration of Paris, a course which, as Professor Wright observes, +"would doubtless go far toward establishing these three principles as +international law obligatory upon the United States in future +wars."[229] Hostilities with Spain were brought to an end in August 1898 +by an armistice the conditions of which largely determined the +succeeding treaty of peace,[230] just as did the Armistice of November +11, 1918, determine in great measure the conditions of the final peace +with Germany in 1918. It was also President McKinley who in 1900, +relying on his own sole authority as Commander in Chief, contributed a +land force of 5,000 men and a naval force to cooperate with similar +contingents from other Powers to rescue the legations in Peking from the +Boxers; and a year later, again without consulting either Congress or +the Senate, accepted for the United States the Boxer Indemnity Protocol +between China and the intervening Powers.[231] Commenting on the Peking +protocol Willoughby quotes with approval the following remark: "This +case is interesting, because it shows how the force of circumstances +compelled us to adopt the European practice with reference to an +international agreement, which, aside from the indemnity question, was +almost entirely political in character. * * *, purely political treaties +are, under constitutional practice in Europe, usually made by the +executive alone. The situation in China, however, abundantly justified +President McKinley in not submitting the protocol to the Senate. The +remoteness of Pekin, the jealousies between the allies, and the shifting +evasive tactics of the Chinese Government, would have made impossible +anything but an agreement on the spot."[232] + + +EXECUTIVE AGREEMENTS AFFECTING FAR EASTERN RELATIONS + +It was during this period, too, that John Hay, as McKinley's Secretary +of State, initiated his "Open Door" policy, by notes to Great Britain, +Germany, and Russia, which were soon followed by similar notes to +France, Italy and Japan. These in substance asked the recipients to +declare formally that they would not seek to enlarge their respective +interests in China at the expense of any of the others; and all +responded favorably.[233] Then in 1905 the first Roosevelt, seeking to +arrive at a diplomatic understanding with Japan, instigated an exchange +of opinions between Secretary of War Taft, then in the Far East, and +Count Katsura, amounting to a secret treaty, by which the Roosevelt +administration assented to the establishment by Japan of a military +protectorate in Korea.[234] Three years later Secretary of State Root +and the Japanese ambassador at Washington entered into the Root-Takahira +Agreement to uphold the status quo in the Pacific and maintain the +principle of equal opportunity for commerce and industry in China.[235] +Meantime, in 1907, by a "Gentlemen's Agreement," the Mikado's government +had agreed to curb the emigration of Japanese subjects to the United +States, thereby relieving the Washington government from the necessity +of taking action that would have cost Japan loss of face. The final of +this series of executive agreements touching American relations in and +with the Far East was the product of President Wilson's diplomacy. This +was the Lansing-Ishii Agreement, embodied in an exchange of letters +dated November 2, 1917, by which the United States recognized Japan's +"special interests" in China, and Japan assented to the principle of the +Open Door in that country.[236] + + +THE INTERNATIONAL OBLIGATION OF EXECUTIVE AGREEMENTS + +The question naturally suggests itself: What sort of obligation does an +agreement of the above description impose upon the United States? The +question was put to Secretary Lansing himself in 1918 by a member of the +Foreign Relations Committee, as follows: "Has the so-called +Lansing-Ishii Agreement any binding force on this country?" and replied +that it had not; that it was simply a declaration of American policy so +long as the President or State Department might choose to continue +it.[237] Actually, it took the Washington Conference of 1921, two solemn +treaties and an exchange of notes to get rid of it; while the +"Gentlemen's Agreement," first drawn in 1907, was finally put an end to, +after seventeen years, only by an act of Congress.[238] That executive +agreements are sometimes cognizable by the courts was indicated +earlier. The matter is further treated immediately below. + + +THE LITVINOV AGREEMENT OF 1933 + +The executive agreement attained its fullest development as an +instrument of foreign policy under President Franklin D. Roosevelt, even +at times threatening to replace the treaty-making power, if not formally +yet actually, as a determinative element in the field of foreign policy. +Mr. Roosevelt's first important utilization of the executive agreement +device took the form of an exchange of notes on November 16, 1933 with +Maxim M. Litvinov, People's Commissar for Foreign Affairs, whereby +American recognition was extended to the Union of Soviet Socialist +Republics in consideration of certain pledges, the first of which was +the promise to restrain any persons or organizations "under its direct +or indirect control, * * *, from any act overt or covert liable in any +way whatsoever to injure the tranquillity, prosperity, order, or +security of the whole or any part of the United States, * * *"[239] + + +United States _v._ Belmont + +The Litvinov Agreement is also noteworthy for giving rise to two cases +which afforded the Court the opportunity to evaluate the executive +agreement in terms of Constitutional Law. The earlier of these was +United States _v._ Belmont,[240] decided in 1937. The point at issue was +whether a district court of the United States was free to dismiss an +action by the United States, as assignee of the Soviet government, for +certain moneys which were once the property of a Russian metal +corporation whose assets had been appropriated by the Soviet government. +The Court, speaking by Justice Sutherland, said "No." The President's +act in recognizing the Soviet government, and the accompanying +agreements, constituted, said the Justice, an international compact +which the President, "as the sole organ" of international relations for +the United States, was authorized to enter upon without consulting the +Senate. Nor did State laws and policies make any difference in such a +situation; for while the supremacy of treaties is established by the +Constitution in express terms, yet the same rule holds "in the case of +all international compacts and agreements from the very fact that +complete power over international affairs is in the National Government +and is not and cannot be subject to any curtailment or interference on +the part of the several States."[241] + + +United States _v._ Pink; National Supremacy + +In the United States _v._ Pink,[242] decided five years later, the same +course of reasoning was reiterated with added emphasis. The question +here involved was whether the United States was entitled under the +Executive Agreement of 1933 to recover the assets of the New York branch +of a Russian insurance company. The company argued that the decrees of +confiscation of the Soviet Government did not apply to its property in +New York, and could not consistently with the Constitution of the United +States and that of New York. The Court, speaking by Justice Douglas, +brushed these arguments aside. An official declaration of the Russian +government itself settled the question of the extraterritorial operation +of the Russian decree of nationalization and was binding on American +courts. The power to remove such obstacles to full recognition as +settlement of claims of our nationals was "a modest implied power of the +President who is the 'sole organ of the Federal Government in the field +of international relations' * * * It was the judgment of the political +department that full recognition of the Soviet Government required the +settlement of outstanding problems including the claims of our +nationals. * * * We would usurp the executive function if we held that +that decision was not final and conclusive on the courts. 'All +constitutional acts of power, whether in the executive or in the +judicial department, have as much legal validity and obligation as if +they proceeded from the legislature, * * *'[243] * * * It is, of +course, true that even treaties with foreign nations will be carefully +construed so as not to derogate from the authority and jurisdiction of +the States of this nation unless clearly necessary to effectuate the +national policy.[244] But State law must yield when it is inconsistent +with, or impairs the policy or provisions of, a treaty or of an +international compact or agreement.[245] Then, the power of a State to +refuse enforcement of rights based on foreign law which runs counter to +the public policy of the form * * * must give way before the superior +Federal policy evidenced by a treaty or international compact or +agreement.[246] * * * The action of New York in this case amounts in +substance to a rejection of a part of the policy underlying recognition +by this nation of Soviet Russia. Such power is not accorded a State in +our constitutional system. To permit it would be to sanction a dangerous +invasion of Federal authority. For it would 'imperil the amicable +relations between governments and vex the peace of nations.'[247] * * * +It would tend to disturb that equilibrium in our foreign relations which +the political departments of our national government has diligently +endeavored to establish. * * * No State can rewrite our foreign policy +to conform to its own domestic policies. Power over external affairs is +not shared by the States; it is vested in the national government +exclusively. It need not be so exercised as to conform to State laws or +State policies, whether they be expressed in constitutions, statutes, +or judicial decrees. And the policies of the States become wholly +irrelevant to judicial inquiry when the United States, acting within its +constitutional sphere, seeks enforcement of its foreign policy in the +courts." And while "aliens as well as citizens are entitled to the +protection of the Fifth Amendment," that amendment did not bar the +Federal Government "from securing for itself and our nationals priority +[against] creditors who are nationals of foreign countries and whose +claims arose abroad."[248] + + +THE HULL-LOTHIAN AGREEMENT, 1940 + +The fall of France in June 1940 inspired President Roosevelt to enter +the following summer into two executive agreements the total effect of +which was to transform the role of the United States from one of strict +neutrality toward the war then waging in Europe to one of +semi-belligerency. The first of these agreements was with Canada, and +provided that a Permanent Joint Board on Defense was to be set up at +once by the two countries which would "consider in the broad sense the +defense of the north half of the Western Hemisphere."[249] The second, +and more important agreement, was the Hull-Lothian Agreement of +September 2, 1940, under which, in return for the lease to it for +ninety-nine years of certain sites for naval bases in the British West +Atlantic, our Government handed over to the British Government fifty +over-age destroyers which had been recently reconditioned and +recommissioned.[250] The transaction, as justified in an opinion by the +Attorney General, amounted to a claim for the President, in his capacity +as Commander in Chief and organ of foreign relations, to dispose of +property of the United States, although the only power to do this which +the Constitution mentions is that which it assigns to Congress.[251] + +On April 9, 1941, the State Department, in consideration of the fact +that Germany had, on April 9, 1940, occupied Denmark, entered into an +executive agreement with the Danish minister at Washington, whereby the +United States acquired the right to occupy Greenland for the duration, +for purposes of defense.[252] + + +WARTIME AGREEMENTS + +That the post-war diplomacy of the United States has been greatly +influenced by such executive agreements as those which are associated +with Cairo, Teheran, Malta, and Potsdam, is evident.[253] The Executive +Agreement thus became, in an era in which the instability of +international relations forbade successful efforts at treaty-making, the +principal instrument of Presidential initiative in the field of foreign +relations. Whether the United Nations Charter and the Atlantic Pact +signalize the end of this era will doubtless appear in due course. + + +EXECUTIVE AGREEMENTS BY AUTHORIZATION OF CONGRESS + +"The first known use of the executive agreement under the Constitution +of the United States," writes Dr. McClure, "was for the development of +international communication by means of the postal service. The second +Congress, in establishing the Post Office, which had theretofore been +dealt with through legislation carrying it on from year to year, enacted +that 'the Postmaster General may make arrangements with the Postmasters +in any foreign country for the reciprocal receipt and delivery of +letters and packets, through the post-offices.' It was further provided +that this act, of February 20, 1792, should 'be in force for the term of +two years, from the * * * first day of June next, and no longer.'"[254] + + +Reciprocal Trade Agreements + +Under later legislation executive agreements, or what in effect were +such, have been authorized by which American patents, copyrights, and +trade-marks have secured protection abroad in return for like protection +by the United States of similar rights of foreign origin.[255] But the +most copious source of executive agreements has been legislation which +provided basis for reciprocal trade agreements, with other +countries.[256] The culminating act of this species was that of June 12, +1934, which provided, in part, as follows: "* * *, the President, +whenever he finds as a fact that any existing duties or other import +restrictions of the United States or any foreign country are unduly +burdening and restricting the foreign trade of the United States and +that the purpose above declared will be promoted by the means +hereinafter specified, is authorized from time to time--'(1) To enter +into foreign trade agreements with foreign governments or +instrumentalities thereof'; and '(2) To proclaim such modifications of +existing duties and other import restrictions, or such additional import +restrictions, or such continuance, and for such minimum periods, of +existing customs or excise treatment of any article covered by foreign +trade agreements, as are required or appropriate to carry out any +foreign trade agreement that the President has entered into hereunder. +No proclamation shall be made increasing or decreasing by more than 50 +per centum any existing rate of duty or transferring any article between +the dutiable and free lists.'"[257] This act, renewed at three-year +intervals, is still in effect, and under it many trade agreements were +negotiated by former Secretary of State Hull. + + +The Constitutionality of Trade Agreements + +In Field _v._ Clark,[258] decided in 1892 this type of legislation was +sustained against the objection that it attempted an unconstitutional +delegation "of both legislative and treaty-making powers." The Court met +the first objection with an extensive review of similar legislation from +the inauguration of government under the Constitution. The second +objection it met with the court statement that, "What has been said is +equally applicable to the objection that the third section of the act +invests the President with treaty-making power. The Court is of opinion +that the third section of the act of October 1, 1890, is not liable to +the objection that it transfers legislative and treaty-making power to +the President."[259] Although two Justices disagreed, the question has +never been revived. However, in Altman and Co. _v._ United States,[260] +decided twenty years later, a collateral question was passed upon. This +was whether an act of Congress which gave the federal circuit courts of +appeal jurisdiction of cases in which "the validity or construction of +any treaty, * * *, was drawn in question" embraced a case involving a +trade agreement which had been made under the sanction of the Tariff Act +of 1897. Said the Court: "While it may be true that this commercial +agreement, made under authority of the Tariff Act of 1897, Sec. 3, was +not a treaty possessing the dignity of one requiring ratification by the +Senate of the United States, it was an international compact, negotiated +between the representatives of two sovereign nations and made in the +name and on behalf of the contracting countries, and dealing with +important commercial relations between the two countries, and was +proclaimed by the President. If not technically a treaty requiring +ratification, nevertheless it was a compact authorized by the Congress +of the United States, negotiated and proclaimed under the authority of +its President. We think such a compact is a treaty under the Circuit +Court of Appeals Act, and, where its construction is directly involved, +as it is here, there is a right of review by direct appeal to this +court."[261] + + +The Lend-Lease Act + +The most extensive delegation of authority ever made by Congress to the +President to enter into executive agreements occurred within the field +of the cognate powers of the two departments, the field of foreign +relations; and took place at a time when war appeared to be in the +offing, and was in fact only a few months away. The legislation referred +to was the Lend-Lease Act of March 11, 1941[262] by which the President +was empowered for something over two years--and subsequently for +additional periods whenever he deemed it in the interest of the national +defense to do so, to authorize "the Secretary of War, the Secretary of +the Navy, or the head of any other department or agency of the +Government," to manufacture in the government arsenals, factories, and +shipyards, or "otherwise procure," to the extent that available funds +made possible, "defense articles"--later amended to include foodstuffs +and industrial products--and "sell, transfer title to, exchange, lease, +lend, or otherwise dispose of," the same to the "government of any +country whose defense the President deems vital to the defense of the +United States," and on any terms that he "deems satisfactory." Under +this authorization the United States entered into Mutual Aid Agreements +whereby the government furnished its allies in the recent war forty +billions of dollars worth of munitions of war and other supplies. + + +PRESIDENT PLUS CONGRESS VERSUS SENATE + +The partnership which has developed within recent decades between the +President and Congress within the field of their cognate powers is also +illustrated by the act of February 9, 1922, creating a commission to +effect agreements respecting debts owed this country by certain other +governments, the resulting agreements to be approved by Congress;[263] +by the circumstances attending the drawing up in 1944 of the United +Nations Relief and Rehabilitation Convention;[264] by the Joint +Resolution of June 19, 1934, by which the President was authorized to +accept membership for the United States in the International Labor +Office.[265] It is altogether apparent in view of developments like +these that the executive agreement power, especially when it is +supported by Congressional legislation, today overlaps the treaty-making +power. + + +ARBITRATION AGREEMENTS + +In 1904-1905 Secretary of State John Hay negotiated a series of treaties +providing for the general arbitration of international disputes. Article +II of the treaty with Great Britain, for example, provided as follows: +"In each individual case the High Contracting Parties, before appealing +to the Permanent Court of Arbitration, shall conclude a special +Agreement defining clearly the matter in dispute and the scope of the +powers of the Arbitrators, and fixing the periods for the formation of +the Arbitral Tribunal and the several stages of the procedure."[266] The +Senate approved the British treaty by the constitutional majority +having, however, first amended it by substituting the word "treaty" for +"agreement." President Theodore Roosevelt, characterizing the +"ratification" as equivalent to rejection, sent the treaties to repose +in the archives. "As a matter of historical practice," Dr. McClure +comments, "the _compromis_ under which disputes have been arbitrated +include both treaties and executive agreements in goodly numbers,"[267] +a statement supported by both Willoughby and Moore.[268] + + +AGREEMENTS UNDER THE UNITED NATIONS CHARTER + +Article 43 of the United Nations Charter provides: "1. All Members of +the United Nations, in order to contribute to the maintenance of +international peace and security, undertake to make available to the +Security Council, on its call and in accordance with a special agreement +or agreements, armed forces, assistance, and facilities, including +rights of passage, necessary for the purpose of maintaining +international peace and security. 2. Such agreement or agreements shall +govern the numbers and types of forces, their degree of readiness and +general location, and the nature of the facilities and assistance to be +provided. 3. The agreement or agreements shall be negotiated as soon as +possible on the initiative of the Security Council. They shall be +concluded between the Security Council and Members or between the +Security Council and groups of Members and shall be subject to +ratification by the signatory states in accordance with their respective +constitutional processes."[269] This time the Senate did not boggle +over the word "agreement." + + +The United Nations Participation Act + +The United Nations Participation Act of December 20, 1945 implements +these provisions as follows: "The President is authorized to negotiate a +special agreement or agreements with the Security Council which shall be +subject to the approval of the Congress by appropriate Act or joint +resolution, providing for the numbers and types of armed forces, their +degree of readiness and general location, and the nature of facilities +and assistance, including rights of passage, to be made available to the +Security Council on its call for the purpose of maintaining +international peace and security in accordance with article 43 of said +Charter. The President shall not be deemed to require the authorization +of the Congress to make available to the Security Council on its call in +order to take action under article 42 of said Charter and pursuant to +such special agreement or agreements the armed forces, facilities, or +assistance provided for therein: _Provided_, That nothing herein +contained shall be construed as an authorization to the President by the +Congress to make available to the Security Council for such purpose +armed forces, facilities, or assistance in addition to the forces, +facilities, and assistance provided for in such special agreement or +agreements."[270] + + +The Executive Establishment + + +"OFFICE" + +"An office is a public station, or employment, conferred by the +appointment of government," and "embraces the ideas of tenure duration, +emolument, and duties."[271] + + +"AMBASSADORS AND OTHER PUBLIC MINISTERS" + +The term "ambassadors and other public ministers," comprehends "all +officers having diplomatic functions, whatever their title or +designation."[272] It was originally assumed that such offices were +established by the Constitution itself, by reference to the Law of +Nations, with the consequence that appointments might be made to them +whenever the appointing authority--the President and Senate--deemed +desirable.[273] During the first sixty-five years of the Government +Congress passed no act purporting to create any diplomatic rank, the +entire question of grades being left with the President. Indeed, during +the administrations of Washington, Adams and Jefferson, and the first +term of Madison, no mention occurs in any appropriation act even, of +ministers of a specified rank at this or that place, but the provision +for the diplomatic corps consisted of so much money "for the expenses of +foreign intercourse," to be expended at the discretion of the President. +In Madison's second term the practice was introduced of allocating +special sums to the several foreign missions maintained by the +Government, but even then the legislative provisions did not purport to +curtail the discretion of the President in any way in the choice of +diplomatic agents. + +In 1814, however, when President Madison appointed, during a recess of +the Senate, the Commissioners who negotiated the Treaty of Ghent the +theory on which the above legislation was based was drawn into question. +Inasmuch, it was argued, as these offices had never been established by +law, no vacancy existed to which the President could constitutionally +make a recess appointment. To this argument it was answered that the +Constitution recognizes "two descriptions of offices altogether +different in their nature, authorized by the constitution--one to be +created by law, and the other depending for their existence and +continuance upon contingencies. Of the first kind, are judicial, +revenue, and similar offices. Of the second, are Ambassadors, other +public Ministers, and Consuls. The first description organize the +Government and give it efficacy. They form the internal system, and are +susceptible of precise enumeration. When and how they are created, and +when and how they become vacant, may always be ascertained with perfect +precision. Not so with the second description. They depend for their +original existence upon the law, but are the offspring of the state of +our relations with foreign nations, and must necessarily be governed by +distinct rules. As an independent power, the United States have +relations with all other independent powers; and the management of those +relations is vested in the Executive."[274] + +By the opening section of the act of March 1, 1855, it was provided that +"from and after the thirtieth day of June next, the President of the +United States shall, by and with the advice and consent of the Senate, +appoint representatives of the grade of envoys extraordinary and +ministers plenipotentiary," with a specified annual compensation for +each, "to the following countries, * * *" In the body of the act was +also this provision: "The President shall appoint no other than citizens +of the United States, who are residents thereof, or who shall be abroad +in the employment of the Government at the time of their appointment, +* * *."[275] The question of the interpretation of the act having been +referred to Attorney General Cushing, he ruled that its total effect, +aside from its salary provisions, was recommendatory only. It was "to +say, that if, and whenever, the President shall, by and with the advice +and consent of the Senate, appoint an envoy extraordinary and minister +plenipotentiary to Great Britain, or to Sweden, the compensation of that +minister shall be so much and no more."[276] + +This line of reasoning is today only partially descriptive of facts. The +act of March 2, 1909, provides that new ambassadorships may be created +only with the consent of Congress,[277] while the Foreign Service Act of +1924[278] organizes the foreign service, both its diplomatic and its +consular divisions, in detail as to grades, salaries, appointments, +promotions, and in part as to duties. Theoretically the act leaves the +power of the President and Senate to appoint consular and diplomatic +officials intact, but in practice the vast proportion of the selections +are made in conformance with the civil service rules. + + +PRESIDENTIAL DIPLOMATIC AGENTS + +What the President may have lost in consequence of the intervention of +Congress in this field, he has made good through his early conceded +right to employ, in the discharge of his diplomatic function, so-called +"special," "personal," or "secret" agents without consulting the Senate. +When President Jackson's right to resort to this practice was challenged +in the Senate in 1831, it was defended by Edward Livingston, Senator +from Louisiana, to such good purpose that Jackson made him Secretary of +State. "The practice of appointing secret agents," said Livingston, "is +coeval with our existence as a nation, and goes beyond our +acknowledgment as such by other powers. All those great men who have +figured in the history of our diplomacy, began their career, and +performed some of their most important services in the capacity of +secret agents, with full powers. Franklin, Adams, Lee, were only +commissioners; and in negotiating a treaty with the Emperor of Morocco, +the selection of the secret agent was left to the Ministers appointed to +make the treaty; and, accordingly, in the year 1785, Mr. Adams and Mr. +Jefferson appointed Thomas Barclay, who went to Morocco and made a +treaty, which was ratified by the Ministers at Paris. + +"These instances show that, even prior to the establishment of the +Federal Government, secret plenipotentiaries were known, as well in the +practice of our own country as in the general law of nations: and that +these secret agents were not on a level with messengers, +letter-carriers, or spies, to whom it has been found necessary in +argument to assimilate them. On the 30th March, 1795, in the recess of +the Senate, by letters patent under the great broad seal of the United +States, and the signature of their President, (that President being +George Washington,) countersigned by the Secretary of State, David +Humphreys was appointed commissioner plenipotentiary for negotiating a +treaty of peace with Algiers. By instructions from the President, he was +afterwards authorized to employ Joseph Donaldson as agent in that +business. In May, of the same year, he did appoint Donaldson, who went +to Algiers, and in September of the same year concluded a treaty with +the Dey and Divan, which was confirmed by Humphreys, at Lisbon, on the +28th November in the same year, and afterwards ratified by the Senate on +the ---- day of ----, 1796, and an act passed both Houses on 6th May, +1796, appropriating a large sum, twenty-five thousand dollars annually, +for carrying it into effect."[279] + +The precedent afforded by Humphrey's appointment without reference to +the Senate has since been multiplied many times, as witness the mission +of A. Dudley Mann to Hanover and other German states in 1846, of the +same gentleman to Hungary in 1849, of Nicholas Trist to Mexico in 1848, +of Commodore Perry to Japan in 1852, of J.H. Blount to Hawaii in +1893.[280] The last named case is perhaps the extremest of all. Blount, +who was appointed while the Senate was in session but without its advice +and consent, was given "paramount authority" over the American resident +minister at Hawaii and was further empowered to employ the military and +naval forces of the United States, if necessary to protect American +lives and interests. His mission raised a vigorous storm of protest in +the Senate, but the majority report of the committee which was created +to investigate the constitutional question vindicated the President in +the following terms: "A question has been made as to the right of the +President of the United States to dispatch Mr. Blount to Hawaii as his +personal representative for the purpose of seeking the further +information which the President believed was necessary in order to +arrive at a just conclusion regarding the state of affairs in Hawaii. +Many precedents could be quoted to show that such power has been +exercised by the President on various occasions, without dissent on the +part of Congress or the people of the United States. * * * These +precedents also show that the Senate of the United States, though in +session, need not be consulted as to the appointment of such agents, +* * *"[281] For recent decades the continued vitality of the practice +is attested by such names as Colonel House, late Norman H. Davis, who +filled the role of "ambassador at large" for a succession of +administrations of both parties, and Professor Philip Jessup, Mr. +Averell Harriman, and other "ambassadors at large" of the Truman +administration. + +How is this practice to be squared with the express words of the +Constitution? Apparently, by stressing the fact that such appointments +or designations are ordinarily merely temporary and for special tasks, +and hence do not fulfill the tests of "office" in the strict sense. +(_See_ p. 445). In the same way the not infrequent practice of +Presidents of appointing Members of Congress as commissioners to +negotiate treaties and agreements with foreign governments may be +regularized, notwithstanding the provision of article I, section 6, +clause 2 of the Constitution, which provides that "no Senator or +Representative shall, * * *, be appointed to any civil Office under the +Authority of the United States, which shall have been created," during +his term; and no officer of the United States, "shall be a Member of +either House during his Continuance in Office."[282] The Treaty of Peace +with Spain, the treaty to settle the Behring Sea controversy, the treaty +establishing the boundary line between Canada and Alaska, were +negotiated by commissions containing Senators and Representatives. + + +CONGRESSIONAL REGULATION OF OFFICES + +That the Constitution distinguishes between the creation of an office +and appointment thereto for the generality of national offices has never +been questioned. The former is _by law_, and takes place by virtue of +Congress's power to pass all laws necessary and proper for carrying into +execution the powers which the Constitution confers upon the government +of the United States and its departments and officers. As incidental to +the establishment of an office Congress has also the power to determine +the qualifications of the officer, and in so-doing necessarily limits +the range of choice of the appointing power. First and last, it has laid +down a great variety of qualifications, depending on citizenship, +residence, professional attainments, occupational experience, age, race, +property, sound habits, and so on. It has required that appointees be +representative of a political party, of an industry, of a geographic +region, or of a particular branch of the Government. It has confined the +President's selection to a small number of persons to be named by +others.[283] Indeed, it has contrived at times to designate a definite +eligibility, thereby virtually usurping the appointing power.[284] + + +CONDUCT IN OFFICE + +Furthermore, Congress has very broad powers in regulating the conduct in +office of officers and employees of the United States, especially +regarding their political activities. By an act passed in 1876 it +prohibited "all executive officers or employees of the United States not +appointed by the President, with the advice and consent of the Senate, +* * * from requesting, giving to, or receiving from, any other officer +or employee of the Government, any money or property or other thing of +value for political purposes."[285] The validity of this measure having +been sustained,[286] the substance of it, with some elaborations, was +incorporated in the Civil Service Act of 1883.[287] By the Hatch +Act[288] all persons in the executive branch of the Government, or any +department or agency thereof, except the President and Vice President +and certain "policy determining" officers, are forbidden to "take an +active part in political management or political campaigns," although +they are still permitted to "express their opinions on all political +subjects and candidates." In the United Public Workers _v._ +Mitchell[289] these provisions were upheld as "reasonable" against +objections based on Amendments I, V, IX, and X. + + +THE LOYALTY ISSUE + +By section 9A of the Hatch Act of 1939, it is made "* * * unlawful for +any person employed in any capacity by any agency of the Federal +Government, whose compensation, or any part thereof, is paid from funds +authorized or appropriated by any act of Congress, to have membership in +any political party or organization which advocates the overthrow of our +constitutional form of government in the United States."[290] In support +of this provision the 79th Congress in its second session incorporated +in its appropriation acts a series of clauses which forbid the use of +any of the funds appropriated to pay the salary of any person who +advocates, or belongs to an organization which advocates, the overthrow +of the Government by force; or any person who strikes, or who belongs to +an organization of Government employees which asserts the right to +strike against the Government.[291] The apparent intention of this +proviso is to lay down a rule by which the appointing and disbursing +authorities will be bound. Since Congress has the conceded power to lay +down the qualifications of officers and employees of the United States; +and since few people would contend that officers or employees of the +National Government have a constitutional right to advocate its +overthrow or to strike against it, the above proviso would seem to be +entirely constitutional. President Truman's "Loyalty Order"--Executive +Order 9835--of March 21, 1947[292] is an outgrowth in part of this +legislation. + + +LEGISLATION INCREASING DUTIES OF AN OFFICER + +Finally, Congress may devolve upon one already in office additional +duties which are germane to his office without thereby "rendering it +necessary that the incumbent should be again nominated and appointed." +Such legislation does not constitute an attempt by Congress to seize the +appointing power.[293] + + +"INFERIOR OFFICERS"; "EMPLOYEES" + +Except the President and the Vice President all persons in the civil +service of the National Government are appointive, and fall into one of +three categories, those who are appointed by the President, "by and with +the advice and consent of the Senate"; inferior officers, whose +appointment Congress has vested by law "in the President alone, in the +courts of law, or in the heads of departments"; and employees, a term +which is here used in a peculiar sense. Ordinarily it denotes one who +stands in a contractual relationship to his employer, but here it +signifies all subordinate officials of the National Government receiving +their appointments at the hands of officials who are not specifically +recognized by the Constitution as capable of being vested by Congress +with the appointing power.[294] Inferior officers are usually officers +intended to be subordinate to those in whom their appointment is +vested;[295] but the requirement is by no means absolute.[296] + + +STAGES OF APPOINTMENT PROCESS + + +Nomination + +The Constitution appears to distinguish three stages in appointments by +the President with the advice and consent of the Senate. The first is +the "nomination" of the candidate by the President alone; the second is +the assent of the Senate to the candidate's "appointment"; and the third +is the final appointment and commissioning of the appointee, by the +President.[297] + + +Senate Approval + +The fact that the power of nomination belongs to the President alone +prevents the Senate from attaching conditions to its approval of an +appointment, such as it may do to its approval of a treaty. In the words +of an early opinion of the Attorney General: "The Senate cannot +originate an appointment. Its constitutional action is confined to the +simple affirmation or rejection of the President's nominations, and such +nominations fail whenever it rejects them. The Senate may suggest +conditions and limitations to the President, but it cannot vary those +submitted by him, for no appointment can be made except on his +nomination, agreed to without qualification or alteration."[298] This +view is borne out by early opinion[299] as well as by the record of +practice under the Constitution. + + +When Senate Consent Is Complete + +Early in January, 1931 the Senate requested President Hoover to return +its resolution notifying him that it advised and consented to certain +nominations to the Federal Power Commission. In support of its action +the Senate invoked a long-standing rule permitting a motion to +reconsider a resolution confirming a nomination within "the next two +days of actual executive session of the Senate" and the recall of the +notification to the President of the confirmation. The nominees +involved having meantime taken the oath of office and entered upon the +discharge of their duties, the President responded with a refusal, +saying: "I cannot admit the power in the Senate to encroach upon the +executive functions by removal of a duly appointed executive officer +under the guise of reconsideration of his nomination." The Senate +thereupon voted to reconsider the nominations in question, again +approving two of the nominees, but rejecting the third, against whom it +instructed the District Attorney of the District of Columbia to +institute _quo warranto_ proceedings in the Supreme Court of the +District. In United States _v._ Smith[300] the Supreme Court overruled +the proceedings on the ground that the Senate had never before attempted +to apply its rule in the case of an appointee who had already been +installed in office on the faith of the Senate's initial consent and +notification to the President. In 1939 the late President Roosevelt +rejected a similar demand by the Senate, action which was not +challenged.[301] + + +Section 3. The President * * * shall Commission all the +Officers of the United States. + + +Commissioning the Officer + +This, as applied in practice, does not mean that he is under +constitutional obligation to commission those whose appointments have +reached that stage, but merely that it is he and no one else who has the +power to commission them, which he may do at his discretion. The sealing +and delivery of the commission is, on the other hand, by the doctrine of +Marbury _v._ Madison, in the case both of appointees by the President +and Senate and by the President alone, a purely ministerial act which +has been lodged by statute with the Secretary of State and the +performance of which may be compelled by mandamus unless the appointee +has been in the meantime validly removed.[302] By an opinion of the +Attorney General many years later, however, the President, even after he +has signed a commission, still has a _locus poenitentiae_ and may +withhold it; nor is the appointee in office till he has his +commission.[303] This is probably the correct doctrine.[304] + + +Clause 3. The President shall have Power to fill up all Vacancies that +may happen during the Recess of the Senate, by granting Commissions +which shall expire at the End of their next Session. + + +RECESS APPOINTMENTS + +Setting out from the proposition that the very nature of the executive +power requires that it shall always be "in capacity for action," +Attorneys General early came to interpret "happen" to mean "happen to +exist," and long continued practice securely establishes this +construction. It results that whenever a vacancy may have occurred in +the first instance, or for whatever reason, if it still continues after +the Senate has ceased to sit and so cannot be consulted, the President +may fill it in the way described.[305] But a Senate "recess" does not +include holiday or temporary adjournments,[306] while by an act of +Congress, if the vacancy existed when the Senate was in session, the _ad +interim_ appointee may receive no salary until he has been confirmed by +the Senate.[307] + + +_AD INTERIM_ DESIGNATIONS + +To be distinguished from the power to make recess appointments is the +power of the President to make temporary or _ad interim_ designations of +officials to perform the duties of other absent officials. Usually such +a situation is provided for in advance by a statute which designates the +inferior officer who is to act in place of his immediate superior. But +in the lack of such provision both theory and practice concede the +President the power to make the designation.[308] + + +THE REMOVAL POWER; THE MYERS CASE + +Save for the provision which it makes for a power of impeachment of +"civil officers of the United States," the Constitution contains no +reference to a power to remove from office; and until its decision in +Myers _v._ United States,[309] October 25, 1926 the Supreme Court had +contrived to side-step every occasion for a decisive pronouncement +regarding the removal power, its extent, and location. The point +immediately at issue in the Myers case was the effectiveness of an order +of the Postmaster General, acting by direction of the President, to +remove from office a first class postmaster, in face of the following +provision of an act of Congress passed in 1876: "Postmasters of the +first, second, and third classes shall be appointed and may be removed +by the President by and with the advice and consent of the Senate, and +shall hold their offices for four years unless sooner removed or +suspended according to law."[310] A divided Court, speaking through +Chief Justice Taft, held the order of removal valid, and the statutory +provision just quoted void. The Chief Justice's main reliance was on the +so-called "decision of 1789," the reference being to Congress's course +that year in inserting in the act establishing the Department of State a +proviso which was meant to imply recognition that the Secretary would be +removable by the President at will. The proviso was especially urged by +Madison, who invoked in support of it the opening words of article II +and the President's duty to "take care that the laws be faithfully +executed." Succeeding passages of the Chief Justice's opinion erect on +this basis a highly selective account of doctrine and practice regarding +the removal power down to the Civil War which was held to yield the +following results: "That article II grants to the President the +executive power of the Government, i.e., the general administrative +control of those executing the laws, including the power of appointment +and removal of executive officers--a conclusion confirmed by his +obligation to take care that the laws be faithfully executed; that +article II excludes the exercise of legislative power by Congress to +provide for appointments and removals, except only as granted therein to +Congress in the matter of inferior offices; that Congress is only given +power to provide for appointments and removals of inferior officers +after it has vested, and on condition that it does vest, their +appointment in other authority than the President with the Senate's +consent; that the provisions of the second section of article II, which +blend action by the legislative branch, or by part of it, in the work of +the executive, are limitations to be strictly construed and not to be +extended by implication; that the President's power of removal is +further established as an incident to his specifically enumerated +function of appointment by and with the advice of the Senate, but that +such incident does not by implication extend to removals the Senate's +power of checking appointments; and finally that to hold otherwise would +make it impossible for the President, in case of political or other +differences with the Senate or Congress, to take care that the laws be +faithfully executed."[311] + +The holding in the Myers case boils down to the proposition that the +Constitution endows the President with an illimitable power to remove +all officers in whose appointment he has participated with the exception +of judges of the United States. The motivation of the holding was not, +it may be assumed, any ambition on the Chief Justice's part to set +history aright--or awry.[312] Rather it was the concern which he voiced +in the following passage in his opinion: "There is nothing in the +Constitution which permits a distinction between the removal of the head +of a department or a bureau, when he discharges a political duty of the +President or exercises his discretion, and the removal of executive +officers engaged in the discharge of their other normal duties. The +imperative reasons requiring an unrestricted power to remove the most +important of his subordinates in their most important duties must, +therefore, control the interpretation of the Constitution as to all +appointed by him."[313] Thus spoke the former President Taft, and the +result of his prepossession was a rule which, as was immediately pointed +out, exposed the so-called "independent agencies," the Interstate +Commerce Commission, the Federal Trade Commission, and the like, to +Presidential domination. + + +"The Nature of the Office" Concept + +Unfortunately, the Chief Justice, while professing to follow Madison's +leadership had omitted to weigh properly the very important observation +which the latter had made at the time regarding the office of +Comptroller of the Treasury. "The Committee," said Madison, "has gone +through the bill without making any provision respecting the tenure by +which the comptroller is to hold his office. I think it is a point +worthy of consideration, and shall, therefore, submit a few observations +upon it. It will be necessary to consider the nature of this office, to +enable us to come to a right decision on the subject; in analyzing its +properties, we shall easily discover they are not purely of an executive +nature. It seems to me that they partake of a judiciary quality as well +as executive; perhaps the latter obtains in the greatest degree. The +principal duty seems to be deciding upon the lawfulness and justice of +the claims and accounts subsisting between the United States and +particular citizens: this partakes strongly of the judicial character, +and there may be strong reasons why an officer of this kind should not +hold his office at the pleasure of the executive branch of the +government."[314] In Humphrey _v._ United States,[315] decided in 1935, +the Court seized upon "the nature of the office" concept and applied it +as a much needed corrective to the Myers holding. + + +The Humphrey Case + +The material element of this case was that Humphrey, a member of the +Federal Trade Commission, was on October 7, 1933, notified by President +Roosevelt that he was "removed" from office, the reason being their +divergent views of public policy. In due course Humphrey sued for +salary. Distinguishing the Myers case, Justice Sutherland, speaking for +the unanimous Court, said: "A postmaster is an executive officer +restricted to the performance of executive functions. He is charged with +no duty at all related to either the legislative or judicial power. The +actual decision in the _Myers_ Case finds support in the theory that +such an office is merely one of the units in the executive department +and, hence, inherently subject to the exclusive and illimitable power of +removal by the Chief Executive, whose subordinate and aid he is. * * * +It goes no farther;--much less does it include an officer who occupies +no place in the executive department and who exercise no part of the +executive power vested by the Constitution in the President. + +"The Federal Trade Commission is an administrative body created by +Congress to carry into effect legislative policies embodied in the +statute * * * Such a body cannot in any proper sense be characterized as +an arm or eye of the executive. Its duties are performed without +executive leave and, in the contemplation of the statute, must be free +from executive control. * * * We think it plain under the Constitution +that illimitable power of removal is not possessed by the President in +respect of officers of the character of those just named, [the +Interstate Commerce Commission, the Federal Trade Commission, the Court +of Claims]. The authority of Congress, in creating quasi-legislative or +quasi-judicial agencies, to require them to act in discharge of their +duties independently of executive control cannot well be doubted; and +that authority includes, as an appropriate incident, power to fix the +period during which they shall continue in office, and to forbid their +removal except for cause in the meantime. For it is quite evident that +one who holds his office only during the pleasure of another, cannot be +depended upon to maintain an attitude of independence against the +latter's will. * * * + +"The result of what we now have said is this: Whether the power of the +President to remove an officer shall prevail, over the authority of +Congress to condition the power by fixing a definite term and precluding +a removal except for cause, will depend upon the character of the +office; the _Myers_ decision, affirming the power of the President alone +to make the removal, is confined to purely executive officers; and as to +officers of the kind here under consideration, we hold that no removal +can be made during the prescribed term for which the officer is +appointed, except for one or more of the causes named in the applicable +statute."[316] + + +Other Phases of Presidential Removal Power + +Congress may "limit and restrict the power of removal as it deems best +for the public interests" in the case of inferior officers.[317] But in +the absence of specific legislative provision to the contrary, the +President may remove at his discretion an inferior officer whose term is +limited by statute,[318] or one appointed with the consent of the +Senate.[319] He may remove an officer of the army or navy at any time by +nominating to the Senate the officer's successor, provided the Senate +approves the nomination.[320] In 1940 the President was sustained in +removing Dr. E.A. Morgan from the chairmanship of TVA for refusal to +produce evidence in substantiation of charges which he had levelled at +his fellow directors.[321] Although no such cause of removal by the +President is stated in the act creating TVA, the President's action, +being reasonably required to promote the smooth functioning of TVA, was +within his duty to "take care that the laws be faithfully executed." So +interpreted, it did not violate the principle of administrative +independence set forth in Humphrey _v._ United States.[322] + + +THE PRESIDENTIAL AEGIS + +Presidents have more than once had occasion to stand in a protective +relation to their subordinates, assuming their defense in litigation +brought against them[323] or pressing litigation in their behalf,[324] +refusing a call for papers from one of the Houses of Congress which +might be used, in their absence from the seat of government, to their +disadvantage,[325] challenging the constitutional validity of +legislation which he deemed detrimental to their interests.[326] There +is one matter, moreover, as to which he is able to spread his own +official immunity to them. The courts may not require the divulging of +confidential communications from or to the President, that is, +communications which they choose to regard as confidential.[327] Whether +a Congressional Committee of inquiry would be similarly powerless is an +interesting question which has not been adjudicated.[328] Thus far such +issues between the two departments have been adjusted politically. + + +Section 3. He shall from time to time give to the Congress +Information of the State of the Union, and recommend to their +Consideration such Measures as he shall judge necessary and expedient; +he may, on extraordinary Occasions, convene both Houses, or either of +them, and in Case of Disagreement between them, with Respect to the Time +of Adjournment, he may adjourn them to such Time as he shall think +proper; he shall receive Ambassadors and other public Ministers; he +shall take Care that the Laws be faithfully executed, and * * * + + +Legislative Role of the President + +The above clause, which imposes a duty rather than confers a power, is +the formal basis of the President's legislative leadership, which has +attained great proportions since 1900. This development, however, +represents the play of political and social forces rather than any +pronounced change in constitutional interpretation. Especially is it the +result of the rise of parties and the accompanying recognition of the +President as party leader, of the appearance of the National Nominating +Convention and the Party Platform, and of the introduction of the Spoils +System, an ever present help to Presidents in times of troubled +relations with Congress.[329] It is true that certain pre-Civil War +Presidents, mostly of Whig extraction, professed to entertain nice +scruples on the score of "usurping" legislative powers;[330] but still +earlier ones, Washington, Jefferson, and Jackson among them, took a very +different line, albeit less boldly and persistently than their later +imitators.[331] Today there is no subject on which the President may not +appropriately communicate to Congress, in as precise terms as he +chooses, his conception of its duty. Conversely, the President is not +obliged by this clause to impart information which, in his judgment, +should in the public interest be withheld.[332] The President has +frequently summoned both Houses into "extra" or "special sessions" for +legislative purposes, and the Senate alone for the consideration of +nominations and treaties. His power to adjourn the Houses has never been +exercised. + + +The Right of Reception + + +SCOPE OF THE POWER + +"Ambassadors and other public ministers" embraces not only "all possible +diplomatic agents which any foreign power may accredit to the United +States"[333] but also, as a practical construction of the Constitution, +all foreign consular agents, who therefore may not exercise their +functions in the United States without an exequatur from the +President.[334] The power to "receive" ambassadors, etc., includes, +moreover, the right to refuse to receive them, to request their recall, +to dismiss them, and to determine their eligibility under our laws.[335] +Furthermore, this power makes the President the sole mouthpiece of the +nation in its dealings with other nations. + + +A PRESIDENTIAL MONOPOLY + +Wrote Jefferson in 1790: "The transaction of business with foreign +nations is Executive altogether. It belongs, then, to the head of that +department, except as to such portions of it as are specially submitted +to the Senate. Exceptions are to be construed strictly."[336] So when +Citizen Genet, envoy to the United States from the first French +Republic, sought an exequatur for a consul whose commission was +addressed to the Congress of the United States, Jefferson informed him +that "as the President was the only channel of communication between the +United States and foreign nations, it was from him alone 'that foreign +nations or their agents are to learn what is or has been the will of the +nation;' that whatever he communicated as such, they had a right and +were bound to consider 'as the expression of the nation;' and that no +foreign agent could be 'allowed to question it,' or 'to interpose +between him and any other branch of government, under the pretext of +either's transgressing their functions.' Mr. Jefferson therefore +declined to enter into any discussion of the question as to whether it +belonged to the President under the Constitution to admit or exclude +foreign agents. 'I inform you of the fact,' he said, 'by authority from +the President.' Mr. Jefferson therefore returned the consul's commission +and declared that the President would issue no exequatur to a consul +except upon a commission correctly addressed."[337] + + +"THE LOGAN ACT" + +When in 1798 a Philadelphia Quaker named Logan went to Paris on his own +to undertake a negotiation with the French Government with a view to +averting war between France and the United States his enterprise +stimulated Congress to pass "An Act to Prevent Usurpation of Executive +Functions,"[338] which, "more honored in the breach than the +observance," still survives on the statute books.[339] The year +following John Marshall, then a Member of the House of Representatives, +defended President John Adams for delivering a fugitive from justice to +Great Britain under the 27th article of the Jay Treaty, instead of +leaving the business to the courts. He said: "The President is the sole +organ of the nation in its external relations, and its sole +representative with foreign nations. Of consequence, the demand of a +foreign nation can only be made on him. He possesses the whole Executive +power. He holds and directs the force of the nation. Of consequence, any +act to be performed by the force of the nation is to be performed +through him."[340] Ninety-nine years later a Senate Foreign Relations +Committee took occasion to reiterate Marshall's doctrine with +elaboration.[341] + + +A FORMAL OR A FORMATIVE POWER? + +In his attack, instigated by Jefferson, upon Washington's Proclamation +of Neutrality in 1793, at the outbreak of war between France and Great +Britain, Madison advanced the argument that all large questions of +foreign policy fell within the ambit of Congress, by virtue of its power +"to declare war," and in support of this proposition he disparaged the +Presidential function of reception, in the following words: "I shall not +undertake to examine, what would be the precise extent and effect of +this function in various cases which fancy may suggest, or which time +may produce. It will be more proper to observe, in general, and every +candid reader will second the observation, that little, if anything, +more was intended by the clause, than to provide for a particular mode +of communication, _almost_ grown into a right among modern nations; by +pointing out the department of the government, most proper for the +ceremony of admitting public ministers, of examining their credentials, +and of authenticating their title to the privileges annexed to their +character by the law of nations. This being the apparent design of the +constitution, it would be highly improper to magnify the function into +an important prerogative, even when no rights of other departments could +be affected by it."[342] + + +THE PRESIDENT'S DIPLOMATIC ROLE + +Hamilton, although he had expressed substantially the same view in The +Federalist regarding the power of reception,[343] adopted a very +different conception of it in defense of Washington's proclamation. +Writing over the pseudonym "Pacificus," he said: "The right of the +executive to receive ambassadors and other public ministers, may serve +to illustrate the relative duties of the executive and legislative +departments. This right includes that of judging, in the case of a +revolution of government in a foreign country, whether the new rulers +are competent organs of the national will, and ought to be recognized, +or not; which, where a treaty antecedently exists between the United +States and such nation, involves the power of continuing or suspending +its operation. For until the new government is _acknowledged_, the +treaties between the nations, so far at least as regards _public_ +rights, are of course suspended. This power of determining virtually +upon the operation of national treaties, as a consequence of the power +to receive public ministers, is an important instance of the right of +the executive, to decide upon the obligations of the country with regard +to foreign nations. To apply it to the case of France, if there had been +a treaty of alliance, offensive and defensive, between the United States +and that country, the unqualified acknowledgment of the new government +would have put the United States in a condition to become an associate +in the war with France, and would have laid the legislature under an +obligation, if required, and there was otherwise no valid excuse, of +exercising its power of declaring war. This serves as an example of the +right of the executive, in certain cases, to determine the condition of +the nation, though it may, in its consequences, affect the exercise of +the power of the legislature to declare war. Nevertheless, the executive +cannot thereby control the exercise of that power. The legislature is +still free to perform its duties, according to its own sense of them; +though the executive, in the exercise of its constitutional powers, may +establish an antecedent state of things, which ought to weigh in the +legislative decision. The division of the executive power in the +Constitution, creates a _concurrent_ authority in the cases to which it +relates."[344] + + +JEFFERSON'S REAL POSITION + +Nor did Jefferson himself officially support Madison's point of view, as +the following extract from his "minutes of a Conversation," which took +place July 10, 1793, between himself and Citizen Genet, show: "He asked +if they [Congress] were not the sovereign. I told him no, they were +sovereign in making laws only, the executive was sovereign in executing +them, and the judiciary in construing them where they related to their +department. 'But,' said he, 'at least, Congress are bound to see that +the treaties are observed.' I told him no; there were very few cases +indeed arising out of treaties, which they could take notice of; that +the President is to see that treaties are observed. 'If he decides +against the treaty, to whom is a nation to appeal?' I told him the +Constitution had made the President the last appeal. He made me a bow, +and said, that indeed he would not make me his compliments on such a +Constitution, expressed the utmost astonishment at it, and seemed never +before to have had such an idea."[345] + + +THE POWER OF RECOGNITION + +In his endeavor in 1793 to minimize the importance of the President's +power of reception Madison denied that it involved cognizance of the +question, whether those exercising the government of the accrediting +State have the right along with the possession. He said: "This belongs +to the nation, and to the nation alone, on whom the government operates. +* * * It is evident, therefore, that if the executive has a right to +reject a public minister, it must be founded on some other consideration +than a change in the government, or the newness of the government; and +consequently a right to refuse to acknowledge a new government cannot be +implied by the right to refuse a public minister. It is not denied that +there may be cases in which a respect to the general principles of +liberty, the essential rights of the people, or the overruling +sentiments of humanity, might require a government, whether new or old, +to be treated as an illegitimate despotism. Such are in fact discussed +and admitted by the most approved authorities. But they are great and +extraordinary cases, by no means submitted to so limited an organ of the +national will as the executive of the United States; and certainly not +to be brought by any torture of words, within the right to receive +ambassadors."[346] + +Hamilton, with the case of Genet before him, had taken the contrary +position, which history has ratified. In consequence of his power to +receive and dispatch diplomatic agents, but more especially the former, +the President possesses the power to recognize new States, communities +claiming the status of belligerency, and changes of government in +established states; also, by the same token, the power to decline +recognition, and thereby decline diplomatic relations with such new +States or governments. The affirmative precedents down to 1906 are +succinctly summarized by John Bassett Moore in his famous Digest, as +follows: "In the preceding review of the recognition, respectively, of +the new states, new governments, and belligerency, there has been made +in each case a precise statement of facts, showing how and by whom the +recognition was accorded. In every case, as it appears, of a new +government and of belligerency, the question of recognition was +determined solely by the Executive. In the case of the Spanish-American +republics, of Texas, of Hayti, and of Liberia, the President, before +recognizing the new state, invoked the judgment and cooperation of +Congress; and in each of these cases provision was made for the +appointment of a minister, which, when made in due form, constitutes, as +has been seen, according to the rules of international law, a formal +recognition. In numerous other cases, the recognition was given by the +Executive solely on his own responsibility."[347] + + +The Case of Cuba + +The question of Congress's right also to recognize new states was +prominently raised in connection with Cuba's final and successful +struggle for independence. Beset by numerous legislative proposals of a +more or less mandatory character, urging recognition upon the President, +the Senate Foreign Relations Committee, in 1897, made an elaborate +investigation of the whole subject and came to the following conclusions +as to this power: "The 'recognition' of independence or belligerency of +a foreign power, technically speaking, is distinctly a diplomatic +matter. It is properly evidenced either by sending a public minister to +the Government thus recognized, or by receiving a public minister +therefrom. The latter is the usual and proper course. Diplomatic +relations with a new power are properly, and customarily inaugurated at +the request of that power, expressed through an envoy sent for the +purpose. The reception of this envoy, as pointed out, is the act of the +President alone. The next step, that of sending a public minister to the +nation thus recognized, is primarily the act of the President. The +Senate can take no part in it at all, until the President has sent in a +nomination. Then it acts in its executive capacity, and, customarily, in +'executive session.' The legislative branch of the Government can +exercise no influence over this step except, very indirectly, by +withholding appropriations. * * * Nor can the legislative branch of the +Government hold any communications with foreign nations. The executive +branch is the sole mouthpiece of the nation in communication with +foreign sovereignties. Foreign nations communicate only through their +respective executive departments. Resolutions of their legislative +departments upon diplomatic matters have no status in international law. +In the department of international law, therefore, properly speaking, a +Congressional recognition of belligerency or independence would be a +nullity. * * * Congress can help the Cuban insurgents by legislation in +many ways, but it cannot help them legitimately by mere declarations, or +by attempts to engage in diplomatic negotiations, if our interpretation +of the Constitution is correct. That it is correct * * * [is] shown by +the opinions of jurists and statesmen of the past."[348] Congress was +able ultimately to bundle a clause recognizing the independence of Cuba, +as distinguished from its government, into the declaration of war of +April 11, 1898 against Spain. For the most part, the sponsors of the +clause defended it by the following line of reasoning. Diplomacy, they +said, was now at an end and the President himself had appealed to +Congress to provide a solution for the Cuban situation. In response +Congress was about to exercise its constitutional power of declaring +war, and it has consequently the right to state the purpose of the war +which it was about to declare.[349] The recognition of the Union of +Soviet Socialist Republics in 1933 was an exclusively Presidential act. + + +THE POWER OF NONRECOGNITION + +The potentialities of nonrecognition were conspicuously illustrated by +President Woodrow Wilson when he refused, early in 1913, to recognize +Provisional President Huerta as the _de facto_ government of Mexico, +thereby contributing materially to Huerta's downfall the year following. +At the same time Wilson announced a general policy of nonrecognition in +the case of any government founded on acts of violence; and while he +observed this rule with considerable discretion, he consistently refused +to recognize the Union of Soviet Socialist Republics, and his successors +prior to President Franklin D. Roosevelt did the same. The refusal of +the Hoover Administration to recognize the independence of the Japanese +puppet state of Manchukuo early in 1932 was based on kindred grounds. +Nonrecognition of the Chinese Communist government by the Truman +administration has proved to be a decisive element of the current (1952) +foreign policy of the United States. + + +PRESIDENT AND CONGRESS + +The relations of President and Congress in the diplomatic field have, +first and, last, presented a varied picture of alternate cooperation and +tension,[350] from which emerge two outstanding facts: first, the +overwhelming importance of Presidential initiative in this area of +power; secondly, the ever increasing dependence of foreign policy on +Congressional cooperation and support. First one and then the other +aspect of the relationship is uppermost. Thus the United Nations +Participation Act of December 20, 1945 appeared to contemplate +cooperation between the President and Congress in the carrying out of +the duties of the United States to back up decisions of the Security +Council involving the use of armed force.[351] When, nevertheless, the +first occasion arose such action, namely, to repel the invasion in June, +1950 of South Korea by North Korean forces, no such agreement had been +negotiated, and the intervention of the United States was authorized by +the President without referring the question to Congress.[352] + + +CONGRESSIONAL IMPLEMENTATION OF PRESIDENTIAL POLICIES + +No President was ever more jealous of his prerogative in the realm of +foreign relations than President Woodrow Wilson. When, however, strong +pressure was brought to bear upon him by Great Britain respecting his +Mexican Policy he was constrained to go before Congress and ask for a +modification of the Panama Tolls Act of 1911, which had also aroused +British ire. Addressing Congress, he said "I ask this of you in support +of the foreign policy of the Administration. I shall not know how to +deal with other matters of even greater delicacy and nearer consequence +if you do not grant it to me in ungrudging measure."[353] The fact is, +of course, that Congress has enormous powers the support of which is +indispensable to any foreign policy. In the long run Congress is the +body that lays and collects taxes for the common defense, that creates +armies and maintains navies, although it does not direct them, that +pledges the public credit, that declares war, that defines offenses +against the law of nations, that regulates foreign commerce; and it has +the further power "to make all laws which shall be necessary and +proper"--that is, which _it_ deems to be such--for carrying into +execution not only its own powers but all the powers "of the government +of the United States and of any department or officer thereof." +Moreover, its laws made "in pursuance" of these powers are "supreme law +of the land" and the President is bound constitutionally to "take care +that" they "be faithfully executed." In point of fact, Congressional +legislation has operated to augment Presidential powers in the foreign +field much more frequently than it has to curtail them. The Lend-Lease +Act of March 11, 1941[354] is the classic example, although it only +brought to culmination a whole series of enactments with which Congress +had aided and abetted the administration's foreign policy in the years +between 1934 and 1941.[355] + + +THE DOCTRINE OF POLITICAL QUESTIONS + +It is not within the province of the courts to inquire into the policy +underlying action taken by the "political departments"--Congress and the +President--in the exercise of their conceded powers. This commonplace +maxim is, however, sometimes given an enlarged application so as to +embrace questions as to the existence of facts and even questions of law +which the Court would normally regard as falling within its +jurisdiction. Such questions are termed "political questions," and are +especially common in the field of foreign relations. The leading case is +Foster _v._ Neilson,[356] where the matter in dispute was the validity +of a grant made by the Spanish Government in 1804 of land lying to the +east of the Mississippi River, involved with which question was the +further one whether the region between the Perdido and Mississippi +Rivers belonged in 1804 to Spain or the United States. Chief Justice +Marshall held that the Court was bound by the action of the political +departments, the President and Congress, in claiming the land for the +United States. He said: "If those departments which are intrusted with +the foreign intercourse of the nation, which assert and maintain its +interests against foreign powers, have unequivocally asserted its right +of dominion over a country of which it is in possession, and which it +claims under a treaty; if the legislature has acted on the construction +thus asserted, it is not in its own courts that this construction is to +be denied. A question like this, respecting the boundaries of nations, +is, as has been truly said, more a political than a legal question, and +in its discussion, the courts of every country must respect the +pronounced will of the legislature."[357] The doctrine thus clearly +stated is further exemplified, with particular reference to Presidential +action, by Williams _v._ The Suffolk Insurance Company.[358] In this +case the underwriters of a vessel which had been confiscated by the +Argentine Government for catching seals off the Falkland Islands +contrary to that government's orders sought to escape liability by +showing that the Argentinian government was the sovereign over these +islands and that, accordingly, the vessel had been condemned for wilful +disregard of legitimate authority. The Court decided against the company +on the ground that the President had taken the position that the +Falkland Islands were not a part of Argentina. It said: "Can there be +any doubt, that when the executive branch of the government, which is +charged with our foreign relations, shall, in its correspondence with a +foreign nation, assume a fact in regard to the sovereignty of any island +or country, it is conclusive on the judicial department? And in this +view, it is not material to inquire, nor is it the province of the court +to determine, whether the executive be right or wrong. It is enough to +know, that in the exercise of his constitutional functions, he had +decided the question. Having done this, under the responsibilities which +belong to him, it is obligatory on the people and government of the +Union. If this were not the rule, cases might often arise, in which, on +most important questions of foreign jurisdiction, there would be an +irreconcilable difference between the executive and judicial +departments. By one of these departments, a foreign island or country +might be considered as at peace with the United States; whilst the +other would consider it in a state of war. No well-regulated government +has ever sanctioned a principle so unwise, and so destructive of +national character."[359] Thus the right to determine the boundaries of +the country is a political function;[360] as is also the right to +determine what country is sovereign of a particular region;[361] to +determine whether a community is entitled under International Law to be +considered a belligerent or an independent state;[362] to determine +whether the other party has duly ratified a treaty;[363] to determine +who is the _de jure_ or _de facto_ ruler of a country;[364] to determine +whether a particular person is a duly accredited diplomatic agent to the +United States;[365] to determine how long a military occupation shall +continue in fulfillment of the terms of a treaty;[366] to determine +whether a treaty is in effect or not, although doubtless an extinguished +treaty could be constitutionally renewed by tacit consent.[367] + + +Recent Statements of the Doctrine + +The assumption underlying the refusal of courts to intervene in such +cases is well stated in the recent case of Chicago & S. Airlines _v._ +Waterman Steamship Corp.[368] Here the Court refused to review orders of +the Civil Aeronautics Board granting or denying applications by citizen +carriers to engage in overseas and foreign air transportation which by +the terms of the Civil Aeronautics Act[369] are subject to approval by +the President and therefore impliedly beyond those provisions of the act +authorizing judicial review of board orders.[370] Elaborating on the +necessity of judicial abstinence in the conduct of foreign relations, +Justice Jackson declared for the Court: "The President, both as +Commander in Chief and as the Nation's organ for foreign affairs, has +available intelligence services whose reports are not and ought not to +be published to the world. It would be intolerable that courts, without +the relevant information, should review and perhaps nullify actions of +the Executive taken on information properly held secret. Nor can courts +sit _in camera_ in order to be taken into executive confidences. But +even if courts could require full disclosure, the very nature of +executive decisions as to foreign policy is political, not judicial. +Such decisions are wholly confided by our Constitution on the political +departments of the government, Executive and Legislative. They are +delicate, complex, and involve large elements of prophecy. They are and +should be undertaken only by those directly responsible to the people +whose welfare they advance or imperil. They are decisions of a kind for +which the Judiciary has neither aptitude, facilities nor responsibility +and which has long been held to belong in the domain of political power +not subject to judicial intrusion or inquiry."[371] + +To the same effect are the Court's holding and opinion in Ludecke _v._ +Watkins,[372] where the question at issue was the power of the President +to order the deportation under the Alien Enemy Act of 1798 of a German +alien enemy after the cessation of hostilities with Germany. Said +Justice Frankfurter for the Court: "War does not cease with a cease-fire +order, and power to be exercised by the President such as that conferred +by the Act of 1798 is a process which begins when war is declared but is +not exhausted when the shooting stops. * * * The Court would be assuming +the functions of the political agencies of the Government to yield to +the suggestion that the unconditional surrender of Germany and the +disintegration of the Nazi Reich have left Germany without a government +capable of negotiating a treaty of peace. It is not for us to question a +belief by the President that enemy aliens who were justifiably deemed +fit subjects for internment during active hostilities do not lose their +potency for mischief during the period of confusion and conflict which +is characteristic of a state of war even when the guns are silent but +the peace of Peace has not come. These are matters of political judgment +for which judges have neither technical competence nor official +responsibility."[373] + + +The President as Law Enforcer + + +TYPES OF EXECUTIVE POWER + +The Constitution does not say that the President shall execute the laws, +but that "he shall take care that the laws be faithfully executed," +i.e., by others, who are commonly, but not always with strict accuracy, +termed his subordinates. What powers are implied from this duty? In this +connection five categories of executive power should be distinguished: +first, there is that executive power which the Constitution confers +directly upon the President by the opening clause of article II and, in +more specific terms, by succeeding clauses of the same article; +secondly, there is the sum total of the powers which acts of Congress at +any particular time confer upon the President; thirdly, there is the sum +total of discretionary powers which acts of Congress at any particular +time confer upon heads of departments and other executive +("administrative") agencies of the National Government; fourthly, there +is the power which stems from the duty to enforce the criminal statutes +of the United States; finally, there are so-called "ministerial duties" +which admit of no discretion as to the occasion or the manner of their +discharge. Three principal questions arise: first, how does the +President exercise the powers which the Constitution or the statutes +confer upon him; second, in what relation does he stand by virtue of the +"take care" clause to the powers of other executive, or administrative +agencies; third, in what relation does he stand to the enforcement of +the criminal laws of the United States? + + +HOW THE PRESIDENT'S OWN POWERS ARE EXERCISED + +Whereas the British monarch is constitutionally under the necessity of +acting always through agents if his acts are to receive legal +recognition, the President is presumed to exercise certain of his +constitutional powers personally. In the words of an opinion by Attorney +General Cushing in 1855: "It may be presumed that he, the man +discharging the presidential office, and he alone, grants reprieves and +pardons for offences against the United States, * * * So he, and he +alone, is the supreme commander in chief of the Army and Navy of the +United States, and of the militia of the several States when called into +the actual service of the United States. That is a power +constitutionally inherent in the person of the President. No act of +Congress, no act even of the President himself, can, by constitutional +possibility, authorize or create any military officer not subordinate to +the President."[374] Moreover, the obligation to act personally may be +sometimes enlarged by statute, as, for example, by the act organizing +the President with other designated officials into "an Establishment by +name of the Smithsonian Institute."[375] Here, says the Attorney +General, "the President's name of office is _designatio personae_." He +is also of opinion that expenditures from the "secret service" fund in +order to be valid, must be vouched for by the President personally.[376] +On like grounds the Supreme Court once held void a decree of a court +martial, because, though it has been confirmed by the Secretary of War, +it was not specifically stated to have received the sanction of the +President as required by the 65th Article of War.[377] This case has, +however, been virtually overruled, and at any rate such cases are +exceptional.[378] + +The general rule, as stated by the Court, is that when any duty is cast +by law upon the President, it may be exercised by him through the head +of the appropriate department, whose acts, if performed within the law, +thus become the President's acts.[379] In Williams _v._ United +States[380] was involved an act of Congress, which prohibited the +advance of public money in any case whatever to disbursing officers of +the United States, except under special direction by the President.[381] +The Supreme Court held that the act did not require the personal +performance by the President of this duty. Such a practice, said the +Court, if it were possible, would absorb the duties of the various +departments of the government in the personal acts of one chief +executive officer, and be fraught with mischief to the public service. +The President's duty in general requires his superintendence of the +administration; yet he cannot be required to become the administrative +officer of every department and bureau, or to perform in person the +numerous details incident to services which, nevertheless, he is, in a +correct sense, by the Constitution and laws required and expected to +perform.[382] As a matter of administrative practice, in fact, most +orders and instructions emanating from the heads of the departments, +even though in pursuance of powers conferred by statute on the +President, do not even refer to the President.[383] + + +POWER AND DUTY OF THE PRESIDENT IN RELATION TO SUBORDINATE EXECUTIVE +OFFICERS + +Suppose, that the law casts a duty upon a head of department _eo +nomine_, does the President thereupon become entitled by virtue of his +duty to "take care that the laws be faithfully executed," to substitute +his own judgment for that of the principal officer regarding the +discharge of such duty? In the debate in the House in 1789 on the +location of the removal power Madison argued that it ought to be +attributed to the President alone because it was "the intention of the +Constitution, expressed especially in the faithful execution clause, +that the first magistrate should be responsible for the executive +department"; and this responsibility, he held, carried with it the power +to "inspect and control" the conduct of subordinate executive officers. +"Vest," said he, "the power [of removal] in the Senate jointly with the +President, and you abolish at once the great principle of unity and +responsibility in the executive department, which was intended for the +security of liberty and the public good."[384] But this was said with +respect to the office of Secretary of State; and when shortly afterward +the question arose as to the power of Congress to regulate the tenure of +the Comptroller of the Treasury, Madison assumed a very different +attitude, conceding in effect that this officer was to be an arm of +certain of Congress's own powers, and should therefore be protected +against the removal power.[385] (_See_ p. 458). And in Marbury _v._ +Madison,[386] Chief Justice Marshall traced a parallel distinction +between the duties of the Secretary of State under the original act +which had created a "Department of Foreign Affairs" and those which had +been added by the later act changing the designation of the department +to its present one. The former were, he pointed out, entirely in the +"political field," and hence for their discharge the Secretary was left +responsible absolutely to the President. The latter, on the other hand, +were exclusively of statutory origin and sprang from the powers of +Congress. For these, therefore, the Secretary was "an officer of the +law" and "amenable to the law for his conduct."[387] + + +ADMINISTRATIVE DECENTRALIZATION VERSUS JACKSONIAN CENTRALISM + +An opinion rendered by Attorney General Wirt in 1823 asserted the +proposition that the President's duty under the "take care" clause +required of him scarcely more than that he should bring a criminally +negligent official to book for his derelictions, either by removing him +or by setting in motion against him the processes of impeachment or of +criminal prosecution.[388] The opinion entirely overlooked the +important question of the location of the power to interpret the law +which is inevitably involved in any effort to enforce it. The +diametrically opposed theory that Congress is unable to vest any head of +an executive department, even within the field of Congress's +specifically delegated powers, with any legal discretion which the +President is not entitled to control was first asserted in unambiguous +terms in President Jackson's Protest Message of April 15, 1834,[389] +defending his removal of Duane as Secretary of the Treasury, on account +of the latter's refusal to remove the deposits from the Bank of the +United States. Here it is asserted "that the entire executive power is +vested in the President"; that the power to remove those officers who +are to aid him in the execution of the laws is an incident of that +power; that the Secretary of the Treasury was such an officer; that the +custody of the public property and money was an executive function +exercised through the Secretary of the Treasury and his subordinates: +that in the performance of these duties the Secretary was subject to the +supervision and control of the President: and finally that the act +establishing the Bank of the United States "did not, as it could not +change the relation between the President and Secretary--did not release +the former from his obligation to see the law faithfully executed nor +the latter from the President's supervision and control."[390] In short, +the President's removal power, in this case unqualified, was the +sanction provided by the Constitution for his power and duty to control +his "subordinates" in all their official actions of public consequence. + + +CONGRESSIONAL POWER VERSUS PRESIDENTIAL DUTY TO THE LAW + +Five years later the case of Kendall _v._ United States[391] arose. The +United States owed one Stokes money, and when Postmaster General +Kendall, at Jackson's instigation, refused to pay it, Congress passed a +special act ordering payment. Kendall, however, still proved +noncompliant, whereupon Stokes sought and obtained a mandamus in the +United States circuit court for the District of Columbia, and on appeal +this decision was affirmed by the Supreme Court. While Kendall _v._ +United States, like Marbury _v._ Madison, involved the question of the +responsibility of a head of department for the performance of a +_ministerial_ duty, the discussion by counsel before the Court and the +Court's own opinion covered the entire subject of the relation of the +President to his subordinates in the performance by them of statutory +duties. The lower court had asserted that the duty of the President +under the faithful execution clause gave him no other control over the +officer than to see that he acts honestly, with proper motives, but no +power to construe the law, and see that the executive action conforms to +it. Counsel for Kendall attacked this position vigorously, relying +largely upon statements by Hamilton, Marshall, James Wilson, and Story +having to do with the President's power in the field of foreign +relations. The Court rejected the implication with emphasis. There are, +it pointed out, "certain political duties imposed upon many officers in +the executive department, the discharge of which is under the direction +of the President. But it would be an alarming doctrine, that Congress +cannot impose upon any executive officer any duty they may think proper, +which is not repugnant to any rights secured and protected by the +Constitution; and in such cases the duty and responsibility grow out of +and are subject to the control of the law, and not to the direction of +the President. And this is emphatically the case, where the duty +enjoined is of a mere ministerial character."[392] In short, the Court +recognized the underlying question of the case to be whether the +President's duty to "take care that the laws be faithfully executed" +made it constitutionally impossible for Congress ever to entrust the +construction of its statutes to anybody but the President; and it +answered this in the negative. + + +MYERS CASE VERSUS HUMPHREY CASE + +How does this issue stand today? The answer to this question, so far as +there is one, is to be sought in a comparison of the Court's decisions +in the Myers and Humphrey cases respectively.[393] The former decision +is still valid to support the President's right to remove, and hence to +control the decisions of, all officials through whom he exercises the +great political powers which he derives from the Constitution; also all +officials--usually heads of departments--through whom he exercises +powers conferred upon him by statute. The Humphrey decision assures to +Congress the right to protect the tenure, and hence the freedom of +decision of all officials upon whom, in the exercise of its delegated +powers, it confers duties of a "quasi-legislative" or a "quasi-judicial" +nature. The former may be described as duties for the satisfactory +discharge of which Congress justifiably feels that a specialized and +informed judgment is requisite. The latter are duties the discharge of +which closely touches private rights and which ought therefore be +accompanied or preceded by a "quasi-judicial" inquiry capable of +affording the claimants of such rights the opportunity to be heard. In +neither case is the President entitled to force his reading of the law +upon the officer, but only to take care that the latter exercise his +powers according to his own best lights. + + +POWER OF THE PRESIDENT TO GUIDE ENFORCEMENT OF THE PENAL LAW + +This matter also came to a head in "the reign of Andrew Jackson," +preceding, and indeed foreshadowing, the Duane episode by some months. +"At that epoch," Wyman relates in his Principles of Administrative Law, +"the first announcement of the doctrine of centralism in its entirety +was set forth in an obscure opinion upon an unimportant matter--The +Jewels of the Princess of Orange, 2 Opin. 482 (1831). These jewels * * * +were stolen from the Princess by one Polari, and were seized by the +officers of the United States Customs in the hands of the thief. +Representations were made to the President of the United States by the +Minister of the Netherlands of the facts in the matter, which were +followed by request for return of the jewels. In the meantime the +District Attorney was prosecuting condemnation proceedings in behalf of +the United States which he showed no disposition to abandon. The +President felt himself in a dilemma, whether if it was by statute the +duty of the District Attorney to prosecute or not, the President could +interfere and direct whether to proceed or not. The opinion was written +by Taney, then Attorney-General; it is full of pertinent illustrations +as to the necessity in an administration of full power in the chief +executive as the concomitant of his full responsibility. It concludes: +If it should be said that, the District Attorney having the power to +discontinue the prosecution, there is no necessity for inferring a right +in the President to direct him to exercise it--I answer that the +direction of the President is not required to communicate any new +authority to the District Attorney, but to direct him in the execution +of a power he is admitted to possess. The most valuable and proper +measure may often be for the President to order the District Attorney to +discontinue prosecution. The District Attorney might refuse to obey the +President's order; and if he did refuse, the prosecution, while he +remained in office, would still go on; because the President himself +could give no order to the court or to the clerk to make any particular +entry. He could only act through his subordinate officer the District +Attorney, who is responsible to him and who holds his office at his +pleasure. And if that officer still continue a prosecution which the +President is satisfied ought not to continue, the removal of the +disobedient officer and the substitution of one more worthy in his place +would enable the President through him faithfully to execute the law. +And it is for this among other reasons that the power of removing the +District Attorney resides in the President."[394] + + +THE PRESIDENT AS LAW INTERPRETER + +The power accruing to the President from his function of law +interpretation preparatory to law enforcement is daily illustrated in +relation to such statutes as the Anti-Trust Acts, the Taft-Hartley Act, +the Internal Security Act, and many lesser statutes. Nor is this the +whole story. Not only do all Presidential regulations and orders based +on statutes which vest power in him or on his own constitutional powers +have the force of law, provided they do not transgress the Court's +reading of such statutes or of the Constitution,[395] but he sometimes +makes law in a more special sense. In the famous Neagle case[396] an +order of the Attorney General to a United States marshal to protect a +Justice of the Supreme Court whose life had been threatened by a suitor +was attributed to the President and held to be "a law of the United +States" in the sense of section 753 of the Revised Statutes, and as such +to afford basis for a writ of _habeas corpus_ transferring the said +marshal, who had "got his man," from State to national custody. Speaking +for the Court, Justice Miller inquired: "Is this duty [the duty of the +President to take care that the laws be faithfully executed] limited to +the enforcement of acts of Congress or of treaties of the United States +according to their _express terms_, or does it include the rights, +duties and obligations growing out of the Constitution itself, our +international relations, and all the protection implied by the nature of +the government under the Constitution?"[397] Obviously, an affirmative +answer is assumed to the second branch of this inquiry, an assumption +which is borne out by numerous precedents. And in United States _v._ +Midwest Oil Company[398] it was ruled that the President had, by dint of +repeated assertion of it from an early date, acquired the right to +withdraw, via the Land Department, public lands, both mineral and +nonmineral, from private acquisition, Congress having never repudiated +the practice. + + +MILITARY POWER IN LAW ENFORCEMENT: THE POSSE COMITATUS + +"Whenever, by reason of unlawful obstructions, combinations, or +assemblages of persons, or rebellion against the authority of the +Government of the United States, it shall become impracticable, in the +judgment of the President, to enforce, by the ordinary course of +judicial proceedings, the laws of the United States within any State or +Territory, it shall be lawful for the President to call forth the +militia of any or all the States, and to employ such parts of the land +and naval forces of the United States as he may deem necessary to +enforce the faithful execution of the laws of the United States, or to +suppress such rebellion, in whatever State or Territory thereof the +laws of the United States may be forcibly opposed, or the execution +thereof forcibly obstructed."[399] This provision of the United States +Code consolidates a course of legislation which began at the time of the +Whiskey Rebellion of 1792.[400] In Martin _v._ Mott,[401] which arose +out of the War of 1812, it was held that the authority to decide whether +the exigency has arisen belongs exclusively to the President.[402] Even +before that time, Jefferson had in 1808, in the course of his efforts to +enforce the Embargo Acts, issued a proclamation ordering "all officers +having authority, civil or military, who shall be found in the vicinity" +of an unruly combination to aid and assist "by all means in their power, +by force of arms and otherwise" the suppression of such +combination.[403] Forty-six years later Attorney General Cushing advised +President Pierce that in enforcing the Fugitive Slave Act of 1850, +marshals of the United States, had authority when opposed by unlawful +combinations, to summon to their aid not only bystanders and citizens +generally, but armed forces within their precincts, both State militia +and United States officers, soldiers, sailors, and marines,[404] a +doctrine which Pierce himself improved upon two years later by +asserting, with reference to the civil war then raging in Kansas, that +it lay within his obligation to take care that the laws be faithfully +executed to place the forces of the United States in Kansas at the +disposal of the marshal there, to be used as a portion of the _posse +comitatus_. Lincoln's call of April 15, 1861, for 75,000 volunteers was, +on the other hand, a fresh invocation, though of course on a vastly +magnified scale, of Jefferson's conception of a _posse comitatus_ +subject to Presidential call.[405] The provision above extracted from +the United States Code ratifies this conception as regards the State +militias and the national forces. + + +SUSPENSION OF HABEAS CORPUS BY THE PRESIDENT + +_See_ Article I, Section 9, clause 2, pp. 312-315. + + +PREVENTIVE MARTIAL LAW + +The question of executive power in the presence of civil disorder is +dealt with in modern terms in Moyer _v._ Peabody,[406] decided in 1909, +to which the Debs Case,[407] decided in 1895, may be regarded as an +addendum. Moyer, a labor leader, brought suit against Peabody, for +having ordered his arrest during a labor dispute which occurred while +Peabody was governor of Colorado. Speaking for a unanimous Court, one +Justice being absent, Justice Holmes said: "Of course the plaintiff's +position is that he has been deprived of his liberty without due process +of law. But it is familiar that what is due process of law depends on +circumstances. It varies with the subject matter and the necessities of +the situation. * * * The facts that we are to assume are that a state of +insurrection existed and that the Governor, without sufficient reason +but in good faith, in the course of putting the insurrection down held +the plaintiff until he thought that he safely could release him. * * * +In such a situation we must assume that he had a right under the state +constitution and laws to call out troops, as was held by the Supreme +Court of the State. * * * That means that he shall make the ordinary use +of the soldiers to that end; that he may kill persons who resist and, of +course, that he may use the milder measure of seizing the bodies of +those whom he considers to stand in the way of restoring peace. Such +arrests are not necessarily for punishment, but are by way of precaution +to prevent the exercise of hostile power. So long as such arrests are +made in good faith and in the honest belief that they are needed in +order to head the insurrection off, the Governor is the final judge and +cannot be subjected to an action after he is out of office on the ground +that he had not reasonable ground for his belief. * * * When it comes to +a decision by the head of the State upon a matter involving its life, +the ordinary rights of individuals must yield to what he deems the +necessities of the moment. Public danger warrants the substitution of +executive process for judicial process."[408] + + +THE DEBS CASE + +The Debs case of 1895 arose out of a railway strike which had caused the +President to dispatch troops to Chicago the previous year. Coincidently +with this move, the United States district attorney stationed there, +acting upon orders from Washington, obtained an injunction from the +United States circuit court forbidding the strike on account of its +interference with the mails and with interstate commerce. The question +before the Supreme Court was whether this injunction, for violation of +which Debs has been jailed for contempt of court, had been granted with +jurisdiction. Conceding, in effect, that there was no statutory warrant +for the injunction, the Court nevertheless validated it on the ground +that the Government was entitled thus to protect its property in the +mails, and on a much broader ground which is stated in the following +passage of Justice Brewer's opinion for the Court: "Every government, +entrusted, by the very terms of its being, with powers and duties to be +exercised and discharged for the general welfare, has a right to apply +to its own courts for any proper assistance in the exercise of the one +and the discharge of the other. * * * While it is not the province of +the Government to interfere in any mere matter of private controversy +between individuals, or to use its granted powers to enforce the rights +of one against another, yet, whenever the wrongs complained of are such +as affect the public at large, and are in respect of matters which by +the Constitution are entrusted to the care of the Nation and concerning +which the Nation owes the duty to all the citizens of securing to them +their common rights, then the mere fact that the Government has no +pecuniary interest in the controversy is not sufficient to exclude it +from the courts, or prevent it from taking measures therein to fully +discharge those constitutional duties."[409] + + +STATUS OF THE DEBS CASE TODAY + +The restrictions imposed by the Norris-LaGuardia Act[410] on the +issuance of injunctions by the federal courts in cases "involving or +growing out of any labor dispute" later cast a shadow of doubt over the +Debs case, which was deepened, if anything, by the Court's decision in +1947, in United States _v._ United Mine Workers.[411] But such doubts +have been since dispelled by the Taft-Hartley Act, which provides that +whenever in his opinion a threatened or actual strike or lockout +affecting the whole or a substantial part of an industry engaged in +interstate commerce will, "if permitted to occur or continue, imperil +the national health or safety," the President may appoint a board of +inquiry and, upon its so finding, "may direct the Attorney General to +petition any district court of the United States having jurisdiction of +the parties to enjoin such strike or lockout or the continuing thereof +* * *," and the Court shall have jurisdiction to do so, provided it +shares the President's view of the situation.[412] Administration and +labor critics of the act did not challenge the constitutionality of this +provision. They questioned its necessity in view of the President's +"inherent powers" in the face of emergency.[413] + + +THE PRESIDENT'S DUTY IN CASES OF DOMESTIC VIOLENCE IN THE STATES + +_See_ Art. IV, sec. 4, p. 705. + + +THE PRESIDENT AS EXECUTIVE OF THE LAW OF NATIONS + +Illustrative of the President's duty to discharge the responsibilities +of the United States at International Law with a view to avoiding +difficulties with other governments, was the action of President Wilson +in closing the Marconi Wireless Station at Siasconset, Massachusetts on +the outbreak of the European War in 1914, the company having refused +assurance that it would comply with naval censorship regulations. +Justifying this drastic invasion of private rights, Attorney General +Gregory said: "The President of the United States is at the head of one +of the three great coordinate departments of the Government. He is +Commander in Chief of the Army and the Navy. * * * If the President is +of the opinion that the relations of this country with foreign nations +are, or are likely to be, endangered by action deemed by him +inconsistent with a due neutrality, it is his right and duty to protect +such relations; and in doing so, in the absence of any statutory +restrictions, he may act through such executive office or department as +appears best adapted to effectuate the desired end. * * * I do not +hesitate, in view of the extraordinary conditions existing, to advise +that the President, through the Secretary of the Navy or any appropriate +department, close down, or take charge of and operate, the plant * * *, +should he deem it necessary in securing obedience to his proclamation of +neutrality."[414] + + +PROTECTION OF AMERICAN RIGHTS OF PERSON AND PROPERTY ABROAD + +The right of the President to use force in vindication of American +rights of person and property abroad was demonstrated in 1854 by the +bombardment of Greytown, Nicaragua by Lieutenant Hollins of the U.S.S. +Cyane, in default of reparation from the local authorities for an attack +by a mob on the United States consul at that place. Upon his return to +the United States Hollins was sued in a federal court by one Durand for +the value of certain property which was alleged to have been destroyed +in the bombardment. His defense was based upon the orders of the +President and Secretary of the Navy, and was sustained by Justice +Nelson, then on circuit, in the following words: "As the Executive head +of the nation, the President is made the only legitimate organ of the +General Government, to open and carry on correspondence or negotiations +with foreign nations, in matters concerning the interests of the country +or of its citizens. It is to him, also, the citizens abroad must look +for protection of person and of property, and for the faithful execution +of the laws existing and intended for their protection. For this +purpose, the whole Executive power of the country is placed in his +hands, under the Constitution, and the laws passed in pursuance thereof; +and different Departments of government have been organized, through +which this power may be most conveniently executed, whether by +negotiation or by force--a Department of State and a Department of the +Navy. + +"Now, as it respects the interposition of the Executive abroad, for the +protection of the lives or property of the citizen, the duty must, of +necessity, rest in the discretion of the President. Acts of lawless +violence, or of threatened violence to the citizen or his property, +cannot be anticipated and provided for; and the protection, to be +effectual or of any avail, may, not unfrequently, require the most +prompt and decided action. Under our system of Government, the citizen +abroad is as much entitled to protection as the citizen at home. The +great object and duty of Government is the protection of the lives, +liberty, and property of the people composing it, whether abroad or at +home; and any Government failing in the accomplishment of the object, or +the performance of the duty, is not worth preserving."[415] + + +PRESIDENTIAL WORLD POLICING + +In his little volume on World Policing and the Constitution[416] Mr. +James Grafton Rogers lists 149 episodes similar to the Greytown affair, +stretching between the undeclared war with France in 1798 and Pearl +Harbor. While inviting some pruning, the list demonstrates beyond +peradventure the existence in the President, as Chief Executive and +Commander in Chief, of power to judge whether a situation requires the +use of available forces to protect American rights of person and +property outside the United States and to take action in harmony with +his decision. Such employment of the forces have, it is true, been +usually justifiable acts of self defense rather than acts of war, but +the countries where they occurred were entitled to treat them as acts of +war nevertheless, although they have generally been too feeble to assert +their prerogative in this respect, and have sometimes actually chosen to +turn the other cheek. Thus when in 1900 President McKinley, without +consulting Congress, contributed a sizable contingent to the joint +forces that went to the relief of the foreign legations in Peking, the +Chinese Imperial Government agreed that this action had not constituted +war.[417] + + +The Atlantic Pact + +Article V of the Atlantic Pact builds on such precedents. The novel +feature is its enlarged conception of defensible American interests +abroad. In the words of the published abstract of the Report of the +Committee on Foreign Relations on the Pact, "Article 5 records what is a +fact, namely, that an armed attack within the meaning of the treaty +would in the present-day world constitute an attack upon the entire +community comprising the parties to the treaty, including the United +States. Accordingly, the President and the Congress, each within their +sphere of assigned constitutional responsibilities, would be expected to +take all action necessary and appropriate to protect the United States +against the consequences and dangers of an armed attack committed +against any party to the treaty."[418] But from the very nature of +things, the discharge of this obligation against overt force will +ordinarily rest with the President in the first instance, just as has +the discharge in the past of the like obligation in the protection of +American rights abroad. Furthermore, in the discharge of this obligation +the President will ordinarily be required to use force and perform acts +of war. Such is the verdict of history, a verdict which was foreseen +more or less definitely by the framers themselves.[419] + + +PRESIDENTIAL ACTION IN THE DOMAIN OF CONGRESS: THE STEEL SEIZURE CASE + + +Facts[420] + +To avert a nation-wide strike of steel workers which he believed would +jeopardize the national defense, President Truman, on April 8th, 1952, +issued Executive Order 10340[421] directing the Secretary of Commerce to +seize and operate most of the steel mills of the country. The Order +cited no specific statutory authorization, but invoked generally the +powers vested in the President by the Constitution and laws of the +United States. Secretary Sawyer forthwith issued an order seizing the +mills and directing their presidents to operate them as operating +managers for the United States in accordance with his regulations and +directions. The President promptly reported these events to Congress, +conceding Congress's power to supersede his Order; but Congress failed +to do anything about the matter either then or a fortnight later, when +the President again brought up the subject in a special message.[422] It +had in fact provided other methods of dealing with such situations, in +the elaboration of which it had declined repeatedly to authorize +governmental seizures of property to settle labor disputes. The steel +companies sued the Secretary in a federal district court, praying for a +declaratory judgment and injunctive relief. The district court issued a +preliminary injunction, which the court of appeals stayed.[423] On +certiorari to the court of appeals, the district court's order was +affirmed by the Supreme Court by a vote of six justices to three. +Justice Black delivered the opinion of the Court in which Justices +Frankfurter, Douglas, Jackson, and Burton formally concurred. Justice +Clark expressly limited his concurrence to the judgment of the Court. +All these Justices presented what are termed "concurring" opinions. The +Chief Justice, speaking for himself and Justices Reed and Minton, +presented a dissenting opinion. + + +The Doctrine of the Opinion of the Court + +The chief points urged in the Black opinion are the following: There was +no statute which expressly or impliedly authorized the President to take +possession of the property involved. On the contrary, in its +consideration of the Taft-Hartley Act in 1947, Congress refused to +authorize governmental seizures of property as a method of preventing +work stoppages and settling labor disputes. Authority to issue such an +order in the circumstances of the case was not deducible from the +aggregate of the President's executive powers under Article II of the +Constitution; nor was the Order maintainable as an exercise of the +President's powers as Commander in Chief of the Armed Forces. The power +sought to be exercised was the lawmaking power, which the Constitution +vests in the Congress alone. Even if it were true that other Presidents +have taken possession of private business enterprises without +congressional authority in order to settle labor disputes, Congress was +not thereby divested of its exclusive constitutional authority to make +the laws necessary and proper to carry out all powers vested by the +Constitution "in the Government of the United States, or any Department +or Officer thereof."[424] + + +The Factual Record + +The pivotal proposition of the opinion is, in brief, that inasmuch as +Congress could have ordered the seizure of the steel mills, the +President had no power to do so without prior congressional +authorization. To support this position no proof is offered in the way +of past opinion, and the following extract from Justice Clark's opinion +presents a formidable challenge to it: "One of this Court's first +pronouncements upon the powers of the President under the Constitution +was made by Mr. Chief Justice John Marshall some one hundred and fifty +years ago. In Little _v._ Barreme,[425] he used this characteristically +clear language in discussing the power of the President to instruct the +seizure of the _Flying Fish_, a vessel bound from a French port: 'It is +by no means clear that the president of the United States whose high +duty it is to "take care that the laws be faithfully executed," and who +is commander in chief of the armies and navies of the United States, +might not, without any special authority for that purpose, in the then +existing state of things, have empowered the officers commanding the +armed vessels of the United States, to seize and send into port for +adjudication, American vessels which were forfeited by being engaged in +this illicit commerce. But when it is observed that [an act of Congress] +gives a special authority to seize on the high seas, and limits that +authority to the seizure of vessels bound or sailing to a French port, +the legislature seems to have prescribed that the manner in which this +law shall be carried into execution, was to exclude a seizure of any +vessel not bound to a French port.' Accordingly, a unanimous Court held +that the President's instructions had been issued without authority and +that they could not 'legalize an act which without those instructions +would have been a plain trespass.' I know of no subsequent holding of +this Court to the contrary."[426] + +Another field which the President and Congress have each occupied at +different times is extradition. In 1799 President Adams, in order to +execute the extradition provisions of the Jay Treaty, issued a warrant +for the arrest of one Jonathan Robbins. As Chief Justice Vinson recites +in his opinion: "This action was challenged in Congress on the ground +that no specific statute prescribed the method to be used in executing +the treaty. John Marshall, then a member of the House of +Representatives, in the course of his successful defense of the +President's action, said: 'Congress, unquestionably, may prescribe the +mode, and Congress may devolve on others the whole execution of the +contract; but, till this be done, it seems the duty of the Executive +department to execute the contract by any means it possesses.'"[427] In +1848 Congress enacted a statute governing this subject which confers +upon the courts, both State and Federal, the duty of handling +extradition cases.[428] + +The first Neutrality Proclamation was issued by President Washington in +1793 without congressional authorization.[429] The following year +Congress enacted the first neutrality statute,[430] and since then +proclamations of neutrality have been based on an act of Congress +governing the matter. The President may, in the absence of legislation +by Congress, control the landing of foreign cables in the United States +and the passage of foreign troops through American territory, and has +done so repeatedly.[431] Likewise, until Congress acts, he may govern +conquered territory[432] and, "in the absence of attempts by Congress to +limit his power," may set up military commissions in territory occupied +by the armed forces of the United States.[433] He may determine, in a +way to bind the courts, whether a treaty is still in force as law of the +land, although again the final power in the field rests with +Congress.[434] One of the President's most ordinary powers and duties is +that of ordering the prosecution of supposed offenders against the laws +of the United States. Yet Congress may do the same thing.[435] On +September 22, 1862, President Lincoln issued a proclamation suspending +the privilege of the writ of habeas corpus throughout the Union in +certain classes of cases. By an act passed March 3, 1863, Congress +ratified this action of the President and at the same time brought the +whole subject of military arrests in the United States under legal +control.[436] Conversely, when President Wilson failed in March 1917 to +obtain Congress's consent to his arming American merchant vessels with +defensive arms, he went ahead and did it anyway, "fortified not only by +the known sentiments of the majority in Congress but also by the advice +of his Secretary of State and Attorney General."[437] + +On the specific matter of property seizures, Justice Frankfurter's +concurring opinion in the Youngstown Case is accompanied by appendices +containing a synoptic analysis of legislation authorizing seizures of +industrial property and also a summary of seizures of industrial plants +and facilities by Presidents without definite statutory warrant. +Eighteen such statutes are listed, all but the first of which were +enacted between 1916 and 1951. Of presidential seizures unsupported by +reference to specific statutory authorization, he lists eight as +occurring during World War I. To justify these it was deemed sufficient +to refer to "the Constitution and laws" generally. For the World War II +period he lists eleven seizures in justification of which no statutory +authority was cited. The first of these was the seizure of the North +American Aviation, Inc., of Englewood, California. In support of this +action Attorney General Jackson, as Chief Justice Vinson points out in +his dissenting opinion, "vigorously proclaimed that the President had +the moral duty to keep this nation's defense effort a 'going +concern.'"[438] Said the then Attorney General, "The Presidential +proclamation rests upon the aggregate of the Presidential powers derived +from the Constitution itself and from statutes enacted by the Congress. +The Constitution lays upon the President the duty 'to take care that the +laws be faithfully executed.' Among the laws which he is required to +find means to execute are those which direct him to equip an enlarged +army, to provide for a strengthened navy, to protect Government +property, to protect those who are engaged in carrying out the business +of the Government, and to carry out the provisions of the Lend-Lease +Act. For the faithful execution of such laws the President has back of +him not only each general law-enforcement power conferred by the various +acts of Congress but the aggregate of all such laws plus that wide +discretion as to method vested in him by the Constitution for the +purpose of executing the laws."[439] In the War Labor Disputes Act of +June 25, 1943,[440] such seizures were put on a statutory basis. As the +Chief Justice points out, the purpose of this measure, as stated by its +sponsor, was not to augment presidential power but to "let the country +know that the Congress is squarely behind the President."[441] + +In United States _v._ Pewee Coal Company, Inc.[442] the Court had before +it the claim of a coal mine operator whose property was seized by the +President without statutory authorization, "to avert a nation-wide +strike of miners." The company brought an action in the Court of Claims +to recover under the Fifth Amendment for the total operating losses +sustained during the period in which this property was operated by the +United States. The Court awarded judgment for $2,241.46 and the Supreme +Court sustained this judgment, a result which implied the validity of +the seizure.[443] Said Justice Reed, in his concurring opinion of the +case: "The relatively new technique of temporary taking by eminent +domain is a most useful administrative device: many properties, such as +laundries, or coal mines, or railroads, may be subjected to public +operation only for a short time to meet war or emergency needs, and can +then be returned to their owners." The implications of United States +_v._ Pewee Coal Company, Inc.,[444] clearly sustained the Government in +Youngstown, assuming that Congress had not acted in the latter case. And +one instance of seizure by executive order Justice Frankfurter fails to +mention. This was the seizure by President Wilson in the late summer of +1914, following the outbreak of war in Europe, of the Marconi Wireless +Station at Siasconset when the Company refused assurance that it would +comply with naval censorship regulations. Attorney General Gregory's +justification of this action at the time was quoted on an earlier +page.[445] + +The doctrine dictated by the above considerations as regards the +exercise of executive power in the field of legislative power was well +stated by Mr. John W. Davis, principal counsel on the present occasion +for the steel companies, in a brief which he filed nearly forty years +ago as Solicitor General, in defense of the action of the President in +withdrawing certain lands from public entry although his doing so was at +the time contrary to express statute. "Ours," the brief reads, "is a +self-sufficient Government within its sphere. (Ex parte Siebold, 100 +U.S. 371, 395; in re Debs, 158 U.S. 564, 578.) 'Its means are adequate +to its ends' (McCulloch _v._ Maryland, 4 Wheat. 316, 424), and it is +rational to assume that its active forces will be found equal in most +things to the emergencies that confront it. While perfect flexibility is +not to be expected in a Government of divided powers, and while division +of power is one of the principal features of the Constitution, it is the +plain duty of those who are called upon to draw the dividing lines to +ascertain the essential, recognize the practical, and avoid a slavish +formalism which can only serve to ossify the Government and reduce its +efficiency without any compensating good. The function of making laws is +peculiar to Congress, and the Executive can not exercise that function +to any degree. But this is not to say that all of the _subjects_ +concerning which laws might be made are perforce removed from the +possibility of Executive influence. The Executive may act upon things +and upon men in many relations which have not, though they might have, +been actually regulated by Congress. In other words, just as there are +fields which are peculiar to Congress and fields which are peculiar to +the Executive, so there are fields which are common to both, in the +sense that the Executive may move within them until they shall have +been occupied by legislative action. These are not the fields of +legislative prerogative, but fields within which the lawmaking power may +enter and dominate whenever it chooses. This situation results from the +fact that the President is the active agent, not of Congress, but of the +Nation. As such he performs the duties which the Constitution lays upon +him immediately, and as such, also, he executes the laws and regulations +adopted by Congress. He is the agent of the people of the United States, +deriving all his powers from them and responsible directly to them. In +no sense is he the agent of Congress. He obeys and executes the laws of +Congress, not because Congress is enthroned in authority over him, but +because the Constitution directs him to do so. Therefore it follows that +in ways short of making laws or disobeying them, the Executive may be +under a grave constitutional duty to act for the national protection in +situations not covered by the acts of Congress, and in which, even, it +may not be said that his action is the direct expression of any +particular one of the independent powers which are granted to him +specifically by the Constitution. Instances wherein the President has +felt and fulfilled such a duty have not been rare in our history, +though, being for the public benefit and approved by all, his acts have +seldom been challenged in the courts."[446] + + +Concurring Opinions + +Justice Frankfurter begins the material part of his opinion with the +statement: "We must * * * put to one side consideration of what powers +the President would have had if there had been no legislation whatever +bearing on the authority asserted by the seizure, or if the seizure had +been only for a short, explicitly temporary period, to be terminated +automatically unless Congressional approval were given."[447] He then +enters upon a review of the proceedings of Congress which attended the +enactment of the Taft-Hartley Act, and concludes that "Congress has +expressed its will to withhold this power [of seizure] from the +President as though it had said so in so many words."[448] + +Justice Douglas's contribution consists in the argument that: "The +branch of government that has the power to pay compensation for a +seizure is the only one able to authorize a seizure or make lawful one +that the President has effected. That seems to me to be the necessary +result of the condemnation provision in the Fifth Amendment."[449] This +contention overlooks such cases as Mitchell _v._ Harmony;[450] United +States _v._ Russell;[451] Portsmouth Harbor Land and Hotel Co. _v._ +United States;[452] and United States _v._ Pewee Coal Co.;[453] in all +of which a right of compensation was recognized to exist in consequence +of damage to property which resulted from acts stemming ultimately from +constitutional powers of the President. In United States _v._ Pink,[454] +Justice Douglas quotes with approval the following words from the +Federalist,[455] "all constitutional acts of power, whether in the +executive or in the judicial branch, have as much validity and +obligation as if they proceeded from the legislature." If this is so as +to treaty obligations, then all the more must it be true of obligations +which are based directly on the Constitution.[456] + +Justice Jackson's opinion contains little that is of direct pertinence +to the constitutional issue. Important, however, is his contention, +which, seems to align him with Justice Frankfurter, that Congress had +"not left seizure of private property an open field but has covered it +by three statutory policies inconsistent with this seizure"; from which +he concludes that "* * * we can sustain the President only by holding +that seizure of such strike-bound industries is within his domain and +beyond control by Congress."[457] The opinion concludes: "In view of the +ease, expedition and safety with which Congress can grant and has +granted large emergency powers, certainly ample to embrace this crisis, +I am quite unimpressed with the argument that we should affirm +possession of them without statute. Such power either has no beginning +or it has no end. If it exists, it need submit to no legal restraint. I +am not alarmed that it would plunge us straightway into dictatorship, +but it is at least a step in that wrong direction. * * * But I have no +illusion that any decision by this Court can keep power in the hands of +Congress if it is not wise and timely in meeting its problems. A crisis +that challenges the President equally, or perhaps primarily, challenges +Congress. If not good law, there was worldly wisdom in the maxim +attributed to Napoleon that 'The tools belong to the man who can use +them.' We may say that power to legislate for emergencies belongs in the +hands of Congress, but only Congress itself can prevent power from +slipping through its fingers."[458] + +Justice Burton, referring to the Taft-Hartley Act, says: "* * * the most +significant feature of that Act is its omission of authority to seize," +citing debate on the measure.[459] "In the case before us, Congress +authorized a procedure which the President declined to follow."[460] +Justice Clark bases his position directly upon Chief Justice Marshall's +opinion in Little _v._ Barreme.[461] He says: "I conclude that where +Congress has laid down specific procedures to deal with the type of +crisis confronting the President, he must follow these procedures in +meeting the crisis; * * * I cannot sustain the seizure in question +because here, as in Little _v._ Barreme, Congress had prescribed methods +to be followed by the President in meeting the emergency at hand."[462] +His reference is to the Taft-Hartley Act. At the same time he endorses +the view, "taught me not only by the decision of Chief Justice Marshall +in Little _v._ Barreme, but also by a score of other pronouncements of +distinguished members of this bench," that "the Constitution does grant +to the President extensive authority in times of grave and imperative +national emergency."[463] + + +Dissenting Opinion + +Chief Justice Vinson launched his opinion of dissent, for himself and +Justices Reed and Minton, with a survey of the elements of the emergency +which confronted the President: the Korean war; the obligations of the +United States under the United Nations Charter and the Atlantic Pact; +the appropriations acts by which Congress has voted vast sums to be +expended in our defense and that of our Allies in Europe; the fact that +steel is a basic constituent of war materiel. He reproaches the Court +for giving no consideration to these things, although no one had +ventured to challenge the President's finding of an emergency on the +basis of them.[464] He asks whether the steel seizure, considering the +emergency involved, fits into the picture of presidential emergency +action in the past and musters impressive evidence to show that it does. +And "plaintiffs admit," he asserts, more questionably, "that the +emergency procedures of Taft-Hartley are not mandatory."[465] He +concludes as follows: "The diversity of views expressed in the six +opinions of the majority, the lack of reference to authoritative +precedent, the repeated reliance upon prior dissenting opinions, the +complete disregard of the uncontroverted facts showing the gravity of +the emergency and the temporary nature of the taking all serve to +demonstrate how far afield one must go to affirm the order of the +District Court. The broad executive power granted by Article II to an +officer on duty 365 days a year cannot, it is said, be invoked to avert +disaster. Instead, the President, must confine himself to sending a +message to Congress recommending action. Under this messenger-boy +concept of the Office, the President cannot even act to preserve +legislative programs from destruction so that Congress will have +something left to act upon. There is no judicial finding that the +executive action was unwarranted because there was in fact no basis for +the President's finding of the existence of an emergency for, under this +view, the gravity of the emergency and the immediacy of the threatened +disaster are considered irrelevant as a matter of law."[466] + + +Evaluation; Presidential Emergency Power + +The doctrine of "the opinion of the Court" is that, if Congress can do +it under, say, the necessary and proper clause, then the President, +lacking authority from Congress, cannot do it on the justification that +an emergency requires it. Although four Justices are recorded as +concurring in the opinion, their accompanying opinions whittle their +concurrence in some instances to the vanishing point. Justice Douglas's +supplementary argument on the basis of Amendment V logically confines +the doctrine of the opinion to executive seizures of property. Justices +Frankfurter and Burton and, less clearly, Justice Jackson insist in +effect that Congress had exercised its power in the premises of the case +in opposition to seizure. Justice Clark, on the basis of Chief Justice +Marshall's opinion in Little _v._ Barreme, holds unambiguously that, +Congress having entered the field, its evident intention to rule out +seizures supplied the law of the case. That the President does possess a +residual of resultant power above, or in consequence of, his granted +powers to deal with emergencies in the absence of restrictive +legislation is explicitly asserted by Justice Clark, and impliedly held, +with certain qualifications, by Justice Frankfurter and, again less +clearly, by Justice Jackson; and is the essence of the position of the +three dissenting Justices. Finally, the entire Court would in all +probability agree to the proposition that any action of the President +touching the internal economy of the country for which the justification +of emergency is pleaded is always subject to revision and disallowance +by the legislative power. It would seem to follow that whenever the +President so acts on his own initiative he should at once report his +action to Congress, and thenceforth bring the full powers of his office +to the support of the desires of the Houses once these are clearly +indicated. + + +PRESIDENTIAL IMMUNITY FROM JUDICIAL DIRECTION + +By the decision of the Court in State of Mississippi _v._ Johnson,[467] +in 1867, the President was put beyond the reach of judicial direction in +the exercise of any of his powers, whether constitutional or statutory, +political or otherwise. An application for an injunction to forbid +President Johnson to enforce the Reconstruction Acts, on the ground of +their unconstitutionality, was answered by Attorney General Stanbery as +follows: "It is not upon any peculiar immunity that the individual has +who happens to be President; upon any idea that he cannot do wrong; upon +any idea that there is any particular sanctity belonging to him as an +individual, as is the case with one who has royal blood in his veins; +but it is on account of the office that he holds that I say the +President of the United States is above the process of any court or the +jurisdiction of any court to bring him to account as President. There is +only one court or _quasi_ court that he can be called upon to answer to +for any dereliction of duty, for doing anything that is contrary to law +or failing to do anything which is according to law, and that is not +this tribunal but one that sits in another chamber of this +Capitol."[468] Speaking by Chief Justice Chase, the Court agreed: "The +Congress is the legislative department of the government; the President +is the executive department. Neither can be restrained in its action by +the judicial department; though the acts of both, when performed, are, +in proper cases, subject to its cognizance. The impropriety of such +interference will be clearly seen upon consideration of its possible +consequences. Suppose the bill filed and the injunction prayed for +allowed. If the President refuse obedience, it is needless to observe +that the court is without power to enforce its process. If, on the other +hand, the President complies with the order of the court and refuses to +execute the acts of Congress, is it not clear that a collision may occur +between the executive and legislative departments of the government? May +not the House of Representatives impeach the President for such refusal? +And in that case could this court interfere, in behalf of the President, +thus endangered by compliance with its mandate, and restrain by +injunction the Senate of the United States from sitting as a court of +impeachment? Would [not?] the strange spectacle be offered to the public +world of an attempt by this court to arrest proceedings in that +court?"[469] The Court further indicated that the same principle would +apply to an application for a mandamus ordering the President to +exercise any of his powers. + + +THE PRESIDENT'S SUBORDINATES AND THE COURTS + +But while the courts are unable to compel the President to act or to +keep him from acting, yet his acts, when performed are in proper cases +subject to judicial review and disallowance.[470] Moreover, the +subordinates through whom he acts may always be prohibited by writ of +injunction from doing a threatened illegal act which might lead to +irreparable damage,[471] or be compelled by writ of mandamus to perform +a duty definitely required by law,[472] such suits being usually brought +in the United States District Court for the District of Columbia.[473] +Also, by common law principles, a subordinate executive officer is +personally liable under the ordinary law for any act done in excess of +authority.[474] Indeed, by a recent holding, district courts of the +United States are bound to entertain suits for damages arising out of +alleged violation of plaintiff's constitutional rights, even though as +the law now stands the Court is powerless to award damages.[475] But +Congress may, in certain cases, exonerate the officer by a so-called act +of indemnity,[476] while as the law stands at present, any officer of +the United States who is charged with a crime under the laws of a State +for an act done under the authority of the United States is entitled to +have his case transferred to the national courts.[477] + + +Section 4. The President, Vice President and all civil Officers +of the United States, shall be removed from Office on Impeachment for, +and Conviction of, Treason, Bribery, or other high Crimes and +Misdemeanors. + + +Impeachment + + +"CIVIL OFFICER" + +A Member of Congress is not a civil officer within the meaning of this +section; nor is a private citizen subject to impeachment;[478] but +resignation of an officer does not give immunity from impeachment for +acts committed while in office.[479] + + +"HIGH CRIMES AND MISDEMEANORS" + +Most of the States have drafted their constitutional provisions on this +subject in similar language. As there is no enumeration of offenses +comprised under the last two categories, no little difficulty has been +experienced in defining offenses in such a way that they fall within the +meaning of the constitutional provisions. But impeachable offenses were +not defined in England, and it was not the intention that the +Constitution should attempt an enumeration of crimes or offenses for +which an impeachment would lie. Treason and bribery have always been +offenses whose nature was clearly understood. Other high crimes and +misdemeanors which might be made causes for the impeachment of civil +officers were those which embraced any misbehavior while in office. +Madison, whose objection led to the insertion of the more definite +phrase high crimes and misdemeanors, was the strongest advocate of a +broad construction of the impeachment power. He argued that incapacity, +negligence, or perfidy of the Chief Magistrate should be ground for +impeachment.[480] Again, in discussing the President's power of removal, +he maintained that the wanton removal from office of meritorious +officers would be an act of maladministration, and would render the +President liable to impeachment.[481] Hamilton thought the proceeding +could "never be tied down by such strict rules, either in the +delineation of the offense by the prosecutors, or in the construction of +it by the judges, as in common cases serve to limit the discretion of +the courts in favor of personal security."[482] + + +THE CHASE IMPEACHMENT + +The above relatively flexible conception of "high crimes and +misdemeanors" was, however, early replaced by a much more rigid one in +consequence of Jefferson's efforts to diminish the importance of the +Supreme Court, the first step in which enterprise was the impeachment in +1805 of Justice Samuel Chase. The theory of Chase's enemies was given +its extremest expression by Jefferson's henchman, Senator Giles of +Virginia, as follows: "Impeachment is nothing more than an enquiry, by +the two Houses of Congress, whether the office of any public man might +not be better filled by another. * * * The power of impeachment was +given without limitation to the House of Representatives; and the power +of trying impeachments was given equally without limitation to the +Senate; * * * A trial and removal of a judge upon impeachment need not +imply any criminality or corruption in him. * * * [but] was nothing more +than a declaration of Congress to this effect: You hold dangerous +opinions, and if you are suffered to carry them into effect you will +work the destruction of the nation. _We want your offices_, for the +purpose of giving them to men who will fill them better."[483] To this +theory Chase's counsel opposed the proposition that "high crimes and +misdemeanors" meant offenses indictable at common law; and Chase's +acquittal went far to affix this reading to the phrase till after the +War between the States. + + +THE JOHNSON IMPEACHMENT + +But with the impeachment of President Johnson in 1867 for "high crimes +and misdemeanors," the controversy was revived. Representative Bingham, +leader of the House Managers of the impeachment, defined an impeachable +offense as follows: "An impeachable high crime or misdemeanor is one in +its nature or consequences subversive of some fundamental or essential +principle of government or highly prejudicial to the public interest, +and this may consist of a violation of the Constitution, of law, of an +official oath, or of duty, by an act committed or omitted, or, without +violating a positive law, by the abuse of discretionary powers from +improper motives or for an improper purpose."[484] Former Justice +Benjamin R. Curtis stated the position of the defense in these words: +"My first position is, that when the Constitution speaks of 'treason, +bribery, and other high crimes and misdemeanors,' it refers to, and +includes only, high criminal offences against the United States, made so +by some law of the United States existing when the acts complained of +were done, and I say that this is plainly to be inferred from each and +every provision of the Constitution on the subject of impeachment."[485] + + +LATER IMPEACHMENTS + +With Johnson's acquittal, the narrow view of "high crimes and +misdemeanors" appeared again to win out. Two successful impeachments of +lower federal judges in recent years have, however, restored something +like the broader conception of the term which Madison and Hamilton had +endorsed. In 1913 Judge Archbald of the Commerce Court was removed from +office by the impeachment process, and disqualified to hold and enjoy +any office of honor, profit or trust under the Constitution, for +soliciting for himself and friends valuable favors from railroad +companies some of which were at the time litigants in his court, +although it was conceded that in so doing he had not committed an +indictable offense;[486] and in 1936 Judge Ritter of the Florida +district court was similarly removed for conduct in relation to a +receivership case which evoked serious doubts as to his integrity, +although on the specific charges against him he was acquitted.[487] It +is probable that in both these instances the final result was influenced +by the consideration that judges of the United States hold office during +"good behavior" and that the impeachment process is the only method +indicated by the Constitution for determining whether a judge's behavior +has been "good." In other words, as to judges of the United States at +least lack of "good behavior" and "high crimes and misdemeanors" are +overlapping if not precisely coincidental concepts.[488] + + +Notes + +[1] As is pointed out by Hamilton in The Federalist No. 69. + +[2] Charles C. Thach, The Creation of the Presidency, 1775-1789 +(Baltimore, 1922), 36-37. + +[3] Ibid. 109. + +[4] Max Farrand, Records, II, 185. + +[5] Ibid. II, 572 (September 10), 597. + +[6] Annals of Congress 383 ff. + +[7] Ibid. 396-397; 481-482. For a thorough-going review and evaluation +of this debate, _see_ James Hart, The American Presidency in Action, +152-214 (New York, 1948). + +[8] Works of Alexander Hamilton, VII, 76, 80-81 (J.C. Hamilton, ed., New +York, 1851). Hamilton was here simply interpreting the executive power +clause in light of the views of Blackstone, Locke, and Montesquieu as to +the location of power in the conduct of foreign relations. _See_ Edward +S. Corwin, The President, Office and Powers (3d ed.), 459-460. For a +parallel argument to Hamilton's respecting "the judicial power of the +United States," article 1, section 1, clause 1, _see_ Justice Brewer's +opinion in Kansas _v._ Colorado, 206 U.S. 46, 82 (1907). + +[9] Myers _v._ United States, 272 U.S. 52 (1926). + +[10] Ibid. 118. + +[11] 299 U.S. 304 (1936). + +[12] Ibid. 315-316, 318. _See also_ Ibid. 319 citing U.S. Senate +Reports, Committee on Foreign Relations, vol. 8, p. 24 (February 15, +1816). + +[13] Ibid. 327, citing Panama Refining Co. _v._ Ryan, 293 U.S. 388, +421-422 (1935). + +[14] In Youngstown Co. _v._ Sawyer, 343 U.S. 579 (1952) the doctrine is +advanced that the President has no power in the field of Congress' +legislative powers except such as are delegated him by Congress. This +doctrine is considered below in the light of previous practice and +adjudication. _See_ pp. 489-499. + +[15] _See_ e.g., Abel Upshur, A Brief Inquiry Into the True Nature and +Character of Our Federal Government (1840), 116-117. + +[16] The Federalist No. 67, 503. + +[17] James Hart, The American Presidency in Action (New York, 1918), +28-43. + +[18] 2 Dall. 400 (1790). + +[19] Messages and Papers of the Presidents, I, 56. + +[20] Corwin, The President, Office and Powers (3d ed.), 377-378, +434-435, 446, 465, 484. "The executive [branch of the government], +possessing the rights of self-government from nature, cannot be +controlled in the exercise of them but by a law, passed in the forms of +the Constitution." Thomas Jefferson, Official Opinion (1790) 5 Ford, ed. +209 (New York, 1892-1899). "In times of peace the people look most to +their representatives; but in war, to the Executive solely." Letter to +Caesar A. Rodney, (1810) Monticello, 9 Ford, ed. 272. + +[21] Corwin 20-21, and citations. + +[22] Ibid. 21-22, and citations. + +[23] Ibid. 22-24. + +[24] Ibid. 386. _See also_ ibid. 281. + +[25] Ford, The Rise and Growth of American Politics (New York, 1914), +293. + +[26] As to the meaning of "the fourth day of March", _see_ Charles +Warren, Political Practice and the Constitution, 89 Univ. of Pa. L. Rev. +(June, 1941) 1003-1025. + +[27] On the anti-third term tradition, _see_ Corwin, The President, +Office and Powers (3d ed.), 43-49, 388-392. + +[28] McPherson _v._ Blacker, 146 U.S. 1, 27 (1892). + +[29] Ibid. 28-29. + +[30] Max Farrand, II, 97. + +[31] In re Green, 134 U.S. 377, 379-380 (1890). + +[32] United States _v._ Hartwell, 6 Wall. 385, 393 (1868). + +[33] Hawke _v._ Smith, 253 U.S. 221 (1920). + +[34] Burroughs _v._ United States, 290 U.S. 534, 545 (1934). + +[35] Ex parte Yarbrough, 110 U.S. 651 (1884). + +[36] Burroughs _v._ United States, 290 U.S. 534 (1934). + +[37] Ibid. 546. During the recent war, Congress laid claim in the act of +September 16, 1942, to the power "in time of war" to secure to every +member of the armed forces the right to vote for Members of Congress and +Presidential Electors notwithstanding any provisions of State law +relating to the registration of qualified voters or any poll tax +requirement under State law. The constitutional validity of this act was +open to serious question and by the act of April 1, 1944 was abandoned. +The latter act established a War Ballot Commission which was directed to +prepare an adequate number of official war ballots, whereby the service +men would be enabled in certain contingencies to vote for Members of +Congress and Presidential Electors; but the validity of such ballots was +left to be determined by State election officials under State laws. 50 +(App.) U.S.C.A. Sec. 301-302, 331, 341. + +[38] 343 U.S. 214 (1952). + +[39] _See_ pp. 942-944. + +[40] 1 Stat. 239. + +[41] 3 U.S.C. Sec. 23. + +[42] 3 U.S.C. Sec. 21. + +[43] Public Law 199, 80th Cong., 1st sess. By section 202 (a) of Public +Law 253 of the 80th Cong., 1st sess., approved July 26, 1947, that is, +eight days after Public Law 199, the "Secretary of War" and the +"Secretary of the Navy" were stricken from the line of succession and +the "Secretary of Defense" whose office Public Law 253 created, was +inserted instead. + +[44] _Cf._ 13 Op. Atty. Gen. 161 (1869), holding that a specific tax by +the United States upon the salary of an officer, to be deducted from the +amount which otherwise would by law be payable as such salary, is a +diminution of the compensation to be paid to him, which, in the case of +the President of the United States, would be unconstitutional if the act +of Congress levying the tax was passed during his official term. + +[45] The Federalist No. 69, 513, 515. + +[46] Story's Commentaries, II, Sec. 1492. + +[47] Fleming _v._ Page, 9 How. 603, 615, 618 (1850). + +[48] Ex parte Milligan, 4 Wall. 2, 139 (1866). + +[49] 1 Stat. 424 (1795); 2 Stat. 443 (1807). _See also_ Martin _v._ +Mott, 12 Wheat. 19, 32-33 (1827), asserting the finality of the +President's judgment of the existence of a state of facts requiring his +exercise of the powers conferred by the act of 1795. + +[50] Messages and Papers of the Presidents, VII, 3221. + +[51] 2 Bl. 635 (1863). + +[52] Messages and Papers of the Presidents, VII, 3215, 3216, 3481. + +[53] 2 Bl. at 668-670. + +[54] 12 Stat. 326 (1861). + +[55] James G. Randall, Constitutional Problems under Lincoln, 118-139 +(New York, 1926). + +[56] _See_ the Government's brief in United States _v._ Montgomery Ward +and Co., 150 F. 2d 369 (1945). + +[57] United States _v._ Curtiss-Wright Export Corp., 299 U.S. 304, 327 +(1936). + +[58] _See_ White House Digest of Provisions of Law Which Would Become +Operative upon Proclamation of a National Emergency by the President. +The Digest is dated December 11, 1950. It was released to the press on +December 16th. + +[59] 56 Stat. 23. + +[60] Cong. Rec. 77th Cong., 2d sess., vol. 88, pt. 5, p. 7044 (September +7, 1942). + +[61] 50 U.S.C.A. War, App. 1651. For Emergency War Agencies that were +functioning at any particular time, consult the _United States +Government Manual_ of the approximate date. The executive order creating +an agency is cited by number. For a Chronological List of Wartime +Agencies (including government corporations) and some account of their +creation down to the close of 1942, _see_ chapter on War Powers and +Their Administration by Dean Arthur T. Vanderbilt in 1942 Annual Survey +of American Law (New York University School of Law, 1945), pp. 106-231. +At the close of the war there were 29 agencies grouped under OEM, of +which OCD, WMC, and OC were the first to fold up. At the same date there +were 101 separate government corporations, engaged variously in +production, transportation, power-generation, banking and lending, +housing, insurance, merchandising, and other lines of business and +enjoying the independence of autonomous republics, being subject to +neither Congressional nor presidential scrutiny, nor to audit by the +General Accounting Office. + +[62] 143 F. 2d. 145 (1944). + +[63] _See_ Corwin, The President, Office and Powers (3d ed.) 296, 492. + +[64] Exec. Order 9066, 7 Fed. Reg. 1407. + +[65] 56 Stat. 173. + +[66] Hirabayashi _v._ United States, 320 U.S. 81, 91-92 (1943). + +[67] Korematsu _v._ United States, 323 U.S. 214 (1944). + +[68] New York Times, June 10, 1941. + +[69] 7 Fed. Reg. 237. + +[70] 57 Stat. 163. + +[71] "During the course of the year [1945] the President directed the +seizure of many of the nation's industries in the course of labor +disputes. The total number of facilities taken over is significant: two +railroad systems, one public utility, nine industrial companies, the +transportation systems of two cities, the motor carriers in one city, a +towing company and a butadiene plant. In addition thereto the President +on April 10 seized 218 bituminous coal mines belonging to 162 companies +and on May 7, 33 more bituminous mines of 24 additional companies. The +anthracite coal industry fared no better; on May 3 and May 7 all the +mines of 365 companies and operators were taken away from the owners, +and on October 6 the President ordered the seizure of 54 plants and pipe +lines of 29 petroleum producing companies in addition to four taken over +prior thereto. + +"During the year disputes between railroad companies and the +Brotherhoods resulted in the establishment of twelve Railroad Emergency +Boards to investigate disputes and to report to the President. The +President also established on October 9 a Railway Express Emergency +Board to investigate the dispute between the Railway Express and a +union. + +"To implement the directives of the National War Labor Board, the Office +of Economic Stabilization directed the cancellation of all priority +applications, allocation applications and outstanding priorities and +allocations in the cases of three clothing companies and one +transportation system which refused to comply with orders of the +National War Labor Board." Arthur T. Vanderbilt, War Powers and their +Administration, 1945, Annual Survey of American Law (New York University +School of Law), pp. 271-273. + +[72] 8 Fed. Reg. 11463. + +[73] 56 Stat. 23. + +[74] 322 U.S. 398 (1944). + +[75] Ibid. 405-406. + +[76] _See_ Corwin, The President, Office and Powers (3d ed.) 302-303. + +[77] Charles Fairman, The Law of Martial Rule (Chicago, 1930), 20-22. +Albert Venn Dicey, Introduction to the Study of the Law of the +Constitution (7th ed.), 283-287. + +[78] Dicey, Introduction to the Study of the Law of the Constitution, +Chap. VIII, 262-271. + +[79] 7 How. 1 (1849). _See also_ Martin _v._ Mott, 12 Wheat. 19, 32-33 +(1827). + +[80] 2 Bl. 635 (1863). + +[81] 4 Wall. 2 (1866). + +[82] Ibid. 127. + +[83] Ibid. 139-140. In Ex parte Vallandigham the Court had held while +war was still flagrant that it had no power to review by certiorari the +proceedings of a military commission ordered by a general officer of the +Army, commanding a military department. 1 Wall. 243 (1864). + +[84] 31 Stat. 141, 153. + +[85] Duncan _v._ Kahanamoku, 327 U.S. 304 (1946). + +[86] Ibid. 324. + +[87] Ibid. 336. + +[88] Ibid. 343. + +[89] Ex parte Quirin, 317 U.S. 1 (1942). + +[90] 317 U.S. 1, 29-30, 35 (1942). + +[91] Ibid. 1, 41-42. + +[92] Ibid. 28-29. + +[93] 1 Stat. 577 (1798). + +[94] 327 U.S. 1 (1946). + +[95] Ibid. 81. + +[96] _See_ Leo Gross, The Criminality of Aggressive War, 41 American +Political Science Review (April, 1947), 205-235. + +[97] Fleming _v._ Page, 9 How. 603, 615 (1850). + +[98] Madsen _v._ Kinsella, 343 U.S. 341, 348 (1952). _See also_ Johnson +_v._ Eisentrager, 339 U.S. 703, 789 (1950). + +[99] Totten _v._ United States, 92 U.S. 105 (1876). + +[100] Hamilton _v._ Dillin, 21 Wall. 73 (1875); Haver _v._ Yaker, 9 +Wall. 32 (1869). + +[101] Mitchell _v._ Harmony, 13 How. 115 (1852); United States _v._ +Russell, 13 Wall. 623 (1871); Totten _v._ United States, note 3 above; +[Transcriber's Note: Reference is to Footnote 99, above.] 40 Op. Atty. +Gen. 251-253 (1942). + +[102] _Cf._ the Protocol of August 12, 1898, which largely foreshadowed +the Peace of Paris; and President Wilson's Fourteen Points, which were +incorporated in the Armistice of November 11, 1918. + +[103] Fleming _v._ Page, 9 How. 603, 615 (1850). + +[104] Santiago _v._ Nogueras, 214 U.S. 260 (1909). As to temporarily +occupied territory, _see_ Dooley _v._ United States, 182 U.S. 222, +230-231 (1901). + +[105] Swaim _v._ United States, 165 U.S. 553 (1897); and cases there +reviewed. _See also_ Givens _v._ Zerbst, 255 U.S. 11 (1921). + +[106] 15 Op. Atty. Gen. 297 and note; 30 ibid. 303; _cf._ 1 ibid. 233, +234, where the contrary view is stated by Attorney General Wirt. + +[107] Ex parte Quirin, 317 U.S. 1, 28-29 (1942). + +[108] General Orders, No. 100, Official Records, War of Rebellion, ser. +III, vol. III; April 24, 1863. + +[109] _See_ e.g., Mimmack _v._ United States, 97 U.S. 426, 437 (1878); +United States _v._ Corson, 114 U.S. 619 (1885). + +[110] 10 U.S.C. Sec. 1590. + +[111] Mullan _v._ United States, 140 U.S. 240 (1891); Wallace _v._ +United States, 257 U.S. 541 (1922). + +[112] Surrogate's Court, Dutchess County, New York, ruling July 25, 1950 +that the estate of Franklin D. Roosevelt was not entitled to tax +benefits under sections 421 and 939 of the Internal Revenue Code, which +extends certain tax benefits to persons dying in the military service of +the United States. New York Times, July 26, 1950, p. 27, col. 1. + +[113] Farrand, I, 70, 97, 110; II, 285, 328, 335-337, 367, 537-542 +(_passim_). + +[114] Heads of Executive Departments except the Postmaster General have +no fixed legal terms. For the history of legislation on the subject. +_See_ 36 Op. Atty. Gen. 12-16 (April 18, 1929); _also_ Everett S. Brown, +The Tenure of Cabinet Officers, 42 American Political Science Review +529-532 (June, 1948). + +[115] _See_ Corwin, The President, Office and Powers (3d ed.), New York +University Press, 1948, 21-22, 74, 98-99, 257, 358-364, 372-373, +378-381, 516-519. The only question of a constitutional nature that has +arisen concerning the Cabinet meeting is as to its right to meet, on the +call of the Secretary of State, in the President's absence. Ibid. 402. + +[116] United States _v._ Wilson, 7 Pet. 150, 160-161 (1833). + +[117] 236 U.S. 79, 86 (1915). + +[118] Ibid. 90-91. + +[119] Armstrong _v._ United States, 13 Wall. 154, 156 (1872). In Brown +_v._ Walker, 161 U.S. 591 (1896), the Court had said: "It is almost a +necessary corollary of the above propositions that, if the witness has +already received a pardon, he cannot longer set up his privilege, since +he stands with respect to such offence as if it had never been +committed." Ibid. 599, citing British cases. + +[120] Biddle _v._ Perovich, 274 U.S. 480, 486 (1927). + +[121] _Cf._ W.H. Humbert, The Pardoning Power of the President, American +Council on Public Affairs (Washington, 1941) 73. + +[122] 274 U.S. at 486. + +[123] 23 Op. Atty. Gen. 363 (1901); Illinois Central R. Co. _v._ +Bosworth, 133 U.S. 92 (1890). + +[124] Ex parte Wells, 18 How. 307 (1856). For the contrary view _see_ +some early opinions of Attorney General, 1 Opins. Atty. Gen. 342 (1820); +2 ibid. 275 (1829); 5 ibid. 687 (1795); _cf._ 4 ibid. 453; United States +_v._ Wilson, 7 Pet. 150, 161 (1833). + +[125] Ex parte United States, 242 U.S. 27 (1916). Amendment of sentence, +however, (within the same term of court) by shortening the term of +imprisonment, although defendant had already been committed, is a +judicial act and no infringement of the pardoning power. United States +_v._ Benz, 282 U.S. 304 (1931). + +[126] _See_ Messages and Papers of the Presidents, I, 181, 303; II, 543; +VII, 3414, 3508; VIII, 3853; XIV, 6690. + +[127] United States _v._ Klein, 13 Wall. 128, 147 (1872). _See also_ +United States _v._ Padelford, 9 Wall. 531 (1870). + +[128] Ex parte Garland, 4 Wall. 333, 380 (1867). + +[129] F.W. Maitland, Constitutional History of England (Cambridge, +1903), 302-306; 1 Op. Atty. Gen. 342 (1820). + +[130] 267 U.S. 87 (1925). + +[131] Ibid. 110-111. + +[132] Ibid. 121, 122. + +[133] 4 Wall. 333, 381 (1867). + +[134] Ibid. 380. + +[135] Ibid. 396-397. + +[136] 233 U.S. 51 (1914). + +[137] Ibid. 59. + +[138] 142 U.S. 450 (1892). + +[139] Knote _v._ United States, 95 U.S. 149, 153-154 (1877). + +[140] United States _v._ Klein, 13 Wall. 128, 143, 148 (1872). + +[141] The Laura, 114 U.S. 411 (1885). + +[142] Brown _v._ Walker, 161 U.S. 591 (1896). + +[143] Farrand, II, 183. + +[144] Ibid. 538-539. + +[145] The Federalist No. 64. + +[146] Farrand, III, 424. + +[147] Washington sought to use the Senate as a council, but the effort +proved futile, principally because the Senate balked. For the details +_see_ Corwin, The President, Office and Powers (3d ed.), 253-257. + +[148] United States _v._ Curtiss-Wright Export Corp., 299 U.S. 304, 319 +(1936). + +[149] Corwin, The President, Office and Powers (3d ed.), 467-468. + +[150] "Obviously the treaty must contain the whole contract between the +parties, and the power of the Senate is limited to a ratification of +such terms as have already been agreed upon between the President, +acting for the United States, and the commissioners of the other +contracting power. The Senate has no right to ratify the treaty and +introduce new terms into it, which shall be obligatory upon the other +power, although it may refuse its ratification, or make such +ratifications conditional upon the adoption of amendments to the +treaty." Fourteen Diamond Rings _v._ United States, 183 U.S. 176, 183 +(1901). + +[151] _Cf._ Article I, section 5, clause 1; _also_ Missouri Pacific R. +Co. _v._ Kansas, 248 U.S. 276, 283-284 (1919). + +[152] _See_ Samuel Crandall, Treaties, Their Making and Enforcement (2d +ed., Washington, 1916), Sec. 53, for instances. + +[153] Foster _v._ Neilson, 2 Pet. 253, 314 (1829). "Though several +writers on the subject of government place that [the treaty-making] +power in the class of executive authorities, yet this is evidently an +arbitrary disposition; for if we attend carefully to its operation, it +will be found to partake more of the legislative than of the executive +character, though it does not seem strictly to fall within the +definition of either. The essence of the legislative authority is to +enact laws, or, in other words, to prescribe rules for the regulation of +the society; while the execution of the laws, and the employment of the +common strength, either for this purpose, or for the common defence, +seem to comprise all the functions of the executive magistrate. The +power of making treaties is, plainly, neither the one nor the other. It +relates neither to the execution of the subsisting laws, nor to the +enaction of new ones; and still less to an exertion of the common +strength. Its objects are _contracts_ with foreign nations, which have +the force of law, but derive it from the obligations of good faith. They +are not rules prescribed by the sovereign to the subject, but agreements +between sovereign and sovereign. The power in question seems therefore +to form a distinct department, and to belong, properly, neither to the +legislative nor to the executive." Hamilton in The Federalist No. 75. + +[154] Head Money Cases, 112 U.S. 589, 598 (1884). For treaty provisions +operative as "law of the land" ("self-executing"), _see_ Crandall, +Treaties (2d ed.), 36-42, 49-62 (_passim_), 151, 153-163, 179, 238-239, +286, 321, 338, 345-346. For treaty provisions of an "executory" +character, _see_ ibid. 162-163, 232, 236, 238, 493, 497, 532, 570, 589. + +[155] _See_ Crandall, Chap. III, 24-42. + +[156] 3 Dall. 199 (1796). + +[157] 3 Cr. 454 (1806). + +[158] "In Chirac _v._ Chirac (2 Wheat. 259), it was held by this court +that a treaty with France gave to her citizens the right to purchase and +hold land in the United States, removed the incapacity of alienage and +placed them in precisely the same situation as if they had been citizens +of this country. The State law was hardly adverted to, and seems not to +have been considered a factor of any importance in this view of the +case. The same doctrine was reaffirmed touching this treaty in Carneal +_v._ Banks (10 Wheat. 181) and with respect to the British Treaty of +1794, in Hughes _v._ Edwards (9 Wheat. 489). A treaty stipulation may be +effectual to protect the land of an alien from forfeiture by escheat +under the laws of a State. Orr _v._ Hodgson (4 Wheat. 458). By the +British treaty of 1794, 'all impediment of alienage was absolutely +levelled with the ground despite the laws of the States. It is the +direct constitutional question in its fullest conditions. Yet the +Supreme Court held that the stipulation was within the constitutional +powers of the Union. Fairfax's Devisees _v._ Hunter's Lessee, 7 Cr. 627; +_see_ Ware _v._ Hylton, 3 Dall. 242.' 8 Op. Attys-Gen. 417. Mr. Calhoun, +after laying down certain exceptions and qualifications which do not +affect this case, says: 'Within these limits all questions which may +arise between us and other powers, be the subject-matter what it may, +fall within the treaty-making power and may be adjusted by it.' Treat. +on the Const. and Gov. of the U.S. 204. + +"If the national government has not the power to do what is done by such +treaties, it cannot be done at all, for the States are expressly +forbidden to 'enter into any treaty, alliance, or confederation.' +Const., art. I. sect. 10. + +"It must always be borne in mind that the Constitution, laws, and +treaties of the United States are as much a part of the law of every +State as its own local laws and Constitution. This is a fundamental +principle in our system of complex national polity." 100 U.S. at +489-490. + +[159] 100 U.S. 483 (1880). + +[160] _See also_ De Geofroy _v._ Riggs, 133 U.S. 258 (1890); Sullivan +_v._ Kidd, 254 U.S. 433 (1921); Nielsen _v._ Johnson, 279 U.S. 47 +(1929). But a right under treaty to acquire and dispose of property does +not except aliens from the operation of a State statute prohibiting +conveyances of homestead property by any instrument not executed by both +husband and wife. Todok _v._ Union State Bank, 281 U.S. 449 (1930). Nor +was a treaty stipulation guaranteeing to the citizens of each country, +in the territory of the other, equality with the natives of rights and +privileges in respect to protection and security of person and property, +violated by a State statute which denied to a nonresident alien _wife_ +of a person killed within the State, the right to sue for wrongful +death, although such right was afforded to native resident _relatives_. +Maiorano _v._ Baltimore & O.R. Co., 213 U.S. 268 (1909). The treaty in +question having been amended in view of this decision, the question +arose whether the new provision covered the case of death without fault +or negligence in which, by the Pennsylvania Workmen's Compensation Act, +compensation was expressly limited to resident parents; the Supreme +Court held that it did not. Liberato _v._ Royer, 270 U.S. 535 (1926). + +[161] Terrace _v._ Thompson, 263 U.S. 197 (1923). + +[162] 332 U.S. 633 (1948). _See also_ Takahashi _v._ Fish and Game +Comm., 334 U.S. 410 (1948), in which a California statute prohibiting +the issuance of fishing licenses to persons ineligible to citizenship is +disallowed, both on the basis of Amendment XIV and on the ground that +the statute invaded a field of power reserved to the National +Government, namely, the determination of the conditions on which aliens +may be admitted, naturalized, and permitted to reside in the United +States. For the latter proposition Hines _v._ Davidowitz, 312 U.S. 52, +66 (1941) was relied upon. + +[163] This occurred in the much advertised case of Sei Fujii _v._ State +of California, 242 P. 2d, 617 (1952). A lower California court had held +that the legislation involved was void under the United Nations Charter, +but the California Supreme Court was unanimous in rejecting this view. +The Charter provisions invoked in this connection [Arts. 1, 55, and 56], +said Chief Justice Gibson, "We are satisfied * * * were not intended to +supersede domestic legislation". + +[164] Clark _v._ Allen, 331 U.S. 503 (1947). + +[165] 1 Cr. 103, 109 (1801). + +[166] Foster _v._ Neilson, 2 Pet. 253, 314 (1829); Strother _v._ Lucas, +12 Pet. 410, 439 (1838); Edye _v._ Robertson (Head Money Cases), 112 +U.S. 580, 598, 599 (1884); United States _v._ Rauscher, 119 U.S. 407, +419 (1886); Bacardi Corp. _v._ Domenech, 311 U.S. 150 (1940). + +[167] The doctrine of political questions is not always strictly adhered +to in cases of treaty interpretation. In the case of the "_Appam_" it +was conspicuously departed from. This was a British merchant vessel +which was captured by a German cruiser early in 1916 and brought by a +German crew into Newport News, Virginia. The German Imperial Government +claimed that under the Treaties of 1799 and 1828 between the United +States and Prussia, the vessel was entitled to remain in American waters +indefinitely. Secretary of State Lansing ruled against the claim, and +the Supreme Court later did the same, but ostensibly on independent +grounds and without reference to the attitude of the Department of +State. The Steamship Appam, 243 U.S. 124 (1917). Although it is a +principle of International Law that, as respects the rights of the +signatory parties, a treaty is binding from the date of signature, a +different rule applies in this country as to a treaty as "law of the +land" and as such a source of human rights. Before a treaty can thus +operate it must have been approved by the Senate. Haver _v._ Yaker, 9 +Wall. 32 (1870). + +[168] _See_ Crandall, Treaties, Their Making and Enforcement, (2d ed.), +165-171, with citations. + +[169] Madison Writings (Hunt ed.), 264. + +[170] "We express no opinion as to whether Congress is bound to +appropriate the money * * * It is not necessary to consider it in this +case, as Congress made prompt appropriation of the money stipulated in +the treaty" (the Treaty of Paris of 1899 between Spain and the United +States). De Lima _v._ Bidwell, 182 U.S. 1, 198 (1901). For a list of +earlier appropriations of the same kind, _see_ Crandall, 179-180, n. 35. + +[171] Willoughby, On the Constitution, I (2d ed., New York, 1929), 558. +_See also_ H. Rept. 2630, 48th Cong., 2d sess., for an exhaustive review +of the subject. + +[172] Edye _v._ Robertson (Head Money Cases), 112 U.S. 580, 598-599 +(1884). The repealability of treaties by act of Congress was first +asserted in an opinion of the Attorney General in 1854 (6 Op. Atty. Gen. +291). The year following the doctrine was adopted judicially in a +lengthy and cogently argued opinion of Justice Curtis, speaking for a +United States circuit court in Taylor _v._ Morton, 23 Fed. Cas. No. +13,799 (1855). The case turned on the following question: "If an act of +Congress should levy a duty upon imports, which an existing commercial +treaty declares shall not be levied, so that the treaty is in conflict +with the act, does the former or the latter give the rule of decision in +a judicial tribunal of the United States, in a case to which one rule or +the other must be applied?" + +Citing the supremacy clause of the Constitution, Justice Curtis said: +"There is nothing in the language of this clause which enables us to +say, that in the case supposed, the treaty, and not the act of Congress, +is to afford the rule. Ordinarily, treaties are not rules prescribed by +sovereigns for the conduct of their subjects, but contracts, by which +they agree to regulate their own conduct. This provision of our +Constitution has made treaties part of our municipal law. But it has not +assigned to them any particular degree of authority in our municipal +law, nor declared whether laws so enacted shall or shall not be +paramount to laws otherwise enacted. * * * [This] is solely a question +of municipal, as distinguished from public law. The foreign sovereign +between whom and the United States a treaty has been made, has a right +to expect and require its stipulations to be kept with scrupulous good +faith; but through what internal arrangements this shall be done, is, +exclusively, for the consideration of the United States. Whether the +treaty shall itself be the rule of action of the people as well as the +government, whether the power to enforce and apply it shall reside in +one department, or another, neither the treaty itself, nor any +implication drawn from it, gives him any right to inquire. If the people +of the United States were to repeal so much of their constitution as +makes treaties part of their municipal law, no foreign sovereign with +whom a treaty exists could justly complain, for it is not a matter with +which he has any concern. * * * By the eighth section of the first +article of the Constitution, power is conferred on Congress to regulate +commerce with foreign nations, and to lay duties, and to make all laws +necessary and proper for carrying those powers into execution. That the +act now in question is within the legislative power of Congress, unless +that power is controlled by the treaty, is not doubted. It must be +admitted, also, that in general, power to legislate on a particular +subject, includes power to modify and repeal existing laws on that +subject, and either substitute new laws in their place, or leave the +subject without regulation, in those particulars to which the repealed +laws applied. There is therefore nothing in the mere fact that a treaty +is a law, which would prevent Congress from repealing it. Unless it is +for some reason distinguishable from other laws, the rule which it gives +may be displaced by the legislative power, at its pleasure. * * * I +think it is impossible to maintain that, under our Constitution, the +President and Senate exclusively, possess the power to modify or repeal +a law found in a treaty. If this were so, inasmuch as they can change or +abrogate one treaty, only by making another inconsistent with the first, +the government of the United States could not act at all, to that +effect, without the consent of some foreign government; for no new +treaty, affecting, in any manner, one already in existence, can be made +without the concurrence of two parties, one of whom must be a foreign +sovereign. That the Constitution was designed to place our country in +this helpless condition, is a supposition wholly inadmissible. It is not +only inconsistent with the necessities of a nation, but negatived by the +express words of the Constitution. * * *" _See also_ The Cherokee +Tobacco, 11 Wall. 616 (1871); United States _v._ Forty-Three Gallons of +Whiskey, 108 U.S. 491, 496 (1883); Botiller _v._ Dominguez, 130 U.S. 238 +(1889); Chae Chan Ping _v._ United States, 130 U.S. 581, 600 (1889); +Whitney _v._ Robertson, 124 U.S. 190, 194 (1888); Fong Yue Ting _v._ +United States, 149 U.S. 688, 721 (1893); etc. "Congress by legislation, +and so far as the people and authorities of the United States are +concerned, could abrogate a treaty made between this country and another +country which had been negotiated by the President and approved by the +Senate." La Abra Silver Mining Co. _v._ United States, 175 U.S. 423, 460 +(1899). _Cf._ Reichert _v._ Felps, 6 Wall. 160, 165-166 (1868), where it +is stated obiter that "Congress is bound to regard the public treaties, +and it had no power * * * to nullify [Indian] titles confirmed many +years before * * *" + +[173] United States _v._ Schooner Peggy, 1 Cr. 103 (1801). + +[174] Foster _v._ Neilson, 2 Pet. 253 (1829). + +[175] United States _v._ Percheman, 7 Pet. 51 (1833). + +[176] Willoughby, On the Constitution, I, (2d ed.), 555. + +[177] 288 U.S. 102 (1933). + +[178] Ibid. 107-122. + +[179] 124 U.S. 190 (1888). + +[180] It is arguable that the maximum _leget posteriores_ is not the +most eligible rule for determining conflicts between "laws of the United +States * * * made in pursuance thereof" (i.e. of the Constitution) and +"treaties made * * * under the authority of the United States". It may +be that the former, being mentioned immediately after "this +Constitution" and before "treaties," are entitled always to prevail over +the latter, just as both acts of Congress and treaties yield to the +Constitution. + +[181] 1 Stat. 578. + +[182] 4 Dall. 37 (1800). + +[183] Crandall, Treaties (2d ed.), 458; _See_ Messages and Papers of the +Presidents, IV, 2245; and Benton, 15 Abridgment of the Debates of +Congress, 478. Mangum of North Carolina denied that Congress could +authorize the President to give notice: "He entertained not a particle +of doubt that the question never could have been thrown upon Congress +unless as a war or _quasi_ war measure. * * * Congress had no power of +making or breaking a treaty." He owned, however, that he might appear +singular in his view of the matter. Ibid. 472. + +[184] Crandall, 458-462; Wright, The Control of American Foreign +Relations, 258. + +[185] 38 Stat. 1164. + +[186] Crandall, 460. + +[187] _See_ Jesse S. Reeves, The Jones Act and the Denunciation of +Treaties, 15 American Journal of International Law (January, 1921) +33-38. Among other precedents which call into question the exclusive +significance of the legislative role in the termination of treaties as +international conventions is one mentioned by Mr. Taft: "In my +administration the lower house passed a resolution directing the +abrogation of the Russian Treaty of 1832, couched in terms which would +have been most offensive to Russia, and it did this by a vote so nearly +unanimous as to indicate that in the Senate, too, the same resolution +would pass. It would have strained our relations with Russia in a way +that seemed unwise. The treaty was an old one, and its construction had +been constantly the subject of controversy between the two countries, +and therefore, to obviate what I felt would produce unnecessary trouble +in our foreign relations, I indicated to the Russian ambassador the +situation, and advised him that I deemed it wise to abrogate the treaty, +which, as President, I had the right to do by due notice couched in a +friendly and courteous tone and accompanied by an invitation to begin +negotiations for a new treaty. Having done this, I notified the Senate +of the fact, and this enabled the wiser heads of the Senate to +substitute for the house resolution a resolution approving my action, +and in this way the passage of the dangerous resolution was avoided." +The resolution in question, it should be added, was a joint resolution, +and purported to ratify the President's action. The President himself +had asked only for ratification and approval of his course by the +Senate. William Howard Taft, The Presidency (New York, 1916), 112-114. +Two other precedents bearing on outright abrogation of treaties are the +following. The question whether to regard the extradition article of the +Treaty of 1842 with Great Britain as void on account of certain acts of +the British Government was laid before Congress by President Grant in a +special message dated June 20, 1876, in the following terms: "It is for +the wisdom of Congress to determine whether the article of the treaty +relating to extradition is to be any longer regarded as obligatory on +the Government of the United States or as forming part of the supreme +law of the land. Should the attitude of the British Government remain +unchanged, I shall not, without an expression of the wish of Congress +that I should do so, take any action either in making or granting +requisitions for the surrender of fugitive criminals under the treaty of +1842." Messages and Papers of the Presidents, IX, 4324, 4327. Three +years later Congress passed a resolution requiring the President to +abrogate articles V and VI of the Treaty of 1868 with China. President +Hayes vetoed it, partly on the ground that "the power of modifying an +existing treaty, whether by adding or striking out provisions, is a part +of the treaty-making power under the Constitution. * * *" At the same +time, he also wrote: "The authority of Congress to terminate a treaty +with a foreign power by expressing the will of the nation no longer to +adhere to it is as free from controversy under our Constitution as is +the further proposition that the power of making new treaties or +modifying existing treaties is not lodged by the Constitution in +Congress, but in the President, by and with the advice and consent of +the Senate, as shown by the concurrence of two-thirds of that body." +Ibid. 4470-4471. The veto would seem to have been based on a quibble. + +[188] 229 U.S. 447 (1913). + +[189] Ibid. 473-476. + +[190] Clark _v._ Allen, 331 U.S. 503 (1947). + +[191] Charlton _v._ Kelly, 229 U.S. 447 (1913). + +[192] Fed. Cas. No. 13,799 (1855). + +[193] 2 Pet. 253, 309 (1829). + +[194] Acts of March 2, 1829 and of February 24, 1855; 4 Stat. 359 and 10 +Stat. 614. + +[195] In re Ross, 140 U.S. 453 (1891), where the treaty provisions +involved are given. The supplementary legislation was later reenacted as +Rev. Stat. Sec. 4083-4091. + +[196] 18 U.S.C.A. Sec. 3181-3195. + +[197] Baldwin _v._ Franks, 120 U.S. 678, 683 (1887). + +[198] Neely _v._ Henkel, 180 U.S. 109, 121 (1901). A different theory is +offered by Justice Story in his opinion for the Court in Prigg _v._ +Pennsylvania, 16 Pet. 539 (1842), in the following words: "Treaties made +between the United States and foreign powers, often contain special +provisions, which do not execute themselves, but require the +interposition of Congress to carry them into effect, and Congress has +constantly, in such cases, legislated on the subject; yet, although the +power is given to the executive, with the consent of the senate, to make +treaties, the power is nowhere in positive terms conferred upon Congress +to make laws to carry the stipulations of treaties into effect. It has +been supposed to result from the duty of the national government to +fulfil all the obligations of treaties." Ibid. 619. Story was here in +quest of arguments to prove that Congress had power to enact a fugitive +slave law, which he based on its power "to carry into effect rights +expressly given and duties expressly enjoined" by the Constitution. +Ibid. 618-619. But the treaty-making power is neither a right nor a +duty, but one of the powers "vested by this Constitution in the +Government of the United States." Article I, section 8, clause 18. + +[199] Geofroy _v._ Riggs, 133 U.S. 258 (1890). _See also_ Fort +Leavenworth Railroad Co. _v._ Lowe, 114 U.S. 525, 541 (1885), which is +cited in the Field opinion in support of the idea that no cession of any +portion of a State's territory could be effected without the State's +consent. The statement is the purest obiter. + +[200] Ibid. 267. + +[201] The majority of the cases, as was pointed out earlier, dealt with +the competence of the treaty-making power to grant aliens the right to +inherit real property contrary to State Law. The nearest the Court ever +came to lending countenance to the State Rights argument in this +connection was in Frederickson _v._ Louisiana, 23 How. 445 (1860). _See_ +ibid. 448. + +[202] 252 U.S. 416 (1920). + +[203] Ibid. 433-434. + +[204] Ibid. 435. + +[205] 299 U.S. 304 (1936). + +[206] Ibid. 318. "The treaty-making power vested in our government +extends to all proper subjects of negotiation with foreign governments. +It can, equally with any of the former or present governments of Europe, +make treaties providing for the exercise of judicial authority in other +countries by its officers appointed to reside therein." In re Ross, 140 +U.S. 453, 463 (1891). + +[207] Jefferson excepted out of the treaty-making power the delegated +powers of Congress, though just what he meant by this exception is +uncertain. He may have meant that no international agreement could be +constitutionally entered into by the United States within the sphere of +such powers, or only that treaty-provisions dealing with matters which +are also subject to the legislative power of Congress must, in order to +become law of the land, receive the assent of Congress. The latter +interpretation, however, does not state a limitation on the power of +making treaties in the sense of international conventions, but rather a +necessary procedure before certain conventions are cognizable by the +courts in the enforcement of rights under them, while the former +interpretation has been contradicted in practice from the outset. + +Various other limitations to the treaty-making power have been suggested +from time to time. Thus, it has been contended that the territory of a +State of the Union could not be ceded without such State's consent, _see +above_; also, that while foreign territory can be annexed to the United +States by the treaty-making power, it could not be incorporated with the +United States except with the consent of Congress; also, that while the +treaty-making power can consent to the United States being sued for +damages in an international tribunal for an alleged incorrect decision +of a court of the United States, it could not consent to an appeal being +taken from one of its courts to an international tribunal. + +The first of these alleged limitations may be dismissed as resting on +the unallowable idea that the United States is not as to its powers a +territorial government, but only the agent of the States. In the words +of Chancellor Kent: "The better opinion would seem to be, that such a +power of cession of the territory of a State without its consent does +reside exclusively in the treaty-making power, under the Constitution of +the United States, yet sound discretion would forbid the exercise of it +without the consent of the local government who are interested, except +in cases of great necessity, in which the consent might be presumed." 1 +Comm. 166-167 and note. This seems also to have been substantially the +view of Marshall and Story. _See_ Willoughby, On the Constitution, I (2d +ed., 1929), 575-576. The second suggested limitation, which was urged at +tremendous length by Chief Justice White in his concurring opinion for +himself and three other Justices, in Downes _v._ Bidwell, 182 U.S. 244, +310-344 (1901), boils down simply to the question of correct +constitutional procedure for the effectuation of a treaty; and much the +same may be said of the third alleged limitation. This limitation was +first suggested in connection with the Hague Convention of 1907 +providing for an International Prize Court as a result of appeal from +the prize courts of belligerents. To this arrangement President Taft +objected that the treaty-making power could not transfer to a tribunal +not known to the Constitution part of the "judicial power of the United +States," and upon this view of the matter dispensation was finally +granted the United States in a special protocol whereby this nation was +allowed, in lieu of granting appeals from its prize courts to the +International Court, to be mulcted in damages in the latter for +erroneous decisions in the former. It is submitted that President Taft's +position was fallacious, for the simple reason that not even the whole +American nation is entitled to judge finally of its rights or of those +of its citizens under the law which binds all nations and determines +their rights; and that, therefore, the whole American nation never had +any authority to create a judicial power vested with any such +jurisdiction. _See_ Edye _v._ Robertson (Head Money Cases), 112 U.S. +580, 598 (1884). The law of nations seems of itself to presuppose a +tribunal of nations with coextensive jurisdiction. Thus there is no +reason why a completely independent nation like the United States may +not consent to be bound by the decisions of such a tribunal without any +derogation from its rightful sovereignty. And if "the authority of the +United States" is the authority of the nation in the field of foreign +relations--if the National Government has constitutional powers +coextensive with its international responsibilities--we must conclude +that such consent can be validly given through the existing +treaty-making power. _See_ Favoring Membership of the United States in +the Permanent Court of International Justice, H. Rept. 1569, 68th Cong., +2d sess. + +[208] 5 Pet. 1 (1831). + +[209] 6 Pet. 515 (1832). + +[210] Ibid. 558. + +[211] Holden _v._ Joy, 17 Wall. 211, 242 (1872); United States _v._ 43 +Gallons of Whiskey, etc., 93 U.S. 188, 192 (1876); Dick _v._ United +States, 208 U.S. 340, 355-356 (1908). + +[212] The New York Indians, 5 Wall. 761 (1867). + +[213] The Kansas Indians, 5 Wall. 737, 757 (1867). + +[214] United States _v._ 43 Gallons of Whiskey, etc., 93 U.S. 188, 196 +(1876). + +[215] The Cherokee Tobacco, 11 Wall. 616 (1871). _See also_ Ward _v._ +Race Horse, 163 U.S. 504, 511 (1896); and Thomas _v._. Gay, 169 U.S. +264, 270 (1898). + +[216] 16 Stat. 544, 566; Rev. Stat Sec. 2079. + +[217] Ward _v._ Race Horse, 163 U.S. 504 (1896). + +[218] Lone Wolf _v._ Hitchcock, 187 U.S. 553 (1903). + +[219] Cherokee Nation _v._ Southern Kansas R. Co., 135 U.S. 641 (1890). + +[220] The Cherokee Tobacco, 11 Wall. 616, 621 (1871). + +[221] Choate _v._ Trapp, 224 U.S. 665, 677-678 (1912); Jones _v._ +Meehan, 175 U.S. 1 (1899). + +[222] For an effort to distinguish "treaties," "compacts," "agreements," +"conventions," etc., _see_ Chief Justice Taney's opinion in Holmes _v._ +Jennison, 14 Pet. 540, 570-572 (1840). Vattel is Taney's chief reliance. + +[223] Story, Comm. Sec. 1403. The President has the power in the absence +of legislation by Congress, to control the landing of foreign cables on +the shores of the United States, 22 Op. Atty. Gen. 13 and 408 (1898, +1899). + +[224] Crandall, Treaties (2d ed.) Chap. VIII. _See also_ McClure, +International Executive Agreements (Columbia University Press, 1941), +Chaps. I and II. + +[225] Crandall, 102; McClure, 49-50. + +[226] Crandall, 104-106; McClure, 81-82. + +[227] Tucker _v._ Alexandroff, 183 U.S. 424, 435 (1902). + +[228] Ibid. 467. The first of these conventions, signed July 29, 1882, +had asserted its constitutionality in very positive terms. "The power to +make and enforce such a temporary convention respecting its own +territory is a necessary incident to every national government, and +adheres where the executive power is vested. Such conventions are not +treaties within the meaning of the Constitution, and, as treaties, +supreme law of the land, conclusive on the courts, but they are +provisional arrangements, rendered necessary by national differences +involving the faith of the nation and entitled to the respect of the +courts. They are not a casting of the national will into the firm and +permanent condition of law, and yet in some sort they are for the +occasion an expression of the will of the people through their political +organ, touching the matters affected; and to avoid unhappy collision +between the political and judicial branches of the government, both +which are in theory inseparably all one, such an expression to a +reasonable limit should be followed by the courts and not opposed, +though extending to the temporary restraint or modification of the +operation of existing statutes. Just as here, we think, this particular +convention respecting San Juan should be allowed to modify for the time +being the operation of the organic act of this Territory [Washington] so +far forth as to exclude to the extent demanded by the political branch +of the government of the United States, in the interest of peace, all +territorial interference for the government of that island." Wright, The +Control of American Foreign Relations, 239, quoting Watts _v._ United +States, 1 Wash. Terr., 288, 294 (1870). + +[229] Quincy Wright, The Control of American Foreign Relations (New +York, 1922), 245. + +[230] Crandall, 103-104. + +[231] Ibid. 104. + +[232] Willoughby, On the Constitution, I, 539. + +[233] Wallace McClure, International Executive Agreements (Columbia +University Press, 1941), 98. + +[234] Tyler Dennett, Roosevelt and the Russo-Japanese War (New York, +1925), 112-114. + +[235] McClure, International Executive Agreements, 98-99. + +[236] Ibid. 99-100. + +[237] Willoughby, On the Constitution, I, 547. + +[238] Wallace McClure, International Executive Agreements (Columbia +University Press, 1941), 97, 100. + +[239] McClure, International Executive Agreements, 141. + +[240] 301 U.S. 324 (1937). + +[241] Ibid. 330-332. + +[242] 315 U.S. 203 (1942). + +[243] Ibid. 229-230. Citing The Federalist, No. 64. + +[244] Ibid. 230. Citing Guaranty Trust Co. _v._ United States, 304 U.S. +126, 143 (1938). + +[245] Ibid. 230-231. Citing Nielsen _v._ Johnson, 279 U.S. 47 (1929). + +[246] Ibid. 231. Citing Santovincenzo _v._ Egan, 284 U.S. 30 (1931); +United States _v._ Belmont, 301 U.S. 324 (1937). + +[247] Ibid. 233-234. Citing Oetjen _v._ Central Leather Co., 246 U.S. +297, 304 (1918). + +[248] 315 U.S. at 228-234 _passim_. Chief Justice Stone and Justice +Roberts dissented, chiefly on the question of the interpretation of the +Litvinov Agreement, citing Guaranty Trust Co. _v._ United States, Note 3 +above. + +[249] McClure, p. 391. + +[250] Ibid. 391-393; United States Department of State Bulletin, +September 7, 1940, pp. 199-200. + +[251] McClure, 394-403; _cf._ The Constitution, article IV, section 3, +clause 2. When President John Adams signed a deed conveying property for +a legation to the Queen of Portugal, he was informed by his Attorney +General that only Congress was competent to grant away public property. +_See_ W.B. Bryan, A History of the National Capitol From Its Foundation +Through the Period of the Adoption of the Organic Act, I, 328-329; 1 +American State Papers, Misc., 334. _See also_ Chief Justice Hughes, for +the Court, in Ashwander _v._ Tennessee Valley Authority, 297 U.S. 288, +330 (1936). + +[252] 4 State Department Bulletin, April 12, 1941, pp. 443-447. + +[253] What purports to be the correct text of these agreements was +published in the New York Times of March 11, 1947. The joint statement +by the United States, Great Britain, and France on arms aid for the +Middle East which was released by the White House on May 25, 1950 (_See_ +A.P. dispatches of that date) bears the earmarks of an executive +agreement. And the same may be said of the following communique issued +by the North Atlantic Council at the close of its Sixth Session at +Brussels on December 19, 1950. + +"The North Atlantic Council acting on recommendations of the Defense +Committee today completed the arrangements initiated in September last +for the establishment in Europe of an integrated force under centralized +control and command. This force is to be composed of contingents +contributed by the participating governments. + +"The Council yesterday unanimously decided to ask the President of the +United States to make available General of the Army Dwight D. Eisenhower +to serve as Supreme Commander. Following receipt this morning of a +message from the President of the United States that he had made General +Eisenhower available, the Council appointed him. He will assume his +command and establish his headquarters in Europe early in the New Year. +He will have the authority to train the national units assigned to his +command and to organize them into an effective integrated defense force. +He will be supported by an international staff drawn from the nations +contributing to the force. + +"The Council, desiring to simplify the structure of the North Atlantic +Treaty Organization in order to make it more effective, asked the +Council Deputies to initiate appropriate action. In this connection the +Defense Committee, meeting separately on December 18th, had already +taken action to establish a defense production board with greater powers +than those of the Military Production and Supply Board which it +supersedes. The new board is charged with expanding and accelerating +production and with furthering the mutual use of the industrial +capacities of the member nations. + +"The Council also reached unanimous agreement regarding the part which +Germany might assume in the common defense. The German participation +would strengthen the defense of Europe without altering in any way the +purely defensive character of the North Atlantic Treaty Organization. +The Council invited the Governments of France, the United Kingdom and +the United States to explore the matter with the Government of the +German Federal Republic. + +"The decisions taken and the measures contemplated have the sole purpose +of maintaining and consolidating peace. The North Atlantic nations are +determined to pursue this policy until peace is secure." Department of +State release to the press of December 19, 1950 (No. 1247). + +[254] McClure, International Executive Agreements, 38; 1 Stat. 232-239; +reenacted in 1 Stat. 354, 366. + +[255] McClure, 78-81; Crandall, 127-131. + +[256] Crandall, 121-127. + +[257] 48 Stat. 943. Section 802 of the Civil Aeronautics Act of 1938 (52 +Stat. 973) "clearly anticipates the making of agreements with foreign +countries concerning civil aviation." 40 Op. Atty. Gen. 451, 452 (1946). + +[258] 143 U.S. 649 (1892). + +[259] Ibid. 694. + +[260] 224 U.S. 583, 596 (1912). + +[261] Ibid. 601. + +[262] 55 Stat. 31. One specific donation was of a destroyer to the Queen +of Holland, a refugee at the time in Great Britain. + +[263] 42 Stat. 363, 1325, 1326-1327; extended by 43 Stat. 763. + +[264] _See_ Corwin, The President, Office and Powers (3d ed.) 264 and +notes. + +[265] 48 Stat. 1182. + +[266] McClure, 13-14. + +[267] Ibid. 14. + +[268] "There have been numerous instances in which the Senate has +approved treaties providing for the submission of specific matters to +arbitration, leaving it to the President to determine exactly the form +and scope of the matter to be arbitrated and to appoint the arbitrators. +Professor J.B. Moore, in the article to which reference has already been +made, enumerates thirty-nine instances in which provision has thus been +made for the settlement of pecuniary claims. Twenty of these were claims +against foreign governments, fourteen were claims against both +governments, and five against the United States alone." Willoughby, On +the Constitution, I, 543. + +[269] A Decade of American Foreign Policy, S. Doc. 123, 81st Cong., 1st +sess., 126. + +[270] A Decade of American Foreign Policy, S. Doc. 123, 81st Cong., 1st +sess., 158. + +[271] United States _v._ Hartwell, 6 Wall. 385, 393 (1868). + +[272] 7 Op. Atty. Gen. 168 (1855). + +[273] It was so assumed by Senator William Maclay. _See_ Journal of +William Maclay (New York, 1890), 109-110. + +[274] 5 Benton, Abridgment of the Debates of Congress, 90-91; 3 Letters +and Other Writings of James Madison (Philadelphia, 1867), 350-353, +360-371. + +[275] 10 Stat. 619, 623. + +[276] 7 Op. Atty. Gen. 220. + +[277] 35 Stat. 672; _see also_ The act of March 1, 1893, 27 Stat. 497, +which purported to authorize the President to appoint ambassadors in +certain cases. + +[278] 22 U.S.C. Sec. 1-231. + +[279] 11 Benton, Abridgement of the Debates of Congress, 221-222. + +[280] S. Misc. Doc. 109, 50th Cong., 1st sess., 104. + +[281] S. Rept. 227, 53d Cong., 2d sess., 25. At the outset of our +entrance into World War I President Wilson dispatched a mission to +"Petrograd," as it was then called, without nominating the Members of it +to the Senate. It was headed by Mr. Elihu Root, with "the rank of +ambassador," while some of his associates bore "the rank of envoy +extraordinary." + +[282] _See_ George Frisbie Hoar, Autobiography, II, 48-51. + +[283] Justice Brandeis, dissenting in Myers _v._ United States, 272 U.S. +52, 264-274 (1926). + +[284] _See_ data in Corwin, The President, Office and Powers (3d ed.) +418. Congress has repeatedly designated individuals, sometimes by name, +more frequently by reference to a particular office, for the performance +of specified acts or for posts of a nongovernmental character; e.g., to +paint a picture (Jonathan Trumbull), to lay out a town, to act as +Regents of Smithsonian Institution, to be managers of Howard Institute, +to select a site for a post office or a prison, to restore the +manuscript of the Declaration of Independence, to erect a monument at +Yorktown, to erect a statue of Hamilton, and so on and so forth. 42 +Harvard Law Review, 426, 430-431. In his message of April 13, 1822, +President Monroe stated the thesis that, "as a general principle, * * * +Congress have no right under the Constitution to impose any restraint by +law on the power granted to the President so as to prevent his making a +free selection of proper persons for these [newly created] offices from +the whole body of his fellow-citizens." Messages and Papers of the +Presidents, II, 698, 701. The statement is ambiguous, but its apparent +intention is to claim for the President unrestricted power in +determining who are proper persons to fill newly created offices. + +[285] 19 Stat. 143, 169 (1876). + +[286] In Ex parte Curtis, 106 U.S. 371 (1882), Chief Justice Waite +reviews early Congressional legislation regulative of conduct in office. +"The act now in question is one regulating in some particulars the +conduct of certain officers and employes of the United States. It rests +on the same principle as that originally passed in 1789 at the first +session of the first Congress, which makes it unlawful for certain +officers of the Treasury Department to engage in the business of trade +or commerce, or to own a sea vessel, or to purchase public lands or +other public property, or to be concerned in the purchase or disposal of +the public securities of a State, or of the United States (Rev. Stat., +sect. 243); and that passed in 1791, which makes it an offence for a +clerk in the same department to carry on trade or business in the funds +or debts of the States or of the United States, or in any kind of public +property (id., sect. 244); and that passed in 1812, which makes is +unlawful for a judge appointed under the authority of the United States +to exercise the profession of counsel or attorney, or to be engaged in +the practice of the law (id., sect. 713); and that passed in 1853, which +prohibits every officer of the United States or person holding any place +of trust or profit, or discharging any official function under or in +connection with any executive department of the government of the United +States, or under the Senate or House of Representatives, from acting as +an agent or attorney for the prosecution of any claim against the United +States (id., sect. 5498); and that passed in 1863, prohibiting members +of Congress from practicing in the Court of Claims (id., sect. 1058); +and that passed in 1867, punishing, by dismissal from service, an +officer or employe of the government who requires or requests any +workingman in a navy-yard to contribute or pay any money for political +purposes (id., sect. 1546); and that passed in 1868, prohibiting members +of Congress from being interested in contracts with the United States +(id., sect. 3739); and another, passed in 1870, which provides that no +officer, clerk, or employe in the government of the United States shall +solicit contributions from other officers, clerks, or employes for a +gift to those in a superior official position, and that no officials or +[clerical superiors shall receive any gift or] present as a contribution +to them from persons in government employ getting a less salary than +themselves, and that no officer or clerk shall make a donation as a gift +or present to any official superior (id., sect. 1784). Many others of a +kindred character might be referred to, but these are enough to show +what has been the practice in the Legislative Department of the +Government from its organization, and, so far as we know, this is the +first time the constitutionality of such legislation has ever been +presented for judicial determination." Ibid. 372-373. + +[287] 5 U.S.C. Sec. 631-642. + +[288] 54 Stat. 767, 771 (1940). + +[289] 330 U.S. 75 (1947). + +[290] 18 U.S.C. 611. + +[291] _See_ Bills Listed in Index to Digest of Public General Bills, +79th Cong., 2d sess. + +[292] 12 Fed Reg. 1935. + +[293] Shoemaker _v._ Unite States, 147 U.S. 282, 301 (1893). + +[294] United States _v._ Germaine, 99 U.S. 508 (1879) is the leading +case. For further citations _see_ Auffmordt _v._ Hedden, 137 U.S. 310, +327 (1890). The Court will, nevertheless, be astute to ascribe to a head +of department an appointment made by an inferior of such head. Nishimura +Ekiu _v._ United States, 142 U.S. 651, 663 (1892). For the view that +there is an intrinsic difference between a "public office" and a "public +employment" _see_ Mechem, Public Officers, pp. 3-5. + +[295] Ex parte Hennen, 13 Pet. 230, 257-258 (1839); United States _v._ +Germaine, 99 U.S. 508, 509 (1879). The statement on the point is in both +instances obiter. + +[296] Ex parte Siebold, 100 U.S. 371, 397 (1880). + +[297] "They [the clauses of the Constitution] seem to contemplate three +distinct operations: 1st. The nomination. This is the sole act of the +President, and is completely voluntary. 2d. The appointment. This is +also the act of the President, and is also a voluntary act, though it +can only be performed by and with the advice and consent of the Senate. +3d. The commission. To grant a commission to a person appointed, might, +perhaps, be deemed a duty enjoined by the constitution. 'He shall,' says +that instrument, 'commission all the officers of the United States.'" +Marbury _v._ Madison, 1 Cr. 137, 155-156 (1803). Marshall's statement +that the appointment "is the act of the President," conflicts with the +more generally held, and sensible view that when an appointment is made +with its consent, the Senate shares the appointing power. 1 Kent's Comm. +310; 2 Story Comm. Sec. 1539; Ex parte Hennen, 13 Pet. 225, 259 (1839). + +[298] 3 Op. Atty. Gen. 188 (1837). + +[299] 2 Story Comms., Sec. 1531; 5 Writings of Jefferson (Ford, ed.), +161 (1790); 9 Writings of Madison (Hunt, ed.), 111-113 (1822). + +[300] 286 U.S. 6 (1932). + +[301] Corwin, The President, Office and Powers (3d ed.), 92. + +[302] Marbury _v._ Madison, 1 Cr. 137, 157-158, 182 (1803). + +[303] 12 Op. Atty. Gen. 306 (1867). + +[304] It should be remembered that, for various reasons, Marbury got +neither commission nor office. The case assumes, in fact, the necessity +of possession of his commission by the appointee. + +[305] Opins. Atty. Gen. 631 (1823); 2 ibid. 525 (1832); 3 ibid. 673 +(1841); 4 ibid. 523 (1846); 10 ibid. 356 (1862); 11 ibid. 179 (1865); 12 +ibid. 32 (1866); 12 ibid. 455 (1868); 14 ibid. 563 (1875); 15 ibid. 207 +(1877); 16 ibid. 523 (1880); 18 ibid. 28 (1884); 19 ibid. 261 (1889); 26 +ibid. 234 (1907); 30 ibid. 314 (1914); 33 ibid. 20 (1921). In 4 Opins. +Atty. Gen. 361, 363 (1845), the general doctrine was held not to apply +to a yet unfilled office which was created during the previous session +of Congress, but this distinction is rejected in 12 ibid. 455 (1868); 18 +ibid. 28; and 19 ibid. 261. + +[306] 23 Opins. Atty. Gen. 599 (1901); 22 ibid. 82 (1898). A "recess" +may, however, be merely "constructive," as when a regular session +succeeds immediately upon a special session. It was this kind of +situation that gave rise to the once famous _Crum_ incident. _See_ +Willoughby, III, 1508-1509. + +[307] 5 U.S.C. Sec. 56. + +[308] 6 Opins. Atty. Gen. 358 (1854); 12 ibid. 41 (1866); 25 ibid. 259 +(1904); 28 ibid. 95 (1909). + +[309] 272 U.S. 52. + +[310] 19 Stat. 78, 80. + +[311] 272 U.S. 163-164. + +[312] The reticence of the Constitution respecting removal left room for +four possibilities, _first_, the one suggested by the common law +doctrine of "estate in office," from which the conclusion followed that +the impeachment power was the only power of removal intended by the +Constitution; _second_, that the power of removal was an incident of the +power of appointment and hence belonged, at any rate in the absence of +legal or other provision to the contrary, to the appointing authority; +_third_, that Congress could, by virtue of its power "to make all laws +which shall be necessary and proper," etc., determine the location of +the removal of power; _fourth_, that the President by virtue of his +"executive power" and his duty "to take care that the laws be faithfully +executed," possesses the power of removal over all officers of the +United States except judges. In the course of the debate on the act to +establish a Department of Foreign Affairs (later changed to Department +of State) all of these views were put forward, with the final result +that a clause was incorporated in the measure which implied, as pointed +out above, that the head of the department would be removable by the +President at his discretion. Contemporaneously and indeed until after +the Civil War, this action by Congress, in other words "the decision of +1789," was interpreted as establishing "a practical construction of the +Constitution" with respect to executive officers appointed without +stated terms. However, in the dominant opinion of those best authorized +to speak on the subject, the "correct interpretation" of the +Constitution was that the power of removal was always an incident of the +power of appointment, and that therefore in the case of officers +appointed by the President with the advice and consent of the Senate the +removal power was exercisable by the President only with the advice and +consent of the Senate. _See_ Hamilton in the Federalist No. 77; 1 Kent's +Comm. 310; 2 Story Comm. Sec. 1539 and 1544; Ex parte Hennen, 13 Pet. 225, +258-259 (1839). The doctrine of estate in office was countenanced by +Chief Justice Marshall in his opinion in Marbury _v._ Madison, 1 Cr. +137, 162-165 (1803), but has long been rejected. _See_ Crenshaw _v._ +United States, 134 U.S. 99, 108 (1890). The three remaining views are +treated by the Chief Justice, at some cost in terms of logic as well as +of history, as grist to his mill. + +[313] 272 U.S. at 134. + +[314] Annals of Congress, cols. 635-636. + +[315] 295 U.S. 602 (1935). The case is also styled Rathbun, Executor +_v._ United States, Humphrey having, like Myers before him, died in the +course of his suit for salary. + +[316] 295 U.S. at. 627-629, 631-632. Justice Sutherland's statement, +quoted above, that a Federal Trade Commissioner "occupies no place in +the executive department" (_See also_ to the same effect p. 630 of the +opinion) was not necessary to the decision of the case, was altogether +out of line with the same Justice's reasoning in Springer _v._ +Philippine Islands, 277 U.S. 189, 201-202 (1928), and seems later to +have caused the author of it much perplexity. _See_ Robert E. Cushman, +The Independent Regulatory Commissions (Oxford University Press, 1941), +447-448. As Professor Cushman adds: "Every officer and agency created by +Congress to carry laws into effect is an arm of Congress. * * * The term +may be a synonym; it is not an argument." Ibid. 451. + +[317] United States _v._ Perkins, 116 U.S. 483 (1886). + +[318] Parsons _v._ United States, 167 U.S. 324 (1897). + +[319] Shurtleff _v._ United States, 189 U.S. 311 (1903). + +[320] Blake _v._ United States, 103 U.S. 227 (1881); Quackenbush _v._ +United States, 177 U.S. 20 (1900); Wallace _v._ United States, 257 U.S. +541 (1922). + +[321] Morgan _v._ TVA, 28 F. Supp. 732 (1939), certiorari refused March +17, 1941. 312 U.S. 701, 702. + +[322] _See_ United Public Workers _v._ Mitchell, 330 U.S. 75 (1947); +_also_ Ex parte Curtis, 106 U.S. 371 (1882); and 39 Op. Atty. Gen. 145 +(1938). + +[323] 6 Op. Atty. Gen. 220 (1853); In re Neagle, 135 U.S. 1 (1890). + +[324] United States _v._ Lovett, 328 U.S. 303 (1946). + +[325] Messages and Papers of the Presidents, II, 847 (January 10, 1825). + +[326] _See_ 328 U.S. at 313. + +[327] In this connection the following colloquy between Attorney General +Lincoln and the Court in course of the proceedings in Marbury _v._ +Madison is of first importance: "Mr. Lincoln, attorney-general, having +been summoned, and now called, objected to answering. * * * On the one +hand he respected the jurisdiction of this court, and on the other he +felt himself bound to maintain the rights of the executive. He was +acting as secretary of state at the time when this transaction happened. +He was of opinion, and his opinion was supported by that of others whom +he highly respected, that he was not bound, and ought not to answer, as +to any facts which came officially to his knowledge while acting as +secretary of state. He did not think himself bound to disclose his +official transactions while acting as secretary of state; * * * The +court said, that if Mr. Lincoln wished time to consider what answers he +should make, they would give him time; but they had no doubt he ought to +answer. There was nothing confidential required to be disclosed. If +there had been he was not obliged to answer it; and if he thought that +any thing was communicated to him in confidence he was not bound to +disclose it; * * *" 1 Cr. 137, 143-145 (1803). + +[328] The following letter, dated April 30, 1941, from Attorney General +Jackson to Hon. Carl Vinson, Chairman of the House Committee on Naval +Affairs is of interest in this connection: "My Dear Mr. Vinson: I have +your letter of April 23, requesting that your committee be furnished +with all Federal Bureau of Investigation reports since June 1939, +together with all future reports, memoranda, and correspondence of the +Federal Bureau of Investigation, or the Department of Justice, in +connection with 'investigations made by the Department of Justice +arising out of strikes, subversive activities in connection with labor +disputes, or labor disturbances of any kind in industrial establishments +which have naval contracts, either as prime contractors or +subcontractors.' Your request to be furnished reports of the Federal +Bureau of Investigation is one of the many made by congressional +committees. I have on my desk at this time two other such requests for +access to Federal Bureau of Investigation files. The number of these +requests would alone make compliance impracticable, particularly where +the requests are of so comprehensive a character as those contained in +your letter. In view of the increasing frequency of these requests, I +desire to restate our policy at some length, together with the reasons +which require it. It is the position of this Department, restated now +with the approval of and at the direction of the President, that all +investigative reports are confidential documents of the executive +department of the Government, to aid in the duty laid upon the President +by the Constitution to 'take care that the laws be faithfully executed,' +and that congressional or public access to them would not be in the +public interest. + +"Disclosure of the reports could not do otherwise than seriously +prejudice law enforcement. Counsel for a defendant or prospective +defendant, could have no greater help than to know how much or how +little information the Government has, and what witnesses or sources of +information it can rely upon. This is exactly what these reports are +intended to contain. * * * + +"In concluding that the public interest does not permit general access +to Federal Bureau of Investigation reports for information by the many +congressional committees who from time to time ask it, I am following +the conclusions reached by a long line of distinguished predecessors in +this office who have uniformly taken the same view. Example of this are +to be found in the following letters, among others: + +"Letter of Attorney General Knox to the Speaker of the House, dated +April 27, 1904, declining to comply with a resolution of the House +requesting the Attorney General to furnish the House with all papers and +documents and other information concerning the investigation of the +Northern Securities case. + +"Letter of Attorney General Bonaparte to the Speaker of the House, dated +April 13, 1908, declining to comply with a resolution of the House +requesting the Attorney General to furnish to the House information +concerning the investigation of certain corporations engaged in the +manufacture of wood pulp or print paper. + +"Letter of Attorney General Wickersham to the Speaker of the House, +dated March 18, 1912, declining to comply with a resolution of the House +directing the Attorney General to furnish to the House information +concerning an investigation of the smelter trust. + +"Letter of Attorney General McReynolds to the Secretary to the +President, dated August 28, 1914, stating that it would be incompatible +with the public interest to send to the Senate in response to its +resolution, reports made to the Attorney General by his associates +regarding violations of law by the Standard Oil Co. + +"Letter of Attorney General Gregory to the President of the Senate, +dated February 23, 1915, declining to comply with a resolution of the +Senate requesting the Attorney General to report to the Senate his +findings and conclusions in the investigation of the smelting industry. + +"Letter of Attorney General Sargent to the chairman of the House +Judiciary Committee, dated June 8, 1926, declining to comply with his +request to turn over to the committee all papers in the files of the +Department relating to the merger of certain oil companies. * * * + +"This discretion in the executive branch has been upheld and respected +by the judiciary. The courts have repeatedly held that they will not and +cannot require the executive to produce such papers when in the opinion +of the executive their production is contrary to the public interests. +The courts have also held that the question whether the production of +the papers would be against the public interest is one for the executive +and not for the courts to determine." Mr. Jackson cites Marbury _v._ +Madison, 1 Cr. 137, 169 (1803); and more than a dozen other cases, +federal and State, most of which involved "privileged communications" in +ordinary court proceedings. The doctrine of the equality of the three +departments is also invoked by him.--10 Op. Atty. Gen. 45. + +[329] _See_ Norman J. Small, Some Presidential Interpretations of the +Presidency (Johns Hopkins Press, 1932); Henry C. Black, The Relation of +the Executive Power to Legislation (Princeton, 1919); W.E. Binkley, The +President and Congress (New York, 1947); Edward S. Corwin, The +President, Office and Powers (3d ed., 1948), Chaps. I and VII, _passim_. + +[330] The first Harrison, Polk, Taylor, and Fillmore all fathered +sentiments to this general effect. _See_ Messages and Papers of the +President, IV, 1864; V, 2493; VI, 2513-2519, 2561-2562, 2608, 2615. + +[331] Note 1, above. [Transcriber's Note: Reference is to Footnote 329, +above.] + +[332] Charles Warren, Presidential Declarations of Independence, 10 +Boston University Law Review, No. 1 (January, 1930); Willoughby, On the +Constitution, III, 1488-1492. + +[333] 7 Op. Atty. Gen. 186, 209 (1855). + +[334] 5 Moore, International Law Digest, 15-19. + +[335] 4 Ibid. 473-548; 5 Ibid. 19-32. + +[336] Opinion on the Question Whether the Senate Has the Right to +Negative the Grade of Persons Appointed by the Executive to Fill Foreign +Missions, April 24, 1790; Padover, The Complete Jefferson (New York, +1943), 138. + +[337] 4 Moore, International Law Digest, 680-681. + +[338] This measure, amended by the act of March 4, 1909 (35 Stat. 1088), +is now 18 U.S.C.A. Sec. 953. + +[339] _See_ Memorandum on the History and Scope of the Laws Prohibiting +Correspondence with a Foreign Government, S. Doc. 696, 64th Cong., 2d +sess., (1917). The author was Mr. Charles Warren, then Assistant +Attorney General. Further details concerning the observance of the +"Logan" Act are given in Corwin, The President, Office and Powers (3d +ed.) 223-224, 469-470. Early in October, 1950 President Harold Stassen +of the University of Pennsylvania announced that he had written Premier +Stalin offering to confer with him respecting issues between the two +governments. + +[340] Benton Abridgment of the Debates of Congress, 466-467. + +[341] S. Doc. 56, 54th Cong., 2d sess., (1897). + +[342] The Federalist, containing the Letters of Pacificus and Helvidius +(New ed., 1852) 444; _see also_ p. 493, n. 1. [Transcriber's Note: +Reference is to Footnote 344, below.] + +[343] The Federalist No. 69, where he wrote: "The president is also to +be authorized to receive ambassadors, and other public ministers. This, +though it has been a rich theme of declamation, is more a matter of +dignity than of authority. It is a circumstance which will be without +consequence in the administration of the government; and it was far more +convenient that it should be arranged in this manner, than that there +should be a necessity of convening the legislature, or one of its +branches, upon every arrival of a foreign minister; though it were +merely to take the place of a departed predecessor." Ibid. 518. + +[344] "Letters of Pacificus," 7 Works (Hamilton ed.) 76, 82-83. + +[345] Moore, International Law Digest, IV, 680-681. + +[346] The Federalist containing the Letters of Pacificus and Helvidius +(New ed. 1852) 445-446. + +[347] Moore, International Law Digest, I, 243-244. The course of the +Monroe Administration in inviting the cooperation of Congress in +connection with recognition of the Spanish-American Republics, although +it was prompted mainly by the consideration that war with Spain might +result, was nonetheless opposed by Secretary of State John Quincy Adams. +"Instead," said he, "of admitting the Senate or House of Representatives +to any share in the act of recognition, I would expressly avoid that +form of doing it which would require the concurrence of those bodies. It +was I had no doubt, by our Constitution an act of the Executive +authority. General Washington had exercised it in recognizing the French +Republic by the reception of Mr. Genet. Mr. Madison had exercised it by +declining several years to receive, and by finally receiving, Mr. Onis; +and in this instance I thought the Executive ought carefully to preserve +entire the authority given him by the Constitution, and not weaken it by +setting the precedent of making either House of Congress a party to an +act which it was his exclusive right and duty to perform. Mr. Crawford +said he did not think there was anything in the objection to sending a +minister on the score of national dignity, and that there was a +difference between the recognition of a change of government in a nation +already acknowledged as sovereign, and the recognition of a new nation +itself. He did not, however, deny, but admitted, that the recognition +was strictly within the powers of the Executive alone, and I did not +press the discussion further.'" Ibid., 244-245; citing Memoirs of John +Quincy Adams, IV, 205-206. + +[348] S. Doc. 56, 54th Cong., 2d sess., pp. 20-22. + +[349] Said Senator Nelson of Minnesota: "The President has asked us to +give him the right to make war to expel the Spaniards from Cuba. He has +asked us to put that power in his hands; and when we are asked to grant +that power--the highest power given under the Constitution--we have the +right, the intrinsic right, vested in us by the Constitution, to say how +and under what conditions and with what allies that war-making power +shall be exercised." 31 Cong. Record, Pt. 4, p. 3984. + +[350] _See_ in this connection a long list of resolutions or bills +originating in the House of Representatives appertaining to foreign +relations. H. Rept. 1569 ("Confidential"), 68th Cong., 2d sess. +(February 24, 1925). + +[351] _See_ A Decade of American Foreign Policy, S. Doc. 123, 81st +Cong., 1st sess., p. 158. + +[352] President Truman's Statement of June 28, 1950, A.P. release: "The +Security Council called upon all members of the United Nations to render +every assistance to the United Nations in the execution of this +resolution. + +"In these circumstances I have ordered United States air and sea forces +to give the Korean Government troops cover and support. + +"The attack upon Korea makes it plain beyond all doubt that communism +has passed beyond the use of subversion to conquer independent nations +and will now use armed invasion and war. + +"It has defied the orders of the Security Council of the United Nations +issued to preserve international peace and security. In these +circumstances the occupation of Formosa by Communist forces would be a +direct threat to the security of the Pacific area and to United States +forces performing their lawful and necessary functions in that area. + +"Accordingly I have ordered the Seventh Fleet to prevent any attack on +Formosa. As a corollary of this action I am calling upon the Chinese +Government on Formosa to cease all air and sea operations against the +mainland. The Seventh Fleet will see that this is done. The +determination of the future status of Formosa must await the restoration +of security in the Pacific, a peace settlement with Japan, or +consideration by the United Nations. + +"I have also directed that United States forces in the Philippines be +strengthened and that military assistance to the Philippine Government +be accelerated. + +"I have similarly directed acceleration in the furnishing of military +assistance to the forces of France and the associated states in +Indo-China and the dispatch of a military mission to provide close +working relations with those forces." + +[353] Messages and Papers of the Presidents, XVII, (1914), 7934. + +[354] 55 Stat. 31; 22 U.S.C. (1940), Supp. IV, Sec. 411-413. + +[355] James F. Green, The President's Control of Foreign Policy, Foreign +Policy Reports (April 1, 1939), 17-18; Corwin, The President, Office and +Powers (3d ed.), 224-235; 463-465, 473-474. + +[356] 2 Pet. 253 (1829). + +[357] Ibid. 308. + +[358] 13 Pet. 415 (1839). + +[359] Ibid. 420. + +[360] Foster _v._ Neilson, supra. + +[361] Williams _v._ Suffolk Ins. Co., 13 Pet. 415 (1839). + +[362] United States _v._ Palmer, 3 Wheat. 610 (1818). + +[363] Doe _v._ Braden, 16 How. 636, 657 (1853). + +[364] Jones _v._ United States, 137 U.S. 202 (1890); Oetjen _v._ Central +Leather Co., 246 U.S. 297 (1918). + +[365] In re Baiz, 135 U.S. 403 (1890). + +[366] Neely _v._ Henkel, 180 U.S. 109 (1901). + +[367] Terlinden _v._ Ames, 184 U.S. 270 (1902); Charlton _v._ Kelly, 229 +U.S. 447 (1913). + +[368] 333 U.S. 103 (1948). + +[369] 49 U.S.C. Sec. 601. + +[370] Ibid. Sec. 646. + +[371] Chicago & S. Airlines _v._ Waterman S.S. Corp., 333 U.S. 103, 111 +(1948). _See also_ Oetjen _v._ Central Leather Co., 246 U.S. 297 (1918); +Ricaud _v._ American Metal Co., 246 U.S. 304 (1918); and Compania +Espanola de Navegacion Maritima, S.A. _v._ The Navemar, 303 U.S. 68, 74 +(1938). In this last case the Court declared: "The vessel of a friendly +government in its possession and service is a public vessel, even though +engaged in the carriage of merchandise for hire, and as such is immune +from suit in the courts of admiralty of the United States. * * * It is +open to a friendly government to assert that such is the public status +of the vessel and to claim her immunity from suit, either through +diplomatic channels or, if it chooses, as a claimant in the courts of +the United States. If the claim is recognized and allowed by the +executive branch of the government, it is then the duty of the courts to +release the vessel upon appropriate suggestion by the Attorney General +of the United States, or other officer acting under his direction. * * * +The foreign government is also entitled as of right upon a proper +showing, to appear in a pending suit, there to assert its claim to the +vessel, and to raise the jurisdictional question in its own name or that +of its accredited and recognized representative." Similarly, it has been +held that courts may not exercise their jurisdiction by the seizure and +detention of the property of a friendly sovereign, so as to embarrass +the executive arm of the government in conducting foreign relations. Ex +parte Republic of Peru, 318 U.S. 578 (1943). + +[372] 335 U.S. 160 (1948). + +[373] Ibid. 167, 170. Four Justices dissented, by Justice Black, who +said: "The Court * * * holds, as I understand its opinion, that the +Attorney General can deport him whether he is dangerous or not. The +effect of this holding is that any unnaturalized person, good or bad, +loyal or disloyal to this country, if he was a citizen of Germany before +coming here, can be summarily seized, interned and deported from the +United States by the Attorney General, and that no court of the United +States has any power whatever to review, modify, vacate, reverse, or in +any manner affect the Attorney General's deportation order. * * * I +think the idea that we are still at war with Germany in the sense +contemplated by the statute controlling here is a pure fiction. +Furthermore, I think there is no act of Congress which lends the +slightest basis to the claim that after hostilities with a foreign +country have ended the President or the Attorney General, one or both, +can deport aliens without a fair hearing reviewable in the courts. On +the contrary, when this very question came before Congress after World +War I in the interval between the Armistice and the conclusion of formal +peace with Germany, Congress unequivocally required that enemy aliens be +given a fair hearing before they could be deported." Ibid. 174-175. _See +also_ Woods _v._ Miller, 333 U.S. 138 (1948), where the continuation of +rent control under the Housing and Rent Act of 1947, enacted after the +termination of hostilities was unanimously held to be a valid exercise +of the war power, but the constitutional question raised was asserted to +be a proper one for the Court. Said Justice Jackson, in a concurring +opinion: "Particularly when the war power is invoked to do things to the +liberties of people, or to their property or economy that only +indirectly affect conduct of the war and do not relate to the management +of the war itself, the constitutional basis should be scrutinized with +care." Ibid. 146-147. + +[374] 7 Op. Atty. Gen. 453, 464-465 (1855). + +[375] 9 Stat. 102 (1846); 20 U.S.C. Sec. 41 and 48. + +[376] _Cf._ 2 Stat. 78. The provision has long since dropped out of the +statute book. + +[377] Runkle _v._ United States, 122 U.S. 543 (1887). + +[378] _Cf._ In re Chapman, 166 U.S. 661, 670-671 (1897), where it is +held that presumptions in favor of official action "preclude collateral +attack on the sentences of courts-martial." _See also_ United States +_v._ Fletcher, 148 U.S. 84, 88-89 (1893); and Bishop _v._ United States, +197 U.S. 334, 341-342 (1905); both of which in effect repudiate Runkle +_v._ United States. + +[379] "The President, in the exercise of his executive powers under the +Constitution, may act through the head of the appropriate executive +department. The heads of departments are his authorized assistants in +the performance of his executive duties, and their official acts, +promulgated in the regular course of business, are presumptively his +acts." Wilcox _v._ Jackson ex dem McConnel, 13 Pet. 498, 513 (1839). +_See also_, United States _v._ Eliason, 16 Pet. 291 (1842); Williams +_v._ United States, 1 How. 290, 297 (1843); United States _v._ Jones, 18 +How. 92, 95 (1856); United States _v._ Clarke (Confiscation Cases), 20 +Wall. 92 (1874); United States _v._ Farden, 99 U.S. 10 (1879); Wolsey +_v._ Chapman, 101 U.S. 755 (1880). + +[380] 1 How. 290 (1843). + +[381] 3 Stat. 723 (1823). + +[382] 1 How. at 297-298. + +[383] "It is manifestly impossible for the President to execute every +duty, and every detail thereof, imposed upon him by the Congress. The +courts have recognized this and have further recognized that he usually +and properly acts through the several executive departments. Every +reasonable presumption of validity is to be indulged with respect to the +performance by the head of a department of a duty imposed upon the +President and executed by the department head ostensibly in behalf of +the President. Nevertheless, the authorities indicate that the President +cannot, without statutory authority, delegate a discretionary duty, +relieving himself of all responsibility, so that the duty when performed +will not be his act but wholly the act of another. Williams _v._ United +States, 1 How. 290, 297 (1843); Runkle _v._ United States, 122 U.S. 543, +557 (1887); United States _v._ Fletcher, 148 U.S. 84, 88 (1893); French +_v._ Weeks, 259 U.S. 326, 334 (1922)"; 38 Op. Atty. Gen. 457-459 (1936). + +[384] 1 Annals of Congress, cols. 515-516. + +[385] Ibid. cols. 635-636. + +[386] 1 Cr. 137 (1803). + +[387] Ibid. 165-166. + +[388] Op. Atty. Gen. 624 (1823). + +[389] Messages and Papers of the Presidents, III, 1288. + +[390] Ibid. 1304. + +[391] 12 Pet. 524 (1838). + +[392] Ibid. 610. + +[393] 272 U.S. 52 (1926); 295 U.S. 602 (1935). + +[394] Bruce Wyman, The Principles of the Administrative Law Governing +the Relations of Public Officers (St. Paul, 1903), 231-232. + +[395] United States _v._ Eliason, 16 Pet. 291, 301-302 (1842); Kurtz +_v._ Moffitt, 115 U.S. 487, 503 (1885); Smith _v._ Whitney, 116 U.S. +167, 180-181 (1886). + +[396] 135 U.S. 1 (1890). + +[397] Ibid. 64. The phrase "a law of the United States" came from the +act of March 2, 1833 (4 Stat. 632). However, in 28 U.S.C. 2241 (c) (2), +as it stands following the amendment of May 24, 1949, c. 139, the phrase +is replaced by the term an act of Congress, thereby eliminating the +basis of the holding in In re Neagle. + +[398] 236 U.S. 459 (1915); Mason _v._ United States, 260 U.S. 545 +(1923). + +[399] Rev. Stat. Sec. 5298; 50 U.S.C. Sec. 202. + +[400] 1 Stat. 264 (1792); 1 Stat. 424 (1795); 2 Stat. 443 (1807); 12 +Stat. 281 (1861). + +[401] 12 Wheat. 19 (1827). + +[402] Ibid. 31-32. + +[403] "Federal Aid in Domestic Disturbances," S. Doc. 209, 59th Cong., 2 +sess., p. 51 (1907). + +[404] Op. Atty. Gen. 466 (1854). By the Posse Comitatus Act of 1878 (20 +Stat. 152) it was provided that "* * * it shall not be lawful to employ +any part of the Army of the United States, as a _posse comitatus_, or +otherwise, for the purpose of executing the laws, except in such cases +and under such circumstances as such employment of said force may be +expressly authorized by the Constitution or by act of Congress * * *" +The effect of this prohibition, however, was largely nullified by a +ruling of the Attorney General "that by Revised Statutes Sec. 5298 and +5300, the military forces, under the direction of the President, could +be used to assist a marshal. 16 Op. Atty. Gen. 162." Bennett Milton +Rich, The Presidents and Civil Disorder (The Brookings Institution, +1941), 196 fn. 21. + +[405] 12 Stat (App.) 1258. + +[406] 212 U.S. 78 (1909). + +[407] In re Debs, 158 U.S. 565 (1895). + +[408] 212 U.S. at 84-85. _See also_ Sterling _v._ Constantin, 287 U.S. +378 (1932), which endorses Moyer _v._ Peabody, while emphasizing the +fact that it applies only to a condition of disorder. + +[409] 158 U.S. at 584, 586. Some years earlier, in the United States +_v._ San Jacinto Tin Co., the Courts sustained the right of the Attorney +General and of his assistants to institute suits simply by virtue of +their general official powers. "If," the Court said, "the United States +in any particular case has a just cause for calling upon the judiciary +of the country, in any of its courts, for relief * * *" in the question +of appealing to them "must primarily be decided by the Attorney General +* * *" and if restrictions are to be placed upon the exercise of this +authority it is for Congress to enact them. 125 U.S. 273, 279 (1888). +_Cf._ Hayburn's case, 2 Dall. 409 (1792), in which the Court rejected +Attorney General Randolph's contention that he had the right _ex +officio_ to move for a writ of _mandamus_ ordering the United States +circuit court for Pennsylvania to put the Invalid Pension Act into +effect. + +[410] 29 U.S.C. Sec. 101-105; 47 Stat. 70 (1932). + +[411] 330 U.S. 258. Here it was held that the Norris-LaGuardia Act did +not apply to a case brought by the government as operator, under the War +Labor Disputes Act of 1943, of a large proportion of the nation's soft +coal mines. In reaching this result Chief Justice Vinson invoked the +"rule that statutes which in general terms divest preexisting rights or +privileges will not be applied to the sovereign without express words to +that effect." Standing by itself these words would seem to save the Debs +case. But they do not stand by themselves, for the Chief Justice +presently added "that Congress, in passing the [Norris-LaGuardia] Act, +did not intend to permit the United States to continue to intervene by +injunction in purely private labor disputes. * * * where some public +interest was thought to have become involved," words which seem intended +to repudiate the Debs case. However, the Chief Justice goes on at once +to say, "* * * whether Congress so intended or not is a question +different from the one before us now." Ibid. 272, 278. + +[412] Public Law 101, 80th Cong., 1st sess., Sec. 206-210. + +[413] _See_ Louis Stark in New York Times, February 4, 1949; Labor +Relations, Hearings before the Senate Committee on Labor and Public +Welfare on S. 249, 81st Cong., 1st sess., pp. 263, 285, 295, 905, 911; +Julius and Lillian Cohen, The Divine Rights of Presidents, 29 Nebraska +Law Review, p. 416, March 1950. + +[414] 30 Op. Atty. Gen. 291, 292, 293. + +[415] Durand _v._ Hollins, 4 Blatch. 451, 454 (1860). + +[416] Published by World Peace Foundation (Boston, 1945) _See also_, for +the period 1811 to 1934, J. Reuben Clark's Memorandum as Solicitor of +the Department of State entitled Right to Protect Citizens in Foreign +Countries by Landing Forces (Government Printing Office, 1912, 1934). +The great majority of the landings were for "the simple protection of +American citizens in disturbed areas," and only about a third involved +belligerent action. + +[417] 5 Moore, International Law Digest, 478-510, _passim_. + +[418] A Decade of American Foreign Policy, S. Doc. 123, 81st Cong., 1st +Sess., p. 1347. + +[419] _See_ Max Farrand, Records, II, 318-319. + +[420] Youngstown Co. _v._ Sawyer, 343 U.S. 579 (1952). + +[421] 17 Fed. Reg. 3139-3143. + +"Whereas on December 16, 1950, I proclaimed the existence of a national +emergency which requires that the military, naval, air, and civilian +defenses of this country be strengthened as speedily as possible to the +end that we may be able to repel any and all threats against our +national security and to fulfill our responsibilities in the efforts +being made throughout the United Nations and otherwise to bring about a +lasting peace; and + +"Whereas American fighting men and fighting men of other nations of the +United Nations are now engaged in deadly combat with the forces of +aggression in Korea, and forces of the United States are stationed +elsewhere overseas for the purpose of participating in the defense of +the Atlantic Community against aggression; and + +"Whereas the weapons and other materials needed by our armed forces and +by those joined with us in the defense of the free world are produced to +a great extent in this country, and steel is an indispensable component +of substantially all of such weapons and materials; and + +"Whereas steel is likewise indispensable to the carrying out of programs +of the Atomic Energy Commission of vital importance to our defense +efforts; and + +"Whereas a continuing and uninterrupted supply of steel is also +indispensable to the maintenance of the economy of the United States, +upon which our military strength depends; and + +"Whereas a controversy has arisen between certain companies in the +United States producing and fabricating steel and the elements thereof +and certain of their workers represented by the United Steel Workers of +America, CIO, regarding terms and conditions of employment; and + +"Whereas the controversy has not been settled through the processes of +collective bargaining or through the efforts of the Government, +including those of the Wage Stabilization Board, to which the +controversy was referred on December 22, 1951, pursuant to Executive +Order No. 10233, and a strike has been called for 12:01 A.M., April 9, +1952; and + +"Whereas a work stoppage would immediately jeopardize and imperil our +national defense and the defense of those joined with us in resisting +aggression, and would add to the continuing danger of our soldiers, +sailors, and airmen engaged in combat in the field; and + +"Whereas in order to assure the continued availability of steel and +steel products during the existing emergency, it is necessary that the +United States take possession of and operate the plants, facilities, and +other property of the said companies as hereinafter provided: + +"Now, Therefore, by virtue of the authority vested in me by the +Constitution and laws of the United States, and as President of the +United States and Commander in Chief of the armed forces of the United +States, it is hereby ordered as follows: + +"1. The Secretary of Commerce is hereby authorized and directed to take +possession of all or such of the plants, facilities, and other property +of the companies named in the list attached hereto, or any part thereof, +as he may deem necessary in the interests of national defense; and to +operate or to arrange for the operation thereof and to do all things +necessary for, or incidental to, such operation. + +"2. In carrying out this order the Secretary of Commerce may act through +or with the aid of such public or private instrumentalities or persons +as he may designate; and all Federal agencies shall cooperate with the +Secretary of Commerce to the fullest extent possible in carrying out the +purposes of this order. + +"3. The Secretary of Commerce shall determine and prescribe terms and +conditions of employment under which the plants, facilities, and other +properties possession of which is taken pursuant to this order shall be +operated. The Secretary of Commerce shall recognize the rights of +workers to bargain collectively through representatives of their own +choosing and to engage in concerted activities for the purpose of +collective bargaining, adjustment of grievances or other mutual aid or +protection, provided that such activities do not interfere with the +operation of such plants, facilities, and other properties. + +"4. Except so far as the Secretary of Commerce shall otherwise provide +from time to time, the managements of the plants, facilities, and other +properties possession of which is taken pursuant to this order shall +continue their functions, including the collection and disbursement of +funds in the usual and ordinary course of business in the names of their +respective companies and by means of any instrumentalities used by such +companies. + +"5. Except so far as the Secretary of Commerce may otherwise direct, +existing rights and obligations of such companies shall remain in full +force and effect, and there may be made, in due course, payments of +dividends on stock, and of principal, interest, sinking funds, and all +other distributions upon bonds, debentures, and other obligations, and +expenditures may be made for other ordinary corporate or business +purposes. + +"6. Whenever in the judgment of the Secretary of Commerce further +possession and operation by him of any plant, facility, or other +property is no longer necessary or expedient in the interest of national +defense, and the Secretary has reason to believe that effective future +operation is assured, he shall return the possession and operation of +such plant, facility, or other property to the company in possession and +control thereof at the time possession was taken under this order. + +"7. The Secretary of Commerce is authorized to prescribe and issue such +regulations and orders not inconsistent herewith as he may deem +necessary or desirable for carrying out the purposes of this order; and +he may delegate and authorize subdelegation of such of his functions +under this order as he may deem desirable. Harry S. Truman. The White +House, April 8, 1952." + +[422] 343 U.S. 579, 583. + +[423] Ibid. 584. + +[424] 343 U.S. 579, 585-589. + +[425] 2 Cr. 170 (1804). + +[426] 343 U.S. 579, 660, 661. + +[427] 343 U.S. 579, 684, citing 10 Annals of Congress, 619 (1800). _See +also_ p. 418. + +[428] 9 Stat. 302; R.S. Sec. 5270-5279. + +[429] For the controversy thereby precipitated between Hamilton +("Pacificus") and Madison (Helvidius), _see_ Edward S. Corwin, The +President's Control of Foreign Relations (Princeton University Press, +1916), Chap. I. + +[430] The Act of June 5, 1794; 1 Stat. 381. The Act was the direct +outcome of suggestions made by Washington in his message of December 5, +1793. 1 Richardson 139. + +[431] 22 Opins. A.G. 13 (1898); Tucker _v._ Alexandroff, 183 U.S. 424, +435 (1902). An act was passed May 27, 1921 (42 Stat. 8) which requires +presidential license for the landing and operation of cables connecting +the United States with foreign countries. Quincy Wright, The Control of +American Foreign Relations (New York, 1922) 302 fn. 75. + +[432] Santiago _v._ Nogueras, 214 U.S. 260 (1909). + +[433] Madsen _v._ Kinsella, 343 U.S. 341 (1952). + +[434] Charlton _v._ Kelly, 229 U.S. 447 (1913). _See also_ Botiller _v._ +Dominguez, 130 U.S. 238 (1889). + +[435] Sinclair _v._ United States, 279 U.S. 263, 289, 297 (1929). + +[436] 12 Stat. 755. + +[437] Berdahl, War Powers of the Executive in the United States +(University of Illinois, 1921), 69. + +[438] 343 U.S. 579, 695. + +[439] 89 Cong. Rec. 3992 (1943). + +[440] 57 Stat. 163. + +[441] 343 U.S. 579, 697. + +[442] 341 U.S. 114 (1951). + +[443] _See_ Hooe _v._ United States, 218 U.S. 322, 335-336 (1910); +United States _v._ North American Co., 253 U.S. 330, 333 (1920). _Cf._ +Larson _v._ Domestic and Foreign Corp., 337 U.S. 682, 701-702 (1949). + +[444] 341 U.S. 114, 119. + +[445] _See_ p. 486. + +[446] Brief for the United States, No. 278, October Term, 1914, pp. 11, +75-77, quoted by the Chief Justice in 343 U.S. 579, 689-691. Assistant +Attorney General Knaebel's name was also on the Brief. + +[447] 343 U.S. 579, 597. + +[448] Ibid. 602. + +[449] 343 U.S. 579, 631-632. + +[450] 13 How. 115 (1852). + +[451] 13 Wall. 623 (1872). + +[452] 260 U.S. 327 (1922). + +[453] 341 U.S. 114 (1949). + +[454] 315 U.S. 203, 230 (1942). + +[455] Federalist No. 64. + +[456] _See also_ 40 Op. Atty. Gen. 250, 253 (1942). + +[457] 343 U.S. 579, 639, 640. + +[458] Ibid. 653, 654. + +[459] 343 U.S. 579, 657. + +[460] Ibid. 659. + +[461] 2 Cr. 170 (1804). + +[462] 343 U.S. 579, 662, 663. + +[463] Ibid. 662. + +[464] 343 U.S. 579, 678, 679. + +[465] Ibid. 705. + +[466] Ibid. 708-709. + +[467] 4 Wall. 475 (1867). + +[468] Ibid. 484. + +[469] Ibid. 500-501. + +[470] Kendall _v._ United States, 12 Pet. 524 (1838); United States _v._ +Lee, 106 U.S. 196 (1882). It should be noted, however, that if the +President fails to act, or if he adopts a narrow construction of a +statute which he dislikes, and on this ground professes inability to +act, the only remedy available against him is impeachment. + +[471] Noble _v._ Union River Logging R. Co., 147 U.S. 165 (1893); +Philadelphia Co. _v._ Stimson, 223 U.S. 605 (1912). + +[472] Kendall _v._ United States, above; [Transcriber's Note: Reference +is to Footnote 470, above.] United States _v._ Schurz, 102 U.S. 378 +(1880); United States ex rel. Dunlap _v._ Black, 128 U.S. 40 (1888). +_Cf._ Decatur _v._ Paulding, 14 Pet. 497 (1840); and Riverside Oil Co. +_v._ Hitchcock, 190 U.S. 316 (1903), where the rule is reiterated that +neither injunction nor mandamus will lie against an officer to control +him in the exercise of an official duty which requires the exercise of +his judgment and discretion. + +[473] This was originally on the theory that the Supreme Court of the +District had inherited, via the common law of Maryland, the jurisdiction +of the King's Bench "over inferior jurisdictions and officers." 12 Pet. +at 614 and 620-621. + +[474] Little _v._ Barreme, 2 Cr. 170 (1804); United States _v._ Lee, +above; [Transcriber's Note: Reference is to Footnote 470, above.] +Spaulding _v._ Vilas, 161 U.S. 483 (1896). + +[475] Bell _v._ Hood, 327 U.S. 678 (1946). The decision is based on an +interpretation of 28 U.S.C. Sec. 41 (1). + +[476] Mitchell _v._ Clark, 110 U.S. 633 (1884). An official action is +indemnifiable if Congress could have authorized it in the first place, +or if it was done under "imperative orders which could not be resisted," +or "under necessity or mistake." Ibid. 640-641. + +[477] Tennessee _v._ Davis, 100 U.S. 257 (1880); In re Neagle, 135 U.S. +1 (1890). _Cf._ Maryland _v._ Soper, 270 U.S. 9 (1926). + +[478] 17 Op. Atty. Gen. 419 (1882). _See also_ Hinds' Precedents, III, +Sec. 2315-2318 (1907). + +[479] The Belknap Case, ibid. Sec. 2445. + +[480] Elliot, Debates, V, 341, 528. + +[481] Ibid. IV, 375. + +[482] The Federalist No. 65. For the above _see_ William S. Carpenter, +Judicial Tenure in the United States (Yale University Press, 1918), +105-106. + +[483] John Quincy Adams, Memoirs, I, 321, 322 (1874). + +[484] Trial of Andrew Johnson, I, (Government Printing Office, 1868), +147. + +[485] Ibid. 409. Johnson and his Cabinet were much concerned over rumors +that it was the intention of his enemies in the House, following +impeachment and pending the trial, to put him under arrest and/or +suspend him from office. Gideon Welles, Diary, III, 21, 27, 50, 57, 60, +62, 151, 200, 235, 237, 238, 291, 313. But no such step was attempted. +Several state constitutions contain provisions authorizing suspension +from office in such a case. + +[486] Carpenter, Judicial Tenure, 145-153. + +[487] Senate proceedings in Cong. Record, vol. 80, pp. 5558-5559, (April +16, 1936). + +[488] On this account, as well as because of the cumbersomeness of the +impeachment process and the amount of time it is apt to consume, it has +been suggested that a special court could, and should, be created to try +cases of alleged misbehavior in office of inferior judges of the United +States, this type of officer having furnished the great majority of +cases of impeachment under the Constitution. _See_ Memorandum on Removal +Power of Congress with Respect to the Supreme Court, Senate Judiciary +Committee, 80th Cong., 1st sess.; _also_ Burke Shartel, Federal +Judges--Appointment, Supervision, and Removal--Some Possibilities under +the Constitution, 28 Mich. L. Rev., 870-907 (May 1930). Is impeachment +the only way in which Congress, or either house thereof, is +constitutionally entitled to call the President to account for his +conduct in office? _Cf._ George Wharton Pepper, Family Quarrels, The +President, the Senate, and the House (New York, 1931), 138 ff.; and +Corwin, The President, Office and Powers (3d ed.), 411-413. + + + + +ARTICLE III + +THE JUDICIAL DEPARTMENT + + +Section 1. The judicial power, courts, judges: Page + Characteristics and attributes of judicial power 511 + "Judicial power" 511 + "Shall be vested" 512 + Finality of judgment 512 + Taney doctrine 513 + Award of execution 514 + Ancillary powers 515 + Contempt power; the act of 1789 515 + An inherent power 515 + Contempt power exalted 516 + Recession of the doctrine 517 + Bridges _v._ California 517 + Summary punishment of contempt; misbehavior of counsel 517 + Punishment of counsel; The Sacher Case 519 + Contempt by disobedience of orders 520 + Criminal versus civil contempts 521 + Judicial power aids administrative power 521 + Power to issue writs; the act of 1789 522 + Common law powers of the District of Columbia Courts 522 + Habeas corpus 523 + Congress limits the inquisition power 523 + Injunctions under the Emergency Price Control Act of 1942 525 + Rule-making power and powers over process 525 + Limits to the power 526 + Appointment of referees, masters, and special aids 527 + Power to admit and disbar attorneys 527 + Organization of courts; compensation of judges 528 + "One supreme court" 528 + Inferior courts made and abolished 528 + Abolition of the commerce court 529 + Compensation 530 + Diminution of salaries 530 + Courts of specialized jurisdiction 531 + Emergency Court of Appeals of 1942 531 + Judicial review restrained 532 + Legislative courts; Canter case 533 + Other legislative courts 534 + Powers of Congress over legislative courts 534 + Status of the Court of Claims 535 + A judicial paradox 536 + Status of the courts of the District of Columbia.' 536 +Section 2. Jurisdiction 538 + Clause 1. Scope of jurisdiction 538 + "Cases and controversies" 538 + Two classes of "cases and controversies" 538 + Adverse litigants 539 + Stockholders' suits 541 + Substantial interest doctrine 542 + Substantial interest in suits by States 543 + Abstract, contingent, and hypothetical questions 544 + Political questions 546 + Origin of the concept 546 + Exemplifications of the doctrine 547 + Recent cases 548 + Advisory opinions 549 + Declaratory judgments 551 + Declaratory Judgment Act of 1934 551 + "Case or controversy" test in declaratory judgment + proceedings 552 + Cases arising under the Constitution, laws, and treaties of + the United States 553 + Definition 553 + Judicial review 554 + Judicial review and national supremacy 554 + Judicial review of acts of Congress 556 + Hamilton's argument 558 + Marbury _v._ Madison 559 + Marshall's argument 559 + Importance of Marbury _v._ Madison 560 + Limits to the exercise of judicial review 561 + The doctrine of "strict necessity" 562 + The doctrine of political questions 562 + The "reasonable doubt" doctrine 563 + Exclusion of extra-constitutional tests 564 + Disallowance by statutory interpretation 565 + Stare decisis in constitutional law 565 + Allegations of federal question 566 + Corporations chartered by Congress 568 + Removal from State courts of suits against federal + officials 568 + Tennessee _v._ Davis 569 + Supreme Court review of State court decisions 570 + Suits affecting ambassadors, other public ministers, and + consuls 571 + When ambassadors, etc., are affected 571 + Cases of admiralty and maritime jurisdiction 572 + Origin and characteristics 572 + Congressional interpretation of the admiralty clause 572 + Judicial approval of congressional interpretation 573 + Two types of cases 573 + Maritime torts 574 + Prize cases, forfeitures, etc. 575 + Proceedings in rem 575 + Absence of a jury 576 + Territorial extent of admiralty and maritime jurisdiction 576 + Admiralty jurisdiction versus State power 578 + Exclusive of admiralty jurisdiction 578 + Concessions to State power 579 + The Jensen case and its sequelae 580 + Power of Congress to modify maritime law; the + "Lottawanna" 582 + Cases to which the United States is a party; right of + United States to sue 584 + Suits against States 584 + Immunity of United States from suit 585 + Waiver of immunity by Congress 586 + United States _v._ Lee 587 + Difficulties created by the Lee case 588 + Official immunity today 589 + Classification of suits against officers 590 + Suits against government corporations 590 + Suits between two or more States 591 + Boundary disputes; the law applied 591 + Modern types of suits between States 592 + Cases in which the Court has declined jurisdiction 594 + Problem of enforcement; Virginia _v._ West Virginia 595 + Controversies between a State and citizens of another State 596 + Nonjusticiable controversies 596 + Jurisdiction confined to civil cases 597 + Suits by a State as parens patriae; jurisdiction declined 597 + Suits by a State as parens patriae; jurisdiction accepted 598 + Georgia _v._ Pennsylvania Railroad 598 + Controversies between citizens of different States 599 + The meaning of "State," Hepburn _v._ Ellzey 599 + Extension of jurisdiction by act of 1940 600 + Citizenship, natural persons 600 + Citizenship, corporations 601 + Black and White Taxicab case 603 + The law applied in diversity cases; Swift _v._ Tyson 603 + Extension of the Tyson case 604 + The Tyson rule protested 604 + Erie Railroad _v._ Tompkins; Tyson case overruled 605 + Extension of the Tompkins rule 607 + Controversies between citizens of the same State claiming + lands under grants of different States 608 + Controversies between a State, or the citizens thereof, and + foreign States, citizens, or subjects 609 + Suits by foreign States 609 + Indian tribes 610 + Narrow construction of the jurisdiction 610 + Clause 2. Original and appellate jurisdiction of the Supreme + Court 611 + Original jurisdiction of the Supreme Court 611 + An autonomous jurisdiction 611 + Cannot be enlarged; Marbury _v._ Madison 612 + Concurrent jurisdiction of the lower federal courts 613 + Appellate jurisdiction of the Supreme Court 614 + Subject to limitation by Congress 614 + McCardle case 614 + Power of Congress to regulate the jurisdiction of lower + federal courts 616 + Martin _v._ Hunter's lessee 616 + Plenary power of Congress over jurisdiction 616 + Judicial power under the Emergency Price Control Act 620 + Legislative control over writs 621 + Injunctions in labor disputes; Norris-LaGuardia Act 621 + Judicial power equated with due process of law 622 + Judicial versus nonjudicial functions 623 + Federal-State court relations 624 + Problems raised by concurrency 624 + Disobedience of Supreme Court orders by State courts 625 + Worcester _v._ Georgia 625 + Conflicts of jurisdiction; comity 626 + Jurisdiction of the _res_ 626 + State interference by injunction with federal + jurisdiction 627 + Federal interference by injunction with State + jurisdiction 628 + Federal injunctions against State official action 629 + Ex parte Young 630 + State interference by habeas corpus proceedings with federal + jurisdiction 631 + Federal interference, by removal and habeas corpus 632 + Comity as a principle of statutory construction 633 + Comity as cooperation 634 + Early use of State courts in enforcement of federal law 635 + Retreat from this practice 636 + Resumption of this practice 636 + State obligation to enforce federal law 637 + Right of foreign corporations to resort to federal courts 638 + Clause 3. Trial by jury. [_See_ pp. 878-880 under + Amendment VI] 638 +Section 3. Treason 638 + Clause 1. Treason defined 638 + Definition 638 + Levying war 639 + The Burr trial 640 + Aid and comfort to the enemy; the Cramer Case 640 + The Haupt Case 641 + The Kawakita Case 643 + Doubtful State of the law of Treason today 644 + Clause 2. Punishment of Treason 645 + Corruption of blood and forfeiture 645 + + +JUDICIAL DEPARTMENT + + +Article III + +Section 1. The judicial Power of the United States, shall be +vested in one supreme Court, and in such inferior Courts as the Congress +may from time to time ordain and establish. The Judges, both of the +supreme and inferior Courts, shall hold their Offices during good +Behaviour, and shall, at stated Times, receive for their Services, a +Compensation, which shall not be diminished during their Continuance in +Office. + + +Characteristics and Attributes of Judicial Power + + +"JUDICIAL POWER" + +Judicial power, as Justice Miller defined it in 1891, is the power "of a +court to decide and pronounce a judgment and carry it into effect +between persons and parties who bring a case before it for decision";[1] +or in the words of the Court in Muskrat _v._ United States,[2] it is +"the right to determine actual controversies arising between adverse +litigants, duly instituted in courts of proper jurisdiction."[3] +Although the terms "judicial power" and "jurisdiction" are frequently +used interchangeably and jurisdiction is defined as the power to hear +and determine the subject matter in controversy between parties to a +suit,[4] or as the "power to entertain the suit, consider the merits and +render a binding decision thereon,"[5] the cases and commentaries +support and, for that matter, necessitate a distinction between the two +concepts. Jurisdiction is the authority of a court to exercise judicial +power in a specific case and is, of course, a prerequisite to the +exercise of judicial power, which is the totality of powers a court +exercises when it assumes jurisdiction and hears and decides a case.[6] +Included with the general power to decide cases are the ancillary powers +of courts to punish for contempts of their authority,[7] to issue writs +in aid of jurisdiction when authorized by statute;[8] to make rules +governing their process in the absence of statutory authorizations or +prohibitions;[9] inherent equitable powers over their own process to +prevent abuse, oppression and injustice, and to protect their own +jurisdiction and officers in the protection of property in custody of +law;[10] the power to appoint masters in chancery, referees, auditors, +and other investigators;[11] and to admit and disbar attorneys.[12] + + +"SHALL BE VESTED" + +The distinction between judicial power and jurisdiction is especially +pertinent to the meaning of the words "shall be vested." Whereas all of +the judicial power of the United States is vested in the Supreme Court +and the lower federal judiciary, neither has ever been vested with all +the jurisdiction they are capable of receiving under article III. Except +for the original jurisdiction of the Supreme Court, which flows directly +from the Constitution,[13] two prerequisites to jurisdiction must be +present. First, the Constitution must have given the courts the capacity +to receive it; second, an act of Congress must have conferred it.[14] + + +FINALITY OF JUDGMENT + +Since 1792 the federal courts have emphasized finality of judgment as an +essential attribute of judicial _power_. In Hayburn's Case[15] a motion +for mandamus was filed in the Supreme Court to direct the Circuit Court +for the District of Pennsylvania to act upon a petition for a pension +under the pensions act which placed the administration of pensions in +the judges of the federal courts, but which made the action of the +courts on application subject to review by Congress and the Secretary of +War. The Court took the case under advisement, but Congress changed the +law by the act of February 28, 1793, before decision was rendered. In +view of the attitude of the circuit courts of the United States for the +districts of New York, North Carolina and Pennsylvania there can be no +doubt what the decision would have been. The judges of the circuit +courts in each of these districts refused to administer the pensions, +because the revisory powers of Congress and the Secretary of War were +regarded as making the administration of the law nonjudicial in nature. +At the time of this episode, Chief Justice Jay and Justice Cushing were +members of the Circuit Court in the New York district, Justices Wilson +and Blair in Pennsylvania and Justice Iredell in North Carolina. + + +The Taney Doctrine + +On these foundations Chief Justice Taney posthumously erected finality +into a judicial absolute.[16] The original act creating the Court of +Claims provided for an analogous procedure with appeals to the Supreme +Court after which judgments in favor of claimants were to be referred to +the Secretary of the Treasury for payments out of the general +appropriation for the payment of private claims. However, section 14 of +the act provided that no money should be paid out of the Treasury for +any claims "till after an appropriation therefor shall be estimated by +the Secretary of the Treasury." In Gordon _v._ United States,[17] the +Court refused to hear an appeal, probably for the reasons given in Chief +Justice Taney's opinion which he did not deliver because of his death +before the Court reconvened but which was published many year later.[18] +In any event the reiteration of Taney's opinion in subsequent cases made +much of it good law. Because the judgment of the Court of Claims and the +Supreme Court depended for execution upon future action of the Secretary +of the Treasury and of Congress, the Chief Justice regarded it as +nothing more than a certificate of opinion and in no sense a judicial +judgment. Congress, therefore, could not authorize the Supreme Court to +take appeals from an auditor or require it to express an opinion in a +case where its judicial power could not be exercised, where its judgment +would not be final and conclusive upon the parties, and where processes +of execution were not awarded to carry it into effect. The Chief Justice +then proceeded to formulate a rule, repeated in many subsequent cases +until modified in 1927 and reversed in 1933, to the effect that the +award of execution is a part and an essential part of every judgment +passed by a court exercising judicial powers; it was no judgment in the +legal sense of the term without it.[19] This rule was given rigid +application in Liberty Warehouse Co. _v._ Grannis,[20] where the Supreme +Court sustained a district court in refusing to entertain a declaratory +proceeding for lack of jurisdiction because such a proceeding was +regarded as nonjudicial. One year later, the Court applied the extreme +of the rule in Liberty Warehouse _v._ Burley Tobacco Growers +Association,[21] when it ruled that it could exercise no appellate +jurisdiction in a declaratory proceeding in a State court. + + +Award of Execution + +Meanwhile in 1927 the Supreme Court began to qualify its insistence upon +an award of execution, holding in Fidelity National Bank and Trust Co. +_v._ Swope[22] that an award of execution is not an indispensable +adjunct of the judicial process. This ruling prepared the way for +Nashville, Chattanooga and St. Louis R. Co. _v._ Wallace[23] which +reversed the decision in the Grannis case, sustained an appeal from a +State court to the Supreme Court in a declaratory proceeding, and +effectively interred the rule that award of execution is essential to +judicial power. Regardless, nevertheless, of the fate of an award of +execution, the rule that finality of judgment is an essential attribute +of judicial power remains unimpaired. + + +Ancillary Powers + + +THE CONTEMPT POWER; THE ACT OF 1789 + +The summary power of the courts of the United States to punish contempts +of their authority had its origin in the law and practice of England +where disobedience of court orders was regarded as contempt of the King +himself and attachment was a prerogative process derived from presumed +contempt of the sovereign.[24] By the latter part of the eighteenth +century summary power to punish was extended to all contempts whether +committed in or out of court.[25] In the United States, the Judiciary +Act of 1789 in section 17[26] conferred power on all courts of the +United States "to punish by fine or imprisonment, at the discretion of +said courts, all contempts of authority in any cause or hearing before +the same." The only limitation placed on this power was that summary +attachment was made a negation of all other modes of punishment. The +abuse of this extensive power led, following the unsuccessful +impeachment of Judge James H. Peck of the Federal District Court of +Missouri, to the passage of the act of 1831 limiting the power of the +federal courts to punish contempts to misbehavior in the presence of the +courts, "or so near thereto as to obstruct the administration of +justice," to the misbehavior of officers of courts in their official +capacity, and to disobedience or resistance to any lawful writ, process +or order of the court.[27] + + +An Inherent Power + +The validity of the act of 1831 was sustained forty-three years later in +Ex parte Robinson,[28] where Justice Field for the Court propounded +principles full of potentialities for conflict. He declared: "The power +to punish for contempts is inherent in all courts; its existence is +essential to the preservation of order in judicial proceedings, and to +the enforcement of the judgments, orders, and writs of the courts, and +consequently to the due administration of justice. The moment the courts +of the United States were called into existence and invested with +jurisdiction over any subject, they become possessed of this power." +Expressing doubts concerning the validity of the act as to the Supreme +Court, he declared, however, there could be no question of its validity +as applied to the lower courts on the ground that they are created by +Congress and that their "powers and duties depend upon the act calling +them into existence, or subsequent acts extending or limiting their +jurisdiction."[29] With the passage of time, later adjudications, +especially after 1890, came to place more emphasis on the inherent power +of courts to punish contempts than upon the power of Congress to +regulate summary attachment. By 1911 the Court was saying that the +contempt power must be exercised by a court without referring the issues +of fact or law to another tribunal or to a jury in the same +tribunal.[30] In Michaelson _v._ United States[31] the Supreme Court +intentionally placed a narrow interpretation upon those sections of the +Clayton Act[32] relating to punishment for contempt of court by +disobedience to injunctions in labor disputes. The sections in question +provided for a jury trial upon the demand of the accused in contempt +cases in which the acts committed in violation of district court orders +also constituted a crime under the laws of the United States or of those +of the State where they were committed. Although Justice Sutherland +reaffirmed earlier rulings establishing the authority of Congress to +regulate the contempt power, he went on to qualify this authority and +declared that "the attributes which inhere in that power [to punish +contempt] and are inseparable from it can neither be abrogated nor +rendered practically inoperative." The Court mentioned specifically "the +power to deal summarily with contempts committed in the presence of the +courts or so near thereto as to obstruct the administration of justice," +and the power to enforce mandatory decrees by coercive means.[33] + + +The Contempt Power Exalted + +The phrase "in the presence of the Court or so near thereto as to +obstruct the administration of justice" was interpreted in Toledo +Newspaper Co. _v._ United States[34] so broadly as to uphold the action +of a district court judge in punishing for contempt a newspaper for +publishing spirited editorials and cartoons on questions at issue in a +contest between a street railway company and the public over rates. A +majority of the Court held that the test to be applied in determining +the obstruction of the administration of justice is not the actual +obstruction resulting from an act, but "the character of the act done +and its direct tendency to prevent and obstruct the discharge of +judicial duty." Similarly the test of whether a particular act is an +attempt to influence or intimidate a court is not the influence exerted +upon the mind of a particular judge but "the reasonable tendency of the +acts done to influence or bring about the baleful result * * * without +reference to the consideration of how far they may have been without +influence in a particular case."[35] In Craig _v._ Hecht[36] these +criteria were applied to sustain the imprisonment of the comptroller of +New York City for writing and publishing a letter to a public service +commissioner which criticized the action of a United States district +judge in receivership proceedings. + + +Recession of the Doctrine + +The decision in the Toledo Newspaper case did not follow earlier +decisions interpreting the act of 1831 and was grounded on historical +error. For these reasons it was reversed in Nye _v._ United States[37] +and the theory of constructive contempt based on the "reasonable +tendency" rule rejected in a proceeding wherein defendants in a civil +suit, by persuasion and the use of liquor, induced a plaintiff feeble in +mind and body to ask for dismissal of the suit he had brought against +them. The events in the episode occurred more than 100 miles from where +the Court was sitting, and were held not to put the persons responsible +for them in contempt of court. + + +Bridges _v._ California + +Although Nye _v._ United States is exclusively a case of statutory +construction, it is significant from a constitutional point of view in +that its reasoning is contrary to that of earlier cases narrowly +construing the act of 1831 and asserting broad inherent powers of courts +to punish contempts independently of and contrary to Congressional +regulation of this power. Bridges _v._ California,[38] though dealing +with the power of State courts to punish contempts, in the face of the +due process clause of the Fourteenth Amendment, is significant for the +dictum of the majority that the contempt power of all courts, federal as +well as State, is limited by the guaranty of the First Amendment against +interference with freedom of speech or of the press. + + +Summary Punishment of Contempt; Misbehavior of Counsel + +There have been three notable cases within the last half century raising +questions concerning the power of a trial judge to punish counsel +summarily for alleged misbehavior in the course of a trial. In _ex +parte_ Terry,[39] decided in 1888, Terry had been jailed by the United +States Circuit Court of California for assaulting in its presence a +United States marshal. The Supreme Court denied his petition for a writ +of habeas corpus. In Cooke _v._ United States,[40] however, decided in +1925, the Court remanded for further proceedings a judgment of the +United States Circuit Court of Texas sustaining the judgment of a United +States District judge sentencing to jail an attorney and his client for +presenting the judge a letter which impugned his impartiality with +respect to their case, still pending before him. Distinguishing the case +from that of Terry, Chief Justice Taft, speaking for the unanimous +Court, said: "The important distinction * * * is that this contempt was +not in open court. * * * To preserve order in the court room for the +proper conduct of business, the court must act instantly to suppress +disturbance or violence or physical obstruction or disrespect to the +court when occurring in open court. There is no need of evidence or +assistance of counsel before punishment, because the court has seen the +offense. Such summary vindication of the court's dignity and authority +is necessary. It has always been so in the courts of the common law and +the punishment imposed is due process of law."[41] The Chief Justice +then added: "Another feature of this case seems to call for remark. The +power of contempt which a judge must have and exercise in protecting the +due and orderly administration of justice and in maintaining the +authority and dignity of the court is most important and indispensable. +But its exercise is a delicate one and care is needed to avoid arbitrary +or oppressive conclusions. This rule of caution is more mandatory where +the contempt charged has in it the element of personal criticism or +attack upon the judge. The judge must banish the slightest personal +impulse to reprisal, but he should not bend backward and injure the +authority of the court by too great leniency. The substitution of +another judge would avoid either tendency but it is not always possible. +Of course where acts of contempt are palpably aggravated by a personal +attack upon the judge in order to drive the judge out of the case for +ulterior reasons, the scheme should not be permitted to succeed. But +attempts of this kind are rare. All of such cases, however, present +difficult questions for the judge. All we can say upon the whole matter +is that where conditions do not make it impracticable, or where the +delay may not injure public or private right, a judge called upon to act +in a case of contempt by personal attack upon him, may, without +flinching from his duty, properly ask that one of his fellow judges take +his place. Cornish _v._ United States, 299 F. 283, 285; Toledo Newspaper +Co. _v._ United States, 237 F. 986, 988. The case before us is one in +which the issue between the judge and the parties had come to involve +marked personal feeling that did not make for an impartial and calm +judicial consideration and conclusion, as the statement of the +proceedings abundantly shows."[42] + + +Contempt Power: Punishment of Counsel; Sacher Case + +This case[43] is an outgrowth of the trial of the eleven Communists,[44] +in which Sacher et al. were counsel for the defense. The facts of the +case were as follows: On receiving the verdict of conviction of the +defendants, trial Judge Medina at once issued a certificate under Rule +42 (a) of Federal Rules of Criminal Procedure, finding counsel guilty of +criminal contempt and imposing various jail terms up to six months. The +immediate question raised was whether the contempt charged was one which +the judge was authorized to determine for himself, or one which under +Rule 42 (b) could only be passed upon by another judge and after notice +and hearing; but behind this issue loomed the same constitutional issue +which was dealt with by the Court in the Cooke case, of the requirements +of due process of law. The Court sustained the Circuit Court of Appeals +in affirming the convictions and sentences, at the same time, however, +reversing some of Judge Medina's specifications of contempt, one of +these being the charge that the petitioners entered into an agreement +deliberately to "impair my health." "We hold," said Justice Jackson, +speaking for the majority, "that Rule 42 allows the trial judge, upon +the occurrence in his presence of a contempt, immediately and summarily +to punish it, if, in his opinion, delay will prejudice the trial. We +hold, on the other hand, that if he believes the exigencies of the trial +require that he defer judgment until its completion he may do so without +extinguishing his power. * * * We are not unaware or unconcerned that +persons identified with unpopular causes may find it difficult to enlist +the counsel of their choice. But we think it must be ascribed to causes +quite apart from fear of being held in contempt, for we think few +effective lawyers would regard the tactics condemned here as either +necessary or helpful to a successful defense. That such clients seem to +have thought these tactics necessary is likely to contribute to the +bar's reluctance to appear for them rather more than fear of contempt. +But that there may be no misunderstanding, we make clear that this +Court, if its aid be needed, will unhesitatingly protect counsel in +fearless, vigorous and effective performance of every duty pertaining to +the office of the advocate on behalf of any person whatsoever. But it +will not equate contempt with courage or insults with independence. It +will also protect the processes of orderly trial, which is the supreme +object of the lawyer's calling."[45] + + +Contempt by Disobedience of Orders + +Disobedience of injunction orders, particularly in labor disputes, has +been a fruitful source of cases dealing with contempt of court. In +United States _v._ United Mine Workers[46] the Court held that +disobedience of a temporary restraining order issued for the purpose of +maintaining existing conditions, pending the determination of the +court's jurisdiction, is punishable as criminal contempt where the issue +is not frivolous but substantial. Secondly, the Court held that an order +issued by a court with jurisdiction over the subject matter and person +must be obeyed by the parties until it is reversed by orderly and proper +proceedings, even though the statute under which the order is issued is +unconstitutional. Thirdly, on the basis of United States _v._ Shipp,[47] +it was held that violations of a court's order are punishable as +criminal contempt even though the order is set aside on appeal as in +excess of the court's jurisdiction or though the basic action has become +moot. Finally, the Court held that conduct can amount to both civil and +criminal contempt, and the same acts may justify a court in resorting to +coercive and to punitive measures, which may be imposed in a single +proceeding. + + +Criminal Versus Civil Contempts + +Prior to the United Mine Workers Case, the Court had distinguished +between criminal and civil contempts on the basis of the vindication of +the authority of the courts on the one hand and the preservation and +enforcement of the rights of the parties on the other. A civil contempt +consists of the refusal of a person in a civil case to obey a mandatory +order. It is incomplete in nature and may be purged by obedience to the +Court order. In criminal contempt, however, the act of contempt has been +completed, punishment is imposed to vindicate the authority of the +Court, and a person cannot by subsequent action purge himself of such +contempt.[48] In a dictum in Ex parte Grossman,[49] Chief Justice Taft, +while holding for the Court on the main issue that the President may +pardon a criminal contempt, declared that he may not pardon a civil +contempt. In an analogous case, the Court was emphatic in a dictum that +Congress cannot require a jury trial where the contemnor has failed to +perform a positive act for the relief of private parties.[50] + + +Judicial Power Aids Administrative Power + +Proceedings to enforce the orders of administrative agencies and +subpoenas issued by them to appear and produce testimony have become +increasingly common since the leading case of Interstate Commerce +Commission _v._ Brimson,[51] where it was held that the contempt power +of the courts might by statutory authorization be utilized in aid of the +Interstate Commerce Commission in enforcing compliance with its orders. +In 1947 a proceeding to enforce a _subpoena duces tecum_ issued by the +Securities and Exchange Commission during the Course of an investigation +was ruled to be civil in character on the ground that the only sanction +was a penalty designed to compel obedience. The Court then enunciated +the principle that where a fine or imprisonment imposed on the contemnor +is designed to coerce him to do what he has refused to do, the +proceeding is one for civil contempt.[52] + + +POWER TO ISSUE WRITS; THE ACT OF 1789 + +From the beginning of government under the Constitution of 1789 Congress +has assumed under the necessary and proper clause, its power to +establish inferior courts, its power to regulate the jurisdiction of +federal courts and the power to regulate the issuance of writs. The +Thirteenth section of the Judiciary Act of 1789 authorized the circuit +courts to issue writs of prohibition to the district courts, and the +Supreme Court to issue such writs to the circuit courts. The Supreme +Court was also empowered to issue writs of mandamus "in cases warranted +by the principles and usages of law, to any courts appointed, or persons +holding office, under the authority of the United States."[53] Section +14 provided that all courts of the United States should "have power to +issue writs of _scire facias_, _habeas corpus_, and all other writs not +specially provided for by statute, which may be necessary for the +exercise of their respective jurisdictions, and agreeable to the +principles and usages of law."[54] Issuance of the writ of _habeas +corpus_ was limited in that it was to extend only to persons in custody +under or by color of authority of the United States. Although the act of +1789 left the power over writs subject largely to the common law, it is +significant as a reflection of the belief, in which the courts have on +the whole concurred, that an act of Congress is necessary to confer +judicial power to issue writs. + + +Common Law Powers of the District of Columbia Courts + +That portion of section 13 which authorized the Supreme Court to issue +writs of mandamus in the exercise of its original jurisdiction was held +invalid in Marbury _v._ Madison,[55] as an unconstitutional enlargement +of the Supreme Court's original jurisdiction. After two more futile +efforts to obtain a writ of mandamus, in cases in which the Court found +that power to issue the writ had not been vested by statute in the +courts of the United States except in aid of already existing +jurisdiction,[56] a litigant was successful in Kendall _v._ United +States ex rel. Stokes[57] in finding a court which would take +jurisdiction in a mandamus proceeding. This was the circuit court of the +United States for the District of Columbia which was held to have +jurisdiction, on the theory that the common law, in force in Maryland +when the cession of that part of the State which became the District of +Columbia was made to the United States, remained in force in the +District. At an early time, therefore, the federal courts established +the rule that mandamus can be issued only when authorized by a +constitutional statute and within the limits imposed by the common law +and the separation of powers. + + +Habeas Corpus + +Although the writ of _habeas corpus_ has something of a special status +by virtue of article I, section 9, paragraph 2, the power of a specific +court to issue the writ has long been held to have its authorization +only in written law.[58] In Ex parte Yerger,[59] where the petitioner +was held in custody by the military authorities under the Reconstruction +Acts, the Court, referring to the prohibition against the suspension of +the writ of _habeas corpus_, clearly indicated that Congress is not +bound to provide for the protection of federal rights by investing the +federal courts with jurisdiction to protect them. Furthermore, the case +also incorporates the rule that power to issue the writ may be withdrawn +even in pending cases.[60] The rules pertaining to mandamus and _habeas +corpus_ are applicable to the other common law and statutory writs, the +power to issue which, though judicial in nature, must be derived from +the statutes and cannot go beyond them. + + +Congress Limits the Inquisition Power + +Although the speculations of some publicists and some judicial dicta[61] +support the idea of an inherent power of the federal courts sitting in +equity to issue injunctions independently of statutory limitations, +neither the course taken by Congress nor the specific rulings of the +Supreme Court support any such principle. Congress has repeatedly +exercised its power to limit the use of the injunction in the federal +courts. The first limitation on the equity jurisdiction of the federal +courts is to be found in section 16 of the Judiciary Act of 1789, which +provided that no equity suit should be maintained where there was a full +and adequate remedy at law. Although this provision did no more than +declare a pre-existing rule long applied in chancery courts,[62] it did +assert the power of Congress to regulate the equity powers of the +federal courts. The act of March 2, 1793,[63] prohibited the issuance of +any injunction by any court of the United States to stay proceedings in +State courts except where such injunctions may be authorized by any law +relating to bankruptcy proceedings. In subsequent statutes Congress has +prohibited the issuance of injunctions in the federal courts to restrain +the collection of taxes;[64] provided for a three-judge court, as a +prerequisite to the issuance of injunctions to restrain the enforcement +of State statutes for unconstitutionality,[65] for enjoining federal +statutes for unconstitutionality,[66] and for enjoining orders of the +Interstate Commerce Commission;[67] limited the power to issue +injunctions restraining rate orders of State public utility +commissions,[68] and the use of injunctions in labor disputes;[69] and +placed a very rigid restriction of the power to enjoin orders of the +administrator under the Emergency Price Control Act.[70] + +All of these restrictions have been sustained by the Supreme Court as +constitutional and applied with varying degrees of thoroughness. The +Court has made exceptions to the application of the prohibition against +the stay of proceedings in State courts,[71] but has on the whole +adhered to the statute. The exceptions raise no constitutional issues, +and the later tendency is to contract the scope of the exceptions.[72] + +In Duplex Printing Company _v._ Deering,[73] the Supreme Court placed a +narrow construction upon the labor provisions of the Clayton Act and +thereby contributed in part to the more extensive restriction by +Congress of the use of injunctions in labor disputes in the +Norris-LaGuardia Act of 1932 which has not only been declared +constitutional,[74] but has been applied liberally,[75] and in such a +manner as to repudiate the notion of an inherent power to issue +injunctions contrary to statutory provisions. + + +Injunctions Under the Emergency Price Control Act of 1942 + +Lockerty _v._ Phillips[76] justifies the same conclusion. Here the +validity of the special appeals procedure of the Emergency Price Control +Act of 1942 was sustained. This act provided for a special Emergency +Court of Appeals which, subject to review by the Supreme Court, was +given exclusive jurisdiction to determine the validity of regulations, +orders, and price schedules issued by the Office of Price +Administration. The Emergency Court and the Emergency Court alone was +permitted to enjoin regulations or orders of OPA, and even it could +enjoin such orders only after finding that the order was not in +accordance with law, or was arbitrary or capricious. The Emergency Court +was expressly denied power to issue temporary restraining orders or +interlocutory decrees; and in addition the effectiveness of any +permanent injunction it might issue was to be postponed for thirty days. +If review was sought in the Supreme Court by certiorari, effectiveness +was to be postponed until final disposition. A unanimous court speaking +through Chief Justice Stone declared that there "is nothing in the +Constitution which requires Congress to confer equity jurisdiction on +any particular inferior federal court." All federal courts, other than +the Supreme Court, it was asserted, derive their jurisdiction solely +from the exercise of the authority to ordain and establish inferior +courts conferred on Congress by article III, Sec. 1, of the Constitution. +This power, which Congress is left free to exercise or not, was held to +include the power "'of investing them with jurisdiction either limited, +concurrent, or exclusive, and of withholding jurisdiction from them in +the exact degrees and character which to Congress may seem proper for +the public good.'"[77] Although the Court avoided passing upon the +constitutionality of the prohibition against interlocutory decrees, the +language of the Court was otherwise broad enough to support it, as was +the language of Yakus _v._ United States[78] which sustained a different +phase of the special procedure for appeals under the Emergency Price +Control Act. + + +THE RULE-MAKING POWER AND POWERS OVER PROCESS + +Among the incidental powers of courts is that of making all necessary +rules governing their process and practice and for the orderly conduct +of their business.[79] However, this power too is derived from the +statutes and cannot go beyond them. The landmark case is Wayman _v._ +Southard[80] which sustained the validity of the process acts of 1789 +and 1792 as a valid exercise of authority under the necessary and proper +clause. Although Chief Justice Marshall regarded the rule-making power +as essentially legislative in nature, he ruled that Congress could +delegate to the courts the power to vary minor regulations in the +outlines marked out by the statute. Fifty-seven years later in Fink +_v._ O'Neil,[81] in which the United States sought to enforce by summary +process the payment of a debt, the Supreme Court ruled that under the +process acts the law of Wisconsin was the law of the United States and +hence the Government was required to bring a suit, obtain a judgment, +and cause execution to issue. Justice Matthews for a unanimous Court +declared that the courts have "no inherent authority to take any one of +these steps, except as it may have been conferred by the legislative +department; for they can exercise no jurisdiction, except as the law +confers and limits it." + + +Limits to the Power + +The principal function of court rules is that of regulating the practice +of courts as regards forms, the operation and effect of process, and the +mode and time of proceedings. However, rules are sometimes employed to +state in convenient form principles of substantive law previously +established by statutes or decisions. But no such rule "can enlarge or +restrict jurisdiction. Nor can a rule abrogate or modify the substantive +law." This rule is applicable equally to courts of law, equity, and +admiralty, to rules prescribed by the Supreme Court for the guidance of +lower courts, and to rules "which lower courts make for their own +guidance under authority conferred."[82] As incident to the judicial +power, courts of the United States possess inherent authority to +supervise the conduct of their officers, parties, witnesses, counsel, +and jurors by self-preserving rules for the protection of the rights of +litigants and the orderly administration of justice.[83] + +The courts of the United States possess inherent equitable powers over +their process to prevent abuse, oppression and injustice, and to protect +their jurisdiction and officers in the protection of property in the +custody of law.[84] Such powers are said to be essential to and inherent +in the organization of courts of justice.[85] The courts of the United +States also possess inherent power to amend their records, correct the +errors of the clerk or other court officers, and to rectify defects or +omissions in their records even after the lapse of a term, subject, +however, to the qualification that the power to amend records conveys no +power to create a record or re-create one of which no evidence +exists.[86] + + +APPOINTMENT OF REFEREES, MASTERS, AND SPECIAL AIDS + +The administration of insolvent enterprises, investigations into the +reasonableness of public utility rates, and the performance of other +judicial functions often require the special services of masters in +chancery, referees, auditors, and other special aids. The practice of +referring pending actions to a referee was held in Heckers _v._ +Fowler[87] to be coeval with the organization of the federal courts. In +the leading case of Ex parte Peterson[88] a United States district court +appointed an auditor with power to compel the attendance of witnesses +and the production of testimony. The Court authorized him to conduct a +preliminary investigation of facts and file a report thereon for the +purpose of simplifying the issues for the jury. This action was neither +authorized nor prohibited by statute. In sustaining the action of the +district judge, Justice Brandeis, speaking for the Court, declared: +"Courts have (at least in the absence of legislation to the contrary) +inherent power to provide themselves with appropriate instruments +required for the performance of their duties. * * * This power includes +authority to appoint persons unconnected with the Court to aid judges in +the performance of specific judicial duties, as they may arise in the +progress of a cause."[89] The power to appoint auditors by federal +courts sitting in equity has been exercised from their very beginning, +and here it was held that this power is the same whether the Court sits +in law or equity. + + +THE POWER TO ADMIT AND DISBAR ATTORNEYS + +Subject to general statutory qualifications for attorneys, the power of +the federal courts to admit and disbar attorneys rests on the common law +from which it was originally derived. According to Chief Justice Taney, +it was well settled by the common law that "it rests exclusively with +the Court to determine who is qualified to become one of its officers, +as an attorney and counsellor, and for what cause he ought to be +removed." Such power, he made clear, however, "is not an arbitrary and +despotic one, to be exercised at the pleasure of the Court, or from +passion, prejudice, or personal hostility; but it is the duty of the +Court to exercise and regulate it by a sound and just judicial +discretion, whereby the rights and independence of the bar may be as +scrupulously guarded and maintained by the Court, as the right and +dignity of the Court itself."[90] The Test-Oath Act of July 2, 1862, +which purported to exclude former Confederates from the practice of law +in the federal courts, was invalidated in Ex parte Garland.[91] In the +course of his opinion for the Court, Justice Field discussed generally +the power to admit and disbar attorneys. The exercise of such a power, +he declared, is judicial power. The attorney is an officer of the Court +and though Congress may prescribe qualifications for the practice of +law in the federal courts, it may not do so in such a way as to inflict +punishment contrary to the Constitution or to deprive a pardon of the +President of its legal effect.[92] + + +Organization of Courts, Tenure and Compensation of Judges + + +"ONE SUPREME COURT" + +The Constitution is almost completely silent concerning the organization +of the federal judiciary. Although it provides for one Supreme Court, it +makes no reference to the size and composition of the Court, the time or +place for sitting, or its internal organization save for the reference +to the Chief Justice in the impeachment provision of article I, Sec. 3, +relating to impeachment of the President. All these matters are +therefore confided to Congressional determination. Under the terms of +the Judiciary Act of 1789, the Court consisted of a Chief Justice and +five Associate Justices. This number was gradually increased until it +reached a total of ten judges under the act of March 3, 1863. Due to the +exigencies of Reconstruction and the tension existing between Congress +and the President the number was reduced to seven as vacancies should +occur, by the act of April 16, 1866. The number never actually fell +below eight, and on April 10, 1869, with Andrew Johnson out of the White +House, Congress restored the number to nine, where it has since +remained. There have been proposals at various times for an organization +of the Court into sections or divisions. No authoritative judicial +expression is available, although Chief Justice Hughes in a letter to +Senator Wheeler of March 21, 1937, expressed doubts concerning the +validity of such a device and stated that "the Constitution does not +appear to authorize two or more Supreme Courts functioning in effect as +separate courts."[93] Congress has also determined the time and place of +sessions of the Court, going so far in 1801 as to change its terms so +that for fourteen months, between December, 1801 and February, 1803 the +Court did not convene. + + +INFERIOR COURTS MADE AND ABOLISHED + +By article I, Sec. 8, paragraph 9, Congress is expressly declared to have +the power to constitute tribunals inferior to the Supreme Court, and the +power is repeated in a different formula in article III, Sec. 1, when +provision is also made for tenure during good behavior and for a +compensation which shall not be diminished. Since 1789 Congress, with +repeated judicial acquiescence and concurrence, has interpreted both of +these sections as leaving it free to establish inferior courts or not, +as it deems fit in the exercise of a boundless discretion. By the +Judiciary Act of 1789, Congress constituted thirteen district courts +which were to have four sessions annually[94] and three circuit courts +which were to consist jointly of the Supreme Court judges and the +district judge of such districts which were to meet annually at the time +and places designated by the statute.[95] By the Judiciary Act of +February 13, 1801, passed in the closing weeks of the Adams +Administration, the number of judges of the Supreme Court was to be +reduced to five after the next vacancy, the districts were reorganized, +and six circuit courts consisting of three judges each and organized +independently of the Supreme Court and the district courts were +created.[96] Whatever merits this plan of organization possessed were +lost in the fierce partisanship of the period, which led the expiring +Federalist Administration to appoint Federalists almost exclusively to +the new judgeships to the dismay of the Jeffersonians who, upon coming +into power, set plans in motion to repeal the act. In a bitter debate +the major constitutional issue to emerge centered about the abolition of +courts once they were created in the light of the provision for tenure +during good behavior. Suffice it to say, the repeal bill was passed and +approved by the President on March 8, 1802[97] without any provision for +the displaced judges. The validity of the act of 1802 was questioned in +Stuart _v._ Laird,[98] where Justice Paterson in a terse opinion, which +hardly touched Charles Lee's argument that Congress lacked power to +abolish or destroy courts and judges, held for the Court that Congress +has the power to establish inferior courts from time to time as it may +think proper and to transfer a cause from one tribunal to another. In +answer to the argument that Supreme Court Justices could not +constitutionally sit as circuit judges, he pointed to practice and +acquiescence contemporaneous with the Constitution as an interpretation +too strong and obstinate to be shaken or controlled. + + +Abolition of the Commerce Court + +Since 1802 Congress has many times exercised its power to constitute +inferior courts, but not until 1913 did it again abolish a court. This +was the unfortunately launched Commerce Court from which so much was +expected and so little came. Again, as in 1802, there was a +constitutional debate on the power of Congress to abolish courts without +providing for the displaced judges, but unlike the act of 1802 the act +of 1913[99] provided for the redistribution of the Commerce Court judges +among the Circuit Courts of Appeals and the transfer of its jurisdiction +to the district courts.[100] + + +COMPENSATION + +The prohibition against the diminution of judicial salaries has +presented very little litigation. In 1920 in Evans _v._ Gore[101] the +Court invalidated the application of the Income Tax as applied to a +federal judge, over the strong dissent of Justice Holmes, who was joined +by Justice Brandeis. This ruling was extended in Miles _v._ Graham[102] +to exempt the salary of a judge of the Court of Claims appointed +subsequent to the enactment of the taxing act. Evans _v._ Gore was +disapproved and Miles _v._ Graham in effect overruled in O'Malley, +Collector of Internal Revenue _v._ Woodrough,[103] where the Court +upheld section 22 of the Revenue Act of 1932 (now 26 U.S.C.A. 22 (a)) +which extended the application of the Income Tax to salaries of judges +taking office after June 6, 1932. Such a tax was regarded neither as an +unconstitutional diminution of the compensation of judges nor as an +encroachment on the independence of the judiciary.[104] To subject +judges who take office after a stipulated date to a nondiscriminatory +tax laid generally on an income, said the Court, "is merely to recognize +that judges are also citizens, and that their particular function in +government does not generate an immunity from sharing with their fellow +citizens the material burden of the government whose Constitution and +laws they are charged with administering."[105] + + +Diminution of Salaries + +The Appropriations Act of 1932 reduced "the salaries and retired pay of +all judges (except judges whose compensation may not, under the +Constitution, be diminished during their continuance in office)," by +8-1/3 per cent if below $10,000, or to $10,000 if above that figure. +While this provision presented no questions of its own +constitutionality, it did raise the question of what judges' salaries +could be constitutionally reduced. In O'Donoghue _v._ United +States[106] the section was held inapplicable to the salaries of judges +of the courts of the District of Columbia on the ground that as to their +organization and tenure and compensation, Congress was limited by the +provisions of article III. In Williams _v._ United States,[107] on the +other hand, it was ruled that the reduction was applicable to the +salaries of the judges of the Court of Claims, that being a legislative +court created in pursuance of the power of Congress to pay the debts of +the United States and to consent to suits against the United States. As +such it is not within the provisions of article III respecting the +tenure and compensation of judges. + + +COURTS OF SPECIALIZED JURISDICTION + +By virtue of its power "to ordain and establish" courts Congress has +occasionally created courts under article III to exercise a specialized +jurisdiction. Otherwise these tribunals are like other article III +courts in that they exercise "the judicial power of the United States," +and only that power, that their judges must be appointed by the +President and the Senate and must hold office during good behavior +subject to removal by impeachment only, and that the compensation of +their judges cannot be diminished during their continuance in office. +One example of such courts was the Commerce Court created by the +Mann-Elkins Act of 1910,[108] which was given exclusive jurisdiction of +all cases to enforce orders of the Interstate Commerce Commission except +those involving money penalties and criminal punishment; of cases +brought to enjoin, annul, or set aside orders of the Commission; of +cases brought under the act of 1903 to prevent unjust discriminations; +and of all mandamus proceedings authorized by the act of 1903. This +court actually functioned for less than three years, being abolished in +1913, as was mentioned above. + + +The Emergency Court of Appeals of 1942 + +Another court of specialized jurisdiction but created for a limited time +only was the Emergency Court of Appeals organized by the Emergency Price +Control Act of January 30, 1942.[109] By the terms of the statute this +court consisted of three or more judges designated by the Chief Justice +from the judges of the United States district courts and circuit courts +of appeal. The Chief Justice was authorized to designate one of the +judges as chief judge, to designate additional judges from time to time, +and to revoke designations. The chief judge in turn was authorized to +divide the Court into divisions of three or more members each, with any +such division empowered to render judgment as the judgment of the +Court. The Court was vested with jurisdiction and powers of a district +court to hear appeals filed within thirty days against denials of +protests by the Price Administrator and with exclusive jurisdiction to +set aside regulations, orders, or price schedules, in whole or in part, +or to remand the proceeding. But no regulation or price schedule could +be set aside or enjoined unless the Court was satisfied that it was +contrary to law or was arbitrary or capricious. Even then the +effectiveness of a restraining order was to be suspended for thirty days +and, if appealed to the Supreme Court within thirty days, until its +final disposition. Although the act deprived the district courts of the +power to enjoin the enforcement of orders and price schedules, it vested +them with jurisdiction to enforce the act and orders issued thereunder +in actions brought by the Administrator to enjoin violations and to try +criminal prosecutions brought by the Attorney General. Since the +Emergency Court of Appeals, subject to review by the Supreme Court, was +given exclusive jurisdiction to determine the validity of any order +issued under the act, it resulted that the district courts were deprived +of the power to inquire into the validity of orders involved in civil or +criminal proceedings in which they had jurisdiction.[110] + + +Judicial Review Restrained + +In Yakus _v._ United States[111] the Court held in an opinion by Chief +Justice Stone that there is "no principle of law or provision of the +Constitution which precludes Congress from making criminal the violation +of an administrative regulation, by one who has failed to avail himself +of an adequate separate procedure for the adjudication of its validity, +or which precludes the practice, in many ways desirable, of splitting +the trial for violations of an administrative regulation by committing +the determination of the issue of its validity to the agency which +created it, and the issue of violation to a court which is given +jurisdiction to punish violations. Such a requirement presents no novel +constitutional issue."[112] In a dissent Justice Rutledge took issue +with this holding, saying: "It is one thing for Congress to withhold +jurisdiction. It is entirely another to confer it and direct that it be +exercised in a manner inconsistent with constitutional requirements or, +what in some instances may be the same thing, without regard to them. +Once it is held that Congress can require the courts criminally to +enforce unconstitutional laws or statutes, including regulations, or to +do so without regard for their validity, the way will have been found to +circumvent the supreme law and, what is more, to make the courts parties +to doing so. This Congress cannot do. There are limits to the judicial +power. Congress may impose others. And in some matters Congress or the +President has final say under the Constitution. But whenever the +judicial power is called into play, it is responsible directly to the +fundamental law and no other authority can intervene to force or +authorize the judicial body to disregard it. The problem therefore is +not solely one of individual right or due process of law. It is equally +one of the separation and independence of the powers of government and +of the constitutional integrity of the judicial process, more especially +in criminal trials."[113] + + +LEGISLATIVE COURTS: THE CANTER CASE + +Quite distinct from special courts exercising the judicial power of the +United States, but at the same time a significant part of the federal +judiciary, are the legislative courts, so called because they are +created by Congress in pursuance of its general legislative powers. The +distinction between constitutional courts and legislative courts was +first made in American Insurance Company _v._ Canter,[114] which +involved the question of the admiralty jurisdiction of the territorial +court of Florida, the judges of which were limited to a four-year term +in office. Said Chief Justice Marshall for the Court: "These courts, +then, are not constitutional courts, in which the judicial power +conferred by the Constitution on the general government, can be +deposited. They are incapable of receiving it. They are legislative +courts, created in virtue of the general right of sovereignty which +exists in the government, or in virtue of that clause which enables +Congress to make all needful rules and regulations, respecting the +territory belonging to the United States. The jurisdiction with which +they are invested, is not a part of that judicial power which is defined +in the 3rd article of the Constitution, but is conferred by Congress, in +the execution of those general powers which that body possesses over the +territories of the United States."[115] The Court went on to hold that +admiralty jurisdiction can be exercised in the States in those courts +only which are established in pursuance of article III, but that the +same limitation does not apply to the territorial courts; for, in +legislating for them, "Congress exercises the combined powers of the +general, and of a State government."[116] + + +Other Legislative Courts + +The distinction made in the Canter case has been repeated with +elaborations since 1828, receiving its fullest exposition in Ex parte +Bakelite Corporation,[117] which contains a review of the history of +legislative courts and the cases supporting the power of Congress to +create them. In addition to discussing the derivation of power to +establish legislative courts, the Bakelite case ruled that such courts +"also may be created as special tribunals to examine and determine +various matters, arising between the government and others, which from +their nature do not require judicial determination and yet are +susceptible of it. The mode of determining matters of this class is +completely within Congressional control. Congress may reserve to itself +the power to decide, may delegate that power to executive officers, or +may commit it to judicial tribunals."[118] Among the matters susceptible +of judicial determination but not requiring it are claims against the +States,[119] the disposal of the public lands and claims arising +therefrom,[120] questions concerning membership in the Indian +tribes,[121] and questions arising out of the administration of the +customs and internal revenue laws.[122] For the determination of these +matters Congress has created the Court of Claims, the Court of Private +Land Claims, the Choctaw and Chickasaw Citizenship Court, the Court of +Customs, the Court of Customs and Patent Appeals, and the Tax Court of +the United States (formerly the Board of Tax Appeals). + + +Power of Congress Over Legislative Courts + +In creating legislative courts Congress is not limited by the +restrictions imposed in article III concerning tenure during good +behavior and the prohibition against limitation of salaries. Congress +may limit tenure to a term of years, as it has done in acts creating +territorial courts and the Tax Court of the United States, and it may +subject the judges of legislative courts to removal by the +President.[123] In McAllister _v._ United States,[124] the removal of a +territorial judge was sustained on the basis of the principle that: "The +whole subject of the organization of territorial courts, the tenure by +which the judges of such courts shall hold their offices, the salary +they receive and the manner in which they may be removed or suspended +from office, was left, by the Constitution, with Congress under its +plenary power over the Territories of the United States."[125] Long +afterwards the Court held in Williams _v._ United States[126] that the +reduction of the salaries of the judges of the Court of Claims, and +inferentially of judges of other legislative courts, to $10,000 per year +by the Appropriation Act of June 30, 1932, was constitutional. In so +doing the Court rejected dicta in earlier cases which classified the +Court of Claims as a constitutional court and silently reversed Miles +_v._ Graham,[127] which had held that Congress could not include the +salary of a judge of the Court of Claims in his taxable income. + + +Status of the Court of Claims + +It follows, too, that in creating legislative courts, Congress can vest +in them nonjudicial functions of a legislative or advisory nature and +deprive their judgments of finality. Thus in Gordon _v._ United +States[128] there was no objection to the power of the Secretary of the +Treasury and Congress to revise or suspend the early judgments of the +Court of Claims. Likewise in United States _v._ Ferreira[129] the Court +sustained the act conferring powers on the Florida territorial court to +examine claims arising under the Spanish treaty and to report his +decisions and the evidence on which they were based to the Secretary of +the Treasury for subsequent action. "A power of this description," it +was said, "may constitutionally be conferred on a Secretary as well as +on a commissioner. But [it] is not judicial in either case, in the sense +in which judicial power is granted by the Constitution to the courts of +the United States." + + +A Judicial Paradox + +Chief Justice Taney's view in the Gordon case that the judgments of +legislative courts could never be reviewed by the Supreme Court was +tacitly rejected in De Groot _v._ United States,[130] when the Court +took jurisdiction from a final judgment of the Court of Claims. Since +the decision of this case in 1867 the authority of the Supreme Court to +exercise appellate jurisdiction over legislative courts has turned not +upon the nature or status of such courts, but rather upon the nature of +the proceeding before the lower Court and the finality of its judgment. +Consequently in proceedings before a legislative court which are +judicial in nature and admit of a final judgment the Supreme Court may +be vested with appellate jurisdiction. Thus there arises the workable +anomaly that though the legislative courts can exercise no part of the +judicial power of the United States and the Supreme Court can exercise +only that power, the latter nonetheless can review judgments of the +former. However, it should be emphasized that the Supreme Court will +neither review the administrative proceedings of legislative courts nor +entertain appeals from the advisory or interlocutory decrees of such +courts.[131] + + +STATUS OF THE COURTS OF THE DISTRICT OF COLUMBIA + +Through a long course of decisions the courts of the District of +Columbia were regarded as legislative courts upon which Congress could +impose nonjudicial functions. In Butterworth _v._ United States ex rel. +Hoe,[132] the Court sustained an act of Congress which conferred +revisionary powers upon the Supreme Court of the District in patent +appeals and made its decisions binding only upon the Commissioner of +Patents. Similarly, the Court later sustained the authority of Congress +to vest revisionary powers in the same court over rates fixed by a +public utilities commission.[133] Not long after this the same rule was +applied to the revisionary power of the District Supreme Court over +orders of the Federal Radio Commission.[134] These rulings were based on +the assumption, express or implied, that the courts of the District were +legislative courts, created by Congress in pursuance of its plenary +power to govern the District of Columbia. In an obiter dictum in Ex +parte Bakelite Corporation,[135] while reviewing the history and +analyzing the nature of legislative courts, the Court stated that the +courts of the District were legislative courts. + +In 1933, nevertheless, the Court, abandoning all previous dicta on the +subject, found the courts of the District of Columbia to be +constitutional courts exercising judicial power of the United +States,[136] with the result of shouldering the task of reconciling the +performance of nonjudicial functions by such courts with the rule that +constitutional courts can exercise only the judicial power of the United +States. This task was easily accomplished by the argument that in +establishing courts for the District, Congress is performing dual +functions in pursuance of two distinct powers, the power to constitute +tribunals inferior to the Supreme Court, and its plenary and exclusive +power to legislate for the District of Columbia. However, article III, +Sec. 1, limits this latter power with respect to tenure and compensation, +but not with regard to vesting legislative and administrative powers in +such courts. Subject to the guarantees of personal liberty in the +Constitution, "Congress has as much power to vest courts of the District +with a variety of jurisdiction and powers as a State legislature has in +conferring jurisdiction on its courts."[137] The effect of the +O'Donoghue decision is to confer a dual status on the courts of the +District of Columbia. As regards their organization, and the tenure and +compensation of their judges they are constitutional courts, as regards +jurisdiction and powers they are simultaneously legislative and +constitutional courts, and as such can be vested with nonjudicial powers +while sharing the judicial power of the United States.[138] + + +Jurisdiction: Cases and Controversies + + +Section 2. The judicial Power shall extend to all Cases, in Law +and Equity, arising under this Constitution, the Laws of the United +States, and Treaties made, or which shall be made, under their +Authority;--to all Cases affecting Ambassadors, other public Ministers +and Consuls;--to all Cases of admiralty and maritime Jurisdiction;--to +Controversies to which the United States shall be a Party;--to +Controversies between two or more States;--between a State and Citizens +of another State;--between Citizens of different States;--between +Citizens of the same State claiming Lands under Grants of different +States, and between a State, or the Citizens thereof, and foreign +States, Citizens or Subjects. + + +THE TWO CLASSES OF CASES AND CONTROVERSIES + +By the terms of the foregoing section the judicial power extends to nine +classes of cases and controversies, which fall into two general groups. +In the words of Chief Justice Marshall in Cohens _v._ Virginia:[139] "In +the first, their jurisdiction depends on the character of the cause, +whoever may be the parties. This class comprehends 'all cases in law and +equity arising under this constitution, the laws of the United States, +and treaties made, or which shall be made, under their authority.' This +cause extends the jurisdiction of the Court to all the cases described, +without making in its terms any exception whatever, and without any +regard to the condition of the party. If there be any exception, it is +to be implied, against the express words of the article. In the second +class, the jurisdiction depends entirely on the character of the +parties. In this are comprehended 'controversies between two or more +States, between a State and citizens of another State,' and 'between a +State and foreign States, citizens or subjects.' If these be the +parties, it is entirely unimportant, what may be the subject of +controversy. Be it what it may, these parties have a constitutional +right to come into the courts of the Union."[140] + +Judicial power is "the power of a court to decide and pronounce a +judgment and carry it into effect between persons and parties who bring +a case before it for decision."[141] The meaning attached to the terms +"cases" and "controversies" determines therefore the extent of the +judicial power, as well as the capacity of the federal courts to receive +jurisdiction. As Chief Justice Marshall declared in Osborn _v._ Bank of +the United States, judicial power is capable of acting only when the +subject is submitted in a case, and a case arises only when a party +asserts his rights "in a form prescribed by law."[142] Many years later +Justice Field, relying upon Chisholm _v._ Georgia,[143] and Tucker's +edition of Blackstone, amended this definition by holding that +"controversies," to the extent that they differ from "cases," include +only suits of a civil nature. He continued: "By cases and controversies +are intended the claims of litigants brought before the courts for +determination by such regular proceedings as are established by law or +custom for the protection or enforcement of rights, or the prevention, +redress, or punishment of wrongs. Whenever the claim of a party under +the Constitution, laws, or treaties of the United States takes such a +form that the judicial power is capable of acting upon it, then it has +become a case. The term implies the existence of present or possible +adverse parties whose contentions are submitted to the Court for +adjudication."[144] The definitions propounded by Chief Justice Marshall +and Justice Field were quoted with approval in Muskrat _v._ United +States,[145] where the Court held that the exercise of judicial power is +limited to cases and controversies and emphasized "adverse litigants," +"adverse interests," an "actual controversy," and conclusiveness or +finality of judgment as essential elements of a case.[146] + + +ADVERSE LITIGANTS + +The necessity of adverse litigants with real interests has been stressed +in numerous cases,[147] and has been particularly emphasized in suits to +contest the validity of a federal or State statute. A few illustrations +will suffice to describe the practical operation of these limitations. +In Chicago and Grand Trunk Railroad Co. _v._ Wellman,[148] which +originated in the courts of Michigan on an agreed statement of facts +between friendly parties desiring to contest a rate-making statute, the +Supreme Court ruled there was no case or controversy. In the course of +its opinion, which held that the courts have no "immediate and general +supervision" of the constitutionality of legislative enactments, the +Court said: "Whenever, in pursuance of an honest and actual antagonistic +assertion of rights by one individual against another, there is +presented a question involving the validity of any act of any +legislature, State or Federal, and the decision necessarily rests on the +competency of the legislature to so enact, the court must, in the +exercise of its solemn duties, determine whether the act be +constitutional or not; but such an exercise of power is the ultimate and +supreme function of courts. It is legitimate only in the last resort, +and as a necessity in the determination of real, earnest and vital +controversy between individuals. It never was the thought that, by means +of a friendly suit, a party beaten in the legislature could transfer to +the courts an inquiry as to the constitutionality of the legislative +act."[149] + +In applying the rule requiring adverse litigants to present an honest +and actual antagonistic assertion of rights, the Court invalidated an +act of Congress which authorized certain Indians to bring suits against +the United States to test the constitutionality of the Indian allotment +acts, on the ground that such a proceeding was not a case or controversy +in that the United States had no interest adverse to the claimants.[150] +The Court has also held that in contesting the validity of a statute, +the issue must be raised by one adversely affected and not a stranger to +the operation of the statute,[151] and that the interest must be of a +personal as contrasted with an official interest.[152] Hence a county +court cannot contest the validity of a statute in the interest of third +parties,[153] nor can a county auditor contest the validity of a statute +even though he is charged with its enforcement,[154] nor can directors +of an irrigation district occupy a position antagonistic to it.[155] It +is a well settled rule that: "The Court will not pass upon the +constitutionality of legislation * * *, or upon the complaint of one who +fails to show that he is injured by its operation, * * *"[156] It is +equally well established as a corollary that, "litigants may challenge +the constitutionality of a statute only insofar as it affects +them."[157] + + +STOCKHOLDERS' SUITS + +It must be noted, however, that adversity is a relative element which +the courts may or may not discover. Thus in Pollock _v._ Farmers' Loan +and Trust Co.,[158] the Supreme Court sustained the jurisdiction of a +district court which had enjoined the company from paying an income tax +even though the suit was brought by a stockholder against the company, +thereby circumventing section 3224 of the Revised Statutes, which +forbids the maintenance in any court of a suit "for the purpose of +restraining the collection of any tax."[159] Subsequently the Court has +found adversity of parties in a suit brought by a stockholder to +restrain a title company from investing its funds in farm loan bonds +issued by the federal land banks,[160] and in a suit brought by certain +preferred stockholders against the Alabama Power Company and the TVA to +enjoin the performance of contracts between the company and the +authority and a subsidiary, the Electric Home and Farm Authority, on the +ground that the act creating these agencies was unconstitutional.[161] +The ability to find adversity in narrow crevices of casual disagreement +is well illustrated by Carter _v._ Carter Coal Co.,[162] where the +President of the company brought suit against the company and its +officials, among whom was Carter's father who was Vice President of the +Company.[163] The Court entertained the suit and decided the case on its +merits. + + +SUBSTANTIAL INTEREST DOCTRINE + +Equally important as an essential element of a case is the concept of +real or substantial interests. As a general rule the interest of +taxpayers in the general funds of the federal Treasury is insufficient +to give them a standing in court to contest the expenditure of public +funds on the ground that this interest "is shared with millions of +others; is comparatively minute and indeterminable; and the effect upon +future taxation, of any payment out of the funds, so remote, fluctuating +and uncertain, that no basis is afforded for an appeal to the preventive +powers of a court of equity."[164] Likewise, the Court has held that the +general interest of a citizen in having the government administered by +law does not give him a standing to contest the validity of governmental +action.[165] Nor can a member of the bar of the Supreme Court challenge +the validity of an appointment to the Court since his "is merely a +general interest common to all members of the public."[166] Similarly an +electric power company has been held not to have a sufficient interest +to maintain an injunction suit to restrain the making of federal loans +and grants to municipalities for the construction or purchase of +electric power distribution plants on the ground that the "lender owes +the sufferer no enforcible duty to refrain from making the unauthorized +loan; and the borrower owes him no obligation to refrain from using the +proceeds in any lawful way the borrower may choose."[167] Recent cases, +involving the issue of religion in the schools, reach somewhat divergent +results. In Illinois ex rel. McCollum _v._ Board of Education,[168] the +Court held that a litigant had the requisite standing to bring a +mandamus suit challenging, on the basis of her interests as a resident +and taxpayer of the school district and the parent of a child required +by law to attend the school or one meeting the State's educational +requirements, the validity of a religious education program involving +the use of public school rooms one half hour each week. But in Doremus +_v._ Board of Education,[169] decided early in 1952, the Court declined +jurisdiction in a case challenging the validity of a New Jersey statute +which requires the reading at the opening of each public school day of +five verses of the Old Testament. Appellants' interest as taxpayers was +found to be insufficient to sustain the proceeding. + + +Substantial Interest in Suits by States + +These principles have been applied in a number of cases to which a State +was one of the parties and in suits between States. One of the most +important of these is State of Georgia _v._ Stanton,[170] which was an +original suit in equity brought by the State of Georgia against the +Secretary of War and others to enjoin the enforcement of the +Reconstruction Acts. The State's counsel contended that enforcement of +the acts brought about "an immediate paralysis of all the authority and +power of the State government by military force; * * * [which was +divesting the State] of her legally and constitutionally established and +guaranteed existence as a body politic and a member of the Union." The +Supreme Court dismissed the suit for want of jurisdiction, holding that +for a case to be presented for the exercise of the judicial power, the +rights threatened "must be rights of persons or property, not merely +political rights, which do not belong to the jurisdiction of a court, +either in law or equity."[171] The rule of the Stanton case was applied +and elaborated in Massachusetts _v._ Mellon,[172] where the State in its +own behalf and as _parens patriae_ sought to enjoin the administration +of the Maternity Act[173] which, it was alleged, was an unconstitutional +invasion of the reserved rights of the State and an impairment of its +sovereignty. The suit was held not justiciable on the ground that a +State cannot maintain a suit either to protect its political rights or +as _parens patriae_ to protect citizens of the United States against the +operation of a federal law. Concerning the right of a State to sue in +its own behalf to protect its political rights, the Court said: "In that +aspect of the case we are called upon to adjudicate, not rights of +person or property, not rights of dominion over physical domain, not +quasi sovereign rights actually invaded or threatened, but abstract +questions of political power, of sovereignty, of government."[174] +However, these holdings do not affect the right of a State as _parens +patriae_ to intervene in behalf of the economic welfare of its citizens +against discriminatory rates set by an alleged illegal combination of +carriers,[175] or the right of a State to assert its quasi sovereign +rights over wild life within its domain,[176] or to protect its citizens +against the discharge of noxious gases by an industrial plant in an +adjacent State.[177] + + +ABSTRACT, CONTINGENT, AND HYPOTHETICAL QUESTIONS + +Closely related to the requirements of adverse parties and substantial +interests is that of a _real_ issue as contrasted with _speculative_, +abstract, hypothetical, or moot cases. As put by Chief Justice Stone in +Alabama State Federation of Labor _v._ McAdory,[178] it has long been +the Court's "considered practice not to decide abstract, hypothetical or +contingent questions," or as Justice Holmes said years earlier by way of +dictum, a party cannot maintain a suit "for a mere declaration in the +air."[179] Texas _v._ Interstate Commerce Commission,[180] presents a +good illustration of an abstract question. Here, Texas attempted to +enjoin the enforcement of the Transportation Act of 1920 on the ground +that it invaded the reserved rights of the State. The Court dismissed +the complaint as presenting no case or controversy, declaring: "It is +only where rights, in themselves appropriate subjects of judicial +cognizance, are being, or about to be, affected prejudicially by the +application or enforcement of a statute that its validity may be called +in question by a suitor and determined by an exertion of the judicial +power."[181] Again in Ashwander _v._ Tennessee Valley Authority,[182] +the Court refused to decide any issue save that of the validity of the +contracts between the Authority and the Company because, "The +pronouncements, policies and program of the Tennessee Valley Authority +and its directors, their motives and desires, did not give rise to a +justiciable controversy save as they had fruition in action of a +definite and concrete character constituting an actual or threatened +interference with the rights of the persons complaining." Chief Justice +Hughes cited New York _v._ Illinois,[183] where the Court dismissed a +suit as presenting abstract questions "as to the possible effect of the +diversion of water from Lake Michigan upon hypothetical water power +developments in the indefinite future."[184] He also cited among other +cases Arizona _v._ California,[185] where it was held that claims based +merely upon assumed potential invasions of rights were not enough to +warrant judicial intervention. + +The concepts of real interests and abstract questions again appear +prominently in United Public Workers of America _v._ Mitchell.[186] Here +a number of government employees sued to enjoin the Civil Service +Commission from enforcing the prohibitions of the Hatch Act against +activity in political management or campaigns, and to obtain a +declaratory judgment that the act was invalid. Except for one of the +employees none had violated the act, but they did state that they +desired to engage in the forbidden political activities. The Court held +that as to all the parties save the one who had violated the act there +was no justiciable controversy. "Concrete legal issues, presented in +actual cases, not abstractions" were declared to be requisite. The +generality of their objection was regarded as really an attack on the +political expediency of the Hatch Act.[187] + +From the rule that courts will not render advisory opinions or write +essays in political theory on speculative issues, it follows logically +that they will not determine moot cases or suits arranged by collusion +between parties who have no opposing interests. A moot case has been +defined as "one which seeks to get a judgment on a pretended +controversy, when in reality there is none, or a decision in advance +about a right before it has been actually asserted and contested, or a +judgment upon some matter which, when rendered, for any reason, cannot +have any practical legal effect upon a then existing controversy."[188] +Cases may become moot because of a change in the law, or the status of +the litigants, or because of some act of the parties which dissolves the +controversy.[189] Just as courts will not speculate an hypothetical +question, so they will not analyze dead issues.[190] The duty of every +federal court, said Justice Gray, "is to decide actual controversies by +a judgment which can be carried into effect, and not give opinions upon +moot questions or abstract propositions, or to declare principles or +rules of law which cannot affect the matter at issue in the case before +it."[191] + + +POLITICAL QUESTIONS + +The rule has been long established that the courts have no general +supervisory power over the executive or administrative branches of +government.[192] In Decatur _v._ Paulding,[193] which involved an +attempt by mandamus to compel the Secretary of the Navy to pay a +pension, the Supreme Court in sustaining denial of relief stated: "The +interference of the courts with the performance of the ordinary duties +of the executive departments of the government, would be productive of +nothing but mischief; and we are quite satisfied, that such a power was +never intended to be given to them."[194] It follows, therefore, that +mandamus will lie against an executive official only to compel the +performance of a ministerial duty which admits of no discretion as +contrasted with executive or political duties which admit of +discretion.[195] It follows, too, that an injunction will not lie +against the President,[196] or against the head of an executive +department to control the exercise of executive discretion.[197] These +principles are well illustrated by Georgia _v._ Stanton,[198] +Mississippi _v._ Johnson,[199] and Kendall _v._ United States ex rel. +Stokes.[200] + + +Origin of the Concept + +The concept of "political question" is an old one. As early as Marbury +_v._ Madison,[201] Chief Justice Marshall stated: "The province of the +court is, solely, to decide on the rights of individuals, not to inquire +how the executive, or executive officers, perform duties in which they +have a discretion. Questions in their nature political, or which are, by +the constitution and laws, submitted to the executive, can never be made +in this court." The concept, as distinguished from that of interference +with executive functions, was first elaborated in Luther _v._ +Borden,[202] which involved the meaning of "a republican form" of +government and the question of the lawful government of Rhode Island +among two competing groups purporting to act as the lawful authority. +"It is the province of a court to expound the law, not to make it," +declared Chief Justice Taney. "And certainly it is no part of the +judicial functions of any court of the United States to prescribe the +qualification of voters in a State, * * *; nor has it the right to +determine what political privileges the citizens of a State are entitled +to, unless there is an established constitution or law to govern its +decision."[203] The Court went on to hold that such matters as the +guaranty to a State of a republican form of government and of protection +against invasion and domestic violence are political questions committed +to Congress and the President whose decisions are binding upon the +courts.[204] + + +Exemplifications of the Doctrine + +From this case and later applications of it, a political question may be +defined as a question relating to the possession of political power, of +sovereignty, of government, the determination of which is vested in +Congress and the President whose decisions are conclusive upon the +courts. The more common classifications[205] of cases involving +political questions are: (1) those which raise the issue of what proof +is required that a statute has been enacted,[206] or a constitutional +amendment ratified;[207] (2) questions arising out of the conduct of +foreign relations;[208] (3) the termination of wars,[209] or +rebellions;[210] the questions of what constitutes a republican form of +government,[211] and the right of a state to protection against invasion +or domestic violence;[212] questions arising out of political actions of +States in determining the mode of choosing presidential electors,[213] +State officials,[214] and reapportionment of districts for Congressional +representation;[215] and suits brought by States to test their political +and so-called sovereign rights.[216] The leading case on the evidence +required to prove the enactment of a statute is Field _v._ Clark,[217] +where it was held that the enactment of a statute is conclusively proved +by the enrolled act signed by the speaker of the House of +Representatives and the President of the Senate, and the Court will not +look beyond these formalities of record by examining the journals of the +two houses of Congress or other records. Similarly, the Court has held +that the efficacy of the ratification of a proposed constitutional +amendment in the light of previous rejection or subsequent attempted +withdrawal is political in nature, pertaining to the political +departments, with the ultimate authority in Congress by virtue of its +control over the promulgation of the adoption of amendments.[218] +Simultaneously, the Court ruled that the question of the lapse of a +reasonable length of time between proposal and ratification is for +Congress to determine and not the Court.[219] + + +Recent Cases + +A few cases will suffice to illustrate the application of the concept of +political questions since 1938. In Colegrove _v._ Green,[220] a +declaratory judgment was sought to have the division of Illinois into +Congressional districts declared invalid as a violation of the equal +protection of the laws. Justice Frankfurter in announcing the judgment +of the Court, in an opinion in which Justices Reed and Burton joined, +was of the opinion that dismissal of the suit was required both by the +decision in Wood _v._ Broom,[221] that there is no federal requirement +that Congressional districts shall contain as nearly as practicable an +equal number of inhabitants, and because the question was not +justiciable. Justice Rutledge thought that Smiley _v._ Holm[222] +indicated that the question was justiciable but concurred in the result +on the ground that the case was one in which the courts should decline +to exercise jurisdiction.[223] Justice Black in a dissent supported by +Justices Douglas and Murphy thought that the case was justiciable and +would have invalidated the reapportionment, leaving the State free to +elect all of its representatives from the State at large.[224] In +MacDougall _v._ Green,[225] however, the Court seemed to regard as +justiciable the question of the validity of the provision of the +Illinois Election Code requiring that a petition for the nomination of +candidates of a new political party be signed by 25,000 voters including +at least 200 from each of at least 50 of the States' 102 counties, for +it went on to sustain the provision in a brief _per curiam_ opinion. In +Ludecke _v._ Watkins,[226] the Court held, as it had earlier, that the +determination of the cessation of a state of war is a question for the +political branch of the Government and not for the courts. Nevertheless, +the Court actually found a state of war to exist between the United +States and Germany after the end of hostilities, and ruled that an enemy +alien is not entitled to judicial review in a deportation proceeding. +Very recently in South _v._ Peters,[227] the Court refused to pass upon +the validity of the county unit scheme used in Georgia for the +nomination of candidates in primary elections. + + +ADVISORY OPINIONS + +Perhaps no portion of Constitutional Law pertaining to the judiciary has +evoked such unanimity as the rule that the federal courts will not +render advisory opinions. In 1793 the Supreme Court refused to grant the +request of President Washington and Secretary of State Jefferson to +construe the treaties and laws of the United States pertaining to +questions of international law arising out of the wars of the French +Revolution. After convening the Court which considered the request, +Chief Justice Jay replied to President Washington concerning the +functions of the three departments of government: "These being in +certain respects checks upon each other, and our being Judges of a Court +in the last resort, are considerations which afford strong arguments +against the propriety of our extra-judicially deciding the questions +alluded to, especially as the power given by the Constitution to the +President, of calling on the heads of departments for opinions, seems to +have been _purposely_ as well as expressly united to the _Executive_ +departments."[228] Since 1793 the Court has frequently reiterated the +early view that the federal courts organized under article III cannot +render advisory opinions or that the rendition of advisory opinions is +not a part of the judicial power of the United States.[229] + +Even in the absence of this early precedent, the rule that +constitutional courts will render no advisory opinions would have +logically emerged from the rule subsequently developed, that +constitutional courts can only decide cases and controversies in which +an essential element is a final and binding judgment on the parties. As +stated by Justice Jackson, when the Court refused to review an order of +the Civil Aeronautics Board, which in effect was a mere recommendation +to the President for his final action, "To revise or review an +administrative decision which has only the force of a recommendation to +the President would be to render an advisory opinion in its most +obnoxious form--advice that the President has not asked, tendered at the +demand of a private litigant, on a subject concededly within the +President's exclusive, ultimate control. This Court early and wisely +determined that it would not give advisory opinions even when asked by +the Chief Executive. It has also been the firm and unvarying practice of +Constitutional Courts to render no judgments not binding and conclusive +on the parties and none that are subject to later review or alteration +by administrative action."[230] The early refusal of the Court to render +advisory opinions has discouraged direct requests for advice so that the +advisory opinion has appeared only collaterally in cases where there was +a lack of adverse parties,[231] or where the judgment of the Court was +subject to later review or action by the executive or legislative +branches of government,[232] or where the issues involved were abstract +or contingent.[233] + + +DECLARATORY JUDGMENTS + +The rigid emphasis placed upon such elements of the judicial power as +finality of judgment and an award of execution in United States _v._ +Ferreira,[234] Gordon _v._ United States[235], and Liberty Warehouse +_v._ Grannis,[236] coupled with the equally rigid emphasis upon adverse +parties and real interests as essential elements of a case or +controversy in Muskrat _v._ United States,[237] created serious doubts +concerning the validity of a proposed federal declaratory judgment act. +These were dispelled to some extent by Fidelity National Bank _v._ +Swope,[238] which held that an award of execution is not an essential +part of every judgment and contained general statements in opposition to +the principles of the Grannis and Willing cases. Then in 1933 the +Supreme Court entertained an appeal from a declaratory judgment rendered +by the Tennessee Courts in Nashville, C. & St. L.R. Co. _v._ +Wallace,[239] and in doing so declared that the Constitution does not +require that a case or controversy be presented by traditional forms of +procedure, involving only traditional remedies, and that article III +defined and limited judicial power not the particular method by which +that power may be invoked or exercised. The Federal Declaratory +Judgments Act of 1934 was in due course upheld in Aetna Life Insurance +Co. _v._ Haworth,[240] as a valid exercise of Congressional power over +the practice and procedure of federal courts which includes the power to +create and improve as well as to abolish or restrict. + + +The Declaratory Judgment Act of 1934 + +The act of 1934 was carefully drawn, and provided that: "In cases of +actual controversy the courts of the United States shall have power +* * * to declare rights and other legal relations of any interested +party petitioning for such declaration, whether or not further relief is +or could be prayed, and such declaration shall have the force and +effect of a final judgment or decree and be reviewable as such." The +other two sections provided for further relief whenever necessary and +proper and for jury trials of matters of fact.[241] In the first case +involving private parties exclusively to arise under the act, Aetna Life +Insurance Co. _v._ Haworth,[242] the Court held that a declaration +should have been issued by the district court, although it reiterated +with the usual emphasis the necessity of adverse parties, a justiciable +controversy and specific relief. In the Ashwander case it approved the +refusal of the lower Court to issue a declaration generally on the +constitutionality of the Tennessee Valley Authority, because the act of +1934 applied only to "cases of actual controversy." In the same case the +Court itself refused to pass upon the navigability of the New and +Kanawha rivers and the authority of the Federal Power Commission even at +the request of the United States, on the ground that the bill did no +more than state a difference of opinion between the United States and +West Virginia to which the judicial power did not extend.[243] +Similarly, in Electric Bond & Share Co. _v._ Securities and Exchange +Commission,[244] the Court refused to decide any constitutional issues +arising out of the Public Utility Holding Company Act of 1935 except the +registration provisions because the cross bill in which the company had +asked for a declaration that the whole act was unconstitutional was +regarded as presenting a variety of hypothetical questions that might +never become real. + + +The "Case" or "Controversy" Test in Declaratory Judgment Proceedings + +The insistence of the Court upon the rule that "the requirements for a +justiciable case or controversy are no less strict in a declaratory +judgment proceeding than in any other type of suit,"[245] and the fact +that many actions for a declaration of rights have involved the validity +of legislation, where the Court is even more insistent upon the +essentials of a case, have done much to limit the use of the declaratory +judgment. There are, nevertheless, a number of cases, some of which +involved constitutional issues, in which a declaratory judgment has been +rendered. Among these are Currin _v._ Wallace,[246] where tobacco +warehousemen and auctioneers contested the validity of the Tobacco +Inspection Act under which the Secretary of Agriculture had already +designated a tobacco market for inspection and grading; Perkins _v._ +Elg,[247] where a natural-born citizen of naturalized parents who left +the country during her minority sought to establish her status as a +citizen; Maryland Casualty Co. _v._ Pacific Coal and Oil Co.,[248] where +a liability insurer sought to establish his lack of liability in an +automobile collision case; and Aetna Life Insurance Co. _v._ +Haworth,[249] where a declaration was sought under the disability +benefit clauses of an insurance policy. As stated by Justice Douglas for +the Court in the Maryland Casualty case: "The difference between an +abstract question and a 'controversy' contemplated by the Declaratory +Judgment Act is necessarily one of degree, and it would be difficult, if +it would be possible, to fashion a precise test for determining in every +case whether there is such a controversy. Basically, the question in +each case is whether the facts alleged, under all the circumstances, +show that there is a substantial controversy, between parties having +adverse legal interests, of sufficient immediacy and reality to warrant +the issuance of a declaratory judgment."[250] It remains, therefore, for +the courts to determine in each case the degree of controversy necessary +to establish a case for purposes of jurisdiction. Even, then, however, +the Court is under no compulsion to exercise its jurisdiction.[251] + + +Cases Arising Under the Constitution, Laws and Treaties of the United +States + + +DEFINITION + +Cases arising under the Constitution are cases which require an +interpretation of the Constitution for their correct decision.[252] They +arise when a litigant claims an actual or threatened invasion of his +constitutional rights by the enforcement of some act of public +authority, usually an act of Congress or of a State legislature, and +asks for judicial relief. The clause furnishes the textual basis for the +fountain-head of American Constitutional Law, in the strict sense of the +term, which fountain-head is Judicial Review, or the power and duty of +the courts to pass upon the constitutional validity of legislative acts +which they are called upon to recognize and enforce in cases coming +before them, and to declare void and refuse enforcement to such as do +not accord with their own interpretation of the Constitution. + + +JUDICIAL REVIEW + +The supremacy clause clearly recognizes judicial review of State +legislative acts in relation not only to the Constitution, but also in +relation to acts of Congress which are "in pursuance of the +Constitution," and in relation to "treaties made or which shall be made +under the authority of the United States." These constitute "the supreme +law of the land," and "the judges in every State shall be bound thereby, +anything in the Constitution or laws of any State to the contrary +notwithstanding." This provision was originally implemented by the +famous twenty-fifth section of the Judiciary Act of 1789 which provided +that final judgments or decrees of the highest courts of law or equity +in the States in which a decision could be had, "where is drawn in +question the validity of a treaty or statute of, or an authority +exercised under the United States, and the decision is against their +validity; or where is drawn in question the validity of a statute of, or +an authority exercised under any State, on the ground of their being +repugnant to the Constitution, treaties or laws of the United States, +and the decision is in favour of such their validity, or where is drawn +in question the construction of any clause of the Constitution, or of a +treaty, or statute of, or commission held under the United States, and +the decision is against the title, right, privilege or exemption +specially set up or claimed by either party, under such clause of the +said Constitution, treaty, statute or commission, may be re-examined and +reversed or affirmed in the Supreme Court of the United States upon a +writ of error, * * *"[253] + + +JUDICIAL REVIEW AND NATIONAL SUPREMACY + +A quarter of a century after its enactment the validity of this section +was challenged on States' Rights premises in Martin _v._ Hunter's +Lessee,[254] and seven years after that in Cohens _v._ Virginia.[255] +The States' Rights argument was substantially the same in both cases. It +amounted to the contention that while the courts of Virginia were +constitutionally obliged to prefer "the supreme law of the land" as +defined in the supremacy clause over conflicting State laws it was only +by their own interpretation of the said supreme law that they, as the +courts of a sovereign State, were bound. Furthermore, it was contended +that cases did not "arise" under the Constitution unless they were +brought in the first instance by some one claiming such a right, from +which it followed that "the judicial power of the United States" did not +"extend" to such cases unless they were brought in the first instance in +the courts of the United States. In answer to these arguments Chief +Justice Marshall declared that: "A case in law or equity consists of +the right of the one party, as well as of the other, and may truly be +said to arise under the Constitution or a law of the United States, +whenever its correct decision depends upon the construction of +either."[256] Passing then to broader considerations, he continued: "Let +the nature and objects of our Union be considered; let the great +fundamental principles, on which the fabric stands, be examined; and we +think, the result must be, that there is nothing so extravagantly +absurd, in giving to the Court of the nation the power of revising the +decisions of local tribunals, on questions which affect the nation, as +to require that words which import this power should be restricted by a +forced construction."[257] + + +JUDICIAL REVIEW OF ACTS OF CONGRESS + +Judicial review of acts of Congress is not provided for in the +Constitution in such explicit terms as is judicial review of State +legislation, but it is nevertheless fairly evident that its existence is +assumed. In the first place, the term "cases arising under the +Constitution" is just as valid a textual basis for the one type of +constitutional case as for the other; and, in the second place, it is +clearly indicated that acts of Congress are not "supreme law of the +land" unless they are "in pursuance of the Constitution," thus evoking a +question which must be resolved in the first instance by State judges, +when State legislation coming before them for enforcement is challenged +in relation to "the supreme law of the land." Furthermore, most of the +leading members of the Federal Convention are on record +contemporaneously, though not always in the Convention itself, as +accepting the idea.[258] + + +HAMILTON'S ARGUMENT + +The argument for judicial review of acts of Congress was first +elaborated in full by Alexander Hamilton in the Seventy-eighth Number of +_The Federalist_ while the adoption of the Constitution was pending. +Said Hamilton: "The interpretation of the laws is the proper and +peculiar province of the courts. A constitution is, in fact, and must be +regarded by the judges as a fundamental law. It must therefore belong to +them to ascertain its meaning, as well as the meaning of any particular +act proceeding from the legislative body. If there should happen to be +an irreconcilable variance between the two, that which has the superior +obligation and validity ought, of course, to be preferred; or in other +words, the Constitution ought to be preferred to the statute, the +intention of the people to the intention of their [legislative] +agents."[259] It was also set forth as something commonly accepted by +Justice Iredell in 1798 in Calder _v._ Bull[260] in the following words: +"If any act of Congress, or of the Legislature of a state, violates +those constitutional provisions, it is unquestionably void; though, I +admit, that as the authority to declare it void is of a delicate and +awful nature, the Court will never resort to that authority, but in a +clear and urgent case." And between these two formulations of the +doctrine, the membership of the Supreme Court had given it their +sanction first individually, then as a body. In Hayburn's Case,[261] the +Justices while on circuit court duty refused to administer the Invalid +Pensions Act,[262] which authorized the circuit courts to dispose of +pension applications subject to review by the Secretary of War and +Congress on the ground that the federal courts could be assigned only +those functions such as are properly judicial and to be performed in a +judicial manner. In Hylton _v._ United States,[263] a made case in which +Congress appropriated money to pay counsel on both sides of the +argument, the Court passed on the constitutionality of the carriage tax +and sustained it as valid, and in so doing tacitly assumed that it had +the power to review Congressional acts. + + +MARBURY _v._ MADISON + +All the above developments were, however, only preparatory. Judicial +review of acts of Congress was made Constitutional Law, and thereby the +cornerstone of American constitutionalism, by the decision of the +Supreme Court, speaking through Chief Justice Marshall in the famous +case of Marbury _v._ Madison[264] decided in February, 1803. The facts +of the case briefly stated are that Marbury had been appointed a justice +of the peace in the District of Columbia by John Adams almost at the +close of his administration, and John Marshall who was serving +simultaneously as Secretary of State failed to deliver to Marbury his +commission which had been signed before the new administration had +begun. One of the first acts of Jefferson was his instruction to +Secretary of State Madison to withhold commissions to office which +remained undelivered. Thereupon Marbury sought to compel Madison to +deliver the commission by seeking a writ of mandamus in the Supreme +Court in the exercise of its original jurisdiction and in pursuance of +section 13 of the Judiciary Act of 1789[265] which prescribed the +original jurisdiction of the Court and authorized it to issue writs of +mandamus "in cases warranted by the principles and usages of law, to any +courts appointed, or persons holding office, under the authority of the +United States." + + +Marshall's Argument + +In the portion of his opinion dealing with judicial review Marshall +began his argument with the assumption that "the people have an original +right to establish, for their future government, such principles as, in +their opinion, shall most conduce to their own happiness * * *" and, +once established, these principles are fundamental. Second, the +Government of the United States is limited in its powers by a written +Constitution. The Constitution either "controls any legislative act +repugnant to it; or, * * * the legislature may alter the Constitution by +an ordinary act." But the Constitution is paramount law and written as +such. "It is emphatically the province and duty of the judicial +department to say what the law is. * * * If two laws conflict with each +other, the courts must decide on the operation of each. * * * If, then, +the courts are to regard the Constitution, and the Constitution is +superior to any ordinary act of the legislature, the Constitution, and +not such ordinary act, must govern the case to which they both apply." +To declare otherwise, the Chief Justice concluded, would be subversive +of the very foundation of all written constitutions, would force the +judges to close their eyes to the Constitution, and would make the +judicial oath "a solemn mockery."[266] The Court must therefore look +into some portions of the Constitution, and if they can open it at all, +what part of it are they forbidden to read or obey? In conclusion the +Chief Justice declared that the Constitution is mentioned first in the +supremacy clause and that "the particular phraseology of the +Constitution * * * confirms and strengthens the principle, supposed to +be essential to all written constitutions, that a law repugnant to the +Constitution is void; and that courts, as well as other departments, [of +government] are bound by that instrument."[267] + + +Importance of Marbury _v._ Madison + +The decision in Marbury _v._ Madison has never been disturbed, although +it has often been criticized. Nor was its contemporary effect confined +to the national field. From that time on judicial review by State courts +of local legislation in relation to the local constitutions made rapid +progress and was securely established in all States by 1850 under the +influence not only of Marbury _v._ Madison, but also of early principles +of judicial review established in the circuit courts of the United +States.[268] + + +LIMITS TO THE EXERCISE OF JUDICIAL REVIEW + +Because judicial review is an outgrowth of the fiction that courts only +declare what the law is in specific cases,[269] and are without will or +discretion,[270] its exercise is surrounded by the inherent limitations +of the judicial process and notably the necessity of a case or +controversy between adverse litigants with a standing in court to +present the issue of unconstitutionality in which they are directly +interested. The requisites to a case or controversy have been treated +more extensively above, but it may be noted that the Supreme Court has +repeatedly emphasized the necessity of "an honest and actual +antagonistic assertion of rights by one individual against +another,"[271] and its lack of power to supervise legislative functions +in friendly proceedings, moot cases, or cases which present abstract +issues.[272] + + +The Doctrine of "Strict Necessity" + +But even when a case involving a constitutional issue is presented, the +Court has repeatedly stated that it will decide constitutional questions +only if strict necessity requires it to do so. Hence constitutional +issues will not be decided in broader terms than are required by the +precise state of facts to which the ruling is to be applied; nor if the +record presents some other ground upon which to decide the case; nor at +the instance of one who has availed himself of the benefit of a statute +or who fails to show he is injured by its operation; nor if a +construction of the statute is fairly possible by which the question may +be fairly avoided.[273] Speaking of the policy of avoiding the decision +of constitutional issues except when necessary Justice Rutledge, +speaking for the Court, declared in 1947: "The policy's ultimate +foundations, some if not all of which also sustain the jurisdictional +limitation, lie in all that goes to make up the unique place and +character, in our scheme, of judicial review of governmental action for +constitutionality. They are found in the delicacy of that function, +particularly in view of possible consequences for others stemming also +from constitutional roots; the comparative finality of those +consequences; the consideration due to the judgment of other +repositories of constitutional power concerning the scope of their +authority; the necessity, if government is to function constitutionally, +for each to keep within its power, including the courts; the inherent +limitations of the judicial process, arising especially from its largely +negative character and limited resources of enforcement; withal in the +paramount importance of constitutional adjudication in our system."[274] + + +The Doctrine of Political Questions + +A third limitation to the exercise of judicial review is the rule, +partly inherent in the judicial process, but also partly a precautionary +rule adopted by the Court in order to avoid clashes with the "political +branches," is that the federal courts will not decide "political +questions."[275] + + +The "Reasonable Doubt" Doctrine + +A fourth rule, of a precautionary nature, is that no act of legislation +will be declared void except in a very clear case, or unless the act is +unconstitutional beyond all reasonable doubt.[276] Sometimes this rule +is expressed in another way, in the formula that an act of Congress or a +State legislature is presumed to be constitutional until proved +otherwise "beyond all reasonable doubt."[277] In operation this rule is +subject to two limitations which seriously impair its efficacy. The +first is that the doubts which are effective are the doubts of the +majority only. If five Justices of learning and attachment to the +Constitution are convinced that the statute is invalid and four others +of equal learning and attachment to the Constitution are convinced that +it is valid or are uncertain that it is invalid, the convictions of the +five prevail over the convictions or doubts of the four, and vice versa. +Second, the Court has made exceptions to this rule in certain categories +of cases. At one time statutes interfering with freedom of contract were +presumed to be unconstitutional until proved valid,[278] and more +recently presumptions of invalidity have appeared to prevail against +statutes alleged to interfere with freedom of expression and of +religious worship, which have been said to occupy a preferred position +in the Constitution.[279] + + +Exclusion of Extra-Constitutional Tests + +A fifth maxim of constitutional interpretation runs to the effect that +the Courts are concerned only with the constitutionality of legislation +and not with its motives, policy or wisdom, or with its concurrence with +natural justice, fundamental principles of government, or spirit of the +Constitution.[280] In various forms this maxim has been repeated to such +an extent that it has become trite and has increasingly come to be +incorporated in constitutional cases as a reason for fortifying a +finding of unconstitutionality. Through absorption of natural rights +doctrines into the text of the Constitution, the Court was enabled to +reject natural law and still to partake of its fruits, and the same is +true of the _laissez faire_ principles incorporated in judicial +decisions from about 1890 to 1937. Such protective coloration is +transparent in such cases as Lochner _v._ New York[281] and United +States _v._ Butler.[282] + + +Disallowance by Statutory Interpretation + +A sixth principle of constitutional interpretation designed by the +courts to discourage invalidation of statutes is that if at all possible +the courts will construe the statute so as to bring it within the law of +the Constitution.[283] At times this has meant that a statute was +construed so strictly in order to avoid constitutional difficulties that +its efficacy was impaired if not lost.[284] A seventh principle closely +related to the preceding one is that in cases involving statutes, +portions of which are valid and other portions invalid, the courts will +separate the valid from the invalid and throw out only the latter unless +such portions are inextricably connected.[285] Sometimes statutes +expressly provide for the separability of provisions, but it remains for +the courts in the last resort to determine whether the provisions are +separable.[286] + + +_Stare Decisis_ in Constitutional Law + +An eighth limitation on the power of the federal courts to invalidate +legislation springs from the principle of _stare decisis_, a limitation +which has been progressively weakened since the Court proceeded to +correct "a century of error" in Pollock _v._ Farmers' Loan & Trust +Co.[287] Because of the difficulty of amending the Constitution the +Court has long taken the position that it will reverse its previous +decisions on constitutional issues when convinced they are grounded on +error more quickly than in other types of cases in which earlier +precedents are not absolutely binding.[288] The "constitutional +revolution" of 1937 produced numerous reversals of earlier precedents as +other sections of this study disclose, and the process continues. In +Smith _v._ Allwright,[289] which reversed Grovey _v._ Townsend,[290] +Justice Reed cited fourteen cases decided between March 27, 1937, and +June 14, 1943, in which one or more earlier decisions of constitutional +questions were overturned. Although the general effect of the numerous +reversals of precedent between 1937 and 1950 was to bring judicial +interpretation more generally into accord with the formal text of the +Constitution, and to dispose of a considerable amount of constitutional +chaff, Justice Roberts was moved to say in the Allwright case that +frequent reversals of earlier decisions tended to bring adjudications of +the Supreme Court "into the same class as a restricted railroad ticket, +good for this day and train only."[291] A ninth limitation which has +nothing to do with statutory or constitutional construction as such and +which is altogether precautionary is that the Court will declare no +legislative act void unless a majority of its full membership so +concurs.[292] + +The cumulative effect of these limitations is difficult to measure. The +limitation imposed by the case concept definitely has the effect of +postponing judicial nullification, but beyond this the most that can be +said is that constitutional issues affecting important issues can +ordinarily be presented in a case and so will sooner or later reach the +Court. The limitations of the presumptions of statutory validity, lack +of concern with the wisdom of the legislation, alternative construction, +separability of provisions and the like depend for their effectiveness +upon the consciousness of the individual judge of the judicial +proprieties and have been equally endorsed by those judges most +frequently addressing themselves to the task of finding legislation +invalid. The limitation imposed by the concept of political questions +does not limit in any significant way the power of the federal courts to +review legislation, but does remove from judicial scrutiny vast areas of +executive action. In general, therefore, the extent to and manner in +which the courts will exercise their power to review legislation is a +matter of judicial discretion. + + +ALLEGATIONS OF FEDERAL QUESTION + +The question of jurisdiction of cases involving federal questions is +determined by the allegations made by the plaintiff and not upon the +facts as they may emerge or by a decision of the merits.[293] +Plaintiffs seeking to docket such cases in the federal courts must set +forth a substantial claim under the Constitution, laws or treaties of +the United States.[294] Nor does jurisdiction arise simply because an +averment of a federal right is made, "if it plainly appears that such +averment is not real and substantial, but is without color of +merit."[295] The federal question averred may be insubstantial because +obviously without merit, or because its unsoundness so clearly results +from previous decisions of the Supreme Court as to foreclose the issue +and leaves no room for the inference that the questions sought to be +raised can be subjects of controversy.[296] In Gully _v._ First National +Bank[297] the Court reviewed earlier precedents and endeavored to +restate the rules for determining when a case arises. First there must +be a right or immunity created by the Constitution, laws, or treaties of +the United States which must be such that it will be supported if the +Constitution, laws, or treaties are given one construction, or defeated +if given another. Second, a genuine and present controversy as +distinguished from a possible or conjectural one must exist with +reference to the federal right. Third, the controversy must be disclosed +upon the face of the complaint unaided by the answer.[298] + + +CORPORATIONS CHARTERED BY CONGRESS + +The earlier hospitality of the federal courts to cases involving federal +questions is also manifested in suits by corporations chartered by +Congress. Although in Bank of United States _v._ Deveaux[299] the Court +held that the first Bank of the United States could not sue in the +federal courts merely because it was incorporated by an act of Congress, +the act incorporating the second bank authorized such suits and this +authorization was not only sustained in Osborn _v._ Bank of United +States,[300] but an act of incorporation was declared to be a law of the +United States for purposes of jurisdiction in cases involving federal +questions. Consequently, the door was opened to other federally +chartered corporations to go into the federal courts after the act of +1875 vested original jurisdiction generally in the lower courts of such +questions. Corporations, chartered by Congress, particularly railroads, +quickly availed themselves of this opportunity, and succeeded in the +Pacific Railroad Removal Cases[301] in removing suits from the State to +the federal courts in cases involving no federal question solely on the +basis of federal incorporation. The result of this and similar cases was +Congressional legislation depriving national banks of the right to sue +in the federal courts solely on the basis of federal incorporation in +1882,[302] depriving railroads holding federal charters of this right in +1915,[303] and finally in 1925 removing from federal jurisdiction +involving federal questions all suits brought by federally chartered +corporations, solely on the basis of federal incorporation, except where +the United States holds half of the stock.[304] + + +REMOVAL FROM STATE COURTS OF SUITS AGAINST FEDERAL OFFICIALS + +Of greater significance and of immediate importance to the maintenance +of national supremacy are those cases involving State prosecution of +federal officials for acts committed under the color of federal +authority. As early as 1815 Congress provided temporarily for the +removal of prosecutions against customs officials for acts done or +omitted as an officer or under color of an act of Congress, except for +offenses involving corporal punishment.[305] In 1833, in partial answer +to South Carolina's Nullification Proclamation, Congress enacted the +so-called Force Act providing for removal from State courts of all +prosecutions against any officer of the United States or under color +thereof.[306] As a part of the Civil War legislation and limited to the +war period, an act in 1863 provided for removal from State courts of +cases brought against federal officials for acts committed during the +war and justified under the authority of Congress and the +President.[307] The act of 1833, with amendments, has been kept in +force. Since 1948 the United States Code has provided for the removal to +a federal district court of civil actions or criminal prosecutions in +State courts against "any officer of the United States or any agency +thereof, or person acting under him, for any act under color of such +office or on account of any right, title or authority claimed under any +Act of Congress for the apprehension or punishment of criminals or the +collection of the revenue."[308] + + +Tennessee _v._ Davis + +The validity of the act of 1833 as it was carried over into the Revised +Statutes, Sec. 643, was contested in Tennessee _v._ Davis,[309] which +involved the attempt of a State to prosecute a deputy collector of +internal revenue who had killed a man while seeking to seize an illicit +distilling apparatus. In an opinion in the tradition of Martin _v._ +Hunter's Lessee[310] and Cohens _v._ Virginia,[311] Justice Strong +emphasized the power of the National Government to protect itself in the +exercise of its constitutional powers, the inability of a State to +exclude it from the exercise of any authority conferred by the +Constitution, and the comprehensive nature of the term "cases in law and +equity arising under the Constitution, the laws of the United States, +and treaties * * *" which was held to embrace criminal prosecutions as +well as civil actions. Then speaking of a case involving federal +questions he said: "It is not merely one where a party comes into court +to demand something conferred upon him by the Constitution or by a law +or treaty. A case consists of the right of one party as well as the +other, and may truly be said to arise under the Constitution or a law or +a treaty of the United States whenever its correct decision depends upon +the construction of either. Cases arising under the laws of the United +States are such as grow out of the legislation of Congress, whether they +constitute the right or privilege, or claim or protection, or defense of +the party, in whole or in part, by whom they are asserted."[312] + + +SUPREME COURT REVIEW OF STATE COURT DECISIONS + +In addition to the constitutional issues presented earlier by Sec. 25 of +the act of 1789, which was superseded in 1934 when the "Writ of error" +was replaced by "Appeal," issues have continued to arise concerning its +application which go directly to the nature and extent of the Supreme +Court's appellate jurisdiction. These have to do with such matters as +the existence of a federal question, exhaustion of remedies in State +courts, and review of findings of fact by State courts. Whether a +federal question has been adequately presented to and decided by a State +court has been held to be in itself a federal question, to be decided by +the Supreme Court on appeal.[313] Likewise a contention that a decision +of a State court disregarded decrees of a United States Court has been +held to bring a case within the Court's jurisdiction;[314] also a +decision by a State court which was adverse to an asserted federal right +although, as the record of the case showed, it might have been based +upon an independent and adequate nonfederal ground.[315] This latter +ruling, however, was qualified during the same term of Court in a case +which held that it is essential to the jurisdiction of the Supreme +Court, in reviewing a decision of a State court that it must appear +affirmatively from the record, not only that a federal question was +presented for determination, but that its decision was necessary to the +determination of the cause; that the federal question was actually +decided, or that the judgment could not have been given without deciding +it.[316] + +These rules all flow from the broader principle that if the laws and +Constitution of the United States are to be observed, the Supreme Court +cannot accept as final the decision of a State court on matters alleged +to give rise to an asserted federal right.[317] Consequently, the +Supreme Court will review the findings of fact by a State court where a +federal right has been denied by a finding shown by the record to be +without evidence to support it, and where a conclusion of law as to a +federal right and findings of facts are so intermingled as to make it +necessary to analyze the facts in order to pass upon the federal +question.[318] It should be noted, too, that barring exceptional +circumstances such as those in Gilchrist _v._ Interborough Rapid Transit +Co.,[319] which involved intricate contracts between the City of New +York and the company, the meaning of which had not been determined by +the State courts, or explicit statutory provisions as in 28 U.S.C.A. +Sec. 1331-1332, 1345, 1359, resort to a federal court may precede the +exhaustion of remedies of State courts.[320] + + +Suits Affecting Ambassadors, Other Public Ministers, and Consuls + +The earliest interpretation of the grant of original jurisdiction to the +Supreme Court came in the Judiciary Act of 1789, which conferred on the +federal district courts jurisdiction of suits to which a consul might be +a party. This legislative interpretation was sustained in 1793 in a +circuit court case in which the judges held that Congress might vest +concurrent jurisdiction involving consuls in the inferior courts and +sustained an indictment against a consul.[321] Many years later, in +1884, the Supreme Court held that consuls could be sued in the federal +courts,[322] and in another case in the same year declared sweepingly +that Congress could grant concurrent jurisdiction to the inferior courts +in cases where the Supreme Court has been invested with original +jurisdiction.[323] Nor does the grant of original jurisdiction to the +Supreme Court in cases affecting ambassadors and consuls of itself +preclude suits in State courts against consular officials. The leading +case is Ohio ex rel. Popovici _v._ Agler[324] in which a Rumanian +vice-consul contested an Ohio judgment against him for divorce and +alimony. Justice Holmes, speaking for the Court, said: "The words quoted +from the Constitution do not of themselves and without more exclude the +jurisdiction of the State. * * * It has been understood that, 'the whole +subject of the domestic relations of husband and wife, parent and child, +belongs to the laws of the States and not to the laws of the United +States.' * * * In the absence of any prohibition in the Constitution or +laws of the United States it is for the State to decide how far it will +go." + + +WHEN "AMBASSADORS" ETC., ARE "AFFECTED" + +A number of incidental questions arise in connection with the phrase +"affecting ambassadors and consuls." Does the ambassador or consul to be +affected have to be a party in interest, or is a mere indirect interest +in the outcome of the proceeding sufficient? In United States _v._ +Ortega,[325] the Court ruled that a prosecution of a person for +violating international law and the laws of the United States by +offering violence to the person of a foreign minister was not a suit +"affecting" the minister, but a public prosecution for vindication of +the laws of nations and the United States. Another question concerns +the official status of a person claiming to be an ambassador, etc. In Ex +parte Baiz,[326] the Court refused to review the decision of the +Executive with respect to the public character of a person claiming to +be a public minister and laid down the rule that it has the right to +accept a certificate from the Department of State on such a question. A +third question was whether the clause included ambassadors and consuls +accredited by the United States to foreign governments. The Court held +that it includes only persons accredited to the United States by foreign +governments.[327] However, matters of especial delicacy such as suits +against ambassadors and public ministers or their servants, where the +law of nations permits such suits, and in all controversies of a civil +nature to which a State is a party,[328] Congress has made the original +jurisdiction of the Supreme Court exclusive of that of other courts. By +its compliance with the Congressional distribution of exclusive and +concurrent original jurisdiction, the Court has tacitly sanctioned the +power of Congress to make such jurisdiction exclusive or concurrent as +it may choose. Likewise, as in the Popovici case, it has implied that +Congress, if it chose, could make the court's jurisdiction of consular +officials exclusive of State Courts. + + +Cases of Admiralty and Maritime Jurisdiction + + +ORIGIN AND CHARACTERISTICS + +The admiralty and maritime jurisdiction of the federal courts had its +origin in the jurisdiction vested in the courts of the Admiral of the +English Navy. Prior to independence, vice-admiralty courts were created +in the Colonies by commissions from the English High Court of Admiralty. +After independence, the States established admiralty courts, from which +at a later date appeals could be taken to a court of appeals set up by +Congress under the Articles of Confederation.[329] Since one of the +objectives of the Philadelphia Convention was the promotion of commerce +and the removal of obstacles to it, it was only logical that the +Constitution should deprive the States of all admiralty jurisdiction and +vest it exclusively in the federal courts. + + +CONGRESSIONAL INTERPRETATION OF THE ADMIRALTY CLAUSE + +The Constitution uses the terms "admiralty and maritime jurisdiction" +without defining them. Though closely related the words are not +synonyms. In England the word "maritime" referred to the cases arising +upon the high seas, whereas "admiralty" meant primarily cases of a +local nature involving police regulations of shipping, harbors, fishing, +and the like. A long struggle between the admiralty and common law +courts had, however, in the course of time resulted in a considerable +curtailment of English admiralty jurisdiction. For this and other +reasons, a much broader conception of admiralty and maritime +jurisdiction existed in the United States at the time of the framing of +the Constitution than in the Mother Country.[330] At the very beginning +of government under the Constitution, Congress conferred on the federal +district courts exclusive original cognizance "of all civil causes of +admiralty and maritime jurisdiction, including all seizures under laws +of impost, navigation or trade of the United States, where the seizures +are made, on waters which are navigable from the sea by vessels of ten +or more tons burthen, within their respective districts, as well as upon +the high seas; saving to suitors, in all cases, the right of a common +law remedy, where the common law is competent to give it; * * *"[331] +This broad legislative interpretation of admiralty and maritime +jurisdiction soon won the approval of the federal circuit courts, which +ruled that the extent of admiralty and maritime jurisdiction was not to +be determined by English law but by the principles of maritime law "as +respected by maritime courts of all nations and adopted by most, if not +by all, of them on the continent of Europe."[332] + + +JUDICIAL APPROVAL OF CONGRESSIONAL INTERPRETATION + +Although a number of Supreme Court decisions had earlier sustained the +broader admiralty jurisdiction on specific issues,[333] it was not until +1848 that the Court ruled squarely in its favor, which it did by +declaring that, "whatever may have been the doubt, originally, as to the +true construction of the grant, whether it had reference to the +jurisdiction in England, or to the more enlarged one that existed in +other maritime countries, the question has become settled by legislative +and judicial interpretation, which ought not now to be disturbed."[334] +The Court thereupon proceeded to hold that admiralty had jurisdiction +_in personam_ as well as _in rem_, over controversies arising out of +contracts of affreightment between New York and Providence. + + +TWO TYPES OF CASES + +Admiralty and maritime jurisdiction comprises two types of cases: (1) +those involving acts committed on the high seas or other navigable +waters; and (2) those involving contracts and transactions connected +with shipping employed on the seas or navigable waters. In the first +category, which includes prize cases, and torts, injuries, and crimes +committed on the high seas, jurisdiction is determined by the locality +of the act; while in the second category subject matter is the primary +determinative factor.[335] Specifically, contract cases include suits by +seamen for wages,[336] cases arising out of marine insurance +policies,[337] actions for towage[338] or pilotage[339] charges, actions +on bottomry or respondentia bonds,[340] actions for repairs on a vessel +already used in navigation,[341] contracts of affreightment,[342] +compensation for temporary wharfage,[343] agreements of consortship +between the masters of two vessels engaged in wrecking,[344] and surveys +of damaged vessels.[345] In the words of the Court in Ex parte +Easton,[346] admiralty jurisdiction "extends to all contracts, claims +and services essentially maritime." + + +MARITIME TORTS + +Jurisdiction of maritime torts depends exclusively upon the commission +of the wrongful act upon navigable waters[347] regardless of the voyage +and the destination of the vessel.[348] By statutory elaboration, as +well as judicial decision, maritime torts include injuries to +persons,[349] damages to property arising out of collisions or other +negligent acts,[350] and violent dispossession of property.[351] But +until Congress makes some regulation touching the liability of parties +for marine torts resulting in the death of the persons injured, a State +statute providing "that when the death of one is caused by the wrongful +act or omission of another, the personal representatives of the former +may maintain an action therefor against the latter, if the former might +have maintained an action, had he lived, against the latter for an +injury for the same act or omission," applies, and, as thus applied, it +constitutes no encroachment upon the commerce power of Congress.[352] + + +PRIZE CASES, FORFEITURES, ETC. + +From the earliest days of the Republic, the federal courts sitting in +admiralty have been held to have exclusive jurisdiction of prize +cases.[353] Also, in contrast to other phases of admiralty jurisdiction +prize law as applied by the British courts continued to provide the +basis of American law so far as practicable,[354] and so far as it was +not modified by subsequent legislation, treaties, or executive +proclamations. Finally, admiralty and maritime jurisdiction comprises +the seizure and forfeiture of vessels engaged in activities in violation +of the laws of nations or municipal law, such as illicit trade,[355] +infraction of revenue laws,[356] and the like.[357] + + +PROCEEDINGS _IN REM_ + +Procedure in admiralty jurisdiction differs in few respects from +procedure in actions at law, but the differences that do exist are +significant. Suits in admiralty take the form of a proceeding _in rem_ +against the vessel and, with exceptions to be noted, proceedings _in +rem_ concerning navigable waters are confined exclusively to federal +admiralty courts. However, if a common law remedy exists, a plaintiff +may bring an action at law in either a State or federal court of +competent jurisdiction,[358] but in this event the action is a +proceeding _in personam_ against the owner of the vessel. On the other +hand, although the Court has sometimes used language which would confine +proceedings _in rem_ to admiralty courts,[359] yet it has sustained +proceedings _in rem_ in the State courts in actions of forfeiture. Thus +in the case of C.J. Hendry Co. _v._ Moore,[360] the Court held that a +proceeding _in rem_ in a State court against fishing nets in the +navigable waters of California was a common law proceeding within the +meaning of Sec. 9 of the Judiciary Act of 1789, and therefore within the +exception to the grant of admiralty jurisdiction to the federal courts. +At the same time, however, the Court was careful to confine such +proceedings to forfeitures arising out of violations of State law. + + +ABSENCE OF A JURY + +Another procedural difference between actions at law and in admiralty is +the absence of jury trial in civil proceedings in admiralty courts +unless Congress specifically provides for it. Otherwise the judge of an +admiralty court tries issues of fact as well as of law.[361] Indeed, the +absence of a jury in admiralty proceedings appears to have been one of +the reasons why the English government vested a broad admiralty +jurisdiction in the colonial vice-admiralty courts of America, since +they provided a forum where the English authorities could enforce the +Navigation Laws without what Chief Justice Stone called "the obstinate +resistance of American juries."[362] + + +TERRITORIAL EXTENT OF ADMIRALTY AND MARITIME JURISDICTION + +As early as 1821 a federal district court in Kentucky asserted admiralty +jurisdiction over inland waterways to the consternation of certain +interests in Kentucky which succeeded in inducing the Senate to pass a +bill confining admiralty jurisdiction to the ebb and flow of the tide, +only to see it defeated in the House.[363] However, in 1825, in _The +Thomas Jefferson_[364] the Court relieved these tensions by confining +admiralty jurisdiction to the high seas and upon rivers as far as the +ebb and flow of the tide extended in accordance with the English rule. +Twenty-two years later this rule was qualified in Waring _v._ +Clarke,[365] when the Court ruled that the admiralty jurisdiction under +the Constitution was not to be limited or interpreted by English rules +of admiralty and extended the jurisdiction of the federal courts to a +collision on the Mississippi River ninety-five miles above New Orleans. +In this ruling the Court moved in the direction of accommodating the +rising commerce on the inland waterways and prepared the way for the +Genesee Chief,[366] which reversed The Thomas Jefferson and sustained +the constitutionality of an act of Congress passed in 1845 giving the +district courts jurisdiction over the Great Lakes and connecting waters, +and so in effect extended the admiralty jurisdiction to all the +navigable waters of the United States.[367] The Genesee Chief therefore +vastly expanded federal power,[368] and marked a trend which was +continued in Ex parte Boyer,[369] where admiralty jurisdiction was +extended to canals, and in The Daniel Ball,[370] where it was extended +to waters wholly within a given State provided they form a connecting +link in interstate commerce. This latter case is also significant for +its definition of navigable waters of the United States as those that +are navigable in fact, and as navigable in fact when so "used, or * * * +susceptible of being used, in their ordinary condition, as highways for +commerce, over which trade and travel are or may be conducted in the +customary modes of trade and travel on water."[371] The doubts left by +the Ball case in its distinction between navigable waters of the United +States and navigable waters of the States were clarified by In re +Garnett,[372] where it was held that the power of Congress to amend the +maritime law was coextensive with that law and not confined "to the +boundaries or class of subjects which limit and characterize the power +to regulate commerce," and that the admiralty jurisdiction extends "to +all public navigable lakes and rivers." In United States _v._ +Appalachian Electric Power Co.,[373] the concept of "navigable waters of +the United States" was further expanded to include waterways which by +reasonable improvement can be made navigable for use in interstate +commerce provided there is a balance between cost and need at a time +when the improvement would be useful. Nor is it necessary that the +improvement shall have been undertaken or authorized. Conversely, a +navigable waterway of the United States does not cease to be so because +navigation has ceased, and it may be a navigable waterway for only part +of its course. Although this doctrine was announced as an interpretation +of the commerce clause, the Garnett case and the decision rendered in +Southern S.S. Co. _v._ National Labor Relations Board,[374] to the +effect that admiralty jurisdiction includes all navigable waters within +the country, makes it applicable also to the admiralty and maritime +clause. + + +ADMIRALTY JURISDICTION VERSUS STATE POWER + +The extension of the admiralty and maritime jurisdiction to navigable +waters within a State does not, however, of its own force include +general or political powers of government. Thus in the absence of +legislation by Congress, the States through their courts may punish +offenses upon their navigable waters and upon the sea within one marine +league of the shore. In United States _v._ Bevans[375] the Court denied +the jurisdiction of a federal circuit court to try defendant for a +murder committed in Boston Harbor in the absence of statutory +authorization of trials in federal courts for offenses committed within +the jurisdiction of a State. While admitting that Congress may pass all +laws which are necessary and proper for giving complete effect to +admiralty jurisdiction, Chief Justice Marshall at the same time declared +that "the general jurisdiction over the place, subject to this grant of +power, adheres to the territory, as a portion of sovereignty not yet +given away. The residuary powers of legislation are still in +Massachusetts."[376] + + +Exclusiveness of the Jurisdiction + +Determination of the bounds of admiralty jurisdiction is a judicial +function, and "no State law can enlarge it, nor can an act of Congress +or a rule of court make it broader than the judicial power may +determine to be its true limits."[377] Nor is the jurisdiction +self-executing. It can only be exercised under acts of Congress vesting +it in the federal courts.[378] The admiralty jurisdiction of the federal +courts was made exclusive of State court jurisdiction by the Judiciary +Act of 1789 according to The "Moses Taylor,"[379] which also held that +State laws conferring remedies _in rem_ could only be enforced in the +federal courts. Consequently, the State courts were deprived of +jurisdiction of a great number of cases arising out of maritime +contracts and torts over which they had exercised jurisdiction prior to +1866. However, as before noted, the ninth section of the act of 1789 +contained a provision, still in effect, which enables parties to avail +themselves in State courts of such remedies as the common law is +competent to give,[380] but in such cases the rights and obligations +involved are still determined by the maritime law.[381] + + +Concessions to State Power + +Nor does the exclusiveness of federal admiralty jurisdiction preclude +the States from creating rights enforceable in admiralty courts. In The +"Lottawanna,"[382] it was held that federal district courts sitting in +admiralty could enforce liens given for security of a contract even when +created by State laws. Likewise liabilities created by State statutes +for injuries resulting in death have been enforced by proceedings _in +rem_ in federal admiralty courts,[383] and, in the absence of +Congressional legislation, a State may enact laws governing the rights +and obligations of its citizens on the high seas. Under this general +rule a law of Delaware providing for damages for wrongful death was +enforced in an admiralty proceeding against a vessel arising out of a +collision at sea of two vessels owned by Delaware corporations.[384] And +in 1940, in Just _v._ Chambers,[385] the Supreme Court held specifically +applicable in admiralty proceedings the law of Florida whereby a cause +of action for personal injury due to another's negligence survives the +death of the tort-feasor against his estate and against the vessel. + + +The Jensen Case and Its Sequelae + +In the face of these decisions, except the last, the Court, +nevertheless, held in 1917 in Southern Pacific Co. _v._ Jensen[386] that +a New York Workman's Compensation statute was unconstitutional as +applied to employees engaged in maritime work. Proceeding on the +assumption that "Congress has paramount power to fix and determine the +maritime law which shall prevail through the country," and that in the +absence of a controlling statute the general maritime law as accepted by +the federal courts is a part of American national law, Justice +McReynolds proceeded to draw an analogy between the power of the States +to legislate on admiralty and maritime matters and their power to +legislate on matters affecting interstate commerce. Just as the States +may not regulate interstate commerce where the subject is national in +character and requires uniform regulation, so, he argued, they may not +legislate on maritime matters in such fashion as to destroy "the very +uniformity in respect to maritime matters which the Constitution was +designed to establish" or to hamper and impede freedom of navigation +between the States and with foreign countries. Nor could the act be +covered by the saving clause of the act of 1789 governing common law +remedies, since the remedy provided by the compensation statute was +unknown to the common law.[387] + +Following the Jensen decision Congress enacted a statute saving to +claimants their rights and remedies under State workmen's compensation +laws.[388] In Knickerbocker Ice Co. _v._ Stewart[389] the same majority +of judges, with Justice McReynolds again their spokesman, invalidated +this statute as an unconstitutional delegation of legislative power to +the States. The holding was based on the premise, stated as follows: +"The Constitution itself adopted and established, as part of the laws of +the United States, approved rules of the general maritime law and +empowered Congress to legislate in respect of them and other matters +within the admiralty and maritime jurisdiction. Moreover, it took from +the States all power, by legislation or judicial decision, to contravene +the essential purposes of, or to work material injury to, characteristic +features of such law or to interfere with its proper harmony and +uniformity in its international and interstate relations."[390] And a +like fate overtook the attempt of Congress in 1922 to protect +longshoremen and other workers under State compensation laws by +excluding masters and crew members of vessels from those who might claim +compensation for maritime injuries.[391] Finally, in 1927 Congress +passed the Longshoremen's and Harbor Workers' Act,[392] which provided +accident compensation for those workers who could not validly be +compensated under State statutes. This time it seems to have succeeded, +the constitutionality of the 1927 statute being apparently taken for +granted.[393] + +The net result of the Jensen Case and its progeny has been a series of +cases which hold that in some circumstances the States can apply their +compensation laws to maritime employees and in other circumstances +cannot, if to do so "works material prejudice to the characteristic +features of the general maritime law or interferes with the proper +harmony and uniformity of that law in its international and interstate +relations."[394] But, as Justice Black pointed out in 1942 in Davis _v._ +Department of Labor,[395] "when a State could, and when it could not, +grant protection under a compensation act was left as a perplexing +problem, for it was held 'difficult, if not impossible,' to define this +boundary with exactness."[396] Nor, he continued, has the Court been +able "to give any guiding, definite rule to determine the extent of +state power in advance of litigation, and has held that the margins of +state authority must 'be determined in view of surrounding circumstances +as cases arise.'"[397] As to the specific claim involved in the Davis +Case, Justice Black stated further that it was "fair to say that a +number of cases can be cited both in behalf of and in opposition to +recovery here."[398] Concurring in the Davis Case, Justice Frankfurter +referred to the Jensen case as "that ill-starred decision," but agreed +that reversal would not eliminate its resultant complexities and +confusions until Congress attempted another comprehensive solution of +the problem. Until then all the Court could do was "to bring order out +of the remaining judicial chaos as marginal situations" were +presented.[399] + + +POWER OF CONGRESS TO MODIFY THE MARITIME LAW; THE "LOTTAWANNA" + +In view of the chaos created by the Jensen case and its apparent +disharmony with earlier as well as some later decisions the question +arises as to the scope of Congress's power to revise and codify the +maritime law. In the "Lottawanna"[400] Justice Bradley as spokesman of +the Court, while admitting the existence of a general body of maritime +law, asserted that it is operative as law only insofar "as it is adopted +by the laws and usages of that country,"[401] subject to such +modifications and qualifications as may be made. So adopted and +qualified it becomes the law of a particular nation, but not until then. +"That we have a maritime law of our own, operative throughout the United +States, cannot be doubted. The general system of maritime law which was +familiar to the lawyers and statesmen of the country when the +Constitution was adopted, was most certainly intended and referred to +when it was declared in that instrument that the judicial power of the +United States shall extend 'to all cases of admiralty and maritime +jurisdiction.'" Continuing, Justice Bradley stated that "the +Constitution must have referred to a system of law coextensive with and +operating uniformly in, the whole country. It certainly could not have +been the intention to place the rules and limits of maritime law under +the disposal and regulation of the several States, as that would have +defeated the uniformity and consistency at which the Constitution aimed +on all subjects of a commercial character affecting the intercourse of +the States with each other or with foreign states."[402] However, the +framers of the Constitution could not have contemplated that the law +should remain ever the same, especially as Congress "has authority under +the commercial power, if no other, to introduce such changes as are +likely to be needed."[403] Sixteen years later in the Garnett case[404] +Justice Bradley, speaking for a unanimous court, asserted that the power +of Congress to amend the maritime law is coextensive with that law and +not limited by the boundaries of the commerce clause, and that the +maritime law is "subject to such amendments as Congress may see fit to +adopt."[405] Likewise, Justice McReynolds in Southern Pacific Co. _v._ +Jensen[406] emphasizes Congress' "paramount power to fix and determine +the maritime law which shall prevail throughout the country," albeit in +the absence of a controlling statute the general maritime law prevails; +and the language of Knickerbocker Ice Co. _v._ Stewart[407] is to like +effect, as is also that of Swanson _v._ Marra Bros.,[408] decided in +1946. + +The law administered by the federal courts sitting in admiralty is +therefore an amalgam of the general maritime law insofar as it is +acceptable to the courts, modifications of that law by Congressional +enactments, the common law of torts and contracts as modified by State +or National legislation, and international prize law. This body of law, +however, is subject at all times to the paramount authority of Congress +to change it in pursuance of its powers under the commerce clause, the +admiralty and maritime clause, and the necessary and proper clause. That +portion of the Jensen opinion emphasizing Congressional power in this +respect has never been in issue in either the opinions of the dissenters +in that case or in subsequent opinions critical of it, which in effect +invite Congress to exercise its power to modify the maritime law.[409] + + +Cases to Which the United States Is a Party: Right of the United States +To Sue + +As Justice Story pointed out in his Commentaries, "It would be a perfect +novelty in the history of national jurisprudence, as well as of public +law, that a sovereign had no authority to sue in his own courts."[410] +As early as 1818 the Supreme Court ruled that the United States could +sue in its own name in all cases of contract without Congressional +authorization of such suits.[411] Later this rule was extended to other +types of actions. In the absence of statutory provisions to the contrary +such suits are initiated by the Attorney General in the name of the +United States.[412] As in other judicial proceedings, the United States, +like any other party plaintiff, must have an interest in the subject +matter and a legal right to the remedy sought.[413] By the Judiciary Act +of 1789 and subsequent amendments Congress has vested jurisdiction in +the federal district courts to hear all suits of a civil nature at law +or in equity, brought by the United States as a party plaintiff.[414] + + +SUITS AGAINST STATES + +Controversies to which the United States is a party include suits +brought against States as party defendants. The first such suit occurred +in United States _v._ North Carolina[415] which was an action by the +United States to recover upon bonds issued by North Carolina. Although +no question of jurisdiction was raised, in deciding the case on its +merits in favor of the State, the Court tacitly assumed that it had +jurisdiction of such cases. The issue of jurisdiction was directly +raised by Texas a few years later in a bill in equity brought by the +United States to determine the boundary between Texas and the Territory +of Oklahoma, and the Court sustained its jurisdiction over strong +arguments by Texas to the effect that it could not be sued by the United +States without its consent and that the Supreme Court's original +jurisdiction did not extend to cases to which the United States is a +party.[416] Stressing the inclusion within the judicial power of cases +to which the United States and a State are parties, Justice Harlan +pointed out that the Constitution made no exception of suits brought by +the United States. In effect, therefore, consent to be sued by the +United States "was given by Texas when admitted to the Union upon an +equal footing in all respects with the other States."[417] + +Suits brought by the United States against States have, however, been +infrequent. All of them have arisen since 1889, and they have become +somewhat more common since 1926. That year the Supreme Court decided a +dispute between the United States and Minnesota over land patents issued +to the State by the United States in breach of its trust obligations to +the Indians.[418] In United States _v._ West Virginia,[419] the Court +refused to take jurisdiction of a suit in equity brought by the United +States to determine the navigability of the New and Kanawha Rivers on +the ground that the jurisdiction in such suits is limited to cases and +controversies and does not extend to the adjudication of mere +differences of opinion between the officials of the two governments. A +few years earlier, however, it had taken jurisdiction of a suit by the +United States against Utah to quiet title to land forming the beds of +certain sections of the Colorado River and its tributaries within the +States.[420] Similarly, it took jurisdiction of a suit brought by the +United States against California to determine the ownership of and +paramount rights over the submerged land and the oil and gas thereunder +off the coast of California between the low-water mark and the +three-mile limit.[421] Like suits were decided against Louisiana and +Texas in 1950.[422] + + +IMMUNITY OF THE UNITED STATES FROM SUIT + +In pursuance of the general rule that a sovereign cannot be sued in his +own courts, it follows that the judicial power does not extend to suits +against the United States unless Congress by general or special +enactment consents to suits against the Government. This rule first +emanated in embryo form in an _obiter dictum_ by Chief Justice Jay in +Chisholm _v._ Georgia, where he indicated that a suit would not lie +against the United States because "there is no power which the courts +can call to their aid."[423] In Cohens _v._ Virginia,[424] also by way +of dictum, Chief Justice Marshall asserted, "the universally received +opinion is, that no suit can be commenced or prosecuted against the +United States." The issue was more directly in question in United States +_v._ Clarke[425] where Chief Justice Marshall stated that as the United +States is "not suable of common right, the party who institutes such +suit must bring his case within the authority of some act of Congress, +or the court cannot exercise jurisdiction over it." He thereupon ruled +that the act of May 26, 1830, for the final settlement of land claims in +Florida condoned the suit. The doctrine of the exemption of the United +States from suit was repeated in various subsequent cases, without +discussion or examination.[426] Indeed, it was not until United States +_v._ Lee[427] that the Court examined the rule and the reasons for it, +and limited its application accordingly. + + +Waiver of Immunity by Congress + +Since suits against the United States can be maintained only by +permission, it follows that they can be brought only in the manner +prescribed by Congress and subject to the restrictions imposed.[428] +Only Congress can take the necessary steps to waive the immunity of the +United States from liability for claims, and hence officers of the +United States are powerless by their actions either to waive such +immunity or to confer jurisdiction on a federal court.[429] Even when +authorized, suits can be brought only in designated courts.[430] These +rules apply equally to suits by States against the United States.[431] +Although an officer acting as a public instrumentality is liable for his +own torts, Congress may grant or withhold immunity from suit on behalf +of government corporations.[432] + + +United States _v._ Lee + +United States _v._ Lee, a five-to-four decision, qualified earlier +holdings to the effect that where a judgment affected the property of +the United States the suit was in effect against the United States, by +ruling that title to the Arlington estate of the Lee family, then being +used as a national cemetery, was not legally vested in the United States +but was being held illegally by army officers under an unlawful order of +the President. In its examination of the sources and application of the +rule of sovereign immunity, the Court concluded that the rule "if not +absolutely limited to cases in which the United States are made +defendants by name, is not permitted to interfere with the judicial +enforcement of the rights of plaintiffs when the United States is not a +defendant or a necessary party to the suit."[433] Except, nevertheless, +for an occasional case like Kansas _v._ United States,[434] which held +that a State cannot sue the United States, most of the cases involving +sovereign immunity from suit since 1883 have been cases against +officers, agencies, or corporations of the United States where the +United States has not been named as a party defendant. Thus, it has been +held that a suit against the Secretary of the Treasury to review his +decision on the rate of duty to be exacted on imported sugar would +disturb the whole revenue system of the Government and would in effect +be a suit against the United States.[435] Even more significant is +Stanley _v._ Schwalby,[436] which resembles without paralleling United +States _v._ Lee, where it was held that an action of trespass against an +army officer to try title in a parcel of land occupied by the United +States as a military reservation was a suit against the United States +because a judgment in favor of the plaintiffs would have been a judgment +against the United States. + + +Difficulties Created by the Lee Case + +Subsequent cases repeat and reaffirm the rule of United States _v._ Lee +that where the right to possession or enjoyment of property under +general law is in issue, the fact that defendants claim the property as +officers or agents of the United States, does not make the action one +against the United States until it is determined that they were acting +within the scope of their lawful authority.[437] Contrariwise, the rule +that a suit in which the judgment would affect the United States or its +property is a suit against the United States has also been repeatedly +approved and reaffirmed.[438] But, as the Court has pointed out, it is +not "an easy matter to reconcile all of the decisions of the court in +this class of cases,"[439] and, as Justice Frankfurter quite justifiably +stated in a dissent, "the subject is not free from casuistry."[440] +Justice Douglas' characterization of Land _v._ Dollar, "this is the type +of case where the question of _jurisdiction_ is dependent on decision of +the _merits_,"[441] is frequently applicable. + + +Official Immunity Today + +The recent case of Larson _v._ Domestic and Foreign Corp.,[442] +illuminates these obscurities somewhat. Here a private company sought to +enjoin the Administrator of the War Assets in his official capacity from +selling surplus coal to others than the plaintiff who had originally +bought the coal, only to have the sale cancelled by the Administrator +because of the company's failure to make an advance payment. Chief +Justice Vinson and a majority of the Court looked upon the suit as one +brought against the Administrator in his official capacity, acting under +a valid statute, and therefore a suit against the United States. It held +that although an officer in such a situation is not immune from suits +for his own torts, yet his official action, though tortious cannot be +enjoined or diverted, since it is also the action of the sovereign.[443] +The Court then proceeded to repeat the rule that "the action of an +officer of the sovereign (be it holding, taking, or otherwise legally +affecting the plaintiff's property) can be regarded as so individual +only if it is not within the officer's statutory powers, or, if within +those powers, only if the powers or their exercise in the particular +case, are constitutionally void."[444] The Court rejected the contention +that the doctrine of sovereign immunity should be relaxed as +inapplicable to suits for specific relief as distinguished from damage +suits, saying: "The Government, as representative of the community as a +whole, cannot be stopped in its tracks by any plaintiff who presents a +disputed question of property or contract right."[445] + + +CLASSIFICATION OF SUITS AGAINST OFFICERS + +Suits against officers involving the doctrine of sovereign immunity have +been classified by Justice Frankfurter in a dissenting opinion into four +general groups. First, there are those cases in which the plaintiff +seeks an interest in property which belongs to the Government, or calls +"for an assertion of what is unquestionably official authority."[446] +Such suits, of course, cannot be maintained.[447] Second, cases in which +action adverse to the interests of a plaintiff is taken under an +unconstitutional statute or one alleged to be so. In general these suits +are maintainable.[448] Third, cases involving injury to a plaintiff +because the official has exceeded his statutory authority. In general +these suits are also maintainable.[449] Fourth, cases in which an +officer seeks immunity behind statutory authority or some other +sovereign command for the commission of a common law tort.[450] This +category of cases presents the greatest difficulties since these suits +can as readily be classified as falling into the first group if the +action directly or indirectly is one for specific performance or if the +judgment would affect the United States. + + +SUITS AGAINST GOVERNMENT CORPORATIONS + +The multiplication of government corporations during periods of war and +depression has provided one motivation for limiting the doctrine of +sovereign immunity. In Keifer & Keifer _v._ Reconstruction Finance Corp. +and Regional Agricultural Credit Corp.,[451] the Court held that the +Government does not become a conduit of its immunity in suits against +its agents or instrumentalities merely because they do its work. Nor +does the creation of a government corporation confer upon it legal +immunity. Whether Congress endows a public corporation with governmental +immunity in a specific instance, is a matter of ascertaining the +Congressional will. Moreover, it has been held that waivers of +governmental immunity in the case of federal instrumentalities and +corporations should be construed liberally.[452] On the other hand, +Indian nations are exempt from suit without further Congressional +authorization; it is as though their former immunity as sovereigns +passed to the United States for their benefit, as did their tribal +properties.[453] + + +Suits Between Two or More States + +The extension of the federal judicial power to controversies between +States and the vesting of original jurisdiction in the Supreme Court of +suits to which a State is a party had its origin in experience. Prior to +independence disputes between colonies claiming charter rights to +territory were settled by the Privy Council. Under the Articles of +Confederation Congress was made "the last resort on appeal" to resolve +"all disputes and differences * * * between two or more States +concerning boundary, jurisdiction, or any other cause whatever," and to +constitute what in effect were _ad hoc_ arbitral courts for determining +such disputes and rendering a final judgment therein. When the +Philadelphia Convention met in 1787, serious disputes over boundaries, +lands, and river rights involved ten States.[454] It is hardly +surprising, therefore, that during its first sixty years the only State +disputes coming to the Supreme Court were boundary disputes[455] or that +such disputes constitute the largest single number of suits between +States. Since 1900, however, as the result of the increasing mobility of +population and wealth and the effects of technology and +industrialization other types of cases have occurred with increasing +frequency. + + +BOUNDARY DISPUTES; THE LAW APPLIED + +Of the earlier examples of suits between States, that between New Jersey +and New York is significant for the application of the rule laid down +earlier in Chisholm _v._ Georgia,[456] that the Supreme Court may +proceed _ex parte_ if a State refuses to appear when duly summoned. The +long drawn out litigation between Rhode Island and Massachusetts is of +even greater significance for its rulings, after the case had been +pending for seven years, that though the Constitution does not extend +the judicial power to all controversies between States, yet it does not +exclude any;[457] that a boundary dispute is a justiciable and not a +political question;[458] and that a prescribed rule of decision is +unnecessary in such cases. On the last point Justice Baldwin stated: +"The submission by the sovereigns, or states, to a court of law or +equity, of a controversy between them, without prescribing any rule of +decision, gives power to decide according to the appropriate law of the +case (11 Ves. 294); which depends on the subject-matter, the source and +nature of the claims of the parties, and the law which governs them. +From the time of such submission, the question ceases to be a political +one, to be decided by the _sic volo_, _sic jubeo_, of political power; +it comes to the court, to be decided by its judgment, legal discretion +and solemn consideration of the rules of law appropriate to its nature +as a judicial question, depending on the exercise of judicial power; as +it is bound to act by known and settled principles of national or +municipal jurisprudence, as the case requires."[459] + + +MODERN TYPES OF SUITS BETWEEN STATES + +Beginning with Missouri _v._ Illinois and the Sanitary District of +Chicago,[460] which sustained jurisdiction to entertain an injunction +suit to restrain the discharge of sewage into the Mississippi River, +water rights, the use of water resources, and the like have become an +increasing source of suits between States. Such suits have been +especially frequent in the western States, where water is even more of a +treasure than elsewhere, but they have not been confined to any one +region. In Kansas _v._ Colorado,[461] the Court established the +principle of the equitable division of river or water resources between +conflicting State interests. In New Jersey _v._ New York[462] where New +Jersey sought to enjoin the diversion of waters into the Hudson River +watershed for New York in such a way as to diminish the flow of the +Delaware River in New Jersey, injure its shad fisheries, and increase +harmfully the saline contents of the Delaware, Justice Holmes stated for +the Court: "A river is more than an amenity, it is a treasure. It offers +a necessity of life that must be rationed among those who have power +over it. New York has the physical power to cut off all the water within +its jurisdiction. But clearly the exercise of such a power to the +destruction of the interest of lower States could not be tolerated. And, +on the other hand, equally little could New Jersey be permitted to +require New York to give up its power altogether in order that the river +might come down to it undiminished. Both States have real and +substantial interests in the river that must be reconciled as best they +may be."[463] + +Other types of interstate disputes of which the Court has taken +jurisdiction include suits by a State as the donee of the bonds of +another to collect thereon,[464] by Virginia against West Virginia to +determine the proportion of the public debt of the original State of +Virginia which the latter owed the former,[465] of one State against +another to enforce a contract between the two,[466] of a suit in equity +between States for the determination of a decedent's domicile for +inheritance tax purposes,[467] and of a suit by two States to restrain a +third from enforcing a natural gas measure which purported to restrict +the interstate flow of natural gas from the State in the event of a +shortage.[468] In general in taking jurisdiction of these suits, along +with those involving boundaries and the diversion or pollution of water +resources, the Supreme Court proceeded upon the liberal construction of +the term "controversies between two or more States" enunciated in Rhode +Island _v._ Massachusetts,[469] and fortified by Chief Justice +Marshall's dictum in Cohens _v._ Virginia[470] concerning jurisdiction +because of the parties to a case, that "it is entirely unimportant, what +may be the subject of controversy. Be it what it may, these parties have +a constitutional right to come into the Courts of the Union." + + +CASES OF WHICH THE COURT HAS DECLINED JURISDICTION + +In other cases, however, the Court, centering its attention upon the +elements of a case or controversy, has declined jurisdiction. Thus in +Alabama _v._ Arizona[471] where Alabama sought to enjoin 19 States from +regulating or prohibiting the sale of convict-made goods, the Court went +far beyond holding that it had no jurisdiction, and indicated that +jurisdiction of suits between States will be exercised only when +absolutely necessary, that the equity requirements in a suit between +States are more exacting than in a suit between private persons, that +the threatened injury to a plaintiff State must be of great magnitude +and imminent, and that the burden on the plaintiff State to establish +all the elements of a case is greater than that generally required by a +petitioner seeking an injunction suit in cases between private parties. + +Pursuing a similar line of reasoning, the Court declined to take +jurisdiction of a suit brought by Massachusetts against Missouri and +certain of its citizens to prevent Missouri from levying inheritance +taxes upon intangibles held in trust in Missouri by resident trustees. +In holding that the complaint presented no justiciable controversy, the +Court declared that to constitute such a controversy, the complainant +State must show that it "has suffered a wrong through the action of the +other State, furnishing ground for judicial redress, or is asserting a +right against the other State which is susceptible of judicial +enforcement according to * * * the common law or equity systems of +jurisprudence."[472] The fact that the trust property was sufficient to +satisfy the claims of both States and that recovery by either would not +impair any rights of the other distinguished the case from Texas _v._ +Florida,[473] where the contrary situation obtained. Furthermore, the +Missouri statute providing for reciprocal privileges in levying +inheritance taxes did not confer upon Massachusetts any contractual +right. The Court then proceeded to reiterate its earlier rule that a +State may not invoke the original jurisdiction of the Supreme Court for +the benefit of its residents or to enforce the individual rights of its +citizens.[474] Moreover, Massachusetts could not invoke the original +jurisdiction of the Court by the expedient of making citizens of +Missouri parties to a suit not otherwise maintainable.[475] Accordingly, +Massachusetts was held not to be without an adequate remedy in +Missouri's courts or in a federal district court in Missouri.[476] + + +THE PROBLEM OF ENFORCEMENT; VIRGINIA _v._ WEST VIRGINIA + +A very important issue that presents itself in interstate litigation is +the enforcement of the Court's decree, once it has been entered. In some +types of suits, as Charles Warren has indicated, this issue may not +arise; and if it does, it may be easily met. Thus a judgment putting a +State in possession of disputed territory is ordinarily self-executing. +But if the losing State should oppose execution, refractory State +officials, as individuals, would be liable to civil suits or criminal +prosecutions in the federal courts. Likewise an injunction decree may be +enforced against State officials as individuals by civil or criminal +proceedings. Those judgments, on the other hand, which require a State +in its governmental capacity to perform some positive act present the +issue of enforcement in more serious form. The issue arose directly in +the long and much litigated case between Virginia and West Virginia over +the proportion of the State debt of original Virginia owed by West +Virginia after its separate admission to the Union under a compact which +provided that West Virginia assume a share of the debt. The suit was +begun in 1906, and a judgment was rendered against West Virginia in +1915. Finally in 1917 Virginia filed a suit against West Virginia to +show cause why, in default of payment of the judgment, an order should +not be entered directing the West Virginia legislature to levy a tax for +payment of the judgment.[477] Starting with the rule that the judicial +power essentially involves the right to enforce the results of its +exertion,[478] the Court proceeded to hold that it applied with the same +force to States as to other litigants,[479] and to consider appropriate +remedies for the enforcement of its authority. In this connection, Chief +Justice White declared: "As the powers to render the judgment and to +enforce it arise from the grant in the Constitution on that subject, +looked at from a generic point of view, both are federal powers and, +comprehensively considered, are sustained by every authority of the +federal government, judicial, legislative, or executive, which may be +appropriately exercised."[480] The Court, however, left open the +question of its power to enforce the judgment under existing legislation +and scheduled the case for reargument at the next term, but in the +meantime West Virginia accepted the Court's judgment and entered into an +agreement with Virginia to pay it.[481] + + +Controversies Between a State and Citizens of Another State + +The decision in Chisholm _v._ Georgia[482] that this category of cases +included equally those where a State was a party defendant provoked the +proposal and ratification of the Eleventh Amendment, and since then +controversies between a State and citizens of another State have +included only those cases where the State has been a party plaintiff or +has consented to be sued. As a party plaintiff, a State may bring +actions against citizens of other States to protect its legal rights or +as _parens patriae_ to protect the health and welfare of its citizens. +In general, the Court has tended to construe strictly this grant of +judicial power which simultaneously comes within its original +jurisdiction by perhaps an even more rigorous application of the +concepts of cases and controversies than that in cases between private +parties.[483] This it does by holding rigorously to the rule that all +the party defendants be citizens of other States,[484] and by adhering +to Congressional distribution of its original jurisdiction concurrently +with that of other federal courts.[485] + + +NON-JUSTICIABLE CONTROVERSIES + +The Supreme Court has refused to take jurisdiction of a number of suits +brought by States because of the lack of a justiciable controversy. In +cases like Mississippi _v._ Johnson[486] and Georgia _v._ Stanton,[487] +the political nature of the controversy constituted the dominant reason. +In others, like Massachusetts _v._ Mellon[488] and Florida _v._ +Mellon,[489] the political issue, though present, was accompanied by the +inability of a State to sue in behalf of its citizens as _parens +patriae_ to contest the validity of an act of Congress when in national +matters the National Government bore the relation of _parens patriae_ to +the same persons as citizens of the United States. Moreover, a State may +not bring a suit in its own name for the benefit of particular +persons.[490] + + +JURISDICTION CONFINED TO CIVIL CASES + +In Cohens _v._ Virginia[491] there is a dictum to the effect that the +original jurisdiction of the Supreme Court does not include suits +between a State and its own citizens. Long afterwards, the Supreme Court +dismissed an action for want of jurisdiction because the record did not +show the corporation against which the suit was brought was chartered in +another State.[492] Subsequently the Court has ruled that it will not +entertain an action by a State to which its citizens are either parties +of record, or would have to be joined because of the effect of a +judgment upon them.[493] In his dictum in Cohens _v._ Virginia, Chief +Justice Marshall also indicated that perhaps no jurisdiction existed +over suits by States to enforce their penal laws.[494] Sixty-seven years +later the Court wrote this dictum into law in Wisconsin _v._ Pelican +Insurance Co.[495] Here Wisconsin sued a Louisiana corporation to +recover a judgment rendered in its favor by one of its own courts. +Relying partly on the rule of international law that the courts of no +country execute the penal laws of another, partly upon the 13th section +of the Judiciary Act of 1789 which vested the Supreme Court with +exclusive jurisdiction of controversies of a civil nature where a State +is a party, and partly on Justice Iredell's dissent in Chisholm _v._ +Georgia,[496] where he confined the term "controversies" to civil suits, +Justice Gray ruled for the Court that for purposes of original +jurisdiction, "controversies between a State and citizens of another +State" are confined to civil suits.[497] + + +SUITS BY A STATE AS _PARENS PATRIAE_; JURISDICTION DECLINED + +The distinction between suits brought by States to protect the welfare +of the people as a whole and suits to protect the private interests of +individual citizens is not easily drawn. In Oklahoma ex rel. Johnson +_v._ Cook,[498] the Court dismissed a suit brought by Oklahoma to +enforce the statutory liability of a stockholder of a State bank then in +the process of liquidation through a State officer. Although the State +was vested with legal title to the assets under the liquidation +procedure, the State's action was independent of that and it was acting +merely for the benefit of the bank's creditors and depositors. A +generation earlier the Court refused jurisdiction of Oklahoma _v._ +Atchison, Topeka & Santa Fe R. Co.[499] in which Oklahoma sought to +enjoin unreasonable rate charges by a railroad on the shipment of +specified commodities, inasmuch as the State was not engaged in shipping +these commodities and had no proprietary interest in them. + + +SUITS BY A STATE AS _PARENS PATRIAE_; JURISDICTION ACCEPTED + +Georgia _v._ Evans,[500] on the other hand, presents the case of a clear +State interest as a purchaser of materials. Here, Georgia sued certain +asphalt companies for treble damages under the Sherman Act arising +allegedly out of a conspiracy to control the prices of asphalt of which +Georgia was a large purchaser. The matter of Georgia's interest was not +contested and did not arise. The case is primarily significant for the +ruling that a State is a person under section 7 of the Sherman Act +authorizing suits by "any person" for treble damages arising out of +violations of the Sherman Act. A less clear-cut case, and one not +altogether in accord with Oklahoma _v._ Atchison, Topeka & Santa Fe R. +Co.,[501] is Georgia _v._ Pennsylvania R. Co.[502] in which the State, +suing as _parens patriae_ and in its proprietary capacity, was permitted +to file a bill of complaint against twenty railroads for injunctive +relief from freight rates, allegedly discriminatory against the State +and asserted to have been fixed through coercive action by the northern +roads against the southern roads in violation of the 16th section of the +Clayton Act. Although the rights of Georgia were admittedly based on +federal laws, the Court indicated that the enforcement of the Sherman +and Clayton acts depends upon civil as well as criminal sanctions. +Moreover, the interests of a State for purposes of invoking the original +jurisdiction of the Supreme Court were held, as in Georgia _v._ +Tennessee Copper Co.,[503] not to be confined to those which are +proprietary but to "embrace the so-called 'quasi-sovereign' interests +which * * * are 'independent of and behind the titles of its citizens, +in all the earth and air within its domain.'"[504] + + +GEORGIA _v._ PENNSYLVANIA RAILROAD + +In the course of his opinion Justice Douglas, speaking for a narrowly +divided Court, treated the alleged injury to Georgia as a proprietor as +a "makeweight," and remarked that the "original jurisdiction of this +Court is one of the mighty instruments which the framers of the +Constitution provided so that adequate machinery might be available for +the peaceful settlement of disputes between States and between a State +and citizens of another State * * * Trade barriers, recriminations, +intense commercial rivalries had plagued the colonies. The traditional +methods available to a sovereign for the settlement of such disputes +were diplomacy and war. Suit in this Court was provided as an +alternative."[505] Discriminatory freight rates, said he, may cause a +blight no less serious than noxious gases in that they may arrest the +development of a State and put it at a competitive disadvantage. +"Georgia as a representative of the public is complaining of a wrong +which, if proven, limits the opportunities of her people, shackles her +industries, retards her development, and relegates her to an inferior +economic position among her sister States. These are matters of grave +public concern in which Georgia has an interest apart from that of +particular individuals who may be affected. Georgia's interest is not +remote; it is immediate. If we denied Georgia as _parens patriae_ the +right to invoke the original jurisdiction of the Court in a matter of +that gravity, we would whittle the concept of justiciability down to the +stature of minor or conventional controversies. There is no warrant for +such a restriction."[506] + + +Controversies Between Citizens of Different States + + +THE MEANING OF "STATE"; HEPBURN _v._ ELLZEY + +Despite stringent definitions of the words "citizen" and "State" and +strict statutory safeguards against abuse of the jurisdiction arising +out of it, the diversity of citizenship clause is one of the more +prolific sources of federal jurisdiction. In Hepburn _v._ Ellzey,[507] +Chief Justice Marshall, speaking for the Court, confined the meaning of +the word "State," as used in the Constitution, to "the members of the +American confederacy" and ruled that a citizen of the District of +Columbia could not sue a citizen of Virginia on the basis of diversity +of citizenship. In the course of his brief opinion Marshall owned that +it was "extraordinary that the courts of the United States, which are +open to aliens, and to the citizens of every State in the union should +be closed" to the residents of the District, but the situation, he +indicated, was "a subject for legislative, not for judicial +consideration."[508] The same restrictive rule was later extended to +citizens of territories of the United States.[509] + + +Extension of Jurisdiction by the Act of 1940 + +Whether Chief Justice Marshall had in mind a constitutional amendment or +an act of Congress when he spoke of legislative consideration is not +clear. At any rate, not until 1940 did Congress enact a statute to +confer on federal district courts jurisdiction of civil actions +(involving no federal question) "between citizens of different States, +or citizens of the District of Columbia, the Territory of Hawaii, or +Alaska and any State or Territory."[510] In National Mutual Insurance +Co. _v._ Tidewater Transfer Co.,[511] this act was sustained by five +judges, but for widely different reasons. Justice Jackson, in an opinion +in which Justices Black and Burton joined, was for adhering to the rule +that the District of Columbia is not a State, but held the act to be +valid nevertheless because of the exclusive and plenary power of +Congress to legislate for the District and its broad powers under the +necessary and proper clause.[512] Justice Rutledge, in a concurring +opinion, in which Justice Murphy joined, agreed that the act was valid +and asserted that the Ellzey case should be overruled.[513] Chief +Justice Vinson in a dissent in which Justice Douglas concurred[514] and +Justice Frankfurter in a dissent in which Justice Reed joined[515] +thought the act invalid and would have adhered to the rule in the Ellzey +case. The net result is that the Ellzey case still stands insofar as it +holds that the District of Columbia is not a State, but that under +Congressional enactment citizens of the District may now sue citizens of +States in the absence of a federal question, on the basis of no statable +constitutional principle, but through the grace of what Justice +Frankfurter called "conflicting minorities in combination."[516] + + +CITIZENSHIP, NATURAL PERSONS + +For purposes of diversity jurisdiction State citizenship is determined +by domicile or residence, for the determination of which various tests +have been stated: removal to a State, acquiring real estate there, and +paying taxes;[517] residence in a State for a considerable time;[518] +and removal to a State with the intent of making it one's home for an +indefinite period of time.[519] Where citizenship is dependent on +intention, acts may disclose it more satisfactorily than +declarations.[520] The fact that removal to another State is motivated +solely by a desire to acquire citizenship for diversity purposes does +not oust the federal courts of jurisdiction so long as the new +residence is indefinite or the intention to reside there indefinitely is +shown.[521] But a mere temporary change of domicile for the purpose of +suing in a federal court is not sufficient to effectuate a change in +citizenship.[522] Exercise of the right of suffrage is a conclusive test +of citizenship in a State, and the acquisition of the right to vote +without exercising it is sufficient to establish citizenship.[523] + + +CITIZENSHIP, CORPORATIONS + +In Bank of United States _v._ Deveaux,[524] Chief Justice Marshall +declared: "That invisible, intangible, and artificial being, that mere +legal entity, a corporation aggregate, is certainly not a citizen; and +consequently cannot sue or be sued in the courts of the United States, +unless the rights of the members, in this respect, can be exercised in +their corporate name." He proceeded then to look beyond the corporate +entity and hold that the bank could sue under the diversity provisions +of the Constitution and the Judiciary Act of 1789 because the members of +the bank as a corporation were citizens of one State and Deveaux was a +citizen of another. This holding was reaffirmed a generation later, in +Commercial and Railroad Bank of Vicksburg _v._ Slocomb,[525] at a time +when corporations were coming to play a more important role in the +national economy. The same rule, combined with the rule that in a +diversity proceeding all the persons on one side of a suit must be +citizens of different States from all persons on the other side,[526] +could in the course of time have closed the federal courts in diversity +cases to the larger corporations having stockholders in all or most of +the States. + +If such corporations were to have the benefits of diversity +jurisdiction, either the Deveaux or the Strawbridge rule would have to +yield. By 1844, only four years after the Slocomb Case, the interests of +corporations in docketing cases in the federal courts as citizens of +different States appeared more important to the Supreme Court than the +weight to be attached to precedents, even those set by John Marshall, +and in Louisville, Cincinnati, and Charleston R. Co. _v._ Letson,[527] +both the Deveaux and Slocomb cases were overruled. After elaborate +arguments by counsel, the Court, speaking through Justice Wayne, held +that "a corporation created by and doing business in a particular State, +is to be deemed to all intents and purposes as a person, although an +artificial person, an inhabitant of the same State, for the purposes of +its incorporation, capable of being treated as a citizen of that State, +as much as a natural person."[528] + +In the Letson Case the emphasis is upon the place of incorporation of a +joint stock company as something completely separate from the +citizenship of its members. In succeeding cases, however, this fiction +of corporate personality has undergone modifications so that a +corporation, though still a citizen of the State where it is chartered, +is such by virtue of the jurisdictional fiction that all the +stockholders are citizens of the State which by its laws created the +corporation.[529] This presumption is conclusive and irrebuttable and +resembles in many ways the English jurisdictional fiction that for +providing remedies for wrongs done in the Mediterranean "the Island of +Minorca was at London, in the Parish of St. Mary Le Bow in the Ward of +Cheap."[530] This fiction creates a logical anomaly, which the Letson +rule had avoided, in those cases in which a stockholder of one State +sues a corporation chartered in another State. Although all stockholders +are conclusively presumed to be citizens of the State where the +corporation is chartered, an individual stockholder from a different +State may nevertheless aver his actual citizenship so as to maintain a +diversity suit against the corporation.[531] These rulings lead to some +extraordinary results, as John Chipman Gray has indicated: "The Federal +courts take cognizance of a suit by a stockholder who is a citizen, say, +of Kentucky, against the corporation in which he owns stock, which has +been incorporated, say, by Ohio. Since he is a stockholder of an Ohio +corporation, the court conclusively presumes that he is a citizen of +Ohio, but if he were a citizen of Ohio, he could not sue an Ohio +corporation in the Federal courts. Therefore the court considers that he +is and he is not at the same time a citizen of Ohio, and it would have +no jurisdiction unless it considered that he both was and was not at the +same time a citizen both of Ohio and Kentucky."[532] + + +The Black and White Taxicab Case + +These fictions of corporate citizenship make it easy for corporations to +go into the federal courts on matters of law that are purely local in +nature, and they have availed themselves of the opportunity to the full. +For a time the Supreme Court tended to look askance at collusory +incorporations and the creation of dummy corporations for purposes of +getting cases into the federal courts,[533] but as a result of the +Kentucky Taxicab Case,[534] decided in 1928, the limitation of collusion +lost much of its force. Here the Black and White company, a Kentucky +corporation, dissolved itself and obtained a charter as a Tennessee +corporation in order to get the benefit of a federal rule which would +condone an exclusive contract with a railroad to park its cabs in and +around a station whereas the State rule forbade such contracts. The only +change made was of the State of incorporation. The name of the company, +its officers, and shareholders, and the location of its business all +remained the same. Yet no collusion was found, and the company received +the benefit of the federal rule--a measure of salvation by being born +again in Tennessee. The odd result in the Taxicab Case, whereby citizens +of Kentucky could conduct business there contrary to State law with the +sanction of the Supreme Court of the United States, did not stem solely +from the rule that the citizenship of a corporation is determined by the +State of its incorporation, but also from this rule combined with the +rule of Swift _v._ Tyson,[535] another by-product of diversity +jurisdiction. + + +THE LAW APPLIED IN DIVERSITY CASES: SWIFT _v._ TYSON + +Section 34 of the Judiciary Act of 1789 provided that in diversity cases +at common law the laws of the several States should be the rules of +decision in the United States courts. However, in Swift _v._ Tyson[536] +the Supreme Court refused to apply this section on the ground that it +did not extend to contracts or instruments of a commercial nature, the +interpretation of which therefore ought to be according to "the general +principles and doctrines of jurisprudence"; and while the decisions of +State courts on such subjects were entitled to and would receive +attention and respect, they could not be conclusive or binding upon the +federal courts.[537] + + +Extension of the Tyson Case + +For ninety-six years the Court followed this opinion, which the other +Justices saw only the evening before it was delivered, and which invoked +a precedent of Lord Mansfield on the law of the sea and an epigram of +Cicero on the law of nature.[538] Later decisions expanded the concept +of matters of a commercial nature so that the scope of the Tyson rule +was greatly extended.[539] In many instances the State courts followed +their own rules of decision even when contrary to the federal rules, so +that Justice Story's attempt at uniformity in matters of a commercial +nature paradoxically led to a greater diversity and to the mischief in +many instances of two conflicting rules of law in the same State, with +the outcome of suits dependent upon whether the case was docketed in a +State or a federal court. Simultaneously, the Supreme Court was holding +under the Tyson rule that the federal courts were not bound by decisions +of State courts interpreting State constitutions[540] or State +statutes.[541] + + +The Tyson Rule Protested + +Moreover, decisions extending the scope of the Tyson rule were +frequently rendered by a divided Court over the strong protests of +dissenters.[542] In Baltimore and Ohio R. Co. _v._ Baugh,[543] which +further projected the Tyson rule into the law of torts in disregard of +State law, Justice Field wrote a sharp dissent in which he indicated an +opinion that the Supreme Court's disregard of State court decisions was +unconstitutional. Such disregard, nevertheless, was further aggravated +in Kuhn _v._ Fairmont Coal Co.,[544] where the Court held that in +construing a contract in a case involving real estate and mining law a +federal court was not bound by a West Virginia decision touching the +same subject. This evoked a provocative dissent from Justice Holmes, who +later wrote one of his more famous dissents in the Black and White +Taxicab Company case,[545] in which he asserted emphatically that the +Court's extensions of the Tyson rule were unconstitutional.[546] + + +ERIE RAILROAD CO. _v._ TOMPKINS; TYSON OVERRULED + +Increasing criticism of the Tyson rule led to a restriction of it in +Mutual Life Ins. Co. _v._ Johnson,[547] where the Court chose to apply +Virginia decisions rather than exercise its independent judgment on the +ground that the case was "balanced with doubt."[548] The federal +judicial power was subordinated to what Justice Cardozo called "a benign +and prudent comity."[549] Four years later, and without further +preparation other than a change in two of the Justices, the Court +overturned Swift _v._ Tyson and its judicial progeny in Erie Railroad +Co. _v._ Tompkins,[550] in an opinion by Justice Brandeis which is +remarkable in a number of ways. In the first place, it reversed a +ninety-six year old precedent which counsel had not questioned; +secondly, for the first and only time in American constitutional +history, it held action of the Supreme Court itself to have been +unconstitutional, to wit, action taken by it in reliance on its +interpretation of the 34th section of the Judiciary Act of 1789, a +question which also was not before the Court; and thirdly, it completely +ignored the power of Congress under the commerce clause, as well as its +power to prescribe rules of decision for the federal courts in the +cases enumerated in article III. + +Like the Fairmont Coal and Taxicab cases, the Tompkins Case presented +the possibility of a head-on conflict between State and federal rules of +decision. Tompkins was seriously injured by a passing freight train +while he was walking along the railroad's right of way in Pennsylvania. +As a citizen of Pennsylvania, Tompkins could have sued in that State, +but he could also have sued in the federal district court in +Pennsylvania, or in New York because the railroad was incorporated in +the latter State. He elected to sue in the federal court for the +southern district of New York, where he obtained a verdict for $30,000 +after the trial judge had ruled that the applicable law did not preclude +recovery. The circuit court of appeals affirmed the judgment because it +thought it unnecessary to consider whether the law of Pennsylvania +precluded recovery, inasmuch as the question was one of general law to +be decided by the federal courts in the exercise of their independent +judgment. Citing Warren's discovery that Swift _v._ Tyson was an +erroneous interpretation of the Judiciary Act of 1789, criticism of the +Tyson doctrine both on and off the bench, and the political and social +defects of the rule in working discriminations against citizens of a +State in favor of noncitizens and in producing injustice and confusion, +Justice Brandeis declared: "If only a question of statutory construction +were involved, we should not be prepared to abandon a doctrine so widely +* * * [followed for] nearly a century. But the unconstitutionality of +the course pursued has now been made clear and compels us to do so. +* * * There is, [he continued], no federal general common law. Congress +has no power to declare substantive rules of common law applicable in a +State whether they be local in their nature or 'general,' be they +commercial law or a part of the law of torts. And no clause in the +Constitution purports to confer such a power upon the federal +courts."[551] After quoting Justice Field and Justice Holmes on the +unconstitutionality of the Tyson rule, Justice Brandeis made it clear +that the Court was not invalidating Sec. 34 of the Federal Judiciary Act +of 1789, but was merely declaring that the Supreme Court and the lower +federal courts had, in their application of it, "invaded rights which +* * * are reserved by the Constitution to the several States."[552] + +Justice Butler, joined by Justice McReynolds, concurred in the result, +because in his view Tompkins was not entitled to damages under general +law, but he deprecated the reversal of Swift _v._ Tyson. He also +objected to the decision of the constitutional issue as +unnecessary.[553] Justice Reed likewise concurred, but thought it +questionable to raise the constitutional issue. "If the opinion, [said +he], commits this Court to the position that the Congress is without +power to declare what rules of substantive law shall govern the federal +courts, that conclusion also seems questionable."[554] + + +Extension of the Tompkins Rule + +Since 1938 the federal courts have been most assiduous in following the +decisions of the State courts in diversity cases. The decisions +followed, moreover, include not only those of the highest State courts, +but those also of intermediate courts. In West _v._ American Telephone +and Telegraph Co.[555] the Supreme Court held that a decision of an Ohio +county court of appeals which the Supreme Court of the State had +declined to review was binding on the lower federal courts regardless of +the desirability of the rule of the decision or of the belief that the +highest court of the State might establish a different rule in future +litigation. In Fidelity Union Trust Co. _v._ Field[556] the Court went +even farther and ruled that the lower courts were bound to follow the +decisions of two chancery courts in New Jersey although there had been +no appeal to the highest State court, and obviously other New Jersey +courts were not bound by the decisions of two vice-chancellors. The +anomaly of this decision was partially removed in King _v._ Order of +United Commercial Travelers,[557] where the Court held that the federal +courts were not bound by the decision of a court of first instance of +South Carolina, which was the only decision applicable to the +interpretation of the insurance policy in dispute. Nor is this the whole +story. In the event of a State Supreme Court's reversal of its earlier +decisions the federal courts are bound by the latest decision. Hence a +judgment of a federal district court, correctly applying State law as +interpreted by the State's highest court, must be reversed on appeal if +the State court in the meantime has reversed its earlier rulings and +adopted a contrary interpretation. Though aware of possible +complications from this rule, the Court insisted that "until such time +as a case is no longer _sub judice_, the duty rests upon the federal +courts to apply the Rules of Decision statute in accordance with the +then controlling decision of the highest state court."[558] + +Although the Rules of Decision Act[559] requires the federal courts to +follow State decisions only in civil cases, the application of the +Tompkins rule has been extended to suits in equity.[560] In Guaranty +Trust Co. _v._ York,[561] the Court held that when a statute of +limitations barred recovery in a State court, a federal court sitting in +equity could not entertain the suit because of diversity of citizenship. +This ruling was based on the express premise that "a federal court +adjudicating a State-created right solely because of the diversity of +citizenship of the parties is for that purpose, in effect, only another +court of the State, * * * "[562] It was held to be immaterial, +therefore, whether statutes of limitations were designated as +substantive or procedural. The Tompkins Case, it was said, was not an +endeavor to formulate scientific legal terminology. "In essence, the +intent of that decision was to insure that, in all cases where a federal +court is exercising jurisdiction solely because of the diversity of +citizenship of the parties, the outcome of the litigation in the federal +court should be substantially the same, so far as legal rules determine +the outcome of a litigation, as it would be if tried in a State +court."[563] + + +Controversies Between Citizens of the Same State Claiming Lands Under +Grants of Different States + +This clause was not in the first draft of the Constitution, but was +added without objection.[564] Undoubtedly the motivation for this +extension of the judicial power was the existence of boundary disputes +affecting ten States at the time the Philadelphia Convention met. With +the Northwest Ordinance of 1787, the ultimate settlement of boundary +disputes between States, and the passing of land grants by States, this +clause, never productive of many cases, has become obsolete.[565] + + +Controversies Between a State, or the Citizens Thereof, and Foreign +States, Citizens or Subjects + +The scope of this jurisdiction has been limited both by judicial +decisions and the Eleventh Amendment. By judicial application of the Law +of Nations a foreign State is immune from suit in the federal courts +without its consent,[566] an immunity which extends to suits brought by +States of the American Union.[567] Conversely, the Eleventh Amendment +has been construed to bar suits by foreign States against a State of the +American Union.[568] Consequently, the jurisdiction conferred by this +clause comprehends only suits brought by a State against citizens or +subjects of foreign States, by foreign States against American citizens, +citizens of a State against the citizens or subjects of a foreign State, +and by aliens against citizens of a State. + + +SUITS BY FOREIGN STATES + +The privilege of a recognized foreign State to sue in the courts of a +foreign State upon the principle of comity is recognized by both +International Law and American Constitutional Law.[569] To deny a +sovereign this privilege "would manifest a want of comity and friendly +feeling."[570] Although national sovereignty is continuous, a suit in +behalf of a national sovereign can be maintained in the courts of the +United States only by a government which has been recognized by the +political branches of our own government as the authorized government of +the foreign State.[571] Once a foreign government avails itself of the +privilege of suing in the courts of the United States, it subjects +itself to the procedure and rules of decision governing those courts and +accepts whatever liabilities the Court may decide to be a reasonable +incident of bringing the suit.[572] Also, certain of the benefits +extending to the domestic sovereign do not extend to a foreign sovereign +suing in the courts of the United States. Thus a foreign sovereign does +not receive the benefit of the rule which exempts the United States and +its member States from the operation of the statute of limitations, +because considerations of public policy back of the rule are regarded as +absent.[573] + + +Indian Tribes + +Within the terms of article III, an Indian tribe is not a foreign State +and hence cannot sue in the courts of the United States. This rule was +applied in the case of Cherokee Nation _v._ Georgia,[574] where Chief +Justice Marshall conceded that the Cherokee Nation was a State, but not +a foreign State, being a part of the United States and dependent upon +it. Other passages of the opinion specify the elements essential to a +foreign State for purposes of jurisdiction, such as sovereignty and +independence. + + +NARROW CONSTRUCTION OF THE JURISDICTION + +As in cases of diversity jurisdiction, suits brought to the federal +courts under this category must clearly state in the record the nature +of the parties. As early as 1809 the Supreme Court ruled that a federal +court could not take jurisdiction of a cause where the defendants were +described in the record as "late of the district of Maryland," but were +not designated as citizens of Maryland, and plaintiffs were described as +aliens and subjects of the United Kingdom.[575] The meticulous care +manifested in this case appeared twenty years later when the Court +narrowly construed section 11 of the Judiciary Act of 1789, vesting the +federal courts with jurisdiction where an alien was a party, in order to +keep it within the limits of this clause. The judicial power was further +held not to extend to private suits in which an alien is a party, unless +a citizen is the adverse party.[576] This interpretation was extended +in 1870 by a holding that if there is more than one plaintiff or +defendant, each plaintiff or defendant must be competent to sue or +liable to suit.[577] These rules, however, do not preclude a suit +between citizens of the same State if the plaintiffs are merely nominal +parties and are suing on behalf of an alien.[578] + + +Clause 2. In all Cases affecting Ambassadors, other public Ministers and +Consuls, and those in which a State shall be Party, the supreme Court +shall have original Jurisdiction. In all the other Cases before +mentioned, the Supreme Court shall have appellate Jurisdiction, both as +to Law and Fact, with such Exceptions, and under such Regulations as the +Congress shall make. + + +The Original Jurisdiction of the Supreme Court + + +AN AUTONOMOUS JURISDICTION + +Acting on the assumption that its existence is derived directly from the +Constitution, the Supreme Court has held since 1792 that its original +jurisdiction flows directly from the Constitution and is therefore +self-executing without further action by the Congress. In the famous +case of Chisholm _v._ Georgia[579] the Supreme Court entertained an +action of assumpsit against Georgia by a citizen of another State. +Although the 13th section of the Judiciary Act of 1789 invested the +Supreme Court with original jurisdiction in suits between a State and +citizens of another State, it did not authorize actions of assumpsit in +such cases, nor did it prescribe forms of process for the Court in the +exercise of original jurisdiction. Over the dissent of Justice Iredell, +the Court in opinions by Chief Justice Jay and Justices Blair, Wilson, +and Cushing, sustained its jurisdiction and its power, in the absence of +Congressional enactments, to provide forms of process and rules of +procedure. So strong were the States' rights sentiments of the times +that Georgia refused to appear as a party litigant, and other States +were so disturbed that the Eleventh Amendment was proposed forthwith and +ratified. This amendment, however, did not affect the direct flow of +original jurisdiction to the Court, which continued to take jurisdiction +of cases to which a State was party plaintiff and of suits between +States without specific provision by Congress for forms of process. By +1861 Chief Justice Taney could enunciate with confidence, after a review +of the precedents, that in all cases where original jurisdiction is +given by the Constitution, the Supreme Court has authority "to exercise +it without further act of Congress to regulate its powers or confer +jurisdiction, and that the Court may regulate and mould the process it +uses in such manner as in its judgment will best promote the purposes of +justice."[580] + + +CANNOT BE ENLARGED; MARBURY _v._ MADISON + +Since the original jurisdiction is derived directly from the +Constitution, it follows logically that Congress can neither restrict it +nor, as was held in the great case of Marbury _v._ Madison,[581] enlarge +it. In holding void the 13th section of the Judiciary Act of 1789, which +was interpreted as giving the Court power to issue a writ of mandamus in +an original proceeding, Chief Justice Marshall declared that "a negative +or exclusive sense" had to be given to the affirmative enunciation of +the cases to which original jurisdiction extends.[582] While the rule +that the Supreme Court is vested with original jurisdiction by the +Constitution and that this jurisdiction cannot be extended or restricted +deprives Congress of any power to define it, it allows a considerable +latitude of interpretation to the Court itself. In some cases, as in +Missouri _v._ Holland,[583] the Court has manifested a tendency toward a +liberal construction of original jurisdiction; in others, as in +Massachusetts _v._ Mellon,[584] it has placed a narrow construction upon +the grant through the device of a restrictive interpretation of cases +and controversies; and in still other cases, as in California _v._ +Southern Pacific Co.,[585] it has stated that its original jurisdiction +"is limited and manifestly to be sparingly exercised, and should not be +expanded by construction." + + +CONCURRENT JURISDICTION OF THE LOWER FEDERAL COURTS + +Although Congress can neither enlarge nor restrict the original +jurisdiction of the Supreme Court, it may vest concurrent jurisdiction +in the lower federal courts in cases over which the Supreme Court has +original jurisdiction.[586] Thus among the grounds given for the +decision in Wisconsin _v._ Pelican Insurance Co.,[587] that the Court +had no original jurisdiction of an action by a State to enforce a +judgment for a pecuniary penalty awarded by one of its own courts, was +the provision of the 13th section of the Judiciary Act of 1789[588] that +"the Supreme Court shall have exclusive jurisdiction of controversies of +a civil nature, where a State is a party, except between a State and its +citizens; and except also between a State and citizens of other States, +or aliens, in which latter case it shall have original but not exclusive +jurisdiction." Speaking of that act with particular reference to this +section, Justice Gray declared that it "was passed by the first Congress +assembled under the Constitution, many of whose members had taken part +in framing that instrument, and is contemporaneous and weighty evidence +of its true meaning."[589] In cases affecting consuls, moreover, the +original jurisdiction of the Supreme Court is shared concurrently with +State courts unless Congress by positive action makes such jurisdiction +exclusive.[590] + + +The Appellate Jurisdiction of the Supreme Court + + +SUBJECT TO LIMITATION BY CONGRESS + +Unlike its original jurisdiction, the appellate jurisdiction of the +Supreme Court is subject to control by Congress in the exercise of the +broadest discretion. Although the provisions of article III seem, +superficially at least, to imply that its appellate jurisdiction would +flow directly from the Constitution until Congress should by positive +enactment make exceptions to it, rulings of the Court since 1796 +establish the contrary rule. Consequently, before the Supreme Court can +exercise appellate jurisdiction, an act of Congress must have bestowed +it, and affirmative bestowals of jurisdiction are interpreted as +exclusive in nature so as to constitute an exception to all other cases. +This rule was first applied in Wiscart _v._ Dauchy[591] where the Court +held that in the absence of a statute prescribing a rule for appellate +proceedings, the Court lacked jurisdiction. It was further stated that +if a rule were prescribed, the Court could not depart from it. Fourteen +years later Chief Justice Marshall observed for the Court that its +appellate jurisdiction is derived from the Constitution, but proceeded +nevertheless to hold that an affirmative bestowal of appellate +jurisdiction by Congress, which made no express exceptions to it, +implied a denial of all others.[592] + + +The McCardle Case + +The power of Congress to make exceptions to the court's appellate +jurisdiction has thus become, in effect, a plenary power to bestow, +withhold, and withdraw appellate jurisdiction, even to the point of its +abolition. And this power extends to the withdrawal of appellate +jurisdiction even in pending cases. In the notable case of Ex parte +McCardle,[593] a Mississippi newspaper editor who was being held in +custody by the military authorities acting under the authority of the +Reconstruction Acts filed a petition for a writ of _habeas corpus_ in +the circuit court for Southern Mississippi. He alleged unlawful +restraint and challenged the validity to the Reconstruction statutes. +The writ was issued, but after a hearing the prisoner was remanded to +the custody of the military authorities. McCardle then appealed to the +Supreme Court which denied a motion to dismiss the appeal, heard +arguments on the merits of the case, and took it under advisement. +Before a conference could be held, Congress, fearful of a test of the +Reconstruction Acts, enacted a statute withdrawing appellate +jurisdiction from the Court in certain _habeas corpus_ proceedings.[594] +The Court then proceeded to dismiss the appeal for want of +jurisdiction. Chief Justice Chase, speaking for the Court said: +"Without jurisdiction the Court cannot proceed at all in any cause. +Jurisdiction is the power to declare the law and when it ceases to +exist, the only function remaining to the Court is that of announcing +the fact and dismissing the cause."[595] + +Although the McCardle Case goes to the ultimate in sustaining +Congressional power over the court's appellate jurisdiction and although +it was born of the stresses and tensions of the Reconstruction period, +it has been frequently reaffirmed and approved.[596] The result is to +vest an unrestrained discretion in Congress to curtail and even abolish +the appellate jurisdiction of the Supreme Court, and to prescribe the +manner and forms in which it may be exercised. This principle is well +expressed in The "Francis Wright"[597] where the Court sustained the +validity of an act of Congress which limited the court's review in +admiralty cases to questions of law appearing on the record. A portion +of the opinion is worthy of quotation: "Authority to limit the +jurisdiction necessarily carries with it authority to limit the use of +the jurisdiction. Not only may whole classes of cases be kept out of the +jurisdiction altogether, but particular classes of questions may be +subjected to reexamination and review, while others are not. To our +minds it is no more unconstitutional to provide that issues of fact +shall not be retried in any case, than that neither issues of law nor +fact shall be retried in cases where the value of the matter in dispute +is less than $5,000. The general power to regulate implies the power to +regulate in all things. The whole of a civil appeal may be given, or a +part. The constitutional requirements are all satisfied if one +opportunity is had for the trial of all parts of a case. Everything +beyond that is a matter of legislative discretion."[598] + + +The Power of Congress To Regulate the Jurisdiction of the Lower Federal +Courts + + +MARTIN _v._ HUNTER'S LESSEE + +The power of Congress to vest, withdraw, and regulate the jurisdiction +of the lower federal courts is derived from the power to create +tribunals under article I, the necessary and proper clause, and the +clause in article III, vesting the judicial power in the Supreme Court +and such inferior courts as "the Congress may from time to time ordain +and establish." Balancing these provisions, however, are the phrases in +article III to the effect that the judicial power "shall be vested" in +courts and "shall extend" to nine classes of cases and controversies and +the question of what is the force of the word "shall." In Martin _v._ +Hunter's Lessee,[599] Justice Story declared obiter that it was +imperative upon Congress to create inferior federal courts and vest in +them all the jurisdiction they were capable of receiving. This dictum +was criticized by Justice Johnson in his dissent, in which he contended +that the word "shall" was used "in the future sense," and had "nothing +imperative in it."[600] And for that matter in another portion of his +opinion Justice Story expressly recognized that Congress may create +inferior courts and "parcel out such jurisdiction among such courts, +from time to time at their own pleasure";[601] and in his Commentaries +he took a broad view of the power of Congress to regulate +jurisdiction.[602] + + +PLENARY POWER OF CONGRESS OVER JURISDICTION + +Neither legislative construction nor judicial interpretation has +sustained Justice Story's position in Martin _v._ Hunter's Lessee. The +Judiciary Act of 1789, which was a contemporaneous interpretation of the +Constitution by the Congress, rests on the assumption of a broad +discretion on the part of Congress to create courts and to grant +jurisdiction to and withhold it from them. This act conferred original +jurisdiction upon the district and circuit courts in certain cases, but +by no means all they were capable of receiving. Thus suits at the common +law to which the United States was a party were limited by the amount +in controversy. Except for offenses against the United States, seizures +and forfeitures made under the impost, navigation, or trade laws of the +United States, and suits by aliens under International Law or treaties, +that whole group of cases involving the Constitution, laws, and treaties +of the United States was withheld from the jurisdiction of the district +and circuit courts,[603] with the result that original jurisdiction in +these cases was exercised by the State courts subject to appeal to the +Supreme Court under section 25. Jurisdiction was vested in the district +courts over admiralty and maritime matters and in the circuit courts +over suits between citizens of different States where the amount +exceeded $500, or suits to which an alien was a party.[604] The act of +1789 empowered the courts to issue writs, to require parties to produce +testimony, to punish contempts, to make rules, and to grant stays of +execution.[605] Finally, equity jurisdiction was limited to those cases +where a "plain, adequate, and complete remedy" could not be had at +law.[606] + +This care for detail in conferring jurisdiction upon the inferior courts +and vesting them with ancillary powers in order to render such +jurisdiction effective is of the utmost significance in the later +development of the law pertaining to Congressional regulation of +jurisdiction, inasmuch as it demonstrates conclusively that a majority +of the members of the first Congress regarded positive action on the +part of Congress to be necessary before jurisdiction and judicial powers +could be exercised by courts of its own creation. Ten years later this +practical construction of article III was accepted by the Supreme Court +in Turner _v._ Bank of North America.[607] The case involved an attempt +to recover on a promissory note in a diversity case contrary to Sec. 11 +of the act of 1789 which forbade diversity suits involving assignments +unless the suit was brought before the assignment was made. Counsel for +the bank argued that the circuit courts were not inferior courts and +that the grant of judicial power by the Constitution was a direct grant +of jurisdiction. This argument evoked questions from Chief Justice +Ellsworth and the following statement from Justice Chase: "The notion +has been frequently entertained, that the federal courts derive their +power immediately from the Constitution; but the political truth is, +that the judicial power (except in a few specified instances) belongs to +Congress. If Congress has given the power to this Court, we possess it, +not otherwise; and if Congress has not given the power to us, or to any +other court, it still remains at the legislative disposal. Besides, +Congress is not bound, and it would, perhaps, be inexpedient, to enlarge +the jurisdiction of the federal courts, to every subject, in every +form, which the Constitution might warrant."[608] The Court applied Sec. +11 of the Judiciary Act and ruled that the circuit court lacked +jurisdiction. + +Eight years later Chief Justice Marshall in distinguishing between +common law and statutory courts declared that "courts which are created +by written law, and whose jurisdiction is defined by written law, cannot +transcend that jurisdiction."[609] This rule was reaffirmed in the +famous case of United States _v._ Hudson and Goodwin[610] on the +assumption that the power of Congress to create inferior courts +necessarily implies "the power to limit the jurisdiction of those Courts +to particular objects."[611] After pointing to the original jurisdiction +which flows immediately from the Constitution, Justice Johnson asserted: +"All other Courts created by the general Government possess no +jurisdiction but what is given them by the power that creates them, and +can be vested with none but what the power ceded to the general +Government will authorize them to confer."[612] To the same affect is +Rhode Island _v._ Massachusetts[613] where Justice Baldwin declared that +"the distribution and appropriate exercise of the judicial power must +therefore be made by laws passed by Congress and cannot be assumed by +any other department * * *" + +A more sweeping assertion of Congressional power over jurisdiction was +made by the Supreme Court in Cary _v._ Curtis,[614] which bears more +directly upon the issue than some of the earlier cases. Here counsel had +argued that a statute which made final the decisions of the Secretary of +the Treasury in tax disputes was unconstitutional in that it deprived +the federal courts of the judicial power vested in them by the +Constitution. In reply to this argument the Court speaking through +Justice Daniel declared: "The judicial power of the United States * * * +is (except in enumerated instances, applicable exclusively to this +court) dependent for its distribution and organization, and for the +modes of its exercise, entirely upon the action of Congress, who possess +the sole power of creating the tribunals (inferior to the Supreme Court) +* * * and of investing them with jurisdiction, either limited, +concurrent, or exclusive, and of withholding jurisdiction from them in +the exact degrees and character which to Congress may seem proper for +the public good." Continuing, Justice Daniel said: "It follows then +that courts created by statute, must look to the statute as the warrant +for their authority; certainly they cannot go beyond the statute, and +assert an authority with which they may not be invested by it, or which +may clearly be denied to them."[615] + +The principles of Cary _v._ Curtis were reiterated five years later in +Sheldon _v._ Sill[616] where the validity of Sec. 11 of the Judiciary Act +of 1789 was directly questioned. The assignee of a negotiable instrument +filed a suit in a circuit court even though no diversity of citizenship +existed as between the original parties to the mortgage. The circuit +court entertained jurisdiction in spite of the prohibition against such +suits in Sec. 11 and ordered a sale of the property in question. On appeal +to the Supreme Court, counsel for the assignee contended that Sec. 11 was +void because the right of a citizen of any State to sue citizens of +another in the federal courts flowed directly from article III and +Congress could not restrict that right. The Supreme Court unanimously +rejected these contentions and held that since the Constitution had not +established the inferior courts or distributed to them their respective +powers, and since Congress had the authority to establish such courts, +it could define their jurisdiction and withhold from any court of its +own creation jurisdiction of any of the enumerated cases and +controversies in article III.[617] Sheldon _v._ Sill has been cited, +quoted, and reaffirmed many times.[618] Its effect and that of the cases +following it is that as regards the jurisdiction of the lower federal +courts two elements are necessary to confer jurisdiction: first, the +Constitution must have given the courts the capacity to receive it, and +second, an act of Congress must have conferred it. The manner in which +the inferior federal courts acquire jurisdiction, its character, the +mode of its exercise, and the objects of its operation are remitted +without check or limitation to the wisdom of the legislature.[619] + + +JUDICIAL POWER UNDER THE EMERGENCY PRICE CONTROL ACT + +The plenary power of Congress to withhold and restrict jurisdiction was +given renewed vitality by the Emergency Price Control Act of 1942[620] +and the cases arising therefrom. Fearful that the price control program +might be effectively nullified by injunctions, Congress provided for a +special court and special procedures for contesting the validity of +price regulations. In Lockerty _v._ Phillips[621] the Supreme Court +sustained the power of Congress to confine equity jurisdiction, to +restrain enforcement of the act to the specially created Emergency Court +of Appeals, with appeal to the Supreme Court. The Court went much +farther than this in Yakus _v._ United States,[622] and held that the +provision of the act conferring on the Emergency Court of Appeals and +the Supreme Court exclusive jurisdiction to determine the validity of +any regulation or order, and providing that no court should have +jurisdiction or power to consider the validity of any regulation, +precluded the plea of invalidity of such a regulation as a defense to +its violation in a criminal proceeding in a district court. Although +Justice Rutledge protested in his dissent that this provision of the act +conferred jurisdiction on the district courts from which essential +elements of the judicial power had been abstracted,[623] Chief Justice +Stone declared for the majority that the provision presented no novel +constitutional issue. + + +LEGISLATIVE CONTROL OVER WRITS + +The authority of Congress to regulate the jurisdiction of the lower +federal courts includes that of controlling the power of the courts to +issue writs in cases where they have jurisdiction and to regulate other +ancillary powers generally.[624] Among some of the more notable +restrictions in this regard are the limitations on the power of courts +to issue injunctions, particularly in the field of taxation and labor +disputes. By the act of March 2, 1867,[625] Congress provided that "no +suit for the purpose of restraining the assessment or collection of any +tax shall be maintained in any court." There have never been any +constitutional doubts concerning this provision, which was strictly +applied for many years[626] until 1916 when the Supreme Court began to +make exceptions[627] which in the later cases[628] made the provision so +inefficacious that by October, 1935, more than 1600 suits had been filed +to restrain the collection of processing taxes under the Agricultural +Adjustment Act.[629] None of these cases, however, raises any issue +other than that of statutory interpretation, and since 1936 the Court +has interpreted the exceptions to the statute somewhat more +strictly.[630] + + +Injunctions in Labor Disputes; the Norris-LaGuardia Act + +The Norris-LaGuardia Act of 1932[631] is significant for its +restrictions on the powers of the federal courts to issue injunctions in +labor disputes in the form of requirements for hearings followed by +findings that unlawful acts are threatened and will be committed unless +restrained, or if already committed will be continued; that substantial +injury to the property of complainants will ensue; that as to the relief +granted greater injury will be inflicted upon complainants by denying +relief than will be inflicted on defendants by granting it; that the +complainants have no adequate remedy at law; and, finally, that the +public officials charged with the protection of complainants' property +are either unable or unwilling to do so. This act has been scrupulously +applied by the Supreme Court, which has implicitly sustained its +constitutionality by construing its restrictions liberally[632] in every +case except United States _v._ United Mine Workers,[633] where it was +held that the statute did not apply to suits brought by the United +States to enjoin a strike in the coal industry while the Government +technically was operating the mines. + + +JUDICIAL POWER EQUATED WITH DUE PROCESS OF LAW + +Although the cases point to a plenary power in Congress to withhold +jurisdiction from the inferior courts and to withdraw it at any time +after it has been conferred, even as applied to pending cases, there are +a few cases in addition to Martin _v._ Hunter's Lessee[634] which +slightly qualify the cumulative effect of this impressive array of +precedents. As early as 1856, the Supreme Court in Murray _v._ Hoboken +Land and Improvement Co.[635] distinguished between matters of private +right which from their nature were the subject of a suit at the common +law, equity, or admiralty and cannot be withdrawn from judicial +cognizance and those matters of public right which, though susceptible +of judicial determination, did not require it and which might or might +not be brought within judicial cognizance. Seventy-seven years later the +Court elaborated this distinction in Crowell _v._ Benson,[636] which +involved the finality to be accorded administrative findings of +jurisdictional facts in compensation cases. In holding that an employer +was entitled to a trial _de novo_ of the constitutional jurisdictional +facts of the matter of the employer-employee relationship and of the +occurrence of the injury in interstate commerce, Chief Justice Hughes, +speaking for the majority fused the due process clause of Amendment V +and article III, but emphasized that the issue ultimately was "rather a +question of the appropriate maintenance of the Federal judicial power," +and "whether the Congress may substitute for constitutional courts, in +which the judicial power of the United States is vested, an +administrative agency * * * for the final determination of the existence +of the facts upon which the enforcement of the constitutional rights of +the citizen depend." To do so, contended the Chief Justice, "would be +to sap the judicial power as it exists under the Federal Constitution +and to establish a government of a bureaucratic character alien to our +system, wherever constitutional rights depend, as not infrequently they +do depend, upon the facts, and finality as to facts becomes in effect +finality in law."[637] + + +JUDICIAL _VERSUS_ NONJUDICIAL FUNCTIONS + +The power of Congress to confer jurisdiction on the lower federal courts +is qualified by the rule that before Congress can vest jurisdiction in +the inferior courts, they must have the capacity to receive it. The +capacity of the lower judiciary to receive jurisdiction is defined in +the enumeration of cases and controversies in article III. Consequently +in vesting courts with jurisdiction, Congress cannot go beyond this +enumeration.[638] It follows from the rule that constitutional courts +can perform only judicial functions that Congress, in vesting courts +with jurisdiction, cannot impose upon them nonjudicial duties such as +administering pensions,[639] deciding issues subject to later executive +or legislative action,[640] rendering advisory opinions, or opinions +which are not final and conclusive upon the parties,[641] or taking +jurisdiction of matters from which any essential element of the judicial +power has been abstracted.[642] To be sure, Congress may clothe some +matters of an administrative nature with the mantle of a case or +controversy and thereby make it a matter of judicial cognizance, as it +has done with naturalization proceedings,[643] the administration of +certain laws relating to the expulsion of aliens,[644] the limited +administration of funds received from the Government of Mexico to +compensate American citizens for claims against that government,[645] +and, of course, the traditional administration of bankrupt enterprises +through the medium of a receiver. + + +Federal-State Court Relations + + +PROBLEMS RAISED BY CONCURRENCY + +The American Federal System with its dual system of courts, exercising +concurrent jurisdiction in a number of classes of cases, presents +numerous possibilities of inter-court conflicts and interference. +Subject to Congressional enactments to the contrary, the State courts +have concurrent jurisdiction over all the classes of cases and +controversies enumerated in article III except suits between States, +those to which the United States is a party, those to which a foreign +state is a party, and cases of admiralty and maritime jurisdiction. Even +in admiralty cases the State courts, though unable to exercise any +portion of admiralty or maritime jurisdiction by delegation or +otherwise,[646] may have a concurrent jurisdiction when the same issues +assume the form of a case at common law.[647] In addition to conflicts +arising out of concurrent jurisdiction, relations between federal and +State courts are exposed to other frictions, such as injunctions in one +jurisdiction restraining judicial processes in another, the use of the +writ of _habeas corpus_ by a court of concurrent jurisdiction to release +persons in custody of another, and the refusal by State courts to comply +with orders of the Supreme Court. The relations between federal and +State courts are governed in part by Constitutional Law with respect to +State court interference with the federal courts and State court refusal +to comply with the judgments of federal tribunals, by statutes as +regards interference by federal courts with those of the States, and by +self-imposed rules of comity applied for the avoidance of unseemly +conflicts. + + +DISOBEDIENCE OF SUPREME COURT ORDERS BY STATE COURTS + +The refusal of State courts to make returns on writs of errors issued by +the Supreme Court has already been noted in connection with the +disobedience of the Virginia courts in Martin _v._ Hunter's Lessee[648] +and Cohens _v._ Virginia[649] and in that of the Wisconsin court in +Ableman _v._ Booth.[650] More spectacular disobedience to federal +authority arose out of the Cherokee Indian case involving actions of +Georgia and its courts. In the first of these the Supreme Court had +issued a writ of error to the Georgia Supreme Court to review the +conviction of Corn Tassel for the murder of another Cherokee Indian. The +writ was served, but before a hearing could be held Corn Tassel was +executed on the day originally set for punishment contrary to the +federal law that a writ of error superseded sentence until the appeal +was decided. This action ensued as a result of the legislature's +approval of the governor's policy that he would permit no interference +with Georgia's courts by orders of the Supreme Court and would resist by +force any attempt to enforce them with all the forces at his +command.[651] + + +Worcester _v._ Georgia + +Two years later Georgia renewed its defiance of the Supreme Court in +Worcester _v._ Georgia[652] which involved the conviction of two +missionaries for residing among the Indians without a license. The +Supreme Court reversed the conviction on the ground that the State had +no jurisdiction over the Cherokee reservations and ordered Worcester's +discharge in a special mandate to the superior court of Gwinnett County. +The State court ignored the mandate and once again the governor of the +State announced that he would meet such usurpation by the Supreme Court +with determined resistance. Consequently, Worcester and Butler remained +in jail until they agreed to abandon further efforts for their discharge +by federal authority in the form of a writ of error, whereupon the +governor pardoned them on the condition that they leave the State. + + +CONFLICTS OF JURISDICTION: COMITY + +Aside from these more dramatic assertions of independence of federal +courts, State court interference with the federal judiciary has occurred +for the most part in conflicts of jurisdiction which affect only the +lower federal courts as courts of concurrent jurisdiction and in +attempts to release persons in federal custody. To the extent that this +phase of federal-state relations is not governed by statute or the +supremacy clause of article VI, it is governed by comity, a self-imposed +rule of judicial morality whereby independent tribunals of concurrent or +coordinate jurisdiction exercise a mutual restraint in order to prevent +interference with each other and to avoid collisions of authority. +Although the Court on one occasion has stated that the principle of +comity is not a rule of law but "one of practice, convenience, and +expediency"[653] which persuades, but does not command, it has also +declared that in the American Federal System it has come to have "a +higher sanction than the utility which comes from concord" and has been +converted into a principle "of right and of law, and therefore of +necessity."[654] As developed and applied by the Supreme Court the rule +of comity is exemplified in three classes of cases: First, those in +which a court has acquired jurisdiction of the _res_ or the possession +of property and another court interferes with that jurisdiction or +possession; second, those in which a court has acquired jurisdiction or +custody of the person and another interferes with such jurisdiction or +custody, most frequently by discharges from custody in _habeas corpus_ +proceedings; and, third, those in which injunctions are used to stay +proceedings in another court or to enjoin official action before the +courts of proper jurisdiction have had an opportunity to adjudicate the +issue. + + +JURISDICTION OF THE _RES_ + +As applied by the Supreme Court in cases involving concurrent +jurisdiction the principle of comity means that when the jurisdiction of +a court and the right of a plaintiff to prosecute a suit therein have +attached and when a court has acquired constructive possession of +property, such jurisdiction cannot be taken away or obstructed by +proceedings in another court, nor can the possession of the property be +disturbed by proceedings in another court; and the court which has first +acquired jurisdiction of the cause or the possession of the _res_ has +exclusive jurisdiction to hear and determine the case and all +controversies relating thereto, provided that the subject matter of the +suit, the remedies sought, and the parties to it are the same, and +provided further that it is not necessary for the federal courts to +exercise jurisdiction in order to enforce the supremacy of the +Constitution and laws of the United States.[655] + + +STATE INTERFERENCE BY INJUNCTION WITH FEDERAL JURISDICTION + +It has long been settled as a general rule that State courts have no +power to enjoin proceedings or judgments of the federal courts.[656] In +United States ex rel. Riggs _v._ Johnson County[657] this rule was +attributed to no paramount jurisdiction of the federal courts, but +rather to the complete independence of the State and federal courts in +their spheres of action. Like many of the rules governing federal-state +court relations, this rule is not absolute, as shown by a case arising +in Pennsylvania. Two surviving trustees had filed an account for +themselves and a deceased trustee in a court of common pleas. +Thereafter, two of the five beneficiaries sued the two trustees and the +deceased trustee in a federal district court, charging mismanagement and +praying for an accounting and restitution and removal of the trustees. +The Supreme Court held that the State court upon the filing of the +account acquired jurisdiction over the trust _quasi in rem_ exclusively +and therefore sustained the State court's injunction restraining the +parties from further proceeding in the federal court while +simultaneously holding that the district court could not enjoin the +parties from proceeding in the State court.[658] The power of a State +court to enjoin parties from proceeding in a federal court obviously +does not include that of enjoining a federal court. + + +FEDERAL INTERFERENCE BY INJUNCTION WITH STATE JURISDICTION + +The discretion of the federal courts to enjoin proceedings in State +courts has not been left exclusively to doctrines of comity, for since +1793 the federal courts have been prohibited by statute from restraining +proceedings in State courts.[659] Initially this statute was applied +with strict literalness in condemning attempts by the lower federal +courts to enter exceptions to it,[660] but gradually the Supreme Court +began to interpret the provision as not prohibitive of all injunctions. +First, it has been held that an injunction will lie against proceedings +in a State court to protect the lawfully acquired jurisdiction of a +federal court against impairment or defeat.[661] This exception is +notably applicable to cases where the federal court has taken possession +of property which it may protect by injunction from interference by +State courts.[662] Second, in order to prevent irreparable damages to +persons and property the federal courts may restrain the legal officers +of a State from taking proceedings in State courts to enforce State +legislation alleged to be unconstitutional.[663] Nor does the +prohibition of Sec. 265 of the Judicial Code [28 U.S.C.A. Sec. 2283] +prevent injunctions restraining the execution of judgments in State +courts obtained by fraud,[664] the restraint of proceedings in State +courts in cases which have been removed to the federal courts,[665] nor, +until lately, to proceedings in State courts to relitigate issues +previously adjudicated and finally settled by decrees of a federal +court.[666] + +In Toucey _v._ New York Life Insurance Co.,[667] Justice Frankfurter, +as spokesman for the Court, reviewed earlier cases and in effect +overruled the exception of suits designed to relitigate issues +previously adjudicated by a federal court, and held that a suit for +injunction would not lie to restrain a proceeding in a State court on +the ground that the claim had been previously adjudicated. In so doing +he placed this issue in its proper context of _res judicata_. In +addition he went beyond the requirements of the case at bar to cast +doubts upon the exception of suits brought to enjoin the execution of +judgments of State courts obtained by fraud. Furthermore, by regarding +the exception of suits restraining proceedings in State courts in cases +which had been removed to the federal courts as emanating from the +removal acts, Justice Frankfurter concluded that only one exception had +been made by judicial construction to Sec. 265, [28 U.S.C.A. Sec. 2283] +namely, that permitting injunction of proceedings in State courts to +protect the possession of property previously acquired.[668] The rule of +this case was extended on the same day to forbid an injunction to +restrain proceedings in a State court in support of jurisdiction +previously begun earlier and still pending in the federal court.[669] + + +Federal Injunctions of State Official Action + +Injunctions by federal courts restraining State officials from enforcing +unconstitutional State statutes constitute an indirect interference with +State courts and a serious obstruction to the administration of public +policy. From Osborn _v._ Bank of the United States,[670] which was the +first case in which an injunction was used to restrain State action +under an unconstitutional statute, to Ex parte Young[671] the Supreme +Court established firmly the rule that jurisdiction exists in the +federal courts to restrain the enforcement of unconstitutional State +statutes and to enjoin State officials charged with the duty of +enforcing State laws from bringing criminal or civil proceedings to +enforce an invalid statute. Until Ex parte Young, the Court had been +careful to sustain the jurisdiction of the lower federal courts to +enjoin the enforcement of unconstitutional State legislation only after +a finding of unconstitutionality,[672] but Ex parte Young abandoned +this rule by holding that the enforcement of a State statute by the +attorney general of the State through proceedings in State courts could +be enjoined pending the determination of its constitutionality. + + +Ex Parte Young + +Although a suit to restrain the attorney general of a State from +proceeding in the courts of the State to enforce a State law not +declared unconstitutional would seem effectively to stay proceedings in +a State court, Justice Peckham drew a distinction between the power to +enjoin the attorney general and other law officers as individuals and a +suit against a State court on the ground that the former does not +include the "power to prevent any investigation or action by a grand +jury. The latter body is part of the machinery of a criminal court, and +an injunction against a State court would be a violation of the whole +scheme of our Government."[673] Justice Harlan, not convinced by this +distinction, characterized the suit as an attempt "_to tie the hands_ of +the _State_ so that it could not in any manner or by any mode of +proceeding _in its own courts_, test the validity of the statutes and +orders in question."[674] + +Although the rigor of the rule of Ex parte Young has been mitigated by +subsequent decisions[675] and the mode of its exercise somewhat narrowed +by statute, it has not been overruled and remains a source of friction +in federal-state relations. Simultaneously, however, Sec. 266 (_see_ note +2 above[Transcriber's Note: Reference is to footnote 674 of Article III.]) +has been construed strictly as designed "to secure the public interest +in 'a limited class of cases of special importance,'"[676] and not "a +measure of broad social policy to be construed with great liberality, +but as an enactment technical in the strict sense of the term and to be +applied as such."[677] + + +STATE INTERFERENCE BY _HABEAS CORPUS_ PROCEEDINGS WITH FEDERAL +JURISDICTION + +The most spectacular type of State court interference with federal +courts has been their use of the writ of _habeas corpus_ to release +persons in federal custody. Between 1815 and 1861, judges in nine State +courts asserted the right to release persons in federal custody,[678] +and the issue was not finally settled until 1859, when Ableman _v._ +Booth[679] was decided. Here a Justice of the Wisconsin Supreme Court +first released a prisoner held by a United States commissioner on +charges of violating the fugitive slave law. After the trial, +conviction, and sentence of the defendant, the State supreme court +issued a second writ of _habeas corpus_ and after hearing ordered the +release of the prisoner. The national Supreme Court then issued a writ +of error to the State court which refused to make a return. In an +opinion based in part on national supremacy and in part on dual +sovereignty, Chief Justice Taney, speaking for the Court, laid down the +absolute rule that no State court has the power to release prisoners +held in custody under the authority of the United States.[680] + +Notwithstanding the strong language of the Court in Ableman _v._ Booth, +the Wisconsin courts thirteen years later again asserted the power to +release persons in federal custody by directing the release of an +enlisted soldier in the custody of a recruiting officer of the United +States Army. Once again the Court held that a State court has no +authority to issue a writ of _habeas corpus_ for the release of persons +held under the authority or claim and color of authority of the United +States. Justice Field for the Court went on to lay down the +generalization that neither government "can intrude with its judicial +process into the domain of the other, except so far as such intrusion +may be necessary on the part of the National Government to preserve its +rightful supremacy in cases of conflict of authority."[681] + + +FEDERAL INTERFERENCE BY REMOVAL AND _HABEAS CORPUS_ + +Another potential source of friction between State and federal courts is +the use of the writ of _habeas corpus_ or of removal proceedings in the +federal courts to release persons from State custody. As has already +been indicated the rule of national supremacy deprives the courts of the +States of any power to release persons held in federal custody. Recourse +to _habeas corpus_ or removal proceedings in the federal courts to +release persons in the custody of State courts is governed by statute +and comity. The Judiciary Act of 1789[682] conferred jurisdiction upon +the federal courts to issue writs of _habeas corpus_ to release persons +in State custody only for the purpose of having them appear as witnesses +in federal proceedings. The same act also provided for the removal +before trial into a federal court of civil cases arising under the laws +of the United States. Both branches of this jurisdiction were broadened +as a result of the nullification movement in South Carolina so as to +make either removal or _habeas corpus_ available to persons held in +State custody for any act done or omitted in pursuance of the laws of +the United States.[683] These recourses were in 1842 made available to +aliens restrained by State authority in violation of their international +rights,[684] and in 1867 to all persons restrained in violation of the +Constitution, laws, or treaties of the United States.[685] In substance +all these acts still remain on the statute book.[686] + +Of these provisions the most important are those governing the release +of persons held under State authority for an act done or omitted under +federal authority and persons held in violation of the Constitution, +laws, or treaties of the United States. In the leading case of Tennessee +_v._ Davis,[687] decided in 1880, the question was faced of their +constitutionality. Davis was a federal revenue officer who, in the +discharge of his duties, killed a man, and was arraigned by Tennessee +for murder. He thereupon applied for removal of his case to a federal +court under the act of 1867. To Tennessee's evocation of the doctrine of +State sovereignty, the Court rejoined with a ringing assertion of the +principle of National Supremacy. Subsequently, the same provisions have +been construed to procure the release of a deputy United States marshal +from State custody for killing a man while protecting a Justice of the +Supreme Court under a Presidential order which was regarded as a "law" +of the United States;[688] the release of an election official held +under State authority for perjury on the ground that jurisdiction to +punish a false witness belonged to the federal courts in this +instance;[689] and the release of a collector of internal revenue held +in Kentucky for his refusal to file copies of his official papers with a +State court.[690] Similarly, the governor of a national home for +disabled soldiers was released from Ohio custody for serving +oleomargarine in the home in violation of an Ohio statute.[691] A more +extreme exercise of _habeas corpus_ jurisdiction is illustrated by +Hunter _v._ Wood[692] where a ticket agent of a railroad held in State +custody for an overcharge on a ticket was released because prior to his +trial in the State court, a United States circuit court had enjoined the +enforcement of the statute. The element common to all of these cases is +the supremacy of the National Government and the inability of the States +through judicial proceedings or otherwise to obstruct the enforcement of +federal authority. The doctrine of comity is inapplicable in this +category of cases. + + +COMITY AS A PRINCIPLE OF STATUTORY CONSTRUCTION + +On the other hand, in Ex parte Royall,[693] decided in 1886, the Court +held that the jurisdiction of the lower federal courts in the above +category of cases involved no duty to release persons from State custody +but only a discretion to do so. Such discretion, the Court declared, +"should be exercised in the light of the relations existing, under our +system of government, between the judicial tribunals of the Union and of +the States, and in recognition of the fact that the public good requires +that those relations be not disturbed by unnecessary conflict between +the courts equally bound to guard and protect rights secured by the +Constitution."[694] In pursuance of these principles the Court has +subsequently formulated rules to the effect that mere error in the +prosecution and trial of a suit cannot confer jurisdiction upon a +federal court to review the proceedings upon a writ of _habeas +corpus_;[695] that the writ of _habeas corpus_ cannot be substituted for +the writ of error, however serious the errors committed by the State +court;[696] that except in extreme and urgent cases the federal courts +will not discharge a prisoner in State custody prior to final +disposition of the case in the State courts, where the prisoner must +first exhaust all State remedies; and even after the State courts have +acted, the federal courts will usually leave the prisoner to the usual +and orderly procedure of appeal to the Supreme Court. Furthermore, the +Supreme Court will, in the exercise of a sound discretion, issue a writ +of mandamus to compel a federal court to remand to a State court a +prosecution of a federal officer removed to it, when it appears that the +officer in question, in seeking removal, failed to make a candid, +specific, and positive explanation of his relation to the transaction +giving rise to the crime for which he was indicted.[697] + +Because of the care with which the discretion to issue writs of _habeas +corpus_ and to grant removals has been exercised by the federal courts +to release persons from State custody there has been a minimum of +friction in this area of federal-state relations, in contrast to that +produced by their extensive use of injunctions to restrain the +enforcement of State statutes. In Wade _v._ Mayo,[698] Justice Murphy +cited the statistics of the Administrative Office of the United States +Courts which revealed that during the fiscal years of 1943, 1944, and +1945, there was an average of 451 _habeas corpus_ petitions filed each +year in federal district courts by persons in State custody, and that of +these petitions, an average of only six per year resulted in a reversal +of the conviction and the release of the prisoner. + + +COMITY AS COOPERATION + +Moreover, cold comity may become on occasion warm cooperation between +the two systems of courts. In Ponzi _v._ Fessenden,[699] the matter at +issue was the authority of the Attorney General of the United States to +consent to the transfer on a writ of _habeas corpus_ of a federal +prisoner to a State court to be there put on trial upon indictments +there pending against him. The Court, speaking by Chief Justice Taft, +while conceding that there was no express statutory authority for such +action, sustained it. Said the Chief Justice: "We live in the +jurisdiction of two sovereignties, each having its own system of courts +to declare and enforce its laws in common territory. It would be +impossible for such courts to fulfil their respective functions without +embarrassing conflict unless rules were adopted by them to avoid it. The +people for whose benefit these two systems are maintained are deeply +interested that each system shall be effective and unhindered in its +vindication of its laws. The situation requires, therefore, not only +definite rules fixing the powers of the courts in cases of jurisdiction +over the same persons and things in actual litigation, but also a spirit +of reciprocal comity and mutual assistance to promote due and orderly +procedure."[700] + + +EARLY USE OF STATE COURTS IN ENFORCEMENT OF FEDERAL LAW + +The final phase of the relation of State courts has to do with their +administration of federal law. Although it is the general rule that +Congress cannot vest the judicial power of the United States in courts +other than those created in pursuance of article III,[701] it has from +the beginning of the National Government left to the State courts wide +areas of jurisdiction which it might have vested exclusively in the +federal courts, section 25 of the Judiciary Act of 1789 offering the +supreme illustration. But going far beyond that, in the latter years of +the eighteenth century and the early part of the nineteenth, Congress +provided that suits by the National Government itself for fines, +forfeitures, and penalties imposed by the revenue laws might be brought +in State courts of competent jurisdiction as well as in the federal +courts.[702] The Fugitive Slave Act of 1793,[703] the Naturalization Act +of 1795,[704] and the Alien Enemies Act of 1798,[705] all imposed +positive duties on State courts to enforce federal law. In 1799 the +State courts were vested with jurisdiction to try criminal offenses +against federal laws.[706] Extensive reliance was placed on State courts +for the enforcement of the Embargo Acts;[707] and the act of March 3, +1815,[708] vested in State or county courts within or directly adjoining +a federal tax-collection district cognizant "of all complaints, suits +and prosecutions for taxes, duties, fines, penalties, and forfeitures." + + +Retreat From This Practice + +The indifference, however, of the State courts in New England to the +Embargo Acts, the later hostility of courts in the northern States to +the Fugitive Slave Act, and the refusal of courts in other States to +administer federal law on the general principle that the courts of no +nation are bound to enforce the penal laws of another,[709] all combined +to produce strong sentiments against the use of State courts to +administer federal law. These sentiments came in time to be incorporated +in dissenting opinions,[710] and in 1842 in Prigg _v._ Pennsylvania[711] +the Court definitely ruled that the States could not be compelled to +enforce federal law. However, it was later held that this ruling did not +prevent Congress from authorizing State courts to administer federal law +or the action taken by them, if they choose to do so, from being +valid.[712] + + +Resumption of the Practice + +Near the end of the nineteenth century and afterwards Congress resumed +its earlier practice of vesting concurrently the enforcement of +federally created rights in the State and federal courts. The +administration of Indian lands and the determination of rights to +inherit allotted lands[713] marked the beginning of the restoration of +the use of State courts to apply federal law, and the Federal Employers' +Liability Act of 1908[714] carried the practice further, not only by +vesting concurrent jurisdiction in suits arising under the act, in State +courts but also in prohibiting the removal of cases begun in State +courts to the federal courts. Soon afterwards the Connecticut courts in +a compensation case applied the State's common law rules of liability +contrary to the federal act and held that Congress could not require a +State court to grant a remedy which local law did not permit. The +Connecticut courts further held that enforcement of the federal act was +contrary to the public policy of the State.[715] This decision was +overruled in the Second Employers' Liability Cases,[716] where it was +held on the basis of national supremacy that rights arising under the +act can be enforced "as of right, in the courts of the States when their +jurisdiction, as prescribed by local laws, is adequate to the occasion." +Subsequently, the Supreme Court has held that the rights created under +this statute cannot be defeated by forms of local practice and that it +is the duty of the Supreme Court to construe allegations in a complaint +asserting a right under the liability act in order to determine whether +a State court has denied a right of trial guaranteed by Congress.[717] + + +STATE OBLIGATION TO ENFORCE FEDERAL LAW + +The issue of State obligation to administer federal law was presented +most recently by Testa _v._ Katt.[718] This case arose out of the +Emergency Price Control Act of 1942,[719] which provided that persons +who had been overcharged in violation of the act or, in the alternative, +the Price Administrator, could sue for treble damages in any court of +competent jurisdiction. On the ground that one sovereign cannot enforce +the penal laws of another, the Rhode Island Supreme Court ruled that the +State courts had no jurisdiction of such suits. Assuming for the +purposes of the case that the treble damage provision, was "penal" in +nature, Justice Black for a unanimous Court proceeded to lay to rest the +principle that a State court is not bound to enforce federal criminal +law as an assumption flying "in the face of the fact that the States of +the Union constitute a nation" and one which disregarded the supremacy +clause. Justice Black also pointed to early acts of Congress and early +decisions of the Supreme Court as establishing the rule that "State +courts do not bear the same relation to the United States as they do to +foreign countries."[720] The Prigg case, though not overruled expressly, +was ignored save for its citation in a footnote.[721] + + +RIGHT OF FOREIGN CORPORATIONS TO RESORT TO FEDERAL COURTS + +In a series of cases the Court has been called upon to adjudicate +between the power of a State to exclude foreign corporations from doing +a purely domestic business within its borders and the right of such +foreign corporations to resort to the federal courts. After deciding +first one way and then the other, on the basis of some highly refined +distinctions,[722] it finally, in 1922, came out unqualifiedly for the +latter right. This was in Terral _v._ Burke Construction Co.,[723] in +which an Arkansas statute requiring the cancellation of the license of a +foreign corporation to do business in the State, upon notice that such +corporation had removed a case to a federal court, was pronounced void. +At the same time all contrary decisions were explicitly overruled. + + +Clause 3. The Trial of all Crimes, except in Cases of Impeachment, shall +be by Jury; and such Trial shall be held in the State where the said +Crimes shall have been committed; but when not committed within any +State, the Trial shall be at such Place or Places as the Congress may by +Law have directed. _See_ Amendment VI, pp. 878-881. + + +Section 3. Treason against the United States, shall consist +only in levying War against them, or in adhering to their Enemies, +giving them Aid and Comfort. No Person shall be convicted of Treason +unless on the testimony of two Witnesses to the same overt Act, or on +Confession in open Court. + + +Treason + +The provisions and phraseology of this section are derived from the +English Statute of Treasons enacted in 1351, in the reign of Edward +III,[724] as an expression of grievance against the application of the +doctrine of constructive treasons by the common law courts. The +constitutional definition is, of course, much more restrictive than the +enumeration of treasons in the English statute, but like that statute, +it is emphatically a limitation on the power of government to define +treason and to prove its existence. The rigid and exclusive definition +of treason takes from Congress all power to define treason and +prescribes limitations on the power to prescribe punishment thereupon. + + +LEVYING WAR + +Early judicial interpretation of the meaning of treason in terms of +levying war was conditioned by the partisan struggles of the early +nineteenth century, in which were involved the treason trials of Aaron +Burr and his associates. In Ex parte Bollman,[725] which involved two of +Burr's confederates, Chief Justice Marshall, speaking for himself and +three other Justices, confined the meaning of levying of war to the +actual waging of war. "However flagitious may be the crime of conspiring +to subvert by force the government of our country, such conspiracy is +not treason. To conspire to levy war and actually to levy war, are +distinct offences. The first must be brought into open action, by the +assemblage of men for a purpose treasonable in itself, or the fact of +levying war cannot have been committed. So far has this principle been +carried, that * * * it has been determined that the actual enlistment of +men, to serve against the government, does not amount to the levying of +war."[726] Chief Justice Marshall was careful, however, to state that +the Court did not mean that no person could be guilty of this crime who +had not appeared in arms against the country. "On the contrary, if it be +actually levied, that is, if a body of men be actually assembled, for +the purpose of effecting by force a treasonable purpose, all those who +perform any part, however minute, or however remote from the scene of +action, and who are actually leagued in the general conspiracy, are to +be considered as traitors. But there must be an actual assembling of +men, for the treasonable purpose, to constitute a levying of war."[727] +On the basis of these considerations and due to the fact that no part of +the crime charged had been committed in the District of Columbia, the +Court held that Bollman and Swartwout could not be tried in the District +and ordered their discharge. He continued by saying that "the crime of +treason should not be extended by construction to doubtful cases" and +concluded that no conspiracy for overturning the Government and "no +enlisting of men to effect it, would be an actual levying of war."[728] + + +The Burr Trial + +Not long afterward the Chief Justice went to Richmond to preside over +the trial of Burr himself. His ruling[729] denying a motion to introduce +certain collateral evidence bearing on Burr's activities is significant +both for rendering the latter's acquittal inevitable and for the +qualifications and exceptions made to the Bollman decision. In brief +this ruling held that Burr, who had not been present at the assemblage +on Blennerhassett's Island, could be convicted of advising or procuring +a levying of war, only upon the testimony of two witnesses to his having +procured the assemblage. This operation having been covert, such +testimony was naturally unobtainable. The net effect of Marshall's +pronouncements was to make it extremely difficult to convict one of +levying war against the United States short of the conduct of or +personal participation in actual hostilities.[730] + + +AID AND COMFORT TO THE ENEMY; THE CRAMER CASE + +Since the Bollman case only three treason cases have ever reached the +Supreme Court, all of them outgrowths of World War II and all charging +adherence to enemies of the United States and giving them aid and +comfort. In the first of these, Cramer _v._ United States,[731] the +issue was whether the "overt act" had to be "openly manifest treason" or +if it was enough if, when supported by other proper evidence, it showed +the required treasonable intention.[732] The Court in a five-to-four +opinion by Justice Jackson in effect took the former view holding that +"the two-witness principle" interdicted "imputation of _incriminating +acts_ to the accused by circumstantial evidence or by the testimony of a +single witness,"[733] even though the single witness in question was the +accused himself. "Every act, movement, deed, and word of the defendant +charged to constitute treason must be supported by the testimony of two +witnesses,"[734] Justice Jackson asserted. Justice Douglas in a dissent, +in which Chief Justice Stone and Justices Black and Reed concurred, +contended that Cramer's treasonable intention was sufficiently shown by +overt acts as attested to by two witnesses each, plus statements made by +Cramer on the witness stand. + + +THE HAUPT CASE + +The Supreme Court sustained a conviction of treason, for the first time +in its history in 1947 in Haupt _v._ United States.[735] Here it was +held that although the overt acts relied upon to support the charge of +treason--defendant's harboring and sheltering in his home his son who +was an enemy spy and saboteur, assisting him in purchasing an +automobile, and in obtaining employment in a defense plant--were all +acts which a father would naturally perform for a son, this fact did not +necessarily relieve them of the treasonable purpose of giving aid and +comfort to the enemy. Speaking for the Court, Justice Jackson said: "No +matter whether young Haupt's mission was benign or traitorous, known or +unknown to the defendant, these acts were aid and comfort to him. In the +light of his mission and his instructions, they were more than casually +useful; they were aid in steps essential to his design for treason. If +proof be added that the defendant knew of his son's instructions, +preparation and plans, the purpose to aid and comfort the enemy becomes +clear."[736] + +The Court held that conversations and occurrences long prior to the +indictment were admissible evidence on the question of defendant's +intent. And more important, it held that the constitutional requirement +of two witnesses to the same overt act or confession in open court does +not operate to exclude confessions or admissions made out of court, +where a legal basis for the conviction has been laid by the testimony of +two witnesses of which such confessions or admissions are merely +corroborative. This relaxation of restrictions surrounding the +definition of treason evoked obvious satisfaction from Justice Douglas +who saw in the Haupt decision a vindication of his position in the +Cramer case. His concurring opinion contains what may be called a +restatement of the law of treason and merits quotation at length; + +"As the _Cramer_ case makes plain, the overt act and the intent with +which it is done are separate and distinct elements of the crime. Intent +need not be proved by two witnesses but may be inferred from all the +circumstances surrounding the overt act. But if two witnesses are not +required to prove treasonable intent, two witnesses need not be required +to show the treasonable character of the overt act. For proof of +treasonable intent in the doing of the overt act necessarily involves +proof that the accused committed the overt act with the knowledge or +understanding of its treasonable character. + +"The requirement of an overt act is to make certain a treasonable +project has moved from the realm of thought into the realm of action. +That requirement is undeniably met in the present case, as it was in the +case of _Cramer_. + +"The _Cramer_ case departed from those rules when it held that 'The +two-witness principle is to interdict imputation of _incriminating acts_ +to the accused by circumstantial evidence or by the testimony of a +single witness.' 325 U.S. p. 35. The present decision is truer to the +constitutional definition of treason when it forsakes that test and +holds that an act, quite innocent on its face, does not need two +witnesses to be transformed into an incriminating one."[737] + + +THE KAWAKITA CASE + +The third case referred to above is Kawakita _v._ United States,[738] +which was decided on June 2, 1952. The facts are sufficiently stated in +the following headnote: "At petitioner's trial for treason, it appeared +that originally he was a native-born citizen of the United States and +also a national of Japan by reason of Japanese parentage and law. While +a minor, he took the oath of allegiance to the United States; went to +Japan for a visit on an American passport; and was prevented by the +outbreak of war from returning to this country. During the war, he +reached his majority in Japan; changed his registration from American to +Japanese; showed sympathy with Japan and hostility to the United States; +served as a civilian employee of a private corporation producing war +materials for Japan; and brutally abused American prisoners of war who +were forced to work there. After Japan's surrender, he registered as an +American citizen; swore that he was an American citizen and had not done +various acts amounting to expatriation; and returned to this country on +an American passport." The question whether, on this record Kawakita had +intended to renounce American citizenship, said the Court, in sustaining +conviction, was peculiarly one for the jury and their verdict that he +had not so intended was based on sufficient evidence. An American +citizen, it continued, owes allegiance to the United States wherever he +may reside, and dual nationality does not alter the situation.[739] + + +DOUBTFUL STATE OF THE LAW OF TREASON TODAY + +The vacillation of Chief Justice Marshall between the Bollman[740] and +Burr[741] cases and the vacillation of the Court in the Cramer[742] and +Haupt[743] cases leaves the law of treason in a somewhat doubtful +condition. The difficulties created by the Burr case have been obviated +to a considerable extent through the punishment of acts ordinarily +treasonable in nature under a different label within a formula provided +by Chief Justice Marshall himself in the Bollman case. The passage +reads: "Crimes so atrocious as those which have for their object the +subversion by violence of those laws and those institutions which have +been ordained in order to secure the peace and happiness of society, are +not to escape punishment, because they have not ripened into treason. +The wisdom of the legislature is competent to provide for the case; and +the framers of our Constitution * * * must have conceived it more safe +that punishment in such cases should be ordained by general laws, formed +upon deliberation, under the influence of no resentments, and without +knowing on whom they were to operate, than that it should be inflicted +under the influence of those passions which the occasion seldom fails to +excite, and which a flexible definition of the crime, or a construction +which would render it flexible, might bring into operation."[744] + + +Clause 2. The Congress shall have Power to declare the Punishment of +Treason, but no Attainder of Treason shall work Corruption of Blood, or +Forfeiture except during the Life of the Person attainted. + + +CORRUPTION OF BLOOD AND FORFEITURE + +The Confiscation Act of 1862[745] "to Suppress Insurrection; to Punish +Treason and Rebellion; to Seize and Confiscate the Property of Rebels +raised issues under article III, section 3, clause 2." Because of the +constitutional doubts of the President the act was accompanied by an +explanatory joint resolution which stipulated that only a life estate +terminating with the death of the offender could be sold and that at his +death his children could take the fee simple by descent as his heirs +without deriving any title from the United States. In applying this act, +passed in pursuance of the war power and not the power to punish +treason,[746] the Court in one case[747] quoted with approval the +English distinction between a disability absolute and perpetual and one +personal or temporary. Corruption of blood as a result of attainder of +treason was cited as an example of the former and was defined as the +disability of any of the posterity of the attainted person "to claim any +inheritance in fee simple, either as heir to him, or to any ancestor +above him."[748] + + +Notes + +[1] Miller, On the Constitution, 314 (New York, 1891). + +[2] 219 U.S. 346 (1911) + +[3] Ibid. 361. + +[4] United States _v._ Arredondo, 6 Pet. 691 (1832). + +[5] General Investment Co. _v._ New York Central R. Co., 271 U.S. 228, +230 (1926). + +[6] For distinctions between judicial power and jurisdiction _see_ +Williams _v._ United States, 289 U.S. 553, 566 (1933); and the dissent +of Justice Rutledge in Yakus _v._ United States, 321 U.S. 414, 467-468 +(1944). + +[7] Michaelson _v._ United States, 266 U.S. 42 (1924). + +[8] McIntire _v._ Wood, 7 Cr. 504 (1813); Ex parte Bollman, 4 Cr. 75 +(1807). + +[9] Wayman _v._ Southard, 10 Wheat. 1 (1825) + +[10] Gumbel _v._ Pitkin, 124 U.S. 131 (1888). + +[11] Ex parte Peterson, 253 U.S. 300 (1920). + +[12] Ex parte Garland, 4 Wall. 333, 378 (1867). + +[13] Chisholm _v._ Georgia, 2 Dall. 419 (1793); Kentucky _v._ Dennison, +24 How. 66, 98 (1861) contains a review of authorities on this point. + +[14] Mayor of Nashville _v._ Cooper, 6 Wall. 247, 252 (1868); Cary _v._ +Curtis, 3 How. 236 (1845); Shelden _v._ Sill, 8 How. 441 (1850); Kline +_v._ Burke Construction Co., 260 U.S. 226 (1922). _See also_ the cases +discussed under the heading of the Power of Congress to regulate the +jurisdiction of the lower federal courts, _infra_, p. 616. + +[15] 2 Dall. 409 (1792). + +[16] His initial effort was in United States _v._ Ferreira, 13 How. 40 +(1852). This case involved the validity of an act of Congress directing +the judge of the territorial court of Florida to examine and adjudge +claims of Spanish subjects against the United States and to report his +decisions with evidence thereon to the Secretary of the Treasury who in +turn was to pay the award to the claimant if satisfied that the +decisions were just and within the terms of the treaty of cession. After +Florida became a State and the territorial court a district court of the +United States, the Supreme Court refused to entertain an appeal under +the statute for want of jurisdiction to review nonjudicial proceedings. +The duties required by the act, it was said "are entirely alien to the +legitimate functions of a judge or court of justice, and have no analogy +to the general or special powers ordinarily and legally conferred on +judges or courts to secure the due administration of the laws." Ibid. +51. + +[17] 2 Wall. 561 (1865). + +[18] 117 U.S. 697 Appx. (1864). _See also_ De Groot _v._ United States, +5 Wall. 419 (1867) and United States _v._ Klein, 13 Wall. 128 (1872), +which sustained Supreme Court revision after the jurisdiction of the +Court of Claims had been made final. The Gordon decision had indicated +that the Supreme Court could not review the decision of any legislative +court. + +[19] 117 U.S. 697, 703. This last doctrine was repeated to the extent +that for many years an award of execution as distinguished from finality +of judgment came to be regarded as an essential attribute of judicial +power. _See_ In re Sanborn, 148 U.S. 222, 226 (1893); Interstate +Commerce Commission _v._ Brimson, 154 U.S. 447, 483 (1894); La Abra +Silver Mining Co. _v._ United States, 175 U.S. 423, 457 (1899); Frasch +_v._ Moore, 211 U.S. 1 (1908); Muskrat _v._ United States, 219 U.S. 346, +355, 361-362 (1911), and Postum Cereal Co. _v._ California Fig Nut Co., +272 U.S. 693 (1927). + +[20] 273 U.S. 70 (1927). + +[21] 276 U.S. 71 (1928). + +[22] 274 U.S. 123 (1927). This case also clarified any doubts concerning +a federal declaratory judgment act which was passed in 1934 and +sustained in Aetna Life Insurance Co. _v._ Haworth, 300 U.S. 227 (1937). + +[23] 288 U.S. 249 (1933). The decision in the Swope and Wallace cases +removed all constitutional doubts which had previously shrouded a +proposed federal declaratory judgment act which was enacted in 1934 (48 +Stat. 955) and sustained in Aetna Life Ins. Co. _v._ Haworth, 300 U.S. +227 (1937). + +[24] John Charles Fox, The King _v._ Almon, 24 Law Quarterly Review 184, +194-195 (1908). + +[25] John Charles Fox, The Summary Power to Punish Contempt, 25 Law +Quarterly Review, 238, 252 (1909). + +[26] 1 Stat. 73, 83. + +[27] Act of March 2, 1831, 4 Stat. 487, now 18 U.S.C.A. 401. For a +summary of the Peck Impeachment and the background of the act of 1831, +_see_ Felix Frankfurter and James Landis, Power of Congress Over +Procedure in Criminal Contempts in Inferior Federal Courts--A Study in +Separation of Powers, 37 Harvard Law Review, 1010, 1024-1028 (1924). + +[28] 19 Wall. 505 (1874). + +[29] Ibid. 505, 510-511. + +[30] Gompers _v._ Bucks Stove & Range Co., 221 U.S. 418, 450 (1911). +_See also_ In re Debs, 158 U.S. 504, 595 (1895). + +[31] U.S. 42 (1924). + +[32] 38 Stat. 730 (1914). + +[33] 266 U.S. 42, 65-66. + +[34] 247 U.S. 402 (1918). + +[35] Ibid. 418-421. + +[36] 263 U.S. 255 (1923). In his dissent in this case, Justice Holmes +stated that unless a judge has power to "lay hold of anyone who ventures +to publish anything that tends to make him unpopular or to belittle him +* * *. A man cannot be summarily laid by the heels because his words may +make public feeling more unfavorable in case the judge should be asked +to act at some later date, any more than he can for exciting feeling +against a judge for what he already has done." Ibid. 281-282. + +[37] 313 U.S. 33, 47-53 (1941). + +[38] 314 U.S. 252, 260 (1941). _See_ pp. 783-784 (Amendment I). + +[39] 128 U.S. 289 (1888). + +[40] 267 U.S. 517 (1925). + +[41] Ibid. 534, 535. + +[42] Ibid. 539. + +[43] Sacher _v._ United States, 343 U.S. 1 (1952). + +[44] Dennis _v._ United States, 341 U.S. 494 (1951). + +[45] 343 U.S. 1, 11, 13-14. Justice Clark did not participate. Justices +Black, Frankfurter, and Douglas dissented. Justice Frankfurter's opinion +is accompanied by an elaborate review of exchanges between the trial +judge and defense counsel, excerpted from the record of the case. On the +constitutional issue he said: "Summary punishment of contempt is +concededly an exception to the requirements of Due Process. Necessity +dictates the departure. Necessity must bound its limits. In this case +the course of events to the very end of the trial shows that summary +measures were not necessary to enable the trial to go on. Departure from +established judicial practice, which makes it unfitting for a judge who +is personally involved to sit in his own case, was therefore +unwarranted. Neither self-respect nor the good name of the law required +it. Quite otherwise. Despite the many incidents of contempt that were +charged, the trial went to completion, nine months after the first +incident, without a single occasion making it necessary to lay any one +of the lawyers by the heel in order to assure that the trial proceed. +The trial judge was able to keep order and to continue the court's +business by occasional brief recesses calculated to cool passions and +restore decorum, by periodic warnings to defense lawyers, and by +shutting off obstructive arguments whenever rulings were concisely +stated and firmly held to." Ibid. 36. Justice Douglas summarized the +position of all three dissenters, as follows: "I agree with Mr. Justice +Frankfurter that one who reads this record will have difficulty in +determining whether members of the bar conspired to drive a judge from +the bench or whether the judge used the authority of the bench to +whipsaw the lawyers, to taunt and tempt them, and to create for himself +the role of the persecuted. I have reluctantly concluded that neither is +blameless, that there is fault on each side, that we have here the +spectacle of the bench and the bar using the courtroom for an unseemly +demonstration of garrulous discussion and of ill will and hot tempers. I +therefore agree with Mr. Justice Black and Mr. Justice Frankfurter that +this is the classic case where the trial for contempt should be held +before another judge. I also agree with Mr. Justice Black that +petitioners were entitled by the Constitution to a trial by jury." Ibid. +80. + +[46] 330 U.S. 258, 293-307 (1947). + +[47] 203 U.S. 563 (1906) + +[48] Gompers _v._ Bucks Stove & Range Co., 221 U.S. 418, 441-443 (1911); +Ex parte Grossman, 267 U.S. 87 (1925). _See also_ Bessette _v._ W.B. +Conkey Co., 194 U.S. 324, 327-328 (1904). + +[49] 267 U.S. 87, 119-120 (1925). + +[50] Michaelson _v._ United States, 266 U.S. 42, 65-66 (1924). + +[51] 154 U.S. 447 (1894). + +[52] Penfield Co. _v._ Securities and Exchange Commission, 330 U.S. 585 +(1947). Note the dissent of Justice Frankfurter. For delegations of the +subpoena power to administrative agencies and the use of judicial +process to enforce them _see also_ McCrone _v._ United States, 307 U.S. +61 (1939); Endicott Johnson Corp. _v._ Perkins, 317 U.S. 501 (1943); +Oklahoma Press Pub. Co. _v._ Walling, 327 U.S. 186 (1946). In the last +mentioned case Justice Murphy dissented on the ground that delegation of +the subpoena power to nonjudicial officers is unconstitutional as "a +corrosion of liberty." In the Endicott Johnson Case he expressed +dissatisfaction with the exercise of this power by administrative +agencies but confined his dissent to emphasizing greater judicial +scrutiny in enforcing administrative orders to appear and produce +testimony. + +[53] 1 Stat. 73, 81. + +[54] Ibid. 81-82. + +[55] 1 Cr. 137 (1803). _Cf._ Wiscart _v._ Dauchy, 3 Dall. 321 (1796). + +[56] McIntire _v._ Wood, 7 Cr. 504 (1813); and McClung _v._ Silliman, 6 +Wheat. 598 (1821). + +[57] 12 Pet. 524 (1838). + +[58] Ex parte Bollman, 4 Cr. 74, 93, 94 (1807). + +[59] Ex parte Yerger, 8 Wall. 85 (1869). + +[60] _See also_ Ex parte McCardle, 7 Wall. 506 (1869). + +[61] In United States _v._ Detroit Timber & Lumber Co., 200 U.S. 321, +339 (1906), Justice Brewer, speaking for the Court, approached a theory +of inherent equity jurisdiction when he declared: "The principles of +equity exist independently of and anterior to all Congressional +legislation, and the statutes are either annunciations of those +principles or limitations upon their application in particular cases." +It should be emphasized, however, that the Court made no suggestion that +it could apply pre-existing principles of equity without jurisdiction +over the subject matter. Indeed, the inference is to the contrary. In a +dissenting opinion in which Justices McKenna and Van Devanter joined, in +Paine Lumber Co. _v._ Neal, 244 U.S. 459, 475 (1917), Justice Pitney +contended that article III, section 2, "had the effect of adopting +equitable remedies in all cases arising under the Constitution and laws +of the United States where such remedies are appropriate." + +[62] Boyce's Executors _v._ Grundy, 3 Pet. 210 (1830). + +[63] 1 Stat. 333; 28 U.S.C.A. 1651. + +[64] 14 Stat. 475 (1867); 26 U.S.C.A. 3653 (a). + +[65] 36 Stat. 557 (1910); 28 U.S.C.A. 2281. + +[66] 50 Stat. 752 (1937); 28 U.S.C.A. 2282. + +[67] 38 Stat. 220 (1913); 28 U.S.C.A. 2325. + +[68] 48 Stat. 775 (1934); 28 U.S.C.A. 1342. + +[69] 38 Stat. 730 (1914) (Clayton Act); 29 U.S.C.A. 52, and 47 Stat. 70 +(1932) (Norris-LaGuardia Act); 29 U.S.C.A. 101-115. + +[70] 56 Stat. 31 (1942), Sec. 204; 50 U.S.C.A. 924 (App.). + +[71] Freeman _v._ Howe, 24 How. 450 (1861); Gaines _v._ Fuentes, 92 U.S. +10 (1876); Ex parte Young, 209 U.S. 123 (1908). + +[72] Langnes _v._ Green, 282 U.S. 531 (1931); Riehle _v._ Margolies, 270 +U.S. 218 (1929), and Essanay Film Mfg. Co. _v._ Kane, 258 U.S. 358 +(1922). _See also_ Hill _v._ Martin, 296 U.S. 393, 403 (1935); Kohn _v._ +Central Distributing Co., 306 U.S. 531, 534 (1939); and Oklahoma Packing +Co. _v._ Oklahoma Gas and Electric Co., 309 U.S. 4, 9 (1940). + +[73] 254 U.S. 443 (1921). + +[74] Lauf _v._ E.G. Shinner & Co., 303 U.S. 323 (1938); New Negro +Alliance _v._ Sanitary Grocery Co., 303 U.S. 552 (1938). + +[75] In addition to the cases cited in note 2, [Transcriber's Note: +Reference is to Footnote 74, above.] _see_ Milk Wagon Drivers' Union +_v._ Lake Valley Farm Products Co., 311 U.S. 91, 100-103 (1940). + +[76] 319 U.S. 182 (1943). + +[77] Ibid. 187, quoting Cary _v._ Curtis, 3 How. 236, 245 (1845). + +[78] 321 U.S. 414 (1944). + +[79] Washington-Southern Navigation Co. _v._ Baltimore Co., 263 U.S. 629 +(1924). + +[80] 10 Wheat. 1 (1825). + +[81] 106 U.S. 272, 280 (1882). + +[82] Washington-Southern Navigation Co. _v._ Baltimore Co., 263 U.S. +629, 635, 636 (1924). + +[83] McDonald _v._ Pless, 238 U.S. 264, 266 (1915); Griffin _v._ +Thompson, 2 How. 244, 257 (1844). + +[84] Gumbel _v._ Pitkin, 124 U.S. 131 (1888); Covell _v._ Heyman, 111 +U.S. 176 (1884), and Buck _v._ Colbath, 3 Wall. 334 (1866). + +[85] Eberly _v._ Moore, 24 How. 147 (1861); Arkadelphia Milling Co. _v._ +St. Louis S.W.R. Co., 249 U.S. 134 (1919). + +[86] Gagnon _v._ United States, 193 U.S. 451, 458 (1904). + +[87] 2 Wall. 123, 128-129 (1864). + +[88] 253 U.S. 300 (1920). + +[89] Ibid. 312. + +[90] Ex parte Secombe, 19 How. 9, 13 (1857). + +[91] 4 Wall. 333 (1867). + +[92] Ibid. 378-380. For an extensive treatment of disbarment and +American and English precedents thereon, _see_ Ex parte Wall, 107 U.S. +265 (1883). + +[93] Reorganization of the Judiciary, Hearings on S. 1392; 75th Cong., +1st sess., 1937, Pt. 3, p. 491. Justices Van Devanter and Brandeis +approved the letter. For earlier proposals to have the Court sit in +divisions, _see_ Felix Frankfurter and James M. Landis, The Business of +the Supreme Court, pp. 81-83, (New York, 1928). + +[94] 1 Stat. 73-74, Sec. 2-3. + +[95] Ibid. 73, 74-76; Sec. 4-5. + +[96] 2 Stat. 89. + +[97] 2 Stat. 132. For a general account of the events leading to the +acts of 1801 and 1802, _see_ Felix Frankfurter and James M. Landis, The +Business of the Supreme Court; a study in the federal judicial system +(New York, 1928), pp. 25-32. This book also contains an excellent +account of the organization and reorganization of the judiciary by +statute from time to time. For another account of the acts of 1801 and +1802 _see_ Charles Warren, The Supreme Court in United States History +(Boston, Rev. ed., 1932), 189-215. + +[98] 1 Cr. 299, 309 (1803). + +[99] 38 Stat. 208, 219-221. + +[100] Prior to the act of 1913 Congress had voted to abolish the +Commerce Court, but President Taft vetoed the bill which converted the +Commerce Court judges into ambulatory circuit judges. For a general +account of the abolition of the Commerce Court, _see_ Felix Frankfurter +and James M. Landis, The Business of the Supreme Court (New York, 1928), +pp. 166-173. + +[101] Evans _v._ Gore, 253 U.S. 245 (1920). + +[102] 268 U.S. 501 (1925). + +[103] 307 U.S. 277 (1939). + +[104] Ibid. 278-282. + +[105] Ibid. 282. + +[106] 289 U.S. 516, 526 (1933). + +[107] 289 U.S. 553 (1933). + +[108] 36 Stat. 539 (1910). For the legislative history of the Commerce +Court _see_ Felix Frankfurter and James M. Landis, The Business of the +Supreme Court (New York, 1928), pp. 155-164. + +[109] 56 Stat. 23, 31-33. + +[110] In Lockerty _v._ Phillips, 319 U.S. 182 (1943), the limitations on +the use of injunctions, except the prohibition against interlocutory +decrees, was unanimously sustained. + +[111] 321 U.S. 414 (1944). + +[112] Ibid. 444. + +[113] Ibid. 468. + +[114] Pet. 511 (1928). + +[115] Ibid. 546. + +[116] Ibid. 546. Closely analogous to the territorial courts are +extraterritorial and consular courts created in the exercise of the +foreign relations power. _See_ In re Ross, 140 U.S. 453 (1891). + +[117] 279 U.S. 438 (1929). + +[118] Ibid. 451. + +[119] Gordon _v._ United States, 117 U.S. 697 (1886); McElrath _v._ +United States, 102 U.S. 426 (1880); Williams _v._ United States, 289 +U.S. 553 (1933). + +[120] United States _v._ Coe, 155 U.S. 76 (1894). + +[121] Wallace _v._ Adams, 204 U.S. 415 (1907). + +[122] Old Colony Trust Co. _v._ Commissioner of Internal Revenue, 279 +U.S. 716 (1929); Ex parte Bakelite Corporation, 279 U.S. 438 (1929). + +[123] The general tendency in the evolution of legislative courts is to +provide for tenure during good behavior. This is true of the judges of +the Court of Claims, the Customs Court, the Court of Customs and Patent +Appeals. The terms of the judges of the Tax Court are limited to twelve +years and the judges are subject to removal by the President after +notice and hearing. For the provisions of the statutes governing these +matters _see_ 28 U.S.C. Sec. 241, 296, 301-301a; 26 U.S.C. Sec. 1102b, d, +f. The territorial judges in Alaska (48 U.S.C. Sec. 112) have four-year +terms subject to removal by the President; in Hawaii six years unless +removed by the President (48 U.S.C. Sec. 643), eight years in Puerto +Rico (28 U.S.C. Sec. 803); eight years in the Canal Zone subject to +removal by the President (48 U.S.C. Sec. 1353); and four years in the +Virgin Islands unless sooner removed by the President (48 U.S.C. Sec. +1405y). + +[124] 141 U.S. 174 (1891). + +[125] Ibid. 188 + +[126] 289 U.S. 553 (1933). + +[127] 268 U.S. 501 (1925). + +[128] 117 U.S. 697 (1886). + +[129] 13 How. 40, 48 (1852). _See also_ Keller _v._ Potomac Electric +Power Co., 261 U.S. 428 (1923); Federal Radio Commission _v._ General +Electric Co., 231 U.S. 464 (1930). + +[130] 5 Wall. 419 (1867). + +[131] Postum Cereal Co. _v._ California Fig Nut Co., 272 U.S. 693 +(1927); Federal Radio Commission _v._ General Electric Co., 281 U.S. 464 +(1930); Pope _v._ United States, 323 U.S. 1 (1944). + +[132] 112 U.S. 50 (1884). + +[133] Keller _v._ Potomac Electric Co., 261 U.S. 428 (1923). + +[134] Federal Radio Commission _v._ General Electric Co., 281 U.S. 464 +(1930). + +[135] 279 U.S. 438 (1929). All of these rulings with respect to the +vesting of revisory powers in the courts of the District carried the +qualification that revisory actions and interlocutory opinions, as +nonjudicial functions, were not reviewable on appeal to the Supreme +Court of the United States. Frasch _v._ Moore, 211 U.S. 1 (1908); E.C. +Atkins & Co. _v._ Moore, 212 U.S. 285 (1909); Keller _v._ Potomac +Electric Co., 261 U.S. 428 (1923); Federal Radio Commission _v._ General +Electric Co., 281 U.S. 464 (1930). + +[136] O'Donoghue _v._ United States, 289 U.S. 516 (1933). + +[137] Ibid. 545-546. + +[138] Ibid. 545. Chief Justice Hughes in a dissent joined by Justice Van +Devanter and Cardozo took the position that the plenary power of +Congress over the District is complete in itself and its power to create +courts in the District is not derived from article III. Consequently, +they argued that the limitations of article III do not apply to the +organization of such courts. The O'Donoghue Case is discussed in the +opinions of Justices Jackson and Rutledge and in the dissent of Chief +Justice Vinson in National Mutual Insurance Co. _v._ Tidewater Transfer +Co., 337 U.S. 582, 601-602, 608-611, 638-640 (1949). + +[139] 6 Wheat. 264 (1821). + +[140] Ibid. 378. + +[141] Miller, Constitution, 314, quoted in Muskrat _v._ United States, +219 U.S. 346, 356 (1911). + +[142] 9 Wheat. 738, 819 (1824). + +[143] 2 Dall. 419, 431, 432 (1793). + +[144] In re Pacific Railway Commission, 32 F. 241, 255 (1887). Justice +Field repeated the substance of this definition in Smith _v._ Adams, 130 +U.S. 167, 173-174 (1889). + +[145] 219 U.S. 346, 357 (1911). + +[146] Ibid. 361-362. Judicial power is here defined by Justice Day as +"the right to determine actual controversies arising between adverse +litigants, duly instituted in courts of proper jurisdiction." Ibid. 361. + +[147] Muskrat _v._ United States, 219 U.S. 346 (1911); Chicago & Grand +Trunk R. Co. _v._ Wellman, 143 U.S. 339 (1892); Lampasas _v._ Bell, 180 +U.S. 276 (1901); Braxton County Court _v._ West Virginia, 208 U.S. 192 +(1908); Smith _v._ Indiana, 191 U.S. 138 (1903); Tregea _v._ Modesto +Irrigation District, 164 U.S. 179 (1896). + +[148] 143 U.S. 339 (1892). + +[149] Ibid. 345. + +[150] Muskrat _v._ United States, 219 U.S. 346 (1911). + +[151] Lampasas _v._ Bell, 180 U.S. 276, 284 (1901). + +[152] Braxton County Court _v._ West Virginia, 208 U.S. 192 (1908). + +[153] Ibid. 198. + +[154] Smith _v._ Indiana, 191 U.S. 138, 149 (1903). + +[155] Tregea _v._ Modesto Irrigation District, 164 U.S. 179 (1896). + +[156] Coffman _v._ Breeze Corporations, Inc., 323 U.S. 316, 324-325 +(1945), citing Tyler _v._ The Judges, 179 U.S. 405 (1900); Hendrick _v._ +Maryland, 235 U.S. 610 (1915). + +[157] Fleming _v._ Rhodes, 331 U.S. 100, 104 (1947). _See also_ Blackmer +_v._ United States, 284 U.S. 421, 442 (1932); Virginian R. Co. _v._ +System Federation, 300 U.S. 515 (1937); Carmichael _v._ Southern Coal & +Coke Co., 301 U.S. 495, 513 (1937). + +[158] 157 U.S. 429 (1895). The first injunction suit by a stockholder to +restrain a corporation from paying the tax appears to be Dodge _v._ +Woolsey, 18 How. 331 (1856) which involved the validity of an Ohio tax. +The suit was entertained on the basis of English precedents. A case +similar to the Pollock Case is Brushaber _v._ Union Pacific R. Co., 240 +U.S. 1 (1916). Hawes _v._ Oakland, 104 U.S. 450 (1881) is cited in the +Pollock Case, although it in fact threw out a stockholder's suit. + +[159] _Cf._ Cheatham et al. _v._ United States, 92 U.S. 85 (1875); and +Snyder _v._ Marks, 109 U.S. 189 (1883). + +[160] Smith _v._ Kansas City Title Co., 255 U.S. 180, 201, 202 (1921). + +[161] Ashwander _v._ Tennessee Valley Authority, 297 U.S. 288 (1936). +Although the holdings of the plaintiffs amounted to only one-three +hundred and fortieth of the preferred stock, the Court ruled that the +right to maintain the suit was not affected by the smallness of the +holdings. + +[162] 298 U.S. 238 (1936). + +[163] Robert L. Stern, in The Commerce Clause and the National Economy, +59 Harv. L. Rev. 645, 667-668 (1948), gives the following account of the +litigation in the first bituminous coal case: On the same day that the +Bituminous Coal Act became law, the directors of the Carter Coal Company +met in New York. James Carter presented a letter saying the Coal Act was +unconstitutional and that the company should not join the Code. His +father agreed that the act was invalid, but thought the company should +not take the risk of paying the tax required of nonmembers in the event +the act should be sustained. The third director agreed with the elder +Carter, and the board passed a resolution rejecting James Carter's +proposals. This action was subsequently approved by a majority of the +voting stock held by James Carter's father and mother who outvoted him +and his wife. + +[164] Massachusetts _v._ Mellon, 262 U.S. 447, 487 (1923). _See also_ +Williams _v._ Riley, 280 U.S. 78 (1929). + +[165] Fairchild _v._ Hughes, 258 U.S. 126 (1922). + +[166] Ex parte Levitt, 302 U.S. 633 (1937). _See_, however, +Massachusetts State Grange _v._ Benton, 272 U.S. 525 (1926), where the +Supreme Court, though affirming the dismissal of a suit to enjoin a +day-light-saving statute, nonetheless, sustained the jurisdiction of the +district court to entertain the suit. + +[167] Alabama Power Co. _v._ Ickes, 302 U.S. 464, 480-481 (1938). + +[168] 333 U.S. 203 (1948). + +[169] 342 U.S. 429 (1952). _See_ p. 763 (Amendment I). + +[170] 6 Wall. 50, 64 (1868). _See also_ State of Mississippi _v._ +Johnson, 4 Wall. 475 (1867). + +[171] 6 Wall. at 76. + +[172] 262 U.S. 447 (1923). + +[173] 42 Stat. 224 (1921). + +[174] 262 U.S. 447, 484-485. _See also_ New Jersey _v._ Sargent, 269 +U.S. 328, 338-340 (1926), where the Court refused jurisdiction of a suit +to enjoin the federal water power act because of its effect on the +conservation of potable waters in New Jersey. A similar situation arose +in Arizona _v._ California, 283 U.S. 423, 450 (1931), where the Court +declined to take jurisdiction of an injunction suit to restrain the +Secretary of the Interior and the five States of the Colorado River +Compact from constructing Boulder Dam. + +[175] Georgia _v._ Pennsylvania R. Co., 324 U.S. 439 (1945). + +[176] Missouri _v._ Holland, 252 U.S. 416 (1920). + +[177] Georgia _v._ Tennessee Copper Co., 206 U.S. 230 (1907). + +[178] Alabama State Federation of Labor _v._ McAdory, 325 U.S. 450, 461 +(1945). + +[179] Giles _v._ Harris, 189 U.S. 475, 486 (1903). + +[180] 258 U.S. 158 (1922). + +[181] Ibid. 162. + +[182] 297 U.S. 288, 324 (1936). + +[183] 274 U.S. 488 (1927). + +[184] Ashwander _v._ Tennessee Valley Authority, 297 U.S. 288, 324 +(1936). + +[185] 283 U.S. 423 (1931). + +[186] 330 U.S. 75 (1947). + +[187] Ibid. 89-91. Justices Black and Douglas wrote separate dissents, +but each contended that the controversy was justiciable. Justice Douglas +could not agree that the men should violate the act and lose their jobs +in order to test their rights. + +[188] Ex parte Steele, 162 F. 694, 701 (1908). + +[189] Pennsylvania _v._ Wheeling & Belmont Bridge Co., 13 How. 518 +(1852); United States _v._ Chambers, 291 U.S. 217 (1934); Mills _v._ +Green, 159 U.S. 651 (1895); United States _v._ Evans, 213 U.S. 297 +(1909). + +[190] Mills _v._ Green, 159 U.S. 651 (1895). This case came to the +Supreme Court on appeal from a decree of the circuit court of appeals +dissolving an injunction restraining certain registration officials from +excluding the appellant from the voting list. However, the election in +which appellant desired to vote was held prior to the appeal, and the +case thereby became moot. _See also_ St. Pierre _v._ United States, 319 +U.S. 41 (1943). + +[191] Ibid. 653. + +[192] Keim _v._ United States, 177 U.S. 290, 293 (1900); Georgia _v._ +Stanton, 6 Wall. 50, 71 (1868). + +[193] 14 Pet. 497 (1840). + +[194] Ibid. 516. + +[195] Ibid., and Kendall _v._ United States ex rel. Stokes, 12 Pet. 524, +621 (1838); _see also_ Marbury _v._ Madison, 1 Cr. 137 (1803). + +[196] Mississippi _v._ Johnson, 4 Wall. 475 (1867). + +[197] Georgia _v._ Stanton, 6 Wall. 50 (1868). + +[198] Ibid. + +[199] 4 Wall. 475 (1867). + +[200] 12 Pet. 524 (1838). + +[201] 1 Cr. 137, 170 (1803). + +[202] 7 How. 1 (1849). + +[203] Ibid. 41. + +[204] Ibid. 42-45. + +[205] This classification follows in the main that of Melville Fuller +Weston, Political Questions, 38 Harv. L. Rev. 296 (1925). + +[206] Field _v._ Clark, 143 U.S. 649 (1892). + +[207] Coleman _v._ Miller, 307 U.S. 433 (1939). + +[208] Foster _v._ Neilson, 2 Pet. 253 (1829). _See_ p. 472, supra. + +[209] Commercial Trust Co. of New Jersey _v._ Miller, 262 U.S. 51 +(1923). + +[210] United States _v._ Anderson, 9 Wall. 56 (1870). + +[211] Luther _v._ Borden, 7 How. 1 (1849); Pacific States Telephone & +Telegraph Co. _v._ Oregon, 223 U.S. 118 (1912). + +[212] Luther _v._ Borden, 7 How. 1 (1849). + +[213] McPherson _v._ Blacker, 146 U.S. 1 (1892), where the Court refused +to pass upon the act of the Michigan legislature in 1892 providing for +the election of presidential electors by Congressional districts. + +[214] South _v._ Peters, 339 U.S. 276 (1950). + +[215] Colegrove _v._ Green, 328 U.S. 549 (1946). + +[216] Massachusetts _v._ Mellon, 262 U.S. 447 (1923); Georgia _v._ +Stanton, 6 Wall. U.S. 50 (1868); Cherokee Nation _v._ Georgia, 5 Pet. 1 +(1831). + +[217] 143 U.S. 649, 670-672 (1892). + +[218] Coleman _v._ Miller, 307 U.S. 433, 450 (1939). + +[219] Ibid. 452-453. + +[220] 328 U.S. 549 (1946). + +[221] 287 U.S. 1 (1932). This case involved an unsuccessful attempt to +enjoin an election of representatives in Congress in Mississippi because +the districts formed by the legislature for that purpose were not a +contiguous and compact territory and of equal population and that the +redistricting violated article I, Sec. 4 and the Fourteenth Amendment. +The Court held that the provisions of the Reapportionment Act of 1929 +did not reenact the requirements of the act of 1911 and that it was +therefore unnecessary to determine whether the questions raised were +justiciable. + +[222] 285 U.S. 355 (1932). Here the Court held that the act of the +Minnesota legislature redistricting the State required the governor's +signature, and that representatives should be chosen at large until a +redistricting was passed. + +[223] 328 U.S. 549, 565-566. + +[224] Ibid. 566 ff. + +[225] 335 U.S. 281 (1948). + +[226] 335 U.S. 160 (1948). + +[227] 339 U.S. 276 (1950). + +[228] Charles Warren, The Supreme Court in United States History, I, +(Boston, 1922), 110-111. For the full correspondence _see_ 3 +Correspondence and Public Papers of John Jay (1890-1893), (edited by +Henry Phelps Johnston), 486. According to E.F. Albertsworth, Advisory +Functions in Federal Supreme Court, 23 Georgetown L.J., 643, 644-647 +(May 1935), the Court rendered an advisory opinion to President Monroe +in response to a request for legal advice on the power of the Government +to appropriate federal funds for public improvements by responding that +Congress might do so under the war and postal powers. The inhibitions of +the Court against advisory opinions do not prevent the individual +Justices from giving advice or aiding the political departments in their +private capacities. Ever since Chief Justice Jay went on a mission to +England to negotiate a treaty the members of the Court have performed +various nonjudicial functions. John Marshall served simultaneously as +Secretary of State and Chief Justice, and later Justice Robert Jackson +served as war crimes prosecutor. + +[229] For example, Muskrat _v._ United States, 219 U.S. 346, 354 (1911); +Chicago & Southern Airlines _v._ Waterman Steamship Corp., 333 U.S. 103, +113 (1948); United Public Workers of America _v._ Mitchell, 330 U.S. 75, +89 (1947). + +[230] Chicago & Southern Airlines _v._ Waterman Steamship Corp., 333 +U.S. 103, 113-114 (1948), citing Hayburn's Case, 2 Dall. 409 (1792); +United States _v._ Ferreira, 13 How. 40 (1852); Gordon _v._ United +States, 117 U.S. 697 (1864); In re Sanborn, 148 U.S. 222 (1893); +Interstate Commerce Commission _v._ Brimson, 154 U.S. 447 (1894); La +Abra Silver Mining Co. _v._ United States, 175 U.S. 423 (1899); Muskrat +_v._ United States, 219 U.S. 346 (1911); United States _v._ Jefferson +Electric Co., 291 U.S. 386 (1934). + +[231] Muskrat _v._ United States, 219 U.S. 346 (1911). + +[232] United States _v._ Ferreira, 13 How. 40 (1852). + +[233] United Public Workers of America _v._ Mitchell, 330 U.S. 75, 89 +(1947). Here, Justice Reed, for the Court, after asserting that +constitutional courts do not render advisory opinions, declared that +"'concrete legal issues, presented in actual cases, not abstractions,' +are requisite" for the adjudication of constitutional issues, citing +Electric Bond and Share Co. _v._ Securities & Exchange Commission, 303 +U.S. 419, 443 (1938); United States _v._ Appalachian Electric Power Co., +311 U.S. 377, 423 (1940); Alabama State Federation of Labor _v._ +McAdory, 325 U.S. 450, 461 (1945); and Coffman _v._ Breeze Corporations, +323 U.S. 316, 324 (1945). + +[234] 13 How. 40 (1852). + +[235] 117 U.S. 697 (1864). + +[236] 273 U.S. 70 (1927). In Willing _v._ Chicago Auditorium +Association, 277 U.S. 274 (1928) certain lessees desired to ascertain +their rights under a lease to demolish a building after the lessors had +failed to admit such rights on the allegation that claims, fears, and +uncertainties respecting the rights of the parties greatly impaired the +value of the leasehold. Because there was no showing that the lessors +had hampered the full use of the premises or had committed or threatened +a hostile act, the Supreme Court sustained the decree of the lower Court +dismissing the bill on the ground that the plaintiff was seeking a mere +declaratory judgment. The Court admitted that the proceeding was not +moot, that there were adverse parties with substantial interests, and +that a final judgment could have been rendered, but held, nonetheless, +that the proceeding was not a case or controversy merely because +plaintiffs were thwarted by its own doubts, or by the fears of others. +Ibid. 289-290. + +[237] 219 U.S. 346 (1911). + +[238] 274 U.S. 123 (1927). + +[239] 288 U.S. 249, 264 (1933). + +[240] 300 U.S. 227, 240 (1937). + +[241] 28 U.S.C.A. Sec. 2201, 2202; 48 Stat. 955. + +[242] 300 U.S. 227, 240-241 (1937). The Court distinguished between a +justiciable controversy and a dispute of an abstract character, +emphasized that the controversy must be definite and concrete, touching +the legal relations of parties having adverse legal interests, and +reiterated the necessity of "a real and substantial controversy +admitting of specific relief through a decree of a conclusive character, +as distinguished from an opinion advising what the law would be upon a +hypothetical state of facts." + +[243] Ashwander _v._ Tennessee Valley Authority, 297 U.S. 288, 324-325 +(1936). + +[244] 303 U.S. 419, 443 (1938). + +[245] Alabama State Federation of Labor _v._ McAdory, 325 U.S. 450, 461 +(1945), citing Nashville, C. & St. L.R. Co. _v._ Wallace, 288 U.S. 249 +(1933); Aetna Life Insurance Co. _v._ Haworth, 300 U.S. 227 (1937); +Maryland Casualty Co. _v._ Pacific Co., 312 U.S. 270, 273 (1941); Great +Lakes Co. _v._ Huffman, 319 U.S. 293, 299, 300 (1943); and Coffman _v._ +Breeze Corporation, 323 U.S. 316 (1945). Here, as in other cases, the +Court refused to entertain hypothetical, or contingent questions, and +the decision of constitutional issues prematurely. For this same rule +_see also_, Altvater _v._ Freeman, 319 U.S. 359, 363 (1943). + +[246] 306 U.S. 1 (1939). + +[247] 307 U.S. 325 (1939). + +[248] 312 U.S. 270 (1941). + +[249] 300 U.S. 227 (1937). + +[250] Maryland Casualty Co. _v._ Pacific Coal & Oil Co., 312 U.S. 270, +273, (1941). + +[251] Brillhart _v._ Excess Insurance Co., 316 U.S. 491 (1942). This was +a diversity of citizenship case which presented only local questions. + +[252] Cohens _v._ Virginia, 6 Wheat. 264, 378 (1821). + +[253] Stat. 73, 85-86. + +[254] 1 Wheat. 304 (1816). + +[255] 6 Wheat. 264 (1821). + +[256] Ibid. 379. + +[257] Ibid. 422-423. In Martin _v._ Hunter's Lessee, 1 Wheat. 304 +(1816), Justice Story had traversed some of these same grounds. He, too, +began with the general assumptions that the Constitution was established +by the people of the United States and not by the States in their +sovereign capacities, that the Constitution is to be construed +liberally, and that the National Government is supreme in relation to +its objects; and had concluded that the Supreme Court had authority to +review State court decisions under the express provisions of articles +III and VI, and also from the necessity that final decision must rest +somewhere and from the importance and necessity of uniformity of +decisions interpreting the Constitution. Many years later in Ableman +_v._ Booth, 21 How. 506, 514-523 (1859), where the Wisconsin Supreme +Court, like the Virginia Courts earlier, had declared an act of Congress +invalid and disregarded a writ of error from the Supreme Court, Chief +Justice Taney on grounds both of dual sovereignty and national supremacy +was even more emphatic in his rebuke of State pretensions. His emphasis +on the indispensability of the federal judicial power to maintain +national supremacy, to protect the States from national encroachments, +and to make the Constitution and laws of the United States uniform all +combine to enhance the federal judicial power to a degree beyond that +envisaged even by Marshall and Story. As late as 1880 the questions +presented in the foregoing cases were before the Court in Williams _v._ +Bruffy, 102 U.S. 248 (1880), which again involved the refusal of a +Virginia court to enforce a mandate of the Supreme Court. By the act of +December 23, 1914, 38 Stat. 790, the 25th section of the Judiciary Act +of 1789 which was carried over with modifications into the Revised +Statutes, Sec. 690; 28 U.S.C. Sec. 344 was amended so as to provide for +review of State court decisions on certiorari whether the federal claim +is sustained or denied. These provisions are now contained in 28 U.S.C.A. +1257 (1948). + +The first case involving invalid State legislation arose under a treaty +of the United States. Ware _v._ Hylton, 3 Dall. 199 (1797). In Calder +_v._ Bull, 3 Dall. 386 (1798), the Court sustained a State statute as +not being an _ex post facto_ law. The first case in which a State +statute was held invalid as a violation of the Constitution was Fletcher +_v._ Peck, 6 Cr. 87 (1810), which came to the Supreme Court by appeal +from a United States circuit court and not by a writ of error under +section 25. Famous cases coming to the Court under section 25 were +Sturges _v._ Crowninshield, 4 Wheat. 122, McCulloch _v._ Maryland, 4 +Wheat. 316, and Dartmouth College _v._ Woodward, 4 Wheat. 518. All three +were decided in 1819 and the State legislation involved in each was held +void. + +[258] That the great majority of the most influential members of the +Convention of 1787 thought the Constitution secured to courts in the +United States the right to pass on the validity of acts of Congress +under it cannot be reasonably doubted. Confining ourselves simply to the +available evidence that is strictly contemporaneous with the framing and +ratifying of the Constitution, we find the following members of the +Convention that framed the Constitution definitely asserting that this +would be the case: Gerry and King of Massachusetts, Wilson and +Gouverneur Morris of Pennsylvania, Martin of Maryland, Randolph, +Madison, and Mason of Virginia, Dickinson of Delaware, Yates and +Hamilton of New York, Rutledge and Charles Pinckney of South Carolina, +Davie and Williamson of North Carolina, Sherman and Ellsworth of +Connecticut. _See_ Max Farrand, Records of the Federal Convention (Yale +Univ. Press, 1913); I, 97 (Gerry), 109 (King); II, 73 (Wilson), 76 +(Martin), 78 (Mason), 299 (Dickinson and Morris), 428 (Rutledge), 248 +(Pinckney), 376 (Williamson), 28 (Sherman), 93 (Madison); III, 220 +(Martin, in "Genuine Information"). The Federalist: Nos. 39 and 44 +(Madison), Nos. 78 and 81 (Hamilton). Elliot's Debates (ed. of 1836), +II, 1898-1899 (Ellsworth), 417 and 454 (Wilson), 336-337 (Hamilton); +III, 197, 208, 431 (Randolph), 441 (Mason), 484-485 (Madison); IV, 165 +(Davie). P.L. Ford, Pamphlets on the Constitution, 184 (Dickinson, in +"Letters of Fabius"). Ford, Essays on the Constitution, 295 (Robert +Yates, writing as "Brutus"). True these are only seventeen names out of +a possible fifty-five, but they designate fully three-fourths of the +leaders of the Convention, four of the five members of the Committee of +Detail which drafted the Constitution (Gorham, Rutledge, Randolph, +Ellsworth, and Wilson) and four of the five members of the Committee of +Style which gave the Constitution final form (Johnson, Hamilton, +Gouverneur Morris, Madison, and King). Against them are to be pitted, in +reference to the question under discussion, only Mercer of Maryland, +Bedford of Delaware, and Spaight of North Carolina, the record in each +of whose cases is of doubtful implication. + +It should be noted, however, that there was later some backsliding. +Madison's record is characteristically erratic. His statement in The +Federalist No. 39 written probably early in 1788, is very positive: The +tribunal which is to ultimately decide, in controversies relating to the +boundary between the two jurisdictions, is to be established under the +general government. Yet a few months later (probably October, 1788) he +seemed to repudiate judicial review altogether, writing: "In the State +Constitutions and indeed in the Federal one also, no provision is made +for the case of a disagreement in expounding them; and as the Courts are +generally the last in making the decision, it results to them by +refusing or not refusing to execute a law, to stamp it with its final +character. This makes the Judiciary Department paramount in fact to the +Legislature, which was never intended and can never be proper." 5 +Writings (Hunt ed.), 294. Yet in June, 1789, we find him arguing as +follows in support of the proposals to amend the Constitution which led +to the Bill of Rights: "If they are incorporated into the Constitution, +independent tribunals of justice will consider themselves in a peculiar +manner the guardians of those rights; they will be an impenetrable +bulwark against every assumption of power in the Legislature or +Executive; they will be naturally led to resist every encroachment upon +rights expressly stipulated for in the Constitution by the declaration +of rights." Ibid. 385. Nine years later as author of the Virginia +Resolutions of 1798, he committed himself to the proposition that the +final power in construing the Constitution rested with the respective +State legislatures, a position from the logical consequences of which he +spent no little effort to disengage himself in the years of his +retirement. Another recidivist was Charles Pinckney, who in 1799 +denounced the idea of judicial review as follows: "On no subject am I +more convinced, than that it is an unsafe and dangerous doctrine in a +republic, ever to suppose that a judge ought to possess the right of +questioning or deciding upon the constitutionality of treaties, laws, or +any act of the legislature. It is placing the opinion of an individual, +or of two or three, above that of both branches of Congress, a doctrine +which is not warranted by the Constitution, and will not, I hope, long +have many advocates in this country." Wharton, State Trials, 412. The +great debate in Congress in the first session of the 7th Congress over +the repeal of the Judiciary Act of 1801 speedily developed into a debate +over whether judicial review of acts of Congress was contemplated by the +Constitution. In the Senate Breckenridge of Kentucky, author of the +Kentucky Resolutions of 1799, contended for the equal right of the three +departments to construe the Constitution for themselves within their +respective spheres, and from it deduced the exclusive right of the +legislature to interpret the Constitution in what regards the lawmaking +power and the obligation of the judges to execute what laws they make. +But the feeble disguise which this doctrine affords legislative +sovereignty made it little attractive even to Republicans, who for the +most part either plainly indicated their adherence to the juristic view +of the Constitution, or following a hint by Giles of Virginia, kept +silent on the subject. The Federalists on the other hand were unanimous +on the main question, though of divergent opinions as to the grounds on +which judicial review was to be legally based, some grounding it on the +"arising" and "pursuant" clauses, some on the precedents of the Pension +and Carriage cases, some on the nature of the Constitution and of the +judicial office, some on the contemporary use of terms and the +undisputed practice under the Constitution of all constitutional +authorities. Moreover, said The Federalist orators, judicial review was +expedient, since the judiciary had control of neither the purse nor the +sword; it was the substitute offered by political wisdom for the +destructive right of revolution; to have established this principle of +constitutional security, a novelty in the history of nations, was the +peculiar glory of the American people; the contrary doctrine was +monstrous and unheard of. The year following Marshall concluded the +debate, and rendered decision, in Marbury _v._ Madison. _See_ Edward S. +Corwin, The Doctrine of Judicial Review (Princeton University Press. +1914), 49-59; and Court Over Constitution (1938), Chap. 1. "The glory +and ornament of our system which distinguishes it from every other +government on the face of the earth is that there is a great and mighty +power hovering over the Constitution of the land to which has been +delegated the awful responsibility of restraining all the coordinate +departments of government within the walls of the governmental fabric +which our fathers built for our protection and immunity."--Chief Justice +Edward Douglass White when Senator from Louisiana. Cong. Record, 52d +Cong., 2d sess., p. 6516 (1894). "I do not think the United States would +come to an end if we lost our power to declare an Act of Congress void. +I do think the Union would be imperiled if we could not make that +declaration as to the laws of the several States." Oliver Wendell +Holmes, Collected Legal Papers (New York, 1920), 295-296. + +[259] The Federalist No. 78. + +[260] 3 Dall. 386, 399 (1798). + +[261] 2 Dall. 409 (1792). + +[262] 1 Stat. 243 (1792). + +[263] 3 Dall. 171 (1796). + +[264] 1 Cr. 137 (1803). + +[265] 1 Stat. 73, 81. + +[266] Cr. 137, 175-180. + +[267] Ibid. 180. The opinion in Marbury _v._ Madison is subject to two +valid criticisms. In the first place the construction of the 13th +Section of the Judiciary Act, if not erroneous, was unnecessary since +the section could have been interpreted, as it afterward was, merely to +give the Court the power to issue mandamus and other writs when it had +jurisdiction but not for the purpose of acquiring jurisdiction. The +exclusive interpretation of the Court's original jurisdiction, sometimes +made a subject of criticism, had been adopted by the Court in Wiscart +_v._ Dauchy, 3 Dall. 321 (1796), and while couched in terms which had +later to be qualified in Cohens _v._ Virginia, 6 Wheat. 264, 398-402 +(1821), by Marshall himself, has remained the doctrine of the Court. +Secondly, there was good ground for Jefferson's criticism, which did not +touch the constitutional features of the decision, but did inveigh +against the temerity of the Court in passing on the merits of a case of +which, by its own admission, it had no jurisdiction. + +[268] In this connection Justice Patterson's jury charge in Van Horne's +Lessee _v._ Dorrance, 2 Dall. 304, 308 (1795), is of significance for +its discussion of the relation of the Constitution, the legislature and +the courts. A constitution, he said, "is the form of government, +delineated by the mighty hand of the people, in which certain first +principles of fundamental laws are established. The Constitution is +certain and fixed; it contains the permanent will of the people, and is +the supreme law of the land; it is paramount to the power of the +Legislature, and can be revoked or altered only by the authority that +made it." Legislatures are the creatures of the Constitution to which +they owe their existence and powers, and in case of conflict between a +legislative act and the Constitution it is the duty of the courts to +hold it void. In accordance with these doctrines fortified by natural +law concepts, the circuit court invalidated a Pennsylvania statute as +being in conflict with the federal and State Constitutions as a +violation of the inalienable rights of property. In 1799 the federal +circuit court in North Carolina, over which Chief Justice Marshall +presided, invalidated an act of North Carolina as a violation of the +contract clause and the separation of powers in Ogden _v._ Witherspoon, +18 Fed. Cas. No. 10,461 (1802). The reliance on general principles and +natural rights continued in Fletcher _v._ Peck, 6 Cr. 87, 139 (1810) +where the Supreme Court invalidated an act of the Georgia legislature +revoking an earlier land grant as a violation either of the "general +principles which are common to our free institutions," or of the +contract clause. + +[269] This phase of judicial review is described by Justice Sutherland +as follows: "From the authority to ascertain and determine the law in a +given case, there necessarily results, in case of conflict, the duty to +declare and enforce the rule of the supreme law and reject that of an +inferior act of legislation which, transcending the Constitution, is of +no effect and binding on no one. This is not the exercise of a +substantive power to review and nullify acts of Congress, for no such +substantive power exists. It is simply a necessary concomitant of the +power to hear and dispose of a case or controversy properly before the +court, to the determination of which must be brought the test and +measure of the law." Adkins _v._ Children's Hospital, 261 U.S. 525, 544 +(1923). In United States _v._ Butler, 297 U.S. 1, 62 (1936), Justice +Roberts for the Court reduced judicial review to very simple terms when +he declared that when an act is challenged as being unconstitutional, +"the judicial branch of the Government has only one duty,--to lay the +article of the Constitution which is invoked beside the statute which is +challenged and to decide whether the latter squares with the former." + +[270] Note, for example, the following statement of Chief Justice +Marshall: "Judicial power, as contradistinguished from the power of the +laws, has no existence. Courts are the mere instruments of the law, and +can will nothing." Osborn _v._ Bank of United States, 9 Wheat. 738, 866 +(1824). Note also the assertion of Justice Roberts: "All the court does, +can do, is to announce its considered judgment upon the question. The +only power it has, if such it may be called, is the power of judgment. +This court neither approves nor condemns any legislative policy. Its +delicate and difficult office is to ascertain and declare whether the +legislation is in accordance with, or in contravention of, the +Constitution; and, having done that, its duty ends." United States _v._ +Butler, 297 U.S. 1, 62-63 (1936). + +[271] Chicago & Grand Trunk R. Co. _v._ Wellman, 143 U.S. 339, 345 +(1892). + +[272] Ibid. _See also_ Muskrat _v._ United States, 219 U.S. 346 (1911); +Massachusetts _v._ Mellon, 262 U.S. 447 (1923); Alabama State Federation +of Labor _v._ McAdory, 325 U.S. 450 (1945); United Public Workers of +America _v._ Mitchell, 330 U.S. 75 (1947); Fleming _v._ Rhodes, 331 U.S. +100, 104 (1947) + +[273] Rescue Army _v._ Municipal Court of Los Angeles, 331 U.S. 549, +568-575 (1947). _See also_ Alma Motor Co. _v._ Timken-Detroit Axle Co., +329 U.S. 129 (1946); Spector Motor Service _v._ McLaughlin, 323 U.S. +101, 105 (1944); Coffman _v._ Breeze Corporations, 323 U.S. 316, 324-325 +(1945); Carter _v._ Carter Coal Co., 298 U.S. 238, 325 (1936); Siler +_v._ L. & N.R. Co., 213 U.S. 175, 191 (1909); Berea College _v._ +Kentucky, 211 U.S. 45, 53 (1908); and the cases cited in the notes to +the preceding paragraph. [Transcriber's Note: Reference is to Footnote +272, above.] + +[274] 331 U.S. 549, 571 (1947). + +[275] _See_ pp. 546-548. For the distinction between inherent and +precautionary limitations to the exercise of judicial review and the +operation of judicial review within them, _see_ Edward S. Corwin, +Judicial Review in Action, 74 Univ. of Pennsylvania L. Rev. 639 (1926). +For the limitations generally _see also_ the concurring opinion of +Justice Brandeis in Ashwander _v._ Tennessee Valley Authority, 297 U.S. +288, 346-356 (1936), and the cases cited therein. + +[276] One of the earliest formulations of this rule is that by Justice +Iredell in Calder _v._ Bull, 3 Dall. 386, 399 (1798), and by Justice +Chase in the same case, p. 394. On the other hand Justice Chase in this +same case asserted that there were certain powers which "it cannot be +presumed" have been entrusted to the legislature. _See also_ +Sinking-Fund Cases, 99 U.S. 700 (1879). + +[277] Ogden _v._ Saunders, 12 Wheat. 213 (1827); Providence Bank _v._ +Billings, 4 Pet. 514, 549 (1830) (argument of counsel); Legal Tender +Cases, 12 Wall. 457 (1871); Madden _v._ Kentucky, 309 U.S. 83 (1940); +Alabama State Federation of Labor _v._ McAdory, 325 U.S. 450 (1945). +_See also_ Justice Moody's dissenting opinion in Howard _v._ Illinois +C.R. Co. (The Employers' Liability Cases), 207 U.S. 463, 509-511 (1908). + +[278] Adkins _v._ Children's Hospital, 261 U.S. 525 (1923). "But freedom +of contract is, nevertheless, the general rule and restraint the +exception; and the exercise of legislative authority to abridge it can +be justified only by the existence of exceptional circumstances." Ibid. +546. + +[279] Kovacs _v._ Cooper, 336 U.S. 77, 88 (1949) opinion of Justice +Reed. _See_ Justice Frankfurter's concurring opinion for a criticism of +this rule. For other cases imputing to freedom of religion and the press +a preferred position so as to reverse the presumption of validity _see_ +Herndon _v._ Lowry, 301 U.S. 242, 258 (1937); United States _v._ +Carolene Products Co., 304 U.S. 144, 152, n. 4 (1938); Thornhill _v._ +Alabama, 310 U.S. 88, 95 (1940); Schneider _v._ State, 308 U.S. 147, 161 +(1939); Bridges _v._ California, 314 U.S. 252, 262-263 (1941); Murdock +_v._ Pennsylvania, 319 U.S. 105, 115 (1943); Prince _v._ Massachusetts, +321 U.S. 158, 164 (1944); Follett _v._ McCormick, 321 U.S. 573, 575 +(1944); Marsh _v._ Alabama, 326 U.S. 501 (1946); Board of Education _v._ +Barnette, 319 U.S. 624, 639 (1943); Thomas _v._ Collins, 323 U.S. 516, +530 (1945); Saia _v._ New York, 334 U.S. 558, 562 (1948). Justice +Frankfurter has criticized the concept of "the preferred position" of +these rights as a phrase that has "uncritically crept into some recent +opinions" of the Court, Kovacs _v._ Cooper, 336 U.S. 77, 90 (1949); and +Justice Jackson in a dissent has also opposed the idea that some +constitutional rights have a preferred position. Brinegar _v._ United +States, 338 U.S. 160, 180 (1949). "We cannot," he said, "give some +constitutional rights a preferred position without relegating others to +a deferred position; * * *" + +[280] Watson _v._ Buck, 313 U.S. 387 (1941); Justice Iredell's opinion +in Calder _v._ Bull, 3 Dall. 386 (1798); Jacobson _v._ Massachusetts, +197 U.S. 11 (1905). _See also_ Cohen _v._ Beneficial Industrial Loan +Corp., 337 U.S. 541 (1949); Daniel _v._ Family Security Life Ins. Co., +336 U.S. 220 (1949); Railway Express Agency _v._ New York, 336 U.S. 106 +(1949); Wickard _v._ Filburn, 317 U.S. 111 (1942); United States _v._ +Petrillo, 332 U.S. 1 (1947); American Power & Light Co. _v._ Securities +& Exchange Commission, 329 U.S. 90 (1946); Sunshine Anthracite Coal Co. +_v._ Adkins, 310 U.S. 381 (1940). _See also_ Railroad Retirement Board +_v._ Alton R. Co., 295 U.S. 330 (1935); Home Bldg. & Loan Assoc. _v._ +Blaisdell, 290 U.S. 398 (1934); Arizona _v._ California, 283 U.S. 423 +(1931); McCray _v._ United States, 195 U.S. 27 (1904); Hamilton _v._ +Kentucky Distilleries & W. Co., 251 U.S. 146 (1919). Compare, however, +Bailey _v._ Drexel Furniture Co. (Child Labor Tax Case), 259 U.S. 20 +(1922), where the Court considered the motives of the legislation. + +[281] 198 U.S. 45 (1905). + +[282] 297 U.S. 1 (1936). The majority opinion evoked a protest from +Justice Stone who said in dissenting: "The power of courts to declare +... [an act of Congress unconstitutional] is subject to two guiding +principles of decision which ought never to be absent from judicial +consciousness. One is that courts are concerned only with the power to +enact statutes, not with their wisdom. The other is that while +unconstitutional exercise of power by the executive and legislative +branches of the government is subject to judicial restraint, the only +check upon our own exercise of power is our own sense of self-restraint. +For the removal of unwise laws from the statute books appeal lies not to +the courts but to the ballot and to the processes of democratic +government." Ibid. 78-79. + +[283] United States _v._ Congress of Industrial Organizations, 335 U.S. +106 (1948); Miller _v._ United States, 11 Wall. 268 (1871). + +[284] _See_, for example, Michaelson _v._ United States, 266 U.S. 42 +(1924), where the Court narrowly construed those sections of the Clayton +Act regulating the power of courts to punish contempt in order to avoid +constitutional difficulties. _See also_ United States _v._ Delaware & +H.R. Co., 213 U.S. 366 (1909), where the Hepburn Act was narrowly +construed. Judicial disallowance in the guise of statutory +interpretation was foreseen by Hamilton, _see_ Federalist No. 81. + +[285] Pollock _v._ Farmers' L. & T. Co., 158 U.S. 429, 601, 635 (1895). + +[286] In the first Guffey-Snyder (Bituminous Coal) Act of 1935 (49 Stat. +991), there was a section providing for separability of provisions, but +the Court none the less held the price-fixing provisions inseparable +from the labor provisions which it found void and thereby invalidated +the whole statute. Carter _v._ Carter Coal Co., 298 U.S. 238, 312-316 +(1936). On this point _see also_ the dissent of Chief Justice Hughes. +Ibid. 321-324. + +[287] 157 U.S. 429, 574-579 (1895). + +[288] Justice Brandeis dissenting in Burnet _v._ Coronado Oil & Gas Co., +285 U.S. 393, 405-411 (1932) states the rules governing the binding +force of precedents and collects the decisions overruling earlier +decisions to 1932. In Helvering _v._ Griffiths, 318 U.S. 371, 401 +(1948), Justice Jackson lists other cases overruled between 1932 and +1943. _Cf._ Smith _v._ Allwright, 321 U.S. 649 (1944) for similar list. + +[289] 321 U.S. 649, 665 (1944). + +[290] 295 U.S. 45 (1935). + +[291] 321 U.S. 649, 669. Justice Roberts in a dissent, in which Justice +Frankfurter joined, also protested against overruling "earlier +considered opinions" in Mahnich _v._ Southern S.S. Co., 321 U.S. 96, +112-113 (1944). More recently in United States _v._ Rabinowitz, 339 U.S. +56 (1950), Justice Frankfurter has protested in a dissent against +reversals of earlier decisions immediately following changes of the +court's membership. "Especially ought the Court not reenforce needlessly +the instabilities of our day by giving fair ground for the belief that +Law is the expression of chance--for instance, of unexpected changes in +the Court's composition and the contingencies in the choice of +successors." Ibid. 80. + +[292] _See_ Corwin, Judicial Review in Action, 74 University of +Pennsylvania Law Review 639 (1926). + +[293] Levering & Garrigues Co. _v._ Morrin, 289 U.S. 103, 105 (1933), +citing Mosher _v._ Phoenix, 287 U.S. 29, 30 (1932). + +[294] Levering & Garrigues Co. _v._ Morrin, 289 U.S. 103, 105 (1933). +_See also_ Binderup _v._ Pathe Exchange, 263 U.S. 291, 305-308 (1923); +South Covington & C. St. Ry. Co. _v._ Newport, 259 U.S. 97, 99 (1922); +Hull _v._ Burr, 234 U.S. 712, 720 (1914); The Fair _v._ Kohler Die Co., +228 U.S. 22, 25 (1913); Montana Catholic Missions _v._ Missoula County, +200 U.S. 118, 130 (1906); Western Union Tel. Co. _v._ Ann Arbor R. Co., +178 U.S. 239 (1900). + +[295] Newburyport Water Co. _v._ Newburyport, 193 U.S. 561, 576 (1904). +For these issues, _see also_ Bell _v._ Hood, 327 U.S. 678 (1946). + +[296] Levering & Garrigues Co. _v._ Morrin, 289 U.S. 103, 105-106 +(1933). + +[297] 299 U.S. 109, 112-113 (1936). + +[298] Whether the doctrine that the plaintiff must allege the +constitutional question to make the case one arising under the +Constitution rests on constitutional or statutory grounds is uncertain. +_See_ Tennessee _v._ Union and Planters' Bank, 152 U.S. 454 (1894); +Oregon Short Line and Utah N. Ry. Co. _v._ Skottowe, 162 U.S. 490, 492 +(1896); Galveston, H. & S.A. Ry. Co. _v._ Texas, 170 U.S. 226, 236 +(1898); Sawyer _v._ Kochersperger, 170 U.S. 303 (1898); Board of +Councilmen of Frankfort _v._ State National Bank, 184 U.S. 696 (1902); +Boston and Montana Consolidated Copper & Silver Mining Co. _v._ Montana +Ore Purchasing Co., 188 U.S. 632, 639 (1903). Some of these cases apply +to the removal of cases from State courts where the plaintiff does not +aver a federal question. On this point note the following statement of +Chief Justice Fuller in Arkansas _v._ Kansas & T.C. Co. & S.F.R., 183 +U.S. 185, 188 (1901): "Hence it has been settled that a case cannot be +removed from a State court into the Circuit Court of the United States +on the sole ground that it is one arising under the Constitution, laws +or treaties of the United States, unless that appears by plaintiff's +statement of his own claim; and if it does not so appear, the want of it +cannot be supplied by any statement of the petition for removal or in +the subsequent pleadings. And moreover that jurisdiction is not +conferred by allegations that defendant intends to assert a defence +based on the Constitution or a law or treaty of the United States, or +under statutes of the United States, or of a State, in conflict with the +Constitution." + +[299] 5 Cr. 61 (1809). + +[300] 9 Wheat. 738 (1824). + +[301] 115 U.S. 1 (1885). + +[302] 22 Stat. 162, Sec. 4 (1882). + +[303] 38 Stat. 803, Sec. 5 (1915). + +[304] 43 Stat. 936, 941 (1925); 28 U.S.C.A. Sec. 1349. + +[305] 3 Stat. 195, 198 (1815). + +[306] 4 Stat. 632, 633, Sec. 3 (1833). + +[307] 12 Stat. 755, 756, Sec. 5 (1863). + +[308] 28 U.S.C.A. Sec. 1442 (a) (1). + +[309] 100 U.S. 257 (1880). + +[310] 1 Wheat. 304 (1816). + +[311] 6 Wheat. 264 (1821). + +[312] 100 U.S. 257, 264. _See also_ The Mayor of Nashville _v._ Cooper, +6 Wall. 247 (1868). + +[313] Lovell _v._ City of Griffin, 303 U.S. 444 (1938). + +[314] Stoll _v._ Gottlieb, 305 U.S. 165 (1938). + +[315] Indiana ex rel. Anderson _v._ Brand, 303 U.S. 95 (1938). + +[316] Southwestern Bell Telephone Co. _v._ Oklahoma, 303 U.S. 206 +(1938). + +[317] Adam _v._ Saenger, 303 U.S. 59, 164 (1938). + +[318] United Gas Public Service Co. _v._ Texas, 303 U.S. 123, 143 +(1938). + +[319] 279 U.S. 159 (1929). + +[320] Lane _v._ Wilson, 307 U.S. 268, 274 (1939). It is fairly obvious, +of course, that whether State courts have exceeded their powers under +the State Constitution is not a federal question. This rule was applied +in Schuylkill Trust Co. _v._ Pennsylvania, 302 U.S. 506, 512 (1938), +where it was contended that instead of construing a State statute, the +courts had actually amended it by a species of judicial legislation +prohibited by the State constitution. + +[321] United States _v._ Ravara, 2 Dall. 297 (1793). + +[322] Boers _v._ Preston, 111 U.S. 252 (1884). + +[323] Ames _v._ Kansas ex rel. Johnston, 111 U.S. 449, 469 (1884). + +[324] 280 U.S. 379, 383-384 (1930). + +[325] 11 Wheat. 467 (1826). + +[326] 135 U.S. 403, 432 (1890). + +[327] Ex parte Gruber, 269 U.S. 302 (1925). + +[328] 1 Stat. 73 (1789). + +[329] _See_ W.W. Willoughby, The Constitutional Law of the United +States, III, 1339, 1347 (New York, 1929). + +[330] Willoughby, _op. cit._, III, 1339. + +[331] 1 Stat. 73, Sec. 9 (1789). + +[332] Justice Washington in Davis _v._ Brig Seneca, 21 Fed. Cas. No. +12,670 (1829). + +[333] The "Vengeance," 3 Dall. 297 (1796); The "Schooner Sally," 2 Cr. +406 (1805); The "Schooner Betsey," 4 Cr. 443 (1808); The "Samuel," 1 +Wheat. 9 (1816); The "Octavia," 1 Wheat. 20 (1816). + +[334] New Jersey Steam Nav. Co. _v._ Merchants' Bank, 6 How. 344, 386 +(1848). + +[335] Waring _v._ Clarke, 5 How. 441 (1847); Ex parte Easton, 95 U.S. 68 +(1877); North Pacific S.S. Co. _v._ Hall Brothers M.R. & S. Co., 249 +U.S. 119 (1919); Grant Smith-Porter Ship Co. _v._ Rohde, 257 U.S. 469 +(1922). + +[336] Sheppard _v._ Taylor, 5 Pet. 675, 710 (1831). + +[337] New England M. Ins. Co. _v._ Dunham, 11 Wall. 1, 31 (1871). + +[338] Knapp, Stout & Co. _v._ McCaffrey, 177 U.S. 638 (1900). + +[339] Atlee _v._ Northwestern Union P. Co., 21 Wall. 389 (1875); Ex +parte McNiel, 13 Wall. 236 (1872). + +[340] O'Brien _v._ Miller, 168 U.S. 287 (1897); The "Grapeshot" _v._ +Wallerstein, 9 Wall. 129 (1870). + +[341] New Bedford Dry Dock Co. _v._ Purdy, 258 U.S. 95 (1922); North +Pac. S.S. Co. _v._ Hall Bros. M.R. & S. Co., 249 U.S. 119 (1919); The +General Smith, 4 Wheat. 438 (1819). + +[342] New Jersey Steam Nav. Co. _v._ Merchants' Bank, 6 How. 344 (1848). + +[343] Ex parte Easton, 95 U.S. 68 (1877). + +[344] Andrews _v._ Wall, 3 How. 568 (1845). + +[345] Janney _v._ Columbia Ins. Co., 10 Wheat. 411, 412, 415, 418 +(1825), cited by Justice Story in The "Tilton," 23 Fed. Cas. No. 14,054 +(1830). + +[346] 95 U.S. 68, 72 (1877). + +[347] The "Belfast" _v._ Boon, 7 Wall. 624 (1869). + +[348] Ex parte Garnett, 141 U.S. 1 (1891). + +[349] The "City of Panama," 101 U.S. 453 (1880); _see also_ Kenward _v._ +"Admiral Peoples," 295 U.S. 649 (1935); The "Harrisburg," 119 U.S. 199 +(1886). Although a suit for damages for wrongful death will not lie in +the courts of the United States under the general maritime law, +admiralty courts will enforce a State law creating liability for +wrongful death. Just _v._ Chambers, 312 U.S. 383 (1941). + +[350] The "Raithmoor," 241 U.S. 166 (1916); Erie R. Co. _v._ Erie & +Western T. Co., 204 U.S. 220 (1907). _See also_ Canadian Aviator _v._ +United States, 324 U.S. 215 (1945). + +[351] L'Invincible, 1 Wheat. 238 (1816). _See also_ In re Fassett, 142 +U.S. 479 (1892). + +[352] Sherlock _v._ Alling, 93 U.S. 99, 104 (1876). _See also_ Old +Dominion S.S. Co. _v._ Gilmore (The "Hamilton"), 207 U.S. 398 (1907). + +[353] Jennings _v._ Carson, 4 Cr. 2 (1807); Taylor _v._ Carryl, 20 How. +583 (1857). + +[354] Thirty Hogsheads of Sugar _v._ Boyle, 9 Cr. 191 (1815); The Siren, +13 Wall. 389, 393 (1871). + +[355] Hudson _v._ Guestier, 4 Cr. 293 (1808). + +[356] La Vengeance, 3 Dall. 297 (1796); Church _v._ Hubbart, 2 Cr. 187 +(1804); The Schooner Sally, 2 Cr. 406 (1805). + +[357] The Brig. Ann, 9 Cr. 289 (1815); The Sarah, 8 Wheat. 391 (1823); +Maul _v._ United States, 274 U.S. 501 (1927). + +[358] Section 9 of the original Judiciary Act, since carried over in 28 +U.S.C.A. Sec. 1333, saves to suitors such a common law remedy. + +[359] For example, the Court stated in The "Moses Taylor" _v._ Hammons, +4 Wall. 411, 431 (1867), that a proceeding _in rem_ as used in the +admiralty courts, is not a remedy afforded by the common law and that a +proceeding _in rem_ is essentially a proceeding possible only in +admiralty. + +[360] 318 U.S. 133 (1943). In the course of his opinion for the Court +which contains a lengthy historical account of Admiralty jurisdiction in +this country, Chief Justice Stone cited Smith _v._ Maryland, 18 How. 71 +(1855), where the Court without discussion sustained the seizure and +forfeiture of a vessel in a judgment _in rem_ of a State court for +violation of a Maryland fishing law within the navigable waters of the +State. + +[361] Judiciary Act of 1789, 1 Stat. 73, Sec. 9; La Vengeance, 3 Dall. 297 +(1796); United States _v._ The Schooner Sally, 2 Cr. 406 (1805); United +States _v._ Schooner Betsey and Charlotte, 4 Cr. 443 (1808); Whelan _v._ +United States, 7 Cr. 112 (1812); The Samuel, 1 Wheat. 9 (1816). + +[362] Hendry _v._ Moore, 318 U.S. 133, 141 (1943). + +[363] Charles Warren, The Supreme Court in United States History, II, +93-95 (Boston, 1922). + +[364] 10 Wheat. 428 (1825). + +[365] 5 How. 441 (1847). _See also_ New Jersey Steam Nav. Co. _v._ +Merchants' Bank, 6 How. 344 (1848). Aside from rejecting English rules, +Waring _v._ Clarke did not affect the rule concerning the ebb and flow +of the tide, inasmuch as the collision occurred within the ebb and flow +of the tide, though within the body of a county. Citing Peyroux _v._ +Howard, 7 Pet. 324 (1833); The "Orleans" _v._ Phoebus, 11 Pet. 175 +(1837); The "Thomas Jefferson," 10 Wheat. 328 (1825); United States _v._ +Coombs, 12 Pet. 72 (1838). + +[366] 12 How. 443 (1852). + +[367] Soon afterwards in Jackson _v._ Steamboat Magnolia, 20 How. 296 +(1858), the Court rejected what was left of narrow doctrines of the +extent of admiralty jurisdiction by holding that a collision on the +Alabama river above tidal flow and wholly within the State of Alabama +came within the grant of admiralty jurisdiction in the Judiciary Act of +1789 which extended it "to rivers navigable from the sea * * * as well +as upon the high seas." + +[368] _See_ Warren, II, 512-513. + +[369] 109 U.S. 629 (1884); _see also_ Perry _v._ Haines, 191 U.S. 17 +(1903) where the admiralty jurisdiction was extended to inland canals. + +[370] 10 Wall. 557 (1871). + +[371] Ibid. 563. _See also_ The Montello, 20 Wall. 430 (1874), where +this doctrine was applied to the Fox River in Wisconsin after it had +been improved to become navigable. + +[372] 141 U.S. 1, 12-15 (1891). This case contains a good review of +admiralty cases to the time of its decision. + +[373] 311 U.S. 377, 407-410 (1940). + +[374] 316 U.S. 31, 41 (1942). + +[375] 3 Wheat. 336 (1818). _See also_ Manchester _v._ Massachusetts, 139 +U.S. 240 (1891) which followed this rule and which seems to contain a +rule analogous to the "silence of Congress" doctrine applied in cases +involving State legislation which affect interstate commerce. + +[376] Ibid. 389. + +[377] The St. Lawrence, 1 Bl. 522, 527 (1862). + +[378] The "Lottawanna," 21 Wall. 558, 576, (1875); _see also_ Janney +_v._ Columbian Ins. Co., 10 Wheat. 411, 418 (1825), where it was held +that the admiralty jurisdiction rests on the grant in the Constitution +and can only be exercised under the laws of the United States extending +that grant to the respective courts of the United States. + +[379] 4 Wall. 411, 431, (1867); The Hine _v._ Trevor, 4 Wall. 555 +(1867). + +[380] Knapp, Stout & Co. _v._ McCaffrey, 177 U.S. 638 (1900); Red Cross +Line _v._ Atlantic Fruit Co., 264 U.S. 109 (1924). + +[381] Chelentis _v._ Luckenbach S.S. Co., 247 U.S. 372 (1918). + +[382] Rodd _v._ Heartt, 21 Wall. 558 (1875). + +[383] Old Dominion S.S. Co. _v._ Gilmore, 207 U.S. 398 (1907). + +[384] Ibid. + +[385] 312 U.S. 383 (1941). + +[386] 244 U.S. 205 (1917). + +[387] Ibid. 202, 215-218. This was a five to four decision with Justices +Holmes, Pitney, Brandeis, and Clarke dissenting. Justice Holmes' dissent +is notable among other reasons for his epigrams that "Judges do and must +legislate, but they can do so only interstitially; they are confined +from molar to molecular motions," ibid. 221; and that "the common law is +not a brooding omnipresence in the sky but the articulate voice of some +sovereign or some quasi-sovereign that can be identified." Ibid. 222. +Justice Pitney attacked the decision as unsupported by precedent and +contended that article III speaks only of jurisdiction and does not +prescribe the procedural or substantive law by which the exercise of +admiralty jurisdiction is to be governed. Ibid. 225-229. + +[388] 40 Stat. 395 (1917). + +[389] 253 U.S. 149 (1920). + +[390] Ibid. 160. For the discussion of the statute as an invalid +delegation of power, _see_ ibid. 163-166. Justice Holmes wrote a dissent +in which Justices Pitney, Brandeis and Clarke concurred. + +[391] 42 Stat. 634 (1922); overturned in Washington _v._ W.C. Dawson & +Co., 264 U.S. 219 (1924). + +[392] 44 Stat. 1424. + +[393] Nogueira _v._ New York, N.H. & H.R. Co., 281 U.S. 128 (1930); +Vancouver S.S. Co. _v._ Rice, 288 U.S. 445 (1933). + +[394] 244 U.S. 205, 216. + +[395] 317 U.S. 249 (1942). + +[396] Ibid. 252. + +[397] Ibid. 253. Citing Baizley Iron Works _v._ Span, 281 U.S. 222, 230 +(1930). + +[398] 317 U.S. 249 (1942). Cases cited as strengthening the claim were +Sultan Ry. & Timber Co. _v._ Dept. of Labor, 277 U.S. 135 (1928); Grant +Smith-Porter Co. _v._ Rohde, 257 U.S. 469 (1922); Millers' Underwriters +_v._ Braud, 270 U.S. 59 (1926); Ex parte Rosengrant, 213 Ala. 202 (104 +So. 409), affirmed 273 U.S. 664 (1927); State Industrial Board of New +York _v._ Terry & Tench Co., 273 U.S. 639 (1926); Alaska Packers Asso. +_v._ Industrial Accident Commission, 276 U.S. 467 (1928). Cases cited +against the claim were Baizley Iron Works _v._ Span, 281 U.S. 222 +(1930); Gonsalves _v._ Morse Dry Dock Co., 266 U.S. 171 (1924); Nogueira +_v._ N.Y., N.H. & H.R. Co., 281 U.S. 128 (1930); Northern Coal & Dock +Co. _v._ Strand, 278 U.S. 142 (1928); Employers' Liability Assurance Co. +_v._ Cook, 281 U.S. 233 (1930). Justice Black _also_ cites Stanley +Morrison, Workmen's Compensation and the Maritime Law, 38 Yale L.J. 472 +(1929). In the Davis case the Court was not guilty of exaggeration when +it declared that "the very closeness of the cases cited * * * has caused +much serious confusion," and went on to picture rather vividly the +jurisdictional dilemma of an injured employee who might suffer great +financial loss as a result of the delay and expense if he guessed wrong, +and might even discover that his claim was "barred by the statute of +limitations in the proper forum while he was erroneously pursuing it +elsewhere." 317 U.S. 249, 254. Likewise the dilemma affected employers +who might not be protected by contributions to a State fund and at the +same time be liable for substantial additional payments. The Court had +harsh words for the Jensen rule but indicated that its reversal would +not solve the problem. Ibid. 256. Justice Black also pointed to Parker +_v._ Motor Boat Sales, 314 U.S. 244 (1941), where the Court, after +stating that Congress by the Longshoremen's Act accepted the Jensen line +of demarcation between State and federal jurisdiction, had proceeded to +hold that, in shadowy cases where the claimant was in a twilight zone he +was entitled to recover under the State statute in the absence of +federal administrative action under the Longshoremen's Act on the ground +of its constitutionality. In brief it would seem that in shadowy cases a +claimant may elect either a federal court applying the Longshoremen's +Act or a State forum applying the State compensation law. + +[399] 317 U.S. 219, 259. + +[400] 21 Wall. 558 (1875). + +[401] Ibid. 572. + +[402] Ibid. 574-575. + +[403] The "Lottawanna," 21 Wall. 558, 577. + +[404] In re Garnett, 141 U.S. 1, 12 (1891). + +[405] Ibid. 14. + +[406] 244 U.S. 205, 215 (1917), citing Butler _v._ Boston & Savannah +S.S. Co., 130 U.S. 527 (1889), and In re Garnett, 141 U.S. 1 (1891). + +[407] 253 U.S. 149, 160 (1920). + +[408] 328 U.S. 1, 5 (1946), citing O'Donnell _v._ Great Lakes Dredge & +Dock Co., 318 U.S. 36, 40 (1943), and the cases cited therein. + +[409] Davis _v._ Department of Labor, 317 U.S. 249 (1942). + +[410] 2 Commentaries (2d ed., Boston, 1851), Sec. 1674. + +[411] Dugan _v._ United States, 3 Wheat. 172 (1818). + +[412] United States _v._ San Jacinto Tin Co., 125 U.S. 273 (1888); +United States _v._ Beebe, 127 U.S. 338 (1888); United States _v._ +American Bell Tel. Co., 128 U.S. 315 (1888). + +[413] United States _v._ San Jacinto Tin Co., 125 U.S. 273 (1888). + +[414] 28 U.S.C.A. Sec. 1331-1332. The original jurisdiction of the Supreme +Court does not extend to suits brought by the United States against +persons or corporations alone. _See also_ Revised Statutes, Sec. 565, 629. +United States _v._ West Virginia, 295 U.S. 463 (1935). + +[415] 136 U.S. 211 (1890). + +[416] United States _v._ Texas, 143 U.S. 621 (1892). + +[417] Ibid. 642-646. This suit, it may be noted, was specifically +authorized by the act of Congress of May 2, 1890, providing for a +temporary government for the Oklahoma territory to determine the +ownership of Greer County. 26 Stat. 81, 92, Sec. 25. + +[418] United States _v._ Minnesota, 270 U.S. 181 (1926). For an earlier +suit against a State by the United States, _see_ United States _v._ +Michigan, 190 U.S. 379 (1903). + +[419] 295 U.S. 463, 471-475 (1935). + +[420] United States _v._ Utah, 283 U.S. 64 (1931). + +[421] United States _v._ California, 332 U.S. 19 (1947). + +[422] United States _v._ Louisiana, 339 U.S. 699 (1950); United States +_v._ Texas, 339 U.S. 707 (1950). + +[423] 2 Dall. 419, 478 (1793). + +[424] 6 Wheat. 264, 412 (1821). + +[425] 8 Pet. 436, 444 (1834). + +[426] United States _v._ McLemore, 4 How. 286 (1846); Hill _v._ United +States, 9 How. 386, 389 (1850); DeGroot _v._ United States, 5 Wall. 419, +431 (1867); United States _v._ Eckford, 6 Wall. 484, 488 (1868); The +Siren, 7 Wall. 152, 154 (1869); Nichols _v._ United States, 7 Wall. 122, +126 (1869); The Davis, 10 Wall. 15, 20 (1870); Carr _v._ United States, +98 U.S. 433, 437-439 (1879). "It is also clear that the Federal +Government, in the absence of its consent, is not liable in tort for the +negligence of its agents or employees. Gibbons _v._ United States, 8 +Wall. 269, 275 (1869); Peabody _v._ United States, 231 U.S. 530, 539 +(1913); Keokuk & Hamilton Bridge Co. _v._ United States, 260 U.S. 125, +127 (1922). The reason for such immunity as stated by Mr. Justice Holmes +in Kawananakoa _v._ Polyblank, 205 U.S. 349, 353 (1907), is because +'there can be no legal right as against the authority that makes the law +on which the right depends.' _See also_ The Western Maid, 257 U.S. 419, +433 (1922). As the Housing Act does not purport to authorize suits +against the United States as such, the question is whether the +Authority--which is clearly an agency of the United States--partakes of +this sovereign immunity. The answer must be sought in the intention of +the Congress. Sloan Shipyards case, 258 U.S. 549, 570 (1922); Federal +Land Bank _v._ Priddy, 295 U.S. 229, 231 (1935). This involves a +consideration of the extent to which other Government-owned corporations +have been held liable for their wrongful acts." 39 Op. Atty. Gen. 559, +562 (1938). + +[427] 106 U.S. 196 (1882). + +[428] Lonergan _v._ United States, 303 U.S. 33 (1938). + +[429] United States _v._ N.Y. Rayon Importing Co., 329 U.S. 654 (1947). + +[430] United States _v._ Shaw, 309 U.S. 495 (1940). Here it was said +that the reasons for sovereign immunity "partake somewhat of dignity and +decorum, somewhat of practical administration, somewhat of the political +desirability of an impregnable legal citadel where government, as +distinct from its functionaries may operate undisturbed by the demands +of litigants," ibid. 500-501. The Court went on to hold that when the +United States took possession of the assets of Fleet Corporation and +assumed its obligations, it did not waive its immunity from suit in a +State court on a counterclaim based on the Corporation's breach of +contract, ibid. 505. Any consent to be sued will not be held to embrace +action in the federal courts unless the language giving consent is +clear. Great Northern Life Ins. Co. _v._ Read, 322 U.S. 47 (1944). + +[431] Minnesota _v._ United States, 305 U.S. 382 (1939). The United +States was held here to be an indispensable party defendant in a +condemnation proceeding brought by a State to acquire a right of way +over lands owned by the United States and held in trust for Indian +allottees. + +[432] Brady _v._ Roosevelt S.S. Co., 317 U.S. 575 (1943). + +[433] United States _v._ Lee, 106 U.S. 196, 207-208 (1882). The +principle of sovereign immunity was further disparaged in a brief essay +by Justice Miller on the subject of the rule of law, as follows: "Under +our system the _people_ * * * are sovereign. Their rights, whether +collective or individual, are not bound to give way to a sentiment of +loyalty to the person of a monarch. The citizen here knows no person, +however near to those in power, or however powerful himself, to whom he +need yield the rights which the law secures to him when it is well +administered. When he, in one of the courts of competent jurisdiction, +has established his right to property, there is no reason why deference +to any person, natural or artificial, not even the United States, should +prevent him from using the means which the law gives him for the +protection and enforcement of that right." Ibid. 208-209. + +[434] 204 U.S. 331 (1907). + +[435] Louisiana _v._ McAdoo, 234 U.S. 627, 628 (1914). + +[436] 162 U.S. 255 (1896). At page 271 Justice Gray endeavors to +distinguish between this and the Lee Case. It was Justice Gray who spoke +for the dissenters in the Lee Case. + +[437] Land _v._ Dollar, 330 U.S. 731, 737 (1947). Justice Douglas cites +for this proposition Cunningham _v._ Macon & B.R. Co., 109 U.S. 446, 452 +(1883); Tindal _v._ Wesley, 167 U.S. 204 (1897); Smith _v._ Reeves, 178 +U.S. 436, 439 (1900); Scranton _v._ Wheeler, 179 U.S. 141, 152, 153 +(1900); Philadelphia Co. _v._ Stimson, 223 U.S. 605, 619, 620 (1912); +Goltra _v._ Weeks, 271 U.S. 536 (1926). This last case actually extended +the rule of the Lee Case and was virtually overruled in Larson _v._ +Domestic & Foreign Corp., 337 U.S. 682 (1949). + +[438] Oregon _v._ Hitchcock, 202 U.S. 60 (1906); Louisiana _v._ +Garfield, 211 U.S. 70 (1908); New Mexico _v._ Lane, 243 U.S. 52 (1917); +Wells _v._ Roper, 246 U.S. 335 (1918); Morrison _v._ Work, 266 U.S. 481 +(1925); Minnesota _v._ United States, 305 U.S. 382 (1939); Mine Safety +Appliances Co. _v._ Forrestal, 326 U.S. 371 (1945). _See also_ Minnesota +_v._ Hitchcock, 185 U.S. 373 (1902). For a review of the cases dealing +with sovereign immunity _see_ Joseph D. Block, Suits Against Government +Officers and the Sovereign Immunity Doctrine, 59 Harv. L. Rev. 1060 +(1946). + +[439] Cunningham _v._ Macon & B.R. Co., 109 U.S. 446, 451 (1883), quoted +by Chief Justice Vinson in the opinion of the Court in Larson _v._ +Domestic & Foreign Corp., 337 U.S. 682, 698 (1949). + +[440] Larson _v._ Domestic & Foreign Corp., _supra_, 708. Justice +Frankfurter's dissent also contains a useful classification of immunity +cases and an appendix listing them. + +[441] 330 U.S. 731, 735 (1947). The italics are added. + +[442] 337 U.S. 682 (1949). + +[443] Ibid. 689-697. + +[444] Ibid. 701-702. This rule was applied in United States ex rel. +Goldberg _v._ Daniels, 231 U.S. 218 (1914), which also involved a sale +of government surplus property. After the Secretary of the Navy rejected +the highest bid, plaintiff sought mandamus to compel delivery. The suit +was held to be against the United States. _See also_ Perkins, Secretary +of Labor _v._ Lukens Steel Co., 310 U.S. 113 (1940), which held that +prospective bidders for contracts derive no enforceable rights against a +federal official for an alleged misinterpretation of his government's +authority on the ground that an agent is answerable only to his +principal for misconstruction of instructions, given for the sole +benefit of the principal. In the Larson Case the Court not only refused +to follow Goltra _v._ Weeks, 271 U.S. 536 (1926), but in effect +overruled it. The Goltra Case involved an attempt of the Government to +repossess barges which it had leased under a contract reserving the +right to repossess in certain circumstances. A suit to enjoin +repossession was held not to be a suit against the United States on the +ground that the actions were personal and in the nature of a trespass. + +[445] 337 U.S. 682, 703-704. Justice Frankfurter, dissenting, would have +applied the rule of the Lee Case. + +[446] Larson _v._ Domestic & Foreign Corp., 337 U.S. 682, 709-710 +(1949). + +[447] Oregon _v._ Hitchcock, 202 U.S. 60 (1906); Louisiana _v._ McAdoo, +224 U.S. 627 (1914); Wells _v._ Roper, 246 U.S. 335 (1918). _See also_ +Belknap _v._ Schild, 161 U.S. 10 (1896); and International Postal Supply +Co. _v._ Bruce, 194 U.S. 601 (1904). + +[448] Rickert Rice Mills _v._ Fontenot, 297 U.S. 110 (1936); and +Tennessee Electric Power Co. _v._ Tennessee Valley Authority, 306 U.S. +118 (1939) which held that one threatened with direct and special injury +by the act of an agent of the Government under a statute may challenge +the constitutionality of the statute in a suit against the agent. + +[449] Philadelphia Co. _v._ Stimson, 223 U.S. 605 (1912); Waite _v._ +Macy, 246 U.S. 606 (1918). + +[450] United States _v._ Lee, 106 U.S. 196 (1882); Goltra _v._ Weeks, +271 U.S. 536 (1926); Ickes _v._ Fox, 300 U.S. 82 (1937); Land _v._ +Dollar, 330 U.S. 731 (1947). + +[451] 306 U.S. 381 (1939). + +[452] Federal Housing Authority _v._ Burr, 309 U.S. 242 (1940). +Nonetheless, the Court held that a Congressional waiver of immunity in +the case of a government corporation did not mean that funds or property +of the United States can be levied on to pay a judgment obtained against +such a corporation as the result of waiver of immunity. + +[453] United States _v._ United States Fidelity Co., 309 U.S. 506 +(1940). + +[454] Charles Warren, The Supreme Court and Disputes Between States, +Bulletin of the College of William and Mary, Vol. 34, No. 5, pp. 7-11 +(1940). For a more comprehensive treatment of backgrounds as well as the +general subject, _see_ Charles Warren, The Supreme Court and Sovereign +States, (Princeton, 1924). + +[455] Warren, The Supreme Court and Disputes Between States, p. 13. +However, only three such suits were brought in this period, 1789-1849. +During the next 90 years, 1849-1939, at least twenty-nine such suits +were brought. Ibid. 13, 14. + +[456] 2 Dall. 419 (1793). + +[457] Rhode Island _v._ Massachusetts, 12 Pet. 657, 721 (1838). + +[458] Ibid. 736-737. + +[459] Ibid. 737. Chief Justice Taney dissented because of his belief +that the issue was not one of property in the soil, but of sovereignty +and jurisdiction, and hence political. Ibid. 752-753. For different +reasons, it should be noted, a suit between private parties respecting +soil or jurisdiction of two States, to which neither State is a party +does not come within the original jurisdiction of the Supreme Court. +Fowler _v._ Lindsay, 3 Dall. 411 (1799). + +[460] 180 U.S. 208 (1901). + +[461] Kansas _v._ Colorado, 206 U.S. 46 (1907). + +[462] 283 U.S. 336 (1931). + +[463] Ibid. 342. _See also_ Nebraska _v._ Wyoming, 325 U.S. 589 (1945), +for the restatement of the familiar principle that the power of +apportionment among several States of waters of an interstate river +where the demands of the users exceeds the supply is a matter of +sufficient importance and dignity as to be justiciable in the Supreme +Court. + +[464] South Dakota _v._ North Carolina, 192 U.S. 286 (1904). + +[465] Virginia _v._ West Virginia, 220 U.S. 1 (1911). This case is also +significant for Justice Holmes' statement that, "The case is to be +considered in the untechnical spirit proper for dealing with a +quasi-international controversy, remembering that there is no municipal +code governing the matter, and that this Court may be called on to +adjust differences that cannot be dealt with by Congress or disposed of +by the legislature of either State alone." Ibid. 27. + +[466] Kentucky _v._ Indiana, 281 U.S. 163 (1930). + +[467] Texas _v._ Florida et al., 306 U.S. 398 (1939). + +[468] Pennsylvania and Ohio _v._ West Virginia, 262 U.S. 553 (1923). + +[469] 12 Pet. 657 (1838). + +[470] 6 Wheat. 264, 378 (1821). + +[471] 291 U.S. 286 (1934). + +[472] Massachusetts _v._ Missouri, 308 U.S. 1, 15-16 (1939), citing +Florida _v._ Mellon, 273 U.S. 12 (1927). + +[473] 306 U.S. 398 (1939). + +[474] 308 U.S. 1, 17, citing Oklahoma _v._ Atchison, T. & S.F.R. Co., +220 U.S. 277, 286 (1911), and Oklahoma _v._ Cook, 304 U.S. 387, 394 +(1938). _See also_ New Hampshire _v._ Louisiana, 108 U.S. 76 (1883), +which held that a State cannot bring a suit on behalf of its citizens to +collect on bonds issued by another State, and Louisiana _v._ Texas, 176 +U.S. 1 (1900), which held that a State cannot sue another to prevent +maladministration of quarantine laws. + +[475] 308 U.S. 1, 17. + +[476] Ibid. 19. + +[477] The various litigations of Virginia _v._ West Virginia are to be +found in 206 U.S. 290 (1907); 209 U.S. 514 (1908); 220 U.S. 1 (1911); +222 U.S. 17 (1911); 231 U.S. 89 (1913); 234 U.S. 117 (1914); 238 U.S. +202 (1915); 241 U.S. 531 (1916); 246 U.S. 565 (1918). + +[478] 246 U.S. 565, 591. + +[479] Ibid. 600. + +[480] Ibid. 601. + +[481] Warren, The Supreme Court and Sovereign States, 79. + +[482] 2 Dall. 419 (1793). + +[483] Massachusetts _v._ Mellon, 262 U.S. 447 (1923); Florida _v._ +Mellon, 273 U.S. 12 (1927); New Jersey _v._ Sargent, 269 U.S. 328 +(1926). + +[484] Pennsylvania _v._ Quicksilver Min. Co., 10 Wall. 553 (1871); +California _v._ Southern Pacific Co., 157 U.S. 229 (1895); Minnesota +_v._ Northern Securities Co., 184 U.S. 199 (1902). + +[485] Wisconsin _v._ Pelican Ins. Co., 127 U.S. 265 (1888). + +[486] 4 Wall. 475 (1867). + +[487] 6 Wall. 50 (1868). + +[488] 262 U.S. 447 (1923). + +[489] 273 U.S. 12 (1927). + +[490] Oklahoma _v._. Atchison, T. & S.F.R. Co., 220 U.S. 277 (1911); +Oklahoma _v._ Cook, 304 U.S. 387 (1938). + +[491] 6 Wheat. 264, 398-399 (1821). + +[492] Pennsylvania _v._ Quicksilver Min. Co., 10 Wall. 553 (1871). + +[493] California _v._ Southern Pacific Co., 157 U.S. 229 (1895); +Minnesota _v._ Northern Securities Co., 184 U.S. 199 (1902). + +[494] 6 Wheat. 264, 398-399. + +[495] 127 U.S. 265 (1888). + +[496] 2 Dall. 419, 431-432 (1793). + +[497] 127 U.S. 265, 289-300. This case also follows the general rule +that a corporation chartered by the laws of a State, is a citizen of +that State for purposes of federal jurisdiction. + +[498] 304 U.S. 387 (1938). + +[499] 220 U.S. 277, 286-289 (1911). + +[500] 316 U.S. 159 (1942). + +[501] 220 U.S. 277 (1911). + +[502] 324 U.S. 439 (1945). + +[503] 206 U.S. 230 (1907). Here the Court entertained a suit by Georgia +and enjoined the Copper company from discharging noxious gases from +their works in Tennessee over Georgia's territory. + +[504] 324 U.S. 439, 447-448, citing and quoting Georgia _v._ Tennessee +Copper Co., 206 U.S. 230, 237 (1907). + +[505] 324 U.S. 439, 450, citing Missouri _v._ Illinois, 180 U.S. 208, +219-224, 241 (1901); Virginia _v._ West Virginia, 246 U.S. 565, 599 +(1918); Georgia _v._ Tennessee Copper Co., 206 U.S. 230, 237 (1907). + +[506] Ibid. 451, 468. Chief Justice Stone, joined by Justices Roberts, +Frankfurter, and Jackson dissented on the ground that the suit actually +was one for a district court, that a State is without standing to +maintain suit for injuries sustained by its citizens and residents for +which they may sue in their own behalf, and that as presented the suit +was not one in which a court of equity could give effective relief. + +[507] 2 Cr. 445, 452-453 (1805). + +[508] Ibid. 453. + +[509] New Orleans _v._ Winter et al., 1 Wheat. 91 (1816). + +[510] 54 Stat. 143 (1940); 28 U.S.C.A. 1332. + +[511] 337 U.S. 582 (1949). + +[512] Ibid. 583-604. + +[513] Ibid. 604-625. + +[514] Ibid. 626-646. + +[515] Ibid. 646-655. + +[516] Ibid. 655. + +[517] Knox _v._ Greenleaf, 4 Dall. 360 (1802). + +[518] Shelton _v._ Tiffin, 6 How. 163 (1848). + +[519] Williamson _v._ Osenton, 232 U.S. 619 (1014). + +[520] Shelton _v._ Tiffin, 6 How. 163 (1848). + +[521] Williamson _v._ Osenton, 232 U.S. 619 (1914). + +[522] Jones _v._ League, 18 How. 76 (1855). + +[523] Shelton _v._ Tiffin, 6 How. 163 (1848). + +[524] 5 Cr. 61, 86 (1809). + +[525] 14 Pet. 60 (1840). + +[526] Strawbridge _v._ Curtiss, 3 Cr. 267 (1806). The Slocomb Case had +to be dismissed because two members of the defendant corporation were +citizens of the same State as the plaintiffs. + +[527] 2 How. 497 (1844). + +[528] Ibid. 558. + +[529] Muller _v._ Dows, 94 U.S. 444, 445 (1877). This fiction had its +beginning in Marshall _v._ Baltimore & Ohio R. Co., 16 How. 314, 329 +(1854) and attained final approval in St. Louis & S.F. Ry. Co. _v._ +James, 161 U.S. 545, 554 (1896). + +[530] John Chipman Gray, The Nature and Sources of the Law, 2d ed. (New +York, 1927), 34. + +[531] Dodge _v._ Woolsey, 18 How. 331 (1856); Mechanics' & Traders' Bank +_v._ Debolt, 18 How. 380 (1856). + +[532] Gray, _op. cit._, 185-186. Although Justice Wayne criticized the +Strawbridge Case as going too far, later developments in determining the +citizenship of corporations, have enabled the Court to restore it to its +original status. Consequently the rule still requires that to maintain a +diversity proceeding all the parties on one side must be citizens of +different States from all the parties on the other side. Treinies _v._ +Sunshine Mining Co., 308 U.S. 66 (1939); City of Indianapolis _v._ Chase +National Bank, 314 U.S. 63 (1941). + +[533] _See_ Southern Realty Co. _v._ Walker, 211 U.S. 603 (1909), where +two Georgians who conducted all of that business in Georgia created a +sham corporation in South Dakota for the sole purpose of bringing suits +in the federal courts which ordinarily would have been brought in the +Georgia courts. Diversity jurisdiction was held not to exist because of +collusion. + +[534] Black and White Taxicab & T. Co. _v._ Brown & Yellow Taxicab & T. +Co., 276 _v._ U.S. 518 (1928). + +[535] 16 Pet. 1 (1842). + +[536] 16 Pet. 1. + +[537] Ibid. 19. Justice Story concluded this portion of the opinion as +follows: "The law respecting negotiable instruments may be truly +declared in the language of Cicero, adopted by Lord Mansfield in Luke +_v._ Lyde, 2 Burr. 883, 887, to be in great measure, not the law of a +single country only, but of the commercial world. _Non erit alia lex +Romae, alia Athenis; alia nunc, alia posthac, sed et apud omenes gentes, +et omni tempore una eademque lex obtinebit._" Ibid. 9. + +[538] _See_ Simeon E. Baldwin, The American Judiciary (New York, 1920), +169-170. _See also_ Justice Catron's statement in Swift _v._ Tyson, 16 +Pet. 1, 23. + +[539] The Tyson doctrine was extended to wills in Lane _v._ Vick, 3 How. +464 (1845); to torts in Chicago City _v._ Robbins, 2 Bl. 418 (1862); to +real estate titles and the rights of riparian owners in Yates _v._ +Milwaukee, 10 Wall. 497 (1870); to mineral conveyances in Kuhn _v._ +Fairmont Coal Co., 215 U.S. 349 (1910); to contracts in Rowan _v._ +Runnels, 5 How. 134 (1847); and to the right to exemplary or punitive +damages in Lake Shore & M.S.R. Co. _v._ Prentice, 147 U.S. 101 (1893). +By 1888 there were 28 kinds of cases in which federal and State courts +applied different rules of the common law. _See_ George C. Holt, The +Concurrent Jurisdiction of the Federal and State Courts (New York, +1888), 159-188. + +[540] Rowan _v._ Runnels, 5 How. 134 (1847); Gelpcke _v._ Dubuque, 1 +Wall. 175 (1864). + +[541] Williamson _v._ Berry, 8 How. 495 (1850); Pease _v._ Peck, 18 How. +595 (1856); Watson _v._ Tarpley, 18 How. 517 (1856). + +[542] Lane _v._ Vick, 3 How. 464 (1845); Williamson _v._ Berry, 8 How. +495 (1850); Gelpcke _v._ Dubuque, 1 Wall. 175 (1864). + +[543] 149 U.S. 308, 401-404 (1893). + +[544] 215 U.S. 349, 370 (1910). + +[545] 276 U.S. 518 (1928). + +[546] Ibid. 533. Justice Holmes was influenced in part by the article of +Charles Warren, New Light On The History Of The Federal Judiciary Act of +1789, 37 Harv. L. Rev. 49, 81-88 (1923), in which Mr. Warren produced +evidence to show that Justice Story's interpretation in the Tyson Case +was contrary to the intention of the framers of the act. Mr. Warren did +not, however, contend that the Tyson rule was unconstitutional. Justice +Holmes was joined in his dissent by Justices Brandeis and Stone. In +addition to judicial dissatisfaction with the Tyson rule as manifested +in dissents, disapproval in Congressional quarters resulted in bills by +Senators Walsh and Norris in the 70th and 71st Congresses, S. 3151, 70th +Cong., 1st. sess., S. Rept. 626 of Committee on the Judiciary, March 27, +1928; S. 4357, 70th Cong., 2d. sess., S. Rept. 691, Committee on the +Judiciary, May 20, 1930; S. 4333, 70th Cong., 1st. sess.; S. 96, 71st +Cong., 1st. sess. + +[547] 293 U.S. 335 (1934). + +[548] This concept was first used by Justice Bradley in Burgess _v._ +Seligman, 107 U.S. 21 (1883). + +[549] 293 U.S. 335, 339. + +[550] 304 U.S. 64 (1938). + +[551] 304 U.S. 64, 69-70, 77-78. + +[552] Ibid. 79-80. + +[553] 304 U.S. 64, 80-90. + +[554] Ibid. 90, 91-92. + +[555] 311 U.S. 223 (1940). + +[556] 311 U.S. 169 (1940). This decision has been thoroughly criticized +by Arthur L. Corbin in The Laws of the Several States, 50 Yale L.J. 762 +(1941). _See also_ Mitchell Wendell, Relations Between Federal and State +Courts (New York, 1949), 209-223. This book contains a good account of +the operation of the Tyson and Tompkins rules, pp. 113-247. + +[557] 333 U.S. 153 (1948). For other cases applying the rule that +decisions of State intermediate courts are binding unless there is +convincing evidence that the State law is otherwise, _see_ Six Companies +of California _v._ Highway Dist., 311 U.S. 180 (1940); Stoner _v._ New +York Life Ins. Co., 311 U.S. 464 (1940). + +[558] Vandenbark _v._ Owens-Illinois Co., 311 U.S. 538 (1941). + +[559] 28 U.S.C.A. Sec. 1652; 62 Stat. 944 (1948). In 1938, the year of the +Tompkins decision, the Conformity Act of 1872 (17 Stat. 196 Sec. 5) was +superseded; and from that time until the enactment of 62 Stat. 944, the +federal courts were guided in diversity cases by the Federal Rules of +Civil Procedure formulated by the Supreme Court by virtue of the +authority delegated it, in 1934, by 48 Stat. 1064. + +[560] Ruhlin _v._ New York Life Ins. Co., 304 U.S. 202 (1938). + +[561] 326 U.S. 99 (1945). + +[562] Ibid. 108-109. + +[563] Ibid. 109. Justice Rutledge wrote a dissent in which Justice +Murphy concurred. Justice Rutledge objected to the rigid application of +a statute of limitations to suits in equity and to the implication that +Congress could not authorize federal courts to administer equitable +relief in accordance with the substantive rights of the parties, +notwithstanding State statutes of limitations barring such suits in +State courts. In his view, if any change were to be made, it was for +Congress and not the Court to make it. In line with this ruling _see_ +Ragan _v._ Merchants Transfer & W. Co., 337 U.S. 530 (1949); _also_ +Cohen _v._ Beneficial Industrial Loan Corp., 337 U.S. 541, 555 (1949). + +[564] 2 Story, Commentaries, 467 Sec. 1696 (2d. ed., 1851). + +[565] An interesting case which reached the Supreme Court under this +clause was Pawlet _v._ Clark, 9 Cr. 292 (1815). In his opinion for the +Court, Justice Story took occasion to assert that grants of land by a +State to a town could not afterwards be repealed so as to divest the +town of its rights under the grant. Ibid. 326; _cf._ Trenton _v._ New +Jersey, 262 U.S. 182 (1923). + +[566] The Exchange _v._ McFaddon, 7 Cr. 116 (1812); Berizzi Bros. Co. +_v._ S.S. Pesaro, 271 U.S. 562 (1926); Compania Espanola _v._ The +Navemar, 303 U.S. 68 (1938); Guaranty Trust Co. _v._ United States, 304 +U.S. 126, 134 (1938). + +[567] Principality of Monaco _v._ Mississippi, 292 U.S. 313, 330 (1934). + +[568] Ibid. + +[569] The "Sapphire," 11 Wall. 164, 167 (1871). + +[570] Ibid. 167. This case also held that a change in the person of the +sovereign does not affect the continuity or rights of national +sovereignty, including the right to bring suit, or to continue one that +has been brought. + +[571] Guaranty Trust Co. _v._ United States, 304 U.S. 126, 137 (1938); +citing Jones _v._ United States, 137 U.S. 202, 212 (1890); Matter of +Lehigh Valley R. Co., 265 U.S. 573 (1924). Whether a government is to be +regarded as the legal representative of a foreign State is, of course, a +political question. + +[572] Guaranty Trust Co. _v._ United States, 304 U.S. 126, 134 (1938); +citing United States _v._ The Thekla, 266 U.S. 328, 340, 341 (1924); +United States _v._ Stinson, 197 U.S. 200, 205 (1905); The Davis, 10 +Wall. 15 (1870); The Siren, 7 Wall. 152, 159 (1869). _See also_ Ex parte +Republic of Colombia, 195 U.S. 604 (1904). + +[573] Guaranty Trust Co. _v._ United States, 304 U.S. 126, 137 (1938). +Among other benefits which the Court cites as not extending to foreign +States as litigants include exemption from costs and from giving +discovery. Decisions are also cited to the effect that a sovereign +plaintiff "should so far as the thing can be done, be put in the same +position as a body corporate." Ibid, note 2, pp. 134-135. + +[574] 5 Pet. 1, 16-20 (1831). + +[575] Hodgson & Thompson _v._ Bowerbank, 5 Cr. 303 (1809). + +[576] Jackson _v._ Twentyman, 2 Pet. 136 (1829). + +[577] Susquehanna & Wyoming V.R. & C. Co. _v._ Blatchford, 11 Wall. 172 +(1871). _See_, however, Lacassagne _v._ Chapuis, 144 U.S. 119 (1892), +which held that a lower federal court had jurisdiction over a proceeding +to impeach its former decree, although the parties were new and were +both aliens. + +[578] Browne _v._ Strode, 5 Cr. 303 (1809). + +[579] 2 Dall. 419 (1793). For an earlier case where the point of +jurisdiction was not raised, _see_ Georgia _v._ Brailsford, 2 Dall. 402 +(1792). For subsequent cases prior to 1861, _see_ Rhode Island _v._ +Massachusetts, 12 Pet. 657 (1838); Florida _v._ Georgia, 17 How. 478 +(1855). + +[580] Kentucky _v._ Dennison, 24 How. 66, 98 (1861). + +[581] 1 Cr. 137 (1803). + +[582] Ibid. 174. _See also_ Wiscart _v._ Dauchy, 3 Dall. 321 (1796). +This exclusive interpretation of article III posed temporary +difficulties for Marshall in Cohens _v._ Virginia, 6 Wheat. 264 (1821), +where he gave a contrary interpretation to other provisions of the +Article. The exclusive interpretation as applied to original +jurisdiction of the Supreme Court has been followed in Ex parte Bollman, +4 Cr. 75 (1807); New Jersey _v._ New York, 5 Pet. 284 (1831); Ex parte +Barry, 2 How. 65 (1844); Ex parte Vallandigham, 1 Wall. 243, 252 (1864); +and Ex parte Yerger, 8 Wall. 85, 98 (1869). In the curious case of Ex +parte Levitt, Petitioner, 302 U.S. 633 (1937), the Court was asked to +purge itself of Justice Black on the ground that his appointment to it +violated the second clause of section 6 of Article I. Although it +rejected petitioner's application, it refrained from pointing out that +it was being asked to assume original jurisdiction contrary to the +holding in Marbury _v._ Madison. + +[583] 252 U.S. 416 (1920). + +[584] 262 U.S. 447 (1923). + +[585] 157 U.S. 229, 261 (1895). Here the Court refused to take +jurisdiction on the ground that the City of Oakland and the Oakland +Water Company, a citizen of California, were so situated that they would +have to be brought into the case, which would make it then a suit +between a State and citizens of another State and its own citizens. The +same rule was followed in New Mexico _v._ Lane, 243 U.S. 52, 58 (1917); +and in Louisiana _v._ Cummins, 314 U.S. 577 (1941). _See also_ Texas +_v._ Interstate Commerce Commission, 258 U.S. 158, 163 (1922). For the +original jurisdiction of the Supreme Court in specific classes of cases +_see_ the discussion of suits affecting ambassadors and suits between +States, _supra_, pp. 571, 591-593. + +[586] Ames _v._ Kansas ex rel. Johnston, 111 U.S. 449 (1884). + +[587] 127 U.S. 265 (1888). + +[588] 1 Stat. 73, 80. + +[589] 127 U.S. 265, 297. _Note also_ the dictum in Cohens _v._ Virginia, +6 Wheat. 264, 398-399 (1821) to the effect that "* * * the original +jurisdiction of the Supreme Court, in cases where a State is a party, +refers to those cases in which, according to the grant of power made in +the preceding clause, jurisdiction might be exercised in consequence of +the character of the party, and an original suit might be instituted in +any of the federal courts; not to those cases in which an original suit +might not be instituted in a federal court. Of the last description, is +every case between a State and its citizens, and, perhaps every case in +which a State is enforcing its penal laws. In such cases, therefore, the +Supreme Court cannot take original jurisdiction." + +[590] Ohio ex rel. Popovici _v._ Agler, 280 U.S. 379 (1930). + +[591] 3 Dall. 321 (1796). Justice Wilson dissented from this holding and +contended that the appellate jurisdiction, as being derived from the +Constitution, could be exercised without an act of Congress or until +Congress made exceptions to it. + +[592] Durousseau _v._ United States, 6 Cr. 307 (1810). + +[593] 6 Wall. 318 (1868); 7 Wall. 506 (1869). + +[594] 15 Stat. 44 (1868). + +[595] 7 Wall. 506, 514. The Court also took occasion to reiterate the +rule that an affirmation of appellate jurisdiction is a negative of all +other and stated that as a result acts of Congress providing for the +exercise of jurisdiction had "come to be spoken of as acts granting +jurisdiction, and not as acts making exceptions to * * * it." It +continued grandly: "* * * judicial duty is not less fitly performed by +declining ungranted jurisdiction than in exercising firmly that which +the Constitution and the laws confer." Ibid. 513, 515. + +[596] _See_ especially the parallel case of Ex parte Yerger, 8 Wall. 85 +(1869). For cases following Ex parte McCardle, _see_ Railroad Co. _v._ +Grant, 98 U.S. 398, 491 (1878); Kurtz _v._ Moffitt, 115 U.S. 487, 497 +(1885); Cross _v._ Burke, 146 U.S. 82, 86 (1892); Missouri _v._ Missouri +Pacific R. Co., 292 U.S. 13, 15 (1934); Stephan _v._ United States, 319 +U.S. 423, 426 (1943). _See also_ United States _v._ Bitty, 208 U.S. 393, +399-400 (1908), where it was held that there is no right to appeal to +the Supreme Court except as an act of Congress confers it. + +[597] 105 U.S. 381 (1882). + +[598] Ibid. 386. _See also_ Barry _v._ Mercein, 5 How. 103, 119 (1847); +National Exchange Bank _v._ Peters, 144 U.S. 570 (1892); American +Construction Co. _v._ Jacksonville T. & K.W.R. Co., 148 U.S. 372 (1893); +Colorado Central Consol. Min. Co. _v._ Turck, 150 U.S. 138 (1893); St. +Louis, I.M. & S.R. Co. _v._ Taylor, 210 U.S. 281 (1908); Luckenbach S.S. +Co. _v._ United States, 272 U.S. 533 (1926). + +[599] 1 Wheat. 304 (1816). + +[600] Ibid. 374. + +[601] Ibid. 331. This recognition, however, is followed by the statement +that "the whole judicial power of the United States should be at all +times, vested either in an original or appellate form, in some courts +created under its authority." + +[602] 2 Commentaries, Sec. 1590-1595. + +[603] 1 Stat. 73, Sec. 9-11. + +[604] Ibid. + +[605] Ibid. Sec. 14, 15, 17, 18. + +[606] Ibid. Sec. 16. + +[607] Dall. 8 (1799). + +[608] Ibid. 9. + +[609] Ex parte Bollman, 4 Cr. 75, 93 (1807). Two years later Chief +Justice Marshall in Bank of United States _v._ Deveaux, 5 Cr. 61 (1809), +held for the Court that the right to sue does not imply a right to sue +in a federal court unless conferred expressly by an act of Congress. + +[610] 7 Cr. 32 (1812). + +[611] Ibid. 33. + +[612] Ibid. + +[613] 12 Pet. 657, 721-722 (1838). + +[614] 3 How. 236 (1845). + +[615] Ibid. 244-245. To these sweeping assertions of legislative +supremacy Justices Story and McLean took vigorous exception. They denied +the authority of Congress to deprive the courts of power and vest it in +an executive official because "the right to construe the laws in all +matters of controversy is of the very essence of judicial power." In +their view the act as interpreted violated the principle of the +separation of powers, impaired the independence of the judiciary, and +merged the executive and judicial department. Dissent of Justice McLean, +pp. 264 and following. + +[616] 8 How. 441 (1850). + +[617] Ibid. 449. + +[618] Rice _v._ M. & N.W.R. Co., 1 Bl. 358, 374 (1862); Mayor of +Nashville _v._ Cooper, 6 Wall. 247, 251-252 (1868); United States _v._ +Eckford, 6 Wall. 484, 488 (1868); Ex parte Yerger, 8 Wall. 85, 104 +(1868); case of the Sewing Machine Companies, 18 Wall. 553, 557-558 +(1874); Morgan _v._ Gay, 19 Wall. 81, 83 (1874); Gaines _v._ Fuentes, 92 +U.S. 10, 18 (1876); Jones _v._ United States, 137 U.S. 202, 211 (1890); +Holmes _v._ Goldsmith, 147 U.S. 150, 158 (1893); Johnson Steel Street +Rail Co. _v._ Wharton, 152 U.S. 252, 260 (1894); Plaquemines Tropical +Fruit Co. _v._ Henderson, 170 U.S. 511, 513-521 (1898); Stevenson _v._ +Fain, 195 U.S. 165, 167 (1904); Kentucky _v._ Powers, 201 U.S. 1, 24 +(1906); Venner _v._ Great Northern R. Co., 209 U.S. 24, 35 (1908); Ladew +_v._ Tennessee Copper Co., 218 U.S. 357, 358 (1910); Kline _v._ Burke +Construction Co., 260 U.S. 226, 233, 234 (1922). _See also_ Lauf _v._ +E.G. Shinner & Co., 303 U.S. 323 (1938); Federal Power Commission _v._ +Pacific Power & Light Co., 307 U.S. 156 (1939). + +[619] Mayor of Nashville _v._ Cooper, 6 Wall. 247, 251-252 (1868). The +rule of Cary _v._ Curtis and Sheldon _v._ Sill was restated with +emphasis many years later in Kline _v._ Burke Construction Co., 260 U.S. +226, 233-234 (1922), where Justice Sutherland, speaking for the Court, +proceeded to say to article III, Sec. 1 and 2: "The effect of these +provisions is not to vest jurisdiction in the inferior courts over the +designated cases and controversies but to delimit those in respect of +which Congress may confer jurisdiction upon such courts as it creates. +Only the original jurisdiction of the Supreme Court is derived directly +from the Constitution. Every other court created by the general +government derives its jurisdiction wholly from the authority of +Congress. That body may give, withhold or restrict such jurisdiction at +its discretion, provided it be not extended beyond the boundaries fixed +by the Constitution. * * * The Constitution simply gives to the inferior +courts the capacity to take jurisdiction in the enumerated cases, but it +requires an act of Congress to confer it. * * * And the jurisdiction +having been conferred may, at the will of Congress, be taken away in +whole or in part; and if withdrawn without a saving clause all pending +cases though cognizable when commenced must fall." + +[620] 56 Stat. 23 (1942). + +[621] 319 U.S. 182 (1943). + +[622] 321 U.S. 414 (1944). + +[623] Ibid. 468. + +[624] _See infra_, pp. 515-528. + +[625] 26 U.S.C.A. 3653. + +[626] _See_ for example Snyder _v._ Marks, 109 U.S. 189 (1883); Cheatham +_v._ United States, 92 U.S. 85 (1875); Shelton _v._ Platt, 139 U.S. 591 +(1891); Pacific Steam Whaling Co. _v._ United States, 187 U.S. 447 +(1903); Dodge _v._ Osborn, 240 U.S. 118 (1916). + +[627] Dodge _v._ Brady, 240 U.S. 122, 126 (1916). + +[628] Hill _v._ Wallace, 259 U.S. 44 (1922); Lipke _v._ Lederer, 259 +U.S. 557 (1922); Miller _v._ Standard Nut Margarine Co., 284 U.S. 498, +509 (1932). + +[629] Enjoining the Assessment and Collection of Federal Taxes Despite +Statutory Prohibition, 49 Harv. L. Rev. 109 (1935). + +[630] Allen _v._ Regents of University System of Georgia, 304 U.S. 439, +445-449 (1938). + +[631] 47 Stat. 70 (1932). + +[632] Lauf _v._ E.G. Shinner & Co., 303 U.S. 323 (1938); New Negro +Alliance _v._ Sanitary Grocery Co., 303 U.S. 552. 562-563 (1838); Milk +Wagon Drivers' Union _v._ Lake Valley Farm Products Co., 311 U.S. 91, +100-103 (1940). + +[633] 330 U.S. 258 (1947). Virginian R. Co. _v._ System Federation No. +40, 300 U.S. 515 (1937), in some ways constitutes an exception to +section 9 of the statute by sustaining a mandatory injunction issued +against an employer on the petition of employees on the ground that the +prohibition of section 9 does not include mandatory injunctions, but +"blanket injunctions which are usually prohibitory in form." For other +acts of Congress limiting the power of the federal courts to issue +injunctions _see infra_, pp. 523-525. + +[634] 1 Wheat. 304 (1816). + +[635] 18 How. 272 (1856). + +[636] 285 U.S. 22 (1932). + +[637] Ibid 56-57. _Cf._, however, Shields _v._ Utah, Idaho R. Co., 305 +U.S. 185 (1938). + +[638] Mayor of Nashville _v._ Cooper, 6 Wall. 247, 252 (1868); Kline +_v._ Burke Construction Co., 260 U.S. 226, 233, 234 (1922). _See also_ +Hodgson _v._ Bowerbank, 5 Cr. 303, 304 (1809) where Chief Justice +Marshall disposed of the effort of British subjects to docket a case in +a circuit court, saying, "turn to the article of the Constitution of the +United States, for the statute cannot extend the jurisdiction beyond the +limits of the Constitution." + +[639] Hayburn's Case, 2 Dall. 409 (1792). + +[640] United States _v._ Ferriera, 13 How. 40 (1852); Gordon _v._ United +States, 117 U.S. 697 (1864); Muskrat _v._ United States, 219 U.S. 346 +(1911). + +[641] In addition to the cases cited in note 3[Transcriber's Note: +Reference is to footnote 640 above.], _see_ Chicago & S. Air Lines _v._ +Waterman S.S. Corp., 333 U.S. 103, 113-114 (1948). + +[642] In addition to the cases cited in notes 2, 3, and 4[Transcriber's +Note: Reference is to footnotes 639, 640, and 641 above.] _see_ Federal +Radio Commission _v._ General Electric Co., 281 U.S. 464, 469 (1930); +Postum Cereal Co. _v._ California Fig Nut Co., 272 U.S. 693 (1927); +Keller _v._ Potomac Electric Power Co., 261 U.S. 428 (1923). _See also_ +the dissenting opinion of Justice Rutledge in Yakus _v._ United States, +321 U.S. 414, 468 (1944). + +[643] Tutun _v._ United States, 270 U.S. 568 (1926), where the Court +held that the United States is always a possible adverse party to a +naturalization petition. + +[644] Fong Yue Ting _v._ United States, 149 U.S. 698 (1893), where the +Court sustained an act of Congress requiring the registration of Chinese +and creating agencies for the expulsion of aliens unlawfully within the +country and for the issuance of certificates to those entitled to +remain. The act provided for special proceedings in such cases and +prescribed the evidence the courts were to receive and the weight to be +attached to it. The procedure was held to contain all the elements of a +case--"a complainant, a defendant, and a judge--_actor_, _reus_, _et +judex_." pp. 728-729. + +[645] La Abra Silver Mining Co. _v._ United States, 175 U.S. 423 (1899). +Here the Court sustained an act of Congress which directed the Attorney +General to bring a suit on behalf of the United States against the +appellants to determine whether an award made by an international claims +commission was obtained by fraud. The Court of Claims was vested with +full jurisdiction with appeal to the Supreme Court to hear the case, +decide it, to issue all proper decrees therein, and to enforce them by +injunction. The Court regarded the money received by the United States +from Mexico as property of the United States. This together with the +interest of Congress in national honor in dealing with Mexico was +sufficient to enable it to authorize a suit for the decision of a +question "peculiarly judicial in nature." pp. 458-459. + +[646] Southern Pacific Co. _v._ Jensen, 244 U.S. 205 (1917). + +[647] Taylor _v._ Carryl, 20 How. 583 (1858). + +[648] 1 Wheat. 304 (1816). + +[649] 6 Wheat. 264 (1821). + +[650] 21 How. 506 (1859). + +[651] For a full account of this episode _see_ Warren, Supreme Court in +United States History, II, 193-194. _See also_ Baldwin, The American +Judiciary, 163. + +[652] 6 Pet. 515, 596 (1832). _See also_ Warren, Supreme Court in United +States History, II, 213; and Baldwin, _op. cit._, 164. It was Worcester +_v._ Georgia which allegedly provoked the probably apocryphal comment +attributed to President Jackson, "'Well, John Marshall has made his +decision, now let him enforce it.'" 2 Warren, Ibid. 219. + +[653] Mast, Foos & Co. _v._ Stover Mfg. Co., 177 U.S. 485 (1900). + +[654] Covell _v._ Heyman, 111 U.S. 176 (1884). + +[655] Riehle _v._ Margolies, 279 U.S. 218 (1929); Harkin _v._ Brundage, +276 U.S. 36 (1928); Wabash R. Co. _v._ Adelbert College, 208 U.S. 38 +(1908); Harkrader _v._ Wadley, 172 U.S. 148 (1898); Central National +Bank _v._ Stevens, 169 U.S. 432 (1898); Shields _v._ Coleman, 157 U.S. +168 (1895); Moran _v._ Sturges, 154 U.S. 256 (1894); Krippendorf _v._ +Hyde, 110 U.S. 276 (1884); Covell _v._ Heyman, 111 U.S. 176 (1884); +Watson _v._ Jones, 13 Wall. 679 (1872); Buck _v._ Colbath, 3 Wall. 334 +(1866); Freeman _v._ Howe, 24 How. 450 (1861); Orton _v._ Smith, 18 How. +263 (1856); Taylor _v._ Carryl, 20 How. 583 (1858); Peck _v._ Jenness, 7 +How. 612 (1849). For later cases _see_ Toucey _v._ New York Life Ins. +Co., 314 U.S. 118 (1941). Princess Lida of Thurn & Taxis _v._ Thompson, +305 U.S. 456 (1939); Brillhart _v._ Excess Ins. Co., 316 U.S. 491 +(1942); Mandeville _v._ Canterbury, 318 U.S. 47 (1943); Markham _v._ +Allen, 326 U.S. 490 (1946); Propper _v._ Clark, 337 U.S. 472 (1949). + +[656] McKim _v._ Voorhies, 7 Cr. 279 (1812); Duncan _v._ Darst, 1 How. +301 (1843); United States ex rel. Riggs _v._ Johnson County, 6 Wall. 166 +(1868); Moran _v._ Sturges, 154 U.S. 256 (1894); Farmers' Loan & Trust +Co. _v._ Lake St. Elev. R. Co., 177 U.S. 51 (1900) + +[657] 6 Wall. 166 (1868). + +[658] Princess Lida of Thurn & Taxis _v._ Thompson, 305 U.S. 456 (1939). +This case rests on the principle of comity that where there are two +suits _in rem_ or _quasi in rem_, as they were held to be here, so that +the Court has possession of property which is the subject of litigation +or must have control of it in order to proceed with the cause and grant +the relief sought, the jurisdiction of one court must yield to that of +the other. The principle, applicable to both federal and State courts, +that the Court first assuming jurisdiction over property may maintain +and exercise that jurisdiction to the exclusion of the other, was held +not to be confined to cases where the property has actually been seized +under judicial process, but applies as well to suits brought for +marshalling assets, administering trusts, or liquidating estates and to +suits of a similar nature, where to give effect to its jurisdiction the +Court must control the property. + +[659] 1 Stat. 335 (1793); 28 U.S.C.A. Sec. 2283. In the judicial code an +exception is made to proceedings in bankruptcy. + +[660] Diggs _v._ Wolcott, 4 Cr. 179 (1807); Orton _v._ Smith, 18 How. +263 (1856); _see_ especially Peck _v._ Jenness, 7 How. 612 (1849) where +the Court held that the prohibition of the act of 1793 extended to +injunction suits brought against the parties to a State court proceeding +as well as to the State court itself. + +[661] Freeman _v._ Howe, 24 How. 450 (1861); Julian _v._ Central Trust +Co., 193 U.S. 93 (1904); Riverdale Cotton Mills _v._ Alabama & Georgia +Mfg. Co., 198 U.S. 188 (1905); Looney _v._ Eastern Texas R. Co., 247 +U.S. 214 (1918). + +[662] Farmers' Loan & Trust Co. _v._ Lake St. Elev. R. Co., 177 U.S. 51 +(1900); Riverdale Cotton Mills _v._ Alabama & Georgia Mfg. Co., 198 U.S. +188 (1905); Julian _v._ Central Trust Co., 193 U.S. 93 (1904); Kline +_v._ Burke Construction Co., 260 U.S. 226 (1922). For a discussion of +this rule _see_ Toucey _v._ New York Life Ins. Co., 314 U.S. 118, +134-136 (1941). + +[663] Ex parte Young, 209 U.S. 123 (1908), is the leading case. + +[664] Arrowsmith _v._ Gleason, 129 U.S. 86 (1889); Marshall _v._ Holmes, +141 U.S. 589 (1891); Simon _v._ Southern R. Co., 236 U.S. 115 (1915). + +[665] French _v._ Hay, 22 Wall. 231 (1875); Dietzsch _v._ Huidekoper, +103 U.S. 494 (1881); Madisonville Traction Co. _v._ St. Bernard Mining +Co., 196 U.S. 239 (1905). + +[666] The earlier cases are Root _v._ Woolworth, 150 U.S. 401 (1893); +Prout _v._ Starr, 188 U.S. 537 (1903); Juilian _v._ Central Trust Co., +193 U.S. 93 (1904). + +[667] 314 U.S. 118 (1941). + +[668] Ibid. 133-141. Justice Reed, in a dissent in which Chief Justice +Stone and Justice Roberts concurred, also reviewed the authorities. + +[669] Southern Ry. Co. _v._ Painter, 314 U.S. 155 (1941). + +[670] 9 Wheat. 738 (1824). + +[671] 209 U.S. 123 (1908). _See also_ Smyth _v._ Ames, 169 U.S. 466 +(1898); Reagan _v._ Farmers' Loan & Trust Co., 154 U.S. 362 (1894). + +[672] Harkrader _v._ Wadley, 172 U.S. 148 (1898); In re Sawyer, 124 U.S. +200 (1888). + +[673] Ex parte Young, 209 U.S. 123, 163 (1908). + +[674] Ibid. 174. The Young case evoked sharp criticism in Congress and +led to the enactment of Sec. 266 of the Judicial Code, prohibiting the +issuance of injunctions to restrain enforcement of State laws by a +single federal judge, providing for a three-judge court in such cases, +limiting the effect of temporary injunctions, and expediting appeals in +such cases to the Supreme Court. Act of June 18, 1910, 36 Stat. 539; 28 +U.S.C.A. Sec. 1253, 2281, 2284. A supplementary act in 1913 (37 Stat. +1013) amended Sec. 266 of the Judicial Code providing for the stay of +federal proceedings to enjoin State legislation if a suit has been +brought in a State court to enforce the legislation until the State court +has determined the issues. Section 266 was amended again in 1925 when the +provisions concerning interlocutory injunctions were extended to include +permanent injunctions. Act of February 13, 1925, 43 Stat. 938. + +[675] Prentis _v._ Atlantic Coast Line R. Co., 211 U.S. 210 (1908); +Gilchrist _v._ Interborough Rapid Transit Co., 279 U.S. 159 (1929); +Grubb _v._ Public Utilities Commission, 281 U.S. 470 (1930); Beal _v._ +Missouri Pacific R. Co., 312 U.S. 45 (1941). + +[676] Phillips _v._ United States, 312 U.S. 246, 249 (1941), citing and +quoting Ex parte Collins, 277 U.S. 565, 577 (1928). + +[677] 312 U.S. 246, 251, citing Moore _v._ Fidelity & Deposit Co., 272 +U.S. 317 (1926); Smith _v._ Wilson, 273 U.S. 388 (1927); Oklahoma Gas +Co. _v._ Packing Co., 292 U.S. 386 (1934); Ex parte Williams, 277 U.S. +267 (1928); Ex parte Public National Bank, 278 U.S. 101 (1928); Rorick +_v._ Commissioners, 307 U.S. 208 (1939); Ex parte Bransford, 310 U.S. +354 (1940). + +[678] Warren, Federal and State Court Interference, 43 Harv. L. Rev. +345, 354 (1930). + +[679] 21 How. 506 (1859). + +[680] Ibid. 514-516, 523-524, 526. + +[681] United States _v._ Tarble (Tarble's Case), 13 Wall. 397, 407-408 +(1872). + +[682] 1 Stat. 81, Sec. 14. + +[683] 4 Stat. 634, Sec. 7 (1833). + +[684] 5 Stat. 539 (1942). + +[685] 14 Stat. 385 (1867). + +[686] Rev. Stat., Sec. 753; 28 U.S.C.A. Sec. 2242. + +[687] 100 U.S. 257 (1880). + +[688] In re Neagle, 135 U.S. 1 (1890). + +[689] In re Loney, 134 U.S. 372 (1890). + +[690] Boske _v._ Comingore, 177 U.S. 459 (1900). + +[691] Ohio _v._ Thomas, 173 U.S. 276 (1899). + +[692] 209 U.S. 205 (1908). + +[693] 117 U.S. 241 (1886). + +[694] Ibid. 251. + +[695] Harkrader _v._ Wadley, 172 U.S. 148 (1898); Whitten _v._ +Tomlinson, 160 U.S. 231 (1895). + +[696] Frank _v._ Mangum, 237 U.S. 309 (1915); Tinsley _v._ Anderson, 171 +U.S. 101 (1898). + +[697] Maryland _v._ Soper, 270 U.S. 9, 36, 44 (1926). In addition to the +cases cited above _see_ Ex parte Fonda, 117 U.S. 516 (1886); Duncan _v._ +McCall, 139 U.S. 449 (1891); New York _v._ Eno, 155. U.S. 89 (1894); +Baker _v._ Grice, 169 U.S. 284 (1898); Matter of Moran, 203 U.S. 96 +(1906); Mooney _v._ Holohan, 294 U.S. 103 (1935); Ex parte Hawk, 321 +U.S. 114 (1944). Compare, however, Wade _v._ Mayo, 334 U.S. 672 (1948), +where it was held that failure of the petitioner to appeal to the +Supreme Court from a conviction sustained by the Florida Supreme Court +did not bar relief by _habeas corpus_ because of denial of counsel. In +Ex parte Hawk, 321 U.S. 114 (1944), the rule pertaining to the +exhaustion of remedies was applied so as to include a certiorari +petition in the Supreme Court. In adopting a new United States Code in +1948 (62 Stat. 967) Congress added a new section to existing _habeas +corpus_ provisions which stipulated that no application for a writ of +_habeas corpus_ by a person in custody pursuant to a judgment of a State +court shall be granted until the applicant has exhausted the remedies +available in the courts of the States and that an applicant shall not be +deemed to have exhausted State remedies if he has the right under State +law to raise, by any available procedure, the question presented, 28 +U.S.C.A. Sec. 2254. This section codified Ex parte Hawk. + +[698] 334 U.S. 672 (1948). + +[699] 258 U.S. 254 (1922). + +[700] Ibid. 259. + +[701] Houston _v._ Moore, 5 Wheat. 1, 27-28 (1820). + +[702] Carriage Tax Act, 1 Stat. 373 (1794); License Tax on Wine and +Spirits Act, 1 Stat. 376 (1794). + +[703] 1 Stat. 302 (1793). + +[704] 1 Stat. 414 (1795). + +[705] 1 Stat. 577. + +[706] 1 Stat. 727 (1799). + +[707] 2 Stat. 453 (1808); 2 Stat. 473 (1808); 2 Stat. 499 (1808); 2 +Stat. 506 (1809); 2 Stat. 528 (1809); 2 Stat. 550 (1809); 2 Stat. 605 +(1810); 2 Stat. 707 (1812); 3 Stat. 88 (1813). + +[708] 3 Stat. 244. For the trial of federal offenses in State courts +_see_ Charles Warren, Federal Criminal Laws and State Courts, 38 Harv. +L. Rev. 545 (1925). + +[709] Charles Warren, Federal Criminal Laws and State Courts, 38 Harv. +L. Rev. 545, 577-581 (1925). + +[710] Justice Story dissenting in Houston _v._ Moore, 5 Wheat. 1, 69 +(1820); Justice McLean dissenting in United States _v._ Bailey, 9 Pet. +238, 259 (1835). + +[711] 16 Pet. 539, 615 (1842). + +[712] Robertson _v._ Baldwin, 165 U.S. 275 (1897); Dallemagne _v._ +Moisan, 197 U.S. 169 (1905). _See also_ Teal _v._ Felton, 12 How. 284 +(1852); Claflin _v._ Houseman, 93 U.S. 130 (1876). This last case +proceeds on the express assumption that the State and National +Governments are part of a single nation and implicity repudiates the +idea of separate sovereignties, as set out in Prigg _v._ Pennsylvania, +16 Pet. 539 (1842). + +[713] Mitchell Wendell, Relations between the Federal and State Courts +(New York, 1949), 278. + +[714] 35 Stat. 65 (1908). + +[715] Hoxie _v._ New York, N.H. & H.R. Co., 82 Conn. 352 (1909). + +[716] 223 U.S. 1, 59 (1912). + +[717] Brown _v._ Western Ry. Co. of Alabama, 338 U.S. 294 (1949). _See_ +Justice Frankfurter's dissent in this case for a summary of rulings to +the contrary. + +[718] 330 U.S. 386 (1947). + +[719] 56 Stat. 23, 33-34, 205 (c). + +[720] 330 U.S. 386, 389. + +[721] Ibid. 390. Justice Black refers to Prigg _v._ Pennsylvania, 16 +Pet. 539, 615 (1842), and other cases as broadly questioning the power +and duty of State courts to enforce federal criminal law. The cases +primarily relied upon in the opinion are Claflin _v._ Houseman, 93 U.S. +130 (1876); Mondou _v._ New York, N.H. & H.R. Co. (Second Employers' +Liability Cases), 223 U.S. 1 (1912). + +[722] _Cf._ Doyle _v._ Continental Ins. Co., 94 U.S. 535 (1877), (which +upheld a similar Wisconsin statute), and Security Mut. L. Ins. Co. _v._ +Prewitt, 202 U.S. 246 (1906); with Home Ins. Co. _v._ Morse, 20 Wall. +445 (1874); Barron _v._ Burnside, 121 U.S. 186 (1887); Southern P. Co. +_v._ Denton, 146 U.S. 202 (1892); Gerling _v._ Baltimore & O.R. Co., 151 +U.S. 673, 684 (1894); Barrow S.S. Co. _v._ Kane, 170 U.S. 100, 111 +(1898); Herndon _v._ Chicago, R.I. & P.R. Co., 218 U.S. 135 (1910); +Harrison _v._ St. Louis & S.F.R. Co., 232 U.S. 318 (1914); Donald _v._ +Philadelphia & R. Coal & I. Co., 241 U.S. 329 (1916). + +[723] 257 U.S. 529, 532 (1922). + +[724] 25 Edward III, Stat. 5, Ch. 2. _See also_ Story's Commentaries On +The Constitution Of The United States, Vol. 2, 529-540, (5th ed.). + +[725] 4 Cr. 75 (1807). + +[726] Ibid. 75, 126. + +[727] Ibid. 126. + +[728] Ibid. 127. + +[729] United States _v._ Burr, 4 Cr. 470, Appx. (1807). + +[730] There have been a number of lower court cases in some of which +convictions were obtained. As a result of the Whiskey Rebellion +convictions of treason were obtained on the basis of the ruling that +forcible resistance to the enforcement of the revenue laws was a +constructive levying of war. United States _v._ Vigol, 28 Fed. Cas. No. +16,621 (1795); United States _v._ Mitchell, 26 Fed. Cas. No. 15,788 +(1795). After conviction, the defendants were pardoned. _See also_ for +the same ruling in a different situation the Case of Fries, 9 Fed. Cas. +Nos. 5,126 (1799); 5,127 (1800). The defendant was again pardoned after +conviction. About a half century later participation in forcible +resistance to the Fugitive Slave Law was held not to be a constructive +levying of war. United States _v._ Hanway, 26 Fed. Cas. No. 15,299 +(1851). Although the United States Government regarded the activities of +the Confederate States as a levying of war, the President by Amnesty +Proclamation of December 25, 1868, pardoned all those who had +participated on the southern side in the Civil War. In applying the +Captured and Abandoned Property Act of 1863 (12 Stat. 820) in a civil +proceeding, the Court declared that the foundation of the Confederacy +was treason against the United States. Sprott _v._ United States, 20 +Wall. 459 (1875). _See also_ Hanauer _v._ Doane, 12 Wall. 342 (1871); +Thorington _v._ Smith, 8 Wall. 1 (1869); Young _v._ United States, 97 +U.S. 39 (1878). These four cases bring in the concept of adhering to the +enemy and giving him aid and comfort, but these are not criminal cases +and deal with attempts to recover property under the Captured and +Abandoned Property Act by persons who claimed that they had given no aid +or comfort to the enemy. These cases are not, therefore, an +interpretation of the Constitution. + +[731] 325 U.S. 1 (1945). + +[732] 89 Law. Ed. 1443-1444 (Argument of Counsel). + +[733] 325 U.S. 35. + +[734] Ibid. 34-35. Earlier Justice Jackson had declared that this phase +of treason consists of two elements: "adherence to the enemy; and +rendering him aid and comfort." A citizen, it was said, may take actions +"which do aid and comfort the enemy--* * *--but if there is no adherence +to the enemy in this, if there is no intent to betray, there is no +treason." Ibid. 29. Justice Jackson states erroneously that the +requirement of two witnesses to the same overt act was an original +invention of the Convention of 1787. Actually it comes from the British +Treason Trials Act of 1696 (7 and 8 Wm. III, C. 3). + +[735] 330 U.S. 631 (1947). + +[736] Ibid. 635-636. + +[737] 330 U.S. 631, 645-646. Justice Douglas cites no cases for these +propositions. Justice Murphy in a solitary dissent stated: "But the act +of providing shelter was of the type that might naturally arise out of +petitioner's relationship to his son, as the Court recognizes. By its +very nature, therefore, it is a non-treasonous act. That is true even +when the act is viewed in light of all the surrounding circumstances. +All that can be said is that the problem of whether it was motivated by +treasonous or non-treasonous factors is left in doubt. It is therefore +not an overt act of treason, regardless of how unlawful it might +otherwise be." Ibid. 649. The following summary, taken from the Appendix +to the Government's brief in Cramer _v._ United States, 325 U.S. 1 +(1945), and incorporated as note 38 in the Court's opinion (pp. 25-26), +contains all the cases in which, prior to Kawakita _v._ United States, +which is dealt with immediately below, construction of the treason +clause has been involved except grand jury charges and cases to which +interpretation of the clause was incidental: Whiskey Rebellion cases: +United States _v._ Vigol, 28 Fed. Cas. No. 16,621 (1795), United States +_v._ Mitchell, 26 Fed. Cas. No. 15,788 (1795) (constructive levying of +war, based on forcible resistance to execution of a statute; defendants +convicted and later pardoned). House tax case: Fries's Case, 9 Fed. Cas. +Nos. 5,126, 5,127 (1799, 1800) (constructive levying of war, based on +forcible resistance to execution of a statute; defendant convicted and +later pardoned). The Burr Conspiracy: Ex parte Bollman, 4 Cr. 75 (1807); +United States _v._ Burr, 25 Fed. Cas. Nos. 14,692a (1806); 14,693 (1807) +(conspiracy to levy war held not an overt act of levying war). United +States _v._ Lee, 26 Fed. Cas. No. 15,584 (1814) (sale of provisions a +sufficient overt act; acquittal). United States _v._ Hodges, 26 Fed. Cas +No. 15,374 (1815) (obtaining release of prisoners to the enemy is +adhering to the enemy, the act showing the intent; acquittal). United +States _v._ Hoxie, 26 Fed. Cas. No. 15,407 (1808) (attack of smugglers +on troops enforcing embargo is riot and not levying of war). United +States _v._ Pryor, 27 Fed. Cas. No. 16,096 (1814) (proceeding under flag +of truce with enemy detachment to help buy provisions is too remote an +act to establish adhering to the enemy). United States _v._ Hanway, 26 +Fed. Cas. No. 15,299 (1851) (forcible resistance to execution of +Fugitive Slave Law no levying of war). United States _v._ Greiner, 26 +Fed. Cas. No. 15,262 (1861) (participation as members of state militia +company in seizure of a federal fort is a levying of war). United States +_v._ Greathouse, 26 Fed. Cas. No. 15,254 (1863) (fitting out and sailing +a privateer is a levying of war; defendants convicted, later pardoned). +Cases of confiscation of property or refusal to enforce obligations +given in connection with sale of provisions to the Confederacy: Hanauer +_v._ Doane, 12 Wall. 342 (1871); Carlisle _v._ United States, 16 Wall. +147 (1873); Sprott _v._ United States, 20 Wall. 459, 371[Transcriber's +Note: "371" is incorrect--case occupies 20 Wall. 459-474 (1874)] (1874); +United States _v._ Athens Armory, 24 Fed. Cas. No. 14,473 (1868) (mixed +motive, involving commercial profit, does not bar finding of giving aid +and comfort to the enemy). United States _v._ Cathcart and United States +_v._ Parmenter, 25 Fed. Cas. No. 14,756 (1864). Chenoweth's Case +(unreported: _see_ Ex parte Vallandigham, 28 Fed. Cas. No. 16,816, at +888 (1863)) (indictment bad for alleging aiding and abetting rebels, +instead of directly charging levying of war). Case of Jefferson Davis, 7 +Fed. Cas. No. 3621a (1867-71) (argument that rebels whose government +achieved status of a recognized belligerent could not be held for +treason; Davis was not tried on the indictment); _see_ 2 Warren, Supreme +Court in United States History (1934 ed.) 485-487; Watson, Trial of +Jefferson Davis (1915) 25 Yale L.J. 669. Philippine insurrections: +United States _v._ Magtibay, 2 Phil. 703 (1903), United States _v._ De +Los Reyes, 3 Phil. 349 (1904) (mere possession of rebel commissions +insufficient overt acts; strict enforcement of two-witness requirement; +convictions reversed); United States _v._ Lagnason, 3 Phil. 472 (1904) +(armed effort to overthrow the government is levying war). United States +_v._ Fricke, 259 F. 673 (1919) (acts "indifferent" on their face held +sufficient overt acts). United States _v._ Robinson, 259 F. 685 (1919) +(dictum, acts harmless on their face are insufficient overt acts). +United States _v._ Werner, 247 F. 708 (1918), affirmed in 251 U.S. 466 +(1920) (act indifferent on its face may be sufficient overt act). United +States _v._ Haupt, 136 F. (2d) 661 (1943) (reversal of conviction on +strict application of two-witness requirement and other grounds; +inferentially approves acts harmless on their face as overt acts). +Stephan _v._ United States, 133 F. (2d) 87 (1943) (acts harmless on +their face may be sufficient overt acts; conviction affirmed but +sentence commuted). United States _v._ Cramer, 137 F. (2d) 888 (1943). + +[738] 343 U.S. 717. + +[739] Ibid. 732. For citations on the subject of dual nationality, _see_ +ibid. 723 note 2. Three dissenters asserted that Kawakita's conduct in +Japan clearly showed he was consistently demonstrating his allegiance to +Japan. "As a matter of law, he expatriated himself as well as that can +be done." Ibid. 746. + +[740] Ex parte Bollman, 4 Cr. 75 (1807). + +[741] United States _v._ Burr, 4 Cr. 470 (1807). + +[742] Cramer _v._ United States, 325 U.S. 1 (1945). + +[743] Haupt _v._ United States, 330 U.S. 631 (1947). + +[744] Ex parte Bollman, 4 Cr. 75, 126, 127 (1807). + +[745] 12 Stat. 589. This act incidentally did not designate rebellion as +treason. + +[746] Miller _v._ United States, 11 Wall. 268, 305 (1871). + +[747] Wallach _v._ Van Riswick, 92 U.S. 202, 213 (1876). + +[748] Lord de la Warre's Case, 11 Coke, 1 a. A number of cases dealt +with the effect of a full pardon by the President of owners of property +confiscated under this act. They held that a full pardon relieved the +owner of forfeiture as far as the Government was concerned, but did not +divide the interest acquired by third persons from the Government during +the lifetime of the offender. Illinois Central R. Co. _v._ Bosworth, 133 +U.S. 92, 101 (1890); Knote _v._ United States, 95 U.S. 149 (1877); +Wallach _v._ Van Riswick, 92 U.S. 202, 213 (1876); Armstrong's Foundry +_v._ United States, 6 Wall. 766, 769 (1868). There is no direct ruling +on the question of whether only citizens can commit treason. In Carlisle +_v._ United States, 16 Wall. 147, 154-155 (1873), the Court declared +that aliens while domiciled in this country owe a temporary allegiance +to it and may be punished for treason equally with a native-born citizen +in the absence of a treaty stipulation to the contrary. This case +involved the attempt of certain British subjects to recover claims for +property seized under the Captured and Abandoned Property Act, 12 Stat. +820 (1863) which provided for the recovery of property or its value in +suits in the Court of Claims by persons who had not rendered aid and +comfort to the enemy. Earlier in United States _v._ Wiltberger, 5 Wheat. +76, 97 (1820), which involved a conviction for manslaughter under an act +punishing manslaughter and treason on the high seas, Chief Justice +Marshall going beyond the necessities of the case stated that treason +"is a breach of allegiance, and can be committed by him only who owes +allegiance either perpetual or temporary." + + + + +ARTICLE IV + +STATES' RELATIONS + + +Section 1. Full faith and credit Page + Sources and effect of this provision 651 + Private international law 651 + Importance of the constitutional provision 652 + Acts of 1790 and 1804 652 + Force and effect of same 652 + Judgments: Primary concern of the provision 653 + Two principal classes of judgments 653 + Effect to be given in forum State 653 + Jurisdictional prerequisite 657 + Judgments in personam 658 + Jurisdictional question 659 + Service on foreign corporations 660 + Service on out-of-State owners of motor vehicles 660 + Judgments in rem 661 + Thompson _v._ Whitman 661 + Divorce decrees 662 + Jurisdictional prerequisite: Domicile 662 + Haddock _v._ Haddock 662 + Emergence of the domicile question 663 + Williams I and II 664 + Cases involving claims for alimony or property arising in + forum State 666 + Recent cases 668 + State of the law today: quaere 670 + Decrees awarding alimony, custody of children 670 + Collateral attack by child 671 + Decrees of other types 672 + Probate decrees 672 + Adoption decrees 673 + Garnishment decrees 673 + Fraud as a defense to suits on foreign judgments 674 + Penal judgments: types entitled to recognition 674 + Recognition of rights based upon Constitutions, statutes, + common law 675 + The early rule 675 + Development of the modern rule 675 + Transitory actions: Death statutes 676 + Actions upon contract: When governed by law of place of + making 677 + Stockholder-corporation relationship 677 + Fraternal benefit society--member relationship 678 + Insurance company, building and loan association--contractual + relationships 679 + Workmen's compensation statutes 681 + Development of section to date and possibilities 682 + Evaluation of results 682 + Scope of powers of Congress under section 683 + Full faith and credit in the federal courts 684 + Judgments of foreign States 685 +Section 2. Interstate comity 686 + Clause 1. The comity clause 686 + Sources 686 + Theories as to its purpose 686 + How implemented 688 + "Citizens of each State" 688 + Corporations 688 + "All privileges and immunities of citizens in the several + States" 689 + Discrimination in private rights 691 + Access to courts 691 + Taxation 692 + Clause 2. Fugitives from justice 693 + Duty to surrender 693 + "Fugitive from justice" 694 + Procedure of removal 695 + Trial of fugitive after removal 695 + Clause 3. Fugitives from labor 696 +Section 3. New States and government of territory, etc. 697 + Clause 1. Admission of States 697 + Doctrine of equality of the States 697 + Earlier scope of the doctrine 698 + Citizenship of inhabitants 699 + Judicial proceedings 699 + Property rights; United States _v._ Texas 700 + Rights conveyed to private persons before admission of + State 700 + Clause 2. Property and territory; regulatory powers of + Congress 701 + Property of the United States 701 + Methods of disposing 701 + Public lands 701 + Power of the States 702 + Power of Congress over territories 703 +Section 4. Obligations of United States to the States 704 + Republican form of government 704 + Protection against domestic violence 704 + Decline in importance of this guaranty 704 + + +STATE'S RELATIONS + + +Article IV + +Section 1. Full Faith and Credit shall be given in each State +to the public Acts, Records, and judicial Proceedings of every other +State. And the Congress may by general Laws prescribe the Manner in +which such Acts, Records and Proceedings shall be proved, and the Effect +thereof. + + +Sources and Effect of This Provision + + +PRIVATE INTERNATIONAL LAW + +The historical background of the above section is furnished by that +branch of private law which is variously termed "Private International +Law," "Conflict of Laws," "Comity." This comprises a body of rules, +based largely on the writings of jurists and judicial decisions, in +accordance with which the courts of one country or "jurisdiction" will +ordinarily, in the absence of a local policy to the contrary, extend +recognition and enforcement to rights claimed by individuals by virtue +of the laws or judicial decisions of another country or "jurisdiction." +Most frequently applied examples of these rules include the following: +the rule that a marriage which is good in the country where performed +(_lex loci_) is good elsewhere; likewise the rule that contracts are to +be interpreted in accordance with the laws of the country where entered +into (_lex loci contractus_) unless the parties clearly intended +otherwise; also the rule that immovables may be disposed of only in +accordance with the law of the country where situated (_lex rei +sitae_);[1] also the converse rule that chattels adhere to the person of +their owner and hence are disposable by him, even when located +elsewhere, in accordance with the law of his domicile (_lex domicilii_); +also the rule that regardless of where the cause arose, the courts of +any country where personal service can be got upon the defendant will +take jurisdiction of certain types of personal actions, hence termed +"transitory," and accord such remedy as the _lex fori_ affords. Still +other rules, of first importance in the present connection, determine +the recognition which the judgments of the courts of one country shall +receive from those of another country. + + +IMPORTANCE OF THE CONSTITUTIONAL PROVISION + +So even had the States of the Union remained in a mutual relationship of +entire independence, still private claims originating in one would often +have been assured recognition and enforcement in the others. The framers +of the Constitution felt, however, that the rules of private +international law should not be left as among the States altogether on a +basis of comity, and hence subject always to the overruling local policy +of the _lex fori_, but ought to be in some measure at least placed on +the higher plane of constitutional obligation. In fulfillment of this +intent the section now under consideration was inserted, and Congress +was empowered to enact supplementary and enforcing legislation. + + +THE ACTS OF 1790 AND 1804 + +Congressional legislation under the full faith and credit clause, so far +as it is pertinent to adjudication thereunder, is today embraced in +section 687 of Title 28 of the United States Code, which consolidates +the acts of May 26, 1790 and of March 27, 1804.[2] "The acts of the +legislature of any State or Territory, or of any country subject to the +jurisdiction of the United States, shall be authenticated by having the +seals of such State, Territory, or country affixed thereto. The records +and judicial proceedings of the courts of any State or Territory, or of +any such country, shall be proved or admitted in any other court within +the United States, by the attestation of the clerk, and the seal of the +court annexed, if there be a seal, together with a certificate of the +judge, chief justice, or presiding magistrate, that the said attestation +is in due form. And the said records and judicial proceedings, so +authenticated, shall have such faith and credit given to them in every +court within the United States as they have by law or usage in the +courts of the State from which they are taken." + + +FORCE AND EFFECT OF SAME + +Several points clearly emerge: (1) the word "effect" is construed as +referring to the effect of the records when authenticated, not to the +effect of the authentication; (2) the faith and credit which is required +by the rules of private international law is superseded as to "the +records and judicial proceedings" of each State by a rule of complete +obligation; as to these the local policy of the forum State can validly +have no application. On the other hand, (3) while the act of 1790 lays +down a rule for the authentication of the statutes of the several +States, it says nothing regarding their extraterritorial operation; and +(4) it is similarly silent regarding the common law of the several +States. These silences, however, have been repealed, in part, by +judicial decision. (_See_ pp. 675-682.) + + +Judgments: The Primary Concern of the Provision + + +TWO PRINCIPAL CLASSES OF JUDGMENTS + +Article IV, section 1, has had its principal operation in relation to +judgments. The cases fall into two groups: First, those in which the +judgment involved was offered as a basis of proceedings for its own +enforcement outside the State where rendered, as for example, when an +action for debt is brought in the courts of State B on a judgment for +money damages rendered in State A; secondly, those in which the judgment +involved was offered, in conformance with the principle of _res +judicata_, in defense in a new or "collateral" proceeding growing out of +the same facts as the original suit, as for example, when a decree of +divorce granted in State A is offered as barring a suit for divorce by +the other party to the marriage in the courts of State B. + + +EFFECT TO BE GIVEN IN FORUM STATE + +The English courts and the different State courts in the United States, +while recognizing "foreign judgments _in personam_" which were reducible +to money terms as affording a basis for actions in debt, originally +accorded them generally only the status of _prima facie_ evidence in +support thereof, so that the merits of the original controversy could +always be opened. When offered in defense, on the other hand, "foreign +judgments _in personam_" were ordinarily treated as conclusive, as +between parties, of the issues they purported to determine, provided +they had been rendered by a court of competent jurisdiction and were not +tainted with fraud. And judgments "_in rem_" rendered under the same +conditions were regarded as conclusive upon everybody on the theory +that, as stated by Chief Justice Marshall, "it is a proceeding _in rem_, +to which all the world are parties."[3] + +The pioneer case was Mills _v._ Duryee,[4] decided in 1813. In an action +brought in the circuit court of the District of Columbia--the equivalent +of a State court for this purpose--on a judgment from a New York court, +the defendant endeavored to reopen the whole question of the merits of +the original case by a plea of "_nil debet_." It was answered in the +words of the act of 1790 itself, that such records and proceedings were +entitled in each State to the same faith and credit as in the State of +origin; and that inasmuch as they were records of a court in the State +of origin, and so conclusive of the merits of the case there, they were +equally so in the forum State. The Court adopted the latter view, saying +that it had not been the intention of the Constitution merely to reenact +the common law--that is, the principles of private international law--as +to the reception of foreign judgments, but to amplify and fortify +these.[5] And in Hampton _v._ McConnell[6] some years later, Chief +Justice Marshall went even further, using language which seems to show +that he regarded the judgment of a State court as constitutionally +entitled to be accorded in the courts of sister States not simply the +faith and credit of conclusive evidence, but the validity of a final +judgment. + +When, however, the next important case arose, the Court has come under +new influences. This was McElmoyle _v._ Cohen,[7] decided in 1839, in +which the issue was whether a statute of limitations of the State of +Georgia, which applied only to judgments obtained in courts other than +those of Georgia, could constitutionally bar an action in Georgia on a +judgment rendered by a court of record of South Carolina. Declining to +follow Marshall's lead in Hampton _v._ McConnell, the Court held that +the Constitution was not intended "materially to interfere with the +essential attributes of the _lex fori_"; that the act of Congress only +established a rule of evidence, of conclusive evidence to be sure, but +still of evidence only; and that it was necessary, in order to carry +into effect in a State the judgment of a court of a sister State, to +institute a fresh action in the court of the former, in strict +compliance with its laws; and that consequently, when remedies were +sought in support of the rights accruing in another jurisdiction, they +were governed by the _lex fori_. In accord with this holding it has been +further held that foreign judgments enjoy, not the right of priority or +privilege or lien which they have in the State where they are +pronounced, but only that which the _lex fori_ gives them by its own +laws, in their character of foreign judgments.[8] A judgment of a State +court, in a cause within its jurisdiction, and against a defendant +lawfully summoned, or against lawfully attached property of an absent +defendant, is entitled to as much force and effect against the person +summoned or the property attached, when the question is presented for +decision in a court in another State, as it has in the State in which it +was rendered.[9] + +A judgment enforceable in the State where rendered must be given effect +in the other State, although the modes of procedure to enforce its +collection may not be the same in both States.[10] If the court has +acquired jurisdiction, the judgment is entitled to full faith and credit +though the court may not be able to enforce it by execution in the State +in which it was rendered, as where the defendant left the State after +service upon him and took all his property with him. While the want of +power to enforce a judgment or decree may afford a reason against +entertaining jurisdiction, it has nothing to do with the validity of a +judgment or decree when made.[11] In the words of the Court in a recent +case: "A cause of action on a judgment is different from that upon which +the judgment was entered. In a suit upon a money judgment for a civil +cause of action, the validity of the claim upon which it was founded is +not open to inquiry, whatever its genesis. Regardless of the nature of +the right which gave rise to it, the judgment is an obligation to pay +money in the nature of a debt upon a specialty. Recovery upon it can be +resisted only on the grounds that the court which rendered it was +without jurisdiction, * * * or that it has ceased to be obligatory +because of payment or other discharge * * * or that it is a cause of +action for which the State of the forum has not provided a court +* * *"[12] + +On the other hand, the clause is not violated when a judgment is +disregarded because it is not conclusive of the issues before a court of +the forum. Conversely, no greater effect can be given than is given in +the State where rendered. Thus an interlocutory judgment may not be +given the effect of a final judgment.[13] Likewise when a federal court +does not attempt to foreclose the State court from hearing all matters +of personal defense which landowners might plead, a State court may +refuse to accept the former's judgment as determinative of the +landowners' liabilities.[14] Similarly, though a confession of judgment +upon a note, with a warrant of attorney annexed, in favor of the holder, +is in conformity with a State law and usage as declared by the highest +court of the State in which the judgment is rendered, the judgment may +be collaterally impeached upon the ground that the party in whose behalf +it was rendered was not in fact the holder.[15] But a consent decree, +which under the law of the State has the same force and effect as a +decree _in invitum_, must be given the same effect in the courts of +another State.[16] + +One result produced by not following Hampton _v._ McConnell is that even +nowadays the Court is sometimes confronted with the contention that a +State need not provide a forum for some particular type of judgment from +a sister State, a claim which it has by no means met with clear-cut +principles. Thus in one case it held that a New York statute forbidding +foreign corporations doing a domestic business to sue on causes +originating outside the State was constitutionally applicable to prevent +such a corporation from suing on a judgment obtained in a sister +State.[17] But in a later case it ruled that a Mississippi statute +forbidding contracts in cotton futures could not validly close the +courts of the State to an action on a judgment obtained in a sister +State on such a contract, although the contract in question had been +entered into in the forum State and between its citizens.[18] Following +the later rather than the earlier precedent, subsequent cases[19] have +held: (1) that a State may adopt such system of courts and form of +remedy as it sees fit, but cannot, under the guise of merely affecting +the remedy, deny enforcement of claims otherwise within the protection +of the full faith and credit clause when its courts have general +jurisdiction of the subject matter and the parties;[20] (2) that, +accordingly, a forum State, which has a shorter period of limitations +than the State in which a judgment was granted and later reviewed, erred +in concluding that, whatever the effect of the revivor under the law of +the State of origin, it could refuse enforcement of the revived +judgment;[21] (3) that the courts of one State have no jurisdiction to +enjoin the enforcement of judgments at law obtained in another State, +when the same reasons assigned for granting the restraining order were +passed upon on a motion for new trial in the action at law and the +motion denied;[22] (4) that the constitutional mandate requires credit +to be given to a money judgment rendered in a civil cause of action in +another State, even though the forum State would have been under no duty +to entertain the suit on which the judgment was founded, inasmuch as a +State cannot, by the adoption of a particular rule of liability or of +procedure, exclude from its courts a suit on a judgment;[23] and (5) +that similarly, tort claimants in State A, who obtain a judgment against +a foreign insurance company, notwithstanding that, prior to judgment, +domiciliary State B appointed a liquidator for the company, vested +company assets in him, and ordered suits against the company stayed, are +entitled to have such judgment recognized in State B for purposes of +determining the amount of their claim, although not for determination of +what priority, if any, their claim should have.[24] Moreover, there is +no apparent reason why Congress, acting on the implications of +Marshall's words in Hampton _v._ McConnell, should not clothe extrastate +judgments of any particular type with the full status of domestic +judgments of the same type in the several States.[25] + + +The Jurisdictional Prerequisite + +The second great class of cases to arise under the full faith and credit +clause comprises those raising the question whether a judgment for which +extrastate operation was being sought, either as a basis of an action or +as a defense in one, has been rendered with jurisdiction. Records and +proceedings of courts wanting jurisdiction are not entitled to +credit.[26] The jurisdictional question arises both in connection with +judgments _in personam_ against nonresident defendants upon whom it is +alleged personal service was not obtained in the State of origin of the +judgment, and in relation to judgments _in rem_ against property or a +status alleged not to have been within the jurisdiction of the Court +which handed down the original decree.[27] + + +JUDGMENTS _IN PERSONAM_ + +The pioneer case is that of D'Arcy _v._ Ketchum,[28] decided in 1850. +The question presented was whether a judgment rendered by a New York +court under a statute which provided that, when joint debtors were sued +and one of them was brought into court on a process, a judgment in favor +of the plaintiff would entitle him to execute against all, and so must +be accorded full faith and credit in Louisiana when offered as the basis +of an action in debt against a resident of that State who had not been +served by process in the New York action. Pressed with the argument that +by "the immutable principles of justice" no man's rights should be +impaired without his being given an opportunity to defend them, the +Court ruled that, interpreted in the light of the principles of +"international law and comity" as they existed in 1790, the act of +Congress of that year did not reach the case.[29] The truth is that the +decision virtually amended the act, for had the Louisiana defendant +ventured to New York, he could, as the Constitution of the United States +then stood, have been subjected to the judgment of the same extent as +the New York defendant who had been personally served. Subsequently, +this disparity between the operation of a personal judgment in the home +State and a sister State has been eliminated, thanks to the adoption of +the Fourteenth Amendment. In divorce cases, however, it still persists +in some measure. (_See_ pp. 662-670.) + +In Pennoyer _v._ Neff,[30] decided in 1878, and so under the amendment, +the Court held that a judgment given in a case in which the State court +had endeavored to acquire jurisdiction of a nonresident defendant by an +attachment upon property of his within the State and constructive notice +to him, had not been rendered with jurisdiction and hence could not +afford the basis of an action in the court of another State against such +defendant, although it bound him so far as the property attached was +concerned, on account of the inherent right of a State to assist its own +citizens in obtaining satisfaction of their just claims. Nor would such +a judgment, the Court further indicated, be due process of law to any +greater extent in the State where rendered. In the words of a later +case, "an ordinary personal judgment for money, invalid for want of +service amounting to due process of law, is as ineffective in the State +as outside of it."[31] + + +THE JURISDICTIONAL QUESTION + +In short, when the subject matter of a suit is merely the determination +of the defendant's liability, it is necessary that it should appear from +the record that the defendant had been brought within the jurisdiction +of the court by personal service of process, or his voluntary +appearance, or that he had in some manner authorized the proceeding.[32] +The claim that a judgment was "not responsive to the pleadings" raises +the jurisdictional question;[33] but the fact that a nonresident +defendant was only temporarily in the State when he was served in the +original action does not vitiate the judgment rendered as the basis of +an action in his home State.[34] Also, a judgment rendered in the State +of his domicile against a defendant who, pursuant to the statute thereof +providing for the service of process on absent defendants, was +personally served in another State is entitled to full faith and +credit.[35] Also, when the matter of fact or law on which jurisdiction +depends was not litigated in the original suit, it is a matter to be +adjudicated in the suit founded upon the judgment.[36] + +Inasmuch as the principle of _res judicata_ applies only to proceedings +between the same parties and privies, the plea by defendant in an action +based on a judgment that he was no party or privy to the original +action raises the question of jurisdiction; and while a judgment against +a corporation in one State may validly bind a stockholder in another +State to the extent of the par value of his holdings,[37] an +administrator acting under a grant of administration in one State stands +in no sort of relation of priority to an administrator of the same +estate in another State.[38] But where a judgment of dismissal was +entered in a federal court in an action against one of two joint +tortfeasors, in a State in which such a judgment would constitute an +estoppel in another action in the same State against the other +tort-feasor, such judgment is not entitled to full faith and credit in +an action brought against the other tortfeasor in another State.[39] + + +SERVICE ON FOREIGN CORPORATIONS + +In 1856 the Court decided Lafayette Insurance Co. _v._ French et +al.,[40] a pioneer case in its general class. Here it was held that +"where a corporation chartered by the State of Indiana was allowed by a +law of Ohio to transact business in the latter State upon the condition +that service of process upon the agent of the corporation should be +considered as service upon the corporation itself, a judgment obtained +against the corporation by means of such process" ought to receive in +Indiana the same faith and credit as it was entitled to in Ohio.[41] +Later cases establish under both the Fourteenth Amendment and article +IV, section 1, that the cause of action must have arisen within the +State obtaining service in this way,[42] that service on an officer of a +corporation, not its resident agent and not present in the State in an +official capacity, will not confer jurisdiction over the +corporation;[43] that the question whether the corporation was actually +"doing business" in the State may be raised.[44] On the other hand, the +fact that the business was interstate is no objection.[45] + + +SERVICE ON OUT-OF-STATE OWNERS OF MOTOR VEHICLES + +By analogy to the above cases, it has been held that a State may require +nonresident owners of motor vehicles to designate an official within the +State as an agent upon whom process may be served in any legal +proceedings growing out of their operation of a motor vehicle within the +State;[46] and while these cases arose under the Fourteenth Amendment +alone, unquestionably a judgment validly obtained upon this species of +service could be enforced upon the owner of a car through the courts of +his home State. + + +JUDGMENTS _IN REM_ + +In sustaining the challenge to jurisdiction in cases involving judgments +_in personam_, the Court was in the main making only a somewhat more +extended application of recognized principles. In order to sustain the +same kind of challenge in cases involving judgments _in rem_ it has had +to make law outright. The leading case is Thompson _v._ Whitman,[47] +decided in 1874. Thompson, sheriff of Monmouth County, New Jersey, +acting under a New Jersey statute, had seized a sloop belonging to +Whitman, and by a proceeding _in rem_ had obtained its condemnation and +forfeiture in a local court. Later, Whitman, a citizen of New York, +brought an action for trespass against Thompson in the United States +Circuit Court for the Southern District of New York, and Thompson +answered by producing a record of the proceedings before the New Jersey +tribunal. Whitman thereupon set up the contention that the New Jersey +court had acted without jurisdiction inasmuch as the sloop which was the +subject matter of the proceedings had been seized outside the county to +which, by the statute under which it had acted, its jurisdiction was +confined. + + +Thompson _v._ Whitman + +As previously explained, the plea of lack of privity cannot be set up in +defense in a sister State against a judgment _in rem_. It is, on the +other hand, required of a proceeding _in rem_ that the _res_ be within +the court's jurisdiction, and this, it was urged, had not been the case +in Thompson _v._ Whitman. Could, then, the Court consider this challenge +with respect to a judgment which was offered not as the basis for an +action for enforcement through the courts of a sister State, but merely +as a defense in a collateral action? As the law stood in 1873, it +apparently could not.[48] All difficulties, nevertheless, to its +consideration of the challenge to jurisdiction in the case were brushed +aside by the Court. Whenever, it said, the record of a judgment rendered +in a State court is offered "in evidence" by either of the parties to an +action in another State, it may be contradicted as to the facts +necessary to sustain the former court's jurisdiction; "and if it be +shown that such facts did not exist, the record will be a nullity, +notwithstanding the claim that they did exist."[49] + + +Divorce Decrees + + +THE JURISDICTIONAL PREREQUISITE: DOMICILE + +This however, was only the beginning of the court's lawmaking in cases +_in rem_. The most important class of such cases is that in which the +respondent to a suit for divorce offers in defense an earlier decree +from the courts of a sister State. By the almost universally accepted +view prior to 1906 a proceeding in divorce was one against the marriage +status, i.e., _in rem_, and hence might be validly brought by either +party in any State where he or she was _bona fide_ domiciled;[50] and, +conversely, when the plaintiff did not have a _bona fide_ domicile in +the State, a court could not render a decree binding in other States +even if the nonresident defendant entered a personal appearance.[51] But +in 1906 the Court discovered, by a vote of five-to-four, a situation in +which a divorce proceeding is one _in personam_. + + +Haddock _v._ Haddock + +The case referred to is Haddock _v._ Haddock,[52] while the earlier rule +is illustrated by Atherton _v._ Atherton,[53] decided five years +previously. In the latter it was held, in the former denied, that a +divorce granted a husband without personal service upon the wife, who at +the time was residing in another State, was entitled to recognition +under the full faith and credit clause and the acts of Congress; the +difference between the cases consisting solely in the fact that in the +Atherton case the husband had driven the wife from their joint home by +his conduct, while in the Haddock case he had deserted her. The Court +which granted the divorce in Atherton _v._ Atherton was held to have had +jurisdiction of the marriage status, with the result that the proceeding +was one _in rem_ and hence required only service by publication upon the +respondent. Haddock's suit, on the contrary, was held to be as to the +wife _in personam_, and so to require personal service upon her, or her +voluntary appearance, neither of which had been had; although, +notwithstanding this, the decree in the latter case was held to be valid +as to the State where obtained on account of the State's inherent power +to determine the status of its own citizens. The upshot was a situation +in which a man and a woman, when both were in Connecticut, were +divorced; when both were in New York, were married; and when the one +was in Connecticut and the other in New York, the former was divorced +and the latter married. In Atherton _v._ Atherton the Court had earlier +acknowledged that "a husband without a wife, or a wife without a +husband, is unknown to the law." + + +EMERGENCE OF THE DOMICILE QUESTION + +The practical difficulties and distresses likely to result from such +anomalies were pointed out by critics of the decision at the time. In +point of fact, they have been largely avoided, because most of the State +courts have continued to give judicial recognition and full faith and +credit to one another's divorce proceedings on the basis of the older +idea that a divorce proceeding is one _in rem_, and that if the +applicant is _bona fide_ domiciled in the State the court has +jurisdiction in this respect. Moreover, until the second of the Williams +_v._ North Carolina cases[54] was decided in 1945, there had not been +manifested the slightest disposition to challenge judicially the power +of the States to determine what shall constitute domicile for divorce +purposes. Shortly prior thereto, in 1938, the Court in Davis _v._ +Davis[55] rejected contentions adverse to the validity of a Virginia +decree of which enforcement was sought in the District of Columbia. In +this case, a husband, after having obtained in the District a decree of +separation subject to payment of alimony, established years later a +residence in Virginia, and sued there for a divorce. Personally served +in the District, where she continued to reside, the wife filed a plea +denying that her husband was a resident of Virginia and averred that he +was guilty of a fraud on the court in seeking to establish a residence +for purposes of jurisdiction. In ruling that the Virginia decree, +granting to the husband an absolute divorce minus any alimony payment, +was enforceable in the District, the Court stated that in view of the +wife's failure, while in Virginia litigating her husband's status to +sue, to answer the husband's charges of wilful desertion, it would be +unreasonable to hold that the husband's domicile in Virginia was not +sufficient to entitle him to a divorce effective in the District. The +finding of the Virginia court on domicile and jurisdiction was declared +to bind the wife. Davis _v._ Davis is distinguishable from the Williams +_v._ North Carolina decisions in that in the former, determination of +the jurisdictional prerequisite of domicile was made in a contested +proceeding, while in the Williams cases it was not. + + +Williams I and II + +In the Williams I and Williams II cases, the husband of one marriage and +the wife of another left North Carolina, obtained six-week divorce +decrees in Nevada, married there, and resumed their residence in North +Carolina where both previously had been married and domiciled. +Prosecuted for bigamy, the defendants relied upon their Nevada decrees; +and won the preliminary round of this litigation; that is, Williams +I,[56] when a majority of the justices, overruling Haddock _v._ Haddock, +declared that in this case, the Court must assume that the petitioners +for divorce had a _bona fide_ domicile in Nevada, and not that their +Nevada domicile was a sham. "* * * each State, by virtue of its command +over its domiciliaries and its large interest in the institution of +marriage, can alter within its own borders the marriage status of the +spouse domiciled there, even though the other spouse is absent. There is +no constitutional barrier if the form and nature of substituted service +meet the requirements of due process." Accordingly, a decree granted by +Nevada to one, who, it is assumed, is at the time _bona fide_ domiciled +therein, is binding upon the courts of other States, including North +Carolina in which the marriage was performed and where the other party +to the marriage is still domiciled when the divorce was decreed. In view +of its assumptions, which it justified on the basis of an inadequate +record, the Court did not here pass upon the question whether North +Carolina had the power to refuse full faith and credit to a Nevada +decree because it was based on residence rather than domicile; or +because, contrary to the findings of the Nevada court, North Carolina +found that no _bona fide_ domicile had been acquired in Nevada.[57] + +Presaging what ruling the Court would make when it did get around to +passing upon the latter question, Justice Jackson, dissenting in +Williams I, protested that "this decision repeals the divorce laws of +all the States and substitutes the law of Nevada as to all marriages one +of the parties to which can afford a short trip there. * * * While a +State can no doubt set up its own standards of domicile as to its +internal concerns, I do not think it can require us to accept and in the +name of the Constitution impose them on other States. * * * The effect +of the Court's decision today--that we must give extraterritorial effect +to any judgment that a state honors for its own purposes--is to deprive +this Court of control over the operation of the full faith and credit +and the due process clauses of the Federal Constitution in cases of +contested jurisdiction and to vest it in the first State to pass on the +facts necessary to jurisdiction."[58] + +Notwithstanding that one of the deserted spouses had died since the +initial trial and that another had remarried, North Carolina, without +calling into question the status of the latter marriage began a new +prosecution for bigamy; and when the defendants appealed the conviction +resulting therefrom, the Supreme Court, in Williams II,[59] sustained +the adjudication of guilt as not denying full faith and credit to the +Nevada divorce decree. Reiterating the doctrine that jurisdiction to +grant divorce is founded on domicile,[60] a majority of the Court held +that a decree of divorce rendered in one State may be collaterally +impeached in another by proof that the court which rendered the decree +lacked jurisdiction (the parties not having been domiciled therein), +even though the record of proceedings in that court purports to show +jurisdiction.[61] + + +CASES INVOLVING CLAIMS FOR ALIMONY OR PROPERTY ARISING IN FORUM STATE + +In Esenwein _v._ Commonwealth,[62] decided on the same day as the second +Williams Case, the Supreme Court also sustained a Pennsylvania court in +its refusal to recognize an _ex parte_ Nevada decree on the ground that +the husband who obtained it never acquired a _bona fide_ domicile in the +latter State. In this instance, the husband and wife had separated in +Pennsylvania, where the wife was granted a support order; and after two +unsuccessful attempts to win a divorce in that State, the husband +departed for Nevada. Upon the receipt of a Nevada decree, the husband +thereafter established a residence in Ohio, and filed an action in +Pennsylvania for total relief from the support order. In a concurring +opinion, in which he was joined by Justices Black and Rutledge, Justice +Douglas stressed the "basic difference between the problem of marital +capacity and the problem of support," and stated that it was "not +apparent that the spouse who obtained the decree can defeat an action +for maintenance or support in another State by showing that he was +domiciled in the State which awarded him the divorce decree," unless the +other spouse appeared or was personally served. "The State where the +deserted wife is domiciled has a deep concern in the welfare of the +family deserted by the head of the household. If he is required to +support his former wife, he is not made a bigamist and the offspring of +his second marriage are not bastardized." Or as succinctly stated by +Justice Rutledge, "the jurisdictional foundation for a decree in one +State capable of foreclosing an action for maintenance or support in +another may be different from that required to alter the marital status +with extraterritorial effect."[63] + +Three years later, but on this occasion as spokesman for a majority of +the Court, Justice Douglas reiterated these views in the case of Estin +_v._ Estin.[64] Even though it acknowledged the validity of an _ex +parte_ Nevada decree obtained by a husband, New York was held not to +have denied full faith and credit to said decree when, subsequently +thereto, it granted the wife a judgment for arrears in alimony founded +upon a decree of separation previously awarded to her when both she and +her husband were domiciled in New York. The Nevada decree, issued to the +husband after he had resided there a year and upon constructive notice +to the wife in New York who entered no appearance, was held to be +effective only to change the marital status of both parties in all +States of the Union but ineffective on the issue of alimony. Divorce, in +other words, was viewed as being divisible; and Nevada, in the absence +of acquiring jurisdiction over the wife, was held incapable of +adjudicating the rights of the wife in the prior New York judgment +awarding her alimony. Accordingly, the Nevada decree could not prevent +New York from applying its own rule of law which, unlike that of +Pennsylvania,[65] does permit a support order to survive a divorce +decree.[66] Such a result was justified as accommodating the interests +of both New York and Nevada in the broken marriage by restricting each +State to matters of her dominant concern, the concern of New York being +that of protecting the abandoned wife against impoverishment. + + +RECENT CASES + +Fears registered by the dissenters in the second Williams Case that the +stability of all divorces might be undermined thereby and that +thereafter the court of each forum State, by its own independent +determination of domicile, might refuse recognition of foreign decrees +were temporarily set at rest by the holding in Sherrer _v._ Sherrer,[67] +wherein Massachusetts, a state of domiciliary origin, was required to +accord full faith and credit to a 90-day Florida decree which had been +contested by the husband. The latter, upon receiving notice by mail, +retained Florida counsel who entered a general appearance and denied all +allegations in the complaint, including the wife's residence. At the +hearing the husband, though present in person and by counsel, did not +offer evidence in rebuttal of the wife's proof of her Florida residence; +and when the Florida court ruled that she was a _bona fide_ resident, +the husband did not appeal. Inasmuch as the findings of the requisite +jurisdictional facts, unlike those in the Second Williams Case, were +made in proceedings in which the defendant appeared and participated, +the requirements of full faith and credit were held to bar him from +collaterally attacking such findings in a suit instituted by him in his +home State of Massachusetts, particularly in the absence of proof that +the divorce decree was subject to such collateral attack in a Florida +court. Having failed to take advantage of the opportunities afforded him +by his appearance in the Florida proceeding, the husband was thereafter +precluded from re-litigating in another State the issue of his wife's +domicile already passed upon by the Florida court. + +In Coe _v._ Coe,[68] embracing a similar set of facts, the Court applied +like reasoning to reach a similar result. Massachusetts again was +compelled to recognize the validity of a six-week Nevada decree obtained +by a husband who had left Massachusetts after a court of that State had +refused him a divorce and had granted his wife separate support. In the +Nevada proceeding, the wife appeared personally and by counsel filed a +cross-complaint for divorce, admitted the husband's residence, and +participated personally in the proceedings. After finding that it had +jurisdiction of the plaintiff, defendant, and the subject matter +involved, the Nevada court granted the wife a divorce, which was valid, +final, and not subject to collateral attack under Nevada law. The +husband married again, and on his return to Massachusetts, his ex-wife +petitioned the Massachusetts court to adjudge him in contempt for +failing to make payments for her separate support under the earlier +Massachusetts decree. Inasmuch as there was no intimation that under +Massachusetts law a decree of separate support would survive a divorce, +recognition of the Nevada decree as valid accordingly necessitated a +rejection of the ex-wife's contention. + +Appearing to revive Williams II, and significant for the social +consequences produced by the result decreed therein, is the recent case +of Rice _v._ Rice.[69] To determine the widowhood status of the party +litigants in relation to inheritance of property of a husband who had +deserted his first wife in Connecticut, had obtained an _ex parte_ +divorce in Nevada, and after remarriage, had died without ever returning +to Connecticut, the first wife, joining the second wife and the +administrator of his estate as defendants, petitioned a Connecticut +court for a declaratory judgment. After having placed upon the first +wife the burden of proving that the decedent had not acquired a _bona +fide_ domicile in Nevada, and after giving proper weight to the claims +of power by the Nevada court, the Connecticut court concluded that the +evidence sustained the contentions of the first wife; and in so doing, +it was upheld by the Supreme Court. The cases of Sherrer _v._ Sherrer, +334 U.S. 343 (1948) and Coe _v._ Coe, 334 U.S. 378 (1948), previously +discussed, were declared not to be in point; inasmuch as no personal +service was made upon the first wife, nor did she in any way participate +in the Nevada proceedings. She was not, therefore, precluded from +challenging the finding of the Nevada court that the decedent was, at +the time of the divorce, domiciled in that State.[70] + + +STATE OF THE LAW TODAY: QUAERE + +Upon summation one may speculate as to whether the doctrine of divisible +divorce, as developed by Justice Douglas in Estin _v._ Estin, 334 U.S. +541 (1948), has not become the prevailing standard for determining the +enforceability of foreign divorce decrees. If such be the case, it may +be tenable to assert that an _ex parte_ divorce, founded upon +acquisition of domicile by one spouse in the State which granted it, is +effective to destroy the marital status of both parties in the State of +domiciliary origin and probably in all other States and therefore to +preclude subsequent prosecutions for bigamy, but not to alter rights as +to property, alimony, or custody of children in the State of domiciliary +origin of a spouse who was neither served nor personally appeared. + + +DECREES AWARDING ALIMONY, CUSTODY OF CHILDREN + +Resulting as a by-product of divorce litigation are decrees for the +payment of alimony, judgments for accrued and unpaid instalments of +alimony, and judicial awards of the custody of children, all of which +necessitate application of the full faith and credit clause when +extrastate enforcement is sought for them. Thus a judgment in State A +for alimony in arrears and payable under a prior judgment of separation +which is not by its terms conditional, nor subject by the law of State A +to modification or recall, and on which execution was directed to issue, +is entitled to recognition in the forum State. Although an obligation +for accrued alimony could have been modified or set aside in State A +prior to its merger in the judgment, such a judgment, by the law of +State A, is not lacking in finality.[71] As to the finality of alimony +decrees in general, the Court had previously ruled that where such a +decree is rendered, payable in future instalments, the right to such +instalments becomes absolute and vested on becoming due, provided no +modification of the decree has been made prior to the maturity of the +instalments.[72] However, a judicial order requiring the payment of +arrearages in alimony, which exceeded the alimony previously decreed, is +invalid for want of due process, the respondent having been given no +opportunity to contest it.[73] "A judgment obtained in violation of +procedural due process," said Chief Justice Stone, "is not entitled to +full faith and credit when sued upon in another jurisdiction."[74] + +A recent example of a custody case was one involving a Florida divorce +decree which was granted _ex parte_ to a wife who had left her husband +in New York, where he was served by publication. The decree carried with +it an award of the exclusive custody of the child, whom the day before +the husband had secretly seized and brought back to New York. The Court +ruled that the decree was adequately honored by a New York court when, +in _habeas corpus_ proceedings, it gave the father rights of visitation +and custody of the child during stated periods, and exacted a surety +bond of the wife conditioned on her delivery of the child to the father +at the proper times,[75] it having not been "shown that the New York +court in modifying the Florida decree exceeded the limits permitted +under Florida law. There is therefore a failure of proof that the +Florida decree received less credit in New York than it had in Florida." + + +COLLATERAL ATTACK BY CHILD + +A Florida divorce decree was also at the bottom of another recent case +in which the daughter of a divorced man by his first wife, and his +legatee under his will, sought to attack his divorce in the New York +courts, and thereby indirectly his third marriage. The Court held that +inasmuch as the attack would not have been permitted in Florida under +the doctrine of _res judicata_, it was not permissible under the full +faith and credit clause in New York.[76] On the whole, it appears that +the principle of _res judicata_ is slowly winning out against the +principle of domicile. + + +Decrees of Other Types + + +PROBATE DECREES + +Many judgments, enforcement of which has given rise to litigation, +embrace decrees of courts of probate respecting the distribution of +estates. In order that a court have jurisdiction of such a proceeding, +the decedent must have been domiciled in the State, and the question +whether he was so domiciled at the time of his death may be raised in +the court of a sister State.[77] Thus, when a court of State A, in +probating a will and issuing letters, in a proceeding to which all +distributees were parties, expressly found that the testator's domicile +at the time of death was in State A, such adjudication of domicile was +held not to bind one subsequently appointed as domiciliary administrator +c.t.a. in State B, in which he was liable to be called upon to deal with +claims of local creditors and that of the State itself for taxes, he +having not been a party to the proceeding in State A. In this situation, +it was held, a court of State C, when disposing of local assets claimed +by both personal representatives, was free to determine domicile in +accordance with the law of State C.[78] Similarly, there is no such +relation of privity between an executor appointed in one State and an +administrator c.t.a. appointed in another State as will make a decree +against the latter binding upon the former.[79] On the other hand, +judicial proceedings in one State, under which inheritance taxes have +been paid and the administration upon the estate has been closed, are +denied full faith and credit by the action of a probate court in another +State in assuming jurisdiction and assessing inheritance taxes against +the beneficiaries of the estate, when under the law of the former State +the order of the probate court barring all creditors who had failed to +bring in their demand from any further claim against the executors was +binding upon all.[80] + +What is more important, however, is that the _res_ in such a proceeding, +that is, the estate, in order to entitle the judgment to recognition +under article IV, section 1, must have been located in the State or +legally attached to the person of the decedent. Such a judgment is +accordingly valid, generally speaking, to distribute the intangible +property of the decedent, though the evidences thereof were actually +located elsewhere.[81] This is not so, on the other hand, as to +tangibles and realty. In order that the judgment of a probate court +distributing these be entitled to recognition under the Constitution, +they must have been located in the State; as to tangibles and realty +outside the State, the decree of the probate court is entirely at the +mercy of the _lex rei sitae_.[82] So, the probate of a will in one +State, while conclusive therein, does not displace legal provisions +necessary to its validity as a will of real property in other +States.[83] + + +ADOPTION DECREES + +That a statute legitimizing children born out of wedlock does not +entitle them by the aid of the full faith and credit clause to share in +the property located in another State is not surprising, in view of the +general principle--to which, however, there are exceptions (_see_ pp. +675-682)--that statutes do not have extraterritorial operation.[84] For +the same reason adoption proceedings in one State are not denied full +faith and credit by the law of the sister State which excludes children +adopted by proceedings in other States from the right to inherit land +therein.[85] + + +GARNISHMENT DECREES + +A proceeding which combines some of the elements of both an _in rem_ and +an _in personam_ action is the proceeding in garnishment cases. Suppose +that A owes B and B owes C, and that the two former live in a different +State than C. A, while on a brief visit to C's State, is presented with +a writ attaching his debt to B and also a summons to appear in court on +a named day. The result of the proceedings thus instituted is that a +judgment is entered in C's favor against A to the amount of his +indebtedness to B. Subsequently A is sued by B in their home State, and +offers the judgment, which he has in the meantime paid, in defense. It +was argued in behalf of B that A's debt to him had a _situs_ in their +home State, and furthermore that C could not have sued B in this same +State without formally acquiring a domicile there. Both propositions +were, however, rejected by the Court, which held that the judgment in +the garnishment proceedings was entitled to full faith and credit as +against C's action.[86] + + +FRAUD AS A DEFENSE TO SUITS ON FOREIGN JUDGMENTS + +As to whether recognition of a State judgment can be refused by the +forum State on other than jurisdictional grounds, there are _dicta_ to +the effect that judgments, for which extraterritorial operation is +demanded under article IV, section I and acts of Congress, are +"impeachable for manifest fraud." But unless the fraud affected the +jurisdiction of the court, the vast weight of authority is against the +proposition. Also it is universally agreed that a judgment may not be +impeached for alleged error or irregularity,[87] or as contrary to the +public policy of the State where recognition is sought for it under the +full faith and credit clause.[88] Previously listed cases indicate, +however, that the Court has in fact permitted local policy to determine +the merits of a judgment under the pretext of regulating +jurisdiction.[89] Thus in one case, Cole _v._ Cunningham,[90] the Court +sustained a Massachusetts court in enjoining, in connection with +insolvency proceedings instituted in that State, a Massachusetts +creditor from continuing in New York courts an action which had been +commenced there before the insolvency suit was brought. This was done on +the theory that a party within the jurisdiction of a court may be +restrained from doing something in another jurisdiction opposed to +principles of equity, it having been shown that the creditor was aware +of the debtor's embarrassed condition when the New York action was +instituted. The injunction unquestionably denied full faith and credit +and commanded the assent of only five Justices. + + +PENAL JUDGMENTS: TYPES ENTITLED TO RECOGNITION + +Finally, the clause has been interpreted in the light of the +"incontrovertible maxim" that "the courts of no country execute the +penal laws of another."[91] In the leading case of Huntington _v._ +Attrill,[92] however, the Court so narrowly defined "penal" in this +connection as to make it substantially synonymous with "criminal," and +on this basis held a judgment which had been recovered under a State +statute making the officers of a corporation who signed and recorded a +false certificate of the amount of its capital stock liable for all of +its debts, to be entitled under article IV, section 1, to recognition +and enforcement in the courts of sister States. Nor, in general, is a +judgment for taxes to be denied full faith and credit in State and +federal courts merely because it is for taxes.[93] + + +Recognition of Rights Based Upon Constitutions, Statutes, Common Law + + +THE EARLY RULE + +As to the extrastate protection of rights which have not matured into +final judgments, the full faith and credit clause has never abolished +the general principle of the dominance of local policy over the rules of +comity.[94] This was stated by Justice Nelson in the Dred Scott case, as +follows: "No State, * * *, can enact laws to operate beyond its own +dominions, * * * Nations, from convenience and comity, * * *, recognizes +[sic] and administer the laws of other countries. But, of the nature, +extent, and utility, of them, respecting property, or the state and +condition of persons within her territories, each nation judges for +itself; * * *" He added that it was the same with the States of the +Union in relation to another. It followed that even though Dred had +become a free man in consequence of his having resided in the "free" +State of Illinois, he had nevertheless upon his return to Missouri, +which had the same power as Illinois to determine its local policy +respecting rights acquired extraterritorially, reverted to servitude +under the laws and judicial decisions of that State.[95] + + +DEVELOPMENT OF THE MODERN RULE + +In a case decided in 1887, however, the Court remarked: "Without doubt +the constitutional requirement, Art. IV, Sec. I, that 'full faith and +credit shall be given in each State to the public acts, records, and +judicial proceedings of every other State,' implies that the public acts +of every State shall be given the same effect by the courts of another +State that they have by law and usage at home."[96] And this +proposition was later held to extend to State constitutional +provisions.[97] More recently this doctrine has been stated in a very +mitigated form, the Court saying that where statute or policy of the +forum State is set up as a defense to a suit brought under the statute +of another State or territory, or where a foreign statute is set up as a +defense to a suit or proceedings under a local statute, the conflict is +to be resolved, not by giving automatic effect to the full faith and +credit clause and thus compelling courts of each State to subordinate +its own statutes to those of others, but by appraising the governmental +interest of each jurisdiction and deciding accordingly.[98] Obviously +this doctrine endows the Court with something akin to an arbitral +function in the decision of cases to which it is applied. + + +TRANSITORY ACTIONS: DEATH STATUTES + +The initial effort in this direction was made in connection with +transitory actions based on statute. Earlier, such actions had rested +upon the common law, which was fairly uniform throughout the States, so +that there was usually little discrepancy between the law under which +the plaintiff from another jurisdiction brought his action (_lex loci_) +and the law under which the defendant responded (_lex fori_). In the +late seventies, however, the States, abandoning the common law rule on +the subject, began passing laws which authorized the representatives of +a decedent whose death had resulted from injury to bring an action for +damages.[99] The question at once presented itself whether, if such an +action was brought in a State other than that in which the injury +occurred, it was governed by the statute under which it arose or by the +law of the forum State, which might be less favorable to the defendant. +Nor was it long before the same question presented itself with respect +to transitory action _ex contractu_, where the contract involved had +been made under laws peculiar to the State where made, and with those +laws in view. + + +ACTIONS UPON CONTRACT: WHEN GOVERNED BY LAW OF PLACE OF MAKING + +In Chicago and Alton R.R. _v._ Wiggins,[100] referred to above, the +Court, confronted with the latter form of the question, indicated its +clear opinion that in such situations it was the law under which the +contract was made, not the law of the forum State, which should govern. +Its utterance on the point was, however, not merely _obiter_; it was +based on an error, namely, the false supposition that the Constitution +gives "acts" the same extraterritorial operation as the act of 1790 does +"judicial records and proceedings." Notwithstanding which, this dictum +is today the basis of "the settled rule" that the defendant in a +transitory action is entitled to all the benefits resulting from +whatever material restrictions the statute under which plaintiff's right +of action originated sets thereto, except that courts of sister States +cannot be thus prevented from taking jurisdiction in such cases.[101] +However, a State court does not violate the full faith and credit clause +by mere error in construing the law upon which a transitory action from +another state depends;[102] nor is a court of the forum State guilty of +a disregard thereof when it entertains a suit based on a statute of +another State, albeit the statute in terms limits actions thereunder to +courts of the enacting State.[103] Moreover, in actions on contracts +made in other States, a State constitutionally may decline to enforce in +its courts, as contrary to its own policy, the laws of such States +relating to the right to add interest to the recovery as an incidental +item of damages.[104] + + +STOCKHOLDER--CORPORATION RELATIONSHIP + +Nor is it alone to defendants in transitory actions that the full faith +and credit clause is today a shield and a buckler. Some legal +relationships are so complex, the Court holds, that the law under which +they were formed ought always to govern them as long as they +persist.[105] One such relationship is that of a stockholder and his +corporation. Hence, if a question arises as to the liability of the +stockholders of a corporation, the courts of the forum State are +required by the full faith and credit clause to determine the question +in accordance with the Constitution, laws and judicial decisions of the +corporation's home State.[106] Illustrative applications of the latter +rule are to be found in the following cases. A New Jersey statute +forbidding an action at law to enforce a stockholder's liability arising +under the laws of another State, and providing that such liability may +be enforced only in equity, and that in such a case the corporation, its +legal representatives, all its creditors, and stockholders, should be +necessary parties, was held not to preclude an action at law in New +Jersey by the New York State superintendent of banks against 557 New +Jersey stockholders in an insolvent New York bank to recover assessments +made under the laws of New York.[107] Also, in a suit to enforce double +liability, brought in Rhode Island against a stockholder in a Kansas +trust company, the courts of Rhode Island were held to be obligated to +extend recognition to the statutes and court decisions of Kansas +whereunder it is established that a Kansas judgment recovered by a +creditor against the trust company is not only conclusive as to the +liability of the corporation but also an adjudication binding each +stockholder therein. The only defenses available to the stockholder are +those which he could make in a suit in Kansas.[108] + + +FRATERNAL BENEFIT SOCIETY--MEMBER RELATIONSHIP + +And the same principle applies to the relationship which is formed when +one takes out a policy in a "fraternal benefit society." Thus in Royal +Arcanum v. Green,[109] in which a fraternal insurance association +chartered under the laws of Massachusetts was being sued in the courts +of New York by a citizen of the latter State on a contract of insurance +made in that State, the Court held that the defendant company was +entitled under the full faith and credit clause to have the case +determined in accordance with the laws of Massachusetts and its own +constitution and by-laws as these had been construed by the +Massachusetts courts. + +Nor has the Court manifested lately any disposition to depart from this +rule. In Sovereign Camp _v._ Bolin[110] it declared that a State in +which a certificate of life membership of a foreign fraternal benefit +association is issued, which construes and enforces said certificate +according to its own law rather than according to the law of the State +in which the association is domiciled denies full faith and credit to +the association's charter embodied in the statutes of the domiciliary +State as interpreted by the latter's court. "The beneficiary certificate +was not a mere contract to be construed and enforced according to the +laws of the State where it was delivered. Entry into membership of an +incorporated beneficiary society is more than a contract; it is entering +into a complex and abiding relation and the rights of membership are +governed by the law of the State of incorporation. [Hence] another +State, wherein the certificate of membership was issued, cannot attach +to membership rights against the society which are refused by the law of +domicile." Consistently therewith, the Court also held, in Order of +Travelers _v._ Wolfe,[111] that South Dakota, in a suit brought therein +by an Ohio citizen against an Ohio benefit society, must give effect to +a provision of the constitution of the society prohibiting the bringing +of an action on a claim more than six months after disallowance by the +society, notwithstanding that South Dakota's period of limitation was +six years and that its own statutes voided contract stipulations +limiting the time within which rights may be enforced. Objecting to +these results, Justice Black dissented on the ground that fraternal +insurance companies are not entitled, either by the language of the +Constitution, or by the nature of their enterprise, to such unique +constitutional protection. + + +INSURANCE COMPANY, BUILDING AND LOAN ASSOCIATION--CONTRACTUAL +RELATIONSHIPS + +Whether or not distinguishable by nature of their enterprise, stock and +mutual insurance companies and mutual building and loan associations, +unlike fraternal benefit societies, have not been accorded the same +unique constitutional protection; and, with few exceptions,[112] have +had controversies arising out of their business relationships settled by +application of the law of the forum State. In National Mutual B. & L. +Asso. _v._ Brahan,[113] the principle applicable to these three forms of +business organization was stated as follows: Where a corporation has +become localized in a State and has accepted the laws of the State as a +condition of doing business there, it cannot abrogate those laws by +attempting to make contract stipulations, and there is no violation of +the full faith and credit clause in instructing a jury to find according +to local law notwithstanding a clause in a contract that it should be +construed according to the laws of another State. + +Thus, when a Mississippi borrower, having repaid a mortgage loan to a +New York building and loan association, sued in a Mississippi court to +recover, as usurious, certain charges collected by the association, the +usury law of Mississippi rather than that of New York was held to +control. In this case, the loan contract, which was negotiated in +Mississippi subject to approval by the New York office, did not +expressly state that it was governed by New York law.[114] Similarly, +when the New York Life Insurance Company, which had expressly stated in +its application and policy forms that they would be controlled by New +York law, was sued in Missouri on a policy sold to a resident thereof, +the court of that State was sustained in its application of Missouri +rather than New York law.[115] Also, in an action in a federal court in +Texas to collect the amount of a life insurance policy which had been +made in New York and later changed by instruments assigning beneficial +interest, it was held that questions: (1) whether the contract remained +one governed by the law of New York with respect to rights of assignees, +rather than by the law of Texas, (2) whether the public policy of Texas +permits recovery by one named beneficiary who has no beneficial interest +in the life of the insured, and (3) whether lack of insurable interest +becomes material when the insurer acknowledges liability and pays the +money into court, were questions of Texas law, to be decided according +to Texas decisions.[116] + +Consistent with the latter holdings are the following two involving +mutual insurance companies. In Pink _v._ A.A.A. Highway Express,[117] +the New York insurance commissioner, as a statutory liquidator of an +insolvent auto mutual company organized in New York sued resident +Georgia policyholders in a Georgia court to recover assessments alleged +to be due by virtue of their membership in it. The Supreme Court held +that, although by the law of the State of incorporation, policyholders +of a mutual insurance company become members thereof and as such liable +to pay assessments adjudged to be required in liquidation proceedings in +that State, the courts of another State are not required to enforce such +liability against local resident policyholders who did not appear and +were not personally served in the foreign liquidation proceedings; but +are free to decide according to local law the question whether, by +entering into the policies, residents became members of the company. +Again, in State Farm Ins. _v._ Duel,[118] the Court ruled that an +insurance company chartered in State A, which does not treat membership +fees as part of premiums, cannot plead denial of full faith and credit +when State B, as a condition of entry, requires the company to maintain +a reserve computed by including membership fees as well as premiums +received in all States. Were the company's contention accepted, "no +State," the Court observed, "could impose stricter financial standards +for foreign corporations doing business within its borders than were +imposed by the State of incorporation." It is not apparent, the Court +added, that State A has an interest superior to that of State B in the +financial soundness and stability of insurance companies doing business +in State B,--which is obviously more the language of arbitration than of +adjudication, as conventionally regarded. + + +WORKMEN'S COMPENSATION STATUTES + +Finally, the relationship of employer and employee, so far as the +obligations of the one and the rights of the other under workmen's +compensation acts are concerned, has been the subject of similar +treatment. In an earlier case,[119] the cause of action was an injury in +New Hampshire, resulting in death to a workman who had entered the +defendant company's employment in Vermont, the home State of both +parties. The Court held that the case was governed under the full faith +and credit clause by the Vermont workmen's compensation act, not that of +New Hampshire. The relationship, it said, "was created by the law of +Vermont, and so long as that relationship persisted its incidents were +properly subject to regulation there."[120] + +However, in an unacknowledged departure from this ruling the Court has +subsequently held that the full faith and credit clause did not preclude +California from disregarding a Massachusetts workmen's compensation +statute and applying its own conflicting act in the case of an injury +suffered by a Massachusetts employee of a Massachusetts employer while +in California in the course of his employment.[121] The earlier case was +distinguished as not having decided more than that a State statute, +applicable to employer and employee within the State, which provides +compensation if the employee is injured while temporarily in another +State, will be given full faith and credit in the latter when not +obnoxious to its policy. Inasmuch as the Court in the older decision is +reputed to have observed that reliance on the Vermont statute, as a +defense to the New Hampshire suit, was not obnoxious to the policy of +New Hampshire, it may be possible to reconcile these two cases by +stating that a foreign workmen's compensation statute will be recognized +when it is invoked as a defense but need not be applied when the +plaintiff endeavors to found his suit thereon. + +Later decisions involving the recognition of a foreign workmen's +compensation act include the following. In Magnolia Petroleum Co. _v._ +Hunt[122] the Court ruled that a Louisiana employee of a Louisiana +employer, who is injured on the job in Texas and who receives an award +under the Texas Act, which does not grant further recovery to an +employee who receives compensation under the laws of another State, +cannot obtain additional compensation under the Louisiana Act. However, +a compensation award by State A to a resident employee of a resident +employer injured on the job in State B will not preclude State B from +awarding added compensation under its own laws, when the compensation +statute of State A does not expressly exclude recovery under a law of +the State in which the injury occurred and when the State A award +incorporated a private settlement contract wherein the employee reserved +his rights in State B.[123] Also, the District of Columbia workmen's +compensation act, which expressly covers an employee of the District +employer, "irrespective of the place where the injury occurs," +constitutionally may be applied, in the case of injury resulting in +death, to a District resident, employed by a District employer, who was +assigned to a job at Quantico, Virginia, and who, for three years prior +to his death in Virginia, has commuted to the job site from his house in +the District.[124] + + +Development of Section to Date and Possibilities + + +EVALUATION OF RESULTS + +Thus the Court, from according an extrastate operation to statutes and +judicial decisions in favor of defendants in transitory actions, +proceeded next to confer the same protection upon certain classes of +defendants in local actions in which the plaintiff's claim was the +outgrowth of a relationship formed extraterritorially. But can the Court +stop at this point? If it is true, as Chief Justice Marshall once +remarked, that "the Constitution was not made for the benefit of +plaintiffs alone," so also it is true that it was not made for the +benefit of defendants alone. The day may come when the Court will +approach the question of the relation of the full faith and credit +clause to the extrastate operation of laws from the same angle as it +today views the broader question of the scope of State legislative +power. When and if this day arrives, State statutes and judicial +decisions will be given such extraterritorial operation as seems +reasonable to the Court to give them. In short, the rule of the +dominance of local policy of the forum State will be superseded by that +of judicial review.[125] + +The question arises whether the application to date, not by the Court +alone but by Congress and the Court, of article IV, section 1, can be +said to have met the expectations of its framers. In the light of some +things said at the time of the framing of the clause this may be +doubted. The protest was raised against the clause that in vesting +Congress with power to declare the effect State laws should have outside +the enacting State, it enabled the new government to usurp the powers of +the States; but the objection went unheeded. The main concern of the +Convention, undoubtedly, was to render the judgments of the State courts +in civil cases effective throughout the Union. Yet even this object has +been by no means completely realized, owing to the doctrine of the Court +that before a judgment of a State court can be enforced in a sister +State, a new suit must be brought on it in the courts of the latter; and +the further doctrine that with respect to such a suit, the judgment sued +on is only evidence; the logical deduction from which proposition is +that the sister State is under no constitutional compulsion to give it a +forum. These doctrines were first clearly stated in the McElmoyle Case +and flowed directly from the new States' rights premises of the Court; +but they are no longer in harmony with the prevailing spirit of +constitutional construction nor with the needs of the times. Also, the +clause seems always to have been interpreted on the basis of the +assumption that the term "judicial proceedings" refers only to final +judgments and does not include intermediate processes and writs; but the +assumption would seem to be groundless, and if it is, then Congress has +the power under the clause to provide for the service and execution +throughout the United States of the judicial processes of the several +States. + + +SCOPE OF POWERS OF CONGRESS UNDER SECTION + +Under the present system, suit has ordinarily to be brought where the +defendant, the alleged wrongdoer, resides, which means generally where +no part of the transaction giving rise to the action took place. What +could be more irrational? "Granted that no state can of its own volition +make its process run beyond its borders * * * is it unreasonable that +the United States should by federal action be made a unit in the manner +suggested?"[126] + +Indeed, there are few clauses of the Constitution, the merely literal +possibilities of which have been so little developed as the full faith +and credit clause. Congress has the power under the clause to decree the +effect that the statutes of one State shall have in other States. This +being so, it does not seem extravagant to argue that Congress may under +the clause describe a certain type of divorce and say that it shall be +granted recognition throughout the Union, and that no other kind shall. +Or to speak in more general terms, Congress has under the clause power +to enact standards whereby uniformity of State legislation may be +secured as to almost any matter in connection with which interstate +recognition of private rights would be useful and valuable. + + +FULL FAITH AND CREDIT IN THE FEDERAL COURTS + +As we saw earlier, the legislation of Congress comprised in section 905 +of the Revised Statutes lays down a rule not merely for the recognition +of the records and judicial proceedings of State courts in the courts of +sister States, but for their recognition in "every court of the United +States," and it further lays down a like rule for the records and +proceedings of the courts "of any territory or any country subject to +the jurisdiction of the United States." Thus the courts of the United +States are bound to give to the judgments of the State courts the same +faith and credit that the courts of one State are bound to give to the +judgments of the courts of her sister States.[127] So, where suits to +enforce the laws of one State are entertained in courts of another on +principles of comity, federal district courts sitting in that State may +entertain them, and should, if they do not infringe federal law or +policy.[128] However, the refusal of a territorial court in Hawaii, +having jurisdiction of the action, which was on a policy issued by a New +York insurance company, to admit evidence that an administrator had been +appointed and a suit brought by him on a bond in the federal court in +New York wherein no judgment had been entered, did not violate this +clause.[129] + +The power to prescribe what effect shall be given to the judicial +proceedings of the courts of the United States is conferred by other +provisions of the Constitution, such as those which declare the extent +of the judicial power of the United States, which authorize all +legislation necessary and proper for executing the powers vested by the +Constitution in the Government of the United States, and which declare +the supremacy of the authority of the National Government within the +limits of the Constitution. As part of its general authority, the power +to give effect to the judgment of its courts is coextensive with its +territorial jurisdiction.[130] + + +JUDGMENTS OF FOREIGN STATES + +Doubtless Congress might also by virtue of its powers in the field of +foreign relations lay down a mandatory rule regarding recognition of +foreign judgments in every court of the United States. At present the +duty to recognize judgments even in national courts rests only on comity +and is qualified, in the judgment of the Supreme Court, by a strict rule +of parity.[131] + + +Section 2. The Citizens of each State shall be entitled to all +Privileges and Immunities of Citizens in the several States. + + +The Comity Clause + + +SOURCES + +The community of rights among the citizens of the several States +guaranteed by this article is traceable to colonial days. It had its +origin in the fact that the colonists were all subjects of the same +monarch.[132] After the Declaration of Independence was signed, the +question arose as to how to reconcile the advantages of a common +citizenship with a dispersed sovereignty. One element of the solution is +to be seen in the Fourth of the Articles of Confederation, which read as +follows: "The better to secure and perpetuate mutual friendship and +intercourse among the people of the different States in this Union, the +free inhabitants of each of these States, paupers, vagabonds and +fugitives from justice excepted, shall be entitled to all privileges and +immunities of free citizens in the several States; and the people of +each State shall have free ingress and regress to and from any other +State, and shall enjoy therein all the privileges of trade and commerce, +subject to the same duties, impositions and restrictions as the +inhabitants thereof respectively * * *" Madison, writing in _The +Federalist_,[133] adverted to the confusion engendered by use of the +different terms "free inhabitants, free citizens," and "people" and by +"superadding to 'all privileges and immunities of free citizens--all the +privileges of trade and commerce,' * * *" The more concise phraseology +of article IV, however, did little to dispel the uncertainty. In the +Slaughter-House Cases,[134] Justice Miller suggested that it was to be +regarded as the compendious equivalent of the earlier version: "There +can be but little question that the purpose of both these provisions is +the same, and that the privileges and immunities intended are the same +in each. In the Articles of the Confederation we have some of these +specifically mentioned, and enough perhaps to give some general ideal of +the class of civil rights meant by the phrase."[135] + + +THEORIES AS TO ITS PURPOSE + +First and last, at least four theories have been proffered regarding the +purpose of this clause. The first is that the clause is a guaranty to +the citizens of the different States of equal treatment by Congress--is, +in other words, a species of equal protection clause binding on the +National Government. The second is that the clause is a guaranty to the +citizens of each State of all the privileges and immunities of +citizenship that are enjoyed in any State by the citizens thereof,--a +view which, if it had been accepted at the outset, might well have +endowed the Supreme Court with a reviewing power over restrictive State +legislation as broad as that which it later came to exercise under the +Fourteenth Amendment. The third theory of the clause is that it +guarantees to the citizen of any State the rights which he enjoys as +such even when sojourning in another State, that is to say, enables him +to carry with him his rights of State citizenship throughout the Union, +without embarrassment by State lines. Finally, the clause is interpreted +as merely forbidding any State to discriminate against citizens of other +States in favor of its own. Though the first theory received some +recognition in the Dred Scott Case,[136] particularly in the opinion of +Justice Catron,[137] it is today obsolete. The second was specifically +rejected in McKane _v._ Durston;[138] the third, in Detroit _v._ +Osborne.[139] The fourth has become a settled doctrine of Constitutional +Law.[140] In the words of Justice Miller in the Slaughter-House +Cases,[141] the sole purpose of the comity clause was "to declare to the +several States, that whatever these rights, as you grant or establish +them to your own citizens, or as you limit or qualify, or impose +restrictions on their exercise, the same, neither more nor less, shall +be the measure of the rights of citizens of other States within your +jurisdiction."[142] It follows that this section has no application in +controversies between a State and its own citizens.[143] It is deemed to +be infringed by a hostile discrimination against all nonresidents[144] +but not by such differences of treatment between residents and +nonresidents as the nature of the subject matter makes reasonable.[145] + + +HOW IMPLEMENTED + +This clause is self-executory, that is to say, its enforcement is +dependent upon the judicial process. It does not authorize penal +legislation by Congress. Federal statutes prohibiting conspiracies to +deprive any person of rights or privileges secured by State laws,[146] +or punishing infractions by individuals of the right of citizens to +reside peacefully in the several States, and to have free ingress into +and egress from such States,[147] have been held void. + + +CITIZENS OF EACH STATE + +A question much mooted before the Civil War was whether the term could +be held to include free Negroes. In the Dred Scott Case,[148] the Court +answered it in the negative. "Citizens of each State," Chief Justice +Taney argued, meant citizens of the United States as understood at the +time the Constitution was adopted, and Negroes were not then regarded as +capable of citizenship. The only category of national citizenship added +under the Constitution comprised aliens, naturalized in accordance with +acts of Congress.[149] In dissent, Justice Curtis not only denied the +Chief Justice's assertion that there were no Negro citizens of States in +1789, but further argued that while Congress alone could determine what +classes of aliens should be naturalized, the several States retained the +right to extend citizenship to classes of persons born within their +borders who had not previously enjoyed citizenship, and that one upon +whom State citizenship was thus conferred became a citizen of the State +in the full sense of the Constitution.[150] So far as persons born in +the United States, and subject to the jurisdiction thereof are +concerned, the question was put at rest by the Fourteenth Amendment. + + +CORPORATIONS + +At a comparatively early date the claim was made that a corporation +chartered by a State and consisting of its citizens was entitled to the +benefits of the comity clause in the transaction of business in other +States. It was argued that the Court was bound to look beyond the act of +incorporation and see who were the incorporators. If it found these to +consist solely of citizens of the incorporating State, it was bound to +permit them through the agency of the corporation, to exercise in other +States such privileges and immunities as the citizens thereof enjoyed. +In Bank of Augusta _v._ Earle[151] this view was rejected. The Supreme +Court held that the comity clause was never intended "to give to the +citizens of each State the privileges of citizens in the several +States, and at the same time to exempt them from the liabilities which +the exercise of such privileges would bring upon individuals who were +citizens of the State. This would be to give the citizens of other +States far higher and greater privileges than are enjoyed by the +citizens of the State itself."[152] A similar result was reached in Paul +_v._ Virginia,[153] but by a different course of reasoning. The Court +there held that a corporation--in this instance, an insurance +company--was "the mere creation of local law" and could "have no legal +existence beyond the limits of the sovereignty"[154] which created it; +even recognition of its existence by other States rested exclusively in +their discretion. More recent cases have held that this discretion is +qualified by other provisions of the Constitution, notably the commerce +clause and the Fourteenth Amendment.[155] By reason of its similarity to +the corporate form of organization, a Massachusetts trust has been +denied the protection of this clause.[156] + + +ALL PRIVILEGES AND IMMUNITIES OF CITIZENS IN THE SEVERAL STATES + +The classical judicial exposition of the meaning of this phrase is that +of Justice Washington in Corfield _v._ Coryell,[157] which was decided +by him on circuit in 1823. The question at issue was the validity of a +New Jersey statute which prohibited "any person who is not, at the time, +an actual inhabitant and resident in this State" from raking or +gathering "clams, oysters or shells" in any of the waters of the State, +on board any vessel "not wholly owned by some person, inhabitant of and +actually residing in this State. * * * The inquiry is," wrote Justice +Washington, "what are the privileges and immunities of citizens in the +several States? We feel no hesitation in confining these expressions to +those privileges and immunities which are, in their nature, fundamental; +which belong, of right, to the citizens of all free governments; and +which have, at all times, been enjoyed by the citizens of the several +States which compose this Union, * * *"[158] He specified the following +rights as answering this description: "Protection by the Government; the +enjoyment of life and liberty, with the right to acquire and possess +property of every kind, and to pursue and obtain happiness and safety; +subject nevertheless to such restraints as the Government may justly +prescribe for the general good of the whole. The right of a citizen of +one State to pass through, or to reside in any other State, for purposes +of trade, agriculture, professional pursuits, or otherwise; to claim the +benefit of the writ of _habeas corpus_; to institute and maintain +actions of any kind in the courts of the State; to take, hold and +dispose of property, either real or personal; and an exemption from +higher taxes or impositions than are paid by the other citizens of the +State; * * *"[159] + +After thus defining broadly the private and personal rights which were +protected, Justice Washington went on to distinguish them from the right +to a share in the public patrimony of the State. "* * * we cannot +accede" the opinion proceeds, "to the proposition * * * that, under this +provision of the Constitution, the citizens of the several States are +permitted to participate in all the rights which belong exclusively to +the citizens of any particular State, merely upon the ground that they +are enjoyed by those citizens; much less, that in regulating the use of +the common property of the citizens of such State, the legislature is +bound to extend to the citizens of all other States the same advantages +as are secured to their own citizens."[160] The right of a State to the +fisheries within its borders he then held to be in the nature of a +property right, held by the State "for the use of the citizens thereof;" +the State was under no obligation to grant "co-tenancy in the common +property of the State, to the citizens of all the other States."[161] +The precise holding of this case was confirmed in McCready _v._ +Virginia;[162] the logic of Geer _v._ Connecticut[163] extended the same +rule to wild game, and Hudson County Water Co. _v._ McCarter[164] +applied it to the running water of a State. In Toomer _v._ Witsell,[165] +however, the Court refused to apply this rule to free-swimming fish +caught in the three-mile belt off the coast of South Carolina. It held +instead that "commercial shrimping in the marginal sea, like other +common callings, is within the purview of the privileges and immunities +clause" and that a heavily discriminatory license fee exacted from +nonresidents was unconstitutional.[166] Universal practice has also +established another exception to which the Court gave approval by a +dictum in Blake _v._ McClung:[167] "A State may, by rule uniform in its +operation as to citizens of the several States, require residence within +its limits for a given time before a citizen of another State who +becomes a resident thereof shall exercise the right of suffrage or +become eligible to office."[168] + + +DISCRIMINATION IN PRIVATE RIGHTS + +Not only has judicial construction of the comity clause excluded some +privileges of a public nature from its protection; the courts have also +established the proposition that the purely private and personal rights +to which the clause admittedly extends are not in all cases beyond the +reach of State legislation which differentiates citizens and +noncitizens. Broadly speaking, these rights are held subject to the +reasonable exercise by a State of its police power, and the Court has +recognized that there are cases in which discrimination against +nonresidents may be reasonably resorted to by a State in aid of its own +public health, safety and welfare. To that end a State may restrict the +right to sell insurance to persons who have resided within the State for +a prescribed period of time.[169] It may require a nonresident who does +business within the State[170] or who uses the highways of the +State[171] to consent, expressly or by implication, to service of +process on an agent within the State. Without violating this section, a +State may limit the dower rights of a nonresident to lands of which the +husband died seized while giving a resident dower in all lands held +during the marriage,[172] or may leave the rights of nonresident married +persons in respect of property within the State to be governed by the +laws of their domicile, rather than by the laws it promulgates for its +own residents.[173] But a State may not give a preference to resident +creditors in the administration of the property of an insolvent foreign +corporation.[174] An act of the Confederate Government, enforced by a +State, to sequester a debt owed by one of its residents to a citizen of +another State was held to be a flagrant violation of this clause.[175] + + +ACCESS TO COURTS + +The right to sue and defend in the courts is one of the highest and most +essential privileges of citizenship, and must be allowed by each State +to the citizens of all other States to the same extent that it is +allowed to its own citizens.[176] The constitutional requirement is +satisfied if the nonresident is given access to the courts of the State +upon terms which, in themselves, are reasonable and adequate for the +enforcing of any rights he may have, even though they may not be +technically the same as those accorded to resident citizens.[177] The +Supreme Court upheld a State statute of limitations which prevented a +nonresident from suing in the State's courts after expiration of the +time for suit in the place where the cause of action arose,[178] and +another such statute which suspended its operation as to resident +plaintiff, but not as to nonresidents, during the period of the +defendant's absence from the State.[179] A State law making it +discretionary with the courts to entertain an action by a nonresident of +the State against a foreign corporation doing business in the State, was +sustained since it was applicable alike to citizens and noncitizens +residing out of the State.[180] A statute permitting a suit in the +courts of the State for wrongful death occurring outside the State, only +if the decedent was a resident of the State, was sustained, because it +operated equally upon representatives of the deceased whether citizens +or noncitizens.[181] + + +TAXATION + +A State may not, in the exercise of its taxing power, substantially +discriminate between residents and nonresidents. A leading case is Ward +_v._ Maryland,[182] in which the Court set aside a State law which +imposed special taxes upon nonresidents for the privilege of selling +within the State goods which were produced outside it. Likewise, a +Tennessee statute which made the amount of the annual license tax +exacted for the privilege of doing railway construction work dependent +upon whether the person taxed had his chief office within or without the +State, was found to be incompatible with the comity clause.[183] In +Travis _v._ Yale and Towne Mfg. Co.,[184] the Court, while sustaining +the right of a State to tax income accruing within its borders to +nonresidents,[185] held the particular tax void because it denied to +nonresidents exemptions which were allowed to residents. The "terms +'resident' and 'citizen' are not synonymous," wrote Justice Pitney, +"* * * but a general taxing scheme * * * if it discriminates against all +nonresidents, has the necessary effect of including in the +discrimination those who are citizens of other States; * * *"[186] +Where there was no discrimination between citizens and noncitizens, a +State statute taxing the business of hiring persons within the State for +labor outside the State, was sustained.[187] This section of the +Constitution does not prevent a territorial government, exercising +powers delegated by Congress, from imposing a discriminatory license tax +on nonresident fishermen operating within its waters.[188] + +However, what at first glance may appear to be a discrimination may turn +out not to be when the entire system of taxation prevailing in the +enacting State is considered. On the basis of over-all fairness, the +Court sustained a Connecticut statute which required nonresident +stockholders to pay a State tax measured by the full market value of +their stock, while resident stockholders were subject to local taxation +on the market value of that stock reduced by the value of the real +estate owned by the corporation.[189] Occasional or accidental +inequality to a nonresident taxpayer are not sufficient to defeat a +scheme of taxation whose operation is generally equitable.[190] In an +early case the Court brushed aside as frivolous the contention that a +State violated this clause by subjecting one of its own citizens to a +property tax on a debt due from a nonresident secured by real estate +situated where the debtor resided.[191] + + +Clause 2. A person charged in any State With Treason, Felony, or other +Crime, who shall flee from Justice, and be found in another State, shall +on Demand of the executive Authority of the State from which he fled, be +delivered up, to be removed to the State having Jurisdiction of the +Crime. + + +Fugitives From Justice + + +DUTY TO SURRENDER + +Although this provision is not in its nature self-executing, and there +is no express grant to Congress of power to carry it into effect, that +body passed a law shortly after the Constitution was adopted, imposing +upon the Governor of each State the duty to deliver up fugitives from +justice found in such State.[192] The Supreme Court has accepted this +contemporaneous construction as establishing the validity of this +legislation.[193] The duty to surrender is not absolute and unqualified; +if the laws of the State to which the fugitive has fled have been put in +force against him, and he is imprisoned there, the demands of those laws +may be satisfied before the duty of obedience to the requisition +arises.[194] In Kentucky _v._ Dennison[195] the Court held, moreover, +that this statute was merely declaratory of a moral duty; that the +Federal Government "has no power to impose on a State officer, as such, +any duty whatever, and compel him to perform it; * * *"[196] and +consequently that a federal court could not issue a mandamus to compel +the governor of one State to surrender a fugitive to another. In 1934 +Congress plugged the loophole exposed by this decision by making it +unlawful for any person to flee from one State to another for the +purpose of avoiding prosecution in certain cases.[197] + + +FUGITIVE FROM JUSTICE + +To be a fugitive from justice within the meaning of this clause, it is +not necessary that the party charged should have left the State after an +indictment found, or for the purpose of avoiding a prosecution +anticipated or begun. It is sufficient that the accused, having +committed a crime within one State and having left the jurisdiction +before being subjected to criminal process, is found within another +State.[198] The motive which induced the departure is immaterial.[199] +Even if he were brought involuntarily into the State where found by +requisition from another State, he may be surrendered to a third State +upon an extradition warrant.[200] A person indicted a second time for +the same offense is nonetheless a fugitive from justice by reason of the +fact that after dismissal of the first indictment, on which he was +originally indicted, he left the State with the knowledge of, or without +objection by, State authorities.[201] But a defendant cannot be +extradited if he was only constructively present in the demanding State +at the time of the commission of the crime charged.[202] For the purpose +of determining who is a fugitive from justice, the words "treason, +felony or other crime" embrace every act forbidden and made punishable +by a law of a State,[203] including misdemeanors.[204] + + +PROCEDURE FOR REMOVAL + +Only after a person has been charged with crime in the regular course of +judicial proceedings is the governor of a State entitled to make demand +for his return from another State.[205] The person demanded has no +constitutional right to be heard before the governor of the State in +which he is found on the question whether he has been substantially +charged with crime and is a fugitive from justice.[206] The +constitutionally required surrender is not to be interfered with by +_habeas corpus_ upon speculations as to what ought to be the result of a +trial.[207] Nor is it proper thereby to inquire into the motives +controlling the actions of the governors of the demanding and +surrendering States.[208] Matters of defense, such as the running of the +statute of limitations, cannot be heard on _habeas corpus_, but must be +determined at the trial.[209] A defendant will, however, be discharged +on _habeas corpus_ if he shows by clear and satisfactory evidence that +he was outside the demanding State at the time of the crime.[210] If, +however, the evidence is conflicting, _habeas corpus_ is not a proper +proceeding to try the question of alibi.[211] + + +TRIAL OF FUGITIVE AFTER REMOVAL + +There is nothing in the Constitution or laws of the United States which +exempts an offender, brought before the courts of a State for an offense +against its laws, from trial and punishment, even though he was brought +from another State by unlawful violence,[212] or by abuse of legal +process,[213] and a fugitive lawfully extradited from another State may +be tried for an offense other than that for which he was +surrendered.[214] The rule is different, however, with respect to +fugitives surrendered by a foreign government pursuant to treaty. In +that case the offender may be tried only "for the offence with which he +is charged in the proceedings for his extradition, until a reasonable +time and opportunity have been given him, after his release or trial +upon such charge, to return to the country from whose asylum he had been +forcibly taken under those proceedings."[215] + + +Clause 3. No Person held to Service or Labour in one State, under the +Laws thereof, escaping into another, shall, in Consequence of any Law or +Regulation therein, be discharged from such Service or Labour, but shall +be delivered up on Claim of the Party to whom such Service or Labour may +be due. + + +This clause contemplated the existence of a positive unqualified right +on the part of the owner of a slave which no State law could in any way +regulate, control or restrain. Consequently the owner of a slave had the +same right to seize and repossess him in another State, as the local +laws of his own State conferred upon him, and a State law which +penalized such seizure was held unconstitutional.[216] Congress had the +power and the duty, which it exercised by the act of February 12, +1793,[217] to carry into effect the rights given by this Section,[218] +and the States had no concurrent power to legislate on the subject.[219] +However, a State statute providing a penalty for harboring a fugitive +slave was held not to conflict with this clause since it did not affect +the right or remedy either of the master or the slave; by it the State +simply prescribed a rule of conduct for its own citizens in the exercise +of its police power.[220] + + +Section 3. New States may be admitted by the Congress into this +Union; but no new State shall be formed or erected within the +Jurisdiction of any other State; nor any State be formed by the Junction +of two or more States, or Parts of States, without the Consent of the +Legislatures of the States concerned as well as of the Congress. + + +Doctrine of the Equality of the States + +"Equality of constitutional right and power is the condition of all the +States of the Union, old and new."[221] This doctrine, now a truism of +Constitutional Law, did not find favor in the Constitutional Convention. +That body struck out from this section, as reported by the Committee on +Detail, two sections to the effect that "... new States shall be +admitted on the same terms with the original States. But the Legislature +may make conditions with the new States concerning the public debt which +shall be subsisting."[222] Opposing this action, Madison insisted that +"the Western States neither would nor ought to submit to a union which +degraded them from an equal rank with the other States."[223] +Nonetheless, after further expressions of opinion _pro_ and _con_, the +Convention voted nine States to two to delete the requirement of +equality.[224] Prior to this time, however, Georgia and Virginia had +ceded to the United States large territories held by them, upon +condition that new States should be formed therefrom, and admitted to +the Union on an equal footing with the original States.[225] With the +admission of Louisiana in 1812, the principle of equality was extended +to States created out of territory purchased from a foreign power.[226] +By the Joint Resolution of December 29, 1845, Texas "was admitted into +the Union on an equal footing with the original States in all respects +whatever."[227] Again and again, in adjudicating the rights and duties +of States admitted after 1789, the Supreme Court has referred to the +condition of equality as if it were an inherent attribute of the Federal +Union.[228] Finally, in 1911, it invalidated a restriction on the change +of location of the State capital, which Congress had imposed as a +condition for the admission of Oklahoma, on the ground that Congress may +not embrace in an enabling act conditions relating wholly to matters +under State control.[229] In an opinion, from which Justices Holmes and +McKenna dissented, Justice Lurton argued: "The power is to admit 'new +States into _this_ Union.' 'This Union' was and is a union of States, +equal in power, dignity and authority, each competent to exert that +residuum of sovereignty not delegated to the United States by the +Constitution itself. To maintain otherwise would be to say that the +Union, through the power of Congress to admit new States, might come to +be a union of States unequal in power, as including States whose powers +were restricted only by the Constitution, with others whose powers had +been further restricted by an act of Congress accepted as a condition of +admission."[230] + + +EARLIER SCOPE OF THE DOCTRINE + +Until recently, however, the requirement of equality has applied +primarily to political standing and sovereignty rather than to economic +or property rights.[231] Broadly speaking, every new State is entitled +to exercise all the powers of government which belong to the original +States of the Union.[232] It acquires general jurisdiction, civil and +criminal, for the preservation of public order, and the protection of +persons and property throughout its limits except where it has ceded +exclusive jurisdiction to the United States.[233] The legislative +authority of a newly admitted State extends over federally owned land +within the State, to the same extent as over similar property held by +private owners, save that the State can enact no law which would +conflict with the constitutional powers of the United States. +Consequently it has jurisdiction to tax private activities carried on +within the public domain, if the tax does not constitute an +unconstitutional burden on the Federal Government.[234] Statutes +applicable to territories, e.g., the Northwest Territory Ordinance of +1787, cease to have any operative force when the territory, or any part +thereof, is admitted to the Union, except as adopted by State law.[235] +When the enabling act contains no exclusion of jurisdiction as to crimes +committed on Indian reservations by persons other than Indians, State +courts are vested with jurisdiction.[236] But the constitutional +authority of Congress to regulate commerce with Indian tribes is not +inconsistent with the equality of new States,[237] and conditions +inserted in the New Mexico Enabling Act forbidding the introduction of +liquor into Indian territory were therefore valid.[238] + + +CITIZENSHIP OF INHABITANTS + +Admission of a State on an equal footing with the original States +involves the adoption as citizens of the United States of those whom +Congress makes members of the political community, and who are +recognized as such in the formation of the new State.[239] + + +JUDICIAL PROCEEDINGS + +Whenever a territory is admitted into the Union, the cases pending in +the territorial court which are of exclusive federal cognizance are +transferred to the federal court having jurisdiction over the area; +cases not cognizable in the federal courts are transferred to the +tribunals of the new State, and those over which federal and State +courts have concurrent jurisdiction may be transferred either to the +State or federal courts by the party possessing that option under +existing law.[240] Where Congress neglected to make provision for +disposition of certain pending cases in an Enabling Act for the +admission of a State to the Union, a subsequent act supplying the +omission was held valid.[241] After a case, begun in a United States +court of a territory, is transferred to a State court under the +operation of the enabling act and the State constitution, the appellate +procedure is governed by the State statutes and procedure.[242] The new +State cannot, without the express or implied assent of Congress, enact +that the records of the former territorial court of appeals should +become records of its own courts, or provide by law for proceedings +based thereon.[243] + + +PROPERTY RIGHTS: UNITED STATES _v._ TEXAS + +Holding that a "mere agreement in reference to property" involved "no +question of equality of status," the Supreme Court upheld, in Stearns +_v._ Minnesota,[244] a promise exacted from Minnesota upon its admission +to the Union which was interpreted to limit its right to tax lands held +by the United States at the time of admission and subsequently granted +to a railroad. The "equal footing" doctrine has had an important effect, +however, on the property rights of new States to soil under navigable +waters. In Pollard _v._ Hagan,[245] the Court held that the original +States had reserved to themselves the ownership of the shores of +navigable waters and the soils under them, and that under the principle +of equality the title to the soils of navigable waters passes to a new +State upon admission. After refusing to extend the inland-water rule of +this case to the three mile marginal belt under the ocean along the +coast,[246] the Court applied the principle of the Pollard Case in +reverse in United States _v._ Texas.[247] Since the original States had +been found not to own the soil under the three mile belt, Texas, which +concededly did own this soil before its annexation to the United States, +was held to have surrendered its dominion and sovereignty over it, upon +entering the Union on terms of equality with the existing States. To +this extent, the earlier rule that unless otherwise declared by Congress +the title to every species of property owned by a territory passes to +the State upon admission[248] has been qualified. + + +RIGHTS CONVEYED TO PRIVATE PERSONS BEFORE ADMISSION OF A STATE + +While the territorial status continues, the United States has power to +convey property rights, such as rights in soil below high-water mark +along navigable waters,[249] or the right to fish in designated +waters,[250] which will be binding on the State. But a treaty with an +Indian tribe which gave hunting rights on unoccupied lands of the United +States, which rights should cease when the United States parted with its +title to any of the land, was held to be repealed by the admission to +the Union of the territory in which the hunting lands were +situated.[251] + + +Clause 2. The Congress shall have Power to dispose of and make all +needful Rules and Regulations respecting the Territory or other Property +belonging to the United States; and nothing in this Constitution shall +be so construed as to Prejudice any Claims of the United States, or of +any particular State. + + +Property of the United States + + +METHODS OF DISPOSING THEREOF + +The Constitution is silent as to the methods of disposing of property of +the United States. In United States _v._ Gratiot,[252] in which the +validity of a lease of lead mines on government lands was put in issue, +the contention was advanced that "disposal is not letting or leasing," +and that Congress has no power "to give or authorize leases." The Court +sustained the leases, saying "the disposal must be left to the +discretion of Congress."[253] Nearly a century later this power to +dispose of public property was relied upon to uphold the generation and +sale of electricity by the Tennessee Valley Authority. The reasoning of +the Court ran thus: the potential electrical energy made available by +the construction of a dam in the exercise of its constitutional powers +is property which the United States is entitled to reduce to possession; +to that end it may install the equipment necessary to generate such +energy. In order to widen the market and make a more advantageous +disposition of the product, it may construct transmission lines, and may +enter into a contract with a private company for the interchange of +electric energy.[254] + + +PUBLIC LANDS + +No appropriation of public lands may be made for any purpose except by +authority of Congress.[255] However, the long-continued practice of +withdrawing land from the public domain by Executive Orders for the +purpose of creating Indian reservations has raised an implied delegation +of authority from Congress to take such action.[256] The comprehensive +authority of Congress over public lands includes the power to prescribe +the times, conditions and mode of transfer thereof, and to designate the +persons to whom the transfer shall be made;[257] to declare the dignity +and effect of titles emanating from the United States;[258] to determine +the validity of grants which antedate the government's acquisition of +the property;[259] to exempt lands acquired under the homestead laws +from previously contracted debts;[260] to withdraw land from settlement +and to prohibit grazing thereon;[261] to prevent unlawful occupation of +public property and to declare what are nuisances, as affecting such +property, and provide for their abatement;[262] and to prohibit the +introduction of liquor on lands purchased and used for an Indian +colony.[263] Congress may limit the disposition of the public domain to +a manner consistent with its views of public policy. A restriction +inserted in a grant of public lands to a municipality which prohibited +the grantee from selling or leasing to a private corporation the right +to sell or sublet water or electric energy supplied by the facilities +constructed on such land was held valid.[264] + + +THE POWER OF THE STATE + +No State can tax public lands of the United States within its +borders;[265] nor can State legislation interfere with the power of +Congress under this clause or embarrass its exercise.[266] The question +whether title to land which has once been the property of the United +States has passed from it must be resolved by the laws of the United +States; after title has passed, "that property, like all other property +in the State, is subject to State legislation; so far as that +legislation is consistent with the admission that the title passed and +vested according to the laws of the United States."[267] In construing a +conveyance by the United States of land within a State, the settled and +reasonable rule of construction of the State affords a guide in +determining what impliedly passes to the grantee as an incident to land +expressly granted.[268] But a State statute enacted subsequently to a +federal grant cannot be given effect to vest in the State rights which +either remained in the United States or passed to its grantee.[269] + + +POWER OF CONGRESS OVER THE TERRITORIES + +In the territories, Congress has the entire dominion and sovereignty, +national and local, and has full legislative power over all subjects +upon which a State legislature might act.[270] It may legislate directly +with respect to the local affairs of a territory or it may transfer that +function to a legislature elected by the citizens thereof,[271] which +will then be invested with all legislative power except as limited by +the Constitution of the United States and acts of Congress.[272] In +1886, Congress prohibited the enactment by territorial legislatures of +local or special laws on enumerated subjects.[273] The constitutional +guarantees of private rights are applicable in territories which have +been made a part of the United States by Congressional action,[274] but +not to unincorporated territories.[275] Alaska is of the former +description,[276] while the status of Hawaii appears to be +doubtful.[277] Congress may establish, or may authorize the territorial +legislature to create, legislative courts whose jurisdiction is derived +from statutes enacted pursuant to this section rather than from article +IV.[278] Such courts may exercise admiralty jurisdiction despite the +fact that such jurisdiction may be exercised in the States only by +constitutional courts.[279] + + +Section 4. The United States shall guarantee to every State in +this Union a Republican Form of Government, and shall protect each of +them against Invasion; and on Application of the Legislature, or of the +Executive (when the Legislature cannot be convened) against domestic +Violence. + + +A Republican Form of Government + +It was established in the pioneer case of Luther _v._ Borden,[280] that +questions arising under this section are political, not judicial, in +character, and that "it rests with Congress to decide what government is +the established one in a State * * * as well as its republican +character."[281] Upon Congress also rested the duty to restore +republican governments to the States which seceded from the Union at the +time of the Civil War. In Texas _v._ White[282] the Supreme Court +declared that the action of the President in setting up provisional +governments at the end of the war was justified, if at all, only as an +exercise of his powers as Commander in Chief and that such governments +were to be regarded merely as provisional regimes to perform the +functions of government pending action by Congress. On the ground that +the questions were not justiciable in character, the Supreme Court has +refused to consider whether the adoption of the initiative and +referendum,[283] or the delegation of legislative power to other +departments of government[284] is compatible with a republican form of +government. This guarantee does not give the Supreme Court jurisdiction +to review a decision of a State court sustaining a determination of an +election contest for the office of governor made by a State legislature +under the authority of a State constitution.[285] Inasmuch as women were +denied the right to vote in most, if not all, of the original thirteen +States, it was held, prior to the adoption of Amendment XIX, that a +State government could be challenged under this clause by reason of the +fact that it did not permit women to vote.[286] + + +Protection Against Domestic Violence + +The Supreme Court also held in Luther _v._ Borden[287] that it rested +with Congress to determine upon the means proper to fulfill the +constitutional guarantee of protection to the States against domestic +violence. Chief Justice Taney declared that Congress might have placed +it in the power of a court to decide when the contingency had happened +which required the Federal Government to interfere. Instead, Congress +had, by the act of February 28, 1795,[288] authorized the President to +call out the militia in case of insurrection against the government of +any State. It followed, said Taney, that the President "must, of +necessity, decide which is the government, and which party is unlawfully +arrayed against it, before he can perform the duty imposed upon him by +the act of Congress"[289] and that his determination was not subject to +review by the courts. + + +DECLINE IN IMPORTANCE OF THIS GUARANTY + +With the recognition in the Debs Case[290] of the power and duty of the +Federal Government to use "the entire strength of the Nation * * * to +enforce in any part of the land the full and free exercise of all +national powers and the security of all rights entrusted by the +Constitution to its care,"[291] this clause has declined in importance. +When that Government finds it necessary or desirable to use force to +quell domestic violence, its power to protect the property of the United +States, to remove obstructions to the United States mails, or to protect +interstate commerce from interruption by labor disputes or otherwise, +usually will furnish legal warrant for its action, without reference to +this provision.[292] + + +Notes + +[1] Clark _v._ Graham, 6 Wheat. 577 (1821), is an early case in which +the Supreme Court enforced this rule. + +[2] Stat. 122 (1790); 2 Stat. 299 (1804), R.S. Sec. 905 28 U.S.C. Sec. +687. + +[3] Mankin _v._ Chandler & Co., 2 Brock. 125, 127 (1823). + +[4] 7 Cr. 481 (1813). _See_ also Everett _v._ Everett, 215 U.S. 203 +(1909); Mutual L. Ins. Co. _v._ Harris, 97 U.S. 331 (1878). + +[5] On the same basis, a judgment cannot be impeached either in or out +of the State by showing that it was based on a mistake of law. American +Exp. Co. _v._ Mullins, 212 U.S. 311, 312 (1909); Fauntleroy _v._ Lum, +210 U.S. 230 (1908); Hartford L. Ins. Co. _v._ Barber, 245 U.S. 146 +(1917); Hartford L. Ins. Co. _v._ Ibs, 237 U.S. 662 (1915). + +[6] 3 Wheat. 234 (1818). + +[7] 13 Pet. 312 (1839). _See also_ Bacon _v._ Howard, 20 How. 22, 25 +(1858); Bank of Ala. _v._ Dalton, 9 How. 522, 528 (1850); Great Western +Telegraph Co. _v._ Purdy, 162 U.S. 329 (1896); Christmas _v._ Russell, 5 +Wall. 290, 301 (1866); Wisconsin _v._ Pelican Insurance Co., 127 U.S. +265, 292 (1888). + +[8] Cole _v._ Cunningham, 133 U.S. 107, 112 (1890). _See also_ Stacy +_v._ Thrasher, use of Sellers, 6 How. 44, 61 (1848); Milwaukee County +_v._ White (M.E.) Co., 296 U.S. 268 (1935). + +[9] Chicago & A.R. Co. _v._ Wiggins Ferry Co., 119 U.S. 615, 622 (1887); +Hanley _v._ Donoghue, 116 U.S. 1, 3 (1885). _See also_ Bigelow _v._ Old +Dominion Copper Min. & S. Co., 225 U.S. 111 (1912); Green _v._ Van +Buskirk, 7 Wall. 139, 140 (1869); Roche _v._ McDonald, 275 U.S. 449 +(1928); Ohio _v._ Chattanooga Boiler & Tank Co., 289 U.S. 439 (1933). + +[10] Sistare _v._ Sistare, 218 U.S. 1 (1910). + +[11] Michigan Trust Co. _v._ Ferry, 228 U.S. 346 (1913). _See also_ Fall +_v._ Eastin, 215 U.S. 1 (1909). + +[12] Milwaukee County _v._ White (M.E.) Co., 296 U.S. 268, 275-276 +(1935). + +[13] Board of Public Works _v._ Columbia College, 17 Wall. 521 (1873); +Robertson _v._ Pickrell, 109 U.S. 608, 610 (1883). + +[14] Kersh Lake Drainage Dist. _v._ Johnson, 309 U.S. 485 (1940). _See +also_ Texas & P.R. Co. _v._ Southern P. Co., 137 U.S. 48 (1890). + +[15] National Exchange Bank _v._ Wiley, 195 U.S. 257, 265 (1904). _See +also_ Grover & B. Sewing-Mach. Co. _v._ Radcliffe, 137 U.S. 287 (1890). + +[16] Harding _v._ Harding, 198 U.S. 317 (1905). The following cases +further illustrate the application of the clause when its protection is +sought by a defendant. Such claim must be specific, Wabash R. Co. _v._ +Flannigan, 192 U.S. 29, 37 (1904). _See also_ American Exp. Co. _v._ +Mullins, 212 U.S. 311 (1909). The burden is upon the party making it to +establish the failure of a court to give to decrees of a federal court +and the court of another State the due effect to which they are +entitled. Commercial Pub. Co. _v._ Beckwith, 188 U.S. 567, 573 (1903). +However, by defending on the merits, after pleading and relying upon a +foreign judgment, a party does not waive the benefits of an alleged +estoppel arising from the foreign judgment. Harding _v._ Harding, 198 +U.S. 317, 330 (1905). Nor is a decree of dismissal, not on the merits, a +bar to suit in another jurisdiction. Swift _v._ McPherson, 232 U.S. 51 +(1914). Nor is an entry of discontinuance. In allowing the plaintiff to +show that such entry of discontinuance was not intended by the parties +as a release and satisfaction of the cause of action, but was the result +of a promissory agreement by the defendant which was never complied +with, the Court in the forum State was not refusing full faith and +credit to the judgment. Such evidence was properly allowed, not to +contradict the legal import of said judgment, but to show the true +meaning of the parties to the suit in agreeing upon its discontinuance. +Jacobs _v._ Marks, 182 U.S. 583, 593 (1901). + +[17] Anglo-American Provision Co. _v._ Davis Provision Co., 191 U.S. 373 +(1903). + +[18] Fauntleroy _v._ Lum, 210 U.S. 230 (1908). Justice Holmes, who spoke +for the Court in both cases, asserted in his opinion in the latter that +the New York statute was "directed to jurisdiction," the Mississippi +statute to "merits," but four Justices could not grasp the distinction. + +[19] Kenney _v._ Supreme Lodge, 252 U.S. 411 (1920), and cases there +cited. Holmes again spoke for the Court. _See also_ Cook, The Powers of +Congress Under the Full Faith and Credit Clause, 28 Yale L.J. 421, 434 +(1919). + +[20] Broderick _v._ Rosner, 294 U.S. 629 (1935), affirmed in Hughes _v._ +Fetter, 341 U.S. 609 (1951). + +[21] Union National Bank _v._ Lamb, 337 U.S. 38 (1949); _see also_ Roche +_v._ McDonald, 275 U.S. 449 (1928). + +[22] Embry _v._ Palmer, 107 U.S. 3, 13 (1883). + +[23] Titus _v._ Wallick, 306 U.S. 282, 291-292 (1939). + +[24] Morris _v._ Jones, 329 U.S. 545 (1947). + +[25] Thus why should not a judgment for alimony be made directly +enforceable in sister States instead of merely furnishing the basis of +an action in debt? _See_ Thompson _v._ Thompson, 226 U.S. 551 (1913). + +[26] Board of Public Works _v._ Columbia College, 17 Wall. 521, 528 +(1873). _See also_ Spokane & I.E.R. Co. _v._ Whitley, 237 U.S. 487 +(1915); Bigelow _v._ Old Dominion Copper Min. & S. Co., 225 U.S. 111 +(1912); Brown _v._ Fletcher, 210 U.S. 82 (1908); Wisconsin _v._ Pelican +Ins. Co., 127 U.S. 265, 291 (1888); Huntington _v._ Attrill, 146 U.S. +657, 685 (1892). However a denial of credit, founded upon a mere +suggestion of want of jurisdiction and unsupported by evidence, violates +the clause. _See also_ Rogers _v._ Alabama, 192 U.S. 226, 231 (1904); +Wells Fargo & Co. _v._ Ford, 238 U.S. 503 (1915). + +[27] _See_ Cooper _v._ Reynolds, 10 Wall. 308 (1870). + +[28] 11 How. 165 (1850). + +[29] Justice Johnson, dissenting in Mills _v._ Duryee, 7 Cr. 481 (1813), +had said: "There are certain eternal principles of justice which never +ought to be dispensed with, and which Courts of justice never can +dispense with but when compelled by positive statute. One of those is, +that jurisdiction cannot be justly exercised by a State over property +not within the reach of its process, or over persons not owing them +allegiance or not subjected to their jurisdiction, by being found within +their limits." Ibid. 486. + +[30] 95 U.S. 714 (1878). + +[31] McDonald _v._ Mabee, 243 U.S. 90, 92 (1917). _See also_ Wetmore +_v._ Karrick, 205 U.S. 141 (1907). + +[32] Grover & B. Sewing-Mach. Co. _v._ Radcliffe, 137 U.S. 287 (1890). +_See also_ Brown _v._ Fletcher, 210 U.S. 82 (1908); Galpin _v._ Page, 18 +Wall. 350 (1874); Old Wayne Mutual Life Asso. Co. _v._ McDonough, 204 +U.S. 8 (1907). + +[33] Reynolds _v._ Stockton, 140 U.S. 254 (1891). + +[34] Renaud _v._ Abbott, 116 U.S. 277 (1886); Jaster _v._ Currie, 198 +U.S. 144 (1905). + +[35] Milliken _v._ Meyer, 311 U.S. 457, 463 (1940). + +[36] Adam _v._ Saenger, 303 U.S. 59, 62 (1938). + +[37] Hancock National Bank _v._ Farnum, 176 U.S. 640 (1900). + +[38] Stacy _v._ Thrasher, use of Sellers, 6 How. 44, 58 (1848). + +[39] Bigelow _v._ Old Dominion Copper Min. & S. Co., 225 U.S. 111 +(1912). + +[40] 18 How. 404 (1856). + +[41] To the same effect is Connecticut Mut. Ins. Co. _v._ Spratley, 172 +U.S. 602 (1899). + +[42] Simon _v._ Southern Ky., 236 U.S. 115 (1915). + +[43] Goldey _v._ Morning News, 156 U.S. 518 (1895); Riverside Mills _v._ +Menefee, 237 U.S. 189 (1915). + +[44] International Harvester Co. _v._ Kentucky, 234 U.S. 579 (1914); +Riverside Mills _v._ Menefee, 237 U.S. 189 (1915). + +[45] International Harvester Co. _v._ Kentucky, 234 U.S. 579 (1914). + +[46] Kane _v._ New Jersey, 242 U.S. 160 (1916); Hess _v._ Pawloski, 274 +U.S. 352 (1927). Limited in Wuchter _v._ Pizzutti, 276 U.S. 13 (1928). + +[47] 18 Wall. 457 (1874). + +[48] _See_ 1 Black, Judgments Sec. 246 (1891). + +[49] _See also_ Simmons _v._ Saul, 138 U.S. 439, 448 (1891). In other +words, the challenge to jurisdiction is treated as equivalent to the +plea _nul tiel record_, a plea which was recognized even in Mills _v._ +Duryee as always available against an attempted invocation of the full +faith and credit clause. What is not pointed out by the Court, is that +it was also assumed in the earlier case that such a plea could always be +rebutted by producing a transcript, properly authenticated in accordance +with the act of Congress, of the judgment in the original case. _See +also_ Brown _v._ Fletcher, 210 U.S. 82 (1908); German Savings Society +_v._ Dormitzer, 192 U.S. 125, 128 (1904); Grover & Sewing-Mach. Co. _v._ +Radcliffe, 137 U.S. 287, 294 (1890). + +[50] Cheever _v._ Wilson, 9 Wall. 108 (1870). + +[51] Andrews _v._ Andrews, 188 U.S. 14 (1903). _See also_ German Savings +Society _v._ Dormitzer, 192 U.S. 125 (1904). + +[52] 201 U.S. 562 (1906). _See also_ Thompson _v._ Thompson, 226 U.S. +551 (1913). + +[53] 181 U.S. 155, 162 (1901). + +[54] 317 U.S. 287 (1942); 325 U.S. 226 (1945). + +[55] 305 U.S. 32 (1938). + +[56] 317 U.S. 287, 298-299 (1942). + +[57] Ibid. at p. 302. + +[58] 317 U.S. 287, 312, 315, 321 (1942). + +[59] 325 U.S. 226, 229 (1945). + +[60] Bell _v._ Bell, 181 U.S. 175 (1901); Andrews _v._ Andrews, 188 U.S. +14 (1903). + +[61] Strong dissents were filed which have influenced subsequent +holdings. Among these was that of Justice Rutledge which attacked both +the consequences of the decision as well as the concept of +jurisdictional domicile on which it was founded. + +"Unless 'matrimonial domicil,' banished in _Williams_ I [by the +overruling of Haddock _v._ Haddock], has returned renamed ['domicil of +origin'] in _Williams_ II, every decree becomes vulnerable in every +State. Every divorce, wherever granted, * * *, may now be reexamined by +every other State, upon the same or different evidence, to redetermine +the 'jurisdictional fact,' always the ultimate conclusion of 'domicil.' +* * * + +"The Constitution does not mention domicil. Nowhere does it posit the +powers of the states or the nation upon that amorphous, highly variable +common-law conception. * * * No legal conception, save possibly +'jurisdiction,' * * *, affords such possibilities for uncertain +application. * * * Apart from the necessity for travel, [to effect a +change of domicile, the latter], criterion comes down to a purely +subjective mental state, related to remaining for a length of time never +yet defined with clarity. * * * When what must be proved is a variable, +the proof and the conclusion which follows upon it inevitably take on +that character. * * * [The majority have not held] that denial of credit +will be allowed, only if the evidence [as to the place of domicile] is +different or depending in any way upon the character or the weight of +the difference. The test is not different evidence. It is evidence, +whether the same or different and, if different, without regard to the +quality of the difference, from which an opposing set of inferences can +be drawn by the trier of fact 'not unreasonably.' * * * But * * * [the +Court] does not define 'not unreasonably.' It vaguely suggests a +supervisory function, to be exercised when the denial [of credit] +strikes its sensibilities as wrong, by some not stated standard. * * * +There will be no 'weighing' [of evidence], * * * only examination for +sufficiency."--(325 U.S. 226, 248, 251, 255, 258-259 (1945)). + +No less disposed to prophesy undesirable results from this decision was +Justice Black in whose dissenting opinion Justice Douglas concurred. + +"The full faith and credit clause, as now interpreted, has become a +disrupting influence. The Court in effect states that the clause does +not apply to divorce actions, and that States alone have the right to +determine what effect shall be given to the decrees of other States. If +the Court is abandoning the principle that a marriage [valid where made +is valid everywhere], a consequence is to subject people to bigamy or +adultery prosecutions because they exercise their constitutional right +to pass from a State in which they were validly married on to another +which refuses to recognize their marriage. Such a consequence violates +basic guarantees." + +North Carolina's interest was to preserve a bare marital status as to +two persons who sought a divorce and two others who had not objected to +it. "It is an extraordinary thing for a State to procure a retroactive +invalidation of a divorce decree, and then punish one of its citizens +for conduct authorized by that decree, when it had never been challenged +by either of the people most immediately interested in it." The State +here did not sue to protect any North Carolina property rights nor to +obtain support for deserted families. "I would not permit such an +attenuated state interest to override the Full Faith and Credit Clause * +* *" (325 U.S. 226, 262-267 (1945)). + +The unsettling effect of this decision was expressed statistically by +Justice Black as follows: "Statistics indicate that approximately five +million divorced persons are scattered throughout the forty-eight +States. More than 85% of these divorces were granted in uncontested +proceedings. Not one of this latter group can now retain any feeling of +security in his divorce decree. Ever present will be the danger of +criminal prosecution and harassment." Ibid. 262-263. + +As to the conclusion that the Supreme Court as well as the State courts +should reach in like situations, Justice Black asserted that "until +Congress has commanded a different 'effect' for divorces granted on a +short sojourn within a State, we should stay our hands. * * * If we +follow that course, North Carolina cannot be permitted to disregard the +Nevada decrees without passing upon the 'faith and credit' which Nevada +itself would give to them under its own 'law or usage.' * * * For in +Nevada, even its Attorney General could not have obtained a cancellation +of the decree * * *." Ibid. 267, 268. + +The reader should take note of the effect in some of the above opinions +to weigh competing interests against one another and the implication +that the court's relation to the full faith and credit clause is that of +an arbitral tribunal rather than of a court in the conventional sense of +a body whose duty is to maintain an established rule of law. + +[62] 325 U.S. 279 (1945). + +[63] Ibid. 281-283. + +[64] 334 U.S. 541 (1948). _See also_ the companion case of Kreiger _v._ +Kreiger, 334 U.S. 555 (1948). + +[65] Esenwein _v._ Commonwealth, 325 U.S. 279, 280 (1945). + +[66] Because the record, in his opinion, did not make it clear whether +New York "law" held that no "_ex parte_" divorce decree could terminate +a prior New York separate maintenance decree, or merely that no "_ex +parte_" decree of divorce of _another State_ could, Justice Frankfurter +dissented and recommended that the case be remanded for clarification. +Justice Jackson dissented on the ground that under New York law, a New +York divorce would terminate the wife's right to alimony; and if the +Nevada decree is good, it is entitled to no less effect in New York than +a local decree. However, for reasons stated in his dissent in the First +Williams Case, 317 U.S. 287, he would prefer not to give standing to +constructive service divorces obtained on short residence. 334 U.S. 541, +549-554 (1948). These two Justices filed similar dissents in the +companion case of Kreiger _v._ Kreiger, 334 U.S. 555, 557 (1948). + +[67] 334 U.S. 343 (1948). + +[68] 334 U.S. 378 (1948).--In a dissenting opinion filed in the case of +Sherrer _v._ Sherrer, but applicable also to the case of Coe _v._ Coe, +Justice Frankfurter, with Justice Murphy concurring, asserted his +inability to accept the proposition advanced by the majority that +"regardless of how overwhelming the evidence may have been that the +asserted domicile in the State offering bargain-counter divorces was a +sham, the home State of the parties is not permitted to question the +matter if the form of a controversy had been gone through."--334 U.S. +343, 377 (1948). + +[69] 336 U.S. 674 (1949).--Of four Justices dissenting (Black, Douglas, +Rutledge, Jackson), Justice Jackson alone filed a written opinion. To +him the decision is "an example of the manner in which, in the law of +domestic relations, 'confusion now hath made his masterpiece,'" but for +the first Williams case and its progeny, the judgment of the Connecticut +court might properly have held that the Rice divorce decree was void for +every purpose because it was rendered by a State court which never +obtained jurisdiction of the nonresident defendant. "But if we adhere to +the holdings that the Nevada court had power over her for the purpose of +blasting her marriage and opening the way to a successor, I do not see +the justice of inventing a compensating confusion in the device of +divisible divorce by which the parties are half-bound and half-free and +which permits Rice to have a wife who cannot become his widow and to +leave a widow who was no longer his wife." Ibid. 676, 679, 680. + +[70] Vermont violated the clause in sustaining a collateral attack on a +Florida divorce decree, the presumption of Florida's jurisdiction over +the cause and the parties not having been overcome by extrinsic evidence +or the record of the case. Cook _v._ Cook, 342 U.S. 126 (1951). The +Sherrer and Coe cases were relied upon. There seems, therefore, to be no +doubt of their continued vitality. + +[71] Barber _v._ Barber, 323 U.S. 77, 84 (1944). + +[72] Sistare _v._ Sistare, 218 U.S. 1, 11 (1910). _See also_ Barber _v._ +Barber, 21 How. 582 (1859); Lynde _v._ Lynde, 181 U.S. 183, 186-187 +(1901); Bates _v._ Bodie, 245 U.S. 520 (1918); Audubon _v._ Shufeldt, +181 U.S. 575, 577 (1901); Yarbrough _v._ Yarbrough, 290 U.S. 202 (1933); +Loughran _v._ Loughran, 292 U.S. 216 (1934). + +[73] Griffin _v._ Griffin, 327 U.S. 220 (1946). + +[74] Ibid. 228. An alimony case of a quite extraordinary pattern was +that of Sutton _v._ Leib. On account of the diverse citizenship of the +parties, who had once been husband and wife, the case was brought by the +latter in a federal court in Illinois. Her suit was to recover unpaid +alimony which was to continue until her remarriage. To be sure, she had, +as she confessed, remarried in Nevada, but the marriage had been +annulled in New York on the ground that the man was already married, +inasmuch as his divorce from his previous wife was null and void, she +having neither entered a personal appearance nor been personally served. +The Court, speaking by Justice Reed, held that the New York annulment of +the Nevada marriage must be given full faith and credit in Illinois, but +left Illinois to decide for itself the effect of the annulment upon the +obligations of petitioner's first husband. Sutton _v._ Leib, 342 U.S. +402 (1952). + +[75] Halvey _v._ Halvey, 330 U.S. 610, 615 (1947). + +[76] Johnson _v._ Muelberger, 341 U.S. 581 (1951). + +[77] Tilt _v._ Kelsey, 207 U.S. 43 (1907); Burbank _v._ Ernst, 232 U.S. +162 (1914). + +[78] Riley _v._ New York Trust Company, 315 U.S. 343 (1942). + +[79] Brown _v._ Fletcher, 210 U.S. 82, 90 (1908). _See also_ Stacy _v._ +Thrasher, Use of Sellers, 6 How. 44, 58 (1848); McLean _v._ Meek, 18 +How. 16, 18, (1856). + +[80] Tilt _v._ Kelsey, 207 U.S. 43 (1907). In the case of Borer _v._ +Chapman, 119 U.S. 587, 599 (1887) involving a complicated set of facts, +it was held, in 1887, that a judgment in a probate proceeding, which was +merely ancillary to proceedings in another State and which ordered the +residue of the estate to be assigned to the legatee and discharged the +executor from further liability, did not prevent a creditor, who was not +a resident of the State in which the ancillary judgment was rendered, +from setting up his claim in the State probate court which had the +primary administration of the estate. + +[81] Blodgett _v._ Silberman, 277 U.S. 1 (1928). + +[82] Kerr _v._ Devisees of Moon, 9 Wheat. 565 (1824); McCormick _v._ +Sullivant, 10 Wheat. 192 (1825); Clarke _v._ Clarke, 178 U.S. 186 +(1900). The controlling principle of these cases is not confined to +proceedings in probate. A court of equity "not having jurisdiction of +the _res_ cannot affect it by its decree nor by a deed made by a master +in accordance with the decree." _See_ Fall _v._ Eastin, 215 U.S. 1, 11 +(1909). + +[83] Robertson _v._ Pickrell, 109 U.S. 608, 611 (1883). _See also_ Darby +_v._ Mayer, 10 Wheat. 465 (1825); Gasquet _v._ Fenner, 247 U.S. 16 +(1918). + +[84] Olmsted _v._ Olmsted, 216 U.S. 386 (1910). + +[85] Hood _v._ McGehee, 237 U.S. 611 (1915). + +[86] Harris _v._ Balk, 198 U.S. 215 (1905). _See also_ Chicago, R.I. & +Pac. Ry _v._ Sturm, 174 U.S. 710 (1899); King _v._ Cross, 175 U.S. 396, +399 (1899); Louisville & N.R. Co. _v._ Deer, 200 U.S. 176 (1906); +Baltimore & O.R. Co. _v._ Hostetter, 240 U.S. 620 (1916). + +[87] Christmas _v._ Russell, 5 Wall. 290 (1866); Maxwell _v._ Stewart, +21 Wall. 71 (1875); Hanley _v._ Donoghue, 116 U.S. 1 (1885); Wisconsin +_v._ Pelican Ins. Co., 127 U.S. 265 (1888); Simmons _v._ Saul, 138 U.S. +439 (1891); American Express Co. _v._ Mullins, 212 U.S. 311 (1909). + +[88] Fauntleroy _v._ Lum, 210 U.S. 230 (1908). + +[89] Anglo-American Provision Co. _v._ Davis Provision Co., 191 U.S. 373 +(1903). + +[90] 133 U.S. 107 (1890). + +[91] The Antelope, 10 Wheat. 66, 123 (1825). _See also_ Wisconsin _v._ +Pelican Ins. Co., 127 U.S. 265 (1888). + +[92] 146 U.S. 657 (1892). _See also_ Dennick _v._ R.R. 103 U.S. 11 +(1881). + +[93] Milwaukee County _v._ White (N.E.) Co., 296 U.S. 268 (1935). _See +also_ Moore _v._ Mitchell, 281 U.S. 18 (1930). + +[94] Bank of Augusta _v._ Earle, 13 Pet. 519, 589-596 (1839). _See_ +Kryger _v._ Wilson, 242 U.S. 171 (1916); Bond _v._ Hume, 243 U.S. 15 +(1917). + +[95] 19 How. 393, 460 (1857); Bonaparte _v._ Tax Court, 104 U.S. 592 +(1882), where it was held that a law exempting from taxation certain +bonds of the enacting State did not operate extraterritorially by virtue +of the full faith and credit clause. + +[96] Chicago & Alton R. Co. _v._ Wiggins Ferry, 119 U.S. 615, 622 +(1887). + +[97] Smithsonian Institution _v._ St. John, 214 U.S. 19 (1909). When, in +a State court, the validity of an act of the legislature of another +State is not in question, and the controversy turns merely upon its +interpretation or construction, no question arises under the full faith +and credit clause. _See also_ Western Life Indemnity Co. _v._ Rupp, 235 +U.S. 261 (1914), citing Glenn _v._ Garth, 147 U.S. 360 (1893); Lloyd +_v._ Matthews, 155 U.S. 222, 227 (1894); Banholzer _v._ New York L. Ins. +Co., 178 U.S. 402 (1900); Allen _v._ Alleghany Co., 196 U.S. 458, 465 +(1905); Texas & N.O.R. Co. _v._ Miller, 221 U.S. 408 (1911). _See also_ +National Mut. Bldg. & Loan Asso. _v._ Brahan, 193 U.S. 635 (1904); +Johnson _v._ New York Life Ins. Co., 187 U.S. 491, 495 (1903); +Pennsylvania F. Ins. Co. _v._ Gold Issue Min. & Mill. Co., 243 U.S. 93 +(1917). + +[98] Alaska Packers Asso. _v._ Industrial Acci. Commission, 294 U.S. 532 +(1935); Bradford Electric Light Co. _v._ Clapper, 286 U.S. 145 (1932). + +[99] Dennick _v._ R.R., 103 U.S. 11 (1881) was the first of the +so-called "Death Act" cases to reach the Supreme Court. _See also_ +Stewart _v._ B.& O.R. Co., 168 U.S. 445 (1897). Even today the +obligation of a State to furnish a forum for the determination of death +claims arising in another State under the laws thereof appears to rest +on a rather precarious basis. In Hughes _v._ Fetter, 341 U.S. 609 +(1951), the Court, by a narrow majority, held invalid under the full +faith and credit clause a statute of Wisconsin which, as locally +interpreted, forbade its courts to entertain suits of this nature; and +in First National Bank _v._ United Air Lines, 342 U.S. 396 (1952), a +like result was reached as to an Illinois statute. In both cases the +same four Justices dissented. + +[100] 119 U.S. 615 (1887). + +[101] Northern Pac. R.R. _v._ Babcock, 154 U.S. 190 (1894); Atchison, T. +& S.F.R. Co. _v._ Sowers, 213 U.S. 55, 67 (1909). + +[102] Glenn _v._ Garth, 147 U.S. 360 (1893). + +[103] Tennessee Coal Co. _v._ George, 233 U.S. 354 (1914). + +[104] Klaxon Co. _v._ Stentor, 313 U.S. 487 (1941); John Hancock Mut. +Life Ins. Co. _v._ Yates, 299 U.S. 178 (1936) distinguished. + +[105] Modern Woodmen of Am. _v._ Mixer, 267 U.S. 544 (1925). + +[106] Converse _v._ Hamilton, 224 U.S. 243 (1912); Selig _v._ Hamilton, +234 U.S. 652 (1914); Marin _v._ Augedahl, 247 U.S. 142 (1918). + +[107] Broderick _v._ Rosner, 294 U.S. 629 (1935). _See also_ Thormann +_v._ Frame, 176 U.S. 350, 356 (1900); Reynolds _v._ Stockton, 140 U.S. +254, 264 (1891). + +[108] Hancock Nat. Bank. _v._ Farnum, 176 U.S. 640 (1900). + +[109] 237 U.S. 531 (1916); followed in Modern Woodmen of Am. _v._ Mixer, +267 U.S. 544 (1925). + +[110] 305 U.S. 66, 75, 79 (1938). + +[111] 331 U.S. 586, 588-589, 637 (1947). + +[112] New York Life Ins. Co. _v._ Head, 234 U.S. 149 (1914); Aetna Life +Ins. Co. _v._ Dunken, 266 U.S. 389 (1924). + +[113] 193 U.S. 635 (1904). + +[114] National Mutual B. & L. Asso. _v._ Brahan, 193 U.S. 635 (1904). + +[115] New York Life Ins. Co. _v._ Cravens, 178 U.S. 389 (1900). _See +also_ American Fire Ins. Co. _v._ King Lumber Co., 250 U.S. 2 (1919). + +[116] Griffin _v._ McCoach, 313 U.S. 498 (1941). + +[117] 314 U.S. 201, 206-208 (1941). However, a decree of a Montana +Supreme Court, insofar as it permitted judgment creditors of a dissolved +Iowa surety company to levy execution against local assets to satisfy +judgment, as against title to such assets of the Iowa insurance +commissioner as statutory liquidator and successor to the dissolved +company, was held to deny full faith and credit to the statutes of +Iowa.--Clark _v._ Willard, 292 U.S. 112 (1934). + +[118] 324 U.S. 154, 159-160 (1945). + +[119] Bradford Electric Co. _v._ Clapper, 286 U.S. 145, 158 (1932). + +[120] The Court had earlier remarked that "workmen's compensation +legislation rests upon the idea of status, not upon that of implied +contract." Cudahy Packing Co. _v._ Parramore, 263 U.S. 418, 423 (1923). +In contrast to the above cases, _see_ Kryger _v._ Wilson, 242 U.S. 171 +(1916), where it was held that the question whether the cancellation of +a land contract was governed by the _lex rei sitae_ or the _lex loci +contractus_ was purely a question of local common law; _also_ Bond _v._ +Hume, 243 U.S. 15 (1917). + +[121] Pacific Ins. Co. _v._ Comm'n., 306 U.S. 493, 497, 503-504 (1939). + +[122] 320 U.S. 430 (1943). + +[123] Industrial Comm'n. _v._ McCartin, 330 U.S. 622 (1947). + +[124] Cardillo _v._ Liberty Mutual Co., 330 U.S. 469 (1947). + +[125] Reviewing some of the cases treated in this section, a writer in +1925 said: "It appears, then, that the Supreme Court has quite +definitely committed itself to a program of making itself, to some +extent, a tribunal for bringing about uniformity in the field of +conflicts * * * although the precise circumstances under which it will +regard itself as having jurisdiction for this purpose are far from +clear." E.M. Dodd, The Power of the Supreme Court to Review State +Decisions in the Field of Conflict of Laws (1926), 39 Harv. L. Rev. +533-562. It can hardly be said that the law has been subsequently +clarified on this point. + +[126] Walter W. Cook, The Power of Congress Under the Full Faith and +Credit Clause (1919), 28 Yale L.J. 430. + +[127] Cooper _v._ Newell, 173 U.S. 555, 567 (1899). _See also_ Wisconsin +_v._ Pelican Ins. Co., 127 U.S. 265, 291 (1888); Swift _v._ McPherson, +232 U.S. 51 (1914); Pennington _v._ Gibson, 16 How. 65, 81 (1854); +Cheever _v._ Wilson, 9 Wall. 108, 123 (1870); Baldwin _v._ Iowa State +Traveling Men's Asso., 283 U.S. 522 (1931); American Surety Co. _v._ +Baldwin, 287 U.S. 156 (1932); Sanders _v._ Armour Fertilizer Works, 292 +U.S. 190 (1934). + +[128] Milwaukee County _v._ White (M.E.) Co., 296 U.S. 268 (1935). + +[129] Equitable L. Assur. Soc. _v._ Brown, 187 U.S. 308 (1902). _See +also_ Gibson _v._ Lyon, 115 U.S. 439 (1885). + +[130] Embry _v._ Palmer, 107 U.S. 3, 9 (1883). _See also_ Northern +Assur. Co. _v._ Grand View Bldg. Asso., 203 U.S. 106 (1906); Atchison, +T. & S.F.R. Co. _v._ Sowers, 213 U.S. 55 (1909); Knights of Pythias _v._ +Meyer, 265 U.S. 30, 33 (1924); Louisville & N.R. Co. _v._ Central +Stockyards Co., 212 U.S. 132 (1909); West Side Belt R. Co. _v._ +Pittsburgh Constr. Co., 219 U.S. 92 (1911). + +[131] No right, privilege, or immunity is conferred by the Constitution +in respect to judgments of foreign states and nations.--Aetna Life Ins. +Co. _v._ Tremblay, 223 U.S. 185 (1912). In Hilton _v._ Guyot, 159 U.S. +113, 234 (1895) where a French judgment offered in defense was held not +a bar to the suit. Four Justices dissented on the ground that "the +application of the doctrine of _res judicata_ does not rest in +discretion; and it is for the Government, and not for its courts, to +adopt the principle of retorsion, if deemed under any circumstances +desirable or necessary." At the same sitting of the Court, an action in +a United States circuit court on a Canadian judgment was sustained on +the same ground of reciprocity. Ritchie _v._ McMullen, 159 U.S. 235 +(1895). _See also_ Ingenohl _v._ Olsen, 273 U.S. 541 (1927), where a +decision of the Supreme Court of the Philippine Islands was reversed for +refusal to enforce a judgment of the Supreme Court of the British colony +of Hongkong, which was rendered "after a fair trial by a court having +jurisdiction of the parties." In 1897 Foreign Relations of the United +States 7-8, will be found a three-cornered correspondence between the +State Department, the Austro-Hungarian Legation, and the Governor of +Pennsylvania, in which the last named asserts that "under the laws of +Pennsylvania the judgment of a court of competent jurisdiction in +Croatia would be respected to the extent of permitting such judgment to +be sued upon in the courts of Pennsylvania." Stowell, _op. cit. supra_ +note I, at 254-255. Another instance of international cooperation in the +judicial field is furnished by letters rogatory. "When letters rogatory +are addressed from any court of a foreign country to any district court +of the United States, a commissioner of such district court designated +by said court to make the examination of the witnesses mentioned in said +letters, shall have power to compel the witnesses to appear and depose +in the same manner as witnesses may be compelled to appear and testify +in courts," 28 U.S.C.A., _supra_ note II, Sec. 653. Some of the States +have similar laws. _See_ 2 Moore, Digest of International Law (1906) +108-109. + +[132] David K. Watson, The Constitution of the United States, vol. II, +1206 (1910). + +[133] The Federalist No. 42. + +[134] 16 Wall. 36 (1873). + +[135] Ibid. 75. + +[136] Scott _v._ Sandford, 19 How. 393 (1857). + +[137] Ibid. 518, 527-529. + +[138] 153 U.S. 684, 687 (1894). + +[139] 135 U.S. 492 (1890). + +[140] Slaughter-House Case, 15 Fed. Cas. No. 8408 (1870); Chambers _v._ +Baltimore & O.R. Co., 207 U.S. 142 (1907); Whitfield _v._ Ohio, 297 U.S. +431 (1936). + +[141] 16 Wall. 36 (1873). + +[142] Ibid. 77. + +[143] Bradwell _v._ Illinois, 16 Wall. 130, 138 (1873). _See also_ Cole +_v._ Cunningham, 133 U.S. 107 (1890). + +[144] Blake _v._ McClung, 172 U.S. 239, 246 (1898); Travis _v._ Yale & +Towne Mfg. Co., 252 U.S. 60 (1920). + +[145] La Tourette _v._ McMaster, 248 U.S. 465 (1919); Douglas _v._ New +York, N.H. & H.R. Co., 279 U.S. 377 (1929); _cf._ Maxwell _v._ Bugbee, +250 U.S. 525 (1919). + +[146] United States _v._ Harris, 106 U.S. 629, 643 (1883). _See also_ +Baldwin _v._ Franks, 120 U.S. 678 (1887). + +[147] United States _v._ Wheeler, 254 U.S. 281 (1920). + +[148] Scott _v._ Sandford, 19 How. 393 (1857) + +[149] Ibid. 403-411. + +[150] Ibid. 572-590. + +[151] 13 Pet. 519 (1939). + +[152] Ibid. 586. + +[153] 8 Wall. 168 (1869). + +[154] Ibid. 181. + +[155] Crutcher _v._ Kentucky, 141 U.S. 47 (1891). _See also_ pp. +193-198, 1049-1056. + +[156] Hemphill _v._ Orloff, 277 U.S. 537 (1928). + +[157] 6 Fed. Cas. No. 3,230, 546, 550 (1823). + +[158] Ibid. 551-522. + +[159] Ibid. 552. + +[160] Corfield _v._ Coryell, 6 Fed. Cas. No. 3230, 546, 552 (1823). + +[161] Ibid. 552. + +[162] 94 U.S. 391 (1877). + +[163] 161 U.S. 519 (1896). + +[164] 209 U.S. 349 (1908). + +[165] 334 U.S. 385 (1948). + +[166] Ibid. 403. In Mullaney _v._ Anderson, 342 U.S. 415 (1952) an +Alaska statute providing for the licensing of commercial fishermen in +territorial waters and levying a license fee of $50.00 on nonresident +and only $5.00 on resident fishermen was held void under Art. IV, +Sec. 2 on the authority of Toomer _v._ Witsell, cited above. + +[167] 172 U.S. 239 (1898). + +[168] Ibid. 256. + +[169] La Tourette _v._ McMaster, 248 U.S. 465 (1919). + +[170] Doherty and Co. _v._ Goodman, 294 U.S. 623 (1935). + +[171] Hess _v._ Pawloski, 274 U.S. 352, 356 (1927). + +[172] Ferry _v._ Spokane P. & S.R. Co., 258 U.S. 314 (1922), followed in +Ferry _v._ Corbett, 258 U.S. 609 (1922). + +[173] Conner _v._ Elliott, 18 How. 591, 593 (1856). + +[174] Blake _v._ McClung, 172 U.S. 230, 248 (1898). + +[175] Williams _v._ Bruffy, 96 U.S. 176, 184 (1878). + +[176] Chambers _v._ Baltimore & O.R. Co., 207 U.S. 142, 148 (1907); +McKnett _v._ St. Louis & S.F.R. Co., 292 U.S. 230, 233 (1934); Miles +_v._ Illinois C.R. Co., 315 U.S. 698, 704 (1942). + +[177] Canadian N.R. Co. _v._ Eggen, 252 U.S. 553 (1920). + +[178] Ibid. 563. + +[179] Chemung Canal Bank _v._ Lowery, 93 U.S. 72, 76 (1876). + +[180] Douglas _v._ New York, N.H. & H.R. Co., 279 U.S. 377 (1929). + +[181] Chambers _v._ Baltimore & O.R. Co., 207 U.S. 142 (1907). + +[182] 12 Wall. 418, 424 (1871). _See also_ Downham _v._ Alexandria, 10 +Wall. 173, 175 (1870). + +[183] Chalker _v._ Birmingham & M.W.R. Co., 249 U.S. 522 (1919). + +[184] 252 U.S. 60 (1920). + +[185] Ibid. 62-64. _See also_ Shaffer _v._ Carter, 252 U.S. 37 (1920). + +[186] 252 U.S. 60, 79-80 (1920). + +[187] Williams _v._ Fears, 179 U.S. 270, 274 (1900). + +[188] Haavik _v._ Alaska Packers' Asso., 263 U.S. 510 (1924). + +[189] Travelers' Ins. Co. _v._ Connecticut, 185 U.S. 364, 371 (1902). + +[190] Maxwell _v._ Bugbee, 250 U.S. 525 (1919). + +[191] Kirtland _v._ Hotchkiss, 100 U.S. 491, 499 (1879). _Cf._ Colgate +_v._ Harvey, 296 U.S. 404 (1935) in which discriminatory taxation of +bank deposits outside the State owned by a citizen of the State was held +to infringe a privilege of national citizenship, in contravention of the +Fourteenth Amendment. The decision in Colgate _v._ Harvey was overruled +in Madden _v._ Kentucky, 309 U.S. 83, 93 (1940). + +[192] 1 Stat. 302 (1793). + +[193] Roberts _v._ Reilly, 116 U.S. 80, 94 (1885). _See also_ Innes _v._ +Tobin, 240 U.S. 127 (1916). Said Justice Story: "... the natural, if not +the necessary conclusion is, that the national government, in the +absence of all positive provisions to the contrary, is bound, through +its own proper departments, legislative, judicial, or executive, as the +case may require, to carry into effect all the rights and duties imposed +upon it by the Constitution"; [and again] "... it has, on various +occasions, exercised powers which were necessary and proper as means to +carry into effect rights expressly given, and duties expressly enjoined +thereby." Prigg _v._ Pennsylvania, 16 Pet. 539, 616, 618-619 (1842). + +[194] Taylor _v._ Taintor, 16 Wall. 366, 371 (1873). + +[195] 24 How. 66 (1861); _Cf._ Prigg _v._ Pennsylvania, 16 Pet. 539, 612 +(1842). + +[196] 24 How. 66, 107 (1861). + +[197] 48 Stat. 782 (1934). + +[198] Roberts _v._ Reilly, 116 U.S. 80 (1885). _See also_ Strassheim +_v._ Daily, 221 U.S. 280 (1911); Appleyard _v._ Massachusetts, 203 U.S. +222 (1906); Ex parte Reggel, 114 U.S. 642, 650 (1885). + +[199] Drew _v._ Thaw, 235 U.S. 432, 439 (1914). + +[200] Innes _v._ Tobin, 240 U.S. 127 (1916). + +[201] Bassing _v._ Cady, 208 U.S. 386 (1908). + +[202] Hyatt _v._ New York ex rel. Corkran, 188 U.S. 691 (1903). + +[203] Kentucky _v._ Dennison, 24 How. 66, 103 (1861). + +[204] Taylor _v._ Taintor, 16 Wall. 366, 375 (1873). + +[205] Kentucky _v._ Dennison, 24 How. 66, 104 (1861); Pierce _v._ +Creecy, 210 U.S. 387 (1908). _See also_ Marbles _v._ Creecy, 215 U.S. 63 +(1909); Strassheim _v._ Daily, 221 U.S. 280 (1911); Re Strauss, 197 U.S. +324, 325 (1905). + +[206] Munsey _v._ Clough, 196 U.S. 364 (1905); Pettibone _v._ Nichols, +203 U.S. 192 (1906). + +[207] Drew _v._ Thaw, 235 U.S. 432 (1914). + +[208] Pettibone _v._ Nichols, 203 U.S. 192, 216 (1906). + +[209] Biddinger _v._ Police Comr., 245 U.S. 128 (1917). _See also_ +Rodman _v._ Pothier, 264 U.S. 399 (1924). + +[210] Hyatt _v._ New York ex rel. Corkran, 188 U.S. 691 (1903). _See +also_ South Carolina _v._ Bailey, 289 U.S. 412 (1933). + +[211] Munsey _v._ Clough, 196 U.S. 364, 375 (1905). + +[212] Ker _v._ Illinois, 119 U.S. 436, 444 (1886); Mahon _v._ Justice, +127 U.S. 700, 707, 712, 714 (1888). + +[213] Cook _v._ Hart, 146 U.S. 183, 193 (1892); Pettibone _v._ Nichols, +203 U.S. 192, 215 (1906). + +[214] Lascelles _v._ Georgia, 148 U.S. 537, 543 (1893). + +[215] United States _v._ Rauscher, 119 U.S. 407, 430 (1886). + +[216] Prigg _v._ Pennsylvania, 16 Pet. 539, 612 (1842). + +[217] 1 Stat. 302 (1793). + +[218] Jones _v._ Van Zandt, 5 How. 215, 229 (1847); Ableman _v._ Booth, +21 How. 506 (1859). + +[219] Prigg _v._ Pennsylvania, 16 Pet. 539, 625 (1842). + +[220] Moore _v._ Illinois, 14 How. 13, 17 (1853). + +[221] Escanaba & L.M. Transp. Co. _v._ Chicago, 107 U.S. 678, 689 +(1883). + +[222] Madison, Journal of the Debates in the Convention which Framed the +Constitution, 89 (Hunt's ed., 1908). + +[223] Ibid. 274. + +[224] Ibid. 275. + +[225] Pollard _v._ Hagan, 3 How. 212, 221 (1845). + +[226] 2 Stat. 701, 703 (1812). + +[227] Justice Harlan, speaking for the Court in United States _v._ +Texas, 143 U.S. 621, 634 (1892); 9 Stat. 108. + +[228] Permoli _v._ New Orleans, 3 How. 589, 609 (1845); McCabe _v._ +Atchison, T. & S.F.R. Co., 235 U.S. 151 (1914); Illinois Central R. Co. +_v._ Illinois, 146 U.S. 387, 434 (1892); Knight _v._ United Land Asso., +142 U.S. 161, 183 (1891); Weber _v._ State Harbor Comrs., 18 Wall. 57, +65 (1873). + +[229] Coyle _v._ Smith, 221 U.S. 559 (1911). + +[230] Ibid. 567. + +[231] United States _v._ Texas, 339 U.S. 707, 716 (1950); Stearns _v._ +Minnesota, 179 U.S. 223, 245 (1900). + +[232] Pollard _v._ Hagan, 3 How. 212, 223 (1845); McCabe _v._ Atchison, +T. & S.F.R. Co., 235 U.S. 151 (1914). + +[233] Van Brocklin _v._ Tennessee, 117 U.S. 151, 167 (1886). + +[234] Wilson _v._ Cook, 327 U.S. 474 (1946). + +[235] Permoli _v._ New Orleans, 3 How. 589, 609 (1845); Sands _v._ +Manistee River Imp. Co., 123 U.S. 288, 296 (1887); _see also_ Withers +_v._ Buckley, 20 How. 84, 92 (1858); Willamette Iron Bridge Co. _v._ +Hatch, 125 U.S. 1, 9 (1888); Cincinnati _v._ Louisville & N.R. Co., 223 +U.S. 390 (1912); Huse _v._ Glover, 119 U.S. 543,(1886). + +[236] Draper _v._ United States, 164 U.S. 240 (1896) following United +States _v._ McBratney, 104 U.S. 621 (1882). + +[237] Dick _v._ United States, 208 U.S. 340 (1908); Ex parte Webb, 225 +U.S. 663 (1912). + +[238] United States _v._ Sandoval, 231 U.S. 28 (1914). + +[239] Boyd _v._ Nebraska, 143 U.S. 135, 170 (1892). + +[240] Baker _v._ Morton, 12 Wall. 150, 153 (1871). + +[241] Freeborn _v._ Smith, 2 Wall. 160 (1865). + +[242] John _v._ Paullin, 231 U.S. 583 (1913). + +[243] Hunt _v._ Palao, 4 How. 589 (1846). _Cf._ Benner _v._ Porter, 9 +How. 235, 246 (1850). + +[244] 179 U.S. 223, 245 (1900). + +[245] How. 212, 223 (1845). _See also_ Martin _v._ Waddell, 16 Pet. 367, +410 (1842). + +[246] United States _v._ California, 332 U.S. 19, 38 (1947); United +States _v._ Louisiana, 339 U.S. 699 (1950). + +[247] 339 U.S. 707, 716 (1950). + +[248] Brown _v._ Grant, 116 U.S. 207, 212 (1886). + +[249] Shively _v._ Bowlby, 152 U.S. 1, 47 (1894). _See also_ Joy _v._ +St. Louis, 201 U.S. 332 (1906). + +[250] United States _v._ Winans, 198 U.S. 371, 378 (1905); Seufert Bros. +Co. _v._ United States, 249 U.S. 194 (1919). A fishing right granted by +treaty to Indians does not necessarily preclude the application to +Indians of State game laws regulating the time and manner of taking +fish. Kennedy _v._ Becker, 241 U.S. 556 (1916). But it has been held to +be violated by the exaction of a license fee which is both regulatory +and revenue-producing. Tulee _v._ Washington, 315 U.S. 681 (1942). + +[251] Ward _v._ Race Horse, 163 U.S. 504, 510, 514 (1896). + +[252] 14 Pet. 526 (1840). + +[253] Ibid. 533, 538. + +[254] Ashwander _v._ Tennessee Valley Authority, 297 U.S. 288, 335-340 +(1936). _See also_ Alabama Power Co. _v._ Ickes, 302 U.S. 464 (1938). + +[255] United States _v._ Fitzgerald, 15 Pet. 407, 521 (1841). _See also_ +California _v._ Deseret Water, Oil & Irrig. Co., 243 U.S. 415 (1917); +Utah Power & Light Co. _v._ United States, 243 U.S. 389 (1917). + +[256] Sioux Tribe _v._ United States, 316 U.S. 317 (1942); United States +_v._ Midwest Oil Co., 236 U.S. 459, 469 (1915). + +[257] Gibson _v._ Chouteau, 13 Wall. 92, 99 (1872); _see also_ Irvine +_v._ Marshall, 20 How. 558 (1858); Emblem _v._ Lincoln Land Co., 184 +U.S. 660, 664 (1902). + +[258] Bagnell _v._ Broderick, 13 Pet. 436, 450 (1839). _See also_ Field +_v._ Seabury, 19 How. 323, 332 (1857). + +[259] Tameling _v._ United States Freehold & Emigration Co., 93 U.S. +644, 663 (1877). _See also_ United States _v._ Maxwell Land-Grant and R. +Co., 121 U.S. 325, 366 (1887). + +[260] Ruddy _v._ Rossi, 248 U.S. 104 (1918). + +[261] Light _v._ United States, 220 U.S. 523 (1911). _See also_ +Hutchings _v._ Low, 15 Wall. 77 (1873). + +[262] Camfield _v._ United States, 167 U.S. 518, 525 (1897). _See also_ +Jourdan _v._ Barrett, 4 How. 169 (1846); United States _v._ Waddell, 112 +U.S. 76 (1884). + +[263] United States _v._ McGowan, 302 U.S. 535 (1938). + +[264] United States _v._ San Francisco, 310 U.S. 16 (1940). + +[265] Van Brocklin _v._ Tennessee, 117 U.S. 151 (1886); _cf._ Wilson +_v._ Cook, 327 U.S. 474 (1946). + +[266] Gibson _v._ Chouteau, 13 Wall 92, 99 (1872). _See also_ Irvine +_v._ Marshall, 20 How. 558 (1858); Emblem _v._ Lincoln Land Co., 184 +U.S. 660, 664 (1902). + +[267] Wilcox _v._ Jackson ex dem. M'Connel, 13 Pet. 498, 517 (1839). + +[268] Oklahoma _v._ Texas, 258 U.S. 574, 595 (1922). + +[269] United States _v._ Oregon, 295 U.S. 1, 28 (1935). + +[270] Simms _v._ Simms, 175 U.S. 162, 168 (1899). _See also_ United +States _v._ McMillan, 165 U.S. 504, 510 (1897); El Paso & N.E.R. Co. +_v._ Gutierrez, 215 U.S. 87 (1909); First Nat. Bank _v._ Yankton County, +101 U.S. 129, 133 (1880). + +[271] Binns _v._ United States, 194 U.S. 486, 491 (1904). _See also_ +Sere _v._ Pitot, 6 Cr. 332, 336 (1810); Murphy _v._ Ramsey, 114 U.S. 15, +44 (1885). + +[272] Walker _v._ New Mexico & S.P.R. Co., 165 U.S. 593, 604 (1897); +Simms _v._ Simms, 175 U.S. 162, 163 (1899); Wagoner _v._ Evans, 170 U.S. +588, 591 (1898). + +[273] 24 Stat. 170 (1886). + +[274] Downes _v._ Bidwell, 182 U.S. 244, 271 (1901). _See also_ +Interstate Commerce Commission _v._ United States ex rel. Humboldt S.S. +Co., 224 U.S. 474 (1912); Church of Jesus Christ of L.D.S. _v._ United +States, 136 U.S. 1, 44 (1890). + +[275] Dorr _v._ United States, 195 U.S. 138, 149 (1904). _See also_ +Balzac _v._ Porto Rico, 258 U.S. 298 (1922). + +[276] Rassmussen _v._ United States, 197 U.S. 516 (1905). + +[277] Hawaii _v._ Mankichi, 190 U.S. 197 (1903); R.M.C. Littler, The +Governance of Hawaii, Chap. III (1929). + +[278] American Ins. Co. _v._ Canter, 1 Pet. 511, 546 (1828). _See also_ +Romeu _v._ Todd, 206 U.S. 358, 368 (1907); United States _v._ McMillan, +165 U.S. 504, 510 (1897); McAllister _v._ United States, 141 U.S. 174, +180 (1891); The "City of Panama" _v._ Phelps, 101 U.S. 453, 460 (1880); +Reynolds _v._ United States, 98 U.S. 145, 154 (1879); Hornbuckle _v._ +Toombs, 18 Wall. 648, 655 (1874); Clinton _v._ Englebrecht, 13 Wall. +434, 447 (1872). + +[279] American Ins. Co. _v._ Canter, 1 Pet. 511, 545 (1828). + +[280] 7 How. 1 (1849). + +[281] Ibid. 42. _See also_ Ohio ex rel. Bryant _v._ Akron Metropolitan +Park District, 281 U.S. 74, 80 (1930); Mountain Timber Co. _v._ +Washington, 243 U.S. 219, 234 (1917). + +[282] 7 Wall. 700, 729 (1869). + +[283] Pacific States Teleph. & Teleg. Co. _v._ Oregon, 223 U.S. 118 +(1912); Kiernan _v._ Portland, 223 U.S. 151 (1912); Ohio ex rel. Davis +_v._ Hildebrant, 241 U.S. 565 (1916). + +[284] Ohio ex rel. Bryant _v._ Akron Metropolitan Park District, 281 +U.S. 74, 80 (1930); O'Neill _v._ Leamer, 239 U.S. 244 (1915); Highland +Farms Dairy Inc. _v._ Agnew, 300 U.S. 608, 612 (1937); Forsyth _v._ +Hammond, 166 U.S. 506, 519 (1897). + +[285] Taylor _v._ Beckham, 178 U.S. 548 (1900). _See also_ Marshall _v._ +Dye, 231 U.S. 250 (1914). + +[286] Minor _v._ Happersett, 21 Wall. 162, 175 (1875). + +[287] 7 How. 1 (1849). + +[288] 1 Stat. 424 (1795). + +[289] 7 How. 1, 43 (1849). + +[290] 158 U.S. 564 (1895). + +[291] Ibid. 582. + +[292] On the decline in observance of the formalities required by the +provision both before and during World War I, _see_ Corwin, The +President, Office and Powers (3d ed., 1948), 164-166. + + + + +ARTICLE V + +MODE OF AMENDMENT + + + Page +Amendment of the Constitution 711 + Scope of the amending power 711 + Procedure of adoption 712 + Submission of amendment 712 + Ratification 712 + Authentication and proclamation 713 + Judicial review under article V 714 + + +MODE OF AMENDMENT + + +Article V + +The Congress, whenever two thirds of both Houses shall deem it +necessary, shall propose Amendments to this Constitution, or, on the +Application of the Legislatures of two thirds of the several States, +shall call a Convention for proposing Amendments, which, in either Case, +shall be valid to all Intents and Purposes, as Part of this +Constitution, when ratified by the Legislatures of three fourths of the +several States, or by Conventions in three fourths thereof, as the one +or the other Mode of Ratification may be proposed by the Congress; +Provided that no Amendment which may be made prior to the Year One +thousand eight hundred and eight shall in any Manner affect the first +and fourth Clauses in the Ninth Section of the first Article; and that +no State, without its Consent, shall be deprived of its equal Suffrage +in the Senate. + + +Amendment of the Constitution + + +SCOPE OF AMENDING POWER + +When this Article was before the Constitutional Convention, a motion to +insert a provision that "no State shall without its consent be affected +in its internal policy" was made and rejected.[1] A further attempt to +impose a substantive limitation on the amending power was made in 1861, +when Congress submitted to the States a proposal to bar any future +amendments which would authorize Congress to "interfere, within any +State, with the domestic institutions thereof, * * *."[2] Three States +ratified this article before the outbreak of the Civil War made it +academic.[3] Many years later the validity of both the Eighteenth and +Nineteenth Amendments was challenged because of their content. The +arguments against the former took a wide range. Counsel urged that the +power of amendment is limited to the correction of errors in the framing +of the Constitution; that it does not comprehend the adoption of +additional or supplementary provisions. They contended further that +ordinary legislation cannot be embodied in a constitutional amendment +and that Congress cannot constitutionally propose any amendment which +involves the exercise or relinquishment of the sovereign powers of a +State.[4] The Nineteenth Amendment was attacked on the narrower ground +that a State which had not ratified the amendment would be deprived of +its equal suffrage in the Senate because its representatives in that +body would be persons not of its choosing, i.e., persons chosen by +voters whom the State itself had not authorized to vote for Senators.[5] +Brushing aside these arguments as unworthy of serious attention, the +Supreme Court held both amendments valid. + + +PROCEDURE OF ADOPTION + + +Submission of Amendment + +When Madison submitted to the House of Representatives the proposals +from which the Bill of Rights evolved, he contemplated that they should +be incorporated in the text of the original instrument.[6] Instead the +House decided to propose them as supplementary.[7] It ignored a +suggestion that the two Houses should first resolve that amendments are +necessary before considering specific proposals.[8] In the National +Prohibition Cases[9] the Supreme Court ruled that in proposing an +amendment the two Houses of Congress thereby indicated that they deemed +it necessary. That same case also established the proposition that the +vote required to propose an amendment was a vote of two thirds of the +members present--assuming the presence of a quorum--and not a vote of +two thirds of the entire membership present and absent.[10] The approval +of the President is not necessary for a proposed amendment.[11] + + +Ratification + +Congress may, in proposing an amendment, set a reasonable time limit for +its ratification. Two amendments proposed in 1789, one submitted in 1810 +and one in 1861, were never ratified. In Dillon _v._ Gloss[12] the Court +intimated that proposals which were clearly out of date were no longer +open for ratification. However, in Coleman _v._ Miller,[13] it refused +to pass upon the question whether the proposed child labor amendment, +submitted to the States in 1924, was open to ratification thirteen years +later. It held this to be a political question which would have to be +resolved by Congress in the event three fourths of the States ever gave +their assent to the proposal. With respect to the Eighteenth, Twentieth, +Twenty-first and Twenty-second Amendments, Congress included in the text +of these proposed amendments a section stating that the article should +be inoperative unless ratified within seven years. In Dillon _v._ Gloss +the Court sustained this limitation on the ground that it gave effect to +the implication of article V that ratification "must be within some +reasonable time after the proposal."[14] Congress has complete freedom +of choice between the two methods of ratification recognized by article +V--by the legislatures of the States, or conventions in the States. In +United States _v._ Sprague[15] counsel advanced the contention that the +Tenth Amendment recognized a distinction between powers reserved to the +States and powers reserved to the people, and that State legislatures +were competent to delegate only the former to the National Government; +delegation of the latter required action of the people through +conventions in the several States. The Eighteenth Amendment being of the +latter character, the ratification by State legislatures, so the +argument ran, was invalid. The Supreme Court rejected the argument. It +found the language of article V too clear to admit of reading any +exceptions into it by implication. + +The term "legislatures" as used in article V means deliberative, +representative bodies of the type which in 1789 exercised the +legislative power in the several States. It does not comprehend the +popular referendum which has subsequently become a part of the +legislative process in many of the States, nor may a State validly +condition ratification of a proposed constitutional amendment on its +approval by such a referendum.[16] In the words of the Court: "* * * the +function of a State legislature in ratifying a proposed amendment to the +Federal Constitution, like the function of Congress in proposing the +amendment, is a federal function derived from the Federal Constitution; +and it transcends any limitations sought to be imposed by the people of +a State."[17] + + +Authentication and Proclamation + +Formerly official notice from a State legislature, duly authenticated, +that it had ratified a proposed amendment went to the Secretary of +State, upon whom it was binding, "being certified by his proclamation, +[was] conclusive upon the courts" as against any objection which might +be subsequently raised as to the regularity of the legislative procedure +by which ratification was brought about.[18] This function of the +Secretary, purely ministerial in character, was, however, derived from +an act of Congress, and was recently transferred to a functionary called +Administrator of General Services.[19] In Dillon _v._ Gloss,[20] the +Supreme Court held that the Eighteenth Amendment became operative on the +date of ratification by the thirty-sixth State, rather than on the later +date of the proclamation issued by the Secretary of State, and doubtless +the same rule holds as to a similar proclamation by the Administrator. + + +JUDICIAL REVIEW UNDER ARTICLE V + +Prior to 1939, the Supreme Court had taken cognizance of a number of +diverse objections to the validity of specific amendments. Apart from +holding that official notice of ratification by the several States was +conclusive upon the courts,[21] it had treated these questions as +justiciable, although it had uniformly rejected them on the merits. In +that year, however, the whole subject was thrown into confusion by the +inconclusive decision in Coleman _v._ Miller.[22] This case came up on a +writ of certiorari to the Supreme Court of Kansas to review the denial +of a writ of mandamus to compel the Secretary of the Kansas Senate to +erase an endorsement on a resolution ratifying the proposed child labor +amendment to the Constitution to the effect that it had been adopted by +the Kansas Senate. The attempted ratification was assailed on three +grounds: (1) that the amendment had been previously rejected by the +State legislature; (2) that it was no longer open to ratification +because an unreasonable period of time, thirteen years, had elapsed +since its submission to the States, and (3) that the lieutenant governor +had no right to cast the deciding vote in the Senate in favor of +ratification. Four opinions were written in the Supreme Court, no one of +which commanded the support of more than four members of the Court. The +majority ruled that the plaintiffs, members of the Kansas State Senate, +had a sufficient interest in the controversy to give the federal courts +jurisdiction to review the case. Without agreement as to the grounds for +their decision, a different majority affirmed the judgment of the Kansas +court denying the relief sought. Four members who concurred in the +result had voted to dismiss the writ on the ground that the amending +process "is 'political' in its entirety, from submission until an +amendment becomes part of the Constitution, and is not subject to +judicial guidance, control or interference at any point."[23] Whether +the contention that the lieutenant governor should have been permitted +to cast the deciding vote in favor of ratification presented a +justiciable controversy was left undecided, the Court being equally +divided on the point.[24] In an opinion reported as "the opinion of the +Court," but in which it appears that only three Justices concurred, +Chief Justice Hughes declared that the writ of mandamus was properly +denied because the question as to the effect of the previous rejection +of the amendment and the lapse of time since it was submitted to the +States were political questions which should be left to Congress.[25] On +the same day, the Court dismissed a writ of certiorari to review a +decision of the Kentucky Court of Appeals declaring the action of the +Kentucky General Assembly purporting to ratify the child labor amendment +illegal and void. Inasmuch as the governor had forwarded the certified +copy of the resolution to the Secretary of State before being served +with a copy of the restraining order issued by the State court, the +Supreme Court found that there was no longer a controversy susceptible +of judicial determination.[26] + + +Notes + +[1] II Madison, Journal of Debates in the Constitutional Convention, +385-386 (Hunt's ed., 1908). + +[2] Cong. Globe, 1263 (1861). + +[3] Ames, Herman V., Proposed Amendments to the Constitution, 363 +(1896). + +[4] Rhode Island _v._ Palmer, 253 U.S. 350, 386 (1920). + +[5] Leser _v._ Garnett, 258 U.S. 130 (1922). + +[6] Annals of Congress 433-436 (1789). + +[7] Ibid. 717. + +[8] Ibid. 430. + +[9] Rhode Island _v._ Palmer, 253 U.S. 350, 386 (1920). + +[10] Ibid. + +[11] Hollingsworth _v._ Virginia, 3 Dall. 378 (1798). + +[12] 256 U.S. 368, 375 (1921). + +[13] 307 U.S. 433 (1939). + +[14] 256 U.S. 368, 375 (1921). + +[15] 282 U.S. 716 (1931). + +[16] Hawke _v._ Smith, 253 U.S. 221, 231 (1920). + +[17] Leser _v._ Garnett, 258 U.S. 130, 137 (1922). + +[18] Leser _v._ Garnett, 258 U.S. 130, 137 (1922). + +[19] 64 Stat. 979 (1950). + +[20] 256 U.S. 368, 376 (1921). + +[21] Leser _v._ Garnett, 258 U.S. 130 (1922). + +[22] 307 U.S. 433 (1939). _Cf._ Fairchild _v._ Hughes, 258 U.S. 126 +(1922), wherein the Court held that a private citizen could not sue in +the federal courts to secure an indirect determination of the validity +of a constitutional amendment about to be adopted. + +[23] 307 U.S. 433, 459 (1939). + +[24] Ibid. 446, 447. + +[25] Ibid. 450, 456. + +[26] Chandler _v._ Wise, 307 U.S. 474 (1939). + + + + +ARTICLE VI + +MISCELLANEOUS PROVISIONS + + + Page +Clause 1. Validity of debts and engagements 721 +Clause 2. Supremacy of the Constitution, etc. 721 + National supremacy 721 + Marshall's interpretation of the clause 721 + Supremacy Clause versus Tenth Amendment 722 + Status of the issue today 723 + Task of the Supreme Court under the clause 724 + Federal instrumentalities and the State police power 725 + Obligation of State courts under the Supremacy Clause 726 + Immunity of the federal judicial process 727 + Effect of laws passed by States in insurrection 728 + Doctrine of tax exemption 728 + McCulloch _v._ Maryland 728 + Applicability of doctrine in re federal securities, etc. 729 + Taxability of government contractors 730 + Status of doctrine today 731 + Ad valorem taxes under doctrine 732 + Public property and functions 732 + Fiscal institutions; legislative exemptions 733 + Atomic Energy Commission 734 + Royalties; a judicial anticlimax 734 + Immunity of lessees of Indian lands 735 + Summation and evaluation 735 +Clause 3. Oath of office 736 + Power of Congress in respect to oaths 736 + National duties of State officers 736 + + +MISCELLANEOUS PROVISIONS + + +Article VI + +Clause 1. All Debts contracted and Engagements entered into, before the +Adoption of this Constitution, shall be as valid against the United +States under this Constitution, as under the Confederation. + +Clause 2. This Constitution, and the Laws of the United States which +shall be made in Pursuance thereof; and all Treaties made, or which +shall be made, under the Authority of the United States, shall be the +supreme Law of the Land; and the Judges in every State shall be bound +thereby, any Thing in the Constitution or Laws of any State to the +Contrary notwithstanding. + + +National Supremacy + + +MARSHALL'S INTERPRETATION OF THE CLAUSE + +Although the Supreme Court had held prior to Marshall's appointment to +the Bench, that the supremacy clause rendered null and void a State +constitutional or statutory provision which was inconsistent with a +treaty executed by the Federal Government,[1] it was left for him to +develop the full significance of the clause as applied to acts of +Congress. By his vigorous opinions in McCulloch _v._ Maryland[2] and +Gibbons _v._ Ogden[3] he gave the principle a vitality which survived a +century of vacillation under the doctrine of dual federalism. In the +former case, he asserted broadly that "the States have no power, by +taxation or otherwise, to retard, impede, burden, or in any manner +control, the operations of the constitutional laws enacted by Congress +to carry into execution the powers vested in the general government. +This is, we think, the unavoidable consequence of that supremacy which +the Constitution has declared."[4] From this he concluded that a State +tax upon notes issued by a branch of the Bank of the United States was +void. In Gibbons _v._ Ogden, the Court held that certain statutes of New +York granting an exclusive right to use steam navigation on the waters +of the State were null and void insofar as they applied to vessels +licensed by the United States to engage in coastwise trade. Said the +Chief Justice: "In argument, however, it has been contended, that if a +law passed by a State, in the exercise of its acknowledged sovereignty, +comes into conflict with a law passed by Congress in pursuance of the +Constitution, they affect the subject, and each other, like equal +opposing powers. But the framers of our Constitution foresaw this state +of things, and provided for it, by declaring the supremacy not only of +itself, but of the laws made in pursuance of it. The nullity of an act, +inconsistent with the Constitution, is produced by the declaration, that +the Constitution is the supreme law. The appropriate application of that +part of the clause which confers the same supremacy on laws and +treaties, is to such acts of the State legislatures as do not transcend +their powers, but though enacted in the execution of acknowledged State +powers, interfere with, or are contrary to the laws of Congress, made in +pursuance of the Constitution, or some treaty made under the authority +of the United States. In every such case, the act of Congress, or the +treaty, is supreme; and the law of the State, though enacted in the +exercise of powers not controverted, must yield to it."[5] + + +SUPREMACY CLAUSE VERSUS TENTH AMENDMENT + +The logic of the supremacy clause would seem to require that the powers +of Congress be determined by the fair reading of the express and implied +grants contained in the Constitution itself, without reference to the +powers of the States. For a century after Marshall's death, however, the +Court proceeded on the theory that the Tenth Amendment had the effect of +withdrawing various matters of internal police from the reach of power +expressly committed to Congress. This point of view was originally put +forward in New York _v._ Miln,[6] which was first argued, but not +decided, before Marshall's death. The Miln Case involved a New York +statute which required the captains of vessels entering New York Harbor +with aliens aboard to make a report in writing to the Mayor of the City, +giving certain prescribed information. It might have been distinguished +from Gibbons _v._ Ogden on the ground that the statute involved in the +earlier case conflicted with an act of Congress, whereas the Court found +that no such conflict existed in this case. But the Court was unwilling +to rest its decision on that distinction. Speaking for the majority, +Justice Barbour seized the opportunity to proclaim a new doctrine. He +wrote: "But we do not place our opinion on this ground. We choose rather +to plant ourselves on what we consider impregnable positions. They are +these: That a State has the same undeniable and unlimited jurisdiction +over all persons and things, within its territorial limits, as any +foreign nation, where that jurisdiction is not surrendered or restrained +by the Constitution of the United States. That, by virtue of this, it is +not only the right, but the bounden and solemn duty of a State, to +advance the safety, happiness and prosperity of its people, and to +provide for its general welfare, by any and every act of legislation, +which it may deem to be conducive to these ends; where the power over +the particular subject, or the manner of its exercise is not surrendered +or restrained, in the manner just stated. That all those powers which +relate to merely municipal legislation, or what may, perhaps, more +properly be called _internal police_, are not thus surrendered or +restrained; and that, consequently, in relation to these, the authority +of a State is complete, unqualified, and exclusive."[7] Justice Story, +in dissent, stated that Marshall had heard the previous argument and +reached the conclusion that the New York statute was +unconstitutional.[8] + + +Status of the Issue Today + +The conception of a "complete, unqualified and exclusive" police power +residing in the States and limiting the powers of the National +Government was endorsed by Chief Justice Taney ten years later in the +License Cases.[9] In upholding State laws requiring licenses for the +sale of alcoholic beverages, including those imported from other States +or from foreign countries, he set up the Supreme Court as the final +arbiter in drawing the line between the mutually exclusive, reciprocally +limiting fields of power occupied by the National and State +Governments.[10] This view has, in effect, and it would seem in theory +also, been repudiated in recent cases upholding labor relations,[11] +social security,[12] and fair labor standards acts[13] passed by +Congress. + + +TASK OF THE SUPREME COURT UNDER THE CLAUSE + +In applying the supremacy clause to subjects which have been regulated +by Congress, the primary task of the Court is to ascertain whether a +challenged State law is compatible with the policy expressed in the +federal statute. When Congress condemns an act as unlawful, the extent +and nature of the legal consequences of the condemnation are federal +questions, the answers to which are to be derived from the statute and +the policy which it has adopted. To the federal statute and policy, +conflicting State law and policy must yield.[14] But Congress in +enacting legislation within its constitutional authority will not be +deemed to have intended to strike down a State statute to protect the +health and safety of the public unless its purpose to do so is clearly +manifested.[15] + +When the United States performs its functions directly, through its own +officers and employees, State police regulations clearly are +inapplicable. In reversing the conviction of the governor of a national +soldiers' home for serving oleomargarine in disregard of State law, the +Court said that the federal officer was not "subject to the jurisdiction +of the State in regard to those very matters of administration which are +thus approved by Federal authority."[16] An employee of the Post Office +Department is not required to submit to examination by State authorities +concerning his competence and to pay a license fee before performing his +official duty in driving a motor truck for transporting the mail.[17] To +Arizona's complaint, in a suit to enjoin the construction of Boulder +Dam, that her quasi-sovereignty would be invaded by the building of the +dam without first securing approval of the State engineer as required by +its laws, Justice Brandeis replied that, "if Congress has power to +authorize the construction of the dam and reservoir, Wilbur [Secretary +of the Interior] is under no obligation to submit the plans and +specifications to the State Engineer for approval."[18] + + +FEDERAL INSTRUMENTALITIES AND THE STATE POLICE POWER + +Federal instrumentalities and agencies have never enjoyed the same +degree of immunity from State police regulation as from State taxation. +The Court has looked to the nature of each regulation to determine +whether it is compatible with the functions committed by Congress to the +federal agency. This problem has arisen most often with reference to the +applicability of State laws to the operation of national banks. Two +correlative propositions have governed the decisions in these cases. The +first was stated by Justice Miller in First National Bank _v._ +Kentucky:[19] "[National banks are] subject to the laws of the State, +and are governed in their daily course of business far more by the laws +of the State than of the Nation. All their contracts are governed and +construed by State laws. Their acquisition and transfer of property, +their right to collect their debts, and their liability to be sued for +debts, are all based on State law. It is only when the State law +incapacitates the banks from discharging their duties to the government +that it becomes unconstitutional."[20] In Davis _v._ Elmira Savings +Bank,[21] the Court stated the second proposition thus: "National banks +are instrumentalities of the Federal Government, created for a public +purpose, and as such necessarily subject to the paramount authority of +the United States. It follows that an attempt, by a State, to define +their duties or control the conduct of their affairs is absolutely void, +wherever such attempted exercise of authority expressly conflicts with +the laws of the United States, and either frustrates the purpose of the +national legislation or impairs the efficiency of these agencies of the +Federal Government to discharge the duties, for the performance of which +they were created."[22] Instructive, too, is a comparison of two other +decisions. In the first,[23] the Court held that the fact that the Texas +and Pacific Railway Company was a corporation organized under a statute +of the United States did not remove it from the control of the Texas +railroad commission as to business done wholly within the State. In the +second,[24] the Court vetoed the attempt of Maryland to require a post +office employee to cease driving a United States motor truck in the +transportation of mail over a post road until he should obtain a license +by submitting to examination before a State official and paying a fee. +"Of course," said Justice Holmes, "an employee of the United States does +not secure a general immunity from State law while acting in the course +of his employment"; but this time the State went too far. + +The extent to which States may go in regulating contractors who furnish +goods or services to the Federal Government is not as clearly +established as is their right to tax such dealers. In 1943, a closely +divided Court sustained the refusal of the Pennsylvania Milk Control +Commission to renew the license of a milk dealer who, in violation of +State law, had sold milk to the United States for consumption by troops +at an army camp located on land belonging to the State, at prices below +the minima established by the Commission.[25] The majority was unable to +find in Congressional legislation, or in the Constitution, unaided by +Congressional enactment, any immunity from such price-fixing +regulations. On the same day, a different majority held that California +could not penalize a milk dealer for selling milk to the War Department +at less than the minimum price fixed by State law where the sales and +deliveries were made in a territory which had been ceded to the Federal +Government by the State and were subject to the exclusive jurisdiction +of the former.[26] + + +OBLIGATION OF STATE COURTS UNDER THE SUPREMACY CLAUSE + +The Constitution, laws and treaties of the United States are as much a +part of the law of every State as its own local laws and Constitution. +Their obligation "is imperative upon the State judges, in their official +and not merely in their private capacities. From the very nature of +their judicial duties, they would be called upon to pronounce the law +applicable to the case in judgment. They were not to decide merely +according to the laws or Constitution of the State, but according to the +laws and treaties of the United States--'the supreme law of the +land.'"[27] State courts have both the power and the duty to enforce +obligations arising under federal law, unless Congress gives the federal +courts exclusive jurisdiction. The power of State courts to entertain +such suits was affirmed in Claflin _v._ Houseman[28] in 1876, thus +setting at rest the doubts which had been raised by an early dictum of +Justice Story.[29] In the Claflin case Justice Bradley asserted on +behalf of a unanimous court that: "If an Act of Congress gives a penalty +to a party aggrieved, without specifying a remedy for its enforcement, +there is no reason why it should not be enforced, if not provided +otherwise by some act of Congress, by a proper action in a State court. +The fact that a State court derives its existence and functions from the +State laws is no reason why it should not afford relief, because it is +subject also to the laws of the United States, and is just as much bound +to recognize these as operative within the State as it is to recognize +the State laws."[30] When the Supreme Court of Connecticut held that +rights created by the Federal Employer's Liability Acts could not be +enforced in the courts of that State because the act was contrary to +State policy, the Supreme Court unanimously reversed that decision. +Said Justice Van Devanter: "The suggestion that the act of Congress is +not in harmony with the policy of the State, and therefore that the +courts of the State are free to decline jurisdiction, is quite +inadmissible, because it presupposes what in legal contemplation does +not exist. When Congress, in the exertion of the power confided to it by +the Constitution, adopted that act, it spoke for all the people and all +the States, and thereby established a policy for all. That policy is as +much the policy of Connecticut as if the act had emanated from its own +legislature, and should be respected accordingly in the courts of the +State."[31] Even if a federal statute is penal in character, a State may +not refuse to enforce it if Congress allows it to take concurrent +jurisdiction. In Testa _v._ Katt,[32] the Supreme Court reversed a +holding of Rhode Island's highest court that, inasmuch as a State need +not enforce the penal laws of another jurisdiction, a suit for treble +damages for violation of OPA regulations could not be maintained in the +courts of the State. Without determining the nature of the statute, it +affirmed once more without dissent that "the policy of the federal Act +is the prevailing policy in every state."[33] + + +IMMUNITY OF THE FEDERAL JUDICIAL PROCESS + +It would seem self-evident that a State court cannot interfere with the +functioning of a federal tribunal. But this proposition has not always +gone unchallenged. Shortly before the Civil War, the Supreme Court of +Wisconsin, holding the federal fugitive slave law invalid, ordered a +United States marshal to release a prisoner who had been convicted of +aiding and abetting the escape of a fugitive slave. In a further act of +defiance, the State court instructed its clerk to disregard and refuse +obedience to the writ of error issued by the United States Supreme +Court. Strongly denouncing this interference with federal authority, +Chief Justice Taney held that when a State court is advised, on the +return of a writ of _habeas corpus_, that the prisoner is in custody on +authority of the United States, it can proceed no further.[34] To +protect the performance of its functions against interference by State +tribunals, Congress may constitutionally authorize the removal to a +federal court of a criminal prosecution commenced in a State court +against a revenue officer of the United States on account of any act +done under color of his office.[35] In the celebrated case of Cunningham +_v._ Neagle,[36] a United States marshal who, while assigned to protect +Justice Field, killed the man who had been threatening the life of the +latter, was charged with murder by the State of California. Invoking the +supremacy clause, the Supreme Court held that a person could not be +guilty of a crime under State law for doing what it was his duty to do +as an officer of the United States. + + +EFFECT OF LAWS PASSED BY STATES IN INSURRECTION + +Since the efforts of States to depart from the Union, if successful, +would have been _pro tanto_ a destruction of the Constitution,[37] the +ordinances of secession adopted by the Confederate States,[38] and all +acts of legislation intended to give effect to such ordinances,[39] were +treated as absolute nullities. The obligation of every State, as a +member of the Union, and the obligation of every citizen of the State, +as a citizen of the United States, remained perfect and unimpaired.[40] +But acts necessary to peace and good order among citizens, such, for +example, as acts sanctioning and protecting marriage and domestic +relations, governing the course of descents, regulating the conveyance +of property, real and personal, and providing remedies for injuries to +person and estate, and other similar acts, which would be valid if +emanating from a lawful government, were regarded in general as valid +when proceeding from an actual, though unlawful government.[41] + + +The Doctrine of Tax Exemption + + +McCULLOCH _v._ MARYLAND + +Five years after the decision in McCulloch _v._ Maryland that a State +may not tax an instrumentality of the Federal Government, the Court was +asked to and did reexamine the entire question in Osborn _v._ Bank of +the United States.[42] In that case counsel for the State of Ohio, whose +attempt to tax the Bank was challenged, put forward two arguments of +great importance. In the first place it was "contended, that, admitting +Congress to possess the power, this exemption ought to have been +expressly asserted in the act of incorporation; and, not being +expressed, ought not to be implied by the Court."[43] To which Marshall +replied that: "It is no unusual thing for an act of Congress to imply, +without expressing, this very exemption from state control, which is +said to be so objectionable in this instance."[44] Secondly the +appellants relied "greatly on the distinction between the bank and the +public institutions, such as the mint or the post-office. The agents in +those offices are, it is said, officers of government, * * * Not so the +directors of the bank. The connection of the government with the bank, +is likened to that with contractors."[45] Marshall accepted this +analogy, but not to the advantage of the appellants. He simply indicated +that all contractors who dealt with the Government were entitled to +immunity from taxation upon such transactions.[46] Thus not only was the +decision of McCulloch _v._ Maryland reaffirmed but the foundation was +laid for the vast expansion of the principle of immunity that was to +follow in the succeeding decades. + + +APPLICABILITY OF DOCTRINE _IN RE_ FEDERAL SECURITIES, ETC. + +The first significant extension of the doctrine of the immunity of +federal instrumentalities from State taxation came in Weston _v._ +Charleston,[47] where Chief Justice Marshall also found in the supremacy +clause a bar to State taxation of obligations of the United States. +During the Civil War, when Congress authorized the issuance of legal +tender notes, it explicitly declared that such notes, as well as United +States bonds and other securities, should be exempt from State +taxation.[48] A modified version of this section remains on the statute +books today.[49] The right of Congress to exempt legal tender notes to +the same extent as bonds was sustained in People _v._ Board of +Supervisors[50] over the objection that such notes circulated as money +and should be taxable in the same way as coin. But a State tax on checks +issued by the Treasurer of the United States for interest accrued upon +government bonds was sustained since it did not in any wise affect the +credit of the National Government.[51] Similarly, the assessment for an +_ad valorem_ property tax of an open account for money due under a +federal contract,[52] and the inclusion of the value of United States +bonds owned by a decedent, in measuring an inheritance tax,[53] were +held valid, since neither tax would substantially embarrass the power of +the United States to secure credit. + +Income from federal securities is also beyond the reach of the State +taxing power as the cases now stand.[54] Nor can such a tax be imposed +indirectly upon the stockholders on such part of the corporate dividends +as corresponds to the part of the corporation's income which is not +assessed, i.e., income from tax exempt bonds.[55] A State may +constitutionally levy an excise tax on corporations for the privilege of +doing business, and measure the tax by the property or net income of the +corporation, including tax exempt United States securities or the income +derived therefrom.[56] The designation of a tax is not controlling.[57] +Where a so-called "license tax" upon insurance companies, measured by +gross income, including interest on government bonds, was, in effect, a +commutation tax levied in lieu of other taxation upon the personal +property of the taxpayer, it was still held to amount to an +unconstitutional tax on the bonds themselves.[58] + + +TAXATION OF GOVERNMENT CONTRACTORS + +In the course of his opinion in Osborn _v._ Bank of the United +States,[59] Chief Justice Marshall posed the question: "Can a contractor +for supplying a military post with provisions, be restrained from making +purchases within any state, or from transporting the provisions to the +place at which the troops were stationed? or could he be fined or taxed +for doing so? We have not yet heard these questions answered in the +affirmative."[60] One hundred and thirteen years later, the Court did +answer the last part of his inquiry in the affirmative. In James _v._ +Dravo Contracting Company[61] it held that a State may impose an +occupation tax upon an independent contractor, measured by his gross +receipts under contracts with the United States. Previously it had +sustained a gross receipts tax levied in lieu of a property tax upon the +operator of an automobile stage line, who was engaged in carrying the +mails as an independent contractor,[62] and an excise tax on gasoline +sold to a contractor with the Federal Government and used to operate +machinery in the construction of levees in the Mississippi River.[63] +Subsequently it has approved State taxes on the net income of a +government contractor,[64] income[65] and social security[66] taxes on +the operators of bath houses maintained in a National Park under a lease +from the United States; sales and use taxes on sales of beverages by a +concessionaire in a National Park,[67] and on purchases of materials +used by a contractor in the performance of a cost-plus contract with the +United States,[68] and a severance tax imposed on a contractor who +severed and purchased timber from lands owned by the United States.[69] + + +STATUS OF DOCTRINE TODAY + +Of a piece with James _v._ Dravo Contracting Co. was the decision in +Graves _v._ O'Keefe,[70] handed down two years later. Repudiating the +theory "that a tax on income is legally or economically a tax on its +source," the Court held that a State could levy a nondiscriminatory +income tax upon the salary of an employee of a government corporation. +In the opinion of the Court, Justice Stone intimated that Congress could +not validly confer such an immunity upon federal employees. He wrote: +"The burden, so far as it can be said to exist or to affect the +government in any indirect or incidental way, is one which the +Constitution presupposes; and hence it cannot rightly be deemed to be +within an implied restriction upon the taxing power of the national and +state governments which the Constitution has expressly granted to one +and has confirmed to the other. The immunity is not one to be implied +from the Constitution, because if allowed it would impose to an +inadmissible extent a restriction on the taxing power which the +Constitution has reserved to the state governments."[71] Chief Justice +Hughes concurred in the result without opinion. Justices Butler and +McReynolds dissented and Justice Frankfurter wrote a concurring opinion +in which he reserved judgment as to "whether Congress may, by express +legislation, relieve its functionaries from their civic obligations to +pay for the benefits of the State governments under which they +live...."[72] + + +_AD VALOREM_ TAXES UNDER THE DOCTRINE + +Property owned by a federally chartered corporation engaged in private +business is subject to State and local _ad valorem_ taxes. This was +conceded in McCulloch _v._ Maryland,[73] and confirmed a half century +later with respect to railroads incorporated by Congress.[74] Similarly, +a property tax may be levied against the lands under water which are +owned by a person holding a license under the Federal Water Power +Act.[75] Land conveyed by the United States to a corporation for dry +dock purposes was subject to a general property tax, despite a +reservation in the conveyance of a right to free use of the dry dock and +a provision for forfeiture in case of the continued unfitness of the dry +dock for use, or the use of the land for other purposes.[76] Where +equitable title has passed to the purchaser of land from the Government, +a State may tax the equitable owner on the full value thereof, despite +the retention of legal title by the Government,[77] but the equitable +title passes otherwise.[78] Recently a divided Court held that where the +Government purchased movable machinery and leased it to a private +contractor, the lessee could not be taxed on the full value of the +equipment.[79] In the pioneer case of Van Brocklin _v._ Tennessee,[80] +the State was denied the right to sell for taxes lands which the United +States owned at the time the taxes were levied, but in which it had +ceased to have any interest at the time of sale. Nor can a State assess +land in the hands of private owners for benefits from a road improvement +completed while it was owned by the United States.[81] + + +PUBLIC PROPERTY AND FUNCTIONS + +Property owned by the United States is, of course, wholly immune to +State taxation.[82] No State can regulate, by the imposition of an +inspection fee, any activity carried on by the United States directly +through its own agents and employees.[83] An early case whose authority +is now uncertain held invalid a flat rate tax on telegraphic messages, +as applied to messages sent by public officers on official +business.[84] + + +FISCAL INSTITUTIONS; LEGISLATIVE EXEMPTIONS + +Fiscal institutions chartered by Congress, their shares and their +property, are taxable only with the consent of Congress and only in +conformity with the restrictions it has attached to its consent.[85] +Immediately after the Supreme Court construed the statute authorizing +the States to tax national bank shares as allowing a tax on the +preferred shares of such a bank held by the Reconstruction Finance +Corporation,[86] Congress passed a law exempting such shares from +taxation. The Court upheld this measure saying, "when Congress +authorized the States to impose such taxation, it did no more than +gratuitously grant them political power which they theretofore lacked. +Its sovereign power to revoke the grant remained unimpaired, the grant +of the privilege being only a declaration of legislative policy +changeable at will."[87] In Pittman _v._ Home Owners' Loan +Corporation[88] the Court sustained the power of Congress under the +necessary and proper clause to immunize the activities of the +Corporation from state taxation; and in Federal Land Bank _v._ Bismarck +Lumber Co.,[89] the like result was reached with respect to an attempt +by the State to impose a retail sales tax on a sale of lumber and other +building materials to the bank for use in repairing and improving +property that had been acquired by foreclosure of mortgages. The State's +principal argument proceeded thus: "Congress has authority to extend +immunity only to the governmental functions of the federal land banks; +the only governmental functions of the land banks are those performed by +acting as depositaries and fiscal agents for the federal government and +providing a market for governmental bonds; all other functions of the +land banks are private; petitioner here was engaged in an activity +incidental to its business of lending money, an essentially private +function; therefore Sec. 26 cannot operate to strike down a sales tax upon +purchases made in furtherance of petitioner's lending functions."[90] +The Court rejected this argument and invalidated the tax saying: "The +argument that the lending functions of the federal land banks are +proprietary rather than governmental misconceives the nature of the +federal government with respect to every function which it performs. The +federal government is one of delegated powers, and from that it +necessarily follows that any constitutional exercise of its delegated +powers is governmental. * * * It also follows that, when Congress +constitutionally creates a corporation through which the federal +government lawfully acts, the activities of such corporation are +governmental."[91] However, in the absence of federal legislation, a +state law laying a percentage tax on the users of safety deposit +services, measured by the banks' charges therefor, was held valid as +applied to national banks. The tax, being on the user, did not, the +Court held, impose an intrinsically unconstitutional burden on a federal +instrumentality.[92] + + +THE ATOMIC ENERGY COMMISSION; "ACTIVITIES" OF + +In the recent case of Carson _v._ Roane-Anderson Co.,[93] the Court was +confronted with an attempt on the part of Tennessee to apply its tax on +the use within the State of goods purchased elsewhere to a private +contractor for the Atomic Energy Commission and to vendors of such +contractors. This, the Court held, could not be done under Section 9 b +of the Atomic Energy Commission Act, which provides in part that: "The +Commission, and the property, activities, and income of the Commission, +are hereby expressly exempted from taxation in any manner or form by any +State, county, municipality, or any subdivision thereof."[94] The power +of exemption, said the Court, "stems from the power to preserve and +protect functions validly authorized--the power to make all laws +necessary and proper for carrying into execution the powers vested in +Congress."[95] The term, "activities," as used in the Act described, was +held to be nothing less "than all of the functions of the +Commission."[96] + + +ROYALTIES; A JUDICIAL ANTICLIMAX + +In 1928 the Court went so far as to hold that a State could not tax as +income royalties for the use of a patent issued by the United +States.[97] This proposition was soon overruled in Fox Film Corp. _v._ +Doyal,[98] where a privilege tax based on gross income and applicable to +royalties from copyrights was upheld. Likewise a State may lay a +franchise tax on corporations, measured by the net income from all +sources, and applicable to income from copyright royalties.[99] + + +IMMUNITY OF LESSEES OF INDIAN LANDS + +Another line of anomalous decisions conferring tax immunity upon lessees +of restricted Indian lands was overruled in 1949. The first of these +cases, Choctaw O. & G.R. Co. _v._ Harrison,[100] held that a gross +production tax on oil, gas and other minerals was an occupational tax, +and, as applied to a lessee of restricted Indian lands, was an +unconstitutional burden on such lessee, who was deemed to be an +instrumentality of the United States. Next the Court held the lease +itself a federal instrumentality immune from taxation.[101] A modified +gross production tax imposed in lieu of all _ad valorem_ taxes was +invalidated in two _per curiam_ decisions.[102] In Gillespie _v._ +Oklahoma[103] a tax upon the net income of the lessee derived from sales +of his share of oil produced from restricted lands also was condemned. +Finally a petroleum excise tax upon every barrel of oil produced in the +State was held inapplicable to oil produced on restricted Indian +lands.[104] In harmony with the trend to restricting immunity implied +from the Constitution to activities of the Government itself, the Court +overruled all these decisions in Oklahoma Tax Comm'n _v._ Texas Co. and +held that a lessee of mineral rights in restricted Indian lands was +subject to nondiscriminatory gross production and excise taxes, so long +as Congress did not affirmatively grant them immunity.[105] + + +SUMMATION AND EVALUATION + +Although McCulloch _v._ Maryland and Gibbons _v._ Ogden were expressions +of a single thesis--the supremacy of the National Government--their +development after Marshall's death has been sharply divergent. During +the period when Gibbons _v._ Ogden was eclipsed by the theory of dual +federalism, the doctrine of McCulloch _v._ Maryland was not merely +followed but greatly extended as a restraint on State interference with +federal instrumentalities. Conversely, the Court's recent return to +Marshall's conception of the powers of Congress has coincided with a +retreat from the more extreme positions taken in reliance upon McCulloch +_v._ Maryland. Today the application of the supremacy clause is +becoming, to an ever increasing degree, a matter of statutory +interpretation--a determination of whether State regulations can be +reconciled with the language and policy of federal enactments. In the +field of taxation, the Court has all but wiped out the private +immunities previously implied from the Constitution without explicit +legislative command. Broadly speaking, the immunity which remains is +limited to activities of the Government itself, and to that which is +explicitly created by statute, e.g., that granted to federal securities +and to fiscal institutions chartered by Congress. But the term, +activities, will be broadly construed. + + +Clause 3. The Senators and Representatives before mentioned, and the +Members of the several State Legislatures, and all executive and +judicial Officers, both of the United States and of the several States, +shall be bound by Oath or Affirmation, to support this Constitution; but +no religious Test shall ever be required as a Qualification to any +Office or public Trust under the United States. + + +Oath of Office + + +POWER OF CONGRESS IN RESPECT TO OATHS + +Congress may require no other oath of fidelity to the Constitution, but +it may superadd to this oath such other oath of office as its wisdom may +require.[106] It may not, however, prescribe a test oath as a +qualification for holding office, such an act being in effect an _ex +post facto_ law;[107] and the same rule holds in the case of the +States.[108] + + +NATIONAL DUTIES OF STATE OFFICERS + +Commenting in The Federalist No. 27 on the requirement that State +officers, as well as members of the State legislatures, shall be bound +by oath or affirmation to support this Constitution, Hamilton wrote: +"Thus the legislatures, courts, and magistrates, of the respective +members, will be incorporated into the operations of the national +government _as far as its just and constitutional authority extends_; +and it will be rendered auxiliary to the enforcement of its laws." The +younger Pinckney had expressed the same idea on the floor of the +Philadelphia Convention: "They [the States] are the instruments upon +which the Union must frequently depend for the support and execution of +their powers, * * *"[109] Indeed, the Constitution itself lays many +duties, both positive and negative, upon the different organs of State +government,[110] and Congress may frequently add others, provided it +does not require the State authorities to act outside their normal +jurisdiction. Early Congressional legislation contains many +illustrations of such action by Congress. + +The Judiciary Act of 1789[111] left the State courts in sole possession +of a large part of the jurisdiction over controversies between citizens +of different States and in concurrent possession of the rest. By other +sections of the same act State courts were authorized to entertain +proceedings by the United States itself to enforce penalties and +forfeitures under the revenue laws, while any justice of the peace or +other magistrate of any of the States was authorized to cause any +offender against the United States to be arrested and imprisoned or +bailed under the usual mode of process. Even as late as 1839, Congress +authorized all pecuniary penalties and forfeitures under the laws of the +United States to be sued for before any court of competent jurisdiction +in the State where the cause of action arose or where the offender might +be found.[112] Pursuant also of the same idea of treating State +governmental organs as available to the National Government for +administrative purposes, the act of 1793 entrusted the rendition of +fugitive slaves in part to national officials and in part of State +officials and the rendition of fugitives from justice from one State to +another exclusively to the State executives.[113] Certain later acts +empowered State courts to entertain criminal prosecutions for forging +paper of the Bank of the United States and for counterfeiting coin of +the United States,[114] while still others conferred on State judges +authority to admit aliens to national citizenship and provided penalties +in case such judges should utter false certificates of +naturalization--provisions which are still on the statute books.[115] + +With the rise of the doctrine of States Rights and of the equal +sovereignty of the States with the National Government, the availability +of the former as instruments of the latter in the execution of its +power, came to be questioned.[116] In Prigg _v._ Pennsylvania,[117] +decided in 1842, the constitutionality of the provision of the act of +1793 making it the duty of State magistrates to act in the return of +fugitive slaves was challenged; and in Kentucky _v._ Dennison,[118] +decided on the eve of the Civil War, similar objection was leveled +against the provision of the same act which made it "the duty" of the +Chief Executive of a State to render up a fugitive from justice upon the +demand of the Chief Executive of the State from which the fugitive had +fled. The Court sustained both provisions, but upon the theory that the +cooperation of the State authorities was purely voluntary. In the Prigg +Case the Court, speaking by Justice Story, said: "* * * state +magistrates may, if they choose, exercise the authority, [conferred by +the act] unless prohibited by state legislation."[119] In the Dennison +Case, "the duty" of State executives in the rendition of fugitives from +justice was construed to be declaratory of a "moral duty." Said Chief +Justice Taney for the Court: "The act does not provide any means to +compel the execution of this duty, nor inflict any punishment for +neglect or refusal on the part of the Executive of the State; nor is +there any clause or provision in the Constitution which arms the +Government of the United States with this power. Indeed, such a power +would place every State under the control and dominion of the General +Government, even in the administration of its internal concerns and +reserved rights. And we think it clear, that the Federal Government, +under the Constitution, has no power to impose on a State officer, as +such, any duty whatever, and compel him to perform it; for if it +possessed this power, it might overload the officer with duties which +would fill up all his time, and disable him from performing his +obligations to the State, and might impose on him duties of a character +incompatible with the rank and dignity to which he was elevated by the +State. It is true," the Chief Justice conceded, "that in the early days +of the Government, Congress relied with confidence upon the co-operation +and support of the States, when exercising the legitimate powers of the +General Government, and were accustomed to receive it, [but this, he +explained, was] upon principles of comity, and from a sense of mutual +and common interest, where no such duty was imposed by the +Constitution."[120] + +Eighteen years later, in Ex parte Siebold[121] the Court sustained the +right of Congress, under article I, section 4, paragraph 1 of the +Constitution, to impose duties upon State election officials in +connection with a Congressional election and to prescribe additional +penalties for the violation by such officials of their duties under +State law. While the doctrine of the holding is expressly confined to +cases in which the National Government and the States enjoy "a +concurrent power over the same subject matter," no attempt is made to +catalogue such cases. Moreover, the outlook of Justice Bradley's opinion +for the Court is decidedly nationalistic rather than dualistic, as is +shown by the answer made to the contention of counsel "that the nature +of sovereignty is such as to preclude the joint cooperation of two +sovereigns, even in a matter in which they are mutually concerned." To +this Justice Bradley replied: "As a general rule, it is no doubt +expedient and wise that the operations of the State and national +governments should, as far as practicable, be conducted separately, in +order to avoid undue jealousies and jars and conflicts of jurisdiction +and power. But there is no reason for laying this down as a rule of +universal application. It should never be made to override the plain and +manifest dictates of the Constitution itself. We cannot yield to such a +transcendental view of state sovereignty. The Constitution and laws of +the United States are the supreme law of the land, and to these every +citizen of every State owes obedience, whether in his individual or +official capacity."[122] Three years earlier the Court, speaking also by +Justice Bradley, sustained a provision of the Bankruptcy Act of 1867 +giving assignees a right to sue in State courts to recover the assets of +a bankrupt. Said the Court: The statutes of the United States are as +much the law of the land in any State as are those of the State; and +although exclusive jurisdiction for their enforcement may be given to +the federal courts, yet where it is not given, either expressly or by +necessary implication, the State courts having competent jurisdiction in +other respects, may be resorted to.[123] + +The Selective Service Act of 1917[124] was enforced to a great extent +through State "employees who functioned under State supervision";[125] +and State officials were frequently employed by the National Government +in the enforcement of National Prohibition.[126] Nowadays, there is +constant cooperation, both in peacetime and in wartime, in many fields +between National and State Officers and official bodies.[127] This +relationship obviously calls for the active fidelity of both categories +of officialdom to the Constitution. + + +Notes + +[1] On the supremacy of treaties over conflicting State law, _see_ pp. +414-418. The supremacy due to treaties has, within recent years, been +extended to certain executive agreements. _See_ Justice Douglas in +United States _v._ Pink, 315 U.S. 203 (1942). As to the supremacy of +Congressional legislation implementing the national judicial power, +_see_ Tennessee _v._ Davis, 100 U.S. 257, 266-267 (1880); and Ex parte +Siebold, 100 U.S. 404 (1880). + +[2] 4. Wheat. 316 (1819). Marshall had anticipated his argument in this +case in 1805, in United States _v._ Fisher, 2 Cr. 358 (1805), in which +he upheld the act of 1797 asserting for the United States a priority of +its claims over those of the States. _See_ Chief Justice Taft's opinion +in Spokane County _v._ United States, 279 U.S. 80, 87 (1929), where +United States _v._ Fisher is followed; _also_ 1 Warren, Supreme Court in +United States History, 372, 538 ff. + +[3] 9 Wheat. 1 (1824). + +[4] 4 Wheat. 316, 436 (1819). + +[5] 9 Wheat. 1, 210-211 (1824). + +[6] 11 Pet. 102 (1837). + +[7] Ibid. 139. + +[8] Ibid. 161. + +[9] 5 How. 504 (1847). + +[10] Ibid. 573-574. + +[11] National Labor Relations Board _v._ Jones & Laughlin Steel +Corporation, 301 U.S. 1 (1937). + +[12] Steward Machine Co. _v._ Davis, 301 U.S. 548 (1937); Helvering _v._ +Davis, 301 U.S. 619 (1937). + +[13] United States _v._ Darby, 312 U.S. 100 (1941); _see_ especially +ibid. 113-124. + +[14] Sola Electric Co. _v._ Jefferson Electric Co., 317 U.S. 173, 170 +(1942); Hill _v._ Florida, 325 U.S. 538 (1945); _see also_ Testa _v._ +Katt, 330 U.S. 380, 391 (1947); Francis _v._ Southern Pacific Co. 333 +U.S. 445 (1918); and Bus Employers _v._ Wisconsin Board, 340 U.S. 383 +(1951). + +[15] Southern Pacific Co. _v._ Arizona, 825 U.S. 761 (1945); Rice _v._ +Santa Fe Elevator Co., 331 U.S. 218, 230 (1947); Auto Workers _v._ Wis. +Board, 336 U.S. 245, 253 (1949); United States _v._ Burnison, 339 U.S. +87, 91-92 (1950). + +[16] Ohio _v._ Thomas, 173 U.S. 276, 283 (1899). + +[17] Johnson _v._ Maryland, 254 U.S. 51 (1920). + +[18] Arizona _v._ California, 283 U.S. 423, 451 (1931). + +[19] 9 Wall. 353 (1870). + +[20] Ibid. 362. + +[21] 161 U.S. 275 (1896). + +[22] Ibid. 283. + +[23] Reagan _v._ Mercantile Trust Co., 154 U.S. 413 (1894). + +[24] Johnson _v._ Maryland, 254 U.S. 51, 56 (1920). + +[25] Penn Dairies _v._ Milk Control Comm'n., 318 U.S. 261 (1943). + +[26] Pacific Coast Dairy _v._ Dept. of Agriculture, 318 U.S. 285 (1943). + +[27] Martin _v._ Hunter's Lessee, 1 Wheat. 304, 335 (1816). + +[28] 93 U.S. 130 (1876). + +[29] Martin _v._ Hunter's Lessee, 1 Wheat. 304, 335 (1816). + +[30] 93 U.S. 130, 137 (1876). + +[31] Mondou _v._ New York, N.H. & H.R. Co., 223 U.S. 1, 57 (1912). + +[32] 330 U.S. 386 (1947). + +[33] Ibid. 393. + +[34] Ableman _v._ Booth, 21 How. 506, 523 (1859), followed in United +States _v._ Tarble, 13 Wall. 397 (1872). + +[35] Tennessee _v._ Davis, 100 U.S. 257 (1880); _see also_ Maryland _v._ +Soper, 270 U.S. 36 (1926). + +[36] 135 U.S. 1 (1890). + +[37] Keith _v._ Clark, 97 U.S. 454, 461 (1878). + +[38] White _v._ Cannon, 6 Wall. 443, 450 (1868). _See also_ Hickman _v._ +Jones, 9 Wall. 197 (1870); Dewing _v._ Perdicaries, 96 U.S. 193, 195 +(1878). + +[39] Ford _v._ Surget, 97 U.S. 594, 604 (1878); United States _v._ +Keehler, 9 Wall. 83, 86 (1870). + +[40] Texas _v._ White, 7 Wall. 700, 726 (1869). + +[41] Ibid. 733. _See also_ Horn _v._ Lockhart, 17 Wall. 570, 580 (1873); +Thomas _v._ Richmond, 12 Wall. 349, 357 (1871); White _v._ Hart, 13 +Wall. 646 (1872); United States _v._ Home Ins. Co., 22 Wall. 99 (1875); +Taylor _v._ Thomas, 22 Wall. 479 (1875); and Huntington _v._ Texas, 16 +Wall. 402 (1873). + +[42] 9 Wheat. 788 (1924). + +[43] Ibid. 865. + +[44] Ibid. + +[45] Ibid. 866. + +[46] Ibid. 867. + +[47] 2 Pet. 449 (1829), followed in New York ex rel. Bank of Commerce +_v._ Comrs. of Taxes and Assessments, 2 Bl. 620 (1863). + +[48] 12 Stat. 710 (1863). + +[49] 31 U.S.C. Sec. 742 (1946). + +[50] 7 Wall. 26 (1869). + +[51] Hibernia Sav. & L. Soc. _v._ San Francisco, 200 U.S. 310, 315 +(1906). + +[52] Smith _v._ Davis, 323 U.S. 111 (1944). + +[53] Plummer _v._ Coler, 178 U.S. 115 (1900); Blodgett _v._ Silberman, +277 U.S. 1, 12 (1928). + +[54] Northwestern Mutual L. Ins. Co. _v._ Wisconsin, 275 U.S. 136, 140 +(1927). + +[55] Miller _v._ Milwaukee, 272 U.S. 713 (1927). + +[56] Provident Inst. for Savings _v._ Massachusetts, 6 Wall. 611 (1868); +Society for Savings _v._ Coite, 6 Wall. 594 (1868); Hamilton Mfg. Co. +_v._ Massachusetts, 6 Wall. 632 (1868); Home Ins. Co. _v._ New York, 134 +U.S. 594 (1890). + +[57] Macallen _v._ Massachusetts, 279 U.S. 620, 625 (1929). + +[58] Northwestern Mutual L. Ins. Co. _v._ Wisconsin, 275 U.S. 136 +(1927). + +[59] 9 Wheat. 738 (1824). + +[60] Ibid. 867. + +[61] 302 U.S. 134 (1937). + +[62] Alward _v._ Johnson, 282 U.S. 509 (1931). + +[63] Trinityfarm Const. Co. _v._ Grosjean, 291 U.S. 466 (1934). + +[64] Atkinson _v._ Tax Commission, 303 U.S. 20 (1938). + +[65] Superior Bath House Co. _v._ McCarroll, 312 U.S. 176 (1941). + +[66] Buckstaff Bath House _v._ McKinley, 308 U.S. 358 (1939). + +[67] Collins _v._ Yosemite Park & Curry Co., 304 U.S. 518 (1938). + +[68] Alabama _v._ King & Boozer, 314 U.S. 1 (1941), overruling Panhandle +Oil Co. _v._ Knox, 277 U.S. 218 (1928) and Graves _v._ Texas Co., 298 +U.S. 393 (1936). _See also_ Curry _v._ United States, 314 U.S. 14 +(1941). + +[69] Wilson _v._ Cook, 327 U.S. 474 (1946). + +[70] 306 U.S. 466 (1939), followed in State Tax Comm'n. _v._ Van Cott, +306 U.S. 511 (1939). This case overruled by implication Dobbins _v._ +Erie County, 16 Pet. 435 (1842) and New York ex rel. Rogers _v._ Graves, +299 U.S. 401 (1937), which held the income of federal employees to be +immune from State taxation. + +[71] 306 U.S. 466, 487 (1939). + +[72] Ibid. 492. + +[73] 4 Wheat. 316, 426 (1819). + +[74] Thompson _v._ Union P.R. Co., 9 Wall. 579, 588 (1870); Railroad Co. +_v._ Peniston, 18 Wall. 5, 31 (1873). + +[75] Susquehanna Power Co. _v._ State Tax Comm'n., 283 U.S. 291 (1931). + +[76] Baltimore Shipbuilding & Dry Dock Co. _v._ Baltimore, 195 U.S. 375 +(1904). + +[77] Northern P.R. Co. _v._ Myers, 172 U.S. 589 (1899); New Brunswick +_v._ United States, 276 U.S. 547 (1928). + +[78] Irwin _v._ Wright, 258 U.S. 219 (1922). + +[79] United States _v._ Allegheny County, 322 U.S. 174 (1944). + +[80] 117 U.S. 151 (1886). + +[81] Lee _v._ Osceola & L. River Road Improv. Dist, 268 U.S. 643 (1925). + +[82] Clallam County _v._ United States, 263 U.S. 341 (1923). _See also_ +Cleveland _v._ United States, 323 U.S. 329, 333 (1945). + +[83] Mayo _v._ United States, 319 U.S. 441 (1943). + +[84] Western U. Teleg. Co. _v._ Texas, 105 U.S. 460, 464 (1882). + +[85] Des Moines Nat. Bank _v._ Fairweather, 263 U.S. 103, 106 (1923); +Owensboro Nat. Bank _v._ Owensboro, 173 U.S. 664, 669 (1899); First Nat. +Bank _v._ Adams, 258 U.S. 362 (1922). + +[86] Baltimore Nat. Bank _v._ State Tax Comm'n., 297 U.S. 209 (1936). + +[87] Maricopa County _v._ Valley National Bank, 318 U.S. 357, 362 +(1943). + +[88] 308 U.S. 21 (1939). + +[89] 314 U.S. 95 (1941). + +[90] Ibid. 101. + +[91] Ibid. 102; _cf._ 9 Wheat. 738, 864-865 (1824). + +[92] Colorado Nat. Bank _v._ Bedford, 310 U.S. 41 (1940). + +[93] 342 U.S. 232 (1952). + +[94] 60 Stat. 765; 42 U.S.C. Sec. 1809 (b). + +[95] 342 U.S. 232, 234. + +[96] Ibid. 236. + +[97] Long _v._ Rockwood, 277 U.S. 142 (1928). + +[98] 286 U.S. 123 (1932). + +[99] Educational Films Corp. _v._ Ward, 282 U.S. 379 (1931). + +[100] 235 U.S. 292 (1944). + +[101] Indian Territory Illuminating Oil Co. _v._ Oklahoma, 240 U.S. 522 +(1916). + +[102] Howard _v._ Gipsy Oil Co., 247 U.S. 503 (1918); Large Oil Co. _v._ +Howard, 248 U.S. 549 (1919). + +[103] 257 U.S. 501 (1922). + +[104] Oklahoma Tax Comm'n _v._ Barnsdall Refiners, 296 U.S. 521 (1936). + +[105] 330 U.S. 342 (1949). Justice Rutledge, speaking for the Court, +sketched the history of the immunity of lessees of Indian lands from +State taxation, which he found to stem from early rulings that tribal +lands are themselves immune (The Kansas Indians, 5 Wall. 737 (1867); The +New York Indians, 5 Wall. 761 (1867)). One of the first steps taken to +curtail the scope of the immunity was Shaw _v._ Gibson-Zahniser Oil +Corp., 276 U.S. 575 (1928), which held that lands outside a reservation, +though purchased with restricted Indian funds, were subject to State +taxation. Congress soon upset the decision, however, and its act was +sustained in Board of County Comm'rs _v._ Seber, 318 U.S. 705 (1943). + +[106] McCulloch _v._ Maryland, 4 Wheat. 316, 416 (1819). + +[107] Ex parte Garland, 4 Wall. 333, 337 (1867). + +[108] Cummings _v._ Missouri, 4 Wall. 277, 323 (1867). + +[109] The Federalist No. 27, p. 123; I Farrand Records, 404. + +[110] _See_ Article I, Section III, Paragraph 1; Section IV, Paragraph +1; Section X; Article II, Section I, Paragraph 2; Article III, Section +II, Paragraph 2; Article IV, Sections I and II; Article V; Amendments +XIII, XIV, XV, XVII, and XIX. + +[111] 1 Stat. 73 (1789). + +[112] 5 Stat. 322 (1839). + +[113] 1 Stat. 302 (1793). + +[114] 2 Stat. 404 (1806). + +[115] _See_ 2 Kent's Commentaries, 64-65 (1826); 34 Stat. 590, 602 +(1906); 8 U.S.C. Sec. 357, 379; 18 ibid. Sec. 135 (1934); _also_ +Holmgren _v._ United States, 217 U.S. 509 (1910). + +[116] For the development of opinion especially on the part of State +courts, adverse to the validity of the above mentioned legislation, +_see_ 1 Kent's Commentaries, 396-404 (1826). + +[117] 16 Pet. 539 (1842). + +[118] 24 How. 66 (1861). + +[119] 16 Pet. at 622. + +[120] 24 How. at 107-108. + +[121] 100 U.S. 371 (1880). + +[122] Ibid. 392. + +[123] Claflin _v._ Houseman, 93 U.S. 130, 136, 137 (1876); followed in +Second Employers' Liability Cases, 223 U.S. 1, 55-59 (1912). + +[124] 40 Stat. 76 (1917). + +[125] Jane Perry Clark, The Rise of a New Federalism, 91 (Columbia +University Press, 1938). + +[126] _See_ James Hart in 13 Virginia Law Review, 86-107 (1926) +discussing President Coolidge's order of May 8, 1926, for Prohibition +enforcement. + +[127] Clark, New Federalism, cited in note 2 above; [Transcriber's +Note: Reference is to Footnote 125, above.] Corwin, Court Over +Constitution, 148-168 (Princeton University Press, 1938). + + + + +ARTICLE VII + +RATIFICATION + + +Article VII + +The Ratification of the Conventions of nine States, shall be sufficient +for the Establishment of this Constitution between the States so +ratifying the Same. + + +IN GENERAL + +In Owings _v._ Speed,[1] the question at issue was whether the +Constitution of the United States operated upon an act of Virginia +passed in 1788. The Court held it did not, stating in part: + +"The Conventions of nine States having adopted the Constitution, +Congress, in September or October, 1788, passed a resolution in +conformity with the opinions expressed by the Convention, and appointed +the first Wednesday in March of the ensuing year as the day, and the +then seat of Congress as the place, 'for commencing proceedings under +the Constitution.' + +"Both Governments could not be understood to exist at the same time. The +new Government did not commence until the old Government expired. It is +apparent that the Government did not commence on the Constitution being +ratified by the ninth State; for these ratifications were to be reported +to Congress, whose continuing existence was recognized by the +Convention, and who were requested to continue to exercise their powers +for the purpose of bringing the new Government into operation. In fact, +Congress did continue to act as a Government until it dissolved on the +1st of November, by the successive disappearance of its Members. It +existed potentially until the 2d of March, the day preceding that on +which the Members of the new Congress were directed to assemble. + +"The resolution of the Convention might originally have suggested a +doubt, whether the Government could be in operation for every purpose +before the choice of a President; but this doubt has been long solved, +and were it otherwise, its discussion would be useless, since it is +apparent that its operation did not commence before the first Wednesday +in March 1789 * * *" + + +Notes + +[1] 5 Wheat. 420, 422-423 (1820). + + + + +AMENDMENTS TO THE CONSTITUTION + +AMENDMENTS NOS. 1-10 + +Bill of Rights + + + Page +History 749 + Ordinance of 1787 749 + Formulation and adoption of the bill of rights 750 + Bill of rights and the States: Barron _v._ Baltimore 750 + Bill of rights and Amendment XIV 750 + + +AMENDMENTS TO THE CONSTITUTION + + +AMENDMENTS NOS. 1-10 + +Bill of Rights + + +HISTORY: THE ORDINANCE OF 1787 + +While the Constitutional Convention was engaged in drafting the +Constitution, the Congress of the Confederation included in the +Ordinance for the government of the Northwest Territory, adopted July +13, 1787, the following provisions: + +"It is hereby ordained and declared by the authority aforesaid, that the +following articles shall be considered as articles of compact between +the original States and the people and States in the said territory and +forever remain unalterable, unless by common consent, to wit: + +"Art. 1. No person, demeaning himself in a peaceable and +orderly manner, shall ever be molested on account of his mode of worship +or religious sentiments, in the said territory. + +"Art. 2. The inhabitants of the said territory shall always be +entitled to the benefits of the writ of _habeas corpus_, and of the +trial by jury; of a proportionate representation of the people in the +legislature; and of judicial proceedings according to the course of the +common law. All persons shall be bailable, unless for capital offenses, +where the proof shall be evident or the presumption great. All fines +shall be moderate; and no cruel or unusual punishments shall be +inflicted. No man shall be deprived of his liberty or property, but by +the judgment of his peers or the law of the land; and, should the public +exigencies make it necessary, for the common preservation, to take any +person's property, or to demand his particular services, full +compensation shall be made for the same. And, in the just preservation +of rights and property, it is understood and declared, that no law ought +ever to be made, or have force in the said territory, that shall, in any +manner whatever, interfere with or affect private contracts or +engagements, _bona fide_, and without fraud, previously formed. + +"Art. 3. Religion, morality, and knowledge, being necessary to +good government and the happiness of mankind, schools and the means of +education shall forever be encouraged. + + * * * * * + +"Art. 6. There shall be neither slavery nor involuntary +servitude in the said territory, otherwise than in the punishment of +crimes whereof the party shall have been duly convicted: * * *"[1] + + +FORMULATION AND ADOPTION OF THE BILL OF RIGHTS + +Two months later, at the very end of its labors, the Constitutional +Convention rejected, with scant consideration, a proposal by Gerry and +Mason, to prepare a bill of rights.[2] This omission furnished the +principal argument urged against ratification of the Constitution. +Hamilton replied with the following ingenious argument: "* * * bills of +rights are in their origin, stipulations between kings and their +subjects, abridgments of prerogative in favor of privilege, reservations +of rights not surrendered to the prince. * * * It is evident, therefore, +that according to their primitive signification, they have no +application to the constitutions professedly founded upon the power of +the people, and executed by their immediate representatives and +servants. Here, in strictness, the people surrender nothing; and as they +retain everything, they have no need of particular reservations."[3] + +The people did not find this line of reasoning persuasive. Several +States ratified only after Washington put forward the suggestion that +the desired guarantees could be added by amendment.[4] No less than 124 +amendments were proposed by the States.[5] Shortly after the First +Congress convened, Madison introduced a series of amendments,[6] +designed "to quiet the apprehension of many, that without some such +declaration of rights the government would assume, and might be held to +possess, the power to trespass upon those rights of persons and property +which by the Declaration of Independence were affirmed to be unalienable +* * *"[7] After prolonged debate seventeen proposals were accepted by +the House two of which were rejected by the Senate. The remainder were +reduced to twelve in number, all but two of which were ratified by the +requisite number of States.[8] + + +THE BILL OF RIGHTS AND THE STATES: BARRON _v._ BALTIMORE + +One of the amendments which the Senate refused to accept--the one which +Madison declared to be "the most valuable of the whole list"[9]--read as +follows: "The equal rights of conscience, the freedom of speech or of +the press, and the right of trial by jury in criminal cases, shall not +be infringed by any State."[10] The demand for assurance of these rights +against encroachment by the States would not die. In spite of the +deliberate rejection of Madison's proposal the contention that the first +Ten Amendments were applicable to the States was repeatedly pressed upon +the Supreme Court. By a long series of decisions, beginning with the +opinion of Chief Justice Marshall in Barron _v._ Baltimore[11] in 1833, +the argument was consistently rejected. Nevertheless the enduring +vitality of natural law concepts encouraged renewed appeals for judicial +protection. Expression such as the statement of Justice Miller in +Citizens Savings and Loan Association _v._ Topeka that: "It must be +conceded that there are * * * rights in every free government beyond the +control of the States"[12] probably account for the fact, reported by +Charles Warren that: "In at least twenty cases between 1877 and 1907, +the Court was required to rule upon this point and to reaffirm +Marshall's decision of 1833, * * *"[13] + + +THE BILL OF RIGHTS AND AMENDMENT XIV + +After the adoption of the Fourteenth Amendment, a fresh attack was +launched on that front. The rights assured against encroachment by the +Federal Government were claimed as privileges and immunities which no +State may deny to any citizen.[14] As early as 1884 the further +contention was made that the procedural safeguards prescribed by these +articles are essential ingredients of due process of law.[15] For many +years, the Court continued to reject these arguments also, over the +vigorous and prophetic dissents of Justice Harlan. With respect to the +due process clause it held that these words have the same meaning in the +Fourteenth Amendment as in the Fifth, and hence do not embrace the other +rights more specifically enumerated in the latter, there being no +superfluous language in the Constitution.[16] In 1897, however, it +retreated from this position to the extent of holding that the Fifth +Amendment's explicit guarantee against the taking of private property +without just compensation is included in the due process clause of the +Fourteenth.[17] Later cases have established that the terms, "liberty" +and "due process of law" as used in Amendment XIV, render available +against the States certain fundamental rights guaranteed accused persons +in the Bill of Rights[18] and the substantive rights which are protected +against Congress by Amendment I.[19] + + +Notes + +[1] 1 Stat. 51 n. + +[2] Elliot, The Debates in the Several State Conventions on the Adoption +of the Federal Constitution, V, 538 (1836). + +[3] The Federalist No. 84. + +[4] McLaughlin, A Constitutional History of the United States, 203 +(1936). + +[5] Ames, The Proposed Amendments to the Constitution, 19 (1896). + +[6] Annals of Congress, I, 424, 433. + +[7] Monongahela Navigation Co. _v._ United States, 148 U.S. 312, 324 +(1893). + +[8] Ames, _op. cit._, 184, 185 (1896). + +[9] Annals of Congress, 1, 755. + +[10] Ibid. + +[11] 7 Pet. 243 (1833); Lessee of Livingston _v._ Moore, 7 Pet. 469 +(1833); Permoli _v._ New Orleans, 3 How. 589, 609 (1845); Fox _v._ Ohio, +5 How. 410 (1847); Smith _v._ Maryland, 18 How. 71 (1855); Withers _v._ +Buckley, 20 How. 84 (1858); Pervear _v._ Massachusetts, 5 Wall. 475 +(1867); Twitchell _v._ Pennsylvania, 7 Wall. 321 (1869). + +[12] 20 Wall. 655, 669 (1875). + +[13] Warren, The New "Liberty" Under the Fourteenth Amendment, 39 Harv. +L. Rev., 431, 436 (1926). + +[14] Slaughter-House Cases, 16 Wall. 36 (1873); Spies _v._ Illinois, 123 +U.S. 131 (1887); O'Neil _v._ Vermont, 144 U.S. 323 (1892); Maxwell _v._ +Dow, 176 U.S. 581 (1900); Patterson _v._ Colorado, 205 U.S. 454 (1907); +Twining _v._ New Jersey, 211 U.S. 78 (1908). + +[15] Hurtado _v._ California, 110 U.S. 516 (1884). + +[16] Ibid. 534, 535. + +[17] Chicago, B. & Q.R. Co. _v._ Chicago, 166 U.S. 226 (1897). + +[18] _See_ Twining _v._ New Jersey, 211 U.S. 78 (1908); Adamson _v._ +California, 332 U.S. 46 (1947). + +[19] _See_ Gitlow _v._ New York, 268 U.S. 652 (1925); Beauharnais _v._ +Illinois, 343 U.S. 250, 288 (1952). + + + + +AMENDMENT 1 + +RELIGION, FREE SPEECH, ETC. + + + Page +Absorption of Amendment I into the Fourteenth Amendment 757 +"An establishment of religion" 758 + "No preference" doctrine 758 + "Wall of separation" doctrine 759 + Zorach Case 762 + Permissible monetary aids to religion 763 + Free exercise of religion; dimensions 764 + Parochial schools 765 + Free exercise of religion; federal restraints 765 + Free exercise of religion; State and local restraints 766 + Free exercise of religion; obligations of citizenship 768 +Freedom of speech and press 769 + Blackstonian background 769 + Effect of Amendment I on the common law 769 + Amendment XIV and Blackstone 771 + Clear and present danger rule, meaning 772 + Contrasting operation of the common law rule 772 + Emergence of the clear and present test 773 + Gitlow and Whitney Cases 775 + Acceptance of the clear and present danger test 777 + Police power and clear and present danger 777 + Public order 777 + Public morals 779 + Picketing and clear and present danger 781 + Contempt of court and clear and present danger 783 + Freedom of speech and press in public parks and streets 784 + Censorship 786 + Clear and present danger test: judicial diversities 788 + Taxation 792 + Federal restraints on freedom of speech and press 792 + Regulations of Business and Labor Activities 792 + Regulation of political activities of federal employees 793 + Legislative protection of the armed forces and the war power 794 + Loyalty regulations: The Douds Case 794 + The Case of the Eleven Communists 795 + Subversive organizations 801 + Recent state legislation 801 + Loyalty tests 801 + Group libel 802 + Censorship of the mails 804 +Rights of assembly and petition 805 + Restraints on the right of petition 806 + The Cruikshank Case 807 + Hague _v._ C.I.O. 808 + Recent cases 809 + Lobbying and the right of petition 810 + + +RELIGION, FREE SPEECH, ETC. + + +Amendment 1 + +Congress shall make no law respecting an establishment of religion, or +prohibiting the free exercise thereof; or abridging the freedom of +speech, or of the press; or the right of the people peaceably to +assemble, and to petition the Government for a redress of grievances. + + +Absorption of Amendment I Into the Fourteenth Amendment + +Eventually the long sought protection for certain substantive personal +rights was obtained by identifying them with the "liberty" which States +cannot take away without due process of law. The shift in the Court's +point of view was made known quite casually in Gitlow _v._ New York,[1] +where, although affirming a conviction for violation of a State statute +prohibiting the advocacy of criminal anarchy, it declared that: "For +present purposes we may and do assume that freedom of speech and of the +press--which are protected by the First Amendment from abridgment by +Congress--are among the fundamental personal rights and 'liberties' +protected by the due process clause of the Fourteenth Amendment from +impairment by the States."[2] This dictum became, two years later, +accepted doctrine when the Court invalidated a State law on the ground +that it abridged freedom of speech contrary to the due process clause of +Amendment XIV.[3] Subsequent decisions have brought the other rights +safeguarded by the First Amendment, freedom of religion,[4] freedom of +the press,[5] and the right of peaceable assembly,[6] within the +protection of the Fourteenth. In consequence of this development the +cases dealing with the safeguarding of these rights against infringement +by the States are included in the ensuing discussion of the First +Amendment. + + +An Establishment of Religion + + +THE "NO PREFERENCE" DOCTRINE + +The original proposal leading to the First Amendment was introduced into +the House of Representatives by James Madison, and read as follows: "The +civil rights of none shall be abridged on account of religious belief or +worship, nor shall any national religion be established, nor shall the +full and equal rights of conscience be in any manner, or on any +pretence, infringed."[7] This was altered in the House to read: +"Congress shall make no law establishing religion, or to prevent the +free exercise thereof, or to infringe the rights of conscience."[8] In +the Senate the above formula was replaced by the following; "Congress +shall make no law establishing articles of religion."[9] The conference +committee of the two houses adopted the House proposal, but with the +neutral term "respecting an establishment," etc., taking the place of +the original sweeping ban against any law "establishing religion."[10] +Explaining this phraseology, in his Commentaries, Story asserted that +the purpose of the amendment was not to discredit the then existing +State establishments of religion, but rather "to exclude from the +National Government all power to act on the subject." He wrote: "The +situation, * * *, of the different States equally proclaimed the policy +as well as the necessity of such an exclusion. In some of the States, +episcopalians constituted the predominant sect; in others, +presbyterians; in others, congregationalists; in others, quakers; and in +others again, there was a close numerical rivalry among contending +sects. It was impossible that there should not arise perpetual strife +and perpetual jealousy on the subject of ecclesiastical ascendency, if +the national government were left free to create a religious +establishment. The only security was in extirpating the power. But this +alone would have been an imperfect security, if it had not been followed +up by a declaration of the right of the free exercise of religion, and a +prohibition (as we have seen) of all religious tests. Thus, the whole +power over the subject of religion is left exclusively to the State +governments, to be acted upon according to their own sense of justice +and the State constitutions; and the Catholic and the Protestant, the +Calvinist and the Arminian, the Jew and the Infidel, may sit down at the +common table of the national councils without any inquisition into their +faith or mode of worship."[11] + +For the rest, Story contended, the no establishment clause, while it +inhibited Congress from giving preference to any denomination of the +Christian faith, was not intended to withdraw the Christian religion as +a whole from the protection of Congress. He said: "Probably at the time +of the adoption of the Constitution, and of the amendment to it now +under consideration, the general if not the universal sentiment in +America was, that Christianity ought to receive encouragement from the +state so far as was not incompatible with the private rights of +conscience and the freedom of religious worship. An attempt to level all +religions, and to make it a matter of state policy to hold all in utter +indifference, would have created universal disapprobation, if not +universal indignation."[12] As late as 1898 Cooley expounded the no +establishment clause as follows: "By establishment of religion is meant +the setting up or recognition of a state church, or at least the +conferring upon one church of special favors and advantages which are +denied to others (citing 1 Tuck. Bl. Com. App. 296; 2 _id._, App. Note +G.). It was never intended by the Constitution that the government +should be prohibited from recognizing religion, * * * where it might be +done without drawing any invidious distinctions between different +religious beliefs, organizations, or sects."[13] + + +THE "WALL OF SEPARATION" DOCTRINE + +In 1802 President Jefferson wrote a letter to a group of Baptists in +Danbury, Connecticut in which he declared that it was the purpose of the +First Amendment to build "a wall of separation between Church and +State,"[14] and in Reynolds _v._ United States,[15] the first +Anti-Mormon Case, Chief Justice Waite, speaking for the unanimous Court, +characterized this as "almost an authoritative declaration of the scope +and effect of the amendment," one which left Congress "free to reach +actions which were in violation of social duties or subversive of good +order."[16] Recently the Court has given Jefferson's "almost +authoritative" pronouncement a greatly enlarged application. Speaking by +Justice Black, a sharply divided Court sustained in 1947 the right of +local authorities in New Jersey to provide free transportation for +children attending parochial schools,[17] but accompanied its holding +with these warning words, which appear to have had the approval of most +of the Justices: "The 'establishment of religion' clause of the First +Amendment means at least this: Neither a state nor the Federal +Government can set up a church. Neither can pass laws which aid one +religion, aid all religions, or prefer one religion over another. +Neither can force nor influence a person to go to or to remain away from +church against his will or force him to profess a belief or disbelief in +any religion. No person can be punished for entertaining or professing +religious beliefs or disbeliefs, for church attendance or +non-attendance. No tax in any amount, large or small, can be levied to +support any religious activities or institutions, whatever they may be +called, or whatever form they may adopt to teach or practice religion. +Neither a state nor the Federal Government can, openly or secretly, +participate in the affairs of any religious organizations of groups and +_vice versa_."[18] And a year later a nearly unanimous Court overturned +on the above grounds a "released time" arrangement under which the +Champaign, Illinois Board of Education agreed that religious instruction +should be given in the local schools to pupils whose parents signed +"request cards." The classes were to be conducted during regular school +hours in the school building by outside teachers furnished by a +religious council representing the various faiths, subject to the +approval or supervision of the superintendent of schools. Attendance +records were kept and reported to the school authorities in the same way +as for other classes; and pupils not attending the religious-instruction +classes were required to continue their regular secular studies.[19] +Said Justice Black, speaking for the Court: "Here not only are the +State's tax-supported public school buildings used for the dissemination +of religious doctrines. The State also affords sectarian groups an +invaluable aid in that it helps to provide pupils for their religious +classes through use of the State's compulsory public school machinery. +This is not separation of Church and State."[20] + +Justice Frankfurter presented a concurring opinion for himself and +Justices Jackson, Rutledge and Burton. "We are all agreed," it begins, +"that the First and Fourteenth Amendments have a secular reach far more +penetrating in the conduct of Government than merely to forbid an +'established church.'"[21] What ensues is a well documented account of +the elimination of sectarianism from the American school system which is +reinterpreted as a fight for the secularization of public supported +education.[22] Facing then the emergence of the "released time" +expedient,[23] Justice Frankfurter characterizes it as a "conscientious +attempt to accommodate the allowable functions of Government and the +special concerns of the Church within the framework of our +Constitution."[24] Elsewhere in his opinion he states: "Of course, +'released time' as a generalized conception, undefined by +differentiating particularities, is not an issue for Constitutional +adjudication. * * * The substantial differences among arrangements +lumped together as 'released time' emphasize the importance of detailed +analysis of the facts to which the Constitutional test of Separation is +to be applied. How does 'released time' operate in Champaign?"[25] And +again: "We do not consider, as indeed we could not, school programs not +before us which, though colloquially characterized as 'released time,' +present situations differing in aspects that may well be +constitutionally crucial. Different forms which 'released time' has +taken during more than thirty years of growth include programs which, +like that before us, could not withstand the test of the Constitution; +others may be found unexceptionable."[26] Justice Jackson added further +reservations of his own as follows: "We should place some bounds on the +demands for interference with local schools that we are empowered or +willing to entertain. * * * It is important that we circumscribe our +decision with some care."[27] + +In a dissenting opinion Justice Reed took exception to the extended +meaning given to the words "an establishment of religion." "The phrase +'an establishment of religion,'" said he, "may have been intended by +Congress to be aimed only at a state church. When the First Amendment +was pending in Congress in substantially its present form, 'Mr. Madison +said, he apprehended the meaning of the words to be, that Congress +should not establish a religion, and enforce the legal observation of +it by law, nor compel men to worship God in any manner contrary to their +conscience.' Passing years, however, have brought about the acceptance +of a broader meaning, although never until today, I believe, has this +Court widened its interpretation to any such degree as holding that +recognition of the interest of our nation in religion, through the +granting, to qualified representatives of the principal faiths, of +opportunity to present religion as an optional, extracurricular subject +during released school time in public school buildings, was equivalent +to an establishment of religion."[28] He further pointed out that "the +Congress of the United States has a chaplain for each House who daily +invokes divine blessings and guidance for the proceedings. The armed +forces have commissioned chaplains from early days. They conduct the +public services in accordance with the liturgical requirements of their +respective faiths, ashore and afloat, employing for the purpose property +belonging to the United States and dedicated to the services of +religion. Under the Servicemen's Readjustment Act of 1944, eligible +veterans may receive training at government expense for the ministry in +denominational schools. The schools of the District of Columbia have +opening exercises which 'include a reading from the Bible without note +or comment, and the Lord's Prayer.'"[29] + + +THE ZORACH CASE; THE McCOLLUM CASE LIMITED + +In a decision handed down July 11, 1951 the New York Court of Appeals, +one Judge dissenting, sustained the "released time" program of that +State, distinguishing it from the one condemned in the McCollum Case as +follows: "In the New York City program there is neither supervision nor +approval of religious teachers and no solicitation of pupils or +distribution of cards. The religious instruction must be outside the +school building and grounds. There must be no announcement of any kind +in the public schools relative to the program and no comment by any +principal or teacher on the attendance or non-attendance of any pupil +upon religious instruction. All that the school does besides excusing +the pupil is to keep a record--which is not available for any other +purpose--in order to see that the excuses are not taken advantage of and +the school deceived, which is, of course, the same procedure the school +would take in respect of absence for any other reason."[30] On appeal +this decision was sustained by the Supreme Court, six Justices to +three.[31] Said Justice Douglas, speaking for the majority: "We are a +religious people whose institutions presuppose a Supreme Being. We +guarantee the freedom to worship as one chooses. We make room for as +wide a variety of beliefs and creeds as the spiritual needs of man deem +necessary. We sponsor an attitude on the part of government that shows +no partiality to any one group and that lets each flourish according to +the zeal of its adherents and the appeal of its dogma. When the state +encourages religious instruction or cooperates with religious +authorities by adjusting the schedule of public events to sectarian +needs, it follows the best of our traditions. For it then respects the +religious nature of our people and accommodates the public service to +their spiritual needs. To hold that it may not would be to find in the +Constitution a requirement that the government show a callous +indifference to religious groups. That would be preferring those who +believe in no religion over those who do believe. Government may not +finance religious groups nor undertake religious instruction nor blend +secular and sectarian education nor use secular institutions to force +one or some religion on any person. But we find no constitutional +requirement which makes it necessary for government to be hostile to +religion and to throw its weight against efforts to widen the effective +scope of religious influence. The government must be neutral when it +comes to competition between sects. It may not thrust any sect on any +person. It may not make a religious observance compulsory. It may not +coerce anyone to attend church, to observe a religious holiday, or to +take religious instruction. But it can close its doors or suspend its +operations as to those who want to repair to their religious sanctuary +for worship or instruction. No more than that is undertaken here."[32] + +A few weeks earlier, moreover, the Court had indicated an intention to +scrutinize more closely the basis of its jurisdiction in this class of +cases. This occurred in a case in which the question involved was the +validity of a New Jersey statute which requires the reading at the +opening of each public school day of five verses of the Old +Testament.[33] The Court held that appellant's interest as taxpayers was +insufficient to constitute a justiciable case or controversy, while as +to the alleged rights of the child involved the case had become moot +with her graduation from school.[34] + + +PERMISSIBLE MONETARY AIDS TO RELIGION + +In 1899 the Court held that an agreement between the District of +Columbia and the directors of a hospital chartered by Congress for +erection of a building and treatment of poor patients at the expense of +the District was valid despite the fact that the members of the +Corporation belonged to a monastic order or sisterhood of a particular +church.[35] It has also sustained a contract made at the request of +Indians to whom money was due as a matter of right, under a treaty, for +the payment of such money by the Commissioner of Indian Affairs for the +support of Indian Catholic schools.[36] In 1930 the use of public funds +to furnish nonsectarian textbooks to pupils in parochial schools of +Louisiana was sustained,[37] and in 1947, as we have seen, the case of +public funds for the transportation of pupils attending such schools in +New Jersey.[38] In the former of these cases the Court cited the State's +interest in secular education even when conducted in religious schools; +in the latter its concern for the safety of school children on the +highways; and the National School Lunch Act,[39] which aids all school +children attending tax-exempt schools can be similarly justified. The +most notable financial concession to religion, however, is not to be +explained in this way, the universal practice of exempting religious +property from taxation. This unquestionably traces back to the idea +expressed in the Northwest Ordnance that Government has an interest in +religion as such. + + +FREE EXERCISE OF RELIGION: DIMENSIONS + +The First Amendment "was intended to allow every one under the +jurisdiction of the United States to entertain such notions respecting +his relations to his Maker and the duties they impose as may be approved +by his judgment and conscience, and to exhibit his sentiments in such +form of worship as he may think proper, not injurious to the equal +rights of others, and to prohibit legislation for the support of any +religious tenets, or the modes of worship of any sect. The oppressive +measures adopted, and the cruelties and punishments inflicted, by the +governments of Europe for many ages, to compel parties to conform, in +their religious beliefs and modes of worship, to the views of the most +numerous sect, and the folly of attempting in that way to control the +mental operations of persons, and enforce an outward conformity to a +prescribed standard, led to the adoption of (this) amendment."[40] "The +constitutional inhibition of legislation on the subject of religion has +a double aspect. On the one hand, it forestalls compulsion by law of the +acceptance of any creed or the practice of any form of worship. Freedom +of conscience and freedom to adhere to such religious organization or +form of worship as the individual may choose cannot be restricted by +law. On the other hand, it safeguards the free exercise of the chosen +form of religion. Thus the Amendment embraces two concepts,--freedom to +believe and freedom to act. The first is absolute, but in the nature of +things, the second cannot be."[41] + + +PAROCHIAL SCHOOLS + +The Society of Sisters, an Oregon corporation, was empowered by its +charter to care for orphans and to establish and maintain schools and +academies for the education of the youth. Systematic instruction and +moral training according to the tenets of the Roman Catholic Church was +given in its establishments along with education in the secular +branches. By an Oregon statute, effective September 1, 1926, it was +required that every parent, or other person having control or charge or +custody of a child between eight and sixteen years send him "to a public +school for the period of time a public school shall be held during the +current year" in the district where the child resides; and failure so to +do was declared a misdemeanor. The District Court of The United States +for Oregon enjoined the enforcement of the statute and the Supreme Court +unanimously sustained its action,[42] holding that the measure +unreasonably interfered with the liberty of parents and guardians to +direct the upbringing and education of children under their control--a +liberty protected by the Fourteenth Amendment. While the First Amendment +was not mentioned in the Court's opinion, the subsequent absorption of +its religious clauses into the Fourteenth Amendment seems to make the +case relevant to the question of their proper interpretation. + + +FREE EXERCISE OF RELIGION: FEDERAL RESTRAINTS + +Religious belief cannot be pleaded as a justification for an overt act +made criminal by the law of the land. "Laws are made for the government +of action, and while they cannot interfere with mere religious belief +and opinions, they may with practices."[43] To permit a man to excuse +conduct in violation of law on the ground of religious belief "would be +to make the professed doctrines of religious belief superior to the law +of the land, and in effect to permit every citizen to become a law unto +himself."[44] It does not follow that "because no mode of worship can be +established or religious tenets enforced in this country, therefore any +tenets, however destructive of society, may be held and advocated, if +asserted, to be a part of the religious doctrine of those advocating and +practicing them * * * Whilst legislation for the establishment of a +religion is forbidden, and its free exercise permitted, it does not +follow that everything which may be so-called can be tolerated. Crime is +not the less odious because sanctioned by what any particular sect may +designate as religion."[45] Accordingly acts of Congress directed +against either the practice of the advocacy of polygamy by members of a +religious sect which sanctioned the practice, were held valid.[46] But +when, in the Ballard Case,[47] decided in 1944, the promoters of a +religious sect, whose founder had at different times identified himself +as Saint Germain, Jesus, George Washington, and Godfre Ray King, were +convicted of using the mails to defraud by obtaining money on the +strength of having supernaturally healed hundreds of persons, they found +the Court in a softened frame of mind. Although the trial judge, +carefully discriminating between the question of the truth of +defendants' pretensions and that of their good faith in advancing them, +had charged the jury that it could pass on the latter but not the +former, this caution did not avail with the Court, which contrived on +another ground ultimately to upset the verdict of "guilty." The late +Chief Justice Stone, speaking for himself and Justices Roberts and +Frankfurter, dissented: "I cannot say that freedom of thought and +worship includes freedom to procure money by making knowingly false +statements about one's religious experiences."[48] + + +FREE EXERCISE OF RELIGION: STATE AND LOCAL RESTRAINTS + +The Mormon Church cases were decided prior to the emergence of the clear +and present danger doctrine dealt with below. In its consideration of +cases stemming from State and local legislation the Court has endeavored +at times to take account of this doctrine, with the result that its +decisions have followed a somewhat erratic course. The leading case is +Cantwell _v._ Connecticut.[49] Here three members of the sect calling +itself Jehovah's Witnesses were convicted under a statute which forbade +the unlicensed soliciting of funds on the representation that they were +for religious or charitable purposes, and also on a general charge of +breach of the peace by accosting in a strongly Catholic neighborhood two +communicants of that faith and playing to them a phonograph record which +grossly insulted the Christian religion in general and the Catholic +church in particular. Both convictions were held to violate the +constitutional guarantees of speech and religion, the clear and present +danger rule being invoked in partial justification of the holding, +although it is reasonably inferable from the Court's own recital of the +facts that the listeners to the phonograph record exhibited a degree of +self-restraint rather unusual under the circumstances. Two weeks later +the Court, as if to "compensate" for its zeal in the Cantwell Case, went +to the other extreme, and urging the maxim that legislative acts must be +presumed to be constitutional, sustained the State of Pennsylvania in +excluding from its schools children of the Jehovah's Witnesses, who in +the name of their beliefs refused to salute the flag.[50] The subsequent +record of the Court's holdings in this field is somewhat variable. A +decision in June, 1942, sustaining the application to vendors of +religious books and pamphlets of a nondiscriminatory license fee[51] was +eleven months later vacated and formally reversed;[52] shortly +thereafter a like fate overtook the decision in the "Flag Salute" +Case.[53] In May, 1943, the Court found that an ordinance of the city of +Struthers, Ohio, which made it unlawful for anyone distributing +literature to ring a doorbell or otherwise summon the dwellers of a +residence to the door to receive such literature, was violative of the +Constitution when applied to distributors of leaflets advertising a +religious meeting.[54] But eight months later it sustained the +application of Massachusetts' child labor laws in the case of a nine +year old girl who was permitted by her legal custodian to engage in +"preaching work" and the sale of religious publications after hours.[55] +However, in Saia _v._ New York[56] decided in 1948, the Court held, by a +vote of five Justices to four, that an ordinance of the city of +Lockport, New York, which forbade the use of sound amplification devices +except with the permission of the Chief of Police was unconstitutional +as applied in the case of a Jehovah's Witness who used sound equipment +to amplify lectures in a public park on Sunday, on religious subjects. +But a few months later the same Court, again dividing five-to-four, +sustained a Trenton, New Jersey ordinance which banned from that city's +streets all loud speakers and other devices which emit "loud and raucous +noises."[57] The latest state of the doctrine on this particular topic +is represented by three cases, all decided the same day. In one the +conviction of a Baptist minister for conducting religious services in +the streets of New York City without first obtaining a permit from the +city police commissioner was overturned,[58] a permit having been +refused him on the ground that he had in the past ridiculed other +religious beliefs thereby stirring strife and threatening violence. +Justice Jackson dissented, quoting Mr. Bertrand Russell to prove that +"too little liberty brings stagnation, and too much brings chaos. The +fever of our times," he suggested, "inclines the Court today to favor +chaos."[59] In the second, the Court upset the conviction of a group of +Jehovah's Witnesses in Maryland for using a public park without first +obtaining a permit.[60] The third case,[61] which had nothing to do with +religion, affords an interesting foil to the other two. It is dealt with +in another connection.[62] + + +FREE EXERCISE OF RELIGION: OBLIGATIONS OF CITIZENSHIP + +In 1918 the Court rejected as too unsound to require more than a mere +statement the argument that the Selective Service Act was repugnant to +the First Amendment as establishing or interfering with religion, by +reason of the exemptions granted ministers of religion, theological +students and members of sects whose tenets exclude the moral right to +engage in war.[63] The opposite aspect of this problem was presented in +Hamilton _v._ Regents.[64] There a California statute requiring all male +students at the State university to take a course in military science +and tactics was assailed by students who claimed that military training +was contrary to the precepts of their religion. This act did not require +military service, nor did it peremptorily command submission to military +training. The obligation to take such training was imposed only as a +condition of attendance at the university. In these circumstances, all +members of the Court concurred in the judgment sustaining the statute. +No such unanimity of opinion prevailed in In re Summers,[65] where the +Court upheld the action of a State Supreme Court in denying a license to +practice law to an applicant who entertained conscientious scruples +against participation in war. The license was withheld on the premise +that a conscientious belief in nonviolence to the extent that the +believer would not use force to prevent wrong, no matter how aggravated, +made it impossible for him to swear in good faith to support the State +Constitution. The Supreme Court held that the State's insistence that an +officer charged with the administration of justice take such an oath and +its interpretation of that oath to require a willingness to perform +military service, did not abridge religious freedom. In a dissenting +opinion in which Justices Douglas, Murphy and Rutledge concurred, +Justice Black said, "I cannot agree that a State can lawfully bar from a +semipublic position a well-qualified man of good character solely +because he entertains a religious belief which might prompt him at some +time in the future to violate a law which has not yet been and may never +be enacted."[66] + + +Freedom of Speech and Press + + +THE BLACKSTONIAN BACKGROUND + +"The liberty of the press," says Blackstone, "is indeed essential to the +nature of a free state: but this consists in laying no previous +restraints upon publications, and not in freedom from censure from +criminal matter when published. Every freeman has an undoubted right to +lay what sentiments he pleases before the public: to forbid this, is to +destroy the freedom of the press: but if he publishes what is improper, +mischievous, or illegal, he must take the consequence of his own +temerity. To subject the press to the restrictive power of a licenser, +as was formerly done, both before and since the revolution, is to +subject all freedom of sentiment to the prejudices of one man, and make +him the arbitrary and infallible judge of all controverted points in +learning, religion and government. But to punish (as the law does at +present) any dangerous or offensive writings, which, when published, +shall on a fair and impartial trial be adjudged of a pernicious +tendency, is necessary for the preservation of peace and good order, of +government and religion, the only solid foundations of civil liberty. +Thus, the will of individuals is still left free: the abuse only of that +free will is the object of legal punishment. Neither is any restraint +hereby laid upon freedom of thought or inquiry: liberty of private +sentiment is still left; the disseminating, or making public, of bad +sentiments, destructive to the ends of society, is the crime which +society corrects."[67] + + +EFFECT OF AMENDMENT I ON THE COMMON LAW + +Blackstone was declaring the Common Law of his day, and it was no +intention of the framers of Amendment I to change that law. "The +historic antecedents of the First Amendment preclude the notion that its +purpose was to give unqualified immunity to every expression that +touched on matters within the range of political interest. The +Massachusetts Constitution of 1780 guaranteed free speech; yet there are +records of at least three convictions for political libels obtained +between 1799 and 1803. The Pennsylvania Constitution of 1790 and the +Delaware Constitution of 1792 expressly imposed liability for abuse of +the right of free speech. Madison's own State put on its books in 1792 a +statute confining the abusive exercise of the right of utterance. And it +deserves to be noted that in writing to John Adams' wife, Jefferson did +not rest his condemnation of the Sedition Act of 1798 on his belief in +unrestrained utterance as to political matter. The First Amendment, he +argued, reflected a limitation upon Federal power, leaving the right to +enforce restrictions on speech to the States.[68] * * * 'The law is +perfectly well settled,' this Court said over fifty years ago, 'that the +first ten amendments to the Constitution, commonly known as the Bill of +Rights, were not intended to lay down any novel principles of +government, but simply to embody certain guaranties and immunities which +we had inherited from our English ancestors, and which had from time +immemorial been subject to certain well-recognized exceptions arising +from the necessities of the case. In incorporating these principles into +the fundamental law there was no intention of disregarding the +exceptions, which continued to be recognized as if they had been +formally expressed.'[69] That this represents the authentic view of the +Bill of Rights and the spirit in which it must be construed has been +recognized again and again in cases that have come here within the last +fifty years."[70] + + +AMENDMENT XIV AND BLACKSTONE + +Nor was the adoption of Amendment XIV thought to alter the above +described situation until a comparatively recent date. Said Justice +Holmes, speaking for the Court in 1907: "We leave undecided the question +whether there is to be found in the Fourteenth Amendment a prohibition +similar to that in the First. But even if we were to assume that freedom +of speech and freedom of the press were protected from abridgment on the +part not only of the United States but also of the States, still we +should be far from the conclusion that the plaintiff in error would have +us reach. In the first place, the main purpose of such constitutional +provisions is 'to prevent all such _previous restraints_ upon +publications as had been practiced by other governments,' and they do +not prevent the subsequent punishment of such as may be deemed contrary +to the public welfare. Commonwealth _v._ Blanding, 3 Pick. 304, 313, +314; Respublica _v._ Oswald, 1 Dallas 319, 325. The preliminary freedom +extends as well to the false as to the true; the subsequent punishment +may extend as well to the true as to the false. This was the law of +criminal libel apart from statute in most cases, if not in all. +Commonwealth _v._ Blanding, _ubi sup._; 4 Bl. Comm. 150."[71] This +appears to be an unqualified endorsement of Blackstone. But, as Justice +Holmes remarks in the same opinion, "There is no constitutional right to +have all general propositions of law once adopted remain unchanged."[72] +As late as 1922 Justice Pitney, speaking for the Court, said: "Neither +the Fourteenth Amendment nor any other provision of the Constitution of +the United States imposes upon the States any restriction about 'freedom +of speech' or the 'liberty of silence' * * *"[73] + + +THE CLEAR AND PRESENT DANGER RULE, MEANING + +The rule requires that before an utterance can be penalized by +government it must, ordinarily, have occurred "in such circumstances or +have been of such a nature as to create a clear and present danger" that +it would bring about "substantive evils" within the power of government +to prevent.[74] The question whether these conditions exist is one of +law for the courts, and ultimately for the Supreme Court, in enforcement +of the First and/or the Fourteenth Amendment;[75] and in exercise of its +power of review in these premises the Court is entitled to review +broadly findings of facts of lower courts, whether State or federal.[76] + + +CONTRASTING OPERATION OF THE COMMON LAW RULE + +In Davis _v._ Beason,[77] decided in 1890, the question at issue was the +constitutionality of a statute of the Territory of Idaho, providing that +"no person who is a bigamist or polygamist, or who teaches, advices, +counsels or encourages any person or persons to become bigamists or +polygamists or to commit any other crime defined by law, or to enter +into what is known as plural or celestial marriage, or who is a member +of any order, organization or association which teaches, advises, +counsels or encourages its members or devotees or any other persons to +commit the crime of bigamy or polygamy, or any other crime defined by +law, either as a rite or ceremony of such order, organization or +association, or otherwise, is permitted to vote at any election, or to +hold any position or office of honor, trust or profit within this +Territory." A unanimous court held this enactment to be within the +legislative powers which Congress had conferred on the Territory and not +to be open to any constitutional objection. Said Justice Field for the +Court: "Bigamy and polygamy are crimes by the laws of all civilized and +Christian countries. They are crimes by the laws of the United States, +and they are crimes by the laws of Idaho. They tend to destroy the +purity of the marriage relation, to disturb the peace of families, to +degrade woman and to debase man. Few crimes are more pernicious to the +best interests of society and receive more general or more deserved +punishment. To extend exemption from punishment for such crimes would be +to shock the moral judgment of the community. To call their advocacy a +tenet of religion is to offend the common sense of mankind. If they are +crimes, then to teach, advise, and counsel their practice is to aid in +their commission, and such teaching and counselling are themselves +criminal and proper subjects of punishment, as aiding and abetting crime +are in all other cases."[78] No talk here about the necessity for +showing that the prohibited teaching, counselling, advising, etc., must +be shown to have occurred in circumstances creating a clear and present +danger of its being followed. + +In Fox _v._ Washington,[79] decided in 1915, the question at issue was +the constitutionality of a Washington statute denouncing "the wilful +printing, circulation, etc., of matter advocating or encouraging the +commission of any crime or breach of the peace or which shall tend to +encourage or advocate disrespect for law or any court or courts of +justice." The State Supreme Court had assumed that the case was governed +by the guarantees of the United States Constitution of freedom of +speech, and especially by the Fourteenth Amendment, and its decision +sustaining the statute was upheld by the Supreme Court on the same +assumption, in the case of a person indicted for publishing an article +encouraging and inciting what the jury had found to be a breach of State +laws against indecent exposure. Again, one notes the total absence of +any reference to the clear and present danger rule. But not all State +enactments survived judicial review prior to the adoption of the clear +and present danger test. In 1927 the Court disallowed a Kansas statute +which, as interpreted by the highest State court, made punishable the +joining of an organization teaching the inevitability of "the class +struggle";[80] three years later it upset a California statute which +forbade in all circumstances the carrying of a red flag as a symbol of +opposition to government;[81] and 6 years after that it upset a +conviction under an Oregon statute for participating in a meeting held +under the auspices of an organization which was charged with advocating +violence as a political method, although the meeting itself was orderly +and did not advocate violence.[82] In none of these cases was the clear +and present danger test mentioned. + + +EMERGENCE OF THE CLEAR AND PRESENT TEST + +In Schenck _v._ United States[83] appellants had been convicted of +conspiracy to violate the Espionage Act of June 15, 1917[84] "by causing +and attempting to cause insubordination, etc., in the military and naval +forces of the United States, and to obstruct the recruiting and +enlistment service of the United States, when the United States was at +war with the German Empire, to-wit, that the defendants willfully +conspired to have printed and circulated to men who had been called and +accepted for military service under the Act of May 18, 1917, a document +set forth and alleged to be calculated to cause such insubordination and +obstruction." Affirming the conviction, the Court, speaking by Justice +Holmes said: "It well may be that the prohibition of laws abridging the +freedom of speech is not confined to previous restraints, although to +prevent them may have been the main purpose, as intimated in Patterson +_v._ Colorado.[85] * * * We admit that in many places and in ordinary +times the defendants in saying all that was said in the circular would +have been within their constitutional rights. But the character of every +act depends upon the circumstances in which it is done. * * * The most +stringent protection of free speech would not protect a man in falsely +shouting fire in a theatre and causing a panic. It does not even protect +a man from an injunction against uttering words that have all the effect +of force. * * * The question in every case is whether the words used are +used in such circumstances and are of such a nature as to create a clear +and present danger that they will bring about the substantive evils that +Congress has a right to prevent. It is a question of proximity and +degree."[86] One week later two other convictions under the same act +were affirmed, with Justice Holmes again speaking for the unanimous +Court. In Frohwerk _v._ United States[87] he said: "With regard to the +argument [on the constitutional question] we think it necessary to add +to what has been said in Schenck _v._ United States, * * *, only that +the First Amendment while prohibiting legislation against free speech as +such cannot have been, and obviously was not, intended to give immunity +for every possible use of language. Robertson _v._ Baldwin, 165 U.S. +275, 281. We venture to believe that neither Hamilton nor Madison, nor +any other competent person then or later, ever supposed that to make +criminal the counselling of a murder within the jurisdiction of Congress +would be an unconstitutional interference with free speech."[88] In Debs +_v._ United States[89] he referred to "the natural and intended effect" +and "probable effect"[90] of the condemned speech (straight common law). +When, moreover, a case arose in which the dictum in the Schenck case +might have influenced the result, the Court, seven Justices to two, +declined to follow it. This was in Abrams _v._ United States,[91] in +which the Court affirmed a conviction for spreading propaganda +"obviously intended to provoke and to encourage resistance to the United +States in the war." Justices Holmes and Brandeis dissented on the ground +that the utterances did not create a clear and imminent danger[92] of +substantive evils. And the same result was reached in Schaefer _v._ +United States,[93] again over the dissent of Justices Holmes and +Brandeis, the Court saying that: "The tendency of the articles and their +efficacy were enough for the offense * * *."[94] + + +THE GITLOW AND WHITNEY CASES + +Gitlow was convicted under a New York statute making it criminal to +advocate, advise or teach the duty, necessity or propriety of +overturning organized government by force or violence.[95] Since there +was no evidence as to the effect resulting from the circulation of the +manifesto for which he was convicted and no contention that it created +any immediate threat to the security of the State, the Court was obliged +to reach a clear cut choice between the common law test of dangerous +tendency and the clear and present danger test. It adopted the former +and sustained the conviction, saying "By enacting the present statute +the state has determined, through its legislative body, that utterances +advocating the overthrow of organized government by force, violence, and +unlawful means, are so inimical to the general welfare, and involve such +danger of substantive evil, that they may be penalized in the exercise +of its police power. That determination must be given great weight * * * +That utterances inciting to the overthrow of organized government by +unlawful means present a sufficient danger of substantive evil to bring +their punishment within the range of legislative discretion is clear. +Such utterances, by their very nature, involve danger to the public +peace and to the security of the state. They threaten breaches of the +peace and ultimate revolution. And the immediate danger is none the less +and substantial because the effect of a given utterance cannot be +accurately foreseen. The state cannot reasonably be required to measure +the danger from every such utterance in the nice balance of a jeweler's +scale."[96] Justice Sanford distinguished the Schenck Case by asserting +that its "general statement" was intended to apply only to cases where +the statute "merely prohibits certain acts involving the danger of +substantive evil without any reference to language itself,"[97] and has +no application "where the legislative body itself has previously +determined the danger of substantive evil arising from utterances of a +specified character."[98] + +Two years later, in Whitney _v._ California,[99] upon evidence which +tended to establish the existence of a conspiracy to commit certain +serious crimes, the conviction was sustained unanimously. In a +concurring opinion in which Justice Holmes joined, Justice Brandeis +restated the test of clear and present danger to include the intent to +create such danger: "But, although the rights of free speech and +assembly are fundamental, they are not in their nature absolute. Their +exercise is subject to restriction, if the particular restriction +proposed is required in order to protect the state from destruction or +from serious injury, political, economic or moral. That the necessity +which is essential to a valid restriction does not exist unless speech +would produce, or is intended to produce, a clear and imminent danger of +some substantive evil which the State constitutionally may seek to +prevent has been settled. _See_ Schenck _v._ United States, 249 U.S. 47, +52. * * *, no danger flowing from speech can be deemed clear and +present, unless the incidence of the evil apprehended is so imminent +that it may befall before there is opportunity for full discussion. If +there be time to expose through discussion the falsehood and fallacies, +to avert the evil by the processes of education, the remedy to be +applied is more speech, not enforced silence."[100] + + +ACCEPTANCE OF THE CLEAR AND PRESENT DANGER TEST + +Ten years later, in Herndon _v._ Lowry,[101] a narrowly divided Court +drew a distinction between the prohibition by law of specific utterances +which the legislators have determined have a "dangerous tendency" to +produce substantive evil and the finding by a jury to that effect, and +on this basis reversed the conviction of a communist organizer under a +State criminal syndicalism statute, with the intimation that where it is +left to a jury to determine whether particular utterances are unlawful, +the test of clear and present danger must be applied.[102] Finally, in +Thornhill _v._ Alabama,[103] the Court went the full length in +invalidating a State law against picketing because[104] "* * * no clear +and present danger of destruction of life or property, or invasion of +the right of privacy, or breach of the peace can be thought to be +inherent in the activities of every person who approaches the premises +of an employer and publicizes the facts of a labor dispute involving the +latter." The same term, again invoking the clear and present danger +formula, it reversed a conviction for the common law offense of inciting +a breach of the peace by playing, on a public street, a phonograph +record attacking a religious sect.[105] + + +THE POLICE POWER AND CLEAR AND PRESENT DANGER + + +Public Order + +Prior to the Court's ratification of the clear and present danger test +it had held that while on the one hand, peaceful and orderly opposition +to government by legal means may not be inhibited, and that the +Constitution insures the "maintenance of the opportunity for free +political discussion to the end that government may be responsive to the +will of the people and that changes may be obtained by lawful +means,"[106] yet on the other hand, the State may punish those who abuse +their freedom of speech by utterances tending to incite to crime,[107] +or to endanger the foundations of organized government or to threaten +its overthrow by unlawful means.[108] The impact of the clear and +present danger test upon these principles is well illustrated by a +holding in 1949 by a sharply divided Court, that a Chicago ordinance +which, as judicially interpreted, was held to permit punishment for +breach of the peace for speech which "stirs the public to anger, invites +disputes, (or) brings about a condition of unrest" was an undue and +unlawful restriction on the right of free speech.[109] Reversing a +conviction under the ordinance, Justice Douglas wrote: "A function of +free speech under our system of government is to invite dispute. It may +indeed best serve its high purpose when it induces a condition of +unrest, creates dissatisfaction with conditions as they are, or even +stirs people to anger. Speech is often provocative and challenging. It +may strike at prejudices and preconceptions and have profound unsettling +effects as it presses for acceptance of an idea. That is why freedom of +speech, though not absolute * * * is nevertheless protected against +censorship or punishment, unless shown likely to produce a clear and +present danger of a serious substantive evil that rises far above public +inconvenience, annoyance, or unrest."[110] Finding that the ordinance as +thus construed was unconstitutional, the majority did not enter into a +consideration of the facts of the particular case. Dissenting, Justice +Jackson dwelt at length upon the evidence which showed that a riot had +actually occurred and that the speech in question had in fact provoked a +hostile mob, incited a friendly one, and threatened violence between the +two. Conceding the premises of the majority opinion, he argued +nevertheless that: "Because a subject is legally arguable, however, does +not mean that public sentiment will be patient of its advocacy at all +times and in all manners. * * * A great number of people do not agree +that introduction to America of communism or fascism is even debatable. +Hence many speeches, such as that of Terminiello, may be legally +permissible but may nevertheless in some surroundings be a menace to +peace and order. When conditions show the speaker that this is the case, +as it did here, there certainly comes a point beyond which he cannot +indulge in provocations to violence without being answerable to +society."[111] Early in 1951 the Court itself endorsed this position in +Feiner _v._ New York.[112] Here was sustained the conviction of a +speaker who in addressing a crowd including a number of Negroes, through +a public address system set up on the sidewalk, asserted that the +Negroes "should rise up in arms and fight for their rights," called a +number of public officials, including the President, "bums," and ignored +two police requests to stop speaking. The Court took cognizance of the +findings by the trial court and two reviewing State courts that danger +to public order was clearly threatened.[113] + + +Public Morals + +But the police power extends also to the public morals. In Winters _v._ +New York[114] the question at issue was the constitutionality of a State +statute making it an offense "to print, publish, or distribute, or to +possess with intent to distribute, any printed matter principally made +up of criminal views, police reports, or accounts of criminal deeds, or +pictures, or stories of deeds of bloodshed, lust or crime," and +construed by the State courts "as prohibiting such massing of accounts +of deeds of bloodshed and lust as to incite to crimes against the +person." A divided Court, 6 Justices to 3, following the third argument +of the case before it, set the act aside on the ground that, as +construed, it did not define the prohibited acts in such a way as to +exclude those which are a legitimate exercise of the constitutional +freedom of the press; and further, that it failed to set up an +ascertainable standard of guilt.[115] A few weeks earlier the Court had +vacated a judgment of the Supreme Court of Utah affirming convictions on +a charge of conspiring to "commit acts injurious to public morals" by +counseling, advising and practicing plural marriage.[116] Four members +of the Court thought that the cause should be remanded in order to give +the State Supreme Court opportunity to construe that statute and a fifth +agreed with this result without opinion. Justice Rutledge, speaking for +himself and Justices Douglas and Murphy, dissented on the ground that +the Utah Court had already construed the statute to authorize punishment +for exercising the right of free speech. He said: "The Utah statute was +construed to proscribe any agreement to advocate the practice of +polygamy. Thus the line was drawn between discussion and advocacy. The +Constitution requires that the statute be limited more narrowly. At the +very least the line must be drawn between advocacy and incitement, and +even the state's power to punish incitement may vary with the nature of +the speech, whether persuasive or coercive, the nature of the wrong +induced, whether violent or merely offensive to the mores, and the +degree of probability that the substantive evil actually will +result."[117] + + +PICKETING AND CLEAR AND PRESENT DANGER + +Closely allied to the problem of dangerous utterances is the resort to +picketing as a means of communication and persuasion in labor disputes. +In such cases, the evils feared by the legislature usually arise, not +out of the substance of the communications, but from the manner in which +they are made. Applying the test of clear and present danger in +Thornhill _v._ Alabama[118] and Carlson v. California,[119] the Court +invalidated laws against peaceful picketing, including the carrying of +signs and banners. It held that: "the dissemination of information +concerning the facts of a labor dispute must be regarded as within that +area of free discussion that is guaranteed by the Constitution" and may +be abridged only where "the clear danger of substantive evils arises +under circumstances affording no opportunity to test the merits of ideas +by competition for acceptance in the market of public opinion."[120] +Shortly thereafter a divided Court ruled that peaceful picketing may be +enjoined where the labor dispute has been attended by violence on a +serious scale.[121] Speaking for the majority on this occasion, Justice +Frankfurter asserted that "utterance in a context of violence can lose +its significance as an appeal to reason and become part of an instrument +of force * * * (and) was not meant to be sheltered by the +Constitution."[122] + +For a brief period strangers to the employer were accorded an almost +equal freedom of communication by means of picketing.[123] Subsequent +cases, however, have recognized that "while picketing has an ingredient +of communication it cannot dogmatically be equated with the +constitutionally protected freedom of speech."[124] Without dissent the +Court has held that a State may enjoin picketing designed to coerce the +employer to violate State law by refusing to sell ice to nonunion +peddlers,[125] by interfering with the right of his employees to decide +whether or not to join a union,[126] or by choosing a specified +proportion of his employees from one race, irrespective of merit.[127] +By close divisions, it also sustained the right of a State to forbid the +"conscription of neutrals" by the picketing of a restaurant solely +because the owner had contracted for the erection of a building (not +connected with the restaurant and located some distance away) by a +contractor who employed nonunion men;[128] or the picketing of a shop +operated by the owner without employees to induce him to observe certain +closing hours.[129] In this last case Justice Black distinguished +Thornhill _v._ Alabama and other prior cases by saying, "No opinions +relied on by petitioners assert a constitutional right in picketers to +take advantage of speech or press to violate valid laws designed to +protect important interests of society * * * it has never been deemed an +abridgment of freedom of speech or press to make a course of conduct +illegal merely because the conduct was in part initiated, evidenced, or +carried out by means of language, either spoken, written, or printed. +* * * Such an expansive interpretation of the constitutional guaranties +of speech and press would make it practically impossible ever to enforce +laws against agreements in restraint of trade as well as many other +agreements and conspiracies deemed injurious to society."[130] By the +same token, a State anti-closed shop law does not infringe freedom of +speech, of assembly or of petition;[131] neither does a "cease and +desist" order of a State Labor Relations Board directed against work +stoppages caused by the calling of special union meetings during working +hours.[132] But, by a vote of five Justices to four--the five, however, +being unable to agree altogether among themselves--a State may not +require labor organizers to register,[133] although, as Justice Roberts +pointed out for the dissenters, "other paid organizers, whether for +business or for charity could be required thus to identify +themselves."[134] + + +CONTEMPT OF COURT AND CLEAR AND PRESENT DANGER + +One area in which the clear and present danger rule has undoubtedly +enlarged freedom of utterance beyond common law limits is that of +discussion of judicial proceedings. In 1907 the Supreme Court speaking +by Justice Holmes refused to review the conviction of an editor for +contempt of court in publishing articles and cartoons criticizing the +action of the court in a pending case.[135] It took the position that +even if freedom of the press was protected against abridgment by the +State, a publication tending to obstruct the administration of justice +was punishable, irrespective of its truth. In recent years the Court not +only has taken jurisdiction of cases of this order but has scrutinized +the facts with great care and has not hesitated to reverse the action of +State courts. Bridges _v._ California[136] is the leading case. +Enlarging upon the idea that clear and present danger is an appropriate +guide in determining whether comment on pending cases can be punished, +Justice Black said: "We cannot start with the assumption that +publications of the kind here involved actually do threaten to change +the nature of legal trials, and that to preserve judicial impartiality, +it is necessary for judges to have a contempt power by which they can +close all channels of public expression to all matters which touch upon +pending cases. We must therefore turn to the particular utterances here +in question and the circumstances of their publication to determine to +what extent the substantive evil of unfair administration of justice was +a likely consequence, and whether the degree of likelihood was +sufficient to justify summary punishment."[137] Speaking on behalf of +four dissenting members, Justice Frankfurter objected: "A trial is not a +'free trade in ideas,' nor is the best test of truth in a courtroom 'the +power of the thought to get itself accepted in the competition of the +market.' * * * We cannot read into the Fourteenth Amendment the freedom +of speech and of the press protected by the First Amendment and at the +same time read out age-old means employed by states for securing the +calm course of justice. The Fourteenth Amendment does not forbid a state +to continue the historic process of prohibiting expressions calculated +to subvert a specific exercise of judicial power. So to assure the +impartial accomplishment of justice is not an abridgment of freedom of +speech or freedom of the press, as these phases of liberty have +heretofore been conceived even by the stoutest libertarians. In act, +these liberties themselves depend upon an untrammeled judiciary whose +passions are not even unconsciously aroused and whose minds are not +distorted by extrajudicial considerations."[138] In Pennekamp _v._ +Florida,[139] a unanimous Court held that criticism of judicial action +already taken, although the cases were still pending on other points, +did not create a danger to fair judicial administration of the +"clearness and immediacy necessary to close the doors of permissible +public comment"[140] even though the State court held and the Supreme +Court assumed that "the petitioners deliberately distorted the facts to +abase and destroy the efficiency of the court."[141] And in Craig _v._ +Harney,[142] a divided Court held that publication, while a motion for a +new trial was pending, of an unfair report of the facts of a civil case, +accompanied by intemperate criticism of the judge's conduct was +protected by the Constitution. Said Justice Douglas, speaking for the +majority: "The vehemence of the language used is not alone the measure +of the power to publish for contempt. The fires which it kindles must +constitute an imminent, and not merely a likely, threat to the +administration of justice. The danger must not be remote or even +probable; it must immediately imperil."[143] + + +FREEDOM OF SPEECH AND PRESS IN PUBLIC PARKS AND STREETS + +Notable also is the protection which the Court has erected in recent +years for those who desire to use the streets and the public parks as +theatres of discussion, agitation, and propaganda dissemination. In 1897 +the Court unanimously sustained an ordinance of the city of Boston which +provided that "no person shall, in or upon any of the public grounds, +make any public address," etc., "except in accordance with a permit of +the Mayor,"[144] quoting with approval the following language from the +decision of the Massachusetts Supreme Judicial Court in the same case. +"For the legislature absolutely or conditionally to forbid public +speaking in a highway or public park is no more an infringement of the +rights of a member of the public than for the owner of a private house +to forbid it in the house. When no proprietary right interferes the +legislature may end the right of the public to enter upon the public +place by putting an end to the dedication to public uses. So it may take +the less step of limiting the public use to certain purposes."[145] +Forty-two years later this case was distinguished in Hague _v._ +C.I.O.[146] (_See_ p. 808.) And in 1948 in Saia _v._ New York[147] an +ordinance forbidding the use of sound amplification devices by which +sound is cast directly upon the streets and public places, except with +permission of the chief of police, for the exercise of whose discretion +no standards were prescribed, was held unconstitutional as applied to +one seeking leave to amplify religious lectures in a public park. The +decision was a five-to-four holding; and eight months later a majority, +comprising the former dissenters and the Chief Justice, held it to be a +permissible exercise of legislative discretion to bar sound trucks, with +broadcasts of public interest, amplified to a loud and raucous volume, +from the public ways of a municipality.[148] Conversely, it was within +the power of the Public Utilities Commission of the District of +Columbia, following a hearing and investigation, to issue an order +permitting the Capital Transit Company, despite the protest of some of +its patrons, to receive and amplify on its street cars and buses radio +programs consisting generally of 90% music, 5% announcements, and 5% +commercial advertising. Neither operation of the radio service nor the +action of the Commission permitting it was precluded by the First and +Fifth Amendments.[149] + +Under still unoverruled decisions an ordinance forbidding any +distribution of circulars, handbills, advertising, or literature of any +kind within the city limits without permission of the City Manager is an +unlawful abridgment of freedom of the press.[150] So also are ordinances +which forbid, without exception, any distributions of handbills upon the +streets.[151] Even where such distribution involves a trespass upon +private property in a company owned town,[152] or upon Government +property in a defense housing development,[153] it cannot be stopped. +The passing out of handbills containing commercial advertising may, +however, be prohibited; this is true even where such handbills may +contain some matter which, standing alone would be immune from the +restriction.[154] A municipal ordinance forbidding any person to ring +door bells, or otherwise summon to the door the occupants of any +residence, for the purpose of distributing to them circulars or +handbills was held to infringe freedom of speech and of the press as +applied to a person distributing advertisements of a religious +meeting.[155] But an ordinance forbidding door to door peddling or +canvassing unless it is invited or requested by the occupant of a +private residence is valid.[156] + + +CENSORSHIP + +Freedom from previous restraints has never been regarded as absolute. +The principle that words having the quality of verbal acts might be +enjoined by court order was established in Gompers _v._ Bucks Stove and +Range Co.;[157] and in Near _v._ Minnesota[158] the Court, speaking +through Chief Justice Hughes, even while extending Blackstone's +condemnation of censorship to a statute which authorized the enjoining +of publications alleged to be persistently defamatory, criticized it as +being in some respects too sweeping. Indeed, the distinction between +prevention and punishment appears to have played little or no part in +determining when picketing may be forbidden in labor disputes.[159] In +Chaplinsky _v._ New Hampshire[160] and Board of Education _v._ +Barnette,[161] the opinions indicated that the power of Government is +measured by the same principles in both situations. In the former +Justice Murphy asserted: "There are certain well-defined and narrowly +limited classes of speech, the prevention and punishment of which have +never been thought to raise any constitutional problem. These include +the lewd and obscene, the profane, the libelous, and the insulting or +'fighting' words--those which by their very utterance inflict injury or +tend to incite an immediate breach of the peace. It has been well +observed that such are no essential part of any exposition of ideas, and +are of such slight social value as a step to truth that any benefit that +may be derived from them is clearly outweighed by the social interest in +order and morality."[162] To like effect, in Board of Education _v._ +Barnette, Justice Jackson set it down as "a commonplace that censorship +or suppression of expression of opinion is tolerated by our Constitution +only when the expression presents a clear and present danger of action +of a kind the State is empowered to prevent and punish."[163] + +It is significant that the cases which have sanctioned previous +restraints upon the utterances of particular persons have involved +restraint by judicial, not administrative action. The prime objective of +the ban on previous restraints was to outlaw censorship accomplished by +licensing. "The struggle for the freedom of the press was primarily +directed against the power of the licensor. It was against that power +that John Milton directed his assault by his 'Appeal for the Liberty of +Unlicensed Printing.' And the liberty of the press became initially a +right to publish '_without_ a license what formerly could be published +only _with one_'."[164] Even today, a licensing requirement will bring +judicial condemnation more surely than any other form of restriction. +Except where the authority of the licensing officer is so closely +limited as to leave no room for discrimination against utterances he +does not approve,[165] the Supreme Court has struck down licensing +ordinances, even in respect of a form of communication which may be +prohibited entirely.[166] In the case of radio broadcasting, however, +where physical limitations make it impossible for everyone to utilize +the medium of communication, the Court has thus far sanctioned a power +of selective licensing;[167] while with respect to moving pictures it +has until very recently held the States' power to license, and hence to +censor, films intended for local exhibition to be substantially +unrestricted, this being "a business pure and simple, originated and +conducted for profit," and "not to be regarded, ... as part of the press +of the country or as organs of public opinion."[168] This doctrine was +laid down in 1915, but in 1948, in speaking for the Court, in United +States _v._ Paramount Pictures,[169] Justice Douglas indicated a very +different position, saying: "We have no doubt that moving pictures, +like newspapers and radio, are included in the press whose freedom is +guaranteed by the First Amendment."[170] In the so-called "Miracle +Case,"[171] in which it was held that under the First and Fourteenth +Amendments, a State may not place a prior restraint on the showing of a +motion picture film on the basis of the censor's finding that it is +"sacrilegious," a word of uncertain connotation, this point of view +becomes the doctrine of the Court and the Mutual Films Case is +pronounced "overruled" so far as it is out of harmony with the instant +holding.[172] + + +THE CLEAR AND PRESENT DANGER TEST: JUDICIAL DIVERSITIES + +In the course of decisions enforcing this test of state action with +respect to freedom of speech and press, diversity of opinion has +appeared among the Justices upon three closely related topics: first, as +to the restrictive force of the test; second, as to the constitutional +status of freedom of speech and press; third, as to the kind of speech +which the Constitution is concerned to protect. On the first point the +following passage from Justice Black's opinion in Bridges _v._ +California[173] is pertinent: "What finally emerges from the 'clear and +present danger' cases is a working principle that the substantive evil +must be extremely serious and the degree of imminence extremely high +before utterances can be punished. Those cases do not purport to mark +the furthermost constitutional boundaries of protected expression, nor +do we here. They do no more than recognize a minimum compulsion of the +Bill of Rights. For the First Amendment does not speak equivocally. It +prohibits any law 'abridging the freedom of speech or of the press.' It +must be taken as a command of the broadest scope that explicit language, +read in the context of a liberty-loving society, will allow."[174] With +this should be compared the following words from Justice Frankfurter's +concurring opinion in Pennekamp _v._ Florida,[175] which involved a +closely similar issue to the one dealt with in the Bridges Case: "'Clear +and present danger' was never used by Mr. Justice Holmes to express a +technical legal doctrine or to convey a formula for adjudicating cases. +It was a literary phrase not to be distorted by being taken from its +context. In its setting it served to indicate the importance of freedom +of speech to a free society but also to emphasize that its exercise must +be compatible with the preservation of other freedoms essential to a +democracy and guaranteed by our Constitution. When those other +attributes of a democracy are threatened by speech, the Constitution +does not deny power to the states to curb it."[176] + +The second question, in more definite terms, is whether freedom of +speech and press occupies a "preferred position" in the constitutional +hierarchy of values so that legislation restrictive of it is +presumptively unconstitutional. An important contribution to the +affirmative view on this point is the following passage from an opinion +of Justice Cardozo written in 1937: "One may say that it is the matrix, +the indispensable condition, of nearly every other form of freedom. +* * * So it has come about that the domain of liberty, withdrawn by the +Fourteenth Amendment from encroachment by the states, has been enlarged +by latter-day judgments to include liberty of the mind as well as +liberty of action. The extension became, indeed, a logical imperative +when once it was recognized, as long ago it was, that liberty is +something more than exemption from physical restraint, and that even in +the field of substantive rights and duties the legislative judgment, if +oppressive and arbitrary, may be overridden by the courts."[177] +Touching on the same subject a few months later, Chief Justice Stone +suggested that: "There may be narrower scope for operation of the +presumption of constitutionality when legislation appears on its face to +be within a specific prohibition of the Constitution, such as those of +the first ten amendments, which are deemed equally specific when held to +be embraced within the Fourteenth." And again: "It is unnecessary to +consider now whether legislation which restricts those political +processes which can ordinarily be expected to bring about repeal of +undesirable legislation, is to be subjected to more exacting judicial +scrutiny under the general prohibitions of the Fourteenth Amendment than +are most other types of legislation."[178] But the strongest assertion +of this position occurs in Justice Rutledge's opinion for a sharply +divided Court in Thomas _v._ Collins.[179] He says: "The case confronts +us again with the duty our system places on this Court to say where the +individual's freedom ends and the State's power begins. Choice on that +border, now as always delicate, is perhaps more so where the usual +presumption supporting legislation is balanced by the preferred place +given in our scheme to the great, the indispensable democratic freedoms +secured by the First Amendment. * * * That priority gives these +liberties a sanctity and a sanction not permitting dubious intrusions. +And it is the character of the right, not of the limitation, which +determines what standard governs the choice. * * * For these reasons any +attempt to restrict those liberties must be justified by clear public +interest, threatened not doubtfully or remotely, but by clear and +present danger. The rational connection between the remedy provided and +the evil to be curbed, which in other contexts might support legislation +against attack on due process grounds, will not suffice. These rights +rest on firmer foundation. Accordingly, whatever occasion would restrain +orderly discussion and persuasion, at appropriate time and place, must +have clear support in public danger, actual or impending. Only the +gravest abuses, endangering paramount interests, give occasion for +permissible limitation. It is therefore in our tradition to allow the +widest room for discussion, the narrowest range for its restriction, +particularly when this right is exercised in conjunction with peaceable +assembly. It was not by accident or coincidence that the rights to +freedom in speech and press were coupled in a single guaranty with the +rights of the people peaceably to assemble and to petition for redress +of grievances. All these, though not identical, are inseparable. They +are cognate rights."[180] This was 1945. Four years later the +controlling wing of the Court, in sustaining a local ordinance, endorsed +a considerably less enthusiastic appraisal of freedom of speech and +press. Thus while alluding to "the preferred position of freedom of +speech in a society that cherishes liberty for all," Justice Reed went +on to say, that this "does not require legislators to be insensible to +claims by citizens to comfort and convenience. To enforce freedom of +speech in disregard of the rights of others would be harsh and arbitrary +in itself."[181] And Justice Frankfurter denied flatly the propriety of +the phrase "preferred position," saying: "This is a phrase that has +uncritically crept into some recent opinions of this Court. I deem it a +mischievous phrase, if it carries the thought, which it may subtly +imply, that any law touching communication is infected with presumptive +invalidity. It is not the first time in the history of constitutional +adjudication that such a doctrinaire attitude has disregarded the +admonition most to be observed in exercising the Court's reviewing power +over legislation, 'that it is a constitution we are expounding,' +M'Culloch _v._ Maryland, 4 Wheat. 316, 407. I say the phrase is +mischievous because it radiates a constitutional doctrine without +avowing it. Clarity and candor in these matters, so as to avoid gliding +unwittingly into error, make it appropriate to trace the history of the +phrase 'preferred position.'"[182] which Justice Frankfurter then +proceeded to do. Justice Jackson also protested: "We cannot," he said, +"give some constitutional rights a preferred position without relegating +others to a deferred position."[183] + +The third question concerns the quality and purpose of the speech which +the Constitution aims to protect. In 1949, Justice Douglas speaking for +a divided Court returned the following robustious answer to this +question: "* * * a function of free speech under our system of +government is to invite dispute. It may indeed best serve its high +purpose when it induces a condition of unrest, creates dissatisfaction +with conditions as they are, or even stirs people to anger. Speech is +often provocative and challenging. It may strike at prejudices and +preconceptions and have profound unsettling effects as it presses for +acceptance of an idea. That is why freedom of speech, though not +absolute, Chaplinsky _v._ New Hampshire, supra, pp. 571-572, is +nevertheless protected against censorship or punishment, unless shown +likely to produce a clear and present danger of a serious substantive +evil that rises far above public inconvenience, annoyance, or +unrest."[184] But early in 1951 Justice Jackson, in a dissenting +opinion, urges the Court to review its entire position in the light of +the proposition that "the purpose of constitutional protection of +freedom of speech is to foster peaceful interchange of all manner of +thoughts, information and ideas," that "its policy is rooted in faith of +the force of reason."[185] He considers that the Court has been striking +"rather blindly at permit systems which indirectly may affect First +Amendment freedom." He says: "Cities throughout the country have adopted +the permit requirement to control private activities on public streets +and for other purposes. The universality of this type of regulation +demonstrates a need and indicates widespread opinion in the profession +that it is not necessarily incompatible with our constitutional +freedoms. Is everybody out of step but this Court? * * * It seems +hypercritical to strike down local laws on their faces for want of +standards when we have no standards. And I do not find it required by +existing authority. I think that where speech is outside of +constitutional immunity the local community or the State is left a large +measure of discretion as to the means for dealing with it."[186] This +diversity of viewpoint on the Court touching the above questions became +of importance when, recently, the Court was faced with the problem of +the relation of freedom of speech to the enumerated powers of the +National Government, in contrast to the indefinite residual powers of +the States. + + +TAXATION + +The Supreme Court, citing the fact that the American Revolution "really +began when * * * that government (of England) sent stamps for newspaper +duties to the American colonies" has been alert to the possible uses of +taxation as a method of suppressing objectionable publications.[187] +Persons engaged in the dissemination of ideas are, to be sure, subject +to ordinary forms of taxation in like manner as other persons.[188] With +respect to license or privilege taxes, however, they stand on a +different footing. Their privilege is granted by the Constitution and +cannot be withheld by either State or Federal Government. Hence a +license tax measured by gross receipts for the privilege of engaging in +the business of publishing advertising in any newspaper or other +publication was held invalid[189] and flat license fees levied and +collected as a pre-condition to the sale of religious books and +pamphlets have also been set side.[190] + + +FEDERAL RESTRAINTS ON FREEDOM OF SPEECH AND PRESS + + +Regulations of Business and Labor Activities + +The application to newspapers of the Anti-Trust Laws,[191] the National +Labor Relations Act,[192] or the Fair Labor Standards Act,[193] does not +abridge the freedom of the press. In Gompers _v._ Bucks Stove and Range +Co.,[194] the Supreme Court unanimously held that a court of equity may +enjoin continuance of a boycott, despite the fact that spoken or written +speech was used as an instrumentality by which the boycott was made +effective. "In the case of an unlawful conspiracy, the agreement to act +in concert when the signal is published gives the words 'Unfair,' 'We +Don't Patronize,' or similar expressions, a force not inhering in the +words themselves, and therefore exceeding any possible right of speech +which a single individual might have. Under such circumstances they +become what have been called 'verbal acts,' and as much subject to +injunction as the use of any other force whereby property is unlawfully +damaged."[195] A cognate test has been applied in determining when +communications by an employer constitute an unfair labor practice which +may be forbidden or penalized under the National Labor Relations Act +without infringing freedom of speech. In Labor Board _v._ Virginia Power +Co.,[196] the Court held that the sanctions of the act might be imposed +upon an employer for the protection of his employees, where his conduct +"though evidenced in part by speech, * * * (amounted) to coercion within +the meaning of the act."[197] In the opinion of the Court, Justice +Murphy stated, "The mere fact that language merges into a course of +conduct does not put that whole course without the range of otherwise +applicable administrative power. In determining whether the Company +actually interfered with, restrained, and coerced its employees, the +Board has a right to look at what the Company has said, as well as what +it has done."[198] But the constitutionality of legislation prohibiting +the publication by corporations and unions in the regular course of +conducting their affairs of periodicals advising their members, +stockholders or customers of danger or advantage to their interest from +the adoption of measures or the election to office of men espousing such +measures has been declared by the Court to be open to gravest +doubt.[199] + + +REGULATION OF POLITICAL ACTIVITIES OF FEDERAL EMPLOYEES + +The leading case touching this subject is Ex parte Curtis, decided +seventy years ago.[200] Here was sustained an act of Congress which +prohibited, under penalties, certain categories of officers of the +United States from requesting, giving to, or receiving from, any other +officer, money or property or other thing of value for political +purposes.[201] Two generations later was enacted the so-called Hatch +Act[202] which, while making some concessions to freedom of expression +on matters political by employees of the government, forbids their +active participation in political management and political campaigns. +The act was sustained against objections based on the Bill of +Rights;[203] while an amendment to it the effect of which is to diminish +the amount of a federal grant-in-aid of the construction of highways in +a State which fails to remove from office "one found by the United +States Civil Service Commission to have taken active part in political +management or in political campaigns while a member of the state highway +commission," was held not to violate Amendment X.[204] + + +LEGISLATION PROTECTIVE OF THE ARMED FORCES AND OF THE WAR POWER + +The Federal Government may punish utterances which obstruct its +recruiting or enlistment service, cause insubordination in the armed +forces, encourage resistance to government in the prosecution of war, or +impede the production of munitions and other essential war +material.[205] The only issue which has divided the Court with regard to +such speech has been the degree of danger which must exist before it may +be punished. The recent decision in Dennis _v._ United States +diminishes, if it does not eliminate, this issue.[206] + + +LOYALTY REGULATIONS: THE DOUDS CASES + +"Section 9 (h) of the Labor Management Relations Act requires, as a +condition of a union's utilizing the opportunities afforded by the act, +each of its officers to file an affidavit with the National Labor +Relations Board (1) that he is not a member of the Communist Party or +affiliated with such party, and (2) that he does not believe in, and is +not a member of or supports any organization that believes in or teaches +the overthrow of the United States Government by force or by any illegal +or unconstitutional methods." The statute also makes it a criminal +offense to make willfully or knowingly any false statement in such an +affidavit.[207] In American Communications Association, C.I.O. et al. +_v._ Douds[208] five of the six Justices participating sustained the +requirement (1) and three Justices sustained the requirement (2) +against the objection that the act exceeded Congress's power over +interstate commerce and infringed freedom of speech and the rights of +petition and assembly; and in Osman _v._ Douds[209] the same result was +reached by a Court in which only Justice Clark did not participate. In +the end only Justice Black condemned requirement (1), while the Court +was evenly divided as to requirement (2). In the course of his opinion +for the controlling wing of the Court, Chief Justice Vinson said: "The +attempt to apply the term, 'clear and present danger,' as a mechanical +test in every case touching First Amendment freedoms, without regard to +the context of its application, mistakes the form in which an idea was +cast for the substance of the idea * * * the question with which we are +here faced is not the same one that Justices Holmes and Brandeis found +convenient to consider in terms of clear and present danger. +Government's interest here is not in preventing the dissemination of +Communist doctrine or the holding of particular beliefs because it is +feared that unlawful action will result therefrom if free speech is +practiced. Its interest is in protecting the free flow of commerce from +what Congress considers to be substantial evils of conduct that are not +the products of speech at all. * * * The contention of petitioner * * * +that this Court must find that political strikes create a clear and +present danger to the security of the Nation or of widespread industrial +strife in order to sustain Sec. 9 (h) similarly misconceives the purpose +that phrase was intended to serve. In that view, not the relative +certainty that evil conduct will result from speech in the immediate +future, but the extent and gravity of the substantive evil must be +measured by the 'test' laid down in the _Schenck Case_."[210] In thus +balancing the gravity of the interest protected by legislation from +harmful speech against the demands of the clear and present danger rule +the Court paved the way for its decision a year later in Dennis _v._ +United States. + + +THE CASE OF THE ELEVEN COMMUNISTS + +Dennis _v._ United States[211] involves the following legislation: + +"Section 2. (a) It shall be unlawful for any person-- + +"(1) to knowingly or willfully advocate, abet, advise, or teach the +duty, necessity, desirability, or propriety of overthrowing or +destroying any government in the United States by force or violence, or +by the assassination of any officer of any such government; + +"(2) with the intent to cause the overthrow or destruction of any +government in the United States, to print, publish, edit, issue, +circulate, sell, distribute, or publicly display any written or printed +matter advocating, advising, or teaching the duty, necessity, +desirability, or propriety of overthrowing or destroying any government +in the United States by force or violence; + +"(3) to organize or help to organize any society, group, or assembly of +persons who teach, advocate, or encourage the overthrow or destruction +of any government in the United States by force or violence; or to be or +become a member of, or affiliate with, any such society, group, or +assembly of persons, knowing the purposes thereof. + +"(b) For the purposes of this section, the term 'government in the +United States' means the Government of the United States, the government +of any State, Territory, or possession of the United States, the +government of the District of Columbia, or the government of any +political subdivision of any of them."[212] + +The trial court had ruled that clause (2) of the act qualified both the +other clauses; and this construction was endorsed by the Supreme Court. +The judgment of the Court sustaining the convictions against objections +raised under Amendment I was supported by three different opinions. +Chief Justice Vinson, speaking also for Justices Reed, Burton and Minton +emphasized the substantial character of the Government's interest in +preventing its own overthrow by force. "Indeed," said he, "this is the +ultimate value of any society, for if a society cannot protect its very +structure from armed internal attack, it must follow that no subordinate +value can be protected."[213] The opinion continues: "If, then, this +interest may be protected, the literal problem which is presented is +what has been meant by the use of the phrase 'clear and present danger' +of the utterances bringing about the evil within the power of Congress +to punish. Obviously, the words cannot mean that before the Government +may act, it must wait until the _putsch_ is about to be executed, the +plans have been laid and the signal is awaited. If Government is aware +that a group aiming at its overthrow is attempting to indoctrinate its +members and to commit them to a course whereby they will strike when the +leaders feel the circumstances permit, action by the Government is +required. The argument that there is no need for Government to concern +itself, for Government is strong, it possesses ample powers to put down +a rebellion, it may defeat the revolution with ease needs no answer. For +that is not the question. Certainly an attempt to overthrow the +Government by force, even though doomed from the outset because of +inadequate numbers or power of the revolutionists, is a sufficient evil +for Congress to prevent. The damage which such attempts create both +physically and politically to a nation makes it impossible to measure +the validity in terms of the probability of success or the immediacy of +a successful attempt."[214] The Chief Justice concluded this part of his +opinion by quoting from Chief Judge Learned Hand's opinion for the +Circuit Court of Appeals in the same case, as follows: "'In each case +[courts] must ask whether the gravity of the evil, discounted by its +improbability, justifies such invasion of free speech as is necessary to +avoid the danger.'"[215] In short, if the evil legislated against is +serious enough, advocacy of it in order to be punishable does not have +to be attended by a clear and present danger of success. + +But at this point the Chief Justice appears to recoil from this abrupt +dismissal of the clear and present danger formula for the more serious +cases, and he makes a last moment effort to rescue the babe that he has +tossed out with the bathwater. He says: "As articulated by Chief Judge +Hand, it is as succinct and inclusive as any other we might devise at +this time. It takes into consideration those factors which we deem +relevant, and relates their significances. More we cannot expect from +words. Likewise, we are in accord with the court below, which affirmed +the trial court's finding that the requisite danger existed. The mere +fact that from the period 1945 to 1948 petitioners' activities did not +result in an attempt to overthrow the Government by force and violence +is of course no answer to the fact that there was a group that was ready +to make the attempt. The formation by petitioners of such a highly +organized conspiracy, with rigidly disciplined members subject to call +when the leaders, these petitioners, felt that the time had come for +action, coupled with the inflammable nature of world conditions, similar +uprisings in other countries, and the touch-and-go nature of our +relations with countries with whom petitioners were in the very least +ideologically attuned, convince us that their convictions were justified +on this score. And this analysis disposes of the contention that a +conspiracy to advocate, as distinguished from the advocacy itself, +cannot be constitutionally restrained, because it comprises only the +preparation. It is the existence of the conspiracy which creates the +danger."[216] His final position seems to be that, after all, the +question is one for judicial discretion. "When facts are found that +establish the violation of a statute, the protection against conviction +afforded by the First Amendment is a matter of law. The doctrine that +there must be a clear and present danger of a substantive evil that +Congress has a right to prevent is a judicial rule to be applied as a +matter of law by the courts."[217] + +Justice Frankfurter's lengthy concurring opinion premises "the right of +a government to maintain its existence--self preservation." This, he +says, is "the most pervasive aspect of sovereignty," citing The +Federalist No. 41, and certain cases.[218] A little later he raises the +question, "But how are competing interests to be assessed?" and answers: +"Full responsibility for the choice cannot be given to the courts. +Courts are not representative bodies. They are not designed to be a good +reflex of a democratic society. Their judgment is best informed, and +therefore most dependable, within narrow limits. Their essential quality +is detachment, founded on independence. History teaches that the +independence of the judiciary is jeopardized when courts become +embroiled in the passions of the day and assume primary responsibility +in choosing between competing political, economic and social pressures. +Primary responsibility for adjusting the interests which compete in the +situation before us of necessity belongs to the Congress. The nature of +the power to be exercised by this Court has been delineated in decisions +not charged with the emotional appeal of situations such as that now +before us. We are to set aside the judgment of those whose duty it is to +legislate only if there is no reasonable basis for it."[219] But a +difficulty exists, to wit, in the clear and present danger doctrine. He +says: "In all fairness, the argument [of defendants] cannot be met by +reinterpreting the Court's frequent use of 'clear' and 'present' to mean +an entertainable 'probability.' In giving this meaning to the phrase +'clear and present danger,' the Court of Appeals was fastidiously +confining the rhetoric of opinions to the exact scope of what was +decided by them. We have greater responsibility for having given +constitutional support, over repeated protests, to uncritical +libertarian generalities. Nor is the argument of the defendants +adequately met by citing isolated cases. * * * The case for the +defendants requires that their conviction be tested against the entire +body of our relevant decisions."[220] + +Turning then to the cases Justice Frankfurter exclaims at last: "I must +leave to others the ungrateful task of trying to reconcile all these +decisions."[221] The nearest precedent was Gitlow _v._ New York.[222] +Here "we put our respect for the legislative judgment in terms which, if +they were accepted here, would make decision easy. * * * But it would be +disingenuous to deny that the dissent in _Gitlow_ has been treated with +the respect usually accorded a decision."[223] But the case at bar was a +horse of a different color. "In contrast, there is ample justification +for a legislative judgment that the conspiracy now before us is a +substantial threat to national order and security,"[224] which seems to +be in essential agreement with the position of the Chief Justice and his +three associates. Justice Frankfurter concludes with a homily on the +limitations which the nature of judicial power imposes, on the power of +judicial review. He says: "Can we then say that the judgment Congress +exercised was denied it by the Constitution? Can we establish a +constitutional doctrine which forbids the elected representatives of the +people to make this choice? Can we hold that the First Amendment +deprives Congress of what it deemed necessary for the Government's +protection? To make validity of legislation depend on judicial reading +of events still in the womb of time--a forecast, that is, of the outcome +of forces at best appreciated only with knowledge of the topmost secrets +of nations--is to charge the judiciary with duties beyond its equipment. +We do not expect courts to pronounce historic verdicts on bygone events. +Even historians have conflicting views to this day on the origin and +conduct of the French Revolution. It is as absurd to be confident that +we can measure the present clash of forces and their outcome as to ask +us to read history still enveloped in clouds of controversy. * * * The +distinction which the Founders drew between the Court's duty to pass on +the power of Congress and its complementary duty not to enter directly +the domain of policy is fundamental. But in its actual operation it is +rather subtle, certainly to the common understanding. Our duty to +abstain from confounding policy with constitutionality demands +preceptive humility as well as self-restraint in not declaring +unconstitutional what in a judge's private judgment is unwise and even +dangerous."[225] + +Justice Jackson's opinion emphasizes the conspiratorial element of the +case, and is flatfooted in rejecting the 'clear and present danger' test +for this type of case. He writes: "The 'clear and present danger' test +was an innovation by Mr. Justice Holmes in the _Schenck Case_, +reiterated and refined by him and Mr. Justice Brandeis in later cases, +all arising before the era of World War II revealed the subtlety and +efficacy of modernized revolutionary techniques used by totalitarian +parties. In those cases, they were faced with convictions under +so-called criminal syndicalism statutes aimed at anarchists but which, +loosely construed, had been applied to punish socialism, pacifism, and +left-wing ideologies, the charges often resting on far-fetched +inferences which, if true, would establish only technical or trivial +violations. They proposed 'clear and present danger' as a test for the +sufficiency of evidence in particular cases. I would save it, +unmodified, for application as a 'rule of reason' in the kind of case +for which it was devised. When the issue is criminality of a hot-headed +speech on a street corner, or circulation of a few incendiary pamphlets +or parading by some zealots behind a red flag, or refusal of a handful +of school children to salute our flag, it is not beyond the capacity of +the judicial process to gather, comprehend, and weigh the necessary +materials for decision whether it is a clear and present danger of +substantive evil or a harmless letting off of steam. It is not a +prophecy, for the danger in such cases has matured by the time of trial +or it was never present. The test applies and had meaning where a +conviction is sought to be based on a speech or writing which does not +directly or explicitly advocate a crime but to which such tendency is +sought to be attributed by construction or by implication from external +circumstances. The formula in such cases favors freedoms that are vital +to our society, and, even if sometimes applied too generously, the +consequences cannot be grave. But its recent expansion has extended, in +particular to Communists, unprecedented immunities. Unless we are to +hold our Government captive in a judge-made verbal trap, we must +approach the problem of a well-organized, nation-wide conspiracy, such +as I have described, as realistically as our predecessors faced the +trivialities that were being prosecuted until they were checked with a +rule of reason. I think reason is lacking for applying that test to this +case."[226] And again, "What really is under review here is a conviction +of conspiracy, after a trial for conspiracy, on an indictment charging +conspiracy, brought under a statute outlawing conspiracy. With due +respect to my colleagues, they seem to me to discuss anything under the +sun except the law of conspiracy. One of the dissenting opinions even +appears to chide me for 'invoking the law of conspiracy.' As that is the +case before us, it may be more amazing that its reversal can be proposed +without even considering the law of conspiracy. The Constitution does +not make conspiracy a civil right. The Court has never before done so +and I think it should not do so now. Conspiracies of labor unions, trade +associations, and news agencies have been condemned, although +accomplished, evidenced and carried out, like the conspiracy here, +chiefly by letter-writing, meetings, speeches and organization. Indeed, +this Court seems, particularly in cases where the conspiracy has +economic ends, to be applying its doctrines with increasing severity. +While I consider criminal conspiracy a dragnet device capable of +perversion into an instrument of injustice in the hands of a partisan or +complacent judiciary, it has an established place in our system of law, +and no reason appears for applying it only to concerted action claimed +to disturb interstate commerce and withholding it from those claimed to +undermine our whole Government. * * *"[227] + +The dissenters were Justices Black and Douglas. The former reiterated +his position in Bridges _v._ California; the latter italicized Justice +Brandeis' dictum in the Whitney Case: "If there be time to expose +through discussion the falsehood and fallacies, to avert the evil by the +processes of education, the remedy to be applied is more speech, not +enforced silence."[228] The answer would seem to be that education had +not in fact prevented the formation of the conspiracy for entering into +which the eleven defendants were convicted. If that be deemed a danger +at all, it was certainly a clear and present one. Both dissenters, in +fact, ignore the conspiracy element. + + +SUBVERSIVE ORGANIZATIONS + +In a series of cases[229] in which certain organizations sued the +Attorney General for declaratory or injunctive relief looking to the +deletion of their names from a list of organizations designated by him +to be subversive, the Court reversed holdings of the courts below which +had denied relief. Two Justices thought the order not within the +President's Executive Order No. 9835, which lays down a procedure for +the determination of the loyalty of federal employees or +would-be-employees. Justice Black thought the Attorney General had +violated Amendment I and that the President's order constituted a Bill +of Attainder. He and Justices Frankfurter and Jackson also held that the +Attorney General had violated due process of law in having failed to +give the petitioners notice and hearing. Justice Reed, with the +concurrence of the Chief Justice and Justice Minton, dissented, +asserting that the action of the Court constituted an interference with +the discretion of the executive in the premises. + + +RECENT STATE LEGISLATION + + +Loyalty Tests + +The decision in Dennis _v._ United States,[230] taken in conjunction +with those in the two Douds[231] Cases, put the clear and present danger +rule on the defensive in the field of federal legislation. Substantially +contemporaneous holdings in the field of state action may reflect a +similar trend. In Garner _v._ Los Angeles Board,[232] the Court +sustained the right of a municipality to bar from employment persons who +advise, advocate, or teach the violent overthrow of the government, or +who are members of, or become affiliated with any group doing so, and to +exact a loyalty oath of its employees. In Adler _v._ Board of +Education[233] the Court sustained the Civil Service Law of New York as +implemented by the so-called Feinberg Law of 1949.[234] The former makes +ineligible in any public school any member of an organization advocating +the overthrow of government by force, violence, or any unlawful means. +The Feinberg Law requires the Board of Regents of the State (1) to adopt +and enforce rules for the removal of ineligible persons; (2) to +promulgate a list of banned organizations; (3) to make membership in +any such organization prima facie evidence of disqualification for +employment in the public schools. Referring to the Garner Case above, +Justice Minton, for the Court, said: "We adhere to that case. A teacher +works in a sensitive area in the schoolroom. There he shapes the +attitude of young minds towards the society in which they live. In this, +the state has a vital concern. It must preserve the integrity of the +schools. That the school authorities have the right and the duty to +screen the officials, teachers, and employees as to their fitness to +maintain the integrity of the schools as a part of ordered society, +cannot be doubted. One's associates, past and present, as well as one's +conduct, may properly be considered in determining fitness and loyalty. +From time immemorial, one's reputation has been determined in part by +the company he keeps. In the employment of officials and teachers of the +school system, the state may very properly inquire into the company they +keep, and we know of no rule, constitutional or otherwise, that prevents +the state, when determining the fitness and loyalty of such persons, +from considering the organizations and persons with whom they +associate."[235] + + +Group Libel + +In 1952 in Beauharnais _v._ Illinois[236] the Court sustained an +Illinois statute which makes it a crime to exhibit in a public place any +publication which "portrays depravity, criminality, unchastity, or lack +of virtue of a class of citizens, of any race, color, creed or religion" +or which "exposes the citizens of any race, color, creed or religion to +contempt, derision, or obloquy." The act was treated by the State +Supreme Court as a form of criminal libel, with the result that defense +by truth of the utterance was not under Illinois law available unless +the publication was also shown to have been made "with good motives and +with justifiable ends." So construed, the Court held, the Act did not +violate liberty of speech and press as guaranteed to the States by +Amendment XIV. Said Justice Frankfurter: + +"If an utterance directed at an individual may be the object of criminal +sanctions, we cannot deny to a State power to punish the same utterance +directed at a defined group, unless we can say that this is a wilful and +purposeless restriction unrelated to the peace and well-being of the +State."[237] Pointing then to Illinois' bad record in the matter of race +riots, he continued: "In the face of this history and its frequent +obligato of extreme racial and religious propaganda, we would deny +experience to say that the Illinois legislature was without reason in +seeking ways to curb false or malicious defamation of racial and +religious groups, made in public places and by means calculated to have +a powerful emotional impact on those to whom it was presented. 'There +are limits to the exercise of these liberties [of speech and of the +press]. The danger in these times from the coercive activities of those +who in the delusion of racial or religious conceit would incite violence +and breaches of the peace in order to deprive others of their equal +right to the exercise of their liberties, is emphasized by events +familiar to all. These and other transgressions of those limits the +States appropriately may punish.' * * * It is not within our competence +to confirm or deny claims of social scientists as to the dependence of +the individual on the position of his racial or religious group in the +community. It would, however, be arrant dogmatism, quite outside the +scope of our authority in passing on the powers of a State, for us to +deny that the Illinois legislature may warrantably believe that a man's +job and his educational opportunities and the dignity accorded him may +depend as much on the reputation of the racial and religious group to +which he willy-nilly belongs, as on his own merits. This being so, we +are precluded from saying that speech concededly punishable when +immediately directed at individuals cannot be outlawed if directed at +groups with whose position and esteem in society the affiliated +individual may be inextricably involved."[238] + + +CENSORSHIP OF THE MAILS: FRAUD ORDER + +By legislation adopted in 1879 and 1934 Congress has specified certain +conditions upon which a publication shall be admitted to the valuable +second-class mailing privilege, one of which provides as follows: Except +as otherwise provided by law, the conditions upon which a publication +shall be admitted to the second-class are as follows: "* * * _Fourth._ +It must be originated and published for the dissemination of information +of a public character, or devoted to literature, the sciences, arts, or +some special industry, and having a legitimate list of subscribers; +* * * nothing herein contained shall be so construed as to admit to the +second-class rate regular publications designed primarily for +advertising purposes, or for free circulation, or for circulation at +nominal rates."[239] In Hannegan _v._ Esquire, Inc.,[240] the Court +sustained an injunction against an order of the Postmaster General which +suspended a permit to Esquire Magazine on the ground that it did not +"contribute to the public good and the public welfare." Said Justice +Douglas for the Court: "* * * a requirement that literature or art +conform to some norm prescribed by an official smacks of an ideology +foreign to our system. The basic values implicit in the requirements of +the Fourth condition can be served only by uncensored distribution of +literature. From the multitude of competing offerings the public will +pick and choose. What seems to one to be trash may have for others +fleeting or even enduring values. But to withdraw the second-class rate +from this publication today because its contents seemed to one official +not good for the public would sanction withdrawal of the second-class +rate tomorrow from another periodical whose social or economic views +seemed harmful to another official. The validity of the obscenity laws +is recognized that the mails may not be used to satisfy all tastes, no +matter how perverted. But Congress has left the Postmaster General with +no power to prescribe standards for the literature or the art which a +mailable periodical disseminates."[241] In Donaldson _v._ Read +Magazine,[242] however, the Court sustained a Court order forbidding the +delivery of mail and money orders to a magazine conducting a puzzle +contest which the Postmaster-General had found to be fraudulent. Freedom +of the press, said the Court, does not include the right to raise money +by deception of the public. + + +The Rights of Assembly and Petition + +The right of petition took its rise from the modest provision made for +it in chapter 61 of Magna Carta (1215).[243] To this meagre beginning +Parliament itself and its procedures in the enactment of legislation, +the equity jurisdiction of the Lord Chancellor, and proceedings against +the Crown by "petition of right" are all in some measure traceable. +Thus, while the King summoned Parliament for the purpose of supply, the +latter--but especially the House of Commons--petitioned the King for a +redress of grievances as its price for meeting the financial needs of +the Monarch; and as it increased in importance it came to claim the +right to dictate the form of the King's reply, until in 1414 Commons +boldly declared themselves to be "as well assenters as petitioners." Two +hundred and fifty years later, in 1669, Commons further resolved that +every commoner in England possessed "the inherent right to prepare and +present petitions" to it "in case of grievance," and of Commons "to +receive the same" and to judge whether they were "fit" to be received. +Finally Chapter 5 of the Bill of Rights of 1689 asserted the right of +the subjects to petition the King and "all commitments and prosecutions +for such petitioning to be illegal."[244] + +Historically, therefore, the right of petition is the primary right, the +right peaceably to assemble a subordinate and instrumental right, as if +Amendment I read; "the right of the people peaceably to assemble" _in +order to_ "petition the government."[245] Today, however, the right of +peaceable assembly is, in the language of the Court, "cognate to those +of free speech and free press and is equally fundamental * * * [It] is +one that cannot be denied without violating those fundamental principles +of liberty and justice which lie at the base of all civil and political +institutions,--principles which the Fourteenth Amendment embodies in the +general terms of its due process clause. * * * The holding of meetings +for peaceable political action cannot be proscribed. Those who assist in +the conduct of such meetings cannot be branded as criminals on that +score. The question * * * is not as to the auspices under which the +meeting is held but as to its purposes; not as to the relation of the +speakers, but whether their utterances transcend the bounds of the +freedom of speech which the Constitution protects."[246] Furthermore, +the right of petition has expanded. It is no longer confined to demands +for "a redress of grievances," in any accurate meaning of these words, +but comprehends demands for an exercise by the government of its powers +in furtherance of the interests and prosperity of the petitioners, and +of their views on politically contentious matters. + + +RESTRAINTS ON THE RIGHT OF PETITION + +The right of petition recognized by Amendment I first came into +prominence in the early 1830's, when petitions against slavery in the +District of Columbia began flowing into Congress in a constantly +increasing stream, which reached its climax in the winter of 1835. +Finally on January 28, 1840, the House adopted as a standing rule: "That +no petition, memorial, resolution, or other paper praying the abolition +of slavery in the District of Columbia, or any State or Territories of +the United States in which it now exists, shall be received by this +House, or entertained in any way whatever." Thanks to the efforts of +John Quincy Adams this rule was repealed five years later, after Adams' +death.[247] For many years now the rules of the House of Representatives +have provided that members having petitions to present may deliver them +to the Clerk and the petitions, except such as, in the judgment of the +Speaker, are of an obscene or insulting character, shall be entered on +the Journal and the Clerk shall furnish a transcript of such record to +the official reporters of debates for publication in the Record.[248] +Even so petitions for the repeal of the espionage and sedition laws and +against military measures for recruiting resulted, in World War I, in +imprisonment.[249] Processions for the presentation of petitions in the +United States have not been particularly successful. In 1894 General +Coxey of Ohio organized armies of unemployed to march on Washington and +present petitions, only to see their leaders arrested for unlawfully +walking on the grass of the capitol. The march of the veterans on +Washington in 1932 demanding bonus legislation was defended as an +exercise of the right of petition. The administration, however, regarded +it as a threat against the constitution and called out the army to expel +the bonus marchers and burn their camps. For legal regulation of +lobbying activities, _see_ below. + + +THE CRUIKSHANK CASE + +The right of assembly was first passed upon by the Supreme Court in 1876 +in the famous case of United States _v._ Cruikshank et al.[250] The case +arose on indictments under section 6 of the so-called Enforcement Act of +May 30, 1870,[251] which read as follows: "That if two or more persons +shall band or conspire together, or go in disguise upon the public +highway, or upon the premises of another, with intent to violate any +provision of this act, or to injure, oppress, threaten, or intimidate +any citizen, with intent to prevent or hinder his free exercise and +enjoyment of any right or privilege granted or secured to him by the +Constitution or laws of the United States, or because of his having +exercised the same, such persons shall be held guilty of felony, etc." +The indictments charged the defendants with having deprived certain +citizens of their right to assemble together peaceably with other +citizens "for a peaceful and lawful purpose." The court held that this +language was insufficient inasmuch as it did not specify that the +attempted assembly was for a purpose connected with the National +Government. As to the right of assembly the Court, speaking by Chief +Justice Waite, went on to declare: "The right of the people peaceably to +assemble for the purpose of petitioning Congress for a redress of +grievances, or for anything else connected with the powers or the duties +of the National Government, is an attribute of national citizenship, +and, as such, under the protection of, and guaranteed by, the United +States. The very idea of a government, republican in form, implies a +right on the part of its citizens to meet peaceably for consultation in +respect to public affairs and to petition for a redress of grievances. +If it had been alleged in these counts that the object of the defendants +was to prevent a meeting for such a purpose, the case would have been +within the statute, and within the scope of the sovereignty of the +United States. Such, however, is not the case. The offence, as stated in +the indictment, will be made out, if it be shown that the object of the +conspiracy was to prevent a meeting for any lawful purpose +whatever."[252] + + +HAGUE _v._ COMMITTEE OF INDUSTRIAL ORGANIZATION + +In this case[253] the question at issue was the validity of a Jersey +City ordinance requiring the obtaining of a permit for a public assembly +in or upon the public streets, highways, public parks, or public +buildings of the city and authorizing the director of public safety, for +the purpose of preventing riots, disturbances, or disorderly assemblage, +to refuse to issue a permit when after investigation of all the facts +and circumstances pertinent to the application he believes it to be +proper to refuse to issue a permit. Two Justices held that in the +circumstances of the case the ordinance violated the right of certain +citizens of the United States to assemble to discuss certain privileges +which they enjoyed as such, to wit, their rights and privileges under +the National Labor Relations Act.[254] Said Justice Roberts, expressing +this point of view: "The privilege of a citizen of the United States to +use the streets and parks for communication of views on national +questions may be regulated in the interest of all; it is not absolute, +but relative, and must be exercised in subordination to the general +comfort and convenience, and in consonance with peace and good order; +but it must not, in the guise of regulation, be abridged or denied. We +think the court below was right in holding the ordinance quoted in Note +1 void upon its face. It does not make comfort or convenience in the use +of streets or parks the standard of official action. It enables the +Director of Safety to refuse a permit on his mere opinion that such +refusal will prevent 'riots, disturbances or disorderly assemblage.' It +can thus, as the record discloses, be made the instrument of arbitrary +suppression of free expression of views on national affairs for the +prohibition of all speaking will undoubtedly 'prevent' such +eventualities. But uncontrolled official suppression of the privilege +cannot be made a substitute for the duty to maintain order in connection +with the exercise of the right."[255] Two other Justices invoked also +the due process clause of Amendment XIV, thereby claiming the right of +assembly for aliens as well as citizens. Said Justice Stone, who +expressed this view: "I think respondents' right to maintain it does not +depend on their citizenship and cannot rightly be made to turn on the +existence or non-existence of a purpose to disseminate information about +the National Labor Relations Act. It is enough that petitioners have +prevented respondents from holding meetings and disseminating +information whether for the organization of labor unions or for any +other lawful purpose."[256] Both Justices were in agreement that freedom +of speech and freedom of assembly were claimable only by natural +persons, and not by corporations.[257] Two Justices dissented on the +basis of Davis _v._ Massachusetts.[258] + + +RECENT CASES + +In Bridges _v._ California[259] it was held that a telegram addressed to +the Secretary of Labor strongly criticizing the action of a State court +in a pending case was privileged under this amendment as an exercise of +the right of petition. In Thomas _v._ Collins[260] a statute requiring +registration before solicitation of union membership was found to +violate the right of peaceable assembly. But a closely divided Court +subsequently sustained an order of a State Employment Relations Board +forbidding work stoppages by the calling of special union meetings +during working hours.[261] Finally, a divided Court held June 4, 1951, +that a combination to break up by force and threats of force of a +meeting called for the purpose of adopting a resolution against the +Marshall Plan did not afford a right of action against the conspirators +under the Ku Klux Act of April 20, 1871.[262] While the complaint +alleged that the conspiracy was entered into for the purpose of +depriving the plaintiffs as citizens of the United States of their right +"peaceably to assemble for the purpose of discussing and communicating +upon national public issues," the Ku Klux Act was found not to extend +to violations of that right except by State acts depriving persons of +their rights under the Fourteenth Amendment. But the Court, perhaps +significantly, left open the question whether Congress can protect such +rights against private action. "It is not for this Court," remarked +Justice Jackson sententiously, "to compete with Congress or attempt to +replace it as the Nation's law-making body."[263] + + +LOBBYING AND THE RIGHT OF PETITION + +Today lobbying is frequently regarded as the most important expression +of the right of petition. During the last half century lobbying has +reached tremendous proportions; and there have been four Congressional +investigations of such activities, the latest by a Committee of the +House of Representatives. Meantime, in 1946 Congress passed the Federal +Regulation of Lobbying Act, under which more than 2,000 lobbyists have +registered and 495 organizations report lobbying contributions and +expenditures.[264] Recently doubts have been cast upon the +constitutionality of this statute by two decisions of lower federal +courts sitting in the District of Columbia. According to the District +Court therein, to subject a person, whose "principal purpose * * * is to +aid" in the defeat or passage of legislation and who violates this Act +by failing to file a detailed accounting, to a penalty entailing a +three-year prohibition from lobbying is to deprive such person of his +constitutional rights of freedom of speech and petition.[265] Insofar as +Congress legitimately may regulate lobbying, its powers in relation +thereto have been declared not to extend to "indirect lobbying by the +pressure of public opinion on the Congress." The latter was deemed to be +"the healthy essence of the democratic process."[266] + + +Notes + +[1] 268 U.S. 652 (1925). + +[2] Ibid. 666. + +[3] Fiske _v._ Kansas, 274 U.S. 380 (1927). + +[4] Cantwell _v._ Connecticut, 310 U.S. 296 (1940). + +[5] Near _v._ Minnesota, 283 U.S. 697 (1931). + +[6] De Jonge _v._ Oregon, 299 U.S. 353 (1937). + +[7] Annals of Congress, 434 (1789-1791). + +[8] Records of the United States Senate, Sept. 9, 1789, United States +Archives, cited in Appellees Brief in McCollum _v._ Board of Education, +333 U.S. 203 (1948). + +[9] Ibid. + +[10] Ibid. + +[11] Joseph Story, Commentaries on the Constitution, Sec. 1879 (1833). + +[12] Ibid. Sec. 1874. + +[13] Principles of Constitutional Law, 224-225, 3d ed. (1898). + +[14] Saul K. Padover, The Complete Jefferson, 518-519 (1943). + +[15] 98 U.S. 145 (1879). + +[16] Ibid. 164. In his 2d Inaugural Address Jefferson expressed a very +different, and presumably more carefully considered, opinion upon the +purpose of Amendment I: "In matters of religion, I have considered that +its free exercise is placed by the Constitution independent of the +powers of of the general government." This was said three years after +the Danbury letter. 1 Messages and Papers of the Presidents, 379 +(Richardson ed. 1896). + +[17] Everson _v._ Board of Education, 330 U.S. 1 (1947). + +[18] Ibid. 15, 16. + +[19] McCollum _v._ Board of Education, 333 U.S. 203 (1948). + +[20] Ibid. 212. + +[21] 333 U.S. 203, 213 (1948). + +[22] Ibid. 216-218. Justice Frankfurter's principal figure in the fight +against sectarianism is Horace Mann, who was secretary of the +Massachusetts Board of Education, 1837-1848. Mann, however, strongly +resented the charge that he was opposed to religious instruction in the +public schools. "It is true that Mr. Mann stood strongly for a 'type of +school with instruction adapted to democratic and national ends.' But it +is not quite just to him to contrast this type of school with the school +adapted to religious ends, without defining terms. Horace Mann was +opposed to sectarian doctrinal instruction in the schools, but he +repeatedly urged the teaching of the elements of religion common to all +of the Christian sects. He took a firm stand against the idea of a +purely secular education, and on one occasion said he was in favor of +religious instruction 'to the extremest verge to which it can be carried +without invading those rights of conscience which are established by the +laws of God, and guaranteed to us by the Constitution of the State.' At +another time he said that he regarded hostility to religion in the +schools as the greatest crime he could commit. Lest his name should go +down in history as that of one who had attempted to drive religious +instruction from the schools, he devoted several pages in his final +Report--the twelfth--to a statement in which he denied the charges of +his enemies." Raymond B. Culver, Horace Mann on Religion in the +Massachusetts Public Schools, 235 (1929). + +[23] 333 U.S. 203, 222 ff. (1948). + +[24] Ibid. 213. + +[25] Ibid. 225-226. + +[26] Ibid. 231. + +[27] Ibid. 232, 234. + +[28] 333 U.S. 244. + +[29] Ibid., 253, 254. + +[30] Zorach _v._ Clauson, 303 N.Y. 161, 168-169; 100 N.E. 2d 403 (1951). + +[31] Zorach _v._ Clauson, 343 U.S. 306 (1952). + +[32] Ibid., pp. 313-314. Justices Black, Frankfurter, and Jackson +dissented. + +[33] Doremus _v._ Board of Education, 342 U.S. 429 (1952). + +[34] Three dissenters, speaking through Justice Douglas, argued that, +since the New Jersey Supreme Court had taken the case and decided it on +its merits, the United States Supreme Court was bound to do the same. +Ibid. 435-436. + +[35] Bradfield _v._ Roberts, 175 U.S. 291 (1899). + +[36] Quick Bear _v._ Leupp, 210 U.S. 50 (1908). + +[37] Cochran _v._ Louisiana State Board of Education, 281 U.S. 370 +(1930). + +[38] Everson _v._ Board of Education, 330 U.S. 1 (1947). + +[39] 42 U.S.C.A. Sec. 1751-1760; 60 Stat. 230 (1940). + +[40] Davis _v._ Benson, 133 U.S. 333, 342 (1890). + +[41] Cantwell _v._ Connecticut, 310 U.S. 296, 303, 304 (1940). + +[42] Pierce _v._ Society of Sisters of Holy Names, 268 U.S. 510 (1925). + +[43] Reynolds _v._ United States, 98 U.S. 145, 166 (1879). + +[44] Ibid. 167. + +[45] Davis _v._ Beason, 133 U.S. 333, 345 (1890). + +[46] Reynolds _v._ United States 98 U.S. 145 (1879); Davis _v._ Beason, +133 U.S. 333 (1890). + +[47] 322 U.S. 78 (1944). + +[48] Ibid. 89. + +[49] 310 U.S. 296 (1940). + +[50] Minersville School Dist. _v._ Gobitis, 310 U.S. 586 (1940). + +[51] Jones _v._ Opelika, 316 U.S. 584 (1942). + +[52] Jones _v._ Opelika, 319 U.S. 103 (1943); Murdock _v._ Pennsylvania, +319 U.S. 105 (1943). + +[53] Board of Education _v._ Barnette, 319 U.S. 624 (1943). On the same +day the Court held that a State may not forbid the distribution of +literature urging and advising, on religious grounds, that citizens +refrain from saluting the flag. Taylor _v._ Mississippi, 319 U.S. 583 +(1943). + +[54] Martin _v._ Struthers, 319 U.S. 141 (1943). + +[55] Prince _v._ Massachusetts, 321 U.S. 158 (1944). + +[56] 334 U.S. 558 (1948). + +[57] Kovacs _v._ Cooper, 336 U.S. 77 (1949). + +[58] Kunz _v._ New York, 340 U.S. 290 (1951). + +[59] Ibid. 314. + +[60] Niemotko _v._ Maryland, 340 U.S. 268 (1951). + +[61] Feiner _v._ New York, 340 U.S. 315 (1951). + +[62] _See_ p. 1285. [Transcriber's Note: There is no mention of the +Feiner case on p. 1285.] + +[63] Arver _v._ United States, 245 U.S. 366 (1918). + +[64] 293 U.S. 245 (1934). + +[65] 325 U.S. 561 (1945). _cf._ Girouard _v._ United States, 328 U.S. 61 +(1946) holding "an alien who is willing to take the oath of allegiance +and to serve in the army as a non-combatant but who, because of +religious scruples, is unwilling to bear arms in defense of this country +may be admitted to citizenship * * *", overruling United States _v._ +Schwimmer, 279 U.S. 644 (1929) and United States _v._ Macintosh, 283 +U.S. 605 (1931). + +[66] 325 U.S. 561, 578 (1945). + +[67] Commentaries, Vol. IV, 151-152. + +[68] Justice Frankfurter in Dennis _v._ United States, 341 U.S. 494, +521-522 (1951). + +[69] Ibid. 524; citing Robertson _v._ Baldwin, 165 U.S. 275, 281 (1897). + +[70] Ibid. 524; citing Gompers _v._ United States, 233 U.S. 604, 610 +(1914). + +"While the courts have from an early date taken a hand in crystallizing +American conceptions of freedom of speech and press into law, it is +scarcely in the manner or to the extent which they are frequently +assumed to have done. The great initial problem in this realm of +constitutional liberty was to get rid of the common law of 'seditious +libel' which operated to put persons in authority beyond the reach of +public criticism. The first step in this direction was taken in the +famous, or infamous, Sedition Act of 1798, which admitted the defense of +truth in prosecution brought under it, and submitted the general issue +of defendant's guilt to the jury. But the substantive doctrine of +'seditious libel' the Act of 1798 still retained, a circumstance which +put several critics of President Adams in jail, and thereby considerably +aided Jefferson's election as President in 1800. Once in office, +nevertheless, Jefferson himself appealed to the discredited principle +against partisan critics. Writing his friend Governor McKean of +Pennsylvania in 1803 anent such critics, Jefferson said: 'The +federalists having failed in destroying freedom of the press by their +gag-law, seem to have attacked in an opposite direction; that is by +pushing its licentiousness and its lying to such a degree of +prostitution as to deprive it of all credit. * * * This is a dangerous +state of things, and the press ought to be restored to its credibility +if possible. The restraints provided by the laws of the States are +sufficient for this, if applied. And I have, therefore, long thought +that a few prosecutions of the most prominent offenders would have a +wholesome effect in restoring the integrity of the presses. Not a +general prosecution, for that would look like persecution; but a +selected one.' Works (Ford ed., 1905), IX 451-52. + +"In the _Memorial Edition_ of Jefferson's works this letter is not +included; nor apparently was it known to the Honorable Josephus Daniels, +whose enthusiastic introduction to one of these volumes makes Jefferson +out to have been the father of freedom of speech and press in this +country, if not throughout the world. The sober truth is that it was +that archenemy of Jefferson and of democracy, Alexander Hamilton, who +made the greatest single contribution toward rescuing this particular +freedom as a political weapon from the coils and toils of the common +law, and that in connection with one of Jefferson's 'selected +prosecutions.' I refer to Hamilton's many-times quoted formula in the +Croswell case in 1804: 'The liberty of the press is the right to publish +with impunity, truth, with good motives, for justifiable ends though +reflecting on government, magistracy, or individuals.' People _v._ +Croswell, 3 Johns (NY) 337. Equipped with this brocard our State courts +working in co-operation with juries, whose attitude usually reflected +the robustiousness of American political discussion before the Civil +War, gradually wrote into the common law of the States the principle of +'qualified privilege,' which is a notification to plaintiffs in libel +suits that if they are unlucky enough to be officeholders or office +seekers, they must be prepared to shoulder the almost impossible burden +of showing defendant's 'special malice.' Cooley, _Constitutional +Limitations_, Chap. XII: Samuel A. Dawson, _Freedom of the Press, A +Study of the Doctrine of 'Qualified Privilege'_ (Columbia Univ. Press, +1924)." Edward S. Corwin, _Liberty Against Government_. 157-159 fn. +(L.S.U. Press, 1948). + +[71] Patterson _v._ Colorado, 205 U.S. 454, 462 (1907). + +[72] Ibid. 461 + +[73] Prudential Ins. Co. _v._ Cheek, 259 U.S. 530, 543 (1922). + +[74] Schenck _v._ United States, 249 U.S. 47 (1919); and _see_ below. +[Transcriber's Note: Reference is to Footnote 75, below.] + +[75] _See_ Justice Brandeis concurring opinion in Whitney _v._ +California, 274 U.S. 357 (1927); and cases reviewed below. + +[76] Fiske _v._ Kansas, 274 U.S. 380 (1927). + +[77] 133 U.S. 333 (1890). + +[78] Ibid. 341-342. + +[79] 236 U.S. 273 (1915). + +[80] Fiske _v._ Kansas, 274 U.S. 380 (1927). + +[81] Stromberg _v._ California, 283 U.S. 359 (1931). + +[82] De Jonge _v._ Oregon, 299 U.S. 353 (1937). + +[83] 249 U.S. 47 (1919). + +[84] 40 Stat. 217, 219. + +[85] 205 U.S. 454, 462 (1907). + +[86] 249 U.S. 47, 51-52 (1919). + +[87] 249 U.S. 204 (1919). + +[88] Ibid. 206. + +[89] 249 U.S. 211 (1919). + +[90] Ibid. 215-216. + +[91] 250 U.S. 616 (1919). + +[92] Ibid. 627. It should be noted that Justice Holmes couples with his +invocation of the clear and present danger test in his dissent in this +case the contention that rightly construed the act of Congress involved +(The Espionage Act of May 16, 1918; 40 Stat. 553) required that +defendant's intent be specifically proved. He wrote: "I am aware of +course that the word intent as vaguely used in ordinary legal discussion +means no more than knowledge at the time of the act that the +consequences said to be intended will ensue. Even less than that will +satisfy the general principle of civil and criminal liability. A man may +have to pay damages, may be sent to prison, at common law might be +hanged, if at the time of his act he knew facts from which common +experience showed that the consequences would follow, whether he +individually could foresee them or not. But, when words are used +exactly, a deed is not done with intent to produce a consequence unless +that consequence is the aim of the deed. It may be obvious, and obvious +to the actor, that the consequence will follow, and he may be liable for +it even if he regrets it, but he does not do the act with intent to +produce it unless to aim to produce it is the proximate motive of the +specific act, although there may be some deeper motive behind. It seems +to me that this statute must be taken to use its words in a strict and +accurate sense." 250 U.S. at 626-627. In the Holmes-Pollock Letters this +is the main point discussed by the two correspondents regarding the +Abrams Case; the clear and present danger doctrine is not mentioned. 2 +Holmes-Pollock Letters, 29, 31, 32, 42, 44-45, 48, 65. + +[93] 251 U.S. 466 (1920). + +[94] Ibid. 479. _See also_ to the same effect: Pierce _v._ United +States, 252 U.S. 239 (1920). + +[95] 268 U.S. 652 (1925). + +[96] Ibid. 668, 669. + +[97] Ibid. 670. + +[98] Ibid. 671. Justice Holmes presented a dissenting opinion for +himself and Justice Brandeis which contains a curious note of fatalism. +He said: "If what I think the correct test is applied, it is manifest +that there was no present danger of an attempt to overthrow the +government by force on the part of the admittedly small minority who +shared the defendant's views. It is said that this Manifesto was more +than a theory, that it was an incitement. Every idea is an incitement. +It offers itself for belief, and, if believed, it is acted on unless +some other belief outweighs it, or some failure of energy stifles the +movement at its birth. The only difference between the expression of an +opinion and an incitement in the narrower sense is the speaker's +enthusiasm for the result. Eloquence may set fire to reason. But +whatever may be thought of the redundant discourse before us, it had no +chance of starting a present conflagration. If, in the long run, the +beliefs expressed in proletarian dictatorship are destined to be +accepted by the dominant forces of the community, the only meaning of +free speech is that they should be given their chance and have their +way." Ibid. 673. + +[99] 274 U.S. 357 (1927). + +[100] Ibid. 373, 377. Apparently this means that the ultimate test of +the constitutionality of legislation restricting freedom of utterance is +whether there is still sufficient time to educate the utterers out of +their mistaken frame of mind, and the final say on this necessarily +recondite matter rests with the Supreme Court! Justice Brandeis also +asserts (274 U.S. at 376) that there is a distinction between "advocacy" +and "incitement," but fails to adduce any supporting authority. + +[101] 301 U.S. 242 (1937). + +[102] Ibid. 261-263. + +[103] 310 U.S. 88 (1940). + +[104] Ibid. 105. + +[105] Cantwell _v._ Connecticut, 310 U.S. 296, 308 (1940). + +[106] Stromberg _v._ California, 283 U.S. 359, 369 (1931). + +[107] Fox _v._ Washington, 236 U.S. 273, 277 (1915). + +[108] Gitlow _v._ New York, 268 U.S. 652 (1925). + +[109] Terminiello _v._ Chicago, 337 U.S. 1 (1949). + +[110] Ibid. 4. + +[111] Ibid. 33. Dissenting opinions were written by Chief Justice +Vinson, Justice Frankfurter (with whom Justices Jackson and Burton +concurred) and Justice Jackson, (with whom Justice Burton agreed). + +[112] 340 U.S. 315 (1951). + +[113] Ibid. 319-320. Anent this finding, Justice Douglas, in his +dissent, declared that: "Public assemblies and public speech occupy an +important role in American life. One high function of the police is to +protect these lawful gatherings so that the speakers may exercise their +constitutional rights. When unpopular causes are sponsored from the +public platform, there will commonly be mutterings and unrest and +heckling from the crowd. * * * But those extravagances * * *, do not +justify penalizing the speaker by depriving him of the platform or by +punishing him for his conduct. * * * If * * * the police throw their +weight on the side of those who would break up the meetings, the police +become the new censors of speech. Police censorship has all the vices of +the censorship from city halls which we have repeatedy [sic] struck +down."--Ibid. 330-331. + +[114] 333 U.S. 507 (1948). + +[115] Ibid. 514-515. + +[116] Musser _v._ Utah, 333 U.S. 95 (1948). + +[117] Ibid. 101. This dissent probably marks the climax of the clear and +present danger doctrine. + +"On March 20, 1949, members of the Vice Squad of the Philadelphia Police +Department, at the direction of Inspector Craig Ellis, head of the Vice +Squad, commenced a series of mass raids upon book stores and booksellers +in Philadelphia. Inspector Ellis gave his men a list of books that in +his opinion were obscene, and directed them to seize the books wherever +found. Fifty-four booksellers were raided, and nearly twelve hundred +copies of the books were confiscated. + +"These raids were remarkable not only because of the scale on which they +were conducted, but in several other respects. First, they were directed +in major part against books written by authors in the forefront of +American literature and published by some of the leading publishers in +America. Second, the raids were conducted and the books were confiscated +without warrants of search or seizure or court order of any kind. Third, +the list of books to be seized was compiled by Inspector Ellis and a +patrolman in his office, without consultation with the District +Attorney's office or the obtaining of any legal opinion as to whether +the books were obscene under the Pennsylvania statute. + +"For once the publishers took the offensive. Houghton Mifflin Company, +publisher of _Raintree County_, Alfred A. Knopf, Inc., publisher of +_Never Love a Stranger_, and The Vanguard Press, Inc., publisher of +books by James T. Farrell and Calder Willingham among those seized, +commenced actions in the Federal District Court in Philadelphia to +restrain further police seizures of these books and to recover damages +from the police officers for their unlawful acts. In these two actions +the authors Harold Robbins and James T. Farrell, as well as Charles +Praissman, a courageous bookseller whose stores had been raided, joined +the publishers as parties plaintiff. The District Attorney of +Philadelphia countered by commencing criminal proceedings against five +of the booksellers whose stores had been raided, and on June 30, 1948 +the grand jury, upon presentation of the District Attorney, indicted the +booksellers on a charge of having violated the Pennsylvania statute +prohibiting the sale of obscene books. + +"In the meantime the Federal court cases brought by the publishers has +come to trial before Judge Guy K. Bard, and at the conclusion of the +trials Judge Bard had enjoined further seizures of the plaintiff's +books, as well as police invasion of Praissman's stores or seizure of +his books without a warrant. At the time of this writing, the Federal +court cases have not been finally decided. + +"On January 3, 1949 the criminal cases came on for trial before Judge +Curtis Bok of the Pennsylvania Court of Quarter Sessions. The defendants +pleaded not guilty and waived trial by jury. They stipulated that at the +times and places mentioned in the indictments they had had possession of +the books for the purpose of offering them for sale to the public. The +books were then placed in evidence, and the prosecution rested its case. +The defendants 'demurred to the evidence,' the effect of which was to +raise the issue of whether the court, in the light of the constitutional +guaranty of freedom of the press, could hold, beyond a reasonable doubt, +that the books before it were obscene within the meaning of the +Pennsylvania obscenity statute." Introductory note to a republication by +Alfred Knopf Inc. of Judge Bok's opinion in Commonwealth _v._ Gordon _et +al._, 66 D & C (Pa.) 101 (1949). + +On March 18, 1949 Judge Bok sustained the demurrers and entered judgment +in favor of the defendants. The opinion which accompanies his judgment +pivots in part on the clear and present danger rule. It reads: "The only +clear and present danger to be prevented by section 524 that will +satisfy both the Constitution and the current customs of our era is the +imminence of the commission of criminal behavior resulting from the +reading of a book. Publication alone can have no such automatic effect." + +This obviously overlooks the primary purpose of governmental +interference with the distribution of "obscene literature," namely to +protect immature minds from contamination. Dealing with this point Judge +Bok protests against putting "the entire reading public at the mercy of +the adolescent mind." Should, on the other hand, the adolescent mind be +put at the mercy of the uninhibited reading tastes of an elderly federal +judge? + +[118] 310 U.S. 88 (1940). + +[119] 310 U.S. 106 (1940). + +[120] Thornhill _v._ Alabama, 310 U.S. 88, 102, 105 (1940). + +[121] Drivers Union _v._ Meadowmoor Co., 312 U.S. 287 (1941); _See also_ +Hotel and Restaurant Employees' Alliance _v._ Board, 315 U.S. 437 +(1942). + +[122] Drivers Union _v._ Meadowmoor Co., 312 U.S. 287, 293 (1941). + +[123] American Federation of Labor _v._ Swing, 312 U.S. 321 (1941); +Bakery and Pastry Drivers _v._ Wohl, 315 U.S. 769 (1942); Cafeteria +Employees Union _v._ Gus Angelos, 320 U.S. 293 (1943). + +[124] Teamsters Union _v._ Hanke, 339 U.S. 470, 474 (1950). + +[125] Giboney _v._ Empire Storage Co., 336 U.S. 490 (1949). + +[126] Building Service Union _v._ Gazzam, 339 U.S. 532 (1950). + +[127] Hughes _v._ Superior Court, 339 U.S. 460 (1950). + +[128] Carpenters Union _v._ Ritter's Cafe, 315 U.S. 722, 728 (1942). + +[129] Giboney _v._ Empire Storage Co., 336 U.S. 490 (1949). + +[130] Ibid. 501, 502, citing Fox _v._ Washington, 236 U.S. 273, 277, +which predates any suggestion of the clear and present danger formula. +_See_ above. [Transcriber's Note: Reference is to Section CONTRASTING +OPERATION OF THE COMMON LAW RULE, above.] + +[131] Lincoln Union _v._ Northwestern Co., 335 U.S. 525 (1949); A.F. of +L. _v._ American Sash Co., ibid., 538. + +[132] Auto Workers _v._ Wis. Board, 336 U.S. 245 (1949). In Teamsters +Union _v._ Hanke, 339 U.S. 470 (1950), injunctions by State courts +against picketing of a self-employer's place of business to compel him +to adopt a union shop were sustained. + +[133] Thomas _v._ Collins, 323 U.S. 516 (1945). + +[134] Ibid. 566. + +[135] Patterson _v._ Colorado, 205 U.S. 454 (1907). _Cf._ Toledo +Newspaper Co. _v._ United States, 247 U.S. 402 (1918) in which the Court +affirmed a judgment imposing a fine for contempt of court on an editor +who had criticized the action of a federal judge in a pending case. The +majority held that such conviction did not violate the First Amendment. +Justices Holmes and Brandeis dissented on the ground that the +proceedings did not come within the applicable federal statute, but did +not discuss the constitutional issue. This decision was overruled in Nye +_v._ United States, 313 U.S. 33 (1941). + +[136] 314 U.S. 252 (1941). + +[137] Ibid. 271. + +[138] Ibid. 283, 284. + +[139] 328 U.S. 331 (1946). + +[140] Ibid. 350. + +[141] Ibid. 349. + +[142] 331 U.S. 367 (1947). + +[143] Ibid. 376. + +[144] Davis _v._ Massachusetts, 107 U.S. 43 (1897). + +[145] Ibid. 47. + +[146] 307 U.S. 496, 515, 516 (1939). + +[147] 334 U.S. 558 (1948). + +[148] Kovacs _v._ Cooper, 336 U.S. 77 (1949). + +[149] Public Utilities Commission _v._ Pollak, 343 U.S. 451 (1952). The +decision overruled the United States Court of Appeals for the District +of Columbia. Here Judge Edgerton, speaking for himself and two +associates, said: "Exploitation of this audience through assault on the +unavertible sense of hearing is a new phenomenon. It raises 'issues that +were not implied in the means of communication known or contemplated by +Franklin and Jefferson and Madison.' But the Bill of Rights, as +appellants say in their brief, can keep up with anything an advertising +man or an electronics engineer can think of. * * * + +"If Transit obliged its passengers to read what it liked or get off the +car, invasion of their freedom would be obvious. Transit obliges them to +hear what it likes or get off the car. Freedom of attention, which +forced listening destroys, is a part of liberty essential to individuals +and to society. The Supreme Court has said that the constitutional +guarantee of liberty 'embraces not only the right of a person to be free +from physical restraint, but the right to be free in the enjoyment of +all his faculties * * *.' One who is subjected to forced listening is +not free in the enjoyment of all his faculties." He quoted with approval +Justice Reed's statement in Kovacs _v._ Cooper, "The right of free +speech is guaranteed every citizen that he may reach the minds of +willing listeners."--191 F. 2d 450, 456 (1951). + +[150] Lovell _v._ Griffin, 303 U.S. 444 (1938); Schneider _v._ State, +308 U.S. 147 (1939); Largent _v._ Texas, 318 U.S. 418 (1943). + +[151] Schneider _v._ State, 308 U.S. 147 (1930); Jamison _v._ Texas, 318 +U.S. 413 (1943). + +[152] Marsh _v._ Alabama, 326 U.S. 501 (1946). + +[153] Tucker _v._ Texas, 326 U.S. 517 (1946). + +[154] Valentine _v._ Chrestensen, 316 U.S. 52 (1942). + +[155] Martin _v._ Struthers, 319 U.S. 141 (1943). + +[156] Breard _v._ Alexandria, 341 U.S. 622 (1951). + +[157] 221 U.S. 418, 439 (1911). _See_ below. [Transcriber's Note: +Reference is to Section FEDERAL RESTRAINTS ON FREEDOM OF SPEECH AND +PRESS, above.] + +[158] Near _v._ Minnesota, 283 U.S. 697 (1931). + +[159] Drivers Union _v._ Meadowmoor Co., 312 U.S. 287 (1941); Carpenters +Union _v._ Ritter's Cafe, 315 U.S. 722 (1942). + +[160] 315 U.S. 568 (1942). + +[161] 319 U.S. 624 (1943). + +[162] 315 U.S. 568, 571, 572 (1942). + +[163] 319 U.S. 624, 633 (1943). + +[164] Lovell _v._ Griffin, 303 U.S. 444, 451 (1938). + +[165] Chaplinsky _v._ New Hampshire, 315 U.S. 568 (1942); Cox _v._ New +Hampshire, 312 U.S. 569 (1941). + +[166] Lovell _v._ Griffin, 303 U.S. 444 (1938); Hague _v._ C.I.O., 307 +U.S. 496, 516 (1939); Schneider _v._ State, 308 U.S. 147 (1939); +Cantwell _v._ Connecticut, 310 U.S. 296 (1940); Largent _v._ Texas, 318 +U.S. 418 (1943); Thomas _v._ Collins, 323 U.S. 516, 538 (1945); Saia +_v._ New York, 334 U.S. 558 (1948). + +[167] Radio Comm'n _v._ Nelson Bros. Co., 289 U.S. 266 (1933); +Communications Comm'n. _v._ N.B.C., 319 U.S. 239 (1943). + +[168] Mutual Film Corp. _v._ Ohio Indus'l Comm., 236 U.S. 230, 244 +(1915). + +[169] 334 U.S. 131 (1948). + +[170] Ibid. 166. + +[171] Joseph Burstyn, Inc. _v._ Wilson, 343 U.S. 495 (1952). + +[172] Ibid. 502. Justice Frankfurter, concurring for himself and +Justices Jackson and Burton, elaborates upon the vagueness of +connotation of the New York Court's use of the word "sacrilegious." +_See_ Appendix to his opinion, Ibid. 533-40. Justice Reed, in his +concurring opinion, suggests that the Court will now have the duty of +examining "the facts of the refusal of a license in each case to +determine whether the principles of the First Amendment have been +honored." Ibid. 506-507. + +[173] 314 U.S. 252 (1941). + +[174] Ibid. 263. + +[175] 323 U.S. 516 (1945). + +[176] Ibid. 529-530. + +[177] Palko _v._ Connecticut, 302 U.S. 319, 327 (1937). + +[178] United States _v._ Carolene Products Co., 304 U.S. 144, 152, fn. 4 +(1938). + +[179] 328 U.S. 331 (1946). + +[180] Ibid. 353. + +[181] Kovacs _v._ Cooper, 336 U.S. 77, 88 (1949). + +[182] Ibid. 90. + +[183] Brinegar _v._ United States, 338 U.S. 160, 180 (1949). + +[184] Terminiello _v._ Chicago, 337 U.S. 1, 4 (1949). + +[185] Kunz _v._ New York, 340 U.S. 290, 302. + +[186] Ibid. 309. In a footnote Justice Jackson points to the peculiarly +protected position of the Court today, thanks to ch. 479, Public Law +250, 81st Congress, approved August 18, 1949. This makes it unlawful to +"make any harangue or oration, or utter loud, threatening, or abusive +language in the Supreme Court Building or grounds." Sec. 5. It also +forbids display of any "flag, banner, or device designed or adapted to +bring into public notice any party, organization, or movement." Sec. 6. +Moreover, it authorizes the marshal to "prescribe such regulations +approved by the Chief Justice of the United States, as may be deemed +necessary for the adequate protection of the Supreme Court Building and +grounds and of persons and property therein, and for the maintenance +of suitable grounds." Sec. 7. Violation of these provisions or +regulations is an offense punishable by fine and imprisonment. + +[187] Grosjean _v._ American Press Co., 297 U.S. 233, 246 (1936). + +[188] Ibid. 250. + +[189] Ibid. + +[190] Murdock _v._ Pennsylvania, 319 U.S. 105 (1943); Jones _v._ +Opelika, 319 U.S. 103 (1943); Follett _v._ McCormick, 321 U.S. 573 +(1944). + +[191] Associated Press _v._ United States, 326 U.S. 1 (1945). A +newspaper publisher who enjoyed a substantial monopoly of mass +distribution of news was enjoined from refusing advertising from persons +advertising over a competing radio station. The Court sustained the +injunction against the objection that it violated freedom of the press, +holding that appellant was guilty of attempting to monopolize interstate +commerce. Lorain Journal _v._ United States, 342 U.S. 143 (1951). + +[192] Associated Press _v._ Labor Board, 301 U.S. 103, 133 (1937). + +[193] Okla. Press Pub. Co. _v._ Walling, 327 U.S. 186 (1946). + +[194] 221 U.S. 418 (1911). + +[195] Ibid. 430. + +[196] 314 U.S. 469 (1941). + +[197] Ibid: 477. + +[198] Ibid. 478. + +[199] United States _v._ C.I.O., 335 U.S. 106 (1948). + +[200] 106 U.S. 371 (1882). + +[201] 19 Stat. 143 Sec. 6 (1876). + +[202] 53 Stat. 1147 (1939). + +[203] United Public Workers _v._ Mitchell, 330 U.S. 75 (1947). + +[204] Oklahoma _v._ United States Civil Serv. Comm., 330 U.S. 127 +(1947). + +[205] Schenck _v._ United States, 249 U.S. 47 (1919); Frohwerk _v._ +United States, 249 U.S. 204 (1919); Debs _v._ United States, 249 U.S. +211 (1919); Abrams _v._ United States, 250 U.S. 616 (1919); Schaefer +_v._ United States, 251 U.S. 466 (1919); Pierce _v._ United States, 252 +U.S. 239 (1920); _cf._ Gilbert _v._ Minnesota 254 U.S. 325 (1920); +Hartzel _v._. United States, 322 U.S. 680 (1944). + +[206] 341 U.S. 494 (1951). + +[207] 61 Stat. 136, 146 (1947); "Taft-Hartley Act." + +[208] 339 U.S. 382 (1950). + +[209] 339 U.S. 846 (1950). Answering in 1882 the objection of a +pensioner to the terms of an act under which he received his pension +from the Government, the Court answered: "Pensions are the bounties of +the government, which Congress has the right to give, withhold, +distribute or recall, at its discretion." United States _v._ Teller, 107 +U.S. 64, 68. Can it be doubted that Congress has power to repeal at any +time the protection which present legislation affords organized labor? + +[210] 339 U.S. 382, 394, 397 (1950). + +[211] Dennis _v._ United States, 341 U.S. 494 (1951). + +[212] 54 Stat. 670 (1940). + +[213] 341 U.S. 494, 509. + +[214] Ibid. 509. + +[215] Ibid. 510; citing 183 F. (2d) at 212. + +[216] 341 U.S. 494, 510-511. + +[217] Ibid. 513. + +[218] 341 U.S. 494, 519-520. + +[219] Ibid. 525. + +[220] Ibid. 527-528. + +[221] 341 U.S. 494, 539. + +[222] 268 U.S. 652 (1925). + +[223] 341 U.S. 494, 541. + +[224] Ibid. 542. + +[225] Ibid. 551-552. + +[226] 341 U.S. 494, 567-569. + +[227] Ibid. 572. + +[228] 341 U.S. 494, 586; citing 274 U.S. 357, 376-377. + +[229] Anti-Fascist Committee _v._ McGrath, 341 U.S. 123 (1951) heads the +list. + +[230] 341 U.S. 494 (1951). + +[231] 339 U.S. 382; ibid. 846 (1950). + +[232] 341 U.S. 716 (1951). + +[233] 342 U.S. 485 (1952). + +[234] New York Laws, 1949, c. 360. + +[235] 342 U.S. 485, 493. Justice Frankfurter dissented on jurisdictional +grounds. Justices Black and Douglas attacked the merits of the decision. +Said the latter: "What happens under this law is typical of what happens +in a police state. Teachers are under constant surveillance; their pasts +are combed for signs of disloyalty; their utterances are watched for +clues to dangerous thoughts. A pall is cast over the classrooms. There +can be no real academic freedom in that environment. Where suspicion +fills the air and holds scholars in line for fear of their jobs, there +can be no exercise of the free intellect. Supineness and dogmatism take +the place of inquiry. A 'party line'--as dangerous as the 'party line' +of the Communists--lays hold. It is the 'party line' of the orthodox +view, of the conventional thought, of the accepted approach. A problem +can no longer be pursued with impunity to its edges. Fear stalks the +classroom. The teacher is no longer a stimulant to adventurous thinking; +she becomes instead a pipe line for safe and sound information. A +deadening dogma takes the place of free inquiry. Instruction tends to +become sterile; pursuit of knowledge is discouraged; discussion often +leaves off where it should begin." Ibid. 510. + +[236] 343 U.S. 250 (1952). + +[237] Ibid. 258. + +[238] Ibid, 259-263 _passim_. Justice Douglas, dissenting, urged the +"absolute" character of freedom of speech and deplored recent cases in +which, he asserted, the Court "has engrafted the right of regulation +onto the First Amendment by placing in the hands of the legislative +branch the right to regulate 'within reasonable length' the right of +free speech. This to me is an ominous and alarming trend." Ibid. 285. +Justices Black, Reed and Jackson also dissented. Justice Jackson's +dissenting opinion is characteristically paradoxical: "An Illinois Act, +construed by its Supreme Court to be a 'group libel' statute, has been +used to punish criminally the author and distributor of an obnoxious +leaflet attacking the Negro race. He answers that, as applied, the Act +denies a liberty secured to him by the Due Process Clause of the +Fourteenth Amendment. What is the liberty which that clause underwrites? +The spectrum of views expressed by my seniors shows that disagreement as +to the scope and effect of this Amendment underlies this, as it has many +another, division of the Court. All agree that the Fourteenth amendment +does confine the power of the State to make printed words criminal. +Whence we are to derive metes and bounds of the state power is a subject +to the confusion of which, I regret to say, I have +contributed--comforted in the acknowledgment, however, by recalling that +this Amendment is so enigmatic and abstruse that judges more experienced +than I have had to reverse themselves as to its effect on state power. +The thesis now tendered in dissent is that the 'liberty' which the Due +Process Clause of the Fourteenth Amendment protects against denial by +the States is the literal and identical 'freedom of speech or of the +press' which the First Amendment forbids only Congress to abridge. The +history of criminal libel in America convinces me that the Fourteenth +Amendment did not 'incorporate' the First, that the powers of Congress +and of the States over this subject are not of the same dimensions, and +that because Congress probably could not enact this law it does not +follow that the States may not." Ibid. 287-288. Proceeding from this +position, Justice Jackson is able, none the less, to dissent from the +Court's judgment. _Cf._ Chief Justice Stone's position in United States +_v._ Carolene Products Co., 304 U.S. 144, at 152-53, note 4 (1938). + +[239] 20 Stat. 355, 358 (1879); 48 Stat. 928 (1934). + +[240] 327 U.S. 146 (1946). + +[241] Ibid. 158. Justice Frankfurter, while concurring, apparently +thought that the question of Congress's power in the premises was not +involved. Ibid. 159-160. On this broader question, _see_ p. 269. (The +Postal Clause). + +[242] 333 U.S. 178 (1948); Public Clearing House _v._ Coyne, 194 U.S. +497 (1904). + +[243] Here it is recited in part: "That if we, our justiciary, our +bailiffs, or any of our officers, shall in any circumstances have failed +in the performance of them toward any person, or shall have broken +through any of these articles of peace and security, and the offence be +notified to four barons chosen out of the five-and-twenty before +mentioned, the said four barons shall repair to us, or our justiciary, +if we are out of the realm, and laying open the grievance, shall +petition to have it redressed without delay." + +[244] 12 Encyclopedia of the Social Sciences, 98 ff, "Petition, Right +of" (New York, 1934). + +[245] United States _v._ Cruikshank, 92 U.S. 542, 552 (1876) reflects +this older view. + +[246] De Jonge _v._ Oregon, 299 U.S. 353, 364, 365 (1937). _See also_ +Herndon _v._ Lowry, 301 U.S. 242 (1937). + +[247] For the details of Adams' famous fight on "The Gag Rule," _see_ +Andrew C. McLaughlin, A Constitutional History of the United States, pp. +478-481, Appleton-Century-Crofts, Inc., New York (1935). + +[248] Rules and Manual United States House of Representatives (1949), +Eighty-first Congress, by Lewis Deschler, Parliamentarian, United States +Government Printing Office, Washington (1949), pp. 430-433. + +[249] United States _v._ Baltzer, Report of the Attorney General, 1918, +p. 48. + +[250] 92 U.S. 542 (1876). + +[251] 16 Stat. 141 (1870). + +[252] 92 U.S. 542, 552-553 (1876). At a later point in its opinion the +Court used the following language: "Every republican government is in +duty bound to protect all its citizens in the enjoyment of an equality +of right. That duty was originally assumed by the States; and it still +remains there. The only obligation resting upon the United States is to +see that the States do not deny the right. This the Amendment +guarantees, but no more. The power of the national government is limited +to the enforcement of this guaranty." Ibid. 555. These words have +reference, quite clearly, to counts of the indictment alleging acts of +the conspirators denying "equal protection of the laws" "to persons of +color," Congress's power to protect which is derived from Amendment XIV +and is confined as the Court says, to protection against State acts. The +above quoted words have, however, caused confusion. _See_ pp. 1176-1177. + +[253] Hague _v._ C.I.O., 307 U.S. 496 (1939). + +[254] 49 Stat. 449 (1935). + +[255] 307 U.S. 496, 515-516 (1939). + +[256] Ibid. 525. + +[257] "As to the American Civil Liberties Union, which is a corporation, +it cannot be said to be deprived of the civil rights of freedom of +speech and of assembly, for the liberty guaranteed by the due process +clause is the liberty of natural, not artificial, persons. Northwestern +Nat. L. Ins. Co. _v._ Riggs, 203 U.S. 243, 255; Western Turf Asso. _v._ +Greenberg, 204 U.S. 359, 363;" 307 U.S. 496, 527 (1939). _See also_ +ibid. 514. + +[258] 167 U.S. 43 (1897). This case was treated above, at p. 784. + +[259] 314 U.S. 252 (1941). + +[260] 323 U.S. 516 (1945). + +[261] Auto Workers _v._ Wis. Board, 336 U.S. 245 (1949). + +[262] Collins _v._ Hardyman, 341 U.S. 651 (1951); 17 Stat. 13, 8 U.S.C. +Sec. 47 (3). + +[263] 341 U.S. 651, 663 (1951). + +[264] 2 U.S.C. Sec. 261-270. _See also:_ General Interim Report of the +House Select Committee on Lobbying Activities, Eighty-First Congress, +Second Session, created pursuant to H. Res. 298, October 20, 1950, +United States Government Printing Office, Washington (1950): _see also_ +9 Encyclopedia of the Social Sciences 567, "Lobbying." + +[265] National Association of Manufacturers _v._ McGrath, 103 F. Supp. +510 (1952). Upon review, the Supreme Court vacated this judgment as +moot.--334 U.S. 804, 807. + +[266] Rumely _v._ United States, 197 F. 2d 166, 174-175 (1952). + + + + +AMENDMENT 2 + +BEARING ARMS + + +Amendment 2 + +A well regulated Militia, being necessary to the security of a free +State, the right of the people to keep and bear Arms shall not be +infringed. + + +The protection afforded by this amendment prevents infringement by +Congress of the right to bear arms for a lawful purpose, but does not +apply to such infringement by private citizens. For this reason an +indictment under the Enforcement Act of 1870,[1] charging a conspiracy +to prevent Negroes from bearing arms for lawful purposes was held +defective.[2] A State statute which forbids bodies of men to associate +together as military organizations, or to drill or parade with arms in +cities and towns unless authorized by law, does not abridge the right of +the people to keep and bear arms.[3] In the absence of evidence tending +to show that possession or use of a shotgun having a barrel of less than +18 inches in length has some reasonable relationship to the preservation +or efficiency of a well regulated militia, the Court refused to hold +invalid a provision in the National Firearms Act[4] against the +transportation of unregistered shotguns in interstate commerce.[5] + + +Notes + +[1] 16 Stat. 140 (1870). + +[2] United States _v._ Cruikshank, 92 U.S. 542, 553 (1876). + +[3] Presser _v._ Illinois, 116 U.S. 252, 265 (1886). + +[4] 48 Stat. 1236 (1934). + +[5] United States _v._ Miller, 307 U.S. 174 (1939). + + + + +AMENDMENT 3 + +QUARTERING SOLDIERS + + +Amendment 3 + +No Soldier shall, in time of peace be quartered in any house, without +the consent of the Owner, nor in time of war, but in a manner to be +prescribed by law. + + +"This amendment seems to have been thought necessary. It does not appear +to have been the subject of judicial exposition; and it is so thoroughly +in accord with all our ideas, that further comment is unnecessary."[1] + + +Notes + +[1] Miller, Samuel F., The Constitution (1893), page 646. + + + + +AMENDMENT 4 + +SEARCHES AND SEIZURES + + + Page +Coverage of the amendment 823 +Necessity, sufficiency and effect of warrants 825 +Records, reports and subpoenas 825 +Search and seizure incidental to arrest 828 +Search of vehicles 830 +Use of evidence 830 + + +SEARCHES AND SEIZURES + + +Amendment 4 + +The right of the people to be secure in their persons, houses, papers, +and effects, against unreasonable searches and seizures, shall not be +violated, and no Warrants shall issue, but upon probable cause, +supported by Oath or affirmation, and particularly describing the place +to be searched, and the persons or things to be seized. + + +Coverage of the Amendment + +This amendment denounces only such searches and seizures as are +"unreasonable," and is to be construed in the light of what was deemed +an unreasonable search and seizure when it was adopted and in a manner +to conserve public interests as well as the rights of individuals.[1] It +applies only to governmental action, not to the unlawful acts of +individuals in which the government has no part.[2] It has no reference +to civil proceedings for the recovery of debts; consequently, a distress +warrant issued by the Solicitor of the Treasury under an act of Congress +is not forbidden, though issued without support of an oath or +affirmation.[3] But the amendment is applicable to search warrants +issued under any statute, including revenue and tariff laws.[4] + +Security "in their persons, houses, papers and effects" is assured to +the people by this article. Not only the search of a dwelling, but also +of a place of business,[5] a garage,[6] or a vehicle,[7] is limited by +its provisions. But open fields are not covered by the term "house"; +they may be searched without a warrant.[8] A sealed letter deposited in +the mails may not be opened by the postal authorities without the +sanction of a magistrate.[9] The subpoena of private papers is subject +to its test of reasonableness.[10] Retention for use as evidence of a +letter voluntarily written by a prisoner, which, without threat or +coercion, came into the possession of prison officials under the +practice and discipline of the institution, is not prohibited.[11] Where +officers demand admission to private premises in the name of the law, +their subsequent explorations are searches within the meaning of the +Constitution, even though the occupant opens the door to admit them.[12] +A peremptory demand by federal officers that a person suspected of crime +open a locked room and hand over ration coupons kept there was held not +to amount to a seizure in view of the fact that the coupons were +government property which the custodian was under a duty to +surrender.[13] Neither wiretapping,[14] nor the use of a detectaphone to +listen to a conversation in an adjoining room,[15] nor interrogation +under oath by a government official of a person lawfully in +confinement[16] is within the purview of this article. Nor does it apply +to statements made by an accused on his own premises to an "undercover +agent" whose identity was not suspected and who had on his person a +radio transmitter which communicated the statements to another agent +outside the building.[17] Said Justice Jackson for the Court: +"Petitioner relies on cases relating to the more common and clearly +distinguishable problems raised where tangible property is unlawfully +seized. Such unlawful seizure may violate the Fourth Amendment, even +though the entry itself was by subterfuge or fraud rather than force. +But such decisions are inapposite in the field of mechanical or +electronic devices designed to overhear or intercept conversation, at +least where access to the listening post was not obtained by illegal +methods."[18] But narcotics seized in a hotel room during absence of the +owner, in the course of a search without warrant for either search or +arrest, were not adducible as evidence against the owner, who, however, +was not entitled to have them returned since they were legal +contraband.[19] + + +Necessity, Sufficiency and Effect of Warrants + +A warrant of commitment by a justice of the peace must state a good +cause certain and be supported by oath.[20] A notary public is not +authorized to administer oaths in federal criminal proceedings; hence a +warrant based on affidavits verified before a notary is invalid.[21] A +warrant of the Senate for attachment of a person who ignored a subpoena +from a Senate committee is supported by oath within the requirement of +this amendment when based upon the committee's report of the facts of +the contumacy, made on the committee's own knowledge and having the +sanction of the oath of office of its members.[22] + +A belief, however well founded, that an article sought is concealed in a +dwelling house furnishes no justification for a search without a +warrant.[23] A warrant issued upon an information stating only that +"affiant has good reason to believe and does believe" that defendant has +contraband materials in his possession is clearly bad under the Fourth +Amendment.[24] It is enough, however, if the apparent facts set out in +the affidavit are such that a reasonably discreet and prudent man would +be led to believe that the offense charged had been committed.[25] + +The requirement of the Fourth Amendment that warrants shall particularly +describe the things to be seized makes general searches under them +impossible and prevents the seizure of one thing under a warrant +describing another. As to what is to be taken nothing is left to the +discretion of the officer executing the warrant.[26] Private papers of +no pecuniary value, in which the sole interest of the Federal Government +is their value as evidence against the owner in a contemplated criminal +prosecution, may not be taken from the owner's house or office under a +search warrant.[27] + + +Records, Reports and Subpoenas + +Since the common law did not countenance compulsory self incrimination, +many years passed before the Supreme Court was called upon to interpret +the constitutional provisions bearing upon the privilege against such +testimonial compulsion. Not until Boyd _v._ United States[28] did it +have to meet the issue; there, pursuant to an act of Congress, a court +had issued an order in a proceeding for the forfeiture of goods for +fraudulent nonpayment of customs duties, requiring the claimant to +produce in court his invoices covering the goods, on pain of having the +allegation taken as confessed against him. The order and the statute +which authorized it were held unconstitutional in a notable opinion by +Justice Bradley, as follows: "Breaking into a house and opening boxes +and drawers are circumstances of aggravation; but any forcible and +compulsory extortion of a man's own testimony or of his private papers +to be used as evidence to convict him of crime or to forfeit his goods, +is [forbidden] * * * In this regard the Fourth and Fifth Amendments run +almost into each other."[29] Thus the case established three +propositions of far-reaching significance: (1) that a compulsory +production of the private papers of the owner in such a suit was a +search and seizure within the meaning of the Fourth Amendment;[30] (2) +that in substance such seizure compelled him to be a witness against +himself in violation of Amendment V,[31] and (3) that, because it was a +violation of the Fifth Amendment, it was also an _unreasonable_ search +and seizure under the Fourth.[32] + +Only natural persons can resist the subpoena of private papers on the +ground of self incrimination.[33] Even an individual cannot refuse to +produce records which are in his custody on the plea that they might +incriminate the owner or himself where the documents belong to a +corporation,[34] or to a labor union.[35] A bankrupt can be compelled to +turn over records which are part of his estate.[36] Papers already in +the custody of a United States court in consequence of their having been +used by the owner himself as evidence on another proceeding may be used +before a grand jury as a basis for an indictment for perjury.[37] A +corporation may challenge an order for the production of records if it +is unreasonable on grounds other than self incrimination, i.e., if it is +too sweeping,[38] if the information sought is not relevant to any +lawful inquiry,[39] or if it represents "a fishing expedition" in quest +of evidence of crime.[40] In Oklahoma Press Pub. Co. _v._ Walling,[41] +the question of the protection afforded by the Constitution against the +subpoena of corporate records was thoroughly reviewed. Justice Rutledge +summarized the Court's views in the following words: "* * * the Fifth +Amendment affords no protection by virtue of the self incrimination +provision, whether for the corporation or for its officers; and the +Fourth, if applicable, at the most guards against abuse only by way of +too much indefiniteness or breadth in the things required to be +'particularly described,' if also the inquiry is one the demanding +agency is authorized by law to make and the materials specified are +relevant. The gist of the protection is in the requirement, expressed in +terms, that the disclosure sought shall not be unreasonable. * * * It +is not necessary, as in the case of a warrant, that a specific charge or +complaint of violation of law be pending or that the order be made +pursuant to one. It is enough that the investigation be for a lawfully +authorized purpose, within the power of Congress to command. * * * The +requirement of 'probable cause, supported by oath or affirmation,' +literally applicable in the case of a warrant is satisfied, in that of +an order for production, by the court's determination that the +investigation is authorized by Congress, is for a purpose Congress can +order, and the documents sought are relevant to the inquiry. Beyond this +the requirement of reasonableness, including particularity in +'describing the place to be searched, and the persons or things to be +seized,' also literally applicable to warrant, comes down to +specification of the documents to be produced adequate, but not +excessive, for the purposes of the relevant inquiry."[42] + +As a means of enforcing a valid statute, the Government may require any +person subject thereto "to keep a record showing whether he has in fact +complied with it,"[43] and to submit that record to inspection by +government officers.[44] It may also compel the filing of returns +disclosing the amount of tax liability,[45] and of reports under oath +showing instances where employees have worked in excess of hours of +labor permitted by law.[46] Without violating either the Fourth or Fifth +Amendments, a judicial decree enjoining illegal practices under the +Antitrust Act may provide that the Department of Justice shall be given +access to all records and documents of the corporation relating to the +matter covered by the decree.[47] The Supreme Court has intimated, +however, that record keeping requirements must be limited to data which +are relevant to the effective administration of the law.[48] + + +Search and Seizure Incidental to Arrest + +The right to search the person upon arrest has long been recognized[49] +but authority to search the premises upon which the arrest is made has +been approved only in recent years. In Agnello _v._ United States,[50] +the Supreme Court asserted that: "The right without a search warrant +contemporaneously to search persons lawfully arrested while committing +crime and to search the place where the arrest is made in order to find +and seize things connected with the crime as its fruits or as the means +by which it was committed, as well as weapons and other things to effect +an escape from custody, is not to be doubted."[51] Books and papers used +to carry on a criminal enterprise, which are in the immediate possession +and control of a person arrested for commission of an offense in the +presence of the officers may be seized when discovered in plain view +during a search of the premises following the arrest.[52] The lawful +arrest of persons at their place of business does not justify a search +of desks and files in the offices where the arrest is made and seizure +of private papers found thereon.[53] A search which is unlawfully +undertaken is not made valid by the evidence of crime which it brings to +light.[54] + +By a five to four decision in Harris _v._ United States[55] the Court +sustained, as an incident to a lawful arrest, a five hour search by four +federal officers of every nook and cranny of a four-room apartment. It +also upheld the seizure of papers unrelated to the crime for which the +arrest was made, namely, Selective Service Registration cards which were +discovered in a sealed envelope in the bottom of a bureau drawer. In +justification of this conclusion, Chief Justice Vinson wrote: "Here the +agents entered the apartment under the authority of lawful warrants of +arrest. Neither was the entry tortious nor was the arrest which followed +in any sense illegal. * * * The search was not a general exploration but +was specifically directed to the means and instrumentalities by which +the crimes charged had been committed, particularly the two canceled +checks of the Mudge Oil Company. * * * If entry upon the premises be +authorized and the search which follows be valid, there is nothing in +the Fourth Amendment which inhibits the seizure by law-enforcement +agents of government property the possession of which is a crime, even +though the officers are not aware that such property is on the premises +when the search is initiated."[56] In a dissenting opinion in which +Justices Murphy and Rutledge concurred, Justice Frankfurter challenged +the major premises announced by the Court. "To derive from the common +law right to search the person as an incident of his arrest the right of +indiscriminate search of all his belongings, is to disregard the fact +that the Constitution protects [against] both unauthorized arrest and +unauthorized search. Authority to arrest does not dispense with the +requirement of authority to search. * * * But even if the search was +reasonable, it does not follow that the seizure was lawful. If the +agents had obtained a warrant to look for the canceled checks, they +would not be entitled to seize other items discovered in the process. +* * * The Court's decision achieves the novel and startling result of +making the scope of search without warrant broader than an authorized +search."[57] A more limited search in connection with an arrest was held +valid in United States _v._ Rabinowitz.[58] In that case, government +officers, armed with a valid warrant for arrest, had arrested respondent +in his one-room office which was open to the public. Thereupon, over his +objection, they searched the desk, safe and file cabinets in the office +for about an hour and a half and seized 573 forged and altered stamps. +Justice Minton assigned five reasons for holding that the search and +seizure was reasonable: "(1) the search and seizure were incident to a +valid arrest; (2) the place of the search was a business room to which +the public, including the officers, was invited; (3) the room was small +and under the immediate and complete control of respondent; (4) the +search did not extend beyond the room used for unlawful purposes; (5) +the possession of the forged and altered stamps was a crime, just as it +is a crime to possess burglars' tools, lottery tickets or counterfeit +money."[59] This decision also overruled an intermediate case, Trupiano +_v._ United States,[60] whereby the practical effect of the Harris +decision had been circumscribed by a ruling that even where a valid +arrest is made, a search without a warrant is not permissible if the +circumstances make it feasible to procure a warrant in advance. + + +Search of Vehicles + +The Fourth Amendment has been construed "* * *, as recognizing a +necessary difference between a search of a store, dwelling house, or +other structure in respect of which a proper official warrant readily +may be obtained, and a search of a ship, motor boat, wagon, or +automobile for contraband goods, where is it not practicable to secure a +warrant because the vehicle can be quickly moved out of the locality or +jurisdiction in which the warrant must be sought. * * * The measure of +legality of such a seizure is, therefore, that the seizing officer shall +have reasonable or probable cause for believing that the automobile +which he stops and seizes has contraband liquor therein which is being +illegally transported."[61] Where officers have reasonable grounds for +searching an automobile which they are following, a search of the +vehicle immediately after it has been driven into an open garage is +valid.[62] The existence of reasonable cause for searching an automobile +does not, however, warrant the search of an occupant thereof, although +the contraband sought is of a character which might be concealed on the +person.[63] + + +Use of Evidence + +To remove the temptation to ignore constitutional restraints on search +and seizure, evidence obtained in violation thereof is made inadmissible +against an accused in federal courts.[64] This is contrary to the +practice prevailing in the majority of States and has been severely +criticized as a matter of principle.[65] The Court has intimated +recently that the federal exclusionary rule is not a command of the +Fourth Amendment, but merely a judicially created rule of evidence which +Congress could overrule. In Wolf _v._ Colorado,[66] it ruled that while +that amendment is binding on the States, it does not prevent State +courts from admitting evidence obtained by illegal search. With respect +to the federal rule, Justice Frankfurter said: "* * * though we have +interpreted the Fourth Amendment to forbid the admission of such +evidence, a different question would be presented if Congress, under its +legislative powers, were to pass a statute purporting to negate the +_Weeks_ doctrine. We would then be faced with the problem of the respect +to be accorded the legislative judgment on an issue as to which, in +default of that judgment, we have been forced to depend upon our +own."[67] This rule does not prevent the use of evidence unlawfully +obtained by individuals,[68] or by State officers,[69] unless federal +agents had a part in the unlawful acquisition,[70] or unless the arrest +and search were made for an offense punishable only by federal law.[71] +A search is deemed to be "a search by a federal official if he had a +hand in it; * * * [but not] if evidence secured by State authorities is +turned over to the federal authorities on a silver platter. The decisive +factor * * * is the actuality of a share by a federal official in the +total enterprise of securing and selecting evidence by other than +sanctioned means. It is immaterial whether a federal agent originated +the idea or joined in it while the search was in progress. So long as he +was in it before the object of the search was completely accomplished, +he must be deemed to have participated in it."[72] Samples of illicit +goods constituting part of a quantity seized by federal officials under +a valid search warrant may be used as evidence, whether or not the +officers become civilly liable as trespassers _ab initio_, by reason of +the fact that they unlawfully destroyed the remainder of the goods at +the time the seizure was made.[73] + +In Silver Thorne Lumber Co. _v._. United States,[74] the Court refused +to permit the Government to subpoena corporate records of which it had +obtained knowledge by an unlawful search. To permit "knowledge gained by +the Government's own wrong" to be so used would do violence to the Bill +of Rights.[75] But a defendant in a civil antitrust suit may be required +to produce records which had been previously subpoenaed before a grand +jury, despite the fact that the grand jury was illegally constituted +because women were excluded from the panel.[76] Where government agents +lawfully obtained knowledge of the contents of a cancelled check during +examination of the records of a government contractor, the admission of +such check in evidence was held not to be an abuse of discretion even if +the seizure of the check itself was deemed illegal.[77] The seizure of +papers under a writ of replevin issued in a civil suit between private +persons does not violate the Fourth and Fifth Amendments.[78] + + +Notes + +[1] Carroll _v._ United States, 267 U.S. 132, 147, 149 (1925). + +[2] Burdeau _v._ McDowell, 256 U.S. 465, 475 (1921). + +[3] Den ex dem. Murray _v._ Hoboken Land & Improv. Co., 18 How. 272, 285 +(1856). + +[4] Nathanson _v._ United States, 290 U.S. 41, 47 (1933) + +[5] Gouled _v._ United States, 255 U.S. 298 (1921). + +[6] Taylor _v._ United States, 286 U.S. 1 (1932). + +[7] Carroll _v._ United States, 267 U.S. 132 (1925). + +[8] Hester _v._ United States, 265 U.S. 57 (1924). + +[9] Ex parte Jackson, 96 U.S. 727, 733 (1878). + +[10] Boyd _v._ United States, 116 U.S. 616 (1886); Hale _v._ Henkel, 201 +U.S. 43 (1906). + +[11] Stroud _v._ United States, 251 U.S. 15, 21 (1919). + +[12] Amos _v._ United States, 255 U.S. 313 (1921); Johnson _v._ United +States, 333 U.S. 10 (1948). + +[13] Davis _v._ United States, 328 U.S. 582 (1946). + +[14] Olmstead _v._ United States, 277 U.S. 438 (1928). _Cf._ Nardone +_v._ United States, 302 U.S. 379 (1937); 308 U.S. 338 (1939). + +[15] Goldman _v._ United States, 316 U.S. 129 (1942). + +[16] Bilokumsky _v._ Tod, 203 U.S. 149, 155 (1923). + +[17] On Lee _v._ United States, 343 U.S. 747 (1952). + +[18] Ibid. 753. Four Justices dissented, relying in the main on the +dissent in the Olmstead case, which came later to be adopted by +Congress. _See_ note 10 above. [Transcriber's Note: Reference is to +Footnote 14, above.] + +[19] United States _v._ Jeffers, 342 U.S. 48 (1951). + +[20] Ex parte Burford, 3 Cr. 448 (1806). + +[21] Albrecht _v._ United States, 273 U.S. 1 (1927). + +[22] McGrain _v._ Daugherty, 273 U.S. 135, 156, 158 (1927). + +[23] Agnello _v._ United States, 269 U.S. 20 (1925). + +[24] Byars _v._ United States, 273 U.S. 28, 29 (1927). + +[25] Steele _v._ United States, No. 1, 267 U.S. 498, 504, 505 (1925); +Dumbra _v._ United States, 268 U.S. 435, 441 (1925). + +[26] Marron _v._ United States, 275 U.S. 192, 196 (1927). + +[27] Gouled _v._ United States, 255 U.S. 298 (1921). + +[28] 116 U.S. 616 (1886). + +[29] Ibid. 630. + +[30] Ibid. 634, 635. + +[31] Ibid. 633. + +[32] Ibid. 635. + +[33] Hale _v._ Henkel, 201 U.S. 43, 74 (1906); Essgee Co. _v._ United +States, 262 U.S. 151 (1923). _Cf._ Interstate Commerce Commission _v._ +Baird, 194 U.S. 25, 46 (1904). + +[34] Wilson _v._ United States, 221 U.S. 361 (1911). _See also_ Wheeler +_v._ United States, 226 U.S. 478 (1913); Grant _v._ United States, 227 +U.S. 74 (1913). + +[35] United States _v._ White, 322 U.S. 694 (1944). + +[36] Re Fuller, 262 U.S. 91 (1923). _See also_ McCarthy _v._ Arndstein, +266 U.S. 34, 41 (1924). + +[37] Perlman _v._ United States, 247 U.S. 7 (1918). + +[38] Hale _v._ Henkel, 201 U.S. 43, 76 (1906). + +[39] Oklahoma Press Pub. Co. _v._ Walling, 327 U.S. 186, 208 (1946). + +[40] Federal Trade Commission _v._ American Tobacco Co. 264 U.S. 298, +305-306 (1924). + +[41] 327 U.S. 186 (1946). + +[42] Ibid. 208-209. + +[43] United States _v._ Darby, 312 U.S. 100, 125 (1941). + +[44] Shapiro _v._ United States, 335 U.S. 1, 32 (1918). + +[45] Flint _v._ Stone Tracy Co., 220 U.S. 107, 175 (1911). + +[46] Baltimore & O.R. Co. _v._ Interstate Commerce Comm'n., 21 U.S. 612 +(1911). + +[47] United States _v._ Bausch & L. Optical Co., 321 U.S. 707, 725 +(1944). _Cf._ United States _v._ Morton Salt Co., 338 U.S. 632 (1950). + +[48] Shapiro _v._ United States, 335 U.S. 1, 32 (1948); Oklahoma Press +Pub. Co. _v._ Walling, 327 U.S. 186, 208 (1946). + +[49] Weeks _v._ United States, 232 U.S. 383, 392 (1914). + +[50] 269 U.S. 20 (1925). + +[51] Ibid. 30. + +[52] Marron _v._ United States, 275 U.S. 192 (1927). + +[53] Go-Bart Importing Co. _v._ United States, 282 U.S. 344 (1931); +United States _v._ Lefkowitz, 285 U.S. 452 (1932). + +[54] Byars _v._ United States, 273 U.S. 28 (1927); Johnson _v._ United +States, 333 U.S. 10, 16 (1948). + +[55] 331 U.S. 145 (1947). + +[56] Ibid. 153, 155. + +[57] Ibid. 165. Separate dissenting opinions were written by Justices +Murphy and Jackson. + +[58] 339 U.S. 56 (1950). + +[59] Ibid. 64. + +[60] 334 U.S. 699 (1948); McDonald _v._ United States, 335 U.S. 451 +(1948) is also overruled in effect, although it was not mentioned in the +Court's opinion. + +[61] Carroll _v._ United States, 267 U.S. 132, 153-156 (1925). Husty +_v._ United States, 282 U.S. 694 (1931); Brinegar _v._ United States, +338 U.S. 160 (1949). + +[62] Scher _v._ United States, 305 U.S. 251 (1938). + +[63] United States _v._ Di Re, 332 U.S. 581 (1948). + +[64] Weeks _v._ United States, 232 U.S. 383 (1914). This case was a +virtual repudiation of Adams _v._ New York, 192 U.S. 585, 597 (1904). +There the Supreme Court had ruled that in criminal proceedings in a +State court the use of private papers obtained by unlawful search and +seizure "was no violation of the constitutional guaranty of privilege +from unlawful search or seizure." It added: "Nor do we think the accused +was compelled to incriminate himself." + +[65] Wolf _v._ Colorado, 338 U.S. 25, 29, 38 (1949); 8 Wigmore on +Evidence (3d ed.) Sec. 2184 (1940). + +[66] 338 U.S. 25 (1949). + +[67] Ibid. 33. + +[68] Burdeau _v._ McDowell, 256 U.S. 465 (1921). + +[69] Byars _v._ United States, 273 U.S. 28, 33 (1927). + +[70] Ibid. 32; Lustig _v._ United States, 338 U.S. 74 (1949). + +[71] Gambino _v._ United States, 275 U.S. 310 (1927). + +[72] Lustig _v._ United States, 338 U.S. 74, 78, 79 (1949). + +[73] McGuire _v._ United States, 273 U.S. 95 (1927). + +[74] 251 U.S. 385 (1920). + +[75] Ibid. 392. + +[76] United States _v._ Wallace & Tiernan Co., 336 U.S. 793 (1949). + +[77] Zap _v._ United States, 328 U.S. 624 (1946). + +[78] American Tobacco Co. _v._ Werckmeister, 207 U.S. 284, 302 (1907). + + + + +AMENDMENT 5 + +RIGHTS OF PERSONS + + + Page +Rights of accused persons 837 + The grand jury clause 837 + Double jeopardy 838 +Self-incrimination 841 + Source of the clause 841 +Due process of law 844 + Source and evolution of the meaning of the term 844 + Scope of the guaranty 846 +Procedural due process 846 + General 846 + Criminal prosecutions 847 + Notice and hearing 847 + Evidence and presumption in judicial proceedings 848 + Administrative proceedings 849 + Fair hearing 849 + Judicial review 850 + Aliens 851 + Deportation 852 +Substantive due process 853 + Discrimination 853 + Deprivation of liberty 854 + Deprivation of property 855 + Retroactive legislation sustained 855 + Retroactive legislation disallowed 857 + Bankruptcy legislation 857 + Right to sue the government 858 + Congressional police measures 859 + The postal service 859 + Regulation of public utilities 860 + Regulation of railroads 861 + Taxation 862 + Retroactive taxes 863 + Governance of the Indians 864 +The national eminent domain power 864 + Scope of power 864 + Alien property 865 + Public use 865 + Rights for which compensation must be made 866 + When property is taken 867 + Navigable waters 867 + Just compensation 869 + Interest 871 + Enforcement of right to compensation 872 + + +RIGHTS OF PERSONS + + +Amendment 5 + +No person shall be held to answer for a capital, or otherwise infamous +crime, unless on a presentment or indictment of a Grand Jury, except in +cases arising in the land or naval forces, or in the Militia, when in +actual service in time of War or public danger; nor shall any person be +subject for the same offense to be twice put in jeopardy of life or +limb; nor shall be compelled in any criminal case to be a witness +against himself, nor be deprived of life, liberty, or property, without +due process of law; nor shall private property be taken for public use, +without just compensation. + + +Rights of Accused Persons + + +THE GRAND JURY CLAUSE + +Within the meaning of this article a crime is made "infamous" by the +quality of the punishment which may be imposed.[1] The Court has +recognized that: "What punishments shall be considered as infamous may +be affected by the changes of public opinion from one age to +another."[2] Imprisonment in a State prison or penitentiary, with or +without hard labor,[3] or imprisonment at hard labor in the workhouse of +the District of Columbia,[4] falls within this category. The pivotal +question is whether the offense is one for which the Court is authorized +to award such punishment; the sentence actually imposed is immaterial. +When an accused is in danger of being subjected to an infamous +punishment if convicted, he has the right to insist that he shall not be +put upon his trial, except on the accusation of a grand jury.[5] Thus, +an act which authorizes imprisonment at hard labor for one year, as well +as deportation, of Chinese aliens found to be unlawfully within the +United States, creates an offense which can be tried only upon +indictment.[6] Counterfeiting,[7] fraudulent alteration of poll +books,[8] fraudulent voting,[9] and embezzlement[10] have been declared +to be infamous crimes. It is immaterial how Congress has classified the +offense.[11] An act punishable by a fine of not more than $1,000 or +imprisonment for not more than six months is a misdemeanor, which can +be tried without indictment, even though the punishment exceeds that +specified in the statutory definition of "petty offenses."[12] + +A person can be tried only upon the indictment as found by the grand +jury, and especially upon its language found in the charging part of the +instrument. A change in the indictment deprives the court of the power +to try the accused.[13] There is no constitutional requirement that an +indictment be presented by a grand jury in a body; an indictment +delivered by the foreman in the absence of the other grand jurors is +valid.[14] + +The words "when in actual service in time of war or public danger" apply +to the militia only. All persons in the regular army or navy are subject +to court martial rather than indictment or trial by jury, at all +times.[15] The exception of "cases arising in the land or naval forces" +was not aimed at trials of offenses against the laws of war. Its +objective was to authorize trial by court martial of the members of the +Armed Forces for all that class of crimes which under the Fifth and +Sixth Amendments might otherwise have been deemed triable in the civil +court. Either citizen or alien enemy belligerents may be tried by a +military commission for offenses against the laws of war.[16] + + +DOUBLE JEOPARDY + +By the common law not only was a second punishment for the same offense +prohibited, but a second trial was forbidden whether or not the accused +had suffered punishment, or had been acquitted or convicted.[17] This +clause embraces all cases wherein a second prosecution is attempted for +the same violation of law, whether felony or misdemeanor.[18] +Seventy-five years ago a closely divided Court held that the protection +against double jeopardy prevented an appeal by the Government after a +verdict of acquittal.[19] A judgment of acquittal on the ground of the +bar of the statute of limitations is a protection against a second +trial,[20] as is also a general verdict of acquittal upon an issue of +not guilty to an indictment which was not challenged as insufficient +before the verdict.[21] Where a court inadvertently imposed both a fine +and imprisonment for a crime for which the law authorized either +punishment, but not both, it could not, after the fine had been paid, +during the same term of court, change its judgment by sentencing the +defendant to imprisonment.[22] But where a statute carried a minimum +mandatory sentence of both a fine and imprisonment, the imposition of +the minimum fine five hours after the court had erroneously sentenced +the defendant to imprisonment only did not amount to double +jeopardy.[23] Whether or not the discontinuance of a trial without a +verdict bars a second trial depends upon the circumstances of each +case.[24] Discharge of a jury because it is unable to reach an +agreement[25] or because of the disqualification of a juror[26] does not +preclude a second trial. Where, after a demurrer to the indictment was +overruled, a jury was impaneled and witnesses sworn, the discharge of +the jury to permit the defendant to be arraigned did not bar a trial +before a new jury.[27] The withdrawal of charges after a trial by a +general court martial had begun, because the tactical situation brought +about by the rapid advance of the army made continuance of the trial +impracticable, did not bar a trial before a second court martial.[28] An +accused is not put in jeopardy by preliminary examination and discharged +by the examining magistrate,[29] by an indictment which is quashed,[30] +nor by arraignment and pleading to the indictment.[31] In order to bar +prosecution, a former conviction must be pleaded.[32] + +A plea of former jeopardy must be upon a prosecution for the same +identical offense.[33] The test of identity of offenses is whether the +same evidence is required to sustain them; if not, the fact that both +charges relate to one transaction does not make a single offense where +two are defined by the statutes.[34] Where a person is convicted of a +crime which includes several incidents, a second trial for one of those +incidents puts him twice in jeopardy.[35] Congress may impose both +criminal and civil sanctions with respect to the same act or +omission,[36] and may separate a conspiracy to commit a substantive +offense from the commission of the offense and affix to each a different +penalty.[37] A conviction for the conspiracy may be had though the +subsequent offense was not completed.[38] Separate convictions under +different counts charging a monopolization and a conspiracy to +monopolize trade, in an indictment under the Sherman Antitrust Act, do +not amount to double jeopardy.[39] In United States _v._ National +Association of Real Estate Boards,[40] the Court held that an acquittal +in a criminal suit charging violation of the Sherman Act does not +prevent the issuance of an injunction against future violations. It +distinguished but did not overrule an early case which held that where +an issue as to the existence of a fact or act had been tried in a +criminal proceeding instituted by the United States, a judgment of +acquittal, was conclusive in a subsequent proceeding _in rem_ involving +the same matter.[41] + +A civil action to recover taxes which were in fact penalties for +violation of another statute was held to be punitive in character and +barred by a prior conviction of the defendant for a criminal offense +involving the same transaction.[42] In contrast, the additional income +tax imposed when a fraudulent return is filed, was found to be a civil +sanction designed to protect the revenue, which might be assessed after +acquittal of the defendant for the same fraud.[43] A forfeiture +proceeding for defrauding the Government of a tax on alcohol diverted to +beverage uses is a proceeding _in rem_, rather than a punishment for a +criminal offense, and may be prosecuted after a conviction of conspiracy +to violate the statute imposing the tax.[44] + +In an early case, the Court asserted that since robbery on the high seas +is considered an offense within the criminal jurisdiction of all +nations, the plea of _autre fois acquit_ would be good in any civilized +State, though resting on a prosecution instituted in the courts of any +other civilized State.[45] It has held, however, that where the same act +is an offense against both the State and Federal Governments, its +prosecution and punishment by both Governments is not double +jeopardy.[46] A contumacious witness is not twice subjected to jeopardy +for refusing to testify before a committee of the United States Senate, +by being punished for contempt of the Senate and also indicted for a +misdemeanor for such refusal.[47] + + +Self-Incrimination + + +SOURCE OF THE CLAUSE + +"Nor shall be compelled in any criminal case to be a witness against +himself." The source of this clause was the maxim that "no man is bound +to accuse himself (_nemo tenetur prodere_--or _accusare seipsum_)," +which was brought forward in England late in the sixteenth century in +protest against the inquisitorial methods of the ecclesiastical courts. +At that time the common law itself permitted accused defendants to be +questioned. What the advocates of the maxim meant was merely that a +person ought not to be put on trial and compelled to answer questions to +his detriment unless he had first been properly accused, i.e., by the +grand jury. But the idea once set going gained headway rapidly, +especially after 1660, when it came to have attached to it most of its +present-day corollaries.[48] + +Under the clause a _witness_ in any proceeding whatsoever in which +testimony is legally required may refuse to answer any question, his +answer to which might be used against him in a future criminal +proceeding, or which might uncover further evidence against him.[49] The +witness must explicitly claim his constitutional immunity or he will be +considered to have waived it;[50] but he is not the final judge of the +validity of his claim.[51] The privilege exists solely for the +protection of the witness himself, and may not be claimed for the +benefit of third parties.[52] The clause does not impair the obligation +of a witness to testify if a prosecution against him is barred by lapse +of time, by statutory enactment, or by a pardon;[53] but the effect of +a mere tender of pardon by the President remains uncertain.[54] A +witness may not refuse to answer questions on the ground that he would +thereby expose himself to prosecution by a state.[55] Conversely, the +admission against a defendant in a federal court of testimony given by +him in a state court under a statute of immunity is valid.[56] If an +accused takes the stand in his own behalf, he must submit to +cross-examination;[57] while if he does not, it is by no means certain +that the trial judge in a federal court may not, without violation of +the clause, draw the jury's attention to the fact.[58] Neither does the +Amendment preclude the admission in evidence against an accused of a +confession made while in the custody of officers, if the confession was +made freely, voluntarily, and without compulsion or inducement of any +sort.[59] But in McNabb _v._ United States the Court[60] reversed a +conviction in a federal court, based on a confession obtained by +questioning the defendants for prolonged periods in the absence of +friends and counsel and without their being brought before a +commissioner or judicial officer, as required by law. Without purporting +to decide the constitutional issue, Justice Frankfurter's opinion urged +the duty of the Court, in supervising the conduct of the lower federal +courts, to establish and maintain "civilized standards of procedure and +evidence."[61] An individual who has acquired income by illicit means is +not excused from making out an income tax return because he might +thereby expose himself to a criminal prosecution by the United States. +"He could not draw a conjurer's circle around the whole matter," said +Justice Holmes, "by his own declaration that to write any word upon the +government blank would bring him into danger of the law."[62] But a +witness called to testify before a federal grand jury as to his +relations with the Communist Party cannot, in view of existing +legislation touching the subject, be compelled to answer.[63]he clause +does not require the exclusion of the body of an accused as evidence of +his identity;[64] but the introduction into evidence against one who was +being prosecuted by a State for illegal possession of morphine of two +capsules which he had swallowed and had then been forced by the police +to disgorge, was held to violate due process of law.[65] + +A bankrupt is not deprived of his constitutional right not to testify +against himself by an order requiring him to surrender his books to a +duly authorized receiver.[66] He may not object to the use of his books +and papers as incriminating evidence against him while they are in the +custody of the bankruptcy court;[67] nor may he condition their delivery +by requiring a guaranty that they will not be used as incriminating +evidence.[68] The filing of schedules by a bankrupt does not waive his +right to refuse to answer questions pertaining to them when to do so may +incriminate him.[69] A disclosure, not amounting to an actual admission +of guilt or of incriminating facts, does not deprive him of the +privilege of stopping short in his testimony whenever it may fairly tend +to incriminate him.[70] The rule against self-incrimination may be +invoked by a bankrupt (in the absence of any statute affording him +complete immunity) when being examined concerning his estate.[71] + +The privilege of witnesses, being a purely personal one, may not be +claimed by an agent or officer of a corporation either in its behalf or +in his own behalf as regards books and papers of the corporation;[72] +and the same rule holds in the case of the custodian of the records of a +labor union;[73] nor does the Communist Party enjoy any immunity as to +its books and records.[74] Finally, this Amendment, in connection with +the interdiction of the Fourth Amendment against unreasonable searches +and seizures, protects an individual from the compulsory production of +private papers which would incriminate him.[75] The scope of this latter +privilege was, however, greatly narrowed by the decision in Shapiro _v._ +United States.[76] There, by a five-to-four majority, the Court held +that the privilege against self incrimination does not extend to books +and records which an individual is required to keep to evidence his +compliance with lawful regulations. A conviction for violation of OPA +regulations was affirmed, as against the contention that the prosecution +was barred because the accused had been compelled over claim of +constitutional immunity to produce records he was required to keep under +applicable OPA orders. After construing the statutory immunity as +inapplicable to the case, Chief Justice Vinson disposed of the +constitutional objections by asserting that "the privilege which exists +as to private papers cannot be maintained in relation to 'records +required by law to be kept in order that there may be suitable +information of transactions which are the appropriate subjects of +governmental regulation and the enforcement of restrictions validly +established.'"[77] + + +Due Process of Law + + +SOURCE AND EVOLUTION OF THE MEANING OF THE TERM + +The phrase "due process of law" comes from chapter 3 of 28 Edw. III +(1355), which reads: "No man of what state or condition he be, shall be +put out of his lands or tenements nor taken, nor disinherited, nor put +to death, without he be brought to answer by due process of law." This +statute, in turn, harks back to the famous chapter 29 of Magna Carta +(issue of 1225), where the King promises that "no free man (_nullus +liber homo_) shall be taken or imprisoned or deprived of his freehold or +his liberties or free customs, or outlawed or exiled, or in any manner +destroyed, nor shall we come upon him or send against him, except by a +legal judgment of his peers or by the law of the land (_per legem +terrae_)." Coke in Part II of his Institutes, which was the source from +which the founders of the American Constitutional System derived their +understanding of the matter, equates the term "by law of the land" with +"by due process of law," which he in turn defines as "by due process of +the common law," that is "by the indictment or presentment of good and +lawful men * * * or by writ original of the Common Law."[78] The +significance of both terms was therefore purely procedural; the term +"writ original of the common law" referring to the writs on which civil +actions were brought into the King's courts; and this is the +significance they clearly have in the State constitutions. In the +earlier of such instruments the term "law of the land" was the form +preferred, but following the adoption of Amendment V "due process of +law" became the vogue with constitution draftsmen. Some State +constitutions even today employ both terms. Whichever phraseology is +used always occurs in close association with other safeguards of accused +persons, just as does the clause here under discussion in Amendment V. +As a limitation, therefore, on legislative power the due process clause +originally operated simply to place certain procedures, and especially +the grand jury-petit jury process, beyond its reach, but this did not +remain its sole importance or its principal importance.[79] + +Today the due process clause in Amendment V, in Amendment XIV, and in +the State constitutions is important chiefly, not as consecrating +certain procedures, but as limiting the substantive content of +legislation. Thus one of the grounds on which Chief Justice Taney, in +his opinion in the Dred Scott Case, stigmatized the Missouri Compromise +as unconstitutional was that an act of Congress which deprived "a +citizen of his liberty or property merely because he came himself or +brought his property into a particular territory of the United States, +and who had committed no offence against the laws, could hardly be +dignified with the name of due process of law";[80] and sixty-six years +later the Court held the District of Columbia Minimum Wage Act for women +and minors to be void under the due process clause of Amendment V, not +on account of any objection to the methods by which it was to be +enforced but because of the content of the act--its substantive +requirements.[81] And it is because of this extension of the term "due +process of law" beyond the procedural field that the Court has been +asked to pass upon literally hundreds of State enactments since about +1890 on the representation that they invaded the "liberty" or property +rights of certain persons "unreasonably." In short, this development of +the meaning of "due process of law" came in time to furnish one of the +principal bases of judicial review, and indeed it still remains such so +far as State legislation is concerned. _See_ pp. 971-974. + + +SCOPE OF GUARANTY + +This clause is a restraint on Congress as well as on the executive and +judicial powers of the National Government; it cannot be so construed as +to leave Congress free to make any process it chooses "due process of +law."[82] All persons within the territory of the United States are +entitled to its protection, including corporations,[83] aliens,[84] and +presumptively citizens seeking readmission to the United States.[85] It +is effective in the District of Columbia[86] and in territories which +are part of the United States,[87] but it does not apply of its own +force to unincorporated territories.[88] Nor does it reach enemy alien +belligerents tried by military tribunals outside the territorial +jurisdiction of the United States.[89] + + +Procedural Due Process + + +GENERAL + +The words "due process of law" do not necessarily imply a proceeding in +a court of justice,[90] or a plenary suit and trial by jury in every +case where personal or property rights are involved. "In all cases, that +kind of procedure is due process of law which is suitable and proper to +the nature of the case, and sanctioned by the established customs and +usages of the courts."[91] Proceedings for contempt of court[92] or to +disbar an attorney[93] may be determined by a court without a jury +trial. For persons in the military or naval services of the United +States,[94] trial by military tribunals is due process. This principle +extends to persons who commit offenses while undergoing punishment +inflicted by court martial; as military prisoners they are still subject +to military law.[95] + + +CRIMINAL PROSECUTIONS + +The due process clause supplements the specific procedural guaranties +enumerated in the Sixth Amendment and in preceding clauses of the Fifth +Amendment for the protection of persons accused of crime. The Court has +relied upon this provision in holding that an accused shall plead, or be +ordered to plead, or a plea of not guilty be entered for him before his +trial proceeds;[96] and in ruling that if the accused is in custody he +must be personally present at every stage of the trial where his +substantial rights may be affected by the proceedings against him.[97] +It is not within the power of the accused or his attorney to waive such +right. Inasmuch as proceedings for criminal contempt do not constitute a +criminal prosecution, it is immaterial if proceedings are held in the +absence of the defendant; the requirement of due process of law is +satisfied by suitable notice and opportunity to be heard.[98] + + +NOTICE AND HEARING + +Due process of law signifies a right to be heard. A decree _pro +confesso_ entered against a defendant after striking his answer from the +files for contempt of court is void.[99] A man may, however, consent to +be bound by a judgment in a case in which he has no right to +participate.[100] Accordingly, due process of law was held not to be +denied to a surety on an undertaking for the release of attached +property when the undertaking required the parties to submit to the +jurisdiction of the court and to agree to abide by the judgment in +relation to the property attached.[101] Where, in a suit for specific +performance of a contract, evidence admitted without objection at the +trial established all the facts necessary for application of the +formula specified by the contract, the appellate court which rejected +the trial court's interpretation of the contract did not infringe the +right to a hearing by entering judgment without remanding the case for a +new trial.[102] After a State court, in proceedings designed _inter +alia_ to invalidate certain releases, rendered judgment without a +special finding on the exact point, a federal court did not deny due +process in a subsequent proceeding by treating such judgment as +conclusive on the validity of the releases.[103] Since proceedings in +bankruptcy are in the nature of proceedings _in rem_, personal notice to +creditors is not required; creditors are bound by the proceedings in +distribution on notice by publication and mail.[104] Where a statute +providing for a public improvement levied an assessment against abutting +property it was held to be "conclusive alike of the question of the +necessity of the work and of the benefits as against abutting +property."[105] Notice to the property owner is not necessary to sustain +the assessment. On the other hand, when the legislature submits these +questions to a commission or other officers the inquiry becomes judicial +and the property owner is entitled to notice or an opportunity to be +heard. Notice by publication is sufficient.[106] + + +EVIDENCE AND PRESUMPTION IN JUDICIAL PROCEEDINGS + +Error in the admission of evidence or the entry of an erroneous judgment +after a full hearing does not constitute a denial of due process.[107] A +statute authorizing cancellation of naturalization certificates for +fraud and providing that the taking up of permanent residence abroad +within five years after naturalization shall be _prima facie_ evidence +of lack of intention to become a permanent resident of the United States +at the time of applying for citizenship was found not to be so +unreasonable as to deny due process of law.[108] Likewise, it was held +reasonable for Congress to enact that a defendant who was discovered to +be in possession of opium should be required to assume the burden of +proving that he had not obtained it through illegal importation.[109] +But a presumption that a firearm or ammunition in the possession of a +person convicted of a crime of violence was transported or received in +violation of law was held invalid because there was no rational +connections between the facts proved and that presumed.[110] + + +ADMINISTRATIVE PROCEEDINGS + +With respect to action taken by administrative agencies the Court has +held that the demands of due process do not require a hearing at the +initial stage, or at any particular point in the proceeding so long as a +hearing is held before the final order becomes effective.[111] In Bowles +_v._ Willingham,[112] it sustained orders fixing maximum rents issued +without a hearing at any stage, saying "* * * where Congress has +provided for judicial review after the regulations or orders have been +made effective it has all that due process under the war emergency +requires."[113] But where, after consideration of charges brought +against an employer by a complaining union, the National Labor Relations +Board undertook to void an agreement between an employer and another +independent union, the latter was entitled to notice and an opportunity +to participate in the proceedings.[114] Although a taxpayer must be +afforded a fair opportunity for hearing in connection with the +collection of taxes,[115] collection by distraint of personal property +is lawful if the taxpayer is allowed a hearing thereafter.[116] + + +"A FAIR HEARING" + +When the Constitution requires a hearing it requires a fair one, held +before a tribunal which at least meets currently prevailing standards of +impartiality.[117] An opportunity must be given not only to present +evidence, but also to know the claims of the opposing party and to meet +them. Those who are brought into contest with the Government in a +quasi-judicial proceeding aimed at control of their activities are +entitled to be fairly advised of what the Government proposes and to be +heard upon the proposal before the final command is issued.[118] But a +variance between the charges and findings will not invalidate +administrative proceedings where the record shows that at no time during +the hearing was there any misunderstanding as to the basis of the +complaint.[119] The mere admission of evidence which would be +inadmissible in judicial proceedings does not vitiate the order of an +administrative agency.[120] A provision that such a body shall not be +controlled by rules of evidence does not, however, justify orders +without a foundation in evidence having rational probative force. Mere +uncorroborated hearsay does not constitute the substantial evidence +requisite to support the findings of the agency.[121] While the Court +has recognized that in some circumstances a "fair hearing" implies a +right to oral argument,[122] it refuses to lay down a general rule that +would cover all cases.[123] It says: "Certainly the Constitution does +not require oral argument in all cases where only insubstantial or +frivolous questions of law, or indeed even substantial ones, are raised. +Equally certainly it has left wide discretion to Congress in creating +the procedures to be followed in both administrative and judicial +proceedings, as well as in their conjunction."[124] + + +JUDICIAL REVIEW + +To the extent that constitutional rights are involved, due process of +law imports a judicial review of the action of administrative or +executive officers. This proposition is undisputed so far as questions +of law are concerned, but the extent to which the courts should and will +go in reviewing determinations of fact has been a highly controversial +issue. In St. Joseph Stock Yards Co. _v._ United States,[125] the +Supreme Court held that upon review of an order of the Secretary of +Agriculture establishing maximum rates for services rendered by a stock +yard company, due process required that the Court exercise its +independent judgment upon the facts to determine whether the rates were +confiscatory.[126] Subsequent cases sustaining rate orders of the +Federal Power Commission have not dealt explicitly with this point.[127] +The Court has said simply that a person assailing such an order "carries +the heavy burden of making a convincing showing that it is invalid +because it is unjust and unreasonable in its consequences."[128] + +There has been a division of opinion in the Supreme Court as to what +extent, if at all, the proceedings before military tribunals should be +reviewed by the courts for the purpose of determining compliance with +the due process clause. In In re Yamashita[129] the majority denied a +petition for certiorari and petitions for writs of _habeas corpus_ to +review the conviction of a Japanese war criminal by a military +commission sitting in the Philippine Islands. It held that since the +military commission, in admitting evidence to which objection was made, +had not violated any act of Congress, a treaty or a military command +defining its authority, its ruling on evidence and on the mode of +conducting the proceedings were not reviewable by the courts. Without +dissent, the Supreme Court in Hiatt _v._ Brown[130] reversed the +judgment of a lower court which had discharged a prisoner serving a +sentence imposed by a court-martial, because of errors whereby the +respondent had been deprived of due process of law. The Supreme Court +held that the Court below had erred in extending its review, for the +purpose of determining compliance with the due process clause, to such +matters as the propositions of law set forth in the staff judge +advocate's report, the sufficiency of the evidence to sustain +respondent's conviction, the adequacy of the pre-trial investigation, +and the competence of the law member and defense counsel. In summary, +Justice Clark wrote: "In this case the court-martial had jurisdiction of +the person accused and the offense charged, and acted within its lawful +powers. The correction of any errors it may have committed is for the +military authorities which are alone authorized to review its +decision."[131] Again in Johnson _v._ Eisentrager[132] the Supreme Court +overruled a lower court decision, which, in reliance upon the dissenting +opinion in the Yamashita Case, had held that the due process clause +required that the legality of the conviction of enemy alien belligerents +by military tribunals should be tested by the writ of _habeas corpus_. + + +ALIENS + +To aliens who have never been naturalized or acquired any domicile or +residence in the United States, the decision of an executive or +administrative officer, acting within powers expressly conferred by +Congress, as to whether or not they shall be permitted to enter the +country, is due process of law.[133] The complete authority of Congress +in the matter of admission of aliens justifies delegation of power to +executive officers to enforce the exclusion of aliens afflicted with +contagious diseases by imposing upon the owner of the vessel bringing +any such alien into the country, a money penalty, collectible before and +as a condition of the grant of clearance.[134] If the person seeking +admission claims American citizenship, the decision of the Secretary of +Labor may be made final, but it must be made after a fair hearing, +however summary, and must find adequate support in the evidence. A +decision based upon a record from which relevant and probative evidence +has been omitted is not a fair hearing.[135] Where the statute made the +decision of an immigration inspector final unless an appeal was taken to +the Secretary of the Treasury, a person who failed to take such an +appeal did not, by an allegation of citizenship, acquire a right to a +judicial hearing on _habeas corpus_.[136] + + +DEPORTATION + +Deportation proceedings are not criminal prosecutions within the meaning +of the Bill of Rights. The authority to deport is drawn from the power +of Congress to regulate the entrance of aliens and impose conditions +upon the performance of which their continued liberty to reside within +the United States may be made to depend. Findings of fact reached by +executive officers after a fair, though summary deportation hearing may +be made conclusive.[137] In Wong Yang Sung _v._ McGrath,[138] however, +the Court intimated that a hearing before a tribunal which did not meet +the standards of impartiality embodied in the Administrative Procedure +Act[139] might not satisfy the requirements of due process of law. To +avoid such constitutional doubts, the Court construed the law to +disqualify immigration inspectors as presiding officers in deportation +proceedings. Except in time of war, deportation without a fair hearing +or on charges unsupported by any evidence is a denial of due process +which may be corrected on _habeas corpus_.[140] In contrast with the +decision in United States _v._ Ju Toy[141] that a person seeking +entrance to the United States was not entitled to a judicial hearing on +his claim of citizenship, a person arrested and held for deportation is +entitled to a day in court if he denies that he is an alien.[142] A +closely divided Court has ruled that in time of war the deportation of +an enemy alien may be ordered summarily by executive action; due +process of law does not require the courts to determine the sufficiency +of any hearing which is gratuitously afforded to the alien.[143] + + +Substantive Due Process + + +DISCRIMINATION + +Almost all legislation involves some degree of classification whereby +its operation is directed to particular categories of persons, things, +or events; and it is partly in recognition of this fact that Amendment +Fourteen forbids the States to deny to persons within their jurisdiction +"equal protection of the laws." But this restriction does not rule out +classifications that are "reasonable"; and the due process of law clause +of Amendment Five is at least as tolerant of legislative +classifications, which would have to be arbitrarily and unreasonably +discriminatory to incur its condemnation.[144] In fact, it does not +appear that the Court has up to this time ever held an act of Congress +unconstitutional on this ground. Thus it has sustained a law imposing +greater punishment for an offense involving rights and property of the +United States than for a like offense involving the rights of property +of a private person.[145] Likewise, a requirement that improved property +in the District of Columbia be connected with the city sewage system, +with different sanctions for residents and nonresidents was upheld over +the argument that the classification was arbitrary.[146] The allowance +to injured seamen of a choice between several measures of redress +without any corresponding right in their employer was held not to deny +due process of law.[147] Differences of treatment accorded marketing +cooperatives in milk marketing orders issued by the Secretary of +Agriculture[148] and the selection of a limited number of tobacco +markets for compulsory grading of tobacco[149] have also been sustained. +The priority of a federal tax lien against property passing at death, +may, without offending the due process clause, be different from that +which attaches to property transferred _inter vivos_ in contemplation of +death.[150] + +There are indications, however, that the Court may be prepared to go +further than it has in the past in condemning discrimination as a denial +of due process of law. Relying upon public policy and its supervisory +authority over federal courts, it has reached results similar to those +arrived at under the equal protection clause of the Fourteenth +Amendment, in refusing to enforce restrictive covenants in the District +of Columbia,[151] and in reversing a judgment of a Federal District +Court because of the exclusion of day laborers from the jury panel;[152] +and in Steele _v._ Louisville & N.R. Co.[153] the Railway Labor Act was +construed to require a collective bargaining representative to act for +the benefit of all members of the craft without discrimination on +account of race. Chief Justice Stone indicated that any other +construction would raise grave constitutional doubts,[154] while in a +concurring opinion, Justice Murphy asserted unequivocally that the act +would be inconsistent with the Fifth Amendment if the bargaining agent, +acting under color of federal authority, were permitted to discriminate +against any of the persons he was authorized to represent.[155] + + +DEPRIVATION OF LIBERTY + +In consequence of the explicit assurances of individual liberty +contained in other articles of the Bill of Rights, the clause in the +Fifth Amendment forbidding the deprivation of "liberty" without due +process of law has been invoked chiefly in resistance to measures +alleged to abridge liberty of contract. The two leading cases which held +legislation unconstitutional on this ground have, however, both been +overturned in recent years. Adair _v._ United States,[156] which +invalidated an act of Congress prohibiting any interstate carrier from +threatening an employee with loss of employment if he joined a labor +union, was overruled in substance by Phelps Dodge Corp. _v._ National +Labor Relations Board.[157] Adkins _v._ Children's Hospital,[158] in +which a minimum wage law for the District of Columbia was found to be an +unwarranted abridgment of the liberty of contract, was expressly +repudiated by West Coast Hotel Co. _v._ Parrish.[159] Numerous other +statutes--antitrust laws,[160] acts limiting hours of labor,[161] +prohibiting advance of wages to seamen,[162] making carriers liable for +injuries suffered by employees irrespective of previous contractual +arrangements,[163] requiring employers to bargain collectively with +employees[164] and fixing prices of commodities[165] have been sustained +against attack on this ground. + +Interpreting statutes which made the guaranty of due process of law +applicable to Hawaii and the Philippine Islands, the Court enjoined +enforcement of an act of the Territory of Hawaii which prohibited +maintenance of foreign-language schools except upon written permit and +payment of a fee based upon attendance,[166] and held unconstitutional a +Philippine statute which prohibited Chinese merchants from keeping any +accounts in Chinese.[167] + + +DEPRIVATION OF PROPERTY + + +Retroactive Legislation Sustained + +Federal regulation of future action, based upon rights previously +acquired by the person regulated, is not prohibited by the Constitution. +So long as the Constitution authorizes the subsequently enacted +legislation, the fact that its provisions limit or interfere with +previously acquired rights does not condemn it. Accordingly, rent +regulations were sustained as applied to prevent execution of a judgment +of eviction rendered by a State court before the enabling legislation +was passed.[168] An order by an Area Rent Director reducing an +unapproved rental and requiring the landlord to refund the excess +previously collected, was held, with one dissenting vote, not to be the +type of retroactivity which is condemned by law.[169] The retroactive +effect of a new principle announced by a decision of an administrative +tribunal has been likened to the effect of judicial decisions in cases +of first impression. In Securities Comm'n. _v._ Chenery Corp.,[170] the +Supreme Court sustained a decision of the Commission which refused to +approve a plan of reorganization for a public utility holding company so +long as the preferred stock purchased by the management was treated on a +parity with other preferred stock even though the purchase of such +stock, when made, did not conflict with any law or rule of the +Commission. In the exercise of its comprehensive powers over revenue, +finance and currency, Congress may make Treasury notes legal tender in +payment of debts previously contracted[171] and may invalidate +provisions in private contracts calling for payment in gold coin.[172] +An award of additional compensation under the Longshoremen's and Harbor +Workers' Compensation Act,[173] made pursuant to a private act of +Congress passed after expiration of the period for review of the +original award, directing the Commission to review the case and issue a +new order, was held valid against the employer and insurer.[174] The +application of a statute providing for tobacco marketing quotas, to a +crop planted prior to its enactment, was held not to deprive the +producers of property without due process of law since it operated, not +upon production, but upon the marketing of the product after the act was +passed.[175] + +The validation by statute of a prior mortgage of personal property +invalid because improperly recorded, did not deny due process of law to +a judgment creditor seeking to levy an attachment on the mortgaged +property.[176] Nor was property taken without due process of law by a +statute of New Mexico territory, permitting disseisin of real property +to ripen into title after ten years.[177] An order of the military +governor of Porto Rico reducing the period during which the possession +of real estate must continue, to permit an _ex parte_ conversion of an +entry of possessory title into record ownership was construed to apply +only where there still remained a reasonable opportunity for the true +owners to contest the claim. The Court said that any other construction +would permit a taking of property without due process of law.[178] + +Rights created by statute are subject to qualification by Congress; +benefits conferred gratuitously may be redistributed or withdrawn at any +time.[179] Where Congress provided, in granting lands to a railroad, +that such land could be resold only to actual settlers, at a price not +exceeding $2.50 per acre, it could constitutionally, for breach of +performance, resume title to the lands while assuring the railroad the +equivalent of its interest.[180] An act making an appropriation for a +private claim which restricted the attorney's fees payable therefrom to +twenty per cent was valid although inconsistent with a prior contract +with the claimant allowing a larger fee.[181] Statutory restrictions on +compensation for services in connection with veterans' pensions or +insurance have been upheld.[182] An increase in the penalty for +production of wheat in excess of quota was not invalid as applied +retroactively to wheat already planted, where Congress concurrently +authorized a substantial increase in the amount of the loan which might +be made to cooperating farmers upon stored "farm marketing excess +wheat."[183] + + +Retroactive Legislation Disallowed + +The due process clause has been successfully invoked to defeat +retroactive invasion or destruction of property rights in a few cases. A +revocation by the Secretary of the Interior of previous approval of +plats and papers showing that a railroad was entitled to land under a +grant was held void as an attempt to deprive the company of its property +without due process of law.[184] The exception of the period of federal +control from the time limit set by law upon claims against carriers for +damages caused by misrouting of goods, was read as prospective only +because the limitation was an integral part of the liability, not merely +a matter of remedy, and would violate the Fifth Amendment if +retroactive.[185] Rights against the United States arising out of +contract are protected by the Fifth Amendment; hence a statute +abrogating contracts of war risk insurance was held unconstitutional as +applied to outstanding policies.[186] + + +Bankruptcy Legislation + +The bankruptcy power of Congress is subject to the Fifth Amendment. A +statute which authorized a court to stay proceedings for the foreclosure +of a mortgage for five years, the debtor to remain in possession at a +reasonable rental, with the option of purchasing the property at its +appraised value at the end of the stay, was held unconstitutional +because it deprived the creditor of substantial property rights acquired +prior to the passage of the act.[187] A modified law, under which the +stay was subject to termination by the Court, and which continued the +right of the creditor to have the property sold to pay the debt was +sustained.[188] Without violation of the due process clause, the sale of +collateral under the terms of a contract may be enjoined, if such sale +would hinder the preparation or consummation of a proposed railroad +reorganization, provided the injunction does no more than delay the +enforcement of the contract.[189] A provision that claims resulting from +rejection of an unexpired lease should be treated as on a parity with +provable debts, but limited to an amount equal to three years rent, was +held not to amount to a taking of property without due process of law, +since it provided a new and more certain remedy for a limited amount, in +lieu of an existing remedy inefficient and uncertain in result.[190] A +right of redemption allowed by State law upon foreclosure of a mortgage +was unavailing to defeat a plan for reorganization of a debt or +corporation where the trial court found that the claims of junior +lienholders had no value.[191] + + +Right To Sue the Government + +A right to sue the Government on a contract is a privilege, not a +property right protected by the Constitution.[192] The right to sue for +recovery of taxes paid may be conditioned upon an appeal to the +Commissioner and his refusal to refund.[193] There was no denial of due +process when Congress took away the right to sue for recovery of taxes, +where the claim for recovery was without substantial equity, having +arisen from the mistake of administrative officials in allowing the +statute of limitations to run before collecting the tax.[194] The denial +to taxpayers of the right to sue for refund of processing and floor +taxes collected under a law subsequently held unconstitutional, and the +substitution of a new administrative procedure for the recovery of such +sums, was held valid.[195] Congress may cut off the right to recover +taxes illegally collected by ratifying the imposition and collection +thereof, where it could lawfully have authorized such exactions prior to +their collection.[196] + + +CONGRESSIONAL POLICE MEASURES + +Numerous regulations of a police nature, imposed under powers +specifically granted to the Federal Government, have been sustained over +objections based on the due process clause. Congress may require the +owner of a vessel on which alien seamen suffering from specified +diseases are brought into the country to bear the expense of caring for +such persons.[197] It may prohibit the transportation in interstate +commerce of filled milk,[198] or the importation of convict made goods +into any State where their receipt, possession or sale is a violation of +local law.[199] It may require employers to bargain collectively with +representatives of their employees chosen in a manner prescribed by +statute, to reinstate employees discharged in violation of law,[200] and +to permit use of a company owned hall for union meetings.[201] It may +enforce continuance of the relationship of employer and employee in the +event of a strike as a consequence of, or in connection with, a current +labor dispute.[202] The fact that property subject to rent control in +time of war suffers a decrease in value does not make such restriction +offensive to the due process clause.[203] + + +The Postal Service + +In its complete control over the postal service Congress may exclude +lottery advertisements or any other matter objectionable on grounds of +public policy.[204] An order requiring return to the senders of all +letters addressed to a concern engaged in a fraudulent enterprise, or to +its officers as such was held reasonable and valid because an order +limited to matter obviously connected with the enterprise would be a +practical nullity.[205] Such an order may be issued by the Postmaster +General "upon evidence satisfactory to him,"[206] but if issued under a +"mistake of law" as to what facts may properly be deemed to constitute +fraud, it will be enjoined by the courts.[207] A hearing upon revocation +of second-class mailing privileges by an assistant Postmaster General +upon notice, at which relator was heard and evidence received was due +process.[208] + + +Congressional Regulation of Public Utilities + +Inasmuch as Congress, in giving federal agencies jurisdiction over +various public utilities, usually has prescribed standards substantially +identical with those by which the Supreme Court has tested the validity +of State action, the review of their orders seldom has turned on +constitutional issues. In two cases, however, maximum rates for +stockyard companies prescribed by the Secretary of Agriculture were +sustained only after detailed consideration of numerous items excluded +from the rate base or from operating expenses, apparently on the +assumption that error with respect to any such item would render the +rates confiscatory and void.[209] A few years later, in Federal Power +Commission _v._ Hope Natural Gas Co.,[210] the Court adopted an entirely +different approach. It took the position that the validity of the +Commission's order depended upon whether the impact or total effect of +the order is just and reasonable, rather than upon the method of +computing the rate base. Rates which enable a company to operate +successfully, to maintain its financial integrity, to attract capital, +and to compensate its investors for the risks assumed cannot be +condemned as unjust and unreasonable even though they might produce only +a meager return in a rate base computed by the "present fair value" +method.[211] + +Orders prescribing the form and contents of accounts kept by public +utility companies,[212] and statutes requiring a private carrier to +furnish information for valuing its property to the Interstate Commerce +Commission[213] have been sustained against the objection that they were +arbitrary and invalid. An order of the Secretary of Commerce directed to +a single common carrier by water requiring it to file a summary of its +books and records pertaining to its rates was held not to violate the +Fifth Amendment.[214] + + +Congressional Regulation of Railroads + +Legislation or administrative orders pertaining to railroads have been +challenged repeatedly under the due process clause but seldom with +success. Orders of the Interstate Commerce Commission establishing +through routes and joint rates have been sustained,[215] as has its +division of joint rates to give a weaker group of carriers a greater +share of such rates where the proportion allotted to the stronger group +was adequate to avoid confiscation.[216] The recapture of one half of +the earnings of railroads in excess of a fair net operating income, such +recaptured earnings to be available as a revolving fund for loans to +weaker roads, was held valid on the ground that any carrier earning an +excess held it as trustee.[217] An order enjoining certain steam +railroads from discriminating against an electric railroad by denying it +reciprocal switching privileges did not violate the Fifth Amendment even +though its practical effect was to admit the electric road to a part of +the business being adequately handled by the steam roads.[218] +Similarly, the fact that a rule concerning the allotment of coal cars +operated to restrict the use of private cars did not amount to a taking +of property.[219] Railroad companies were not denied due process of law +by a statute forbidding them to transport in interstate commerce +commodities which have been manufactured, mined or produced by +them.[220] An order approving a lease of one railroad by another, upon +condition that displaced employees of the lessor should receive partial +compensation for the loss suffered by reason of the lease[221] is +consonant with due process of law. A law prohibiting the issuance of +free passes was held constitutional even as applied to abolish rights +created by a prior agreement whereby the carrier bound itself to issue +such passes annually for life, in settlement of a claim for personal +injuries.[222] + +Occasionally, however, regulatory action has been held invalid under the +due process clause. An order issued by the Interstate Commerce +Commission relieving short line railroads from the obligation to pay the +usual fixed sum per day rental for cars used on foreign roads, for a +space of two days was arbitrary and invalid.[223] A retirement act which +made eligible for pensions all persons who had been in the service of +any railroad within one year prior to the adoption of the law, counted +past unconnected service of an employee toward the requirement for a +pension without any contribution therefor, and treated all carriers as a +single employer and pooled their assets, without regard to their +individual obligations, was held unconstitutional.[224] + + +TAXATION + +In laying taxes, the Federal Government is less narrowly restricted by +the Fifth Amendment than are the States by the Fourteenth. It may tax +property belonging to its citizens, even if such property is never +situated within the jurisdiction of the United States,[225] or the +income of a citizen resident abroad, which is derived from property +located at his residence.[226] The difference is explained by the fact +that the protection of the Federal Government follows the citizen +wherever he goes, whereas the benefits of State government accrue only +to persons and property within the State's borders. The Supreme Court +has said that, in the absence of an equal protection clause, "a claim of +unreasonable classification or inequality in the incidence or +application of a tax raises no question under the Fifth Amendment, +* * *"[227] It has sustained, over charges of unfair differentiation +between persons, a graduated income tax;[228] a higher tax on +oleomargarine than on butter;[229] an excise tax on "puts" but not on +"calls";[230] a tax on the income of businesses operated by corporations +but not on similar enterprises carried on by individuals;[231] an income +tax on foreign corporations, based on their income from sources within +the United States, while domestic corporations are taxed on income from +all sources;[232] a tax on foreign-built but not upon domestic +yachts;[233] a tax on employers of eight or more persons, with +exemptions for agricultural labor and domestic service;[234] a gift tax +law embodying a plan of graduations and exemptions under which donors of +the same amount might be liable for different sums;[235] an Alaska +statute imposing license taxes only on nonresident fisherman;[236] an +act which taxed the manufacture of oil and fertilizer from herring at a +higher rate than similar processing of other fish or fish offal;[237] an +excess profits tax which defined "invested capital" with reference to +the original cost of the property rather than to its present value;[238] +and an undistributed profits tax in the computation of which special +credits were allowed to certain taxpayers;[239] an estate tax upon the +estate of a deceased spouse in respect of the moiety of the surviving +spouse where the effect of the dissolution of the community is to +enhance the value of the survivor's moiety.[240] + + +Retroactive Taxes + +A gift tax cannot be imposed on gifts consummated before the taxing +statute was adopted.[241] A conclusive presumption that gifts made +within two years of death were made in contemplation of death was +condemned as arbitrary and capricious even with respect to subsequent +transfers.[242] A tax may be made retroactive for a short period to +include profits made while it was in process of enactment. A special +income tax on profits realized by the sale of silver, retroactive for 35 +days, which was approximately the period during which the silver +purchase bill was before Congress, was held valid.[243] An income tax +law, made retroactive to the beginning of the calendar year in which it +was adopted, was found constitutional as applied to the gain from the +sale, shortly before its enactment, of property received as a gift +during the year.[244] Retroactive assessment of penalties for fraud or +negligence,[245] or of an additional tax on the income of a corporation +used to avoid a surtax on its shareholders,[246] does not deprive the +taxpayer of property without due process of law. + +An additional excise tax imposed upon property still held for sale, +after one excise tax had been paid by a previous owner, does not violate +the due process clause.[247] A transfer tax measured in part by the +value of property held jointly by a husband and wife, including that +which comes to the joint tenancy as a gift from the decedent spouse, is +valid,[248] as is the inclusion in the gross income of the settler of +income accruing to a revocable trust during any period when he had power +to revoke or modify it.[249] + + +GOVERNANCE OF THE INDIANS + +The power of Congress in virtue of its wardship over Indians extends to +a restriction on alienation of Indian lands even after a particular +Indian has been granted citizenship.[250] But rights of tax exemption +accruing to Indian allotments under an act of Congress, which have +become vested, are protected by this amendment against repeal.[251] One +who was duly enrolled as a member of the Chickasaw Nation acquired +valuable rights which the Secretary of the Interior could not strike +down without notice and hearing.[252] An act authorizing suit against +allottees of Indian property as a class, for the value of services in +securing the allotments, which provided for notice upon the governor of +the tribe and designated the Attorney General to defend the suit, was +consonant with due process.[253] Where the statute which created a +tribal council for the Osage Indians, to be elected by the tribe, at the +same time vested the Secretary of the Interior with discretion to remove +a member without notice or hearing, there was no denial of due process +of law since the right to elect was united in its creation with the +right of removal.[254] A statute of the Choctaw Nation providing for the +forfeiture and sale of buildings erected on their lands, was held to be +unenforceable without giving the builder an opportunity to be +heard.[255] + + +The National Eminent Domain Power + + +SCOPE OF POWER + +Being an incident of sovereignty, the right of eminent domain requires +no constitutional recognition. The requirement of just compensation is +merely a limitation upon the exercise of a preexisting power[256] to +which all private property is subject.[257] This prerogative of the +National Government can neither be enlarged nor diminished by a +State.[258] Whenever lands in a State are needed for a public purpose, +Congress may authorize that they be taken, either by proceedings in the +courts of the State, with its consent, or by proceedings in the courts +of the United States, with or without any consent or concurrent act of +the State.[259] The facts that land included in a federal reservoir +project is owned by a State, or that its taking may impair the tax +revenue of the State, that the reservoir will obliterate part of the +State's boundary and interfere with the State's own project for water +development and conservation, constitute no barrier to the condemnation +of the land by the United States under its superior power of eminent +domain.[260] + + +ALIEN PROPERTY + +There is no constitutional prohibition against confiscation of enemy +property.[261] Congress may authorize seizure and sequestration through +executive channels of property believed to be enemy owned if adequate +provision is made for return in case of mistake.[262] An alien friend is +entitled to the protection of the Fifth Amendment against a taking of +property for public use without just compensation.[263] The fact that +property of our citizens may be confiscated in that alien's country does +not subject the alien friend's property to confiscation here.[264] + + +PUBLIC USE + +The extent to which private property shall be taken for public use rests +wholly in the legislative discretion.[265] Whether the courts have power +to review a determination of the lawmakers that a particular use is a +public use was left in doubt by the decision in United States ex rel. +T.V.A. _v._ Welch.[266] Speaking for the majority, Justice Black +declared: "We think that it is the function of Congress to decide what +type of taking is for a public use * * *"[267] In a concurring opinion +in which Chief Justice Stone joined, Justice Reed took exception to that +portion of the opinion, insisting that whether or not a taking is for a +public purpose is a judicial question.[268] Justice Frankfurter +interpreted the controlling opinion as recognizing the doctrine that +"whether a taking is for a public purpose is not a question beyond +judicial competence."[269] All agreed that the condemnation of property +which had been isolated by the flooding of a highway, to avoid the +expense of constructing a new highway, was a lawful public purpose. +Previous cases have held that the preservation for memorial purposes of +the line of battle at Gettysburg was a public use for which private +property could be taken by condemnation;[270] that where establishment +of a reservoir involved flooding part of a town, the United States might +take nearby property for a new townsite and the fact that there might be +some surplus lots to be sold did not deprive the transaction of its +character as taking for public use.[271] + + +RIGHTS FOR WHICH COMPENSATION MUST BE MADE + +The franchise of a private corporation is property which cannot be taken +for public use without compensation. Upon condemnation of a lock and dam +belonging to a navigation company, the Government was required to pay +for the franchise to take tolls as well as for the tangible +property.[272] Letters patent for a new invention or discovery in the +arts confer upon the patentee an exclusive property for which +compensation must be made when the Government uses the patent.[273] The +frustration of a private contract by the requisitioning of the entire +output of a steel manufacturer is not a taking for which compensation is +required.[274] Where, however, the Government requisitioned from a power +company all of the electric power which could be produced by use of the +water diverted through its intake canal, thereby cutting off the supply +of a lessee which had a right, amounting to a corporeal hereditament +under State law, to draw a portion of that water, the latter was awarded +compensation for the rights taken.[275] An order requiring the removal +or alteration of a bridge over a navigable river, to abate the +obstruction to navigation, is not a taking of property within the +meaning of the Constitution.[276] The exclusion, from the amount to be +paid to the owners of condemned property, of the value of improvements +made by the Government under a lease, was held constitutional.[277] An +undertaking to reduce the menace from flood damages which was inevitable +but for the Government's work does not constitute the Government a taker +of all lands not fully protected; the Government does not owe +compensation under the Fifth Amendment to every landowner whom it fails +to or cannot protect.[278] + + +When Property is Taken + +According to the Legal Tender Cases,[279] the requirement of just +compensation for property taken for public use refers only to direct +appropriation and not to consequential injuries resulting from the +exercise of lawful power. This formula leaves open the question as to +whether injuries are "consequential" merely. Recent doctrine embodies a +more definite test. In United States _v._ Dickinson,[280] the Supreme +Court held that property is "taken" within the meaning of the +Constitution "when inroads are made upon the owner's use of it to an +extent that, as between private parties, a servitude has been acquired +either by an agreement or in course of time."[281] Where the noise and +glaring lights of planes landing at or leaving an airport leased to the +United States, flying below the navigable air space as defined by +Congress, interfere with the normal use of a neighboring farm as a +chicken farm, there is such a taking as to give the owner a +constitutional right to compensation.[282] That the Government had +imposed a servitude on land adjoining its fort so as to constitute a +taking within the law of eminent domain may be found from the facts that +it had repeatedly fired the guns of the fort across the land and had +established a fire control service there.[283] A corporation chartered +by Congress to construct a tunnel and operate railway trains therein was +held liable for damages in the suit by an individual whose property was +so injured by smoke and gas forced from the tunnel as to amount to a +taking of private property.[284] + + +Navigable Waters + +Riparian ownership is subject to the power of Congress to regulate +commerce. When damage results consequentially from an improvement of a +navigable river, it is not a taking of property, but merely the exercise +of a servitude to which the property is always subject.[285] What +constitutes a navigable river within the purview of the commerce clause +often involves sharply disputed issues of fact and of law. In the +leading case of The Daniel Ball[286] the Court laid down the rule that: +"Those rivers must be regarded as public navigable rivers in law which +are navigable in fact. And they are navigable in fact when they are +used, or are susceptible of being used, as highways for commerce, over +which trade and travel are or may be conducted in the customary modes of +trade and travel on water."[287] In 1940, over the dissent of two +Justices, the Court held that the phrase "natural and ordinary +condition" refers to volume of water, the gradients and the regularity +of the flow. It further held that in determining the navigable character +of a river it is proper to consider "the feasibility of interstate use +after reasonable improvements which might be made."[288] A few months +later it decided unanimously that Congress may exercise the power of +eminent domain in connection with the construction of a dam and +reservoir on the nonnavigable stretches of a river in order to preserve +or promote commerce on the navigable portions.[289] + +The Government does not have to compensate a riparian owner for cutting +off his access to navigable waters by changing the course of the stream +in order to improve navigation.[290] Where submerged land under +navigable waters of a bay are planted with oysters, the action of the +Government in dredging a channel across the bay in such a way as to +destroy the oyster bed is not a "taking" of property in the +constitutional sense.[291] The determination by Congress that the whole +flow of a stream should be devoted to navigation does not take any +private property rights of a water power company which holds a revocable +permit to erect dams and dykes for the purpose of controlling the +current and using the power for commercial purposes.[292] The interest +of a riparian owner in keeping the level of a navigable stream low +enough to maintain a power head for his use was not one for which he was +entitled to be compensated when the Government raised the level by +erecting a dam to improve navigation.[293] Inasmuch as a riparian owner +has no private property in the flow of the stream, a license to maintain +a hydroelectric dam, may, without offending the Fifth Amendment, contain +a provision giving the United States an option to acquire the property +at a value assumed to be less than its fair value at the time of +taking.[294] + +Where the Government erects dams and other obstructions across a river, +causing an overflow of water which renders the property affected unfit +for agricultural use and deprives it of all value, there is taking of +property for which the Government is under an implied contract to make +just compensation.[295] The construction of locks and for "canalizing" a +river, which cause recurrent overflows, impairing but not destroying the +value of the land amounts to a partial taking of property within the +meaning of the Fifth Amendment;--the fee remains in the owner, subject +to an easement in the United States to overflow it as often as may +necessarily result from the operation of the lock and dam for purposes +of navigation.[296] Compensation has been awarded for the erosion of +land by waters impounded by a Government dam,[297] and for the +destruction of the agricultural value of land located on a nonnavigable +tributary of the Mississippi River, which as a result of the continuous +maintenance of the river's level at high water mark, was permanently +invaded by the percolation of the waters, and its drainage +obstructed.[298] When the construction of locks and dams raised the +water in a nonnavigable creek to about one foot below the crest of an +upper milldam, thus preventing the drop in the current necessary to run +the mill, there was a taking of property in the constitutional +sense.[299] A contrary conclusion was reached with respect to the +destruction of property of the owner of a lake through the raising of +the lake level as a consequence of an irrigation project, where the +result to the lake owner's property could not have been foreseen.[300] + + +JUST COMPENSATION + +If only a portion of a single tract is taken, the owner's compensation +includes any element of value arising out of the relation of the part +taken to the entire tract.[301] Thus, where the taking of a strip of +land across a farm closed a private right of way, an allowance was +properly made for value of the easement.[302] On the other hand, if the +taking has in fact benefited the owner, the benefit may be set off +against the value of the land condemned.[303] But there may not be taken +into account any supposed benefit which the owner may receive in common +with all from the public use to which the property is appropriated.[304] +Where Congress condemned certain lands for park purposes, setting off +resulting benefits against the value of property taken, and by +subsequent act directed the erection of a fire-station house therein, it +was held that property was not thereby taken without just +compensation.[305] The Constitution does not require payment of +consequential damages to other property of the owner consisting of +separate tracts adjoining that affected by the taking.[306] + +Just compensation means the full and perfect equivalent, in money, of +the property taken.[307] The owner's loss, not the taker's gain is the +measure of such compensation.[308] Where the property has a determinable +market value, that is the normal measure of recovery.[309] Market value +is "what a willing buyer would pay in cash to a willing seller."[310] It +may reflect not only the use to which the property is presently devoted +but also that to which it may be readily converted.[311] But the value +of the property to the Government for its particular use is not a +criterion.[312] In two recent cases the Court held that the owners of +cured pork[313] and black pepper[314] which was requisitioned by the +Government during the war could recover only the O.P.A. ceiling price +for those commodities, despite findings of the Court of Claims that the +replacement cost of the meat exceeded its ceiling price, and that the +pepper had a "retention value" in excess of that price. By a +five-to-four decision it ruled that the Government was not obliged to +pay the market value of a tug where such value had been enhanced as a +consequence of the Government's urgent war time needs.[315] + +Consequential damages such as destruction of a business,[316] the +expense of moving fixtures and personal property from the premises, or +the loss of goodwill which inheres in the location of the land, are not +recoverable when property is taken in fee.[317] But a different +principle obtains where only a temporary occupancy is assumed. If a +portion of a long term lease is taken, damage to fixtures is allowed in +addition to the value of the occupancy, and the expenses of moving, +storage charges, and the cost of preparing the space for occupancy by +the Government are proper elements to be considered in determining the +fair rental value of the premises for the period taken.[318] These +elements are not taken into account in fixing compensation for +condemnation of leaseholds for the remainder of their term.[319] In +Kimball Laundry Co. _v._ United States,[320] the Court by a close +division held that when the United States condemned a laundry plant for +temporary occupancy, evidence should have been received concerning the +diminution in the value of its business due to destruction of its trade +routes, and compensation allowed for any demonstrable loss of +going-concern value. In United States _v._ Pewee Coal Co.,[321] +involving another temporary seizure by the government, a similarly +divided Court sustained the Court of Claims in awarding the company +compensation for losses attributable to increased wage payments by the +government. Four Justices thought no such loss had been shown. + + +Interest + +Ordinarily property is taken under a condemnation suit upon the payment +of the money award by the condemner and no interest accrues.[322] If, +however, the property is taken in fact before payment is made, just +compensation includes an increment which, to avoid use of the term +"interest," the Court has called "an amount sufficient to produce the +full equivalent of that value paid contemporaneously with the +taking."[323] If the owner and the Government enter into a contract +which stipulates the purchase price for lands to be taken, with no +provision for interest, the Fifth Amendment is inapplicable and the +landowner cannot recover interest even though payment of the purchase +price is delayed.[324] Where property of a citizen has been mistakenly +seized by the Government, converted into money and invested, the owner +is entitled, in recovering compensation, to an allowance for the use of +his property.[325] + + +Enforcement of Right to Compensation + +When a taking of private property has been ordered, the question of just +compensation is judicial.[326] The compensation to be paid may be +ascertained by any appropriate tribunal capable of estimating the value +of the property. Whether the tribunal shall be created directly by +Congress or one already established by the State shall be adopted for +the occasion, is a matter of legislative discretion.[327] The estimate +of just compensation is not required to be made by a jury, but may be +entrusted to commissioners appointed by a court or by the executive, or +to an inquest consisting of more or fewer men than an ordinary +jury.[328] The federal courts may take jurisdiction of an action in +ejectment by a citizen against officers of the Government, to recover +property of which he has been deprived by force and which has been +converted to the use of the Government without lawful authority and +without just compensation.[329] Where property is taken by the United +States in the exercise of the power of eminent domain, but without +condemnation proceedings, the owner may, under the Tucker Act, bring +suit for just compensation in the Court of Claims or in a district court +sitting as a Court of Claims.[330] + +The Fifth Amendment does not require that compensation shall actually be +paid in advance of the taking[331] but the owner is entitled to +reasonable, certain, and adequate provision for obtaining compensation +before his occupancy is disturbed.[332] In time of war or immediate +public danger private property may be impressed into public service +without the consent of the owner, but such taking raises an implied +promise on the part of the United States to reimburse the owner.[333] An +objection that an act of Congress providing for condemnation of land for +a public purpose limited the aggregate amount to be expended was +rejected, since the limitation did not affect the right of property +holders in the event of condemnation.[334] + + +Notes + +[1] Ex parte Wilson, 114 U.S. 417 (1885). + +[2] Ibid. 427. + +[3] Mackin _v._ United States, 117 U.S. 348, 352 (1886). + +[4] United States _v._ Moreland, 258 U.S. 433 (1922). + +[5] Ex parte Wilson, 114 U.S. 417, 426 (1885). + +[6] Wong Wing _v._ United States, 163 U.S. 228, 237 (1896). + +[7] Ex parte Wilson, 114 U.S. 417 (1885). + +[8] Mackin _v._ United States, 117 U.S. 348 (1886). + +[9] Parkinson _v._ United States, 121 U.S. 281 (1887). + +[10] United States _v._ DeWalt, 128 U.S. 393 (1888). + +[11] Ex parte Wilson, 114 U.S. 417, 426 (1885). + +[12] Duke _v._ United States, 301 U.S. 492 (1937). + +[13] Ex parte Bain, 121 U.S. 1, 12 (1887). + +[14] Breese _v._ United States, 226 U.S. 1 (1912). + +[15] Johnson _v._ Sayre, 158 U.S. 109, 114 (1895). + +[16] Ex parte Quirin, 317 U.S. 1, 43, 44 (1942). + +[17] Ex parte Lange, 18 Wall. 103, 169 (1874). + +[18] Ibid. 172, 173. + +[19] Kepner _v._ United States, 195 U.S. 100 (1904). This case arose +under the act of Congress of July 1, 1902 (32 Stat. 631) for the +temporary civil government of the Philippine Islands. To the same effect +are United States _v._ Sanges, 144 U.S. 310, 323 (1892), and United +States _v._ Evans, 213 U.S. 297 (1909), both cases arising within the +United States. + +[20] United States _v._ Oppenheimer, 242 U.S. 85 (1916). + +[21] United States _v._ Ball, 161 U.S. 622, 669 (1896). + +[22] Ex parte Lange, 18 Wall. 163 (1874). + +[23] Bozza _v._ United States, 330 U.S. 160 (1947). + +[24] Wade _v._ Hunter, 336 U.S. 684, 689 (1949). + +[25] United States _v._ Perez, 9 Wheat. 579 (1824); Logan _v._ United +States, 144 U.S. 263, 298 (1892). + +[26] Simmons _v._ United States, 142 U.S. 148 (1891); Thompson _v._ +United States, 155 U.S. 271 (1894). + +[27] Lovato _v._ New Mexico, 242 U.S. 199 (1916). + +[28] Wade _v._ Hunter, 336 U.S. 684 (1949). + +[29] Collins _v._ Loisel, 262 U.S. 426 (1923). + +[30] Taylor _v._ United States, 207 U.S. 120, 127 (1907). + +[31] Bassing _v._ Cady, 208 U.S. 386, 391-392 (1908). + +[32] United States _v._ Wilson, 7 Pet. 150, 160 (1883). + +[33] Burton _v._ United States, 202 U.S. 344 (1906); United States _v._ +Randenbush, 8 Pet. 288, 289 (1834). + +[34] Morgan _v._ Devine, 237 U.S. 632 (1915). _See also_ Carter _v._ +McClaughry, 183 U.S. 365 (1902); Albrecht _v._ United States, 273 U.S. 1 +(1927). + +[35] Ex parte Nielsen, 131 U.S. 176, 188 (1889). + +[36] Helvering _v._ Mitchell, 303 U.S. 391 (1938). + +[37] Pinkerton _v._ United States, 328 U.S. 640 (1946); United States +_v._ Bayer, 331 U.S. 532 (1947). + +[38] Pinkerton _v._ United States, 328 U.S. 640 (1946). + +[39] American Tobacco Co. _v._ United States, 328 U.S. 781 (1946). + +[40] 339 U.S. 485 (1950). + +[41] Coffey _v._ United States, 116 U.S. 436 (1886). + +[42] United States _v._ La Franca, 282 U.S. 568 (1931). + +[43] Helvering _v._ Mitchell, 303 U.S. 391 (1938). + +[44] Waterloo Distilling Corp. _v._ United States, 282 U.S. 577 (1931). + +[45] United States _v._ Furlong, 5 Wheat. 184, 197 (1820). + +[46] United States _v._ Lanza, 260 U.S. 377 (1922); Jerome _v._ United +States, 318 U.S. 101 (1943). + +[47] In re Chapman, 166 U.S. 661, 672 (1897). + +[48] See generally J.H. Wigmore, 4 Evidence in Trials at Common Law, Sec. +2250 (2nd ed., 1923); also Edward S. Corwin, The Supreme Court's +Construction of the Self-Incrimination Clause, 29 Michigan Law Review, +1-27, 195-207 (1930). + +[49] McCarthy _v._ Arndstein, 266 U.S. 34, 40 (1924). _See also_ Boyd +_v._ United States, 116 U.S. 616 (1886); Counselman _v._ Hitchcock, 142 +U.S. 547 (1892); Brown _v._ Walker, 161 U.S. 591 (1896). + +[50] Rogers _v._ United States, 340 U.S. 367, 370 (1951); United States +_v._ Monia, 317 U.S. 424, 427 (1943). + +[51] Hoffman _v._ United States, 341 U.S. 479, 486 (1951); Mason _v._ +United States, 244 U.S. 362, 363 (1917). + +[52] Rogers _v._ United States, 340 U.S. 367, 371 (1951); United States +_v._ Murdock, 284 U.S. 141, 148 (1931). + +[53] Brown _v._ Walker, 161 U.S. 591, 598-599 (1896). + +[54] _Cf._ Burdick _v._ United States, 236 U.S. 79 (1915); and Biddle +_v._ Perovich, 274 U.S. 480 (1927). + +[55] United States _v._ Murdock, 284 U.S. 141, 149 (1931). + +[56] Feldman _v._ United States, 322 U.S. 487 (1944). + +[57] Brown _v._ Walker, 161 U.S. 591 (1896); Johnson _v._ United States, +318 U.S. 189 (1943). + +[58] _Cf._ Twining _v._ New Jersey, 211 U.S. 78 (1908). However, a +defendant in a prosecution by the United States enjoys a statutory right +to have the jury instructed that his failure to testify creates no +presumption against him. 28 U.S.C. 632; Bruno _v._ U.S., 308 U.S. 287 +(1939). _See also_ 318 U.S. at 196. + +[59] Pierce _v._ United States, 160 U.S. 355 (1896); Wilson _v._ United +States, 162 U.S. 613 (1896); United States _v._ Mitchell, 322 U.S. 65 +(1944). + +[60] 318 U.S. 332 (1943). + +[61] _Ibid._, 340. In Upshaw _v._ United States, 335 U.S. 410 (1948), a +sharply divided Court found the McNabb case inapplicable to a case in +which respondent, while under arrest for assault with intent to rape, +was brought, by extended questioning, to confess having previously +committed murder in an attempt to rape. + +[62] Sullivan _v._ United States, 274 U.S. 259, 263 264 (1927). + +[63] Blau _v._ United States, 340 U.S. 159 (1950). _See also_ Blau _v._ +United States, 340 U.S. 332 (1951); Rogers _v._ United States, 340 U.S. +367 (1951); Dennis _v._ United States, 341 U.S. 494 (1951). + +[64] Holt _v._ United States, 218 U.S. 245 (1910). + +[65] Rochin _v._ California, 342 U.S. 165 (1952). + +[66] Re Harris, 221 U.S. 274, 279 (1911). + +[67] Dier _v._ Banton, 262 U.S. 147 (1923). + +[68] Re Fuller, 262 U.S. 91 (1923). + +[69] Arndstein _v._ McCarthy, 254 U.S. 71 (1920). + +[70] McCarthy _v._ Arndstein, 262 U.S. 355 (1923). + +[71] McCarthy _v._ Arndstein, 266 U.S. 34 (1924). + +[72] Hale _v._ Henkel, 201 U.S. 43 (1906); Wilson _v._ United States, +221 U.S. 361 (1911); Oklahoma Press Pub. Co. _v._ Walling, 327 U.S. 186 +(1946). + +[73] United States _v._ White, 322 U.S. 694 (1944). + +[74] Rogers _v._ United States, 340 U.S. 367, 372 (1951). + +[75] _See_ pp. 825-828 _ante_. + +[76] 335 U.S. 1 (1948). + +[77] Ibid. 33. In a dissenting opinion Justice Frankfurter argued: "The +underlying assumption of the Court's opinion is that all records which +Congress in the exercise of its constitutional powers may require +individuals to keep in the conduct of their affairs, because those +affairs also have aspects of public interest, become 'public' records in +the sense that they fall outside the constitutional protection of the +Fifth Amendment. The validity of such a doctrine lies in the scope of +its implications. The claim touches records that may be required to be +kept by federal regulatory laws, revenue measures, labor and census +legislation in the conduct of business which the understanding and +feeling of our people still treat as private enterprise, even though its +relations to the public may call for governmental regulation, including +the duty to keep designated records.... If Congress by the easy device +of requiring a man to keep the private papers that he has customarily +kept can render such papers 'public' and nonprivileged, there is little +left to either the right of privacy or the constitutional privilege." +Ibid. 70. + +[78] The Institutes, Part 2, 50-51 (1669). + +[79] On the above _see_ especially Justice Harlan's dissenting opinion +in Hurtado _v._ California, 110 U.S. 516, 538 (1884); _also_ Den ex dem. +Murray _v._ Hoboken Land & Improvement Co., 18 How. 272, 280 (1856); +Twining _v._ New Jersey, 211 U.S. 78 (1908); _also_ Corwin, Liberty +Against Government (Louisiana State University Press), chap. III. + +[80] Scott _v._ Sandford, 10 How. 393, 450 (1857). + +[81] Adkins _v._ Children's Hospital, 261 U.S. 525 (1923). _See also_ +Adair _v._ United States, 208 U.S. 161 (1908); and Lochner _v._ New +York, 198 U.S. 45 (1905). + +[82] Den ex dem. Murray _v._ Hoboken Land & Improvement Co., 18 How. +272, 276 (1856). + +[83] Union P.R. Co. _v._ United States (Sinking Fund Cases), 99 U.S. +700, 719 (1879). + +[84] Wong Wing _v._ United States, 163 U.S. 228, 238 (1896). + +[85] United States _v._ Ju Toy, 198 U.S. 253, 263 (1905); _cf._ Quon +Quon Poy _v._ Johnson, 273 U.S. 352 (1927). + +[86] Wight _v._ Davidson, 181 U.S. 371, 384 (1901). + +[87] Lovato _v._ New Mexico, 242 U.S. 199, 201 (1916). + +[88] Public Utility Comrs. _v._ Ynchausti & Co., 251 U.S. 401, 406 +(1920). + +[89] Johnson _v._ Eisentrager, 339 U.S. 763 (1950); _cf._ In re +Yamashita, 327 U.S. 1 (1946). Both decisions were reached by a divided +Court. In the Yamashita Case, Justices Rutledge and Murphy dissented on +the ground that the due process clause applies to every human being, +including enemy belligerents. + +[90] Davidson _v._ New Orleans, 96 U.S. 97, 102 (1878). Public Clearing +House _v._ Coyne, 194 U.S. 497, 508 (1904). + +[91] Ex parte Wall, 107 U.S. 265, 289 (1883). + +[92] Interstate Commerce Commission _v._ Brimson, 154 U.S. 447, 489 +(1894); Cooke _v._ United States, 267 U.S. 517, 537 (1925). + +[93] Ex parte Wall, 107 U.S. 265 (1883). + +[94] Reaves _v._ Ainsworth, 219 U.S. 296, 304 (1911). _See also_ Ex +parte Reed, 100 U.S. 13 (1879); Johnson _v._ Sayre, 158 U.S. 109 (1895); +Mullan _v._ United States, 212 U.S. 516 (1909); United States ex rel. +Creary _v._ Weeks, 259 U.S. 336 (1922). + +[95] Kahn _v._ Anderson, 255 U.S. 1 (1921). + +[96] Crain _v._ United States, 162 U.S. 625, 645 (1896). + +[97] Hopt _v._ Utah, 110 U.S. 574, 579 (1884). + +[98] Blackmer _v._ United States, 284 U.S. 421, 440 (1932). + +[99] Hovey _v._ Elliott, 167 U.S. 409, 417 (1897). + +[100] Beall _v._ New Mexico ex rel. Griffin, 16 Wall. 535 (1873). + +[101] United Surety Co. _v._ American Fruit Product Co., 238 U.S. 140 +(1915). + +[102] Helis _v._ Ward, 308 U.S. 365 (1939). + +[103] Fayerweather _v._ Ritch, 195 U.S. 276 (1904). + +[104] Hanover Nat. Bank _v._ Moyses, 186 U.S. 181, 192 (1902). + +[105] Parsons _v._ District of Columbia, 170 U.S. 45 (1898). + +[106] Wright _v._ Davidson, 181 U.S. 371 (1901). + +[107] Jones _v._ Buffalo Creek Coal & Coke Co., 245 U.S. 328 (1917). + +[108] Luria _v._ United States, 231 U.S. 9 (1913). + +[109] Yee Hem _v._ United States, 268 U.S. 178 (1925). + +[110] Tot _v._ United States, 319 U.S. 463 (1943). + +[111] Opp Cotton Mills _v._ Administrator, 312 U.S. 126, 152, 153 +(1941). + +[112] 321 U.S. 503 (1944). + +[113] Ibid. 521. + +[114] Consolidated Edison Co. _v._ National Labor Relations Board, 305 +U.S. 197 (1938). + +[115] Central of Georgia R. Co. _v._ Wright, 207 U.S. 127, 136, 138, 142 +(1907); Lipke _v._ Lederer, 259 U.S. 557, 562 (1922). + +[116] Phillips _v._ Comr. of Internal Revenue, 283 U.S. 589 (1931). +_Cf._ Springer _v._ United States, 102 U.S. 586, 593 (1881); and +Passavant _v._ United States, 148 U.S. 214 (1893). + +[117] Wong Yang Sung _v._ McGrath, 339 U.S. 33, 50 (1950). + +[118] Morgan _v._ United States, 304 U.S. 1, 18-19 (1938). + +[119] National Labor Relations Board _v._ Mackay Co., 304 U.S. 333, +349-350 (1938). + +[120] Western Paper Makers' Chemical Co. _v._ United States, 271 U.S. +268 (1926). _See also_ United States _v._ Abilene & S.R. Co., 265 U.S. +274, 288 (1924). + +[121] Consolidated Edison Co. _v._ National Labor Relations Board, 305 +U.S. 197, 229-230 (1938). + +[122] Londoner _v._ Denver, 210 U.S. 373 (1908). + +[123] Federal Communications Commission _v._ WJR, 337 U.S. 265, 274-277 +(1949). + +[124] Ibid. 276. "The requirements imposed by the guaranty [of due +process of law] are not technical, nor is any particular form of +procedure necessary." Inland Empire Council _v._ Millis, 325 U.S. 697, +710 (1945). _See_ Administrative Procedure Act, 60 Stat. 237 (1946); 5 +U.S.C. Sec. 1001-1011. + +[125] 298 U.S. 38 (1936). + +[126] Ibid. 51-54. Justices Brandeis, Stone and Cardozo, while +concurring in the result, took exception to this proposition. + +[127] Federal Power Commission _v._ Natural Gas Pipeline Co., 315 U.S. +575, 586 (1942); Federal Power Commission _v._ Hope Natural Gas Co., 320 +U.S. 591 (1944). + +[128] Federal Power Commission _v._ Hope Natural Gas Co., 320 U.S. 591, +602 (1944). + +[129] 327 U.S. 1 (1946). + +[130] 339 U.S. 103 (1950). + +[131] Ibid. 111. + +[132] 339 U.S. 703 (1950). Justices Black, Douglas and Burton dissented. + +[133] United States _v._ Ju Toy, 198 U.S. 253, 263 (1905). _See also_ +Yamataya _v._ Fisher, 189 U.S. 86, 100 (1903). _Cf._ United States ex +rel. Knauff _v._ Shaughnessy, 338 U.S. 537 (1950). + +[134] Oceanic Steam Navig. Co. _v._ Stranahan, 214 U.S. 320 (1909). + +[135] Kwock Jan Fat _v._ White, 253 U.S. 454, 457 (1920). _See also_ +Chin Yow _v._ United States, 208 U.S. 8 (1908). + +[136] United States _v._ Sing Tuck, 194 U.S. 161 (1904). _See also_ Quon +Quon Poy _v._ Johnson, 273 U.S. 352, 358 (1927). + +[137] Zakonaite _v._ Wolf, 226 U.S. 272 (1012). + +[138] 339 U.S. 33 (1950). + +[139] 60 Stat. 237 (1946); 5 U.S.C. Sec. 1001 _et seq._ (1946). + +[140] United States ex rel. Vajtauer _v._ Comr. of Immigration, 273 U.S. +103, 106 (1927). _See also_ Mahler _v._ Eby, 264 U.S. 32, 41 (1924). + +[141] 198 U.S. 253 (1905). + +[142] Ng Fung Ho _v._ White, 259 U.S. 276, 281 (1922). + +[143] Ludecke _v._ Watkins, 335 U.S. 160 (1948). Three of the four +dissenting Justices, Justices Douglas, Murphy and Rutledge, argued that +even an enemy alien could not be deported without a fair hearing. + +[144] Steward Machine Co. _v._ Davis, 301 U.S. 548, 584-585 (1937); +Currin _v._ Wallace, 306 U.S. 1, 14 (1939); Sunshine Anthracite Coal Co. +_v._ Adkins, 310 U.S. 381, 401 (1940); Detroit Bank _v._ United States, +317 U.S. 329, 337, 338 (1943). + +[145] Hill _v._ United States ex rel. Weiner, 300 U.S. 105, 109 (1937). + +[146] District of Columbia _v._ Brooke, 214 U.S. 138 (1909). + +[147] Panama R. Co. _v._ Johnson, 264 U.S. 375, 392 (1924). + +[148] United States _v._ Rock Royal Co-operative, 307 U.S. 533, 562, 565 +(1939). + +[149] Currin _v._ Wallace, 306 U.S. 1 (1939). + +[150] Detroit Bank _v._ United States, 317 U.S. 329 (1943). + +[151] Hurd _v._ Hodge, 334 U.S. 24 (1948). + +[152] Thiel _v._ Southern Pacific Co., 328 U.S. 217 (1946). + +[153] 323 U.S. 192 (1944). + +[154] Ibid. 198, 199. + +[155] Ibid. 208, 209. _Cf._ the following sentence from the concurring +opinion of Justice Jackson in Railway Express Agency, Inc. _v._ New +York, 336 U.S. 106, 112 (1949): "I regard it as a salutary doctrine that +cities, states and the Federal Government must exercise their powers so +as not to discriminate between their inhabitants except upon some +reasonable differentiation fairly related to the object of regulation." + +[156] 208 U.S. 161, 174 (1908). + +[157] 313 U.S. 177, 187 (1941). + +[158] 261 U.S. 525, 546 (1923). + +[159] 300 U.S. 379, 400 (1937). + +[160] Addyston Pipe and Steel Co. _v._ United States, 175 U.S. 211, 229 +(1899). + +[161] Baltimore & O.R. Co. _v._ Interstate Commerce Commission, 221 U.S. +612 (1911); Wilson _v._ New, 243 U.S. 322 (1917); Ellis _v._ United +States, 206 U.S. 246 (1907). _See also_ United States _v._ Garbish, 222 +U.S. 257 (1911). + +[162] Patterson _v._ The "Eudora," 190 U.S. 169 (1903). + +[163] Philadelphia, B. & W.R. Co. _v._ Schubert, 224 U.S. 603 (1912). + +[164] Texas & N.O.R. Co. _v._ Brotherhood of Railway & S.S. Clerks, 281 +U.S. 548 (1930); Virginian R. Co. _v._ System Federation, 300 U.S. 515, +559 (1937); National Labor Relations Board _v._ Jones & Laughlin Steel +Corp., 301 U.S. 1 (1937). + +[165] Highland _v._ Russell Car & Snow Plow Co., 279 U.S. 253, 261 +(1929); United States _v._ Rock Royal Co-operative, 307 U.S. 533 (1939); +Sunshine Anthracite Coal Co. _v._ Adkins, 310 U.S. 381 (1940); Bowles +_v._ Willingham, 321 U.S. 503 (1944). + +[166] Farrington _v._ Tokushige, 273 U.S. 284 (1927). + +[167] Yu Cong Eng _v._ Trinidad, 271 U.S. 500, 525 (1926). + +[168] Fleming _v._ Rhodes, 331 U.S. 100, 107 (1947). + +[169] Woods _v._ Stone, 333 U.S. 472 (1948). + +[170] 332 U.S. 194, 203 (1947). + +[171] Knox _v._ Lee, 12 Wall. 457, 551 (1871). + +[172] Norman _v._ Baltimore & O.R. Co., 294 U.S. 240 (1935). + +[173] 44 Stat. 1424 (1927), 33 U.S.C. 901 _et seq._ (1946). + +[174] Paramino Lumber Co. _v._ Marshall, 309 U.S. 370 (1940). + +[175] Mulford _v._ Smith, 307 U.S. 38 (1939). + +[176] McFaddin _v._ Evans-Snider-Buel Co., 185 U.S. 505 (1902). + +[177] Montoya _v._ Gonzales, 232 U.S. 375 (1914). + +[178] Ochoa _v._ Hernandez y Morales, 230 U.S. 139 (1913). + +[179] United States ex rel. Burnett _v._ Teller, 107 U.S. 64, 68 (1883). + +[180] Oregon & C.R. Co. _v._ United States, 243 U.S. 549 (1917). + +[181] Capital Trust Co. _v._ Calhoun, 250 U.S. 208 (1919). + +[182] Frisbie _v._ United States, 157 U.S. 160 (1895); _see also_ +Margolin _v._ United States, 269 U.S. 93 (1925); Hines _v._ Lowrey, 305 +U.S. 85 (1938). + +[183] Wickard _v._ Filburn, 317 U.S. 111 (1942). + +[184] Noble _v._ Union River Logging R. Co., 147 U.S. 165 (1893). + +[185] Danzer Co. _v._ Gulf & S.I.R. Co., 268 U.S. 633 (1925). + +[186] Lynch _v._ United States, 292 U.S. 571, 579 (1934). _See also_ +Perry _v._ United States, 294 U.S. 330 (1935). + +[187] Louisville Joint Stock Land Bank _v._ Radford, 295 U.S. 555 +(1935). + +[188] Wright _v._ Mountain Trust Co., 300 U.S. 440 (1937). + +[189] Continental Illinois Nat. Bank & Trust Co. _v._ Chicago R.I. & +P.R. Co., 294 U.S. 648 (1935). + +[190] Kuehner _v._ Irving Trust Co., 299 U.S. 445 (1937). + +[191] Re 620 Church Street Bldg. Corp., 299 U.S. 24 (1936). + +[192] Lynch _v._ United States, 292 U.S. 571, 581 (1934). + +[193] Dodge _v._ Osborn, 240 U.S. 118 (1916). + +[194] Graham _v._ Goodcell, 228 U.S. 409 (1931). + +[195] Anniston Mfg. Co. _v._ Davis, 301 U.S. 337 (1937). + +[196] United States _v._ Heinszen & Co., 206 U.S. 370, 386 (1907). + +[197] United States _v._ New York & C. Mail S.S. Co., 269 U.S. 304 +(1925). + +[198] United States _v._ Carolene Products Co., 304 U.S. 144 (1938); +Carolene Products Co. _v._ United States, 323 U.S. 18 (1944). + +[199] Kentucky Whip Collar Co. _v._ Illinois C.R. Co., 299 U.S. 334 +(1937). + +[200] Virginian R. Co. _v._ System Federation, 300 U.S. 515, 559 (1937); +National Labor Relations Board _v._ Jones & Laughlin Steel Corp., 301 +U.S. 1 (1937). + +[201] National Labor Relations Board _v._ Stowe Spinning Co., 336 U.S. +226 (1949). + +[202] National Labor Relations Board _v._ Mackay Co., 304 U.S. 333 +(1938). + +[203] Woods _v._ Miller, 333 U.S. 138, 146 (1948). _See also_ Bowles +_v._ Willingham, 321 U.S. 503 (1944). + +[204] Ex parte Jackson, 96 U.S. 727 (1878). + +[205] Public Clearing House _v._ Coyne, 194 U.S. 497 (1904); sustained +in Donaldson _v._ Read Magazine, 333 U.S. 178 (1948). + +[206] 194 U.S. 497, 505-506. + +[207] American School of Magnetic Healing _v._ McAnnulty, 187 U.S. 94 +(1902). + +[208] United States ex rel. Milwaukee Social Democratic Pub. Co. _v._ +Burleson, 255 U.S. 407 (1921). + +[209] St. Joseph Stock Yards Co. _v._ United States, 298 U.S. 38 (1936); +Denver Union Stock Yards Co. _v._ United States, 304 U.S. 470 (1938). + +[210] 320 U.S. 591 (1944). The result of this case had been foreshadowed +by the opinion of Justice Stone in Federal Power Commission _v._ Natural +Gas Pipeline Co., 315 U.S. 575, 586 (1942) to the effect that the +Commission was not bound to the use of any single formula or combination +of formulas in determining rates. + +[211] 320 U.S. 591, 602, 605 (1944). + +[212] American Telephone & Telegraph Co. _v._ United States, 299 U.S. +232 (1936); United States _v._ New York Telephone Co., 326 U.S. 638 +(1946); Northwestern Electric Co. _v._ Federal Power Commission, 321 +U.S. 119 (1944). + +[213] Valvoline Oil Co. _v._ United States, 308 U.S. 141 (1939); +Champlin Refining Co. _v._ United States, 329 U.S. 29 (1946). + +[214] Isbrandtsen-Moller Co. _v._ United States, 300 U.S. 139, 146 +(1937). + +[215] St. Louis S.W. Ry. Co. _v._ United States, 245 U.S. 136, 143 +(1917). + +[216] Akron C. & Y.R. Co. _v._ United States, 261 U.S. 184 (1923). + +[217] Dayton-Goose Creek R. Co. _v._ United States, 263 U.S. 456, 481, +483 (1924). + +[218] Chicago, I. & L.R. Co. _v._ United States, 270 U.S. 287 (1926). +_Cf._ Seaboard Air Line R. Co. _v._ United States, 254 U.S. 57 (1920). + +[219] United States _v._ Berwind-White Coal Mine Co., 274 U.S. 564, 575 +(1927). + +[220] United States ex rel. Attorney General _v._ Delaware & Hudson Co., +213 U.S. 366, 405, 411, 415 (1909). + +[221] United States _v._ Lowden, 308 U.S. 225 (1939). + +[222] Louisville & N.R. Co. _v._ Mottley, 219 U.S. 467 (1911). + +[223] Chicago, R.I. & P.R. Co. _v._ United States, 284 U.S. 80 (1931). + +[224] Railroad Retirement Board _v._ Alton R. Co., 295 U.S. 330 (1935). + +[225] United States _v._ Bennett, 232 U.S. 299, 307 (1914). + +[226] Cook _v._ Tait, 265 U.S. 47 (1924). + +[227] Helvering _v._ Lerner Stores Corp., 314 U.S. 463, 468 (1941). + +[228] Brushaber _v._ Union P.R. Co., 240 U.S. 1, 24 (1916). + +[229] McCray _v._ United States, 195 U.S. 27, 61 (1904). + +[230] Treat _v._ White, 181 U.S. 264 (1901). + +[231] Flint _v._ Stone Tracy Co., 220 U.S. 107 (1911). + +[232] National Paper & Type Co. _v._ Bowers, 266 U.S. 373 (1924). + +[233] Billings _v._ United States, 232 U.S. 261, 282 (1914). + +[234] Steward Machine Co. _v._ Davis, 301 U.S. 548 (1937); Helvering +_v._ Davis, 301 U.S. 619 (1937). + +[235] Bromley _v._ McCaughn, 280 U.S. 124 (1929). + +[236] Haavik _v._ Alaska Packers' Association, 263 U.S. 510 (1924). + +[237] Alaska Fish Salting & By-Products Co. _v._ Smith, 255 U.S. 44 +(1921). + +[238] La Belle Iron Works _v._ United States, 256 U.S. 377 (1921). + +[239] Helvering _v._ Northwest Steel Mills, 311 U.S. 46 (1940). + +[240] Fernandez _v._ Wiener, 326 U.S. 340 (1945); _cf._ Coolidge _v._ +Long, 282 U.S. 582 (1931). + +[241] Untermeyer _v._ Anderson, 276 U.S. 440 (1928). _See also_ Blodgett +_v._ Holden, 275 U.S. 142 (1927); Nichols _v._ Coolidge, 274 U.S. 531 +(1927). + +[242] Heiner _v._ Donnan, 285 U.S. 312 (1932). + +[243] United States _v._ Hudson, 299 U.S. 498 (1937). _See also_ +Stockdale _v._ Insurance Companies, 20 Wall. 323, 331, 341 (1874); +Brushaber _v._ Union Pac. R.R., 240 U.S. 1, 20 (1916); Lynch _v._ +Hornby, 247 U.S. 339, 343 (1918). + +[244] Cooper _v._ United States, 280 U.S. 409 (1930); _see also_ +Reinecke _v._ Smith, 289 U.S. 172 (1933). + +[245] Helvering _v._ Mitchell, 303 U.S. 391 (1938). + +[246] Helvering _v._ Nat. Grocery Co., 304 U.S. 282 (1938). + +[247] Patton _v._ Brady, 184 U.S. 608 (1902). + +[248] Tyler _v._ United States, 281 U.S. 497 (1930); United States _v._ +Jacobs, 306 U.S. 363 (1939). + +[249] Reinecke _v._ Smith, 289 U.S. 172 (1933). + +[250] Tiger _v._ Western Investment Co., 221 U.S. 286 (1911). _See also_ +Brader _v._ James, 246 U.S. 88 (1918); Williams _v._ Johnson, 239 U.S. +414 (1915); Lone Wolf _v._. Hitchcock, 187 U.S. 553 (1903). + +[251] Choate _v._ Trapp, 224 U.S. 665 (1912). _See also_ English _v._ +Richardson, 224 U.S. 680 (1912). + +[252] Garfield _v._ United States, 211 U.S. 249 (1908). _See also_ +United States ex rel. Turner _v._ Fisher, 222 U.S. 204 (1911). + +[253] Winton _v._ Amos, 255 U.S. 373 (1921). + +[254] United States ex rel. Brown _v._ Lane, 232 U.S. 598 (1914). + +[255] Walker _v._ McLoud, 204 U.S. 302, 309 (1907); Carpenter _v._ Shaw, +280 U.S. 363 (1930). + +[256] United States _v._ Jones, 109 U.S. 513, 518 (1883); United States +_v._ Carmack, 329 U.S. 230, 241 (1946). + +[257] United States _v._ Lynah, 188 U.S. 445, 465 (1903). + +[258] Kohl _v._ United States, 91 U.S. 367, 374 (1876). + +[259] Chappell _v._ United States, 160 U.S. 499, 510 (1896). + +[260] Oklahoma _v._ Atkinson Co., 313 U.S. 508, 534 (1941). + +[261] United States _v._ Chemical Foundation, 272 U.S. 1, 11 (1926). +_See also_ Brown _v._ U.S., 8 Cr. 110 (1814); Page (Miller) _v._ United +States, 11 Wall. 268, 304 (1871); Woodson _v._ Deutsche G. & S.S.V. +Roessler, 292 U.S. 449 (1934); United States _v._ Dunnington, 146 U.S. +338 (1892); Cummings _v._ Deutsche Bank, 300 U.S. 115 (1937). + +[262] Stoehr _v._ Wallace, 255 U.S. 239, 245 (1921). + +[263] Silesian-American Corp. _v._ Clark, 332 U.S. 469 (1947); Becker +Steel Co. _v._ Cummings, 296 U.S. 74 (1935). + +[264] Russian Volunteer Fleet _v._ United States, 282 U.S. 481 (1931), +followed in Guessefeldt _v._ McGrath, 342 U.S. 308 (1952). + +[265] Shoemaker _v._ United States, 147 U.S. 282, 298 (1893). + +[266] 327 U.S. 546 (1946). + +[267] Ibid. 551. + +[268] Ibid. 556-557; citing United States _v._ Gettysburg Electric R. +Co., 160 U.S. 668, 680 (1896); Rindge Co. _v._ Los Angeles County, 262 +U.S. 700, 709 (1923); Old Dominion Land Co. _v._ United States, 269 U.S. +55, 66 (1925); Cincinnati _v._ Vester, 281 U.S. 439, 446 (1930). + +[269] 327 U.S. 546, 557-558. + +[270] United States _v._ Gettysburg Electric R. Co., 160 U.S. 668 +(1896). + +[271] Brown _v._ United States, 263 U.S. 78 (1923). + +[272] Monongahela Nav. Co. _v._ United States, 148 U.S. 312, 345 (1893). + +[273] James _v._ Campbell, 104 U.S. 356, 358 (1882). _See also_ +Hollister _v._ Benedict & B. Mfg. Co., 113 U.S. 59, 67 (1885). + +[274] Omnia Commercial Co. _v._ United States, 261 U.S. 502 (1923). + +[275] International Paper Co. _v._ United States, 282 U.S. 399 (1931). + +[276] Hannibal Bridge Co. _v._ United States, 221 U.S. 194, 205 (1911). + +[277] Old Dominion Land Co. _v._ United States, 269 U.S. 55 (1925). + +[278] United States _v._ Sponenbarger, 308 U.S. 256 (1939). + +[279] 12 Wall. 457, 551 (1871). + +[280] 331 U.S. 745 (1947). + +[281] Ibid. 748. + +[282] United States _v._ Causby, 328 U.S. 256 (1946). + +[283] Portsmouth Harbor Land & Hotel Co. _v._ United States, 260 U.S. +327 (1922). _Cf._ Portsmouth Harbor Land & Hotel Co. _v._ United States, +250 U.S. 1 (1919); Peabody _v._ United States, 231 U.S. 530 (1913). + +[284] Richards _v._ Washington Terminal Co., 233 U.S. 546 (1914). + +[285] Gibson _v._ United States, 166 U.S. 269, 271, 272 (1897). + +[286] 10 Wall. 557 (1871). + +[287] Ibid. 563. + +[288] United States _v._ Appalachian Electric Power Co., 311 U.S. 377, +407, 409 (1940). + +[289] Oklahoma _v._ Atkinson Co., 313 U.S. 508, 523 (1941). + +[290] United States _v._ Commodore Park, Inc., 324 U.S. 386 (1945). + +[291] Lewis Blue Point Oyster Cultivation Co. _v._ Briggs, 229 U.S. 82 +(1913). + +[292] United States _v._ Chandler-Dunbar Co., 229 U.S. 53 (1913). + +[293] United States _v._ Willow River Power Co., 324 U.S. 499 (1945). + +[294] United States _v._ Appalachian Electric Power Co., 311 U.S. 377, +427 (1940). + +[295] United States _v._ Lynah, 188 U.S. 445 (1903). _See also_ Jacobs +_v._ United States, 290 U.S. 13 (1933). + +[296] United States _v._ Cress, 243 U.S. 316, 328, 329 (1917). + +[297] United States _v._ Dickinson, 331 U.S. 745 (1947). + +[298] United States _v._ Kansas City Ins. Co., 339 U.S. 799 (1950). + +[299] United States _v._ Cress, 243 U.S. 316 (1917). + +[300] Horstmann Co. _v._ United States, 257 U.S. 138 (1921). + +[301] Bauman _v._ Ross, 167 U.S. 548 (1897); Sharp _v._ United States, +191 U.S. 341, 351-352, 354 (1903). + +[302] United States _v._ Welch, 217 U.S. 333 (1910). + +[303] Bauman _v._ Ross, 167 U.S. 548 (1897). + +[304] Monongahela Nav. Co. _v._ United States, 148 U.S. 312, 326 (1893). + +[305] Reichelderfer _v._ Quinn, 287 U.S. 315, 318 (1932). + +[306] Sharp _v._ United States, 191 U.S. 341 (1903). + +[307] Monongahela Nav. Co. _v._ United States, 148 U.S. 312, 326 (1893). + +[308] United States ex rel. T.V.A. _v._ Powelson, 319 U.S. 266, 281 +(1943); United States _v._ Miller, 317 U.S. 369, 375 (1943). + +[309] United States ex rel. T.V.A. _v._ Powelson, 319 U.S. 266, 275 +(1943); United States _v._ New River Collieries Co., 262 U.S. 341 +(1923). + +[310] United States _v._ Miller, 317 U.S. 369, 374 (1943). _See also_ +Olson _v._ United States, 292 U.S. 246 (1934). _Cf._ Kimball Laundry Co. +_v._ United States, 338 U.S. 1 (1949). + +[311] Boom Co. _v._ Patterson, 98 U.S. 403 (1879); McCandless _v._ +United States, 298 U.S. 342 (1936). + +[312] United States _v._ Chandler-Dunbar Co., 229 U.S. 53 (1913). + +[313] United States _v._ John J. Felin & Co., 334 U.S. 624 (1948). + +[314] United States _v._ Commodities Trading Corp., 339 U.S. 121 (1950). + +[315] United States _v._ Cors, 337 U.S. 325, 333 (1949). In United +States _v._ Toronto Nav Co., 338 U.S. 396 (1949) the Court reversed a +decision of the Court of Claims which based an award for an obsolete +Great Lakes car ferry in part on a capitalization of its prior earnings, +and in part on isolated sales of similar vessels used between Florida +and Cuba. + +[316] Mitchell _v._ United States, 267 U.S. 341 (1925). + +[317] United States _v._ General Motors Corp., 323 U.S. 373, 379 (1945). + +[318] Ibid. 382-384. + +[319] United States _v._ Petty Motor Co., 327 U.S. 372 (1946). + +[320] 338 U.S. 1 (1949). + +[321] 341 U.S. 114 (1951). + +[322] Danforth _v._ United States, 308 U.S. 271, 284 (1939). + +[323] United States _v._ Klamath Indians, 304 U.S. 119, 123 (1938); +Jacobs _v._ United States, 290 U.S. 13, 17 (1933). + +[324] Albrecht _v._ United States, 329 U.S. 599 (1947). + +[325] Henkels _v._ Sutherland, 271 U.S. 298 (1926). _See also_ Phelps +_v._ United States, 274 U.S. 341 (1927). + +[326] Monongahela Nav. Co. _v._ United States, 148 U.S. 312, 327 (1893). + +[327] United States _v._ Jones, 109 U.S. 513, 519 (1883). + +[328] Bauman _v._ Ross, 167 U.S. 548, 593 (1897). + +[329] United States _v._ Lee, 106 U.S. 196, 220 (1882). + +[330] Jacobs _v._ United States, 290 U.S. 13 (1933); United States _v._ +Great Falls Mfg. Co., 112 U.S. 645 (1884). + +[331] Hurley _v._ Kincaid, 285 U.S. 95 (1932). + +[332] Cherokee Nation _v._ Southern Kansas R. Co., 135 U.S. 641, 659 +(1890). + +[333] United States _v._ Russell, 13 Wall. 623 (1871). + +[334] Shoemaker _v._ United States, 147 U.S. 282, 302 (1893). + + + + +AMENDMENT 6 + +RIGHTS OF ACCUSED IN CRIMINAL PROSECUTIONS + + + Page +Coverage of the amendment 877 +Offenses against the United States 877 +Trial by jury 878 +Impartial jury 879 +Place of trial 880 +Definition of crime 881 +Right of confrontation 884 +Assistance of counsel 884 + + +RIGHTS OF ACCUSED IN CRIMINAL PROSECUTIONS + + +Amendment 6 + +In all criminal prosecutions, the accused shall enjoy the right to a +speedy and public trial, by an impartial jury of the State and district +wherein the crime shall have been committed, which district shall have +been previously ascertained by law, and to be informed of the nature and +cause of the accusation; to be confronted with the witnesses against +him; to have compulsory process for obtaining witnesses in his favor, +and to have the Assistance of Counsel for his defense. + + +Coverage of the Amendment + +Criminal prosecutions in the District of Columbia[1] and in incorporated +territories[2] must conform to this amendment, but those in +unincorporated territories need not.[3] For this purpose, Alaska was +held to be an incorporated territory even before the organization of its +territorial government.[4] In in re Ross[5] the requirements of this +amendment were held to cover only citizens and others within the United +States or who are brought to the United States for trial for alleged +offenses committed elsewhere, not to citizens residing or temporarily +sojourning abroad.[6] Accordingly, laws passed to carry into effect +treaties granting extraterritorial rights were not rendered +unconstitutional by the fact that they did not secure to an accused the +right to trial by jury. + + +Offenses Against the United States + +There are no common law offenses against the United States. Only those +acts which Congress has forbidden, with penalties for disobedience of +its command, are crimes.[7] As used in the Constitution the word +"crime" embraces only offenses of a serious character. Petty offenses +may be proceeded against summarily in any tribunal legally constituted +for that purpose.[8] The nature of the act and the severity of +punishment prescribed determine whether an offense is serious or petty. +A penalty of $50 for a violation, not necessarily involving moral +delinquency, of a revenue statute indicates only a petty offense.[9] The +unlawful sale of the unused portion of railway excursion tickets without +a license, is at most an infringement of local police regulations; and +its moral quality is relatively inoffensive; it may therefore be tried +without a jury.[10] But a charge of driving an automobile recklessly, so +as to endanger life and property, is a "grave offense" for which a jury +trial is requisite.[11] A conspiracy to invade the rights of another +person also falls in that category.[12] + +Actions to recover penalties imposed by act of Congress,[13] deportation +proceedings[14] and contempt proceedings[15] for violation of an +injunction have been held not to be criminal prosecutions. Only a +prosecution which is technically criminal in its nature falls within the +purview of Amendment VI.[16] The concept of a criminal prosecution is +much narrower than that of a "criminal case" under the Fifth +Amendment.[17] + + +Trial by Jury + +The trial by jury required by the Constitution includes all the +essential elements of jury trial which were recognized in this country +and in England when the Constitution was adopted;[18] a jury must +consist of twelve men, neither more nor less;[19] the trial must be held +in the presence and under the superintendence of a judge having power to +instruct the jurors as to the law and advise them in respect of the +facts,[20] and the verdict must be unanimous.[21] But the requirement of +a jury trial is not jurisdictional; it is a privilege which the +defendant may waive with the consent of the Government and the approval +of the court. There is no distinction between a complete waiver of a +jury and a consent to be tried by less than twelve men.[22] When a +person is charged with more than one crime, the right to a speedy trial +does not require that he be first tried on the earliest indictment; no +constitutional right is violated by removing him to another jurisdiction +for trial on a later indictment.[23] + + +Impartial Jury + +"* * *, the guarantee of an impartial jury to the accused in a criminal +prosecution, * * *, secures to him the right to enjoy that mode of trial +from the first moment, and in whatever court, he is put on trial for the +offense charged. * * * To accord to the accused a right to be tried by a +jury, in an appellate court, after he has been once fully tried +otherwise than by a jury, in the court of original jurisdiction, and +sentenced to pay a fine or be imprisoned for not paying it, does not +satisfy the requirements of the Constitution."[24] + +The qualification of government employees to serve on juries in the +District of Columbia has been the principal source of controversy +concerning the meaning of the phrase "impartial jury." In 1909, the +Supreme Court decided, on common law grounds, that such employees were +disqualified in criminal proceedings instituted by the Government.[25] +As the proportion of public to private employees increased, this +decision created difficulties in securing properly qualified jurors. To +meet the situation, Congress removed the disqualification by statute in +1935. In United States _v._ Wood,[26] the act was held valid as applied +in a criminal prosecution for theft from a private corporation. By a +narrow majority the Court has subsequently held that government +employees as a class are not disqualified by an implied bias against a +person accused of violating the federal narcotics statutes,[27] nor +against an officer of the Communist party charged with willful failure +to appear before a Congressional committee in compliance with a +subpoena.[28] In both cases, the way was left open for a defendant to +establish the disqualification of federal employees by adducing proof of +actual bias. + +The Constitution does not require Congress to allow peremptory +challenge to jurors in criminal cases. Consequently the contention that +several defendants being tried together on a charge of conspiracy were +denied a trial by an impartial jury because each was not allowed the +full statutory number of peremptory challenges was without merit.[29] It +is good ground for challenge for cause that a juror has formed an +opinion as to the issue to be tried. But every opinion which a juror may +entertain does not necessarily disqualify him. Upon the trial of the +issue of fact raised by such a challenge, the Court must determine +whether the nature and strength of the opinion are such as in law +necessary to raise the presumption of partiality.[30] A member of the +Socialist party is not denied any constitutional right by being tried by +a jury composed exclusively of members of other parties and of property +owners.[31] + + +Place of Trial + +An accused cannot be tried in one district under an indictment showing +that the offense was committed in another;[32] the locality in which the +offense is charged to have been committed determines the place and court +of trial.[33] In a prosecution for conspiracy, the accused may be tried +in any State and district where an overt act was performed.[34] Where a +United States Senator was indicted for agreeing to receive compensation +for services to be rendered in a proceeding before a government +department, and it appeared that a tentative arrangement for such +services was made in Illinois and confirmed in St. Louis, the defendant +was properly tried in St. Louis, although he was not physically present +in Missouri when notice of ratification was dispatched.[35] The offense +of obtaining transportation of property in interstate commerce at less +than the carrier's published rates,[36] or the sending of excluded +matter through the mails,[37] may be made triable in any district +through which the forbidden transportation is conducted. By virtue of a +presumption that a letter is delivered in the district to which it is +addressed, the offense of scheming to defraud a corporation by mail was +held to have been committed in that district although the letter was +posted elsewhere.[38] The Constitution does not require any preliminary +hearing before issuance of a warrant for removal of an accused to the +court having jurisdiction of the charge.[39] The assignment of a +district judge from one district to another, conformably to statute, +does not create a new judicial district whose boundaries are undefined +nor subject the accused to trial in a district not established when the +offense with which he is charged was committed.[40] For offenses against +federal laws not committed within any State, Congress has the sole power +to prescribe the place of trial; such an offense is not local and may be +tried at such place as Congress may designate.[41] The place of trial +may be designated by statute after the offense has been committed.[42] + + +Definition of Crime + +The effect of the clause entitling an accused to know the nature and +cause of the accusation against him commences with the statutes fixing +or declaring offenses. It adopts the general rule of the common law that +such statutes are not to be construed to embrace offenses which are not +within their intention and terms. Under this clause it is necessary that +a crime "be in some way declared by the legislative power"; it "cannot +be constructed by the courts from any supposed intention of the +legislature which the statute fails to state."[43] A criminal statute +which is so vague that it leaves the standard of guilt to the "variant +views of the different courts and juries which may be called on to +enforce it"[44] cannot be squared with this provision. Thus it was held, +in the United States v. Cohen Grocery Co.,[45] that a statute making it +unlawful "for any person willfully * * * to make any unjust or +unreasonable rate or charge in handling or dealing in or with any +necessaries" was unconstitutional because it was not "adequate to inform +persons accused of violation thereof of the nature and cause of the +accusation against them."[46] But a provision of the Immigration Act[47] +which makes it a felony for an alien against whom a specified order of +deportation is pending to "willfully fail or refuse to make timely +application in good faith for travel or other documents necessary to his +departure" is not, on its face, void for indefiniteness.[48] + +An important aspect of this problem was presented, but not definitely +settled, in Screws _v._ United States.[49] There State law enforcement +officers had been convicted of violating a federal law making it a crime +for anyone acting under color of any law willfully to deprive anyone of +rights secured by the Constitution of the United States.[50] The +indictment charged that in beating to death a man whom they had just +arrested, these officers had deprived him of life without due process of +law. The defendant claimed that the statute was unconstitutional insofar +as it made criminal acts in violation of the due process clause, because +that concept was too vague to supply an ascertainable standard of +guilt.[51] Four opinions were written in the Supreme Court, no one of +which obtained the concurrence of a majority of the Justices. To "avoid +grave constitutional questions" four members construed the word +"willfully" as "connoting a purpose to deprive a person of a specific +constitutional right,"[52] and held that such "requirement of a specific +intent to deprive a person of a federal right made definite by decision +or other rule of law saves the Act from any charge of +unconstitutionality on the grounds of vagueness."[53] Justices Murphy +and Rutledge considered the statute to be sufficiently definite with +respect to the offense charged and thought it unnecessary to anticipate +doubts that might arise in other cases.[54] However, to prevent a +stalemate, Justice Rutledge voted with the four members who believed the +case should be reversed to be tried again on their narrower +interpretation of the statute. Justices Roberts, Frankfurter and Jackson +found the act too indefinite to be rescued by a restrictive +interpretation. With respect to the effect of the requirement of +willfulness, they said: "If a statute does not satisfy the due-process +requirement of giving decent advance notice of what it is which, if +happening, will be visited with punishment, so that men may presumably +have an opportunity to avoid the happening * * *, then 'willfully' +bringing to pass such an undefined and too uncertain event cannot make +it sufficiently definite and ascertainable. 'Willfully' doing something +that is forbidden, when that something is not sufficiently defined +according to the general conceptions of requisite certainty in our +criminal law, is not rendered sufficiently definite by that unknowable +having been done 'willfully.' It is true also of a statute that it +cannot lift itself up by its bootstraps."[55] In Williams _v._ United +States,[56] however, it was held by a sharply divided Court that Sec. 20 +did not err for vagueness where the indictment made it clear that the +constitutional right violated by the defendant was immunity from the use +of force and violence to obtain a confession, and this meaning was also +made clear by the trial judge's charge to the jury.[57] + +Statutes prohibiting the coercion of employers to hire unneeded +employees,[58] establishing minimum wages and maximum hours of service +for persons engaged in the production of goods for interstate +commerce,[59] forbidding undue or unreasonable restraints of trade,[60] +making it unlawful to build fires near any forest or inflammable +material,[61] banning the receipt of contributions by members of +Congress from federal employees for any political purpose,[62] or +penalizing the copying or taking of documents connected with the +national defense, with intent, or reason to believe that they are to be +used to the injury of the United States or to the advantage of a foreign +nation,[63] have been held to be sufficiently definite to be +constitutional. A provision penalizing excessive charges in connection +with loans from the Home Owners Loan Corporation was not rendered +indefinite by the exception of "ordinary fees for services actually +rendered,"[64] nor was a statute forbidding misstatement of the quantity +of the contents of a package wanting in certainty by reason of a proviso +permitting "reasonable variations."[65] + +The constitutional right to be informed of the nature and cause of the +accusation entitles the defendant to insist that the indictment apprise +him of the crime charged with such reasonable certainty that he can make +his defense and protect himself after judgment against another +prosecution on the same charge.[66] No indictment is sufficient if it +does not allege all of the ingredients which constitute the crime. Where +the language of a statute is, according to the natural import of the +words, fully descriptive of the offense, it is sufficient if the +indictment follows the statutory phraseology;[67] but where the elements +of the crime have to be ascertained by reference to the common law or to +other statutes, it is not sufficient to set forth the offense in the +words of the statute; the facts necessary to bring the case within the +statutory definition must also be alleged.[68] If an offense cannot be +accurately and clearly described without an allegation that the accused +is not within an exception contained in the statutes, an indictment +which does not contain such allegation is defective.[69] Despite the +omission of obscene particulars, an indictment in general language is +good if the unlawful conduct is so described so as reasonably to inform +the accused of the nature of the charge sought to be established against +him.[70] The Constitution does not require the Government to furnish a +copy of the indictment to an accused.[71] + + +Right of Confrontation + +The right of confrontation did not originate in the Sixth Amendment; it +was a common law right having recognized exceptions. The purpose of the +constitutional provision was to preserve that right, but not to broaden +it or wipe out the exceptions.[72] The amendment does not accord a right +to be apprised of the names of witnesses who appeared before a grand +jury.[73] It does not preclude the admission of dying declarations,[74] +nor of the stenographic report of testimony given at a former trial by a +witness since deceased.[75] An accused who is instrumental in concealing +a witness cannot complain of the admission of evidence to prove what +that witness testified at a former trial on a different indictment.[76] +If the absence of the witness is chargeable to the negligence of the +prosecution, rather than to the procurement of the accused, evidence +given in a preliminary hearing before a United States Commissioner +cannot be used at the trial.[77] A statute which declared that the +judgment of conviction against the principal felons should be conclusive +evidence, in a prosecution against persons to whom they had transferred +property, that the property had been stolen or embezzled from the United +States, was held to contravene this clause.[78] + + +Assistance of Counsel + +The Sixth Amendment withholds from the federal courts, in all criminal +proceedings, the power to deprive an accused of his life or liberty +unless he has waived, or waives, the assistance of counsel.[79] Since +deportation proceedings are not criminal in character, the admission of +testimony given by the alien during investigation prior to arrest did +not render the hearing unfair, despite the fact that he had not been +advised of his right to have counsel or to decline to answer questions +as to his alienage.[80] The right to counsel is violated where, over the +defendant's objection, the court requires his counsel to represent a +co-defendant whose interest may possibly conflict with his;[81] likewise +where the trial judge decided, without notice to a defendant and without +his presence, that the latter had consented to be represented by counsel +who also represented another defendant in the same case.[82] The right +may be waived by a defendant whose education qualifies him to make an +intelligent choice.[83] A sentence imposed upon a plea of guilty is +invalid if such plea was entered through deception or coercion of the +prosecuting attorney, or in reliance upon erroneous advice given by a +lawyer in the employ of the Government, where the defendant did not have +the assistance of counsel and had not understandingly waived the right +to such assistance.[84] + + +Notes + +[1] Callan _v._ Wilson, 127 U.S. 540 (1888). + +[2] Reynolds _v._ United States, 98 U.S. 145 (1879). _See also_ Lovato +_v._ New Mexico, 242 U.S. 199 (1916). + +[3] Balzac _v._ Porto Rico, 258 U.S. 298, 304-305 (1922). + +[4] Rassmussen _v._ United States, 197 U.S. 516 (1905). + +[5] 140 U.S. 453 (1891). + +[6] Ibid. 464. + +[7] United States _v._ Hudson & Goodwin, 7 Cr. 32, 33 (1812); United +States _v._ Coolidge, 1 Wheat. 415 (1816); United States _v._ Britton, +108 U.S. 199, 206 (1883); United States _v._ Eaton, 144 U.S. 677, 687 +(1892). + +[8] Callan _v._ Wilson, 127 U.S. 540, 552 (1888). + +[9] Schick _v._ United States, 195 U.S. 65, 68 (1904). + +[10] District of Columbia _v._ Clawans, 300 U.S. 617 (1937). + +[11] District of Columbia _v._ Colts, 282 U.S. 63 (1930). + +[12] Callan _v._ Wilson, 127 U.S. 540 (1888). + +[13] Oceanic Navigation Co. _v._ Stranahan, 214 U.S. 320 (1909); Hepner +_v._ United States, 213 U.S. 103 (1909); United States _v._ Regan, 232 +U.S. 37 (1914). + +[14] United States ex rel. Turner _v._ Williams, 194 U.S. 279, 289 +(1904); Zakonaite _v._ Wolf, 226 U.S. 272 (1912). + +[15] In re Debs, 158 U.S. 564, 594 (1895); Gompers _v._ United States, +233 U.S. 604 (1914); Myers _v._ United States, 264 U.S. 95 (1924). + +[16] United States _v._ Zucker, 161 U.S. 475, 481 (1896). + +[17] Counselman _v._ Hitchcock, 142 U.S. 547, 563 (1892). + +[18] Patton _v._ United States, 281 U.S. 276 (1930). + +[19] Thompson _v._ Utah, 170 U.S. 343, 350 (1898); Rassmussen _v._ +United States, 197 U.S. 518 (1905). + +[20] Capital Traction Co. _v._ Hof, 174 U.S. 1, 13 (1899). + +[21] Maxwell _v._ Dow, 176 U.S. 581, 586 (1900); Andres _v._ United +States, 333 U.S. 740 (1948). + +[22] Patton _v._ United States, 281 U.S. 276 (1930). + +[23] Beavers _v._ Haubert, 198 U.S. 77 (1905). + +[24] Callan _v._ Wilson, 127 U.S. 540, 557 (1888). + +[25] Crawford _v._ United States, 212 U.S. 183 (1909). + +[26] 299 U.S. 123 (1936). + +[27] Frazier _v._ United States, 335 U.S. 497 (1948). + +[28] Dennis _v._ United States, 339 U.S. 162 (1950). + +[29] Stilson _v._ United States, 250 U.S. 583, 586 (1919). + +[30] Reynolds _v._ United States, 98 U.S. 145 (1879). + +[31] Ruthenberg _v._ United States, 245 U.S. 480 (1918). + +[32] Salinger _v._ Loisel, 265 U.S. 224 (1924). + +[33] Beavers _v._ Henkel, 194 U.S. 73, 83 (1904). + +[34] Brown _v._ Elliott, 225 U.S. 392 (1912); Hyde _v._ United States, +225 U.S. 347 (1912); Haas _v._ Henkel, 216 U.S. 462 (1910). + +[35] Burton _v._ United States, 202 U.S. 344 (1906). + +[36] Armour Packing Co. _v._ United States, 209 U.S. 56 (1908). + +[37] United States _v._ Johnson, 323 U.S. 273, 274 (1944). + +[38] Hagner _v._ United States, 285 U.S. 427, 429 (1932). + +[39] Hughes _v._ Gault, 271 U.S. 142 (1926). _Cf._ Tinsley _v._ Treat, +205 U.S. 20 (1907); Beavers _v._ Henkel, 194 U.S. 73, 84 (1904). + +[40] Lamar _v._ United States, 241 U.S. 103 (1916). + +[41] Jones _v._ United States, 137 U.S. 202, 211 (1890); United States +_v._ Dawson, 15 How. 467, 488 (1853). + +[42] Cook _v._ United States, 138 U.S. 157, 182 (1891). _See also_ +United States _v._ Socony-Vacuum Oil Co., 310 U.S. 150, 250-254 (1940); +_also_ United States _v._ Johnson, 323 U.S. 273 (1944). + +[43] United States _v._ Potter, 56 F. 83, 88 (1892). _See also_ Viereck +_v._ United States, 318 U.S. 236 (1943); Kraus Bros. _v._ United States, +327 U.S. 614, 621 (1946). + +[44] United States _v._ Cohen Grocery Co., 264 F. 218, 220 (1920), +affirmed 255 U.S. 81 (1921). + +[45] 255 U.S. 81 (1921). + +[46] Ibid. 89. + +[47] 8 U.S.C. Sec. 145 (c). + +[48] United States _v._ Spector, 343 U.S. 169 (1952). + +[49] 325 U.S. 91 (1945). + +[50] Section 20 of the Criminal Code; 18 U.S.C. Sec. 242. + +[51] 325 U.S. 91, 94, 95. + +[52] Ibid. 101. + +[53] Ibid. 103. + +[54] Ibid. 113, 135. + +[55] Ibid. 154. + +[56] 341 U.S. 97 (1951). + +[57] _See also_ Koehler et al. _v._ United States, 342 U.S. 852 (1951). + +[58] United States _v._ Petrillo, 332 U.S. 1 (1947). + +[59] United States _v._ Darby, 312 U.S. 100, 125 (1941). + +[60] Nash _v._ United States, 229 U.S. 373 (1913). + +[61] United States _v._ Alford, 274 U.S. 264 (1927). + +[62] United States _v._ Wurzbach, 280 U.S. 396 (1930). + +[63] Gorin _v._ United States, 312 U.S. 19 (1941). + +[64] Kay _v._ United States, 303 U.S. 1 (1938). + +[65] United States _v._ Shreveport Grain & Elevator Co., 287 U.S. 77 +(1932). + +[66] United States _v._ Cruikshank, 92 U.S. 542, 544, 558 (1876); United +States _v._ Simmons, 96 U.S. 360 (1878); Bartell _v._ United States, 227 +U.S. 427 (1913); Burton _v._ United States, 202 U.S. 344 (1906). + +[67] Potter _v._ United States, 155 U.S. 438, 444 (1894). + +[68] United States _v._ Carll, 105 U.S. 611 (1882). + +[69] United States _v._ Cook, 17 Wall. 168, 174 (1872). + +[70] Rosen _v._ United States, 161 U.S. 29, 40 (1896). + +[71] United States _v._ Van Duzee, 140 U.S. 169, 173 (1891). + +[72] Salinger _v._ United States, 272 U.S. 542, 548 (1926). + +[73] Wilson _v._ United States, 221 U.S. 361 (1911). + +[74] Kirby _v._ United States, 174 U.S. 47, 61 (1809); Robertson _v._ +Baldwin, 165 U.S. 275, 282 (1897). + +[75] Mattox _v._ United States, 156 U.S. 237, 240 (1895). + +[76] Reynolds _v._ United States, 98 U.S. 145, 160 (1879). + +[77] Motes _v._ United States, 178 U.S. 458 (1900). + +[78] Kirby _v._ United States, 174 U.S. 47 (1899). + +[79] Johnson _v._ Zerbst, 304 U.S. 458, 463 (1938). + +[80] United States ex rel. Bilokumsky _v._ Tod, 263 U.S. 149 (1923). + +[81] Glasser _v._ United States, 315 U.S. 60 (1942). + +[82] United States _v._ Hayman, 342 U.S. 205 (1952). + +[83] Adams _v._ United States, 317 U.S. 269 (1942). + +[84] Walker _v._ Johnston, 312 U.S. 275 (1941); Von Moltke _v._ Gillies, +332 U.S. 708 (1948). _See also_ United States ex rel. McCann _v._ Adams, +320 U.S. 220 (1943). + + + + +AMENDMENT 7 + +CIVIL TRIALS + + + Page +Trial by jury in civil cases 891 + Origin and purpose of the amendment 891 + Trial by jury, elements of, preserved 891 + To what courts and cases applicable 892 + Cases not governed by the amendment 893 + Restrictive force of the amendment 894 +Judge and jury 895 + Line drawn by the common law 895 + Directed verdicts 896 + Waiver of right of trial by jury 897 + Appeals from State courts to the Supreme Court 897 + + +CIVIL TRIALS + + +Amendment 7 + +In Suits at common law, where the value in controversy shall exceed +twenty dollars, the right of trial by jury shall be preserved, and no +fact tried by a jury, shall be otherwise re-examined in any Court of the +United States, than according to the rules of the common law. + + +Trial by Jury in Civil Cases + + +ORIGIN AND PURPOSE OF THE AMENDMENT + +Late in the Federal Convention it was moved that a clause be inserted in +article III, section 2 of the draft Constitution to read "* * * and a +trial by jury shall be preserved as usual in civil cases." The proposal +failed when it was pointed out that the make-up and powers of juries +differed greatly in different States and that a uniform provision for +all States was impossible.[1] The objection evidently anticipated that +in cases falling to their jurisdiction on account of the diversity of +citizenship of the parties, the federal courts would conform their +procedure to the laws of the several States.[2] The omission, however, +raised an objection to the Constitution which "was pressed with an +urgency and zeal * * * well-nigh preventing its ratification."[3] Nor +was the agitation assuaged by Hamilton's suggestion in The Federalist +that Congress would have ample power, in establishing the lower federal +courts and in making "exceptions" to the Supreme Court's appellate +jurisdiction, to safeguard jury trial in civil cases according to the +standards of the common law.[4] His argument bore fruit, nevertheless, +in the Seventh Amendment, whereby, in the words of the Court, the right +of trial by jury is preserved as it "existed under the English common +law when the amendment was adopted."[5] + + +TRIAL BY JURY, ELEMENTS OF, PRESERVED + +"Trial by jury," in the sense of Amendment VII, "is a trial by a jury of +twelve men, in the presence and under the superintendence of a judge +empowered to instruct them on the law and to advise them on the facts +and (except in acquittal of a criminal charge) to set aside their +verdict if in his opinion it is against the law or the evidence."[6] A +further requisite is "that there shall be a unanimous verdict of the +twelve jurors in all federal courts where a jury trial is held."[7] +Assuming such a jury, the amendment has for its primary purpose the +preservation of "* * * the common law distinction between the province +of the court and that of the jury, whereby, in the absence of express or +implied consent to the contrary, issues of law are resolved by the court +and issues of fact are to be determined by the jury under appropriate +instructions by the court."[8] But the amendment "does not exact the +retention of old forms of procedure" nor does it "prohibit the +introduction of new methods of ascertaining what facts are in issue +* * *" or new rules of evidence.[9] + + +TO WHAT COURTS AND CASES APPLICABLE + +Amendment VII governs only courts which sit under the authority of the +United States,[10] including courts in the territories[11] and the +District of Columbia.[12] It does not apply to a State court even when +it is enforcing a right created by federal statute.[13] Its coverage is +"* * * limited to rights and remedies peculiarly legal in their nature, +and such as it was proper to assert in courts of law and by the +appropriate modes and proceedings of courts of law."[14] The term +"common law" is used in contradistinction to suits in which equitable +rights alone were recognized at the time of the framing of the amendment +and equitable remedies were administered.[15] Hence it does not apply to +cases where recovery of money damages is incident to equitable relief +even though damages might have been recovered in an action at law.[16] +Nor does it apply to cases in admiralty and maritime jurisdiction, in +which the trial is by a court without a jury.[17] Nor does it reach +statutory proceedings unknown to the common law, such as an application +to a court of equity to enforce an order of an administrative body.[18] + + +CASES NOT GOVERNED BY THE AMENDMENT + +Omission of a jury has been upheld in the following instances on the +ground that the suit in question was not a suit at common law within the +meaning of the Seventh Amendment; + +(1) Suits to enforce claims against the United States.[19] + +(2) Suit authorized by Territorial law against a municipality, based +upon a moral obligation only.[20] + +(3) Suit to cancel a naturalization certificate for fraud.[21] + +(4) Order of deportation of an alien.[22] + +(5) Assessment of damages in patent infringement suit.[23] + +(6) Longshoremen's and Harbor Workers' Compensation Act.[24] + +(7) Jurisdiction of bankruptcy court to examine into reasonableness of +fees paid by person for legal services in contemplation of +bankruptcy.[25] + +(8) Final decision of customs appraisers in regard to value of +imports.[26] + +It has been further held that there was no infringement of the +constitutional right to trial by jury in the following circumstances: + +(1) A territorial statute requiring specific answers to special +interrogations, in addition to a general verdict.[27] + +(2) A rule of a District of Columbia court authorizing judgment by +default in an action _ex contractu_, on failure to show by affidavit a +good defense.[28] + +(3) A federal court's observance of a State statute making a certified +copy of a coroner's verdict _prima facie_ evidence of the facts +stated.[29] + +(4) A federal statute (24 Stat. 379) giving _prima facie_ effect to +findings of the Interstate Commerce Commission.[30] + +(5) An order of a District of Columbia court appointing an auditor in a +law case to examine books and papers, make computations, hear testimony, +and render a report which will serve as _prima facie_ evidence of the +facts found and conclusions reached, unless rejected by the court.[31] + +(6) A decree of the Supreme Court enjoining, in the exercise of its +original jurisdiction, the State of Louisiana from continuing to +trespass upon lands under the ocean beyond its coasts and requiring the +State to account for the money derived from that area.[32] + + +RESTRICTIVE FORCE OF THE AMENDMENT + +But the absolute right to a trial of the facts by a jury may not be +impaired by any blending with a claim, properly cognizable at law, of a +demand for equitable relief in aid of the legal action or during its +pendency. Such aid in the federal courts must be sought in separate +proceedings.[33] Federal statutes from Revised Statutes (Sec. 723) through +the Judicial Code (Sec. 267), prohibiting courts of the United States to +sustain suits in equity where the remedy is complete at law, serve to +guard the right of trial by jury, and should be liberally construed.[34] +So also should Equity Rule 30, requiring the answer to a bill in equity +to state any counterclaim arising out of the same transaction; such rule +was not intended to change the line between law and equity, and must be +construed as referring to equitable counterclaims only.[35] Nor may the +distinction between law and equity, so far as federal courts are +concerned, be obliterated by State legislation.[36] So, where State law, +in advance of judgment, treated the whole proceeding upon a simple +contract, including determination of validity and of amount due, as an +equitable proceeding, it brought the case within the federal equity +jurisdiction on removal. Ascertainment of plaintiff's demand being +properly by action at law, however, the fact that the equity court had +power to summon a jury on occasion did not afford an equivalent of the +right of trial by jury secured by the Seventh Amendment.[37] But where +State law gives an equitable remedy, such as to quiet title to land, the +federal courts will enforce it if it does not obstruct the rights of the +parties as to trial by jury.[38] An order of the Court of Claims +attempting to reinstate a dismissed case in violation of plaintiff's +right to dismiss violates the latter's right to trial by jury and may be +corrected by mandamus.[39] + + +Judge and Jury + + +LINE DRAWN BY THE COMMON LAW + +As was noted above, the primary purpose of the amendment was to preserve +the historic line separating the province of the jury from that of the +judge, without at the same time preventing procedural improvement which +did not transgress this line. Elucidating this formula, the Court has +achieved the following results: It is constitutional for a federal +judge, in the course of trial, to express his opinion upon the facts, +provided all questions of fact are ultimately submitted to the jury;[40] +to call the jury's attention to parts of the evidence he deems of +special importance,[41] being careful to distinguish between matters of +law and matters of opinion in relation thereto;[42] to inform the jury +when there is not sufficient evidence to justify a verdict, that such is +the case;[43] to direct the jury, after plaintiff's case is all in, to +return a verdict for the defendant on the ground of the insufficiency of +the evidence;[44] to set aside a verdict which in his opinion is against +the law or the evidence, and order a new trial;[45] to refuse defendant +a new trial on the condition, accepted by plaintiff, that the latter +remit a portion of the damages awarded him;[46] but not, on the other +hand, to deny plaintiff a new trial on the converse condition, although +defendant accepted it.[47] + + +DIRECTED VERDICTS + +In 1913 the Court held, in Slocum _v._ New York Life Insurance +Company,[48] that where upon the evidence a federal trial court, sitting +in New York, ought to have directed a verdict for one party but the jury +found for the other contrary to the evidence, the amendment rendered it +improper for a federal appeals court to order, in accordance with New +York practice, the entry of a judgment contrary to the verdict; that the +only course open to either court was to order a new trial. While plainly +in accordance with the common law as it stood in 1791, the decision was +five-to-four and was subjected to a heavy fire of professional criticism +urging the convenience of the thing and the theory of the capacity of +the common law for growth.[49] It has, moreover, been impaired, if not +completely undermined by certain more recent holdings. In the first of +these,[50] in which the same Justice spoke for the Court as in the +Slocum Case, it was held that a trial court had the right to enter a +judgment on the verdict of the jury for the plaintiff after overruling a +motion by defendant for dismissal on the ground of insufficient +evidence. The Court owned that its ruling was out of line with some of +its expressions in the Slocum Case.[51] In the second case[52] the Court +sustained a United States district court in Arkansas, in an action +between parties of diverse citizenship, in rejecting a motion by +defendant for dismissal and peremptorily directing a verdict for the +plaintiff. The Supreme Court held that there was ample evidence to +support the verdict and that the trial court, in following Arkansas +procedure, had acted consistently with the Federal Conformity Act.[53] +In the third case,[54] which involved an action against the Government +for benefits under a war risk insurance policy which had been allowed to +lapse, the trial court directed a verdict for the Government on the +ground of the insufficiency of the evidence and was sustained in so +doing by both the circuit court of appeals and the Supreme Court. Three +Justices, speaking by Justice Black, dissented in an opinion in which it +is asserted that "today's decision marks a continuation of the gradual +process of judicial erosion which in one-hundred-fifty years has slowly +worn away a major portion of the essential guarantee of the Seventh +Amendment."[55] That the Court should experience occasional difficulty +in harmonizing the idea of preserving the historic common law covering +the relations of judge and jury with the notion of a developing common +law is not surprising. + + +WAIVER OF RIGHT OF TRIAL BY JURY + +Parties have a right to enter into a stipulation waiving a jury and +submitting the case to the court upon an agreed statement of facts, even +without any legislative provision for waiver.[56] "* * * Congress has, +by statute, provided for the trial of issues of fact in civil cases by +the court without the intervention of a jury, only when the parties +waive their right to a jury by a stipulation in writing. Revised +Statutes sections 648, 649."[57] This statutory provision for a written +stipulation, however, does not preclude other kinds of waivers.[58] But +every reasonable presumption should be indulged against a waiver.[59] +None is to be implied from a request for a directed verdict.[60] + + +APPEALS FROM STATE COURTS TO THE SUPREME COURT + +The last clause of Amendment VII is not restricted in its application to +suits at common law tried before juries in United States courts. It +applies equally to a case tried before a jury in a State court and +brought to the United States Supreme Court on appeal.[61] + + +Notes + +[1] 2 Farrand, Records, 628. + +[2] _See_ Federal Conformity Act, 28 U.S.C.A. Sec. 724. + +[3] 2 Story, Commentaries on the Constitution, Sec. 1763. + +[4] Federalist, Nos. 81 and 83. + +[5] Baltimore & C. Line _v._ Redman, 295 U.S. 654, 657 (1935); Parsons +_v._ Bedford, 3 Pet. 433, 446-448 (1830). + +[6] Capital Traction Co. _v._ Hof, 174 U.S. 1, 13, 14 (1899). Here it +was held that a civil trial before a justice of the peace in the +District of Columbia, although by a jury of twelve men, was not a jury +trial in the sense of Amendment VII. + +[7] Maxwell _v._ Dow, 176 U.S. 581, 586 (1900). _See also_ American +Publishing Co. _v._ Fisher, 166 U.S. 464 (1897); Springville _v._ +Thomas, 166 U.S. 707 (1897); Andres _v._ United States, 333 U.S. 740, +748 (1948). + +[8] Baltimore & C. Line _v._ Redman, 295 U.S. 654, 657 (1935); Walker +_v._ New Mexico, & S.P.R. Co., 165 U.S. 593, 596 (1897); Gasoline +Products Co. _v._ Champlin Ref. Co., 283 U.S. 494, 497-499 (1931); +Dimick _v._ Schiedt, 293 U.S. 474, 476, 485-486 (1935). + +[9] Gasoline Products Co. _v._ Champlin Ref. Co., 283 U.S. 494, 498 +(1931); Ex parte Peterson, 253 U.S. 300, 309 (1920). + +[10] Pearson _v._ Yewdall, 95 U.S. 294, 296 (1877). _See also_ Edwards +_v._ Elliott, 21 Wall. 532, 557 (1874); Justices of the Sup. Ct. _v._ +United States ex rel. Murray, 9 Wall. 274, 277 (1870); Walker _v._ +Sauvinet, 92 U.S. 90 (1876); St. Louis & K.C. Land Co. _v._ Kansas City, +241 U.S. 419 (1916). + +[11] Webster _v._ Reid, 11 How. 437, 460 (1851); Kennon _v._ Gilmer, 131 +U.S. 22, 28 (1889). + +[12] Capital Traction Co. _v._ Hof, 174 U.S. 1, 5 (1899). + +[13] Minneapolis & St. L.R. Co. _v._ Bombolis, 241 U.S. 211 (1916), +which involved The Federal Employers Liability Act of 1908. The ruling +is followed in four other cases in the same volume. _See_ ibid. 241, +261, 485 and 494. + +[14] Shields _v._ Thomas, 18 How. 253, 262 (1856). + +[15] Parsons _v._ Bedford, 3 Pet. 433, 447 (1830); Barton _v._ Barbour, +104 U.S. 126, 133 (1881). + +[16] Clark _v._ Wooster, 119 U.S. 322, 325 (1886); Pease _v._ +Rathbun-Jones Eng. Co., 243 U.S. 273, 279 (1917). + +[17] Parsons _v._ Bedford, above; Waring _v._ Clarke, 5 How. 441, 460 +(1847). _See also_ The "Sarah," 8 Wheat. 390, 391 (1823), and cases +there cited. + +[18] Labor Board _v._ Jones & Laughlin, 301 U.S. 1, 48 (1937). _See +also_ Interstate Commerce Commission _v._ Brimson, 154 U.S. 447, 488 +(1894); Yakus _v._ United States, 321 U.S. 414, 447 (1944). + +[19] McElrath _v._ United States, 102 U.S. 426, 440 (1880). _See also_ +Galloway _v._ United States, 319 U.S. 372, 388 (1943). + +[20] Guthrie Nat. Bank _v._ Guthrie, 173 U.S. 528, 534 (1899). _See +also_ United States _v._ Realty Co., 163 U.S. 427, 439 (1896); Jefferson +City Gaslight Co. _v._ Clark, 95 U.S. 644, 653 (1877). + +[21] Luria _v._ United States, 231 U.S. 9, 27 (1913). + +[22] Gee Wah Lee _v._ United States, 25 F. (2d) 107 (1928); certiorari +denied, 277 U.S. 608 (1928). + +[23] Filer & S. Co. _v._ Diamond Iron Works, 270 F. 489 (1921); +certiorari denied, 256 U.S. 691 (1921). + +[24] Crowell _v._ Benson, 285 U.S. 22, 45 (1932). + +[25] In re Wood and Henderson, 210 U.S. 246 (1908). + +[26] Auffmordt _v._ Hedden, 137 U.S. 310, 329 (1890). + +[27] Walker _v._ New Mexico & S.P.R. Co., 165 U.S. 593, 598 (1897). + +[28] Fidelity & D. Co. _v._ United States, 187 U.S. 315, 320 (1902). + +[29] Jensen _v._ Continental Life Ins. Co., 28 F. (2d) 545 (1928), +certiorari denied, 279 U.S. 842 (1929). + +[30] Meeker _v._ Lehigh Valley R. Co., 236 U.S. 434, 439 (1915). + +[31] Ex parte Peterson, 253 U.S. 300 (1920). + +[32] United States _v._ Louisiana, 339 U.S. 699 (1950). + +[33] Scott _v._ Neely, 140 U.S. 106, 109 (1891). _See also_ Bennett _v._ +Butterworth, 11 How. 669 (1850); Hipp _v._ Babin, 19 How. 271, 278 +(1857); Lewis _v._ Cocks, 23 Wall. 466, 470 (1874); Killian _v._ +Ebbinghaus, 110 U.S. 568, 573 (1884); Buzard _v._ Houston, 119 U.S. 347, +351 (1886). + +[34] Schoenthal _v._ Irving Trust Co., 287 U.S. 92, 94 (1932). + +[35] American Mills Co. _v._ American Surety Co., 260 U.S. 360, 364 +(1922). _See also_ Stamey _v._ United States, 37 F. (2d) 188 (1929). + +[36] Thompson _v._ Central Ohio R. Co., 6 Wall. 134 (1868). + +[37] Whitehead _v._ Shattuck, 138 U.S. 146 (1891); Buzard _v._ Houston, +119 U.S. 347 (1886); Greeley _v._ Lowe, 155 U.S. 58, 75 (1894). + +[38] Clark _v._ Smith, 13 Pet. 195 (1839); Holland _v._ Challen, 110 +U.S. 15 (1884); Reynolds _v._ Crawfordsville First Nat. Bank, 112 U.S. +405 (1884); Chapman _v._ Brewer, 114 U.S. 158 (1885); Cummings _v._ +Merchants Nat. Bank, 101 U.S. 153, 157 (1880); United States _v._ +Landram, 118 U.S. 81 (1886); More _v._ Steinbach, 127 U.S. 70 (1888). +_Cf._ Re Simons, 247 U.S. 231 (1918). + +[39] Ex parte Skinner & Eddy Corp., 265 U.S. 86, 96 (1924). + +[40] Vicksburg & M.R. Co. _v._ Putnam, 118 U.S. 545, 553 (1886); United +States _v._ Reading Railroad, 123 U.S. 113, 114 (1887). + +[41] 118 U.S. 545; where are cited Carver _v._ Jackson ex dem. Astor et +al., 4 Pet. 1, 80 (1830); Magniac _v._ Thompson, 7 Pet. 348, 390 (1833); +Mitchell _v._ Harmony, 13 How. 115, 131 (1852); Transportation Line _v._ +Hope, 95 U.S. 297, 302 (1877). + +[42] Games _v._ Dunn, 14 Pet. 322, 327 (1840). + +[43] Sparf _v._ United States, 156 U.S. 51, 99-100 (1895); Pleasants +_v._ Fant, 22 Wall. 116, 121 (1875); Randall _v._ Baltimore & Ohio R.R. +Co., 109 U.S. 478, 482 (1883); Meehan _v._ Valentine, 145 U.S. 611, 625 +(1892); Coughran _v._ Bigelow, 164 U.S. 301 (1896). + +[44] Treat Mfg. Co. _v._ Standard Steel & Iron Co., 157 U.S. 674 (1895); +Randall _v._ Baltimore & Ohio R.R. Co., 109 U.S. 478, 482 (1883) and +cases there cited. + +[45] Capital Traction Co. _v._ Hof, 174 U.S. 1, 13 (1899). + +[46] Arkansas Land & Cattle Co. _v._ Mann, 130 U.S. 69, 74 (1889). + +[47] Dimick _v._ Schiedt, 293 U.S. 474, 476-478 (1935). + +[48] 228 U.S. 364 (1913). + +[49] _See_ Austin Wakeman Scott, Fundamentals of Procedure in Actions at +Law (1922), 103 and articles there cited. + +[50] Baltimore & C. Line _v._ Redman, 295 U.S. 654 (1935). + +[51] Ibid. 661. + +[52] Lyon _v._ Mutual Benefit Assn., 305 U.S. 484 (1939). + +[53] 28 U.S.C.A. Sec. 724. + +[54] Galloway _v._ United States, 319 U.S. 372 (1943). + +[55] Ibid. 397. As a matter of fact, the case being a claim against the +United States need not have been tried by a jury except for the +allowance of Congress. + +[56] Henderson's Distilled Spirits, 14 Wall. 44, 53 (1872). _See also_ +Rogers _v._ United States, 141 U.S. 548, 554 (1891); Parsons _v._ Armor, +3 Pet. 413 (1830); Campbell _v._ Boyreau, 21 How. 223 (1859). + +[57] Baylis _v._ Travelers' Ins. Co., 113 U.S. 316, 321 (1885), holding +it error for a judge, in absence of any waiver, to find the facts and +render judgment thereon. + +[58] Duignan _v._ United States, 274 U.S. 195, 198 (1927), holding jury +trial waived by an appearance and participation in the trial without +demanding a jury. + +[59] Hodges _v._ Easton, 106 U.S. 408, 412 (1883). + +[60] Aetna Insurance Co. _v._ Kennedy, 301 U.S. 389 (1937). + +[61] _See_ Justices of the Sup. Ct. _v._ United States ex rel. Murray, 9 +Wall. 274 (1870); Chicago, B. & Q.R. Co. _v._ Chicago, 166 U.S. 226, 242 +(1897). + + + + +AMENDMENT 8 + +BAIL, FINES, AND OTHER PUNISHMENT FOR CRIME + + + Page +Excessive bail 903 +Excessive fines 904 +Cruel and unusual punishments 904 + + +PUNISHMENT FOR CRIME + + +Amendment 8 + +Excessive bail shall not be required, nor excessive fines imposed, nor +cruel and unusual punishments inflicted. + + +When the Bill of Rights was being debated in Congress, two members took +exception to this proposal. One "objected to the words 'nor cruel and +unusual punishment,' the import of them being too indefinite."[1] +Another leveled a similar criticism at the entire amendment; "What is +meant by the terms excessive bail? Who are to be the judges? What is +understood by excessive fines? It lies with the court to determine. No +cruel and unusual punishment is to be inflicted; it is sometimes +necessary to hang a man, villains often deserve whipping, and perhaps +having their ears cut off; but are we in future to be prevented from +inflicting these punishments because they are cruel? If a more lenient +mode of correcting vice and deterring others from the commission of it +could be invented, it would be very prudent in the Legislature to adopt +it; but until we have some security that this will be done, we ought not +to be restrained from making necessary laws by any declaration of this +kind."[2] + + +Excessive Bail + +A United States District Court fixed the bail of twelve persons who were +arrested on charge of conspiring to violate the Smith Act[3] at $50,000 +each. This was on the theory advanced by the Government that each +petitioner was a pawn in a conspiracy and in obedience to a superior +would flee the jurisdiction, a theory to support which no evidence was +introduced. The Court held that bail set before trial at a figure higher +than reasonably calculated to assure the presence of defendant at his +trial is "excessive" in the sense of the Eighth Amendment, and that the +case of each defendant must be determined on its merits. Bail of larger +amount than that usually fixed for serious crimes must be justified by +evidence to the point.[4] But the power of the Attorney General, under +Sec. 23 of the Internal Security Act of 1950,[5] to hold in custody without +bail, at his discretion, pending determination as to their +deportability, aliens who are members of the Communist Party of the +United States, is not unconstitutional.[6] + + +Excessive Fines + +The Supreme Court has had little to say with reference to excessive +fines or bail. In an early case it held that it had no appellate +jurisdiction to revise the sentence of an inferior court, even though +the excessiveness of the fine was apparent on the face of the record.[7] +In a dissenting opinion in United States ex rel. Milwaukee Publishing +Co. _v._ Burleson,[8] Justice Brandeis intimated that the additional +mailing costs incurred by a newspaper to which the second-class mailing +privilege had been denied constituted, in effect, a fine for a past +offense which, since it was made to grow indefinitely each day, was an +unusual punishment interdicted by the Constitution.[9] + + +Cruel and Unusual Punishments + +The ban against "cruel and unusual punishment" has received somewhat +greater attention. In Wilkerson _v._ Utah[10] the Court observed that: +"Difficulty would attend the effort to define with exactness the extent +of the constitutional provision which provides that cruel and unusual +punishments shall not be inflicted, but it is safe to affirm that +punishments of torture, ... and all others in the same line of +unnecessary cruelty, are forbidden by that Amendment to the +Constitution."[11] Shooting as a mode of executing the death penalty was +sustained over the objection that it was cruel and unusual. + +A partially successful effort has been made to enlarge the concept of +unusual punishment to cover penalties which shock the sense of justice +by their absolute or relative severity. Justice Field pointed the way +for this development in his dissenting opinion in O'Neil _v._ +Vermont,[12] wherein the majority refused to apply the Eighth Amendment +to a State. With the concurrence of two other Justices he wrote that the +amendment was directed "against all punishments which by their excessive +length or severity are greatly disproportioned to the offenses +charged."[13] Eighteen years later a divided Court condemned a +Philippine statute prescribing fine and imprisonment of from twelve to +twenty years for entry of a known false statement in a public record, on +the ground that the gross disparity between this punishment and that +imposed for other more serious fines made it cruel and unusual, and as +such, repugnant to the Bill of Rights.[14] No constitutional infirmity +was discovered in a measure punishing as a separate offense each act of +placing a letter in the mails in pursuance of a single scheme to +defraud.[15] + + +Notes + +[1] 1 Annals of Congress 754 (1791). + +[2] Ibid. + +[3] 18 U.S.C. Sec. 371, 2385. + +[4] Stack _v._ Boyle, 342 U.S. 1 (1951). + +[5] 8 U.S.C.A. Sec. 156 (a) (1); 64 Stat. 1011. + +[6] Carlson _v._ Landon, 342 U.S. 524 (1952). + +[7] Ex parte Watkins, 7 Pet. 568, 574 (1833). + +[8] 255 U.S. 407 (1921). + +[9] Ibid. 435. + +[10] 99 U.S. 130 (1879). + +[11] Ibid. 135. + +[12] 144 U.S. 323 (1892). + +[13] Ibid. 339, 340. + +[14] Weems _v._ United States, 217 U.S. 349, 371, 382 (1910). + +[15] Badders _v._ United States, 240 U.S. 391 (1916). _Cf._ Donaldson +_v._ Read Magazine, 333 U.S. 178, 191 (1948). + + + + +AMENDMENT 9 + +RIGHTS RETAINED BY THE PEOPLE + + +Amendment 9 + +The enumeration in the Constitution, of certain rights, shall not be +construed to deny or disparage others retained by the people. + + +The only right which the Supreme Court has explicitly acknowledged as +protected by this amendment is the right to engage in political +activity. That recognition was accorded by way of _dictum_ in United +Public Workers _v._ Mitchell, where the powers of Congress to restrict +the political activities of federal employees was sustained.[1] An +argument that the competition of the TVA in selling electricity at rates +lower than those previously charged by private companies serving the +area amounted to an indirect regulation of the rates of those companies +and a destruction of the liberty said to be guaranteed by the Ninth +Amendment to the people of the States to acquire property and employ it +in a lawful business, was summarily rejected.[2] Previously the Court +had upheld the right of the TVA to sell electricity, saying that the +Ninth Amendment did not withdraw the right expressly granted by section +3 of article IV to dispose of property belonging to the United +States.[3] + + +Notes + +[1] 330 U.S. 75, 94 (1947). + +[2] Tennessee Electric Power Co. _v._ T.V.A., 306 U.S. 118, 143, 144 +(1939). + +[3] Ashwander _v._ T.V.A., 297 U.S. 288, 330, 331 (1936). _See also_ the +language of Justice Chase in Calder _v._ Bull, 3 Dall. 386, 388 (1798); +and of Justice Miller for the Court in Loan Asso. _v._ Topeka, 20 Wall. +655, 662-663 (1874). + + + + +AMENDMENT 10 + +RESERVED STATE POWERS + + + Page +Scope and purpose 915 +The taxing power 916 +The commerce power 917 +Police power 918 +State activities and instrumentalities 919 + + +RESERVED STATE POWERS + + +Amendment 10 + +The powers not delegated to the United States by the Constitution, nor +prohibited by it to the States, are reserved to the States respectively, +or to the people. + + +Scope and Purpose + +"The Tenth Amendment was intended to confirm the understanding of the +people at the time the Constitution was adopted, that powers not granted +to the United States were reserved to the States or to the people. It +added nothing to the instrument as originally ratified * * *."[1] That +this provision was not conceived to be a yardstick for measuring the +powers granted to the Federal Government or reserved to the States was +clearly indicated by its sponsor, James Madison, in the course of the +debate which took place while the amendment was pending concerning +Hamilton's proposal to establish a national bank. He declared that: +"Interference with the power of the States was no constitutional +criterion of the power of Congress. If the power was not given, Congress +could not exercise it; if given, they might exercise it, although it +should interfere with the laws, or even the Constitutions of the +States."[2] Nevertheless, for approximately a century, from the death of +Marshall until 1937, the Tenth Amendment was frequently invoked to +curtail powers expressly granted to Congress, notably the powers to +regulate interstate commerce, to enforce the Fourteenth Amendment and to +lay and collect taxes. + +The first, and logically the strongest, effort to set up the Tenth +Amendment as a limitation on federal power was directed to the expansion +of that power by virtue of the necessary and proper clause. In McCulloch +_v._ Maryland,[3] the Attorney-General of Maryland cited the charges +made by the enemies of the Constitution that it contained "* * * a vast +variety of powers, lurking under the generality of its phraseology, +which would prove highly dangerous to the liberties of the people, and +the rights of the states, * * *" and he cited the adoption of the Tenth +Amendment to allay these apprehensions, in support of his contention +that the power to create corporations was reserved by that amendment to +the States.[4] Stressing the fact that this amendment, unlike the +cognate section of the Articles of Confederation, omitted the word +"expressly" as a qualification of the powers granted to the National +Government, Chief Justice Marshall declared that its effect was to leave +the question "whether the particular power which may become the subject +of contest has been delegated to the one government, or prohibited to +the other, to depend upon a fair construction of the whole +instrument."[5] + + +The Taxing Power + +Not until after the Civil War was the idea that the reserved powers of +the States comprise an independent qualification of otherwise +constitutional acts of the Federal Government actually applied to +nullify, in part, an act of Congress. This result was first reached in a +tax case--Collector _v._ Day.[6] Holding that a national income tax, in +itself valid, could not be constitutionally levied upon the official +salaries of State officers, Justice Nelson made the sweeping statement +that "* * * the States within the limits of their powers not granted, +or, in the language of the Tenth Amendment, 'reserved,' are as +independent of the general government as that government within its +sphere is independent of the States."[7] In 1939, Collector _v._ Day was +expressly overruled.[8] Nevertheless, the problem of reconciling State +and national interests still confronts the Court occasionally, and was +elaborately considered in New York _v._ United States,[9] where, by a +vote of six-to-two, the Court upheld the right of the United States to +tax the sale of mineral waters taken from property owned by a State. +Speaking for four members of the Court, Chief Justice Stone justified +the tax on the ground that "The national taxing power would be unduly +curtailed if the State, by extending its activities, could withdraw from +it subjects of taxation traditionally within it."[10] Justices +Frankfurter and Rutledge found in the Tenth Amendment "* * * no +restriction upon Congress to include the States in levying a tax exacted +equally from private persons upon the same subject matter."[11] Justices +Douglas and Black dissented, saying: "If the power of the federal +government to tax the States is conceded, the reserved power of the +States guaranteed by the Tenth Amendment does not give them the +independence which they have always been assumed to have."[12] + + +The Commerce Power + +A year before Collector _v._ Day was decided, the Court held invalid, +except as applied in the District of Columbia and other areas over which +Congress has exclusive authority, a federal statute penalizing the sale +of dangerous illuminating oils.[13] The Court did not refer to the Tenth +Amendment. Instead, it asserted that the "* * * express grant of power +to regulate commerce among the States has always been understood as +limited by its terms; and as a virtual denial of any power to interfere +with the internal trade and business of the separate States; except, +indeed, as a necessary and proper means for carrying into execution some +other power expressly granted or vested."[14] Similarly, in the +Employers' Liability Cases,[15] an act of Congress making every carrier +engaged in interstate commerce liable to "any" employee, including those +whose activities related solely to intrastate activities, for injuries +caused by negligence, was held unconstitutional by a closely divided +Court, without explicit reliance on the Tenth Amendment. Not until it +was confronted with the Child Labor Law, which prohibited the +transportation in interstate commerce of goods produced in +establishments in which child labor was employed, did the Court hold +that the State police power was an obstacle to adoption of a measure +which operated directly and immediately upon interstate commerce. In +Hammer _v._ Dagenhart,[16] five members of the Court found in the Tenth +Amendment a mandate to nullify this law as an unwarranted invasion of +the reserved powers of the States. This decision was expressly overruled +in United States _v._ Darby.[17] + +During the twenty years following Hammer _v._ Dagenhart, a variety of +measures designed to regulate economic activities, directly or +indirectly, were held void on similar grounds. Excise taxes on the +profits of factories in which child labor was employed,[18] on the sale +of grain futures on markets which failed to comply with federal +regulations,[19] on the sale of coal produced by nonmembers of a coal +code established as a part of a federal regulatory scheme,[20] and a tax +on the processing of agricultural products, the proceeds of which were +paid to farmers who complied with production limitations imposed by the +Federal Government,[21] were all found to invade the reserved powers of +the States. In Schechter Poultry Corporation _v._ United States[22] the +Court, after holding that the commerce power did not extend to local +sales of poultry, cited the Tenth Amendment to refute the argument that +the existence of an economic emergency justified the exercise of what +Chief Justice Hughes called "extraconstitutional authority."[23] + +In 1941 the Court came full circle in its exposition of this amendment. +Having returned to the position of John Marshall four years earlier when +it sustained the Social Security[24] and National Labor Relations +Acts,[25] it explicitly restated Marshall's thesis in upholding the Fair +Labor Standards Act in United States _v._ Darby.[26] Speaking for a +unanimous Court, Chief Justice Stone wrote: "The power of Congress over +interstate commerce 'is complete in itself, may be exercised to its +utmost extent, and acknowledges no limitations other than are prescribed +in the Constitution.' * * * That power can neither be enlarged nor +diminished by the exercise or non-exercise of state power. * * * It is +no objection to the assertion of the power to regulate interstate +commerce that its exercise is attended by the same incidents which +attend the exercise of the police power of the states. * * * Our +conclusion is unaffected by the Tenth Amendment which * * * states but a +truism that all is retained which has not been surrendered."[27] + + +Police Power + +But even prior to 1937 not all measures taken to promote objectives +which had traditionally been regarded as the responsibilities of the +States had been held invalid. In Hamilton _v._ Kentucky Distilleries +Co.,[28] a unanimous Court, speaking by Justice Brandeis, upheld "War +Prohibition", saying: "That the United States lacks the police power, +and that this was reserved to the States by the Tenth Amendment, is +true. But it is none the less true that when the United States exerts +any of the powers conferred upon it by the Constitution, no valid +objection can be based upon the fact that such exercise may be attended +by the same incidents which attend the exercise by a State of its police +power."[29] And in a series of cases, which today seem irreconcilable +with Hammer _v._ Dagenhart, it sustained federal laws penalizing the +interstate transportation of lottery tickets,[30] of women for immoral +purposes,[31] of stolen automobiles,[32] and of tick-infested +cattle.[33] It affirmed the power of Congress to punish the forgery of +bills of lading purporting to cover interstate shipments of +merchandise,[34] to subject prison made goods moved from one State to +another to the laws of the receiving State,[35] and to regulate +prescriptions for the medicinal use of liquor as an appropriate measure +for the enforcement of the Eighteenth Amendment.[36] But while Congress +might thus prevent the use of the channels of interstate commerce to +frustrate State law, it could not itself, the Court held, undertake to +punish a violation of that law by discriminatory taxation; and in United +States _v._ Constantine,[37] a grossly disproportionate excise tax +imposed on retail liquor dealers carrying on business in violation of +local law was held unconstitutional. + + +State Activities and Instrumentalities + +Today it is apparent that the Tenth Amendment does not shield the States +nor their political subdivisions from the impact of the authority +affirmatively granted to the Federal Government. It was cited to no +avail in Case _v._ Bowles,[38] where a State officer was enjoined from +selling timber on school lands at a price in excess of the maximum +prescribed by the Office of Price Administration. When California +violated the Federal Safety Appliance Act in the operation of the State +Belt Railroad as a common carrier in interstate commerce it was held +liable for the statutory penalty.[39] At the suit of the Attorney +General of the United States, the Sanitary District of Chicago was +enjoined from diverting water from Lake Michigan in excess of a +specified rate. On behalf of a unanimous court, Justice Holmes wrote: +"This is not a controversy among equals. The United States is asserting +its sovereign power to regulate commerce and to control the navigable +waters within its jurisdiction. * * * There is no question that this +power is superior to that of the States to provide for the welfare or +necessities of their inhabitants."[40] Some years earlier, in a suit +brought by Kansas to prevent Colorado from using the waters of the +Arkansas River for irrigation, the Attorney General of the United States +had unsuccessfully advanced the claim that the Federal Government had an +inherent legislative authority to deal with the matter. In a petition to +intervene in the suit he had taken the position, as summarized by the +Supreme Court, that "the National Government * * * has the right to make +such legislative provision as in its judgment is needful for the +reclamation of all these arid lands and for that purpose to appropriate +the accessible waters. * * * All legislative power must be vested in +either the state or the National Government; no legislative powers +belong to a state government other than those which affect solely the +internal affairs of that State; consequently all powers which are +national in their scope must be found vested in the Congress of the +United States."[41] The petition to intervene was dismissed on the +ground that the authority claimed for the Federal Government was +incompatible with the Tenth Amendment; but this could hardly happen +today.[42] Under its superior power of eminent domain, the United States +may condemn land owned by a State even where the taking will interfere +with the State's own project for water development and conservation.[43] +The rights reserved to the States are not invaded by a statute which +requires a reduction in the amount of a federal grant-in-aid of the +construction of highways upon failure of a State to remove from office a +member of the State Highway Commission found to have violated federal +law by participating in a political campaign.[44] + +Federal legislation frequently has been challenged as an +unconstitutional interference with the prerogative of the States to +control the entities they create, but the attack has been successful +only once, in Hopkins Federal Savings and Loan Association _v._ +Cleary.[45] There an act of Congress authorizing the conversion of State +building and loan associations without State consent was found to +contravene the Tenth Amendment. Thirty years earlier, in Northern +Securities Co. _v._ United States,[46] a closely divided Court had ruled +that this amendment was no barrier to the application of the Sherman +Antitrust Act to prevent one corporation from restraining commerce by +means of stock ownership in two competing corporations. It announced the +general proposition that: "No State can, by merely creating a +corporation, or in any other mode, project its authority into other +States, and across the continent, so as to prevent Congress from +exerting the power it possesses under the Constitution over interstate +and international commerce, or so as to exempt its corporation engaged +in interstate commerce from obedience to any rule lawfully established +by Congress for such commerce. It cannot be said that any State may give +a corporation, created under its laws, authority to restrain interstate +or international commerce against the will of the nation as lawfully +expressed by Congress. Every corporation created by a State is +necessarily subject to the supreme law of the land."[47] Even a charter +contract between a State and an intrastate railroad, limiting the rates +of the latter, is no barrier to enforcement of an order of the +Interstate Commerce Commission requiring an increase in local rates to +remove a discrimination against interstate commerce.[48] An order of the +Federal Power Commission prescribing the methods of keeping the accounts +of an electric company was sustained over the objection that it violated +the reserved right of the States under the Tenth Amendment.[49] A +similar objection to the levy of a special surtax on any corporation +formed or availed of to prevent the imposition of a surtax upon its +shareholders was rejected, since the taxing statute did not limit in any +way the power of the corporations to declare or withhold dividends as +permitted by State law.[50] Likewise, the Court held that the failure to +allow a credit against the undistributed profits tax for earnings which +could not be distributed under State law did not infringe the reserved +power of the State over its corporate offspring.[51] + + +Notes + +[1] United States _v._ Sprague, 282 U.S. 716, 733 (1931). + +[2] II Annals of Congress 1897 (1791). + +[3] 4 Wheat. 316 (1819). + +[4] Ibid. 372. + +[5] Ibid. 406. + +[6] 11 Wall. 113 (1871). + +[7] Ibid. 124. + +[8] Graves _v._ O'Keefe, 306 U.S. 466 (1939). + +[9] 326 U.S. 572 (1946). + +[10] Ibid. 589. + +[11] Ibid. 584. + +[12] Ibid. 595. + +[13] United States _v._ Dewitt, 9 Wall. 41 (1870). + +[14] Ibid. 44. + +[15] 207 U.S. 463 (1908). _See also_ Keller _v._ United States, 213 U.S. +138 (1909). + +[16] 247 U.S. 251 (1918). + +[17] 312 U.S. 100, 116, 117 (1941). + +[18] Bailey _v._ Drexel Furniture Co., 259 U.S. 20, 36, 38 (1922). + +[19] Hill _v._ Wallace, 259 U.S. 44 (1922). _See also_ Trusler _v._ +Crooks, 269 U.S. 475 (1926). + +[20] Carter _v._ Carter Coal Co., 298 U.S. 238 (1936). + +[21] United States _v._ Butler, 297 U.S. 1 (1936). + +[22] 295 U.S. 495 (1935). + +[23] Ibid. 529. + +[24] Steward Machine Co. _v._ Davis, 301 U.S. 548 (1937); Helvering _v._ +Davis, 301 U.S. 619 (1937). + +[25] National Labor Relations Board _v._ Jones & Laughlin Steel Corp., +301 U.S. 1 (1937). + +[26] 312 U.S. 100 (1941). _See also_ United States _v._ Carolene +Products Co., 304 U.S. 144, 147 (1938); Case _v._ Bowles, 327 U.S. 92, +101 (1946). + +[27] 312 U.S. 100, 114, 123, 124 (1941). _See also_ Fernandez _v._ +Wiener, 326 U.S. 340, 362 (1945). + +[28] 251 U.S. 146 (1919). + +[29] Ibid. 156. + +[30] Champion _v._ Ames, 188 U.S. 321 (1903). + +[31] Hoke _v._ United States, 227 U.S. 308 (1913). + +[32] Brooks _v._ United States, 267 U.S. 432 (1925). + +[33] Thornton _v._ United States, 271 U.S. 414 (1926). + +[34] United States _v._ Ferger, 250 U.S. 199 (1919). + +[35] Kentucky Whip & Collar Co. _v._ Illinois C.R. Co., 299 U.S. 334 +(1937). + +[36] Everhard's Breweries _v._ Day, 265 U.S. 545 (1924). + +[37] 296 U.S. 287 (1935). The Civil Rights Act of 1875, which made it a +crime for one person to deprive another of equal accommodations at inns, +theaters or public conveyances was found to exceed the powers conferred +on Congress by the Thirteenth and Fourteenth Amendments, and hence to be +an unlawful invasion of the powers reserved to the States by the +Tenth--Civil Rights Cases, 109 U.S. 3, 15 (1883). + +[38] 327 U.S. 92, 102 (1946). + +[39] United States _v._ California, 297 U.S. 175 (1936). + +[40] Sanitary District of Chicago _v._ United States, 266 U.S. 405, 425, +426 (1925). + +[41] Kansas _v._ Colorado, 206 U.S. 46, 87, 89 (1907). + +[42] _See_ United States _v._ Appalachian Electric Power Co., 311 U.S. +377 (1940). + +[43] Oklahoma _v._ Atkinson Co., 313 U.S. 508, 534 (1941). + +[44] Oklahoma _v._ United States Civil Service Commission, 330 U.S. 127, +142-144 (1947). + +[45] 296 U.S. 315 (1935). + +[46] 193 U.S. 197 (1904). + +[47] Ibid. 345, 346. + +[48] New York _v._ United States, 257 U.S. 591 (1922). + +[49] Northwestern Electric Co. _v._ Federal Power Commission, 321 U.S. +119 (1944). _See also_ Federal Power Commission _v._ East Ohio Gas +Company, 338 U.S. 404 (1950). + +[50] Helvering _v._ National Grocery Co., 304 U.S. 282 (1938). + +[51] Helvering _v._ Northwest Steel Mills, 311 U.S. 46 (1940). + + + + +AMENDMENT 11 + +SUITS AGAINST STATES + + + Page +Purpose and early interpretation 929 +Expansion of state immunity 930 +Suits against state officials: two categories 930 +Mandamus proceedings 932 +Early limitation on injunction proceedings 932 +Injunction proceedings today: Ex parte Young 933 +Tort action against state officials 934 +Suits to recover taxes 935 +Consent of State to be sued 935 +Waiver of immunity 936 + + +SUITS AGAINST STATES + + +Amendment 11 + +The Judicial power of the United States shall not be construed to extend +to any suit in law or equity, commenced or prosecuted against one of the +United States by Citizens of another State, or by Citizens or Subjects +of any Foreign State. + + +Purpose and Early Interpretation + +The action of the Supreme Court in accepting jurisdiction of a suit +against a State by a citizen of another State in 1793, in Chisholm _v._ +Georgia[1] provoked such angry reactions in Georgia and such anxieties +in other States that at the first meeting of Congress after this +decision what became the Eleventh Amendment was proposed by an +overwhelming vote and ratified with "vehement speed."[2] The earliest +decisions interpretative of the amendment were three by Chief Justice +Marshall. In Cohens _v._ Virginia,[3] speaking for the Court, he held +that the prosecution of a writ of error to review a judgment of a State +court, alleged to be in violation of the Constitution or laws of the +United States, "does not commence or prosecute a suit against the +State," but continues one commenced by the State. The contrary holding +would have virtually repealed the 25th Section of the Judiciary Act of +1789 (_see_ p. 554), and brought something like anarchy in its wake. In +Osborn _v._ Bank of the United States,[4] decided three years later, the +Court laid down two rules, one of which has survived and the other of +which was soon abandoned. The latter was the holding that a suit is not +one against a State unless the State is a party to the record.[5] This +rule the Court was forced to repudiate seven years later in Governor of +Georgia _v._ Madrazo,[6] in which it was conceded that the suit had been +brought against the governor solely in his official capacity and with +the design of forcing him to exercise his official powers. It is now a +well-settled rule that in determining whether a suit is prosecuted +against a State "the Court will look behind and through the nominal +parties on the record to ascertain who are the real parties to the +suit."[7] The other, more successful rule was that a State official +possesses no official capacity when acting illegally and hence can +derive no protection from an unconstitutional statute of a State.[8] + + +Expansion of State Immunity + +Subsequent cases giving the amendment a restrictive effect are those +holding that counties and municipalities are suable in the federal +courts;[9] and that government corporations of the State are not immune +when suable under the law which created them.[10] Meantime other cases +have expanded the prohibitions of the amendment to include suits brought +against a State by its own citizens,[11] by a foreign state,[12] by a +federally chartered corporation,[13] or by a State as an agent of its +citizens to collect debts owed them by another State.[14] These rulings +are based on the premise expressed in Hans _v._ Louisiana[15] that the +amendment "actually reversed the decision" in Chisholm _v._ Georgia and, +as Chief Justice Hughes indicated in Monaco _v._ Mississippi,[16] had +the effect of prohibiting any suit against a State without its consent +except when brought by the United States[17] or another State. + + +Suits Against State Officials: Two Categories + +Most of the cases involving the Eleventh Amendment and those creating +the greatest difficulties are suits brought against State officials. +Such suits are governed by the same rules and principles as pertain to +the immunity of the United States itself from suits,[18] with the result +that the rules of governmental immunity from suit generally are grounded +on decisions arising under both article III and the Eleventh Amendment +without distinction as to whether a suit is against the United States or +a State.[19] The line is not always easy to draw, nor are the cases +always strictly consistent. They do yield, however, to the formulation +of certain general rules. Thus, suits brought against State officials +acting either in excess of their statutory authority[20] or in pursuance +of an unconstitutional statute[21] are suits against the officer in his +individual capacity and therefore are not prohibited by the Eleventh +Amendment; and suits against an officer for the commission of a common +law tort alleged to be justified by a statute or administrative order of +the State belong to the same category.[22] On the other hand, suits +against the officers of a State involving what is conceded to be State +property or suits asking for relief which clearly call for the exercise +of official authority cannot be sustained.[23] + + +Mandamus Proceedings + +Thus mandamus proceedings which seek "affirmative official action" on +the part of State officials as "the performance of an obligation which +belongs to the State in its political capacity"[24] are uniformly +regarded as suits against the State. This rule is well illustrated by +Louisiana ex rel. Elliott _v._ Jumel[25] where a holder of Louisiana +State bonds sought to compel the State treasurer to apply a sinking fund +that had been created under an earlier constitution for the payment of +the bonds to such purpose after a new constitution had abolished this +provision for retiring the bonds. The proceeding was held to be a suit +against the State because: "The relief asked will require the officers +against whom the process is issued to act contrary to the positive +orders of the supreme political power of the State, whose creatures they +are, and to which they are ultimately responsible in law for what they +do. They must use the public money in the treasury and under their +official control in one way, when the supreme power has directed them to +use it in another, and they must raise more money by taxation when the +same power has declared that it shall not be done."[26] However, +mandamus proceedings to compel a State official to perform a plain or +ministerial duty which admits of no discretion are not suits against the +State since the official is regarded as acting in his individual +capacity in failing to act according to law.[27] + + +Early Limitation on Injunction Proceedings + +In spite of a dictum by Justice Bradley in the McComb Case that the +writs of mandamus and injunction are somewhat correlative to each other +in suits against State officials for illegal actions,[28] injunctions +against State officials to restrain the enforcement of an +unconstitutional statute or action in excess of statutory authority are +more readily obtainable. They constitute in fact the single largest +class of cases involving the issue of State immunity. Until Reagan _v._ +Farmers' Loan and Trust Company[29] the Court maintained a distinction +between the duty imposed upon an official by the general laws of the +State and the duty imposed by a specific unconstitutional statute and +held that whereas an injunction would not lie to restrain a State +official from enforcing an act alleged to be unconstitutional in +pursuance of the general duties of his office, it would lie to restrain +him from performing special duties vested in him by an unconstitutional +statute.[30] The leading cases assertive of this distinction are Ex +parte Ayers and Fitts _v._ McGhee, decided respectively in 1887 and +1899.[31] + + +Injunction Proceedings Today: Ex parte Young + +However, the distinction between injunction suits to restrain an +official from pursuing his general duties under the law and those to +restrain the performance of special duties under an unconstitutional +statute had been largely lost even before Fitts _v._ McGhee, in Reagan +_v._ Farmers' Loan and Trust Company[32] and Smyth _v._ Ames,[33] where +injunctions issued by the lower federal courts to restrain the +enforcement of railroad rate regulations were sustained even though the +officials against whom the suits were brought were acting under general +law. What remained of the distinction as a limitation upon suits against +State officials was dispelled by Ex parte Young,[34] which not only +sustained an injunction restraining State officials from exercising +their discretionary duties but also upheld the authority of the lower +court to enjoin the enforcement of the statute prior to a determination +of its unconstitutionality. While Ex parte Ayers and Fitts _v._ +McGhee[35] were not overruled, the inevitable effect of the Young Case +was to abrogate the rule that a suit in equity against a State official +to enjoin discretionary action is a suit against the State, and to +convert the injunction into a device to test the validity of State +legislation in the federal courts prior to its interpretation in the +State courts and prior to any opportunity for State officials to put the +act into operation.[36] + +But the earlier rule still crops up at times. Thus as recently as 1937, +Ex parte Ayers[37] was applied to the interpretation of the Federal +Interpleader Act,[38] so as to prevent taxpayers from enjoining tax +officials from collecting death taxes arising from the competing claims +of two States as being the last domicile of a decedent.[39] On the other +hand, the Eleventh Amendment was held not to be infringed by joinder of +a State court judge and receiver in an interpleader proceeding in which +the State had no interest and neither the judge nor the receiver was +enjoined by the final decree.[40] + + +Tort Actions Against State Officials + +In tort actions against State officials the rule of United States _v._ +Lee[41] has been substantially incorporated into the Eleventh Amendment. +In Tindal _v._ Wesley[42] the Lee Case was held to permit a suit by +claimants to real property in South Carolina which they had purchased +from the State sinking fund commission but which had been retaken by the +State because the purchaser insisted on paying for the property with +revenue bond scrip issued by the State. In other cases the Court had +held that the immunity of a State from suit does not extend to actions +against State officials for damages arising out of willful and negligent +disregard of State laws.[43] + + +Suits to Recover Taxes + +Recent decisions, however, have rendered suits against State officials +to recover taxes increasingly difficult to maintain. Although the Court +long ago held that the sovereign immunity of the State prevented a suit +to recover money in the general treasury,[44] it also held that a suit +would lie against a revenue officer to recover tax moneys illegally +collected and still in his possession.[45] Beginning, however, with +Great Northern Life Insurance Co. _v._ Read[46] in 1944 the Court has +held that this kind of suit cannot be maintained unless the State +expressly consents to suits in the federal courts. In this case the +State statute provided for the payment of taxes under protest and for +suits afterwards against State tax collection officials for the recovery +of taxes illegally collected. The act also provided for the segregation +by the collector of taxes paid under protest. The Read Case has been +followed in two more recent cases[47] involving a similar state of +facts, with the result that the rule once permitting such suits to +recover taxes from a segregated fund has been distinguished away. + + +Consent of State to be Sued + +Although _dicta_ in some cases suggested that once a State consented +generally to be sued in a court of competent jurisdiction,[48] suits +could be maintained against it in the federal courts, later decisions +involving statutory provisions for the payment of taxes under protest +followed by a suit in a court of competent jurisdiction to recover do +not authorize suits in the federal courts. These rulings are based on +the assumption that when the court is dealing "with the sovereign +exemption from judicial interference in the vital field of financial +administration a clear declaration of the State's intention to submit +its fiscal problems to other courts than those of its own creation must +be found."[49] Long before these decisions it had been settled that a +State could confine to its own courts suits against it to recover +taxes.[50] Thus the questions involved in the cases laying down the +above rule concerned only the lack of an express consent to suit in the +federal courts. + + +Waiver of Immunity + +The immunity of a State from suit is a privilege which it may waive at +pleasure by voluntary submission to suit,[51] as distinguished from +appearing in a similar suit to defend its officials,[52] and by general +law specifically consenting to suit in the federal courts. Such consent +must be clear and specific and consent to suit in its own courts does +not imply a waiver of immunity in the federal courts.[53] It follows, +therefore, that in consenting to be sued, the States, like the National +Government, may attach such conditions to suit as they deem fit. + + +Notes + +[1] 2 Dall. 419 (1793). + +[2] Justice Frankfurter dissenting in Larson _v._ Domestic & Foreign +Corp., 337 U.S. 682, 708 (1949). + +[3] 6 Wheat. 264, 411-412 (1821). + +[4] 9 Wheat. 738 (1824). + +[5] Ibid. 850-858. + +[6] 1 Pet. 110 (1828). + +[7] Ex parte Ayers, 123 U.S. 443, 487 (1887). + +[8] Osborn _v._ Bank of the United States, 9 Wheat. at 858, 859, 868. + +[9] Lincoln County _v._ Luning, 133 U.S. 529 (1890). + +[10] Hopkins _v._ Clemson Agricultural College, 221 U.S. 636 (1911). +_See also_ Bank of the United States _v._ Planters' Bank of Georgia, 9 +Wheat. 904 (1824), where a State bank was held liable to suit although +the State owned a portion of its stock, and Briscoe _v._ Bank of +Kentucky, 11 Pet. 257 (1837), and Bank of Kentucky _v._ Wister, 2 Pet. +318 (1829), where the State bank was held liable to suit even though the +State owned all of the stock. Compare, however, Murray _v._ Wilson +Distilling Co., 213 U.S. 151 (1909), which held that a State in engaging +in the retail liquor business does not surrender its immunity to suit +for transaction of a nongovernmental nature. Here the State conducted +the business directly rather than through the medium of a corporation. + +[11] Hans _v._ Louisiana, 134 U.S. 1 (1890); Fitts _v._ McGhee, 172 U.S. +516, 524 (1899); Duhne _v._ New Jersey, 251 U.S. 311, 313 (1920); Ex +parte New York, 256 U.S. 490 (1921). + +[12] Monaco _v._ Mississippi, 292 U.S. 313, 329 (1934). + +[13] Smith _v._ Reeves, 178 U.S. 436 (1900). + +[14] New Hampshire _v._ Louisiana, 108 U.S. 76 (1883). However, this +rule does not preclude a suit by a State to collect debts which have +been assigned to it and the proceeds of which will remain with it. South +Dakota _v._ North Carolina, 192 U.S. 286 (1904) + +[15] 134 U.S. 1, 11 (1890). + +[16] 292 U.S. 313, 328-332 (1934). + +[17] For the liability of the States to suit by the United States _see_ +the discussion of the right of the United States to sue under article +III, Sec. 2, _supra_, pp. 584-585. + +[18] Tindal _v._ Wesley, 167 U.S. 204, 213 (1897). This case applied the +rule of United States _v._ Lee, 106 U.S. 196 (1882), to suits against +States. + +[19] _See_ for example Larson _v._ Domestic & Foreign Corp., 337 U.S. +682 (1949), where both the majority and dissenting opinions utilize both +types of cases in a suit against a federal official. + +[20] Pennoyer _v._ McConnaughy, 140 U.S. 1 (1891); Scully _v._ Bird, 209 +U.S. 481 (1908); Atchison, Topeka & S.F.R. Co. _v._ O'Connor, 223 U.S. +280 (1912); Greene _v._ Louisville & I.R. Co., 244 U.S. 499 (1917); +Louisville & Nashville R. Co. _v._ Greene, 244 U.S. 522 (1917). + +[21] Osborn _v._ Bank of the United States, 9 Wheat. 728 (1824); Board +of Liquidation _v._ McComb, 92 U.S. 531 (1876); Poindexter _v._ +Greenhow, 114 U.S. 270 (1885); Pennoyer _v._ McConnaughy, 140 U.S. 1 +(1891); Reagan _v._ Farmers' Loan & Trust Co., 154 U.S. 362 (1894); +Smyth _v._ Ames, 169 U.S. 466 (1898); Ex parte Young, 209 U.S. 123 +(1908); Truax _v._ Raich, 239 U.S. 33 (1915); Public Service Co. _v._ +Corboy, 250 U.S. 153 (1919); Sterling _v._ Constantin, 287 U.S. 378 +(1932); Davis _v._ Gray, 16 Wall. 203 (1873); Tomlinson _v._ Branch, 15 +Wall. 460 (1873); Litchfield _v._ Webster Co., 101 U.S. 773 (1880); +Allen _v._ Baltimore & O.R. Co., 114 U.S. 311 (1885); Gunter _v._ +Atlantic C.L.R. Co., 200 U.S. 273 (1906); Prout _v._ Starr, 188 U.S. 537 +(1903); Scott _v._ Donald, 165 U.S. 58; _also_ 165 U.S. 107 (1897). + +[22] South Carolina _v._ Wesley, 155 U.S. 542 (1895); Tindal _v._ +Wesley, 167 U.S. 204 (1897); Hopkins _v._ Clemson Agricultural College, +221 U.S. 636 (1911). In this last case the Court held that a suit would +lie against the State Agricultural College, and relief could be granted +to the extent that it would not affect the property rights of the State. +These cases involve such matters as the seizure and distraint of +property, wrongs done by government corporations, etc. + +[23] _See_ for example Governor of Georgia _v._ Madrazo, 1 Pet. 110 +(1828); Cunningham _v._ Macon and Brunswick R. Co., 109 U.S. 446 (1883); +Louisiana ex rel. Elliott _v._ Jumel, 107 U.S. 711 (1883); Hagood _v._ +Southern, 117 U.S. 52 (1886); Chandler _v._ Dix, 194 U.S. 590 (1904); +Murray _v._ Wilson Distilling Co., 213 U.S. 151 (1909); Hopkins _v._ +Clemson Agricultural College, 221 U.S. 636 (1911); Lankford _v._ Platte +Iron Works, 235 U.S. 461 (1915); Carolina Glass Co. _v._ South Carolina, +240 U.S. 305 (1916); Kennecott Copper Corp. _v._ State Tax Commission, +327 U.S. 573 (1946). + +[24] Hagood _v._ Southern, 117 U.S. 52, 70 (1886). _See also_ Pennoyer +_v._ McConnaughy, 140 U.S. 1, 10 (1891) where Justice Lamar also +emphasizes the operation of the judgment against the State itself. + +[25] 107 U.S. 711, 721 (1883). _See also_ Christian _v._ Atlantic & +N.C.R. Co., 133 U.S. 233 (1890). + +[26] Louisiana ex rel. Elliott _v._ Jumel, 107 U.S. 711, 721 (1883). + +[27] Board of Liquidation _v._ McComb, 92 U.S. 531, 541 (1876). This was +a case involving an injunction, but Justice Bradley regarded mandamus +and injunction as correlative to each other in cases where the official +unlawfully commits or omits an act. _See also_ Rolston _v._ Missouri +Fund Commissioners, 120 U.S. 390, 411 (1887), where it is held that an +injunction would lie to restrain the sale of a railroad on the ground +that a suit to compel a State official to do what the law requires of +him is not a suit against the State. _See also_ Houston _v._ Ormes, 252 +U.S. 469 (1920). + +[28] Board of Liquidation _v._ McComb, 92 U.S. 531, 541 (1876). + +[29] 154 U.S. 362 (1894). + +[30] Poindexter _v._ Greenhow, 114 U.S. 270 (1885); Allen _v._ Baltimore +& O.R. Co., 114 U.S. 311 (1885); Pennoyer _v._ McConnaughy, 140 U.S. 1 +(1891); In re Tyler, 149 U.S. 164 (1893). As stated by Justice Harlan in +Fitts _v._ McGhee, 172 U.S. 516, 529-530 (1899), "There is a wide +difference between a suit against individuals, holding official +positions under a State, to prevent them, under the sanction of an +unconstitutional statute, from committing by some positive act a wrong +or trespass, and a suit against officers of a State merely to test the +constitutionality of a state statute, in the enforcement of which those +officers will act only by formal judicial proceedings in the courts of +the State." _See also_ North Carolina _v._ Temple, 134 U.S. 22 (1890). + +[31] _See_ 123 U.S. 443; and 172 U.S. 516. + +[32] 154 U.S. 362 (1894). + +[33] 169 U.S. 466 (1898). + +[34] 209 U.S. 123 (1908). + +[35] 123 U.S. 443 (1887); 172 U.S. 516 (1899). + +[36] For cases following Ex parte Young, _see_ Home Telephone & +Telegraph Co. _v._ Los Angeles, 227 U.S. 278 (1913); Truax _v._ Raich, +239 U.S. 33 (1915); Cavanaugh _v._ Looney, 248 U.S. 453 (1919); Terrace +_v._ Thompson, 263 U.S. 197 (1923); Hygrade Provision Co. _v._ Sherman, +266 U.S. 497 (1925); Massachusetts State Grange _v._ Benton, 272 U.S. +525 (1926); Hawks _v._ Hamill, 288 U.S. 52 (1933). These last cases, +however, emphasize "manifest oppression" as a prerequisite to issuance +of such injunctions. _See also_ Fenner _v._ Boykin, 271 U.S. 240 (1926), +where an injunction to restrain the enforcement of a State law +penalizing gambling contracts was denied. The rule of Ex parte Young +applies equally to the governor of a State in the enforcement of an +unconstitutional statute. Continental Baking Co. _v._ Woodring, 286 U.S. +352 (1932); Sterling _v._ Constantin, 287 U.S. 378 (1932). Joseph D. +Block, "Suit Against Government Officers and the Sovereign Immunity +Doctrine," 59 Harv. L. Rev. 1060, 1078 (1946), points out that Ex parte +Young is enunciating the doctrine that an official proceeding +unconstitutionally is "stripped of his official ... character" has given +impetus to the fiction that the suit must be against the officer as an +individual to be permissible under the Eleventh Amendment. Two recent +cases in which Ex parte Young was followed are Alabama Comm'n _v._ +Southern R. Co., 341 U.S. 341, 344 (1951); and Georgia R. _v._ Redwine, +342 U.S. 299, 304-305 (1952). + +[37] 123 U.S. 443 (1887). _See also_ Larson _v._ Domestic and Foreign +Corp., 337 U.S. 682, 687-688 (1949). + +[38] 49 Stat. 1096 (1936). + +[39] Worcester County Trust Co. _v._ Riley, 302 U.S. 292 (1937); _see +also_ Old Colony Trust Co. _v._ Seattle, 271 U.S. 426 (1926). + +[40] Treinies _v._ Sunshine Mining Co., 308 U.S. 66 (1939). _See also_ +Missouri _v._ Fiske, 290 U.S. 18 (1933). + +[41] 106 U.S. 196 (1882). + +[42] 167 U.S. 204 (1897). + +[43] Johnson _v._ Lankford, 245 U.S. 541 (1918); Martin _v._ Lankford, +245 U.S. 547 (1918). + +[44] Smith _v._ Reeves, 178 U.S. 436 (1900). + +[45] Atchison, Topeka & S.F.R. Co. _v._ O'Connor, 223 U.S. 280 (1912). + +[46] 322 U.S. 47 (1944). + +[47] Ford Motor Co. _v._ Dept. of Treasury of Indiana, 323 U.S. 459 +(1945); Kennecott Copper Corp. _v._ State Tax Commission, 327 U.S. 573 +(1946). + +[48] Lincoln County _v._ Luning, 133 U.S. 529 (1890); Hopkins _v._ +Clemson Agricultural College, 221 U.S. 636 (1911). + +[49] Great Northern Ins. Co. _v._ Read, 322 U.S. 47, 54 (1944); Ford +Motor Co. _v._ Dept. of Treasury of Indiana, 323 U.S. 459 (1945); +Kennecott Copper Corp. _v._ State Tax Commission, 327 U.S. 573 (1946). + +[50] Smith _v._ Reeves, 178 U.S. 436 (1900). _See also_ Murray _v._ +Wilson Distilling Co., 213 U.S. 151 (1909); Chandler _v._ Dix, 194 U.S. +590 (1904). + +[51] Clark _v._ Barnard, 108 U.S. 436, 447 (1883); Ashton _v._ Cameron +County Water Improvement Dist., 298 U.S. 513, 531 (1936). + +[52] Farish _v._ State Banking Board, 235 U.S. 498 (1915); Missouri _v._ +Fiske, 290 U.S. 18 (1933). + +[53] Murray _v._ Wilson Distilling Co., 213 U.S. 151, 172 (1909), citing +Smith _v._ Reeves, 178 U.S. 436 (1900); Chandler _v._ Dix, 194 U.S. 590 +(1904). _See also_ Graves _v._ Texas Co., 298 U.S. 393, 403-404 (1936). + + + + +AMENDMENT 12 + +ELECTION OF PRESIDENT + + + Page +Purpose and operation of the amendment 942 +Electors as free agents 942 + + +ELECTION OF PRESIDENT + + +Amendment 12 + +The Electors shall meet in their respective states, and vote by ballot +for President and Vice-President, one of whom, at least, shall not be an +inhabitant of the same state with themselves; they shall name in their +ballots the person voted for as President, and in distinct ballots the +person voted for as Vice-President, and they shall make distinct lists +of all persons voted for as President, and of all persons voted for as +Vice-President, and of the number of votes for each, which lists they +shall sign and certify, and transmit sealed to the seat of the +government of the United States, directed to the President of the +Senate;--The President of the Senate shall, in the presence of the +Senate and House of Representatives, open all the certificates and the +votes shall then be counted;--The person having the greatest number of +votes for President, shall be the President, if such number be a +majority of the whole number of Electors appointed; and if no person +have such majority, then from the persons having the highest numbers not +exceeding three on the list of those voted for as President, the House +of Representatives shall choose immediately, by ballot, the President. +But in choosing the President, the votes shall be taken by states, the +representation from each state having one vote; a quorum for this +purpose shall consist of a member or members from two-thirds of the +states, and a majority of all the states shall be necessary to a choice. +And if the House of Representatives shall not choose a President +whenever the right of choice shall devolve upon them, before the fourth +day of March[1] next following, then the Vice-President shall act as +President, as in the case of the death or other constitutional +disability of the President.[2]--The person having the greatest number +of votes as Vice-President, shall be the Vice-President, if such number +be a majority of the whole number of Electors appointed, and if no +person have a majority, then from the two highest numbers on the list, +the Senate shall choose the Vice-President; a quorum for the purpose +shall consist of two-thirds of the whole number of Senators, and a +majority of the whole number shall be necessary to a choice. But no +person constitutionally ineligible to the office of President shall be +eligible to that of Vice-President of the United States. + + +Purpose and Operation of the Amendment + +This amendment, which supersedes clause 3 of section 1 of article II, of +the original Constitution, was inserted on account of the tie between +Jefferson and Burr in the election of 1800. The difference between the +procedure which it defines and that which was laid down in the original +Constitution is in the provision it makes for a separate designation by +the Electors of their choices for President and Vice President, +respectively. The final sentence of clause 1, above, has been in turn +superseded today by Amendment XX. In consequence of the disputed +election of 1876, Congress, by an act passed in 1887, has laid down the +rule that if the vote of a State is not certified by the governor under +the seal thereof, it shall not be counted unless both Houses of Congress +are favorable.[3] It should be noted that no provision is made by this +Amendment for the situation which would result from a failure to choose +either a President or Vice President, an inadequacy which Amendment XX +undertakes to cure. + + +Electors as Free Agents + +Acting under the authority of state law, the Democratic Committee of +Alabama adopted a rule requiring that a party candidate for the office +of Presidential Elector take a pledge to support the nominees of the +party's National Convention for President and Vice President and that +the party's officers refuse to certify as a candidate for such office +any person who, otherwise qualified, refused to take such a pledge. One +Blair did so refuse and was upheld, in mandamus proceedings, by the +State Supreme Court, which ordered the Chairman of the State Democratic +Executive Committee to certify him to the Secretary of State as a +candidate for the office of Presidential Elector in the Democratic +Primary to be held on May 6, 1952. The Supreme Court at Washington +granted certiorari and reversed this holding.[4] The constitutional +issue arose out of the Alabama Court's findings that the required pledge +was incompatible with the Twelfth Amendment, which contemplated that +Electors, once appointed, should be absolutely free to vote for any +person who was constitutionally eligible to the office of President or +Vice President.[5] This position the Supreme Court combatted as follows: +"It is true that the Amendment says the electors shall vote by ballot. +But it is also true that the Amendment does not prohibit an elector's +announcing his choice beforehand, pledging himself. The suggestion that +in the early elections candidates for electors--contemporaries of the +Founders--would have hesitated, because of constitutional limitations, +to pledge themselves to support party nominees in the event of their +selection as electors is impossible to accept. History teaches that the +electors were expected to support the party nominees. Experts in the +history of government recognize the longstanding practice. Indeed, more +than twenty states do not print the names of the candidates for electors +on the general election ballot. Instead, in one form or another, they +allow a vote for the presidential candidate of the national conventions +to be counted as a vote for his party's nominees for the electoral +college. This long-continued practical interpretation of the +constitutional propriety of an implied or oral pledge of his ballot by a +candidate for elector as to his vote in the electoral college weighs +heavily in considering the constitutionality of a pledge, such as the +one here required, in the primary. However, even if such promises of +candidates for the electoral college are legally unenforceable because +violative of an assumed constitutional freedom of the elector under the +Constitution, Art. II, Sec. 1, to vote as he may choose in the electoral +college, it would not follow that the requirement of a pledge in the +primary is unconstitutional. A candidacy in the primary is a voluntary +act of the applicant. He is not barred, discriminatorily, from +participating but must comply with the rules of the party. Surely one +may voluntarily assume obligations to vote for a certain candidate. The +state offers him opportunity to become a candidate for elector on his +own terms, although he must file his declaration before the primary. +Ala. Code, Tit. 17, Sec. 145. Even though the victory of an independent +candidate for elector in Alabama cannot be anticipated, the state does +offer the opportunity for the development of other strong political +organizations where the need is felt for them by a sizable block of +voters. Such parties may leave their electors to their own choice. We +conclude that the Twelfth Amendment does not bar a political party from +requiring the pledge to support the nominees of the National +Convention. Where a state authorizes a party to choose its nominees for +elector in a party primary and to fix the qualifications for the +candidates, we see no federal constitutional objection to the +requirement of this pledge."[6] Justice Jackson conceding that "as an +institution the Electoral College suffered atrophy almost +indistinguishable from _rigor mortis_," nevertheless dissented on the +following ground: "It may be admitted that this law does no more than to +make a legal obligation of what has been a voluntary general practice. +If custom were sufficient authority for amendment of the Constitution by +Court decree, the decision in this matter would be warranted. Usage may +sometimes impart changed content to constitutional generalities, such as +'due process of law,' 'equal protection,' or 'commerce among the +states.' But I do not think powers or discretions granted to federal +officials by the Federal Constitution can be forfeited by the Court for +disuse. A political practice which has its origin in custom must rely +upon custom for its sanctions."[7] + + +Notes + +[1] By the Twentieth Amendment, adopted in 1933, the term of the +President is to begin on the 20th of January. + +[2] Under the Twentieth Amendment, Sec. 3, in case a President is not +chosen before the time for beginning of his term, the Vice +President-elect shall act as President, until a President shall have +qualified. + +[3] 3 U.S.C.A. Sec. 17. + +[4] Ray _v._ Blair, 343 U.S. 214 (1952). + +[5] Ibid. 218-219. + +[6] Ibid. 228-231. + +[7] Ibid. 232-233. + + + + +AMENDMENT 13 + +SLAVERY AND INVOLUNTARY SERVITUDE + + + Page +Origin and purpose of the amendment 949 +Peonage 950 +Discriminations and legal compulsions less than servitude 951 +Enforcement 953 + + +SLAVERY AND INVOLUNTARY SERVITUDE + + +Amendment 13 + +Section 1. Neither slavery nor involuntary servitude, except as +a punishment for crime whereof the party shall have been duly convicted, +shall exist within the United States, or any place subject to their +jurisdiction. + +Section 2. Congress shall have power to enforce this article by +appropriate legislation. + + +Origin and Purpose of the Amendment + +"The language of the Thirteenth Amendment," which "reproduced the +historic words of the ordinance of 1787 for the government of the +Northwest Territory, and gave them unrestricted application within the +United States,"[1] was first construed in the Slaughter-House Cases.[2] +Presented there with the contention that a Louisiana statute, by +conferring upon a single corporation the exclusive privilege of +slaughtering cattle in New Orleans, had imposed an unconstitutional +servitude on the property of other butchers disadvantaged thereby, the +Court expressed its inability, even after "a microscopic search," to +find in said amendment any "reference to servitudes, which may have been +attached to property in certain localities * * *." On the contrary, the +term "servitude" appearing therein was declared to mean "a personal +servitude * * * [as proven] by the use of the word 'involuntary,' which +can only apply to human beings. * * * The word servitude is of larger +meaning than slavery, * * *, and the obvious purpose was to forbid all +shades and conditions of African slavery." But while the Court was +initially in doubt as to whether persons other than negroes could share +in the protection afforded by this amendment, it nevertheless conceded +that although "* * * negro slavery alone was in the mind of the Congress +which proposed the thirteenth article, [the latter] forbids any other +kind of slavery, now or hereafter. If Mexican peonage or the Chinese +coolie labor system shall develop slavery of the Mexican or Chinese race +within our territory, this amendment may safely be trusted to make it +void."[3] All uncertainty on this score was dispelled in later +decisions; and in Hodges _v._ United States[4] the Justices proclaimed +unequivocally that the Thirteenth Amendment is "not a declaration in +favor of a particular people. It reaches every race and every +individual, and if in any respect it commits one race to the nation, it +commits every race and every individual thereof. Slavery or involuntary +servitude of the Chinese, of the Italian, of the Anglo-Saxon are as much +within its compass as slavery or involuntary servitude of the +African."[5] + + +Peonage + +Notwithstanding its early acknowledgment in the Slaughter-House Cases +that peonage was comprehended within the slavery and involuntary +servitude proscribed by the Thirteenth Amendment,[6] the Court has had +frequent occasion to determine whether State legislation or the conduct +of individuals has contributed to reestablishment of that prohibited +status. Defined as a condition of enforced servitude by which the +servitor is compelled to labor in liquidation of some debt or +obligation, either real or pretended, against his will, peonage was +found to have been unconstitutionally sanctioned by an Alabama statute, +directed at defaulting sharecroppers, which imposed a criminal liability +and subjected to imprisonment farm workers or tenants who abandoned +their employment, breached their contracts, and exercised their legal +right to enter into employment of a similar nature with another person. +The clear purpose of such a statute was declared to be the coercion of +payment, by means of criminal proceedings, of a purely civil liability +arising from breach of contract.[7] Several years later, in Bailey _v._ +Alabama,[8] the Court voided another Alabama statute which made the +refusal without just cause to perform the labor called for in a written +contract of employment, or to refund the money or pay for the property +advanced thereunder, _prima facie_ evidence of an intent to defraud and +punishable as a criminal offense; and which was enforced subject to a +local rule of evidence which prevented the accused, for the purpose of +rebutting the statutory presumption, from testifying as to his +"uncommunicated motives, purpose, or intention." Inasmuch as a State +"may not compel one man to labor for another in payment of a debt by +punishing him as a criminal if he does not perform the service or pay +the debt," the Court refused to permit it "to accomplish the same result +[indirectly] by creating a statutory presumption which, upon proof of no +other fact, exposes him to conviction."[9] In 1914, in United States +_v._ Reynolds,[10] a third Alabama enactment was condemned as conducive +to peonage through the permission it accorded to persons, fined upon +conviction for a misdemeanor, to confess judgment with a surety in the +amount of the fine and costs, and then to agree with said surety, in +consideration of the latter's payment of the confessed judgment, to +reimburse him by working for him upon terms approved by the court, +which, the Court pointed out, might prove more onerous than if the +convict had been sentenced to imprisonment at hard labor in the first +place. Fulfillment of such a contract with the surety was viewed as +being virtually coerced by the constant fear it induced of rearrest, a +new prosecution, and a new fine for breach of contract, which new +penalty the convicted person might undertake to liquidate in a similar +manner attended by similar consequences. More recently, Bailey _v._ +Alabama has been followed in Taylor _v._ Georgia[11] and Pollock _v._ +Williams,[12] in which statutes of Georgia and Florida not materially +different from that voided in the Bailey Case, were found to be +unconstitutional. Although the Georgia statute prohibited the defendant +from testifying under oath, it did not prevent him from entering an +unsworn denial both of the contract and of the receipt of any cash +advancement thereunder, a factor which, the Court emphasized, was no +more controlling than the customary rule of evidence in the Bailey Case. +In the Florida Case, notwithstanding the fact that the defendant pleaded +guilty and accordingly obviated the necessity of applying the _prima +facie_ presumption provision, the Court reached an identical result, +chiefly on the ground that the presumption provision, despite its +nonapplication, "had a coercive effect in producing the plea of guilty." + + +Discriminations and Legal Compulsions Less Than Servitude + +A contention of "involuntary servitude" was rejected in the following +cases: + +(1) Racial discrimination. Denial of admission to public places, such as +inns, restaurants, or theaters, or the segregation of races in public +conveyances, etc., was held not to give rise to a "condition of enforced +compulsory service of one to another," and effected no deprivation of +one's legal right to dispose of his person, property, and services. Even +prior to the amendment, such discriminations had never been "regarded +as badges of slavery"; and it was not "the intent of the amendment to +denounce every act which was wrong if done to a free man and yet +justified in a condition of slavery."[13] Likewise, individuals who +conspired to prevent citizens of African descent, because of their race +or color, from making or carrying out contracts of labor, and so from +pursuing a common calling, were not deemed to have reduced negroes to a +condition of involuntary servitude; and hence a federal statute which +penalized such a conspiracy was declared to be in excess of the +enforcement powers vested in Congress by the Thirteenth Amendment.[14] + +(2) "Services which have from time immemorial been treated as +exceptional." Thus, contracts of seamen, which have from earliest +historical times been treated as exceptional, and involving, to a +certain extent, the surrender of personal liberty may be enforced +without regard to the amendment.[15] + +(3) "Enforcement of those duties which individuals owe the State, such +as services in the army, militia, on the jury, etc." Thus, "a State has +inherent power to require every able-bodied man within its jurisdiction +to labor for a reasonable time on public roads near his residence +without direct compensation."[16] Similarly, the exaction by Congress of +enforced military duty from citizens of the United States, as was done +by the Selective Service Act of May 18, 1917 (40 Stat. 76); and the +requirement, under the Selective Training and Service Act of 1940 (50 +U.S.C.A. App. Sec. 305 (g)), that conscientious objectors be assigned to +work of national importance under civilian direction, were held not to +contravene the Thirteenth Amendment.[17] + +(4) A State law which made it a misdemeanor for a lessor, or his agent +or janitor, intentionally to fail to furnish such water, heat, light, +elevator, telephone, or other service as may be required by the terms of +the lease and necessary to the proper and customary use of the building, +did not create an involuntary servitude.[18] + +(5) Section 506 (a) of the Communications Act (47 U.S.C.A. Sec. 506) making +it unlawful to coerce, compel, or constrain a licensee to employ persons +in excess of the number of the employees needed by the licensee in the +conduct of a radio broadcasting business, on its face, was construed as +not violating this amendment.[19] + + +Enforcement + +"* * * this amendment, besides abolishing forever slavery and +involuntary servitude * * *, gives power to Congress to protect all +persons within the jurisdiction of the United States from being in any +way subject to slavery or involuntary servitude, except as a punishment +for crime, and in the enjoyment of that freedom which it was the object +of the amendment to secure. * * *"[20] It "is undoubtedly +self-executing without any ancillary legislation, * * * [but] +legislation may be necessary and proper to meet all the various * * * +circumstances to be affected by it, and to prescribe proper modes of +redress for its violation in letter or spirit." This legislation, +moreover, "may be direct and primary, operating upon the acts of +individuals, whether sanctioned by State legislation or not; [whereas] +under the Fourteenth [Amendment], * * * it * * * can only be, corrective +in its character, addressed to counteract and afford relief against +State regulations or proceedings."[21] + +Pursuant to its powers of enforcement under section two of this +amendment, Congress on March 2, 1867 enacted a statute[22] by the terms +of which the system of peonage was abolished and prohibited and +penalties were imposed on anyone who holds, arrests, or returns, or +causes, or aids in the arrest or return of a person to peonage. The +validity of this act was sustained in Clyatt _v._ United States;[23] and +more recently, in United States _v._ Gaskin,[24] a proviso thereof was +construed as capable of supporting a conviction for arrest with intent +to compel performance of labor even though the debtor in fact rendered +no service after his arrest. Each of the acts enumerated in that +proviso, the "holding, arresting, or the returning, may be the subject +of indictment and punishment." + + +Notes + +[1] Bailey _v._ Alabama, 219 U.S. 219, 240 (1911). + +[2] 16 Wall. 36 (1873). + +[3] Ibid. 69, 71-72. + +[4] 203 U.S. 1 (1906). + +[5] Ibid. 16-17. + +[6] Pursuant to its enforcement powers under section 2 of this +amendment, Congress, on March 2, 1867 adopted a statute (14 Stat. 546), +which is now found in 8 U.S.C.A. Sec. 56 and 18 U.S.C.A. Sec. 1581, by +the terms of which peonage was prohibited, and persons returning any one +to a condition of peonage were subjected to criminal punishment. This +statute was upheld in Clyatt _v._ United States, 197 U.S. 207 (1905). + +[7] Peonage Cases, 123 F. 671 (1903). + +[8] 219 U.S. 219 (1911). Justice Holmes, who was joined by Justice +Lurton, dissented on the ground that a State was not forbidden by this +amendment from punishing a breach of contract as a crime. "Compulsory +work for no private master in a jail is not peonage."--Ibid. 247. + +[9] Ibid. 244. + +[10] 235 U.S. 133 (1914). + +[11] 315 U.S. 25 (1942). + +[12] 322 U.S. 4 (1944). Justice Reed, with Chief Justice Stone +concurring, contended in a dissenting opinion that a State is not +prohibited by the Thirteenth Amendment from "punishing the fraudulent +procurement of an advance in wages."--Ibid. 27. + +[13] Civil Rights Cases, 109 U.S. 3, 23-25 (1883); Plessy _v._ Ferguson, +163 U.S. 537 (1896). + +[14] Hodges _v._ United States; 203 U.S. 1 (1906). + +[15] Robertson _v._ Baldwin, 165 U.S. 275, 282 (1897). + +[16] Butler _v._ Perry, 240 U.S. 328, 333 (1916).--Work-or-fight laws, +such as States enacted during World War I, which required male residents +to be employed during the period of that War were sustained on similar +grounds, as were municipal ordinances, enforced during the Depression, +which compelled indigents physically able to perform manual labor to +serve the municipality without compensation as a condition of receiving +financial assistance.--State _v._ McClure, 7 Boyce (Del.) 265; 105 A. +712 (1919); Commonwealth _v._ Pouliot, 292 Mass. 229; 198 N.E. 256 +(1935). + +[17] Arver _v._ United States (Selective Draft Law Cases), 245 U.S. 366, +390 (1918); United States _v._ Brooks, 54 F. Supp. 995 (1944); affirmed +147 F. (2d) 134 (1945); certiorari denied, 324 U.S. 878 (1945). It may +be noted in this connection that labor leaders have contended that +conscription of labor in time of war, unaccompanied by nationalization +of industry, would mean that the conscripts, having thus been forced by +the Government to work for private profit, would be reduced to +involuntary servitude. This position is not supported by the +precedents.--_See_ Corwin, Total War and the Constitution, 89-90 (1947). + +[18] Brown (Marcus) Holding Co. _v._ Feldman, 256 U.S. 170, 109 (1921). + +[19] United States _v._ Petrillo, 332 U.S. 1, 12-13 (1947). Injunctions +and "cease and desist" orders in labor disputes have also been +repeatedly sustained against charges by labor that the prohibitions of +this amendment had been violated. _See_ Auto Workers _v._ Wis. Board, +336 U.S. 245 (1949), in which application of the Wisconsin Employment +Peace Act in support of an order forbidding recurrent, intermittent work +stoppages for unstated ends was held not to have imposed involuntary +servitude. _See also_ Western Union Tel. Co. _v._ International B. of E. +Workers, 2 F. (2d) 993 (1924); International Brotherhood, Etc. _v._ +Western U. Tel. Co., 46 F. (2d) 736 (1931), certiorari denied, 284 U.S. +630 (1931). + +[20] United States _v._ Harris, 106 U.S. 629, 640 (1883). An act of +Congress which penalized a conspiracy to deprive any person of the equal +protection of the laws or of equal privileges and immunities under the +laws was accordingly held unconstitutional insofar as its validity was +made to depend upon the Thirteenth Amendment. + +[21] Civil Rights Cases, 109 U.S. 3, 20, 23 (1883). + +[22] 14 Stat. 546; 8 U.S.C.A. Sec. 56; 18 U.S.C.A. Sec. 1581. + +[23] 197 U.S. 207, 218 (1905). + +[24] 320 U.S. 527, 529 (1944). + + + + +AMENDMENT 14 + +RIGHTS OF CITIZENS + + + Page +Section 1. Citizenship; privileges and immunities; due process; + equal protection 963 + Citizens of the United States 963 + Kinds and sources of citizenship 963 + History 963 + Judicial elucidation of the citizenship clause 964 + National and State citizenship 965 + Corporations 965 + Privileges and immunities 965 + Purpose and early history of the clause 965 + Privileges and immunities of citizens of the United States 967 + Privileges held not within the protection of the clause 969 + Due process of law clause 971 + Historical development 971 + Police power: liberty: property 974 + Liberty of contract--labor relations 976 + Definitions 981 + "Persons" defined 981 + Due process and the police power 982 + Definition 982 + Limitations on the police power 982 + "Liberty," in general 983 + Definitions 983 + Personal liberty: compulsory vaccination: sexual + sterilization 984 + Liberties pertaining to education (of teachers, parents, + pupils) 984 + Liberties safeguarded by the first eight amendments 985 + Liberty of contract (labor relations) 985 + In general 985 + Laws regulating hours of labor 986 + Laws regulating labor in mines 987 + Laws prohibiting employment of children in hazardous + occupations 987 + Laws regulating payment of wages 987 + Minimum wage laws 988 + Workmen's compensation laws 989 + Collective bargaining 991 + Regulation of charges; Business affected with a Public + Interest 994 + History 994 + Nebbia _v._ New York 996 + Judicial review of publicly determined rates and charges 998 + Development 998 + Limitations on judicial review 1000 + Ben Avon Case 1003 + History of the valuation question 1004 + Regulation of public utilities (other than rates) 1008 + In general 1008 + Compulsory expenditures 1009 + Grade crossings and other expenditures by railroads 1010 + Compellable services 1011 + Intercompany railway service 1012 + Intercompany discriminatory service charges 1013 + Safety regulations applicable to railroads 1014 + Liabilities and penalties 1014 + Regulation of corporations, business, professions, and + trades 1016 + Domestic corporations 1016 + Foreign corporations 1016 + Business in general 1017 + Laws prohibiting trusts, discrimination, restraint of + trade 1017 + Statutes preventing fraud in sale of goods 1018 + Blue sky laws; laws regulating boards of trade, etc. 1019 + Trading stamps 1019 + Banking 1020 + Loans, interest, assignments 1020 + Insurance 1021 + Professions, trades, occupations 1023 + Pharmacies 1023 + Miscellaneous business, professions, trades, and + occupations 1023 + Protection of resources of the State 1025 + Oil and gas 1025 + Protection of property damaged by mining or drilling of + wells 1026 + Water 1026 + Apple and citrus fruit industries 1026 + Fish and game 1027 + Limitations on ownership 1027 + Zoning, building lines, etc. 1027 + Safety regulations 1029 + Police power 1029 + General 1029 + Health measures 1030 + Protection of water supply 1030 + Garbage 1030 + Sewers 1030 + Food and Drugs, etc. 1030 + Milk 1030 + Protection of public morals 1031 + Gambling and lotteries 1031 + Red light districts 1031 + Sunday blue laws 1031 + Intoxicating liquor 1031 + Regulation of motor vehicles and motor carriers 1032 + Succession to property 1033 + Administration of estates 1034 + Abandoned property 1034 + Vested rights, remedial rights; political candidacy 1034 + Man's best friend 1035 + Control of local units of government 1035 + Taxation 1036 + In general 1036 + Public purpose 1036 + Other considerations affecting validity: excessive + burden; ration of amount to benefit received 1037 + Estate, gift and inheritance taxes 1037 + Other types of taxes 1036 + Income taxes 1036 + Franchise taxes 1036 + Severance taxes 1036 + Real property taxes (assessment) 1036 + Real property taxes (special assessments) 1040 + Jurisdiction to tax 1041 + Land 1041 + Tangible personalty 1041 + Intangible personalty 1042 + General 1042 + Taxes on intangibles sustained 1042 + Taxes on intangibles invalidated 1044 + Transfer taxes (inheritance, estate, gift taxes) 1045 + Corporation taxes 1049 + Intangible personal property 1049 + Privilege taxes measured by corporate stock 1050 + Privilege taxes measured by gross receipts 1051 + Taxes on tangible personal property 1052 + Income and other taxes 1053 + Individual incomes 1053 + Incomes of foreign corporations 1054 + Chain store taxes 1055 + Insurance company taxes 1055 + Procedure in taxation 1056 + In general 1056 + Notice and hearing in relation to general taxes 1057 + Notice and hearing in relation to assessments 1057 + Notice and hearing in relation to special assessments 1058 + Sufficiency and manner of giving notice 1060 + Sufficiency of remedy 1060 + Laches 1061 + Collection of taxes 1061 + Eminent Domain 1062 + Historical development 1062 + Public use 1063 + Necessity for a taking 1064 + What constitutes a taking for a public use 1064 + Just compensation 1066 + Uncompensated takings 1067 + Consequential damages 1067 + Limits to the above rule 1068 + Due process in eminent domain 1069 + Notice 1069 + Hearing 1069 + Occupation in advance of condemnation 1070 + Due process in civil proceedings 1070 + Some general criteria 1070 + Ancient usage and uniformity 1070 + Equality 1071 + Due process and judicial process 1071 + Jurisdiction 1072 + In general 1072 + How perfected: by voluntary appearance or service of + process 1072 + Service of process in actions in personam: individuals, + resident and nonresident 1073 + Suits in personam 1075 + Suability of foreign corporations 1075 + Service of process 1080 + Actions in rem--proceedings against land 1080 + Actions in rem--attachment proceedings 1081 + Actions in rem--corporations, estates, trusts, etc. 1081 + Actions in rem--divorce proceedings 1083 + Misnomer of defendant--false return, etc. 1083 + Notice and hearing 1084 + Legislative proceedings 1084 + Administrative proceedings 1084 + Statutory proceedings 1087 + Judicial proceedings 1087 + Sufficiency of notice and hearing 1088 + Power of States to regulate procedure 1089 + Generally 1089 + Pleading and practice 1089 + Commencement of actions 1089 + Pleas in abatement 1090 + Defenses 1090 + Amendments and continuances 1091 + Costs, damages, and penalties 1091 + Statutes of limitation 1092 + Evidence and presumptions 1093 + Jury trials: dispensing with trials 1096 + Due process in criminal proceedings 1096 + General 1096 + Indefinite statutes: right of accused to knowledge of + offense 1097 + Abolition of the grand jury 1098 + Right to counsel 1098 + Right to trial by jury 1109 + Self-incrimination: forced confessions 1111 + Unreasonable searches and seizures 1121 + Conviction based on perjured testimony 1124 + Confrontation: presence of the accused; public trial 1126 + Trial by impartial tribunal 1131 + Other attributes of a fair trial 1132 + Excessive bail, cruel and unusual punishment, sentence 1133 + Double jeopardy 1135 + Rights of prisoners 1137 + Access to the courts 1137 + Appeals: corrective process 1137 + Due process: miscellaneous 1139 + Appeals 1139 + Federal review of State procedure 1140 + Equal protection of the laws 1141 + Definition of terms 1141 + What constitutes State action 1141 + "Persons" 1142 + "Within its jurisdiction" 1143 + "Equal protection of the laws" 1144 + Legislative classifications 1145 + Taxation 1146 + Classifications for the purpose of taxation 1147 + Foreign corporations 1149 + Income taxes 1150 + Inheritance taxes 1150 + Motor vehicle taxes 1151 + Poll taxes 1152 + Property taxes 1152 + Special assessment 1152 + Police power 1153 + Classification 1153 + Administrative discretion 1157 + Alien laws 1157 + Labor relations 1158 + Monopolies 1160 + Punishment for crime 1160 + Segregation 1161 + Political rights 1163 + Procedure 1165 + General doctrine 1165 + Access to courts 1166 + Corporations 1166 + Expenses of litigation 1167 + Selection of jury 1167 +Section 2. Apportionment of representation 1170 + In general 1171 + "Indians not taxed" 1171 + Right to vote 1172 + Reduction of State's representation 1172 +Section 3. Disqualification of officers 1173 + In general 1173 +Section 4. Public debt, etc. 1174 +Section 5. Enforcement 1175 + Scope of the provision 1175 + + +RIGHTS OF CITIZENS + + +Amendment 14 + +Section 1. All persons born or naturalized in the United +States, and subject to the jurisdiction thereof, are citizens of the +United States and of the State wherein they reside. No State shall make +or enforce any law which shall abridge the privileges or immunities of +citizens of the United States; nor shall any State deprive any person of +life, liberty, or property, without due process of law; nor deny to any +person within its jurisdiction the equal protection of the laws. + + +Citizens of the United States + + +KIND AND SOURCES OF CITIZENSHIP + +There are three categories of persons who, if subject to the +jurisdiction of the United States, are citizens thereof: (1) those who +are born citizens, of whom there are two classes, those who are born in +the United States and those who are born abroad of American parentage; +(2) those who achieve citizenship by qualifying for it in accordance +with the naturalization statutes; (3) those who have citizenship thrust +upon them, such as the members of certain Indian tribes and the +inhabitants of certain dependencies of the United States. In the present +connection we are interested in those who are citizens by virtue of +birth in the United States.[1] + + +HISTORY + +In the famous Dred Scott Case,[2] Chief Justice Taney had ruled that +United States citizenship was enjoyed by two classes of individuals: (1) +white persons born in the United States as descendants of "persons, who +were at the time of the adoption of the Constitution recognized as +citizens in the several States and [who] became also citizens of this +new political body," the United States of America, and (2) those who, +having been "born outside the dominions of the United States," had +migrated thereto and been naturalized therein. The States were +competent, he conceded, to confer State citizenship upon anyone in their +midst, but could not make the recipient of such status a citizen of the +United States. The Negro, however, according to the Chief Justice, was +ineligible to attain United States citizenship either from a State or by +virtue of birth in the United States, even as a free man descended from +a Negro residing as a free man in one of the States at the date of +ratification of the Constitution. That basic document did not +contemplate the possibility of Negro citizenship.[3] By the Fourteenth +Amendment this deficiency of the original Constitution was cured.[4] + + +JUDICIAL ELUCIDATION OF THE CITIZENSHIP CLAUSE + +By the decision in 1898 in United States _v._ Wong Kim Ark,[5] all +children born in the United States to aliens, even temporary sojourners, +if they are not exempt from territorial jurisdiction, are citizens +irrespective of race or nationality. But children born in the United +States to alien enemies in hostile occupation or to diplomatic +representatives of a foreign state, not being "subject to the +jurisdiction thereof," i.e., of the United States, are not citizens.[6] +Likewise persons born on a public vessel of a foreign country while +within the waters of the United States are not considered as having been +born within the jurisdiction of the United States, and hence are not +citizens thereof.[7] Conversely, a Chinese born on the high seas aboard +an American vessel of Chinese parents residing in the United States was +declared not to be a citizen on the ground of not having been born "in +the United States."[8] But a child who was born in like circumstances of +parents who were citizens of the United States was declared, shortly +before the Civil War, to be a citizen thereof.[9] + + +NATIONAL AND STATE CITIZENSHIP + +With the ratification of the Fourteenth Amendment a distinction between +citizenship of the United States and citizenship of a State was clearly +recognized and established. "Not only may a man be a citizen of the +United States without being a citizen of a State, but an important +element is necessary to convert the former into the latter. He must +reside within the State to make him a citizen of it, but it is only +necessary that he should be born or naturalized in the United States to +be a citizen of the Union. It is quite clear, then, that there is a +citizenship of the United States, and a citizenship of a State, which +are distinct from each other, and which depend upon different +characteristics or circumstances in the individual."[10] National +citizenship, although not created by this amendment, was thereby made +"paramount and dominant."[11] + + +CORPORATIONS + +Citizens of the United States within the meaning of this article must be +natural and not artificial persons; a corporate body is not a citizen of +the United States.[12] + + +Privileges and Immunities + + +PURPOSE AND EARLY HISTORY OF THE CLAUSE + +Unique among constitutional provisions, the privileges and immunities +clause of the Fourteenth Amendment enjoys the distinction of having been +rendered a "practical nullity" by a single decision of the Supreme Court +rendered within five years after its ratification. In the +Slaughter-House Cases[13] a bare majority of the Court frustrated the +aims of the most aggressive sponsors of this clause, to whom was +attributed an intention to centralize "in the hands of the Federal +Government large powers hitherto exercised by the States" with a view to +enabling business to develop unimpeded by State interference. This +expansive alteration of the Federal System was to have been achieved by +converting the rights of the citizens of each State as of the date of +the adoption of the Fourteenth Amendment into privileges and immunities +of United States citizenship and thereafter perpetuating this newly +defined _status quo_ through judicial condemnation of any State law +challenged as "abridging" any one of the latter privileges. To have +fostered such intentions, the Court declared, would have been "to +transfer the security and protection of all the civil rights * * * to +the Federal Government, * * * to bring within the power of Congress the +entire domain of civil rights heretofore belonging exclusively to the +States," and to "constitute this court a perpetual censor upon all +legislation of the States, on the civil rights of their own citizens, +with authority to nullify such as it did not approve as consistent with +those rights, as they existed at the time of the adoption of this +amendment * * * [The effect of] so great a departure from the structure +and spirit of our institutions; * * * is to fetter and degrade the State +governments by subjecting them to the control of Congress, in the +exercise of powers heretofore universally conceded to them of the most +ordinary and fundamental character; * * * We are convinced that no such +results were intended by the Congress * * *, nor by the legislatures +* * * which ratified" this amendment, and that the sole "pervading +purpose" of this and the other War Amendments was "the freedom of the +slave race." + +Conformably to these conclusions the Court advised the New Orleans +butchers that the Louisiana statute conferring on a single corporation a +monopoly of the business of slaughtering cattle abrogated no rights +possessed by them as United States citizens and that insofar as that law +interfered with their claimed privilege of pursuing the lawful calling +of butchering animals, the privilege thus terminated was merely one of +"those which belonged to the citizens of the States as such, and" that +these had been "left to the State governments for security and +protection" and had not been by this clause "placed under the special +care of the Federal Government." The only privileges which the latter +clause expressly protected against State encroachment were declared to +be those "which owe their existence to the Federal Government, its +National character, its Constitution, or its laws."--privileges, indeed, +which had been available to United States citizens even prior to the +adoption of the Fourteenth Amendment; and inasmuch as under the +principle of federal supremacy no State ever was competent to interfere +with their enjoyment, the privileges and immunities clause of the +Fourteenth Amendment was thereby reduced to a superfluous reiteration of +a prohibition already operative against the States.[14] + + +PRIVILEGES AND IMMUNITIES OF CITIZENS OF THE UNITED STATES + +Although the Court has expressed a reluctance to attempt a definitive +enumeration of those privileges and immunities of United States citizens +such as are protected against State encroachment, it nevertheless felt +obliged in the Slaughter-House Cases "to suggest some which owe their +existence to the Federal Government, its National character, its +Constitution, or its laws." Among those then identified were the +following: right of access to the seat of Government, and to the +seaports, subtreasuries, land offices, and courts of justice in the +several States; right to demand protection of the Federal Government on +the high seas, or abroad; right of assembly and privilege of the writ of +_habeas corpus_; right to use the navigable waters of the United States; +and rights secured by treaty.[15] + +In a later listing in Twining _v._ New Jersey,[16] decided in 1908, the +Court recognized "among the rights and privileges" of national +citizenship the following: The right to pass freely from State to +State;[17] the right to petition Congress for a redress of +grievances;[18] the right to vote for national officers;[19] the right +to enter public lands;[20] the right to be protected against violence +while in the lawful custody of a United States marshal;[21] and the +right to inform the United States authorities of violations of its +laws.[22] Earlier in a decision not referred to in the aforementioned +enumeration, the Court had also acknowledged that the carrying on of +interstate commerce is "a right which every citizen of the United States +is entitled to exercise."[23] + +During the past fifteen years this clause has been accorded somewhat +uneven treatment by the Court which, on two occasions at least, has +manifested a disposition to magnify the restraint which it imposes on +State action by enlarging previous enumerations of the privileges +protected thereby. In Hague _v._ C.I.O.,[24] decided in 1939, the Court +affirmed that freedom to use municipal streets and parks for the +dissemination of information concerning provisions of a federal statute +and to assemble peacefully therein for discussion of the advantages and +opportunities offered by such act was a privilege and immunity of a +United States citizen. The latter privilege was deemed to have been +abridged by city officials who acted in pursuance of a void ordinance +which authorized a director of safety to refuse permits for parades or +assemblies on streets or parks whenever he believed riots could thereby +be avoided and who forcibly evicted from their city union organizers who +sought to use the streets and parks for the aforementioned purposes.[25] +Again in Edwards _v._ California,[26] four Justices[27] who concurred in +the judgment that a California statute restricting the entry of indigent +migrants was unconstitutional preferred to rest their decision on the +ground that the act interfered with the right of citizens to move freely +from State to State. In thus rejecting the commerce clause, relied on by +the majority as the basis for disposing of this case, the minority +thereby resurrected an issue first advanced in the old decision of +Crandall _v._ Nevada[28] and believed to have been resolved in favor of +the commerce clause by Helson and Randolph _v._ Kentucky.[29] Colgate +_v._ Harvey,[30] however, which was decided in 1935 and overruled in +1940,[31] represented the first attempt by the Court since adoption of +the Fourteenth Amendment to convert the privileges and immunities clause +into a source of protection of other than those "interests growing out +of the relationship between the citizen and the national government." +Here the Court declared that the right of a citizen, resident in one +State, to contract in another, to transact any lawful business, or to +make a loan of money, in any State other than that in which the citizen +resides was a privilege of national citizenship which was abridged by a +State income tax law excluding from taxable income interest received on +money loaned within the State.[32] Whether or not this overruled +precedent is again to be revived and the privileges and immunities +clause again placed in readiness for further expansion cannot yet be +determined with assurance; but in Oyama _v._ California,[33] decided in +1948, the Court, in a single sentence, affirmed the contention of a +native-born youth that California's Alien Land Law, applied so as to +work a forfeiture of property purchased in his name with funds advanced +by his parent, a Japanese alien ineligible to citizenship and precluded +from owning land by the terms thereof, deprived him "of his privileges +as an American citizen." In none of the previous enumerations has the +right to acquire and retain property been set forth as one of the +privileges of American citizenship protected against State abridgment; +nor is any connection readily discernible between this right and the +"relationship between the citizen and the national government." However, +the right asserted by Oyama was supported by a "federal statute enacted +before the Fourteenth Amendment" which provided that "all citizens of +the United States shall have the same right, in every State and +Territory, as is enjoyed by white citizens thereof to * * * purchase, +* * * and hold * * * real * * * property."[34] + + +PRIVILEGES HELD NOT WITHIN THE PROTECTION OF THE CLAUSE + +In the following cases State action was upheld against the challenge +that it abridged the immunities or privileges of citizens of the United +States: + +(1) Statute limiting hours of labor in mines.[35] + +(2) Statute taxing the business of hiring persons to labor outside the +State.[36] + +(3) Statute requiring employment of only licensed mine managers and +examiners, and imposing liability on the mine owner for failure to +furnish a reasonably safe place for workmen.[37] + +(4) Statute restricting employment under public works of the State to +citizens of the United States, with a preference to citizens of the +State.[38] + +(5) Statute making railroads liable to employees for injuries caused by +negligence of fellow servants, and abolishing the defense of +contributory negligence.[39] + +(6) Statute prohibiting a stipulation against liability for negligence +in delivery of interstate telegraph messages.[40] + +(7) Refusal of State court to license a woman to practice law.[41] + +(8) Law taxing in the hands of a resident citizen a debt owing from a +resident of another State and secured by mortgage of land in the +debtors' State.[42] + +(9) Statutes regulating the manufacture and sale of intoxicating +liquors.[43] + +(10) Statute regulating the method of capital punishment.[44] + +(11) Statute restricting the franchise to male citizens.[45] + +(12) Statute requiring persons coming into a State to make a declaration +of intention to become citizens and residents thereof before being +permitted to register as voters.[46] + +(13) Statute restricting dower, in case wife at time of husband's death +is a nonresident, to lands of which he died seized.[47] + +(14) Statute restricting right to jury trial in civil suits at common +law.[48] + +(15) Statute restricting drilling or parading in any city by any body of +men without license of the Governor. "The right voluntarily to associate +together as a military company or organization, or to drill * * *, +without, and independent of, an act of Congress or law of the State +authorizing the same, is not an attribute of national citizenship."[49] + +(16) Provision for prosecution upon information, and for a jury (except +in capital cases) of eight persons.[50] Upon an extended review of the +cases, the Court held that "the privileges and immunities of citizens of +the United States do not necessarily include all the rights protected by +the first eight amendments to the Federal Constitution against the +powers of the Federal Government"; and specifically, that the right to +be tried for an offense only upon indictment, and by a jury of 12, rests +with the State governments and is not protected by the Fourteenth +Amendment. "Those are not distinctly privileges or immunities [of +national citizenship] where everyone has the same as against the Federal +Government, whether citizen or not." Similarly, freedom from testimonial +compulsion, or self-incrimination, is not "an immunity that is protected +by the Fourteenth Amendment against State invasion."[51] + +(17) Statute penalizing the becoming or remaining a member of any +oath-bound association (other than benevolent orders, etc.,) with +knowledge that the association has failed to file its constitution and +membership lists. The privilege of remaining a member of such an +association, "if it be a privilege arising out of citizenship at all," +is an incident of State rather than United States citizenship.[52] + +(18) Statute allowing a State to appeal in criminal cases for errors of +law and to retry the accused.[53] + +(19) Statute making the payment of poll taxes a prerequisite to the +right to vote.[54] + +(20) Statute whereby deposits in banks outside the State are taxed at +50c per $100 and deposits in banks within the State are taxed at 10c per +$100. "* * * the right to carry out an incident to a trade, business or +calling such as the deposit of money in banks is not a privilege of +national citizenship."[55] + +(21) The right to become a candidate for State office is a privilege of +State citizenship, not national citizenship.[56] + +(22) The Illinois Election Code which requires that a petition to form +and nominate candidates for a new political party be signed by at least +200 voters from each of at least 50 of the 102 counties in the State, +notwithstanding that 52% of the voters reside in only one county and +87%, in the 49 most populous counties.[57] + + +Due Process of Law Clause + + +HISTORICAL DEVELOPMENT + +Although many years after ratification the Court ventured the not very +informative observation that the Fourteenth Amendment "operates to +extend * * * the same protection against arbitrary State legislation, +affecting life, liberty and property, as is offered by the Fifth +Amendment,"[58] and that "ordinarily if an act of Congress is valid +under the Fifth Amendment it would be hard to say that a State law in +like terms was void under the Fourteenth,"[59] the significance of the +due process clause as a restraint on State action appears to have been +grossly underestimated by litigants no less than by the Court in the +years immediately following its adoption. From the outset of our +constitutional history due process of law as it occurs in the Fifth +Amendment had been recognized as a restraint upon government, but, with +one conspicuous exception,[60] only in the narrower sense that a +legislature must provide "due process for the enforcement of law"; and +it was in accordance with this limited appraisal of the clause that the +Court disposed of early cases arising thereunder. + +Thus, in the Slaughter-House Cases,[61] in which the clause was timidly +invoked by a group of butchers challenging on several grounds the +validity of a Louisiana statute which conferred upon one corporation the +exclusive privilege of butchering cattle in New Orleans, the Court +declared that the prohibition against a deprivation of property "has +been in the Constitution since the adoption of the Fifth Amendment, as a +restraint upon the Federal power. It is also to be found in some form of +expression in the constitutions of nearly all the States, as a restraint +upon the power of the States. * * * We are not without judicial +interpretation, therefore, both State and National, of the meaning of +this clause. And it is sufficient to say that under no construction of +that provision that we have ever seen, or any that we deem admissible, +can the restraint imposed by the State of Louisiana upon the exercise of +their trade by the butchers of New Orleans be held to be a deprivation +of property within the meaning of that provision."[62] Four years later, +in Munn _v._ Illinois,[63] the Court again refused to interpret the due +process clause as invalidating State legislation regulating the rates +charged for the transportation and warehousing of grain. Overruling +contentions that such legislation effected an unconstitutional +deprivation of property by preventing the owner from earning a +reasonable compensation for its use and by transferring to the public an +interest in a private enterprise, Chief Justice Waite emphasized that +"the great office of statutes is to remedy defects in the common law as +they are developed, * * * We know that this power [of rate regulation] +may be abused; but that is no argument against its existence. For +protection against abuses by legislatures the people must resort to the +polls, not to the courts."[64] + +Deploring such attempts, nullified consistently in the preceding cases, +to convert the due process clause into a substantive restraint on the +powers of the States, Justice Miller in Davidson _v._ New Orleans[65] +obliquely counseled against a departure from the conventional +application of the clause, albeit he acknowledged the difficulty of +arriving at a precise, all inclusive, definition thereof. "It is not a +little remarkable," he observed, "that while this provision has been in +the Constitution of the United States, as a restraint upon the authority +of the Federal Government, for nearly a century, and while, during all +that time, the manner in which the powers of that government have been +exercised has been watched with jealousy, and subjected to the most +rigid criticism in all its branches, this special limitation upon its +powers has rarely been invoked in the judicial forum or the more +enlarged theatre of public discussion. But while it has been part of the +Constitution, as a restraint upon the power of the States, only a very +few years, the docket of this court is crowded with cases in which we +are asked to hold that State courts and State legislatures have deprived +their own citizens of life, liberty, or property without due process of +law. There is here abundant evidence that there exists some strange +misconception of the scope of this provision as found in the Fourteenth +Amendment. In fact, it would seem, from the character of many of the +cases before us, and the arguments made in them, that the clause under +consideration is looked upon as a means of bringing to the test of the +decision of this court the abstract opinions of every unsuccessful +litigant in a State court of the justice of the decision against him, +and of the merits of the legislation on which such a decision may be +founded. If, therefore, it were possible to define what it is for a +State to deprive a person of life, liberty, or property without due +process of law, in terms which would cover every exercise of power thus +forbidden to the State, and exclude those which are not, no more useful +construction could be furnished by this or any other court to any part +of the fundamental law. But, apart from the imminent risk of a failure +to give any definition which would be at once perspicuous, +comprehensive, and satisfactory, there is wisdom, * * *, in the +ascertaining of the intent and application of such an important phrase +in the Federal Constitution, by the gradual process of judicial +inclusion and exclusion, as the cases presented for decision shall +require, * * *"[66] + +In thus persisting in its refusal to review, on other than procedural +grounds, the constitutionality of State action, the Court was rejecting +additional business; but a bare half-dozen years later, in again +reaching a result in harmony with past precedents, the Justices gave +fair warning of the imminence of a modification of their views. Thus, +after noting that the due process clause, by reason of its operation +upon "all the powers of government, legislative as well as executive and +judicial," could not be appraised solely in terms of the "sanction of +settled usage," Justice Mathews, speaking for the Court in Hurtado _v._ +California,[67] declared that, "arbitrary power, enforcing its edicts to +the injury of the persons and property of its subjects, is not law, +whether manifested as the decree of a personal monarch or of an +impersonal multitude. And the limitations imposed by our constitutional +law upon the action of the governments, both State and national, are +essential to the preservation of public and private rights, +notwithstanding the representative character of our political +institutions. The enforcement of these limitations by judicial process +is the device of self-governing communities to protect the rights of +individuals and minorities, as well against the power of numbers, as +against the violence of public agents transcending the limits of lawful +authority, even when acting in the name and wielding the force of the +government."[68] Thus were the States put on notice that every species +of State legislation, whether dealing with procedural or substantive +rights, was subject to the scrutiny of the Court when the question of +its essential justice is raised. + + +Police Power: Liberty: Property + +What induced the Court to dismiss its fears of upsetting the balance in +the distribution of powers under the Federal System and to enlarge its +own supervisory powers over state legislation were the appeals more and +more addressed to it for adequate protection of property rights against +the remedial social legislation which the States were increasingly +enacting in the wake of industrial expansion. At the same time the added +emphasis on the due process clause which satisfaction of these requests +entailed afforded the Court an opportunity to compensate for its earlier +virtual nullification of the privileges and immunities clause of the +amendment. So far as such modification of its position needed to be +justified in legal terms, theories concerning the relation of government +to private rights were available to demonstrate the impropriety of +leaving to the state legislatures the same ample range of police power +they had enjoyed prior to the Civil War. Preliminary, however, to this +consummation the Slaughter-House Cases and Munn _v._ Illinois had to be +overruled in part, at least, and the views of the dissenting Justices in +those cases converted into majority doctrine. + +About twenty years were required to complete this process, in the course +of which the restricted view of the police power advanced by Justice +Field in his dissent in Munn _v._ Illinois,[69] namely, that it is +solely a power to prevent injury, was in effect ratified by the Court +itself. This occurred in 1887, in Mugler _v._ Kansas,[70] where the +power was defined as embracing no more than the power to promote public +health, morals, and safety. During the same interval, ideas embodying +the social compact and natural rights, which had been espoused by +Justice Bradley in his dissent in the Slaughter-House Cases,[71] had +been transformed tentatively into constitutionally enforceable +limitations upon government,[72] with the consequence that the States, +in exercising their police power, could foster only those purposes of +health, morals, and safety which the Court had enumerated and could +employ only such means as would not unreasonably interfere with the +fundamental natural rights of liberty and property, which Justice +Bradley had equated with freedom to pursue a lawful calling and to make +contracts for that purpose.[73] + +So having narrowed the scope of the State's police power in deference to +the natural rights of liberty and property, the Court next proceeded to +read into the latter currently accepted theories of _laissez faire_ +economics, reinforced by the doctrine of evolution as elaborated by +Herbert Spencer, to the end that "liberty", in particular, became +synonymous with governmental hands-off in the field of private economic +relations. In Budd _v._ New York,[74] decided in 1892, Justice Brewer in +a dictum declared: "The paternal theory of government is to me odious. +The utmost possible liberty to the individual, and the fullest possible +protection to him and his property, is both the limitation and duty of +government." And to implement this point of view the Court next +undertook to water down the accepted maxim that a State statute must be +presumed to be valid until clearly shown to be otherwise.[75] The first +step was taken with the opposite intention. This occurred in Munn _v._ +Illinois,[76] where the Court, in sustaining the legislation before it, +declared: "For our purposes we must assume that, if a state of facts +could exist that would justify such legislation, it actually did exist +when the statute now under consideration was passed."[77] Ten years +later, in Mugler _v._ Kansas[78] this procedure was improved upon, and a +State-wide anti-liquor law was sustained on the basis of the proposition +that deleterious social effects of the excessive use of alcoholic +liquors were sufficiently notorious for the Court to be able to take +notice of them; that is to say, for the Court to review and appraise +the considerations which had induced the legislature to enact the +statute in the first place.[79] However, in Powell _v._ +Pennsylvania,[80] decided the following year, the Court, being +confronted with a similar act involving oleomargarine, concerning which +it was unable to claim a like measure of common knowledge, fell back +upon the doctrine of presumed validity, and declaring that "it does not +appear upon the face of the statute, or from any of the facts of which +the Court must take judicial cognizance, that it infringes rights +secured by the fundamental law, * * *"[81] sustained the measure. + +In contrast to the presumed validity rule under which the Court +ordinarily is not obliged to go beyond the record of evidence submitted +by the litigants in determining the validity of a statute, the judicial +notice principle, as developed in Mugler _v._ Kansas, carried the +inference that unless the Court, independently of the record, is able to +ascertain the existence of justifying facts accessible to it by the +rules governing judicial notice, it will be obliged to invalidate a +police power regulation as bearing no reasonable or adequate relation to +the purposes to be subserved by the latter; namely, health, morals, or +safety. For appraising State legislation affecting neither liberty nor +property, the Court found the rule of presumed validity quite +serviceable; but for invalidating legislation constituting governmental +interference in the field of economic relations, and, more particularly, +labor-management relations, the Court found the principle of judicial +notice more advantageous. This advantage was enhanced by the disposition +of the Court, in litigation embracing the latter type of legislation, to +shift the burden of proof from the litigant charging unconstitutionality +to the State seeking enforcement. To the latter was transferred the task +of demonstrating that a statute interfering with the natural right of +liberty or property was in fact "authorized" by the Constitution and not +merely that the latter did not expressly prohibit enactment of the same. + + +Liberty of Contract--Labor Relations + +Although occasionally acknowledging in abstract terms that freedom of +contract is not absolute but is subject to restraint by the State in +the exercise of its police powers, the Court, in conformity with the +aforementioned theories of economics and evolution, was in fact +committed to the principle that freedom of contract is the general rule +and that legislative authority to abridge the same could be justified +only by exceptional circumstances. To maintain such abridgments at a +minimum, the Court intermittently employed the rule of judicial notice +in a manner best exemplified by a comparison of the early cases of +Holden _v._ Hardy[82] and Lochner _v._ New York,[83] decisions which +bear the same relation to each other as Powell _v._ Pennsylvania[84] and +Mugler _v._ Kansas.[85] + +In Holden _v._ Hardy, decided in 1898, the Court, in reliance upon the +principle of presumed validity, allowed the burden of proof to remain +with those attacking the validity of a statute and upheld a Utah act +limiting the period of labor in mines to eight hours per day. Taking +cognizance of the fact that labor below the surface of the earth was +attended by risk to person and to health and for these reasons had long +been the subject of State intervention, the Court registered its +willingness to sustain a limitation on freedom of contract which a State +legislature had adjudged "necessary for the preservation of health of +employees," and for which there were "reasonable grounds for believing +that * * * [it was] supported by the facts."[86] + +Seven years later, however, a radically altered court was predisposed in +favor of the doctrine of judicial notice, through application of which +it arrived at the conclusion, in Lochner _v._ New York, that a law +restricting employment in bakeries to ten hours per day and 60 hours per +week was an unconstitutional interference with the right of adult +laborers, _sui juris_, to contract with respect to their means of +livelihood. Denying that in so holding that the Court was in effect +substituting its own judgment for that of the legislature, Justice +Peckham, nevertheless, maintained that whether the act was within the +police power of the State was a "question that must be answered by the +Court"; and then, in disregard of the accumulated medical evidence +proffered in support of the act, uttered the following observation: "In +looking through statistics regarding all trades and occupations, it may +be true that the trade of a baker does not appear to be as healthy as +some trades, and is also vastly more healthy than still others. To the +common understanding the trade of a baker has never been regarded as an +unhealthy one. * * * It might be safely affirmed that almost all +occupations more or less affect the health. * * * But are we all, on +that account, at the mercy of the legislative majorities?"[87] + +Of two dissenting opinions filed in the case, one, prepared by Justice +Harlan, stressed the abundance of medical testimony tending to show that +the life expectancy of bakers was below average, that their capacity to +resist diseases was low, and that they were peculiarly prone to suffer +irritations of the eyes, lungs, and bronchial passages; and concluded +that the very existence of such evidence left the reasonableness of the +measure under review open to discussion and that the the latter fact, of +itself, put the statute within legislative discretion. +"'Responsibility,' according to Justice Harlan, 'therefore, rests upon +the legislators, not upon the courts. No evils arising from such +legislation could be more far reaching than those that might come to our +system of government if the judiciary, abandoning the sphere assigned to +it by the fundamental law, should enter the domain of legislation, and +upon grounds merely of justice or reason or wisdom annul statutes that +had received the sanction of the people's representatives. * * * The +public interest imperatively demand--that legislative enactments should +be recognized and enforced by the courts as embodying the will of the +people, unless they are plainly and palpably beyond all question in +violation of the fundamental law of the Constitution.'"[88] + +The second dissenting opinion written by Justice Holmes has received the +greater measure of attention, however, for the views expressed therein +were a forecast of the line of reasoning to be followed by the Court +some decades later. According to Justice Holmes: "This case is decided +upon an economic theory which a large part of the country does not +entertain. If it were a question whether I agreed with that theory, I +should desire to study it further and long before making up my mind. But +I do not conceive that to be my duty, because I strongly believe that my +agreement or disagreement has nothing to do with the right of a majority +to embody their opinions in law. It is settled by various decisions of +this Court that State constitutions and State laws may regulate life in +many ways which we as legislators might think as injudicious or if you +like as tyrannical as this, and which equally with this interfere with +the liberty to contract. * * * The Fourteenth Amendment does not enact +Mr. Herbert Spencer's Social Statics. * * * But a Constitution is not +intended to embody a particular economic theory, whether of paternalism +and the organic relation of the citizen to the State or of _laissez +faire_. It is made for people of fundamentally differing views, and the +accident of our finding certain opinions natural and familiar or novel +and even shocking ought not to conclude our judgment upon the question +whether statutes embodying them conflict with the Constitution * * * I +think that the word 'liberty,' in the Fourteenth Amendment is perverted +when it is held to prevent the natural outcome of a dominant opinion, +unless it can be said that a rational and fair man necessarily would +admit that the statute proposed would infringe fundamental principles as +they have been understood by the traditions of our people and our +law."[89] + +In part, Justice Holmes's criticism of his colleagues was unfair, for +his "rational and fair man" could not function in a vacuum, and, in +appraising the constitutionality of State legislation, could no more +avoid being guided by his preferences or "economic predilections" than +were the Justices constituting the majority. Insofar as he was resigned +to accept the broader conception of due process of law in preference to +the historical concept thereof as pertaining to the enforcement rather +than the making of law and did not affirmatively advocate a return to +the maxim that the possibility of abuse is no argument against +possession of a power, Justice Holmes, whether consciously or not, was +thus prepared to observe, along with his opponents in the majority, the +very practices which were deemed to have rendered inevitable the +assumption by the Court of a "perpetual censorship" over State +legislation. The basic distinction, therefore, between the positions +taken by Justice Peckham for the majority and Justice Holmes, for what +was then the minority, was the espousal of the conflicting doctrines of +judicial notice by the former and of presumed validity by the latter. + +Although the Holmes dissent bore fruit in time in the form of the +Bunting _v._ Oregon[90] and Muller _v._ Oregon[91] decisions overruling +the Lochner Case, the doctrinal approach employed in the earlier of +these by Justice Brewer continued to prevail until the depression in the +1930's. In view of the shift in the burden of proof which application of +the principle of judicial notice entailed, counsel defending the +constitutionality of social legislation developed the practice of +submitting voluminous factual briefs replete with medical or other +scientific data intended to establish beyond question a substantial +relationship between the challenged statute and public health, safety, +or morals. Whenever the Court was disposed to uphold measures pertaining +to industrial relations, such as laws limiting hours[92] of work, it +generally intimated that the facts thus submitted by way of +justification had been authenticated sufficiently for it to take +judicial cognizance thereof; but whenever it chose to invalidate +comparable legislation, such as enactments establishing minimum wages +for women and children,[93] it brushed aside such supporting data, +proclaimed its inability to perceive any reasonable connection between +the statute and the legitimate objectives of health or safety, and +condemned the former as an arbitrary interference with freedom of +contract. + +During the great Depression, however, the _laissez faire_ tenet of +self-help was supplanted by the belief that it is peculiarly the duty of +government to help those who are unable to help themselves; and to +sustain remedial legislation enacted in conformity with the latter +philosophy, the Court had to revise extensively its previously +formulated concepts of "liberty" under the due process clause. Not only +did the Court take judicial notice of the demands for relief arising +from the depression when it overturned prior holdings and sustained +minimum wage legislation,[94] but in upholding State legislation +designed to protect workers in their efforts to organize and bargain +collectively, the Court virtually had to exclude from consideration the +employer's contention that such legislation interfered with his liberty +of contract in contravention of the due process clause and to exalt as a +fundamental right the correlative liberty of employees, which right the +State legislatures were declared to be competent to protect against +interference from private sources. To enable these legislatures to +balance the equities, that is, to achieve equality in bargaining power +between employer and employees, the Court thus sanctioned a diminution +of liberty in the sense of the employer's freedom of contract and a +corresponding increase in the measure of liberty enjoyable by the +workers. To the extent that it acknowledged that liberty of the +individual may be infringed by the coercive conduct of other individuals +no less than by the arbitrary action of public officials, the Court in +effect transformed the due process clause into a source of encouragement +to State legislatures to intervene affirmatively by way of mitigating +the effects of such coercion. By such modification of its views, +liberty, in the constitutional sense of freedom resulting from restraint +upon government, was replaced by the civil liberty which an individual +enjoys by virtue of the restraints which government, in his behalf, +imposes upon his neighbors. + + +DEFINITIONS + + +"Persons" Defined + +Notwithstanding the historical controversy that has been waged as to +whether the framers of the Fourteenth Amendment intended the word, +"person," to mean only natural persons, or whether the word, "person," +was substituted for the word, "citizen," with a view to protecting +corporations from oppressive state legislation,[95] the Supreme Court, +as early as the Granger cases,[96] decided in 1877, upheld on the merits +various state laws without raising any question as to the status of +railway corporation-plaintiffs to advance due process contentions. There +is no doubt that a corporation may not be deprived of its property +without due process of law;[97] and although prior decisions have held +that the "liberty" guaranteed by the Fourteenth Amendment is the liberty +of natural, not artificial, persons,[98] nevertheless a newspaper +corporation was sustained, in 1936, in its objection that a state law +deprived it of liberty of press.[99] As to the natural persons protected +by the due process clause, these include all human beings regardless of +race, color, or citizenship.[100] + +Ordinarily, the mere interest of an official as such, in contrast to an +actual injury sustained by a natural or artificial person through +invasion of personal or property rights, has not been deemed adequate to +enable him to invoke the protection of the Fourteenth Amendment against +State action.[101] Similarly, municipal corporations are viewed as +having no standing "to invoke the provisions of the Fourteenth Amendment +in opposition to the will of their creator," the State.[102] However, +State officers are acknowledged to have an interest, despite their not +having sustained any "private damage," in resisting an "endeavor to +prevent the enforcement of laws in relation to which they have official +duties," and, accordingly, may apply to federal courts for the "review +of decisions of State courts declaring State statutes which [they] seek +to enforce to be repugnant to the" Fourteenth Amendment.[103] + + +Due Process and the Police Power + +Definition.--The police power of a State today embraces +regulations designed to promote the public convenience or the general +prosperity as well as those to promote public safety, health, morals, +and is not confined to the suppression of what is offensive, disorderly, +or unsanitary, but extends to what is for the greatest welfare of the +State.[104] + +Limitations on the Police Power.--Because the police power of a +State is the least limitable of the exercises of government, such +limitations as are applicable thereto are not readily definable. Being +neither susceptible of circumstantial precision, nor discoverable by any +formula, these limitations can be determined only through appropriate +regard to the subject matter of the exercise of that power.[105] "It is +settled [however] that neither the 'contract' clause nor the 'due +process' clause had the effect of overriding the power of the State to +establish all regulations that are reasonably necessary to secure the +health, safety, good order, comfort, or general welfare of the +community; that this power can neither be abdicated nor bargained away, +and is inalienable even by express grant; and that all contract and +property [or other vested] rights are held subject to its fair +exercise."[106] Insofar as the police power is utilized by a State, the +means employed to effect its exercise can be neither arbitrary nor +oppressive, but must bear a real and substantial relation to an end +which is public, specifically, the public health, public safety, or +public morals, or some other phase of the general welfare.[107] + +The general rule is that if a police power regulation goes too far, it +will be recognized as a taking of property for which compensation must +be paid.[108] Yet where mutual advantage is a sufficient compensation, +an ulterior public advantage may justify a comparatively insignificant +taking of private property for what in its immediate purpose seems to be +a private use.[109] On the other hand, mere "cost and inconvenience +(different words, probably, for the same thing) would have to be very +great before they could become an element in the consideration of the +right of a State to exert its reserved power or its police power."[110] +Moreover, it is elementary that enforcement of uncompensated obedience +to a regulation passed in the legitimate exertion of the police power is +not a taking without due process of law.[111] Similarly, initial +compliance with a regulation which is valid when adopted occasions no +forfeiture of the right to protest when that regulation subsequently +loses its validity by becoming confiscatory in its operation.[112] + + +"Liberty" in General + +Definition.--"While * * * [the] Court has not attempted to +define with exactness the liberty thus guaranteed, the term has received +much consideration and some of the included things have been definitely +stated. Without doubt, it denotes not merely freedom from bodily +restraint but also right of the individual to contract, to engage in any +of the common occupations of life, to acquire useful knowledge, to +marry, establish a home and bring up children, to worship God according +to the dictates of his own conscience, and generally to enjoy those +privileges long recognized at common law as essential to the orderly +pursuit of happiness by free men."[113] + +Personal Liberty: Compulsory Vaccination: Sexual +Sterilization.--Personal liberty is not infringed by a compulsory +vaccination law[114] enacted by a State or its local subdivisions +pursuant to the police power for the purpose of protecting inhabitants +against the spread of smallpox. "The principle that sustains compulsory +vaccination is [also] broad enough to cover" a statute providing for +sexual sterilization of inmates of State supported institutions who are +found to be afflicted with an hereditary form of insanity or +imbecility.[115] Equally constitutional is a statute which provides for +the commitment, after probate proceedings, of a psychopathic +personality, defined by the State court as including those persons who, +by habitual course of misconduct in sexual matters, have evidenced utter +lack of power to control their sexual impulses and are likely to commit +injury.[116] However, a person cannot be deprived of his liberty under a +vague statute which subjected to fine or imprisonment, as a "gangster," +any one not engaged in any lawful occupation, known to be a member of a +gang consisting of two or more persons, and who had been convicted of a +crime in any State in the Union.[117] + +Liberties Pertaining to Education (of Teachers, Parents, +Pupils).--A State law forbidding the teaching in any private +denominational, parochial, or public school, of any modern language, +other than English, to any child who has not successfully passed the +eighth grade was declared, in Meyer _v._ Nebraska[118] to be an +unconstitutional interference with the right of a foreign language +teacher to teach and "of parents to engage him so to instruct their +children." Although the Court did incorporate into its opinion in this +case the general definition of "liberty" set forth above, its holding +was substantially a reaffirmation of the liberty, in this instance of +the teacher, to pursue a lawful calling free and clear of arbitrary +restraints imposed by the State. In Pierce _v._ Society of the +Sisters,[119] the Court elaborated further upon the liberty of parents +when it declared that a State law requiring compulsory public school +education of children, aged eight to sixteen, "unreasonably interferes +with the liberty of parents and guardians to direct the upbringing and +education of children under their control."[120] As to a student, +neither his liberty to pursue his happiness nor his property or property +rights were infringed when he was denied admission to a State university +for refusing to comply with a law requiring renunciation of allegiance +to, or affiliation with, a Greek letter fraternity. The right to attend +such an institution was labelled, not an absolute, but a conditional +right; inasmuch as the school was wholly under the control of the State, +the latter was competent to enact measures such as the present one +regulating internal discipline thereat.[121] Similarly, "the Fourteenth +Amendment as a safeguard of 'liberty' [does not] confer the right to be +students in the State university free from obligation to take military +training as one of the conditions of attendance."[122] + +Liberties Safeguarded by the First Eight Amendments.--In what +has amounted to a constitutional revolution, the Court, since the end of +World War I, has substantially enlarged the meaning of the term, +"liberty," appearing in the due process clause of the Fourteenth +Amendment. As a consequence of this altered interpretation, States and +their local subdivisions have been restrained in their attempts to +interfere with the press, or with the freedom of speech, assembly, or +religious precepts of their inhabitants, and prevented from withholding +from persons charged with commission of a crime certain privileges +deemed essential to the enjoyment of a "fair trial." Cases revealing to +what extent there has been incorporated into the "liberty" of the due +process clause of the Fourteenth Amendment the substance of the First +Amendment are set forth in the discussion presented under the latter +amendment; whereas the decisions indicating the scope of the absorption +into the Fourteenth Amendment of the procedural protection afforded by +the Fourth, Fifth, Sixth, and Eighth Amendments are included in the +material hereinafter presented under the subtitle, Criminal Proceedings. + + +Liberty of Contract (Labor Relations) + +In General.--Liberty of contract, a concept originally advanced +by Justices Bradley and Field in the Slaughter-House Cases,[123] was +elevated to the status of accepted doctrine in 1897 in Allgeyer _v._ +Louisiana.[124] Applied repeatedly in subsequent cases as a restraint on +State power, freedom of contract has also been alluded to as a property +right, as is evident in the language of the Court in Coppage _v._ +Kansas:[125] "Included in the right of personal liberty and the right of +private property--partaking of the nature of each--is the right to make +contracts for the acquisition of property. Chief among such contracts is +that of personal employment, by which labor and other services are +exchanged for money or other forms of property. If this right be struck +down or arbitrarily interfered with, there is a substantial impairment +of liberty in the long-established constitutional sense." + +However, by a process of reasoning that was almost completely discarded +during the depression, the Court was nevertheless able, prior thereto, +to sustain State ameliorative legislation by acknowledging that freedom +of contract was "a qualified and not an absolute right. * * * Liberty +implies the absence of arbitrary restraint, not immunity from reasonable +regulations and prohibitions imposed in the interests of the community. +* * * In dealing with the relation of the employer and employed, the +legislature has necessarily a wide field of discretion in order that +there may be suitable protection of health and safety, and that peace +and good order may be promoted through regulations designed to insure +wholesome conditions of work and freedom from oppression."[126] Through +observance of such qualifying statement the Court was induced to uphold +the following types of labor legislation. + +Laws Regulating Hours of Labor.--The due process clause has +been construed as permitting enactment by the States of laws: (1) +limiting the hours of labor in mines and smelters to eight hours per +day;[127] (2) prescribing eight hours a day or a maximum of 48 hours per +week as a limitation of the hours at which women may labor;[128] and (3) +providing that no person shall work in any mill, etc., more than ten +hours per day (with exceptions) but permitting overtime, not to exceed +three hours a day, on condition that it is paid at the rate of one and +one-half times the regular wage.[129] Because of the almost plenary +powers of the State and its municipal subdivisions to determine the +conditions under which work shall go forward on public projects, +statutes limiting the hours of labor on public works were also upheld at +a relatively early date.[130] + +Laws Regulating Labor in Mines.--The regulation of mines being +so patently within the police power, States have been upheld in the +enactment of laws providing for appointment of mining inspectors and +requiring payment of their fees by mine owners,[131] compelling +employment of only licensed mine managers and mine examiners, and +imposing upon mine owners liability for the wilful failure of their +manager and examiner to furnish a reasonably safe place for +workmen.[132] Other similar regulations which have been sustained have +included laws requiring that entries be of a specified width,[133] that +boundary pillars be installed between adjoining coal properties as a +protection against flood in case of abandonment,[134] and that +washhouses be provided for employees.[135] + +Laws Prohibiting Employment of Children in Hazardous +Occupations.--To make effective its prohibition against the +employment of persons under 16 years of age in dangerous occupations, a +State has been held to be competent to require employers at their peril +to ascertain whether their employees are in fact below that age.[136] + +Laws Regulating Payment of Wages.--No unconstitutional +deprivation of liberty of contract was deemed to have been occasioned by +a statute requiring redemption in cash of store orders or other +evidences of indebtedness issued by employers in payment of wages.[137] +Nor was any constitutional defect discernible in laws requiring +railroads to pay their employees semimonthly[138] and to pay them on the +day of discharge, without abatement or reduction, any funds due +them.[139] Similarly, freedom of contract was held not to be infringed +by an act requiring that miners, whose compensation was fixed on the +basis of weight, be paid according to coal in the mine car rather than +at a certain price per ton for coal screened after it has been brought +to the surface, and conditioning such payment on the presence of no +greater percentage of dirt or impurities than that ascertained as +unavoidable by the State Industrial Commission.[140] + +Minimum Wage Laws.--The theory that a law prescribing minimum +wages for women and children violates due process by impairing freedom +of contract was finally discarded in 1937.[141] The current theory of +the Court, particularly when labor is the beneficiary of legislation, +was recently stated by Justice Douglas for a majority of the Court, in +the following terms: "Our recent decisions make plain that we do not sit +as a superlegislature to weigh the wisdom of legislation nor to decide +whether the policy which it expresses offends the public welfare. The +legislative power has limits * * *. But the state legislatures have +constitutional authority to experiment with new techniques; they are +entitled to their own standard of the public welfare; they may within +extremely broad limits control practices in the business-labor field, so +long as specific constitutional prohibitions are not violated and so +long as conflicts with valid and controlling federal laws are +avoided."[142] Proceeding from this basis the Court sustained a Missouri +statute giving employees the right to absent themselves four hours on +election day, between the opening and closing of the polls, without +deduction of wages for their absence. It was admitted that this was a +minimum wage law, but, said Justice Douglas, "the protection of the +right of suffrage under our scheme of things is basic and fundamental," +and hence within the police power. "Of course," the Justice added, "many +forms of regulation reduce the net return of the enterprise * * * Most +regulations of business necessarily impose financial burdens on the +enterprise for which no compensation is paid. Those are part of the +costs of our civilization. Extreme cases are conjured up where an +employer is required to pay wages for a period that has no relation to +the legitimate end. Those cases can await decision as and when they +arise. The present law has no such infirmity. It is designed to +eliminate any penalty for exercising the right of suffrage and to remove +a practical obstacle to getting out the vote. The public welfare is a +broad and inclusive concept. The moral, social, economic, and physical +well-being of the community is one part of it; the political well-being, +another. The police power which is adequate to fix the financial burden +for one is adequate for the other. The judgment of the legislature that +time out for voting should cost the employee nothing may be a debatable +one. It is indeed conceded by the opposition to be such. But if our +recent cases mean anything, they leave debatable issues as respects +business, economic, and social affairs to legislative decision. We could +strike down this law only if we returned to the philosophy of the +_Lochner_, _Coppage_, and _Adkins_ cases."[143] + +Workmen's Compensation Laws.--"This Court repeatedly has upheld +the authority of the States to establish by legislation departures from +the fellow-servant rule and other common-law rules affecting the +employer's liability for personal injuries to the employee.[144] * * * +These decisions have established the propositions that the rules of law +concerning the employer's responsibility for personal injury or death of +an employee arising in the course of employment are not beyond +alteration by legislation in the public interest; that no person has a +vested right entitling him to have these any more than other rules of +law remain unchanged for his benefit; and that, if we exclude arbitrary +and unreasonable changes, liability may be imposed upon the employer +without fault, and the rules respecting his responsibility to one +employee for the negligence of another and respecting contributory +negligence and assumption of risk are subject to legislative +change."[145] + +Accordingly, a State statute which provided an exclusive system to +govern the liabilities of employers and the rights of employees and +their dependents, in respect of compensation for disabling injuries and +death caused by accident in certain hazardous occupations,[146] was held +not to work a deprivation of property without due process of law in +rendering the employer liable irrespective of the doctrines of +negligence, contributory negligence, assumption of risk, and negligence +of fellow-servants, nor in depriving the employee, or his dependents, of +the higher damages which, in some cases, might be rendered under these +doctrines.[147] Likewise, an act which allowed an injured employee an +election of remedies permitting restricted recovery under a compensation +law although guilty of contributory negligence, and full compensatory +damages under the Employers' Liability Act did not deprive an employer +of his property without due process of law.[148] Similarly, an elective +statute has been sustained which provided that, in actions against +employers rejecting the system, the inquiry should be presumed to have +resulted directly from the employer's negligence and the burden of +rebutting said presumption shall rest upon the latter.[149] + +Contracts limiting liability for injuries, consummated in advance of +the injury received, may be prohibited by the State, which may further +stipulate that subsequent acceptance of benefits under such contracts +shall not constitute satisfaction of a claim for injuries thereafter +sustained.[150] Also, as applied to a nonresident alien employee hired +within the State but injured on the outside, an act forbidding any +contracts exempting employers from liability for injuries outside the +State has been construed as not denying due process to the +employer.[151] The fact that a State, after having allowed employers to +cover their liability with a private insurer, subsequently withdrew that +privilege and required them to contribute to a State Insurance Fund was +held to effect no unconstitutional deprivation as applied to an employer +who had obtained protection from an insurance company before this change +went into effect.[152] Likewise, as long as the right to come under a +workmen's compensation statute is optional with an employer, the latter, +having chosen to accept benefits thereof, is estopped from attempting to +escape its burdens by challenging the constitutionality of a provision +thereof which makes the finding of fact of an industrial commission +conclusive if supported by any evidence regardless of its +preponderance.[153] + +When, by the terms of a workmen's compensation statute, the wrongdoer, +in case of wrongful death, is obliged to indemnify the employer or the +insurance carrier of the employer of the decedent, in the amount which +the latter were required under said act to contribute into special +compensation funds, no unconstitutional deprivation of the wrongdoer's +property was discernible.[154] By the same course of reasoning neither +the employer nor the carrier was held to have been denied due process by +another provision in an act requiring payments by them, in case an +injured employee dies without dependents, into special funds to be used +for vocational rehabilitation or disability compensation of injured +workers of other establishments.[155] Compensation also need not be +based exclusively on loss of earning power, and an award authorized by +statute for injuries resulting in disfigurement of the face or head, +independent of compensation for inability to work, has been conceded to +be neither an arbitrary nor oppressive exercise of the police +power.[156] + +Collective Bargaining.--During the 1930's, liberty, in the +sense of freedom of contract, judicially translated into what one +Justice has labelled the Allgeyer-Lochner-Adair-Coppage doctrine,[157] +lost its potency as an obstacle to the enforcement of legislation +calculated to enhance the bargaining capacity of workers as against that +already possessed by their employers. Prior to the manifestation, in +Senn _v._ Tile Layers Protective Union,[158] decided in 1937, of a +greater willingness to defer to legislative judgment as to the wisdom +and need of such enactments, the Court had, on occasion, sustained +measures such as one requiring every corporation to furnish, upon +request, to any employee, when discharged or leaving its service, a +letter, signed by the superintendent or manager, setting forth the +nature and duration of his service to the corporation and stating truly +the cause of his leaving.[159] Added provisions that such letters shall +be on plain paper selected by the employee, signed in ink and sealed, +and free from superfluous figures, and words, were also sustained as not +amounting to any unconstitutional deprivation of liberty and +property.[160] On the ground that the right to strike is not absolute, +the Court in a similar manner upheld a statute by the terms of which an +officer of a labor union was punished for having ordered a strike for +the purpose of enforcing a payment to a former employee of a stale claim +for wages.[161] + +The significance of the case of Senn _v._ Tile Layers Protective +Union[162] as an indicator of the range of the alteration of the Court's +views concerning the constitutionality of State labor legislation +derives in part from the fact that the statute upheld therein was not +appreciably different from that voided in Truax _v._ Corrigan.[163] Both +statutes were alike in that they withheld the remedy of injunction; but +by reason of the fact that the invalidated act did not contain the more +liberal and also more precise definition of a labor dispute set forth in +the later enactment and, above all, did not affirmatively purport to +sanction peaceful picketing only, the Court was enabled to maintain that +Truax _v._ Corrigan, insofar as "the statute there in question was * * * +applied to legalize conduct which was not simply peaceful picketing," +was distinguishable. Specifically, the Court in the Senn Case gave its +approval to the application of a Wisconsin statute which authorized the +giving of publicity to labor disputes, declared peaceful picketing and +patrolling lawful, and prohibited the granting of injunctions against +such conduct to a controversy in which the matter at issue was the +refusal of a tiling contractor employing nonunion workmen to sign a +closed shop agreement unless a provision requiring him to abstain from +working in his business as a tile layer or helper should be eliminated. +Inasmuch as the enhancement of job opportunities for members of the +union was a legitimate objective, the State was held competent to +authorize the fostering of that end by peaceful picketing, and the fact +that the sustaining of the union in its efforts at peaceful persuasion +might have the effect of preventing Senn from continuing in business as +an independent entrepreneur was declared to present an issue of public +policy exclusively for legislative determination.[164] + +The policy of many State legislatures in recent years, however, has been +to adopt legislation designed to control the abuse of the enormous +economic power which previously enacted protective measures enabled +labor unions to amass; and it is the constitutionality of such +restrictive measures that has lately concerned the Court. Thus, in +Railway Mail Association _v._ Corsi,[165] section 43 of New York's Civil +Rights Law which forbids a labor organization to deny any person +membership by reason of race, color, or creed, or to deny any member, on +similar grounds, equal treatment in designation for employment, +promotion, or dismissal by an employer was sustained, when applied to an +organization of railway mail clerks, as not interfering unlawfully with +the latter's right to choose its members nor abridging its property +rights, or liberty of contract. Inasmuch as it held "itself out to +represent the general business needs of employees" and functioned "under +the protection of the State," the union was deemed to have forfeited the +right to claim exemption from legislation protecting workers against +discriminatory exclusion.[166] Similarly approved as constitutional in +Lincoln Union _v._ Northwestern Co.[167] and American Federation of +Labor _v._ American Sash Co.[168] were State laws outlawing the closed +shop; and when labor unions invoked in their own defense the freedom of +contract doctrine that hitherto had been employed to nullify legislation +intended for their protection, the Court, speaking through Justice Black +announced its refusal "to return, * * * to * * * [a] due process +philosophy that has been deliberately discarded. * * * The due process +clause," it maintained, does not "forbid a State to pass laws clearly +designed to safeguard the opportunity of nonunion workers to get and +hold jobs, free from discrimination against them because they are +nonunion workers."[169] Also in harmony with the last mentioned pair of +cases is Auto Workers _v._ Wisconsin Board[170] in which was upheld +enforcement of the Wisconsin Employment Peace Act which proscribed as an +unfair labor practice efforts of a union, after collective bargaining +negotiations had become deadlocked, to coerce an employer through a +"slow-down" in production achieved by the irregular, but frequent, +calling of union meetings during working hours without advance notice to +the employer or notice as to whether or when the employees would return, +and without informing him of the specific terms sought by such tactics. +"No one," declared the Court, can question "the State's power to police +coercion by * * * methods" which involve "considerable injury to +property and intimidation of other employees by threats."[171] Finally, +in Giboney _v._ Empire Storage Co.,[172] the Court acknowledged that no +violation of the Constitution results when a State law forbidding +agreements in restraint of trade is construed by State courts as +forbidding members of a union of ice peddlers from peacefully picketing +a wholesale ice distributor's place of business for the sole purpose of +inducing the latter not to sell to nonunion peddlers. + + +REGULATION OF CHARGES; "BUSINESSES AFFECTED WITH A PUBLIC INTEREST" + + +History + +In endeavoring to measure the impact of the due process clause upon +efforts by the States to control the charges exacted by various +businesses for their services, the Supreme Court, almost from the +inception of the Fourteenth Amendment, has devoted itself to the +examination of two questions: (1) whether that clause precluded that +kind of regulation of certain types of business, and (2) the nature of +the restraint, if any, which this clause imposes on State control of +rates in the case of businesses as to which such control exists. For a +brief interval following the ratification of the Fourteenth Amendment, +the Supreme Court appears to have underestimated the significance of +this clause as a substantive restraint on the power of States to fix +rates chargeable by an industry deemed appropriately subject to such +controls. Thus, in Munn _v._ Illinois,[173] the first of the "Granger" +cases, in which maximum charges established by a State legislature for +Chicago grain elevator companies were challenged, not as being +confiscatory in character, but rather as a regulation beyond the power +of any State agency to impose, the Court, in an opinion that was largely +an _obiter dictum_, declared that the due process clause did not operate +as a safeguard against oppressive rates, that if regulation was +permissible, the severity thereof was within legislative discretion and +could be ameliorated only by resort to the polls. Not much time was +permitted to elapse, however, before the Court effected a complete +withdrawal from this position; and by 1890[174] it had fully converted +the due process clause into a positive restriction which the judicial +branch is duty bound to enforce whenever State agencies seek to impose +rates which, in its estimation, are arbitrary or unreasonable. + +In contrast to the speed with which the Court arrived at those above +mentioned conclusions, more than fifty years were to elapse before it +developed its currently applicable formula for determining the propriety +of subjecting specific businesses to State regulation of their prices or +charges. Prior to 1934, unless a business were "affected with a public +interest," control of its prices, rates, or conditions of service was +viewed as an unconstitutional deprivation of liberty and property +without due process of law. During the period of its application, +however, this standard, "business affected with a public interest," +never acquired any precise meaning; and as a consequence lawyers were +never able to identify all those qualities or attributes which +invariably distinguished a business so affected from one not so +affected. The best the Court ever offered by way of enlightenment was +the following classification of businesses subject to regulation, +prepared by Chief Justice Taft.[175] These were said to comprise: "(1) +Those [businesses] which are carried on under the authority of a public +grant of privileges which either expressly or impliedly imposes the +affirmative duty of rendering a public service demanded by any member of +the public. Such are the railroads, other common carriers and public +utilities. (2) Certain occupations, regarded as exceptional, the public +interest attaching to which, recognized from earliest times, has +survived the period of arbitrary laws by Parliament or Colonial +legislatures for regulating all trades and callings. Such are those of +the keepers of inns, cabs and grist mills. * * * (3) Businesses which +though not public at their inception may be fairly said to have risen to +be such and have become subject in consequence to some government +regulation. They have come to hold such a peculiar relation to the +public that this is superimposed upon them. In the language of the +cases, the owner by devoting his business to the public use, in effect +grants the public an interest in that use and subjects himself to public +regulation to the extent of that interest although the property +continues to belong to its private owner and to be entitled to +protection accordingly." + +Through application of this now outmoded formula the Court found it +possible to sustain State laws regulating charges made by grain +elevators,[176] stockyards,[177] and tobacco warehouses,[178] and fire +insurance rates[179] and commissions paid to fire insurance agents.[180] +Voided, because the businesses sought to be controlled were deemed to be +not so affected, were State statutes fixing the price at which gasoline +may be sold,[181] or at which ticket brokers may resell tickets +purchased from theatres,[182] and limiting competition in the +manufacture and sale of ice through the withholding of licenses to +engage therein.[183] + + +Nebbia _v._ New York + +In upholding, by a vote of five-to-four, a depression induced New York +statute fixing prices at which fluid milk might be sold, the Court, in +1934, finally shelved the concept of "a business affected with a public +interest."[184] Older decisions, insofar as they negatived a power to +control prices in businesses found not "to be clothed with a public use" +were now reviewed as resting, "finally, upon the basis that the +requirements of due process were not met because the laws were found +arbitrary in their operation and effect. Price control, like any other +form of regulation, is [now] unconstitutional only if arbitrary, +discriminatory, or demonstrably irrelevant to the policy the legislature +is free to adopt, and hence an unnecessary and unwarranted interference +with individual liberty." Conceding that "the dairy industry is not, in +the accepted sense of the phrase, a public utility"; that is, a +"business affected with a public interest," the Court in effect declared +that price control henceforth is to be viewed merely as an exercise by +the State of its police power, and as such is subject only to the +restrictions which due process of law imposes on arbitrary interference +with liberty and property. Nor was the Court disturbed by the fact that +a "scientific validity" had been claimed for the theories of Adam Smith +relating to the "price that will clear the market." However much the +minority might stress the unreasonableness of any artificial State +regulation interfering with the determination of prices by "natural +forces,"[185] the majority was content to note that the "due process +clause makes no mention of prices" and that "the courts are both +incompetent and unauthorized to deal with the wisdom of the policy +adopted or the practicability of the law enacted to forward it." + +Having thus concluded that it is no longer the nature of the business +which determines the validity of a regulation of its rates or charges +but solely the reasonableness of the regulation, the Court had little +difficulty in upholding, in Olsen _v._ Nebraska,[186] a State law +prescribing the maximum commission which private employment agencies may +charge. Rejecting the contentions of the employment agencies that the +need for such protective legislation had not been shown, the Court held +that differences of opinion as to the wisdom, need, or appropriateness +of the legislation "suggest a choice which should be left to the +States"; and that there was "no necessity for the State to demonstrate +before us that evils persist despite the competition" between public, +charitable, and private employment agencies. The older case of Ribnik +_v._ McBride,[187] which founded the invalidation of similar legislation +upon the now obsolete concept of a "business affected with a public +interest" was expressly overruled. + + +JUDICIAL REVIEW OF PUBLICLY DETERMINED RATES AND CHARGES + + +Development + +In Munn _v._ Illinois,[188] its initial holding concerning the +applicability of the Fourteenth Amendment to governmental price +fixing,[189] the Court, not only asserted that governmental regulation +of rates charged by public utilities and allied businesses was within +the States' police power but added that the determination of such rates +by a legislature was conclusive and not subject to judicial review or +revision. Expanding the range of permissible governmental fixing of +prices, the Court, in the Nebbia Case,[190] more recently declared that +prices established for business in general would invite judicial +condemnation only if "arbitrary, discriminatory, or demonstrably +irrelevant to the policy the legislature is free to adopt." The latter +standard of judicial appraisal, as will be subsequently noted, +represents less of a departure from the principle enunciated in the Munn +Case than that which the Court evolved, in the years following 1877, to +measure the validity of State imposed public utility rates, and this +difference in the judicial treatment of prices and rates accordingly +warrants an explanation at the outset. Unlike operators of public +utilities who, in return for the grant of certain exclusive, virtually +monopolistic privileges by the governmental unit enfranchising them, +must assume an obligation to provide continuous service, proprietors of +other businesses are in receipt of no similar special advantages and +accordingly are unrestricted in the exercise of their right to liquidate +and close their establishments. At liberty, therefore, as public +utilities invariably are not, to escape, by dissolution, the +consequences of publicly imposed charges deemed to be oppressive, owners +of ordinary business, presumably for that reason, have thus far been +unable to convince the courts that they too, no less than public +utilities, are in need of that protection which judicial review affords. + +Consistently with its initial pronouncement in the Munn Case, that the +reasonableness of compensation allowed under permissible rate regulation +presented a legislative rather than a judicial question, the Court, in +Davidson _v._ New Orleans,[191] also rejected the contention that, by +virtue of the due process clause, businesses, even though subject to +control of their prices or charges, were nevertheless entitled to "just +compensation." Less than a decade was to elapse, however, before the +Court, appalled perhaps by prospective consequences of leaving business +"at the mercy of the majority of the legislature," began to reverse +itself. Thus, in 1886, Chief Justice Waite, in the Railroad Commission +Cases,[192] warned that "this power to regulate is not a power to +destroy; [and] the State cannot do that in law which amounts to a taking +of property for public use without just compensation or without due +process of law"; or, in other words, cannot impose a confiscatory rate. +By treating "due process of law" and "just compensation" as equivalents, +the Court, contrary to its earlier holding in Davidson _v._ New Orleans, +was in effect asserting that the imposition of a rate so low as to +damage or diminish private property ceased to be an exercise of a +State's police power and became one of eminent domain. Nevertheless, +even the added measure of protection afforded by the doctrine of the +Railroad Commission Cases proved inadequate to satisfy public utilities; +for through application of the latter the courts were competent to +intervene only to prevent legislative imposition of a confiscatory rate, +a rate so low as to be productive of a loss and to amount to a taking of +property without just compensation. Nothing less than a judicial +acknowledgment that when the "reasonableness" of legislative rates is +questioned, the courts should finally dispose of the contention was +deemed sufficient by such businesses to afford the relief desired; and +although as late as 1888[193] the Court doubted that it possessed the +requisite power, it finally acceded to the wishes of the utilities in +1890, and, in Chicago, M. & St. P.R. Co. _v._ Minnesota[194] ruled as +follows: "The question of the reasonableness of a rate * * *, involving +as it does the element of reasonableness both as regards the company and +as regards the public, is eminently a question for judicial +investigation, requiring due process of law for its determination. If +the company is deprived of the power of charging rates for the use of +its property, and such deprivation takes place in the absence of an +investigation by judicial machinery, it is deprived of the lawful use of +its property, and thus, in substance and effect, of the property itself, +without due process of law * * *" + +Despite a last hour attempt, in Budd _v._ New York,[195] to reconcile +Munn _v._ Illinois with Chicago, M. & St. P.R. Co. _v._ Minnesota by +confining application of the latter decision to cases wherein rates had +been fixed by a commission and denying its pertinence to rates directly +imposed by a legislature, the Court, in Reagan _v._ Farmers' Loan and +Trust Co.,[196] set at rest all lingering doubts as to the scope of +judicial intervention by declaring that, "if a carrier," in the absence +of a legislative rate, "attempted to charge a shipper an unreasonable +sum," the Court, in accordance with common law principles, will pass on +the reasonableness of its rates and has "jurisdiction * * * to award to +the shipper any amount exacted * * * in excess of a reasonable rate; +* * * The province of the courts is not changed, nor the limit of +judicial inquiry altered, because the legislature instead of a carrier +prescribes the rates."[197] Reiterating virtually the same principle in +Smyth _v._ Ames,[198] the Court not only obliterated the distinction +between confiscatory and unreasonable rates, but also contributed the +additional observation that the requirements of due process are not met +unless a court reviews not merely the reasonableness of a rate but also +determines whether the rate permits the utility to earn a fair return on +a fair valuation of its investment. + + +Limitations on Judicial Review + +As to what courts will not do, when reviewing rate orders of a State +commission, the following negative statements of the Supreme Court +appear to have enduring value. As early as 1894, the Court asserted: +"The courts are not authorized to revise or change the body of rates +imposed by a legislature or a commission; they do not determine whether +one rate is preferable to another, or what under all circumstances would +be fair and reasonable as between the carriers and the shippers; they +do not engage in any mere administrative work; * * * [however, there can +be no doubt] of their power and duty to inquire whether a body of rates +* * * is unjust and unreasonable, * * *, and if found so to be, to +restrain its operation."[199] And later, in 1910, although it was +examining the order of a federal rate-making agency, the Court made a +similar observation which appears to be equally applicable to the +judicial review of regulations of State agencies. The courts cannot, +"under the guise of exerting judicial power, usurp merely administrative +functions by setting aside" an order of the commission within the scope +of the power delegated to such commission, upon the ground that such +power was unwisely or inexpediently exercised.[200] + +Also inferable from these early holdings, and effective to restrict the +bounds of judicial investigation, is the notion that a distinction can +be made between factual questions which give rise only to controversies +as to the wisdom or expediency of an order issued by a commission and +determinations of fact which bear on a commission's power to act; namely +those questions which are inseparable from the constitutional issue of +confiscation, and that judicial review does not extend to the former. +This distinction is accorded adequate emphasis by the Court in +Louisville & N.R. Co. _v._ Garrett,[201] in which it declared that "the +appropriate question for the courts" is simply whether a "commission," +in establishing a rate, "acted within the scope of its power" and did +not violate "constitutional rights * * * by imposing confiscatory +requirements" and that a carrier, contesting the rate thus established, +accordingly was not entitled to have a court also pass upon a question +of fact regarding the reasonableness of a higher rate charged by it +prior to the order of the commission. All that need concern a court, it +said, is the fairness of the proceeding whereby the commission +determined that the existing rate was excessive; but not the expediency +or wisdom of the commission's having superseded that rate with a rate +regulation of its own. + +Likewise, with a view to diminishing the number of opportunities which +courts may enjoy for invalidating rate regulations of State commissions, +the Supreme Court has placed various obstacles in the path of the +complaining litigant. Thus, not only must a person challenging a rate +assume the burden of proof,[202] but he must present a case of "manifest +constitutional invalidity";[203] and if, notwithstanding his effort, the +question of confiscation remains in doubt, no relief will be +granted.[204] Moreover, even though a public utility, which has +petitioned a commission for relief from allegedly confiscatory rates, +need not await indefinitely a decision by the latter before applying to +a court for equitable relief,[205] the latter ought not to interfere in +advance of any experience of the practical result of such rates.[206] + +In the course of time, however, a distinction emerged between ordinary +factual determinations by State commissions and factual determinations +which were found to be inseparable from the legal and constitutional +issue of confiscation. In two older cases arising from proceedings begun +in lower federal courts to enjoin rates, the Court initially adopted the +position that it would not disturb such findings of fact insofar as +these were supported by substantial evidence. Thus, in San Diego Land +and Town Company _v._ National City,[207] the Court declared that: After +a legislative body has fairly and fully investigated and acted, by +fixing what it believes to be reasonable rates, the courts cannot step +in and say its action shall be set aside because the courts, upon +similar investigation, have come to a different conclusion as to the +reasonableness of the rates fixed. "Judicial interference should never +occur unless the case presents, clearly and beyond all doubt, such a +flagrant attack upon the rights of property under the guise of +regulation as to compel the court to say that the rates prescribed will +necessarily have the effect to deny just compensation for private +property taken for the public use." And in a similar later case[208] the +Court expressed even more clearly its reluctance to reexamine factual +determinations of the kind just described. The Court is not bound "to +reexamine and weigh all the evidence, * * *, or to proceed according to +* * * [its] independent opinion as to what are proper rates. It is +enough if * * * [the Court] cannot say that it was impossible for a +fair-minded board to come to the result which was reached." + +Moreover, in reviewing orders of the Interstate Commerce Commission, the +Court, at least in earlier years,[209] chose to be guided by +approximately the same standards of appraisal as it had originally +formulated for examining regulations of State commissions; and inasmuch +as the following excerpt from its holding in Interstate Commerce +Commission _v._ Union Pacific R. Co.[210] represents an adequate +summation of the law as it stood prior to 1920, it is set forth below: +"* * * questions of fact may be involved in the determination of +questions of law, so that an order, regular on its face, may be set +aside if it appears that the rate is so low as to be confiscatory * * *; +or if the Commission acted so arbitrarily and unjustly as to fix rates +contrary to evidence, or without evidence to support it; or if the +authority therein involved has been exercised in such an unreasonable +manner as to cause it to be within the elementary rule that the +substance, and not the shadow, determines the validity of the exercise +of the power. * * * In determining these mixed questions of law and +fact, the Court confines itself to the ultimate question as to whether +the Commission acted within its power. It will not consider the +expediency or wisdom of the order, or whether, on like testimony, it +would have made a similar ruling. * * * [The Commission's] conclusion, +of course, is subject to review, but when supported by evidence is +accepted as final; not that its decision, * * *, can be supported by a +mere scintilla of proof--but the courts will not examine the facts +further than to determine whether there was substantial evidence to +sustain the order." + + +The Ben Avon Case + +These standards of review were abruptly rejected by the Court in Ohio +Valley Water Company _v._ Ben Avon Borough,[211] decided in 1920, as +being no longer sufficient to satisfy the requirements of due process. +Unlike previous litigation involving allegedly confiscatory rate orders +of State commissions, which had developed from rulings of lower federal +courts in injunctive proceedings, this case reached the Supreme Court by +way of appeal from a State appellate tribunal;[212] and although the +latter did in fact review the evidence and ascertained that the State +commission's findings of fact were supported by substantial evidence, it +also construed the statute providing for review as denying to State +courts "the power to pass upon the weight of such evidence." Largely on +the strength of this interpretation of the applicable State statute, the +Supreme Court held that when the order of a legislature, or of a +commission, prescribing a schedule of maximum future rates is challenged +as confiscatory, "the State must provide a fair opportunity for +submitting that issue to a judicial tribunal for determination upon its +own independent judgment as to both law and facts; otherwise the order +is void because in conflict with the due process clause, Fourteenth +Amendment." + +Without departing from the ruling, previously enunciated in Louisville +& N.R. Co. _v._ Garrett,[213] that the failure of a State to grant a +statutory right of judicial appeal from a commission's regulation is not +violative of due process as long as relief is obtainable by a bill in +equity for injunction, the Court also held that the alternative remedy +of injunction expressly provided by State law did not afford an adequate +opportunity for testing judicially a confiscatory rate order. It +conceded the principle stressed by the dissenting Justices that "where a +State offers a litigant the choice of two methods of judicial review, of +which one is both appropriate and unrestricted, the mere fact that the +other which the litigant elects is limited, does not amount to a denial +of the constitutional right to a judicial review."[214] + + +History of the Valuation Question + +For almost fifty years the Court was to wander through a maze of +conflicting formulas for valuing public service corporation property +only to emerge therefrom in 1944 at a point not very far removed from +Munn _v._ Illinois.[215] By holding, in 1942, in Federal Power +Commission _v._ Natural Gas Pipeline Co.,[216] that the "Constitution +does not bind rate-making bodies to the service of any single formula or +combination of formulas," and in 1944, in Federal Power Commission _v._ +Hope Gas Co.,[217] that "it is the result reached not the method +employed which is controlling, * * * [that] it is not the theory but the +impact of the rate order which counts, [and that] if the total effect of +the rate order cannot be said to be unjust and unreasonable, judicial +inquiry under the Act is at an end," the Court, in effect, abdicated +from the position assumed in the Ben Avon Case.[218] Without +surrendering the judicial power to declare rates unconstitutional on +grounds of a substantive[219] deprivation of due process, the Court +announced that it would not overturn a result deemed by it to be just +simply because "the method employed [by a commission] to reach that +result may contain infirmities. * * * [A] Commission's order does not +become suspect by reason of the fact that it is challenged. It is the +product of expert judgment which carries a presumption of validity. And +he who would upset the rate order * * * carries the heavy burden of +making a convincing showing that it is invalid because it is unjust and +unreasonable in its consequences."[220] + +In dispensing with the necessity of observing any of the formulas for +rate computation which previously had currency, the Court did not +undertake to devise, by way of substitution, any discernible guide to +aid it in ascertaining whether a so-called end result is unreasonable. +It did intimate that rate-making "involves a balancing of the investor +and consumer interests," which does not, however, "'insure that the +business shall produce net revenues,' * * * From the investor or company +point of view it is important that there be enough revenue not only for +operating expenses but also for the capital costs of the business. These +include service on the debt and dividends on the stock. * * * By that +standard the return to the equity owner should be commensurate with +returns on investments in other enterprises having corresponding risks. +That return, moreover, should be sufficient to assure confidence in the +financial integrity of the enterprise, so as to maintain its credit and +to attract capital."[221] Nevertheless, in the light of the court's +concentration on the reasonableness of the final result rather than on +the correctness of the methods employed to reach that result, it is +conceivable that methods or formulas, now discredited in whole or in +part, might continue to be observed by State commissions in drafting +rate orders that will prove to be justiciably sustainable.[222] + + +REGULATION OF PUBLIC UTILITIES (OTHER THAN RATES) + + +In General + +By virtue of the nature of the business they carry on and the public's +interest in it, public utilities are subject, as to their local +business, to State regulation exerted either directly by legislature or +by duly authorized administrative bodies.[223] But inasmuch as their +property remains under the full protection of the Constitution, it +follows that whenever this power of regulation is exerted in what the +Court considers to be an "arbitrary" or "unreasonable" way and to be in +effect an infringement upon the right of ownership, such exertion of +power is void as repugnant to the due process clause.[224] Thus, a city +cannot take possession of the equipment of a street railway company, the +franchise of which has expired,[225] although it may subject said +company to the alternative of accepting an inadequate price for its +property or of ceasing operations and removing its property from the +streets.[226] Likewise, a city, which is desirous of establishing a +lighting system of its own, may not remove, without compensation, the +fixtures of a lighting company already occupying the streets under a +franchise;[227] but in erecting its own waterworks in competition with +that of a company which has no exclusive charter, a municipality +inflicts no unconstitutional deprivation.[228] Nor is the property of a +telegraph company illegally taken by a municipal ordinance which +demands, as a condition of the establishment of poles and conduits in +the city streets, that positions be reserved for the city's wires, which +shall be carried free of charge, and which provides for the moving of +the conduits, when necessary, at company expense.[229] And, the fact +that a State, by mere legislative or administrative fiat, cannot convert +a private carrier into a common carrier will not protect a foreign +corporation which has elected to enter a State, the Constitution and +laws of which require that it operate its local private pipe line as a +common carrier. Such foreign corporation is viewed as having waived its +constitutional right to be secure against imposition of conditions which +amount to a taking of property without due process of law.[230] + + +Compulsory Expenditures + +The enforcement of uncompensated obedience to a regulation for the +public health and safety is not an unconstitutional taking of property +without due process of law.[231] Thus, where the applicable rule so +required at the time of the granting of its charter, a water company may +be compelled to furnish connections at its own expense to one residing +on an ungraded street in which it voluntarily laid its lines.[232] +However, if pipe and telephone lines are located on a right of way owned +by a pipe line company, the latter cannot, without a denial of due +process, be required to relocate such equipment at its own +expense;[233] but if its pipes are laid under city streets, a gas +company validly may be obligated to assume the cost of moving them to +accommodate a municipal drainage system.[234] + +To require a turnpike company, as a condition of its taking tolls, to +keep its road in repair and to suspend collection thereof, conformably +to a State statute, until the road is put in good order, does not take +property without due process of law, notwithstanding the fact that +present patronage does not yield revenue sufficient to maintain the road +in proper condition.[235] Nor is a railroad bridge company +unconstitutionally deprived of its property when, in the absence of +proof that the addition will not yield a reasonable return, it is +ordered to widen its bridge by inclusion of a pathway for pedestrians +and a roadway for vehicles.[236] + +Grade Crossings and Other Expenditures by Railroads.--When +railroads are required to repair a viaduct under which they +operate,[237] or to reconstruct a bridge or provide means for passing +water for drainage through their embankment,[238] or to sprinkle that +part of the street occupied by them,[239] their property is not taken +without due process of law. But if an underground cattle-pass is to be +constructed, not as a safety measure but as a means of sparing the +farmer the inconvenience attendant upon the use of an existing and +adequate grade crossing, collection of any part of the cost thereof from +a railroad is a prohibited taking for private use.[240] As to grade +crossing elimination, the rule is well established that the State may +exact from railroads the whole, or such part, of the cost thereof as it +deems appropriate, even though commercial highway users, who make no +contribution whatsoever, benefit from such improvements. But, the power +of the State in this respect is not unlimited. If its imposition is +"arbitrary" and "unreasonable" it may be set aside; but to reach that +conclusion, it may become necessary to consider certain relevant facts; +e.g., whether a new highway on which an underpass is to be constructed +is essential to the transportation needs of a community already well +served by a crossing equipped with devices which are adequate for safety +and convenience of a local traffic; whether the underpass is prescribed +as part of a national system of federal aid highways for the +furtherance of motor vehicle traffic, much of which is in direct +competition with the railroad; whether the increase in such traffic will +greatly decrease rail traffic and hence the revenue of the railroad; +whether the amount of taxes paid by the railroads of the State, part of +which is devoted to the upkeep of public highways used by motor +carriers, is disproportionately higher than the amount paid by motor +carriers.[241] + + +Compellable Services + +The primary duty of a public utility being to serve on reasonable terms +all those who desire the service it renders, it follows that a company +cannot pick and choose and elect to serve only those portions of its +territory which it finds most profitable, leaving the remainder to get +along without the service which it alone is in a position to give. +Compelling a gas company to continue serving specified cities as long as +it continues to do business in other parts of the State entails +therefore no unconstitutional deprivation.[242] Likewise a railway may +be compelled to continue the service of a branch or part of a line +although the operation involves a loss.[243] But even though a utility, +as a condition of enjoyment of powers and privileges granted by the +State, is under a continuing obligation to provide reasonably adequate +service, and even though that obligation cannot be avoided merely +because performance occasions financial loss, yet if a company is at +liberty to surrender its franchise and discontinue operations, it cannot +be compelled to continue at a loss.[244] + +Pursuant to the principle that the State may require railroads to +provide adequate facilities suitable for the convenience of the +communities served by them,[245] such carriers have been obligated to +establish stations at proper places for the convenience of patrons,[246] +to stop all their intrastate trains at county seats,[247] to run a +regular passenger train instead of a mixed passenger and freight +train,[248] to furnish passenger service on a branch line previously +devoted exclusively to carrying freight,[249] to restore a siding used +principally by a particular plant but available generally as a public +track, and to continue, even though not profitable by itself, a +sidetrack[250] as well as the upkeep of a switch-track leading from its +main line to industrial plants.[251] However, a statute requiring a +railroad without indemnification to install switches on the application +of owners of grain elevators erected on its right of way was held +void.[252] Whether a State order requiring transportation service is to +be viewed as reasonable may necessitate consideration of such facts as +the likelihood that pecuniary loss will result to the carrier, the +nature, extent and productiveness of the carrier's intrastate business, +the character of the service required, the public need for it, and its +effect upon service already being rendered.[253] If the service required +has no substantial relation to transportation, it will be deemed +arbitrary and void, as in the case of an order requiring railroads to +maintain cattle scales to facilitate trading in cattle,[254] and of a +prohibition against letting down an unengaged upper berth while the +lower berth was occupied.[255] + +Intercompany Railway Service.--"Since the decision in Wisconsin +M. & P.R. Co. _v._ Jacobson, 179 U.S. 287 (1900), there can be no doubt +of the power of a State, acting through an administrative body, to +require railroad companies to make track connections. But manifestly +that does not mean that a Commission may compel them to build branch +lines, so as to connect roads lying at a distance from each other; nor +does it mean that they may be required to make connections at every +point where their tracks come close together in city, town and country, +regardless of the amount of business to be done, or the number of +persons who may utilize the connection if built. The question in each +case must be determined in the light of all the facts, and with a just +regard to the advantage to be derived by the public and the expense to +be incurred by the carrier. * * * If the order involves the use of +property needed in the discharge of those duties which the carrier is +bound to perform, then, upon proof of the necessity, the order will be +granted, even though 'the furnishing of such necessary facilities may +occasion an incidental pecuniary loss.' * * * Where, however, the +proceeding is brought to compel a carrier to furnish a facility not +included within its absolute duties, the question of expense is of more +controlling importance. In determining the reasonableness of such an +order the Court must consider all the facts--the places and persons +interested, the volume of business to be affected, the saving in time +and expense to the shipper, as against the cost and loss to the +carrier."[256] + +Although a carrier is under a duty to accept goods tendered at its +station, it cannot be required, upon payment simply for the service of +carriage, to accept cars offered at an arbitrary connection point near +its terminus by a competing road seeking to reach and use the former's +terminal facilities. Nor may a carrier be required to deliver its cars +to connecting carriers without adequate protection from loss or undue +detention or compensation for their use.[257] But a carrier may be +compelled to interchange its freight cars with other carriers under +reasonable terms,[258] and to accept, for reshipment over its lines to +points within the State, cars already loaded and in suitable +condition.[259] + +Intercompany Discriminatory Railroad Service Charges.--Due +process is not denied when two carriers, who wholly own and dominate a +small connecting railroad, are prohibited from exacting higher charges +from shippers accepting delivery over said connecting road than are +collected from shippers taking delivery at the terminals of said +carriers.[260] Nor is it "unreasonable" or "arbitrary" to require a +railroad to desist from demanding freight in advance on merchandise +received from one carrier while it accepts merchandise of the same +character at the same point from another carrier without such +prepayment.[261] + + +Safety Regulations Applicable to Railroads + +The following regulations with reference to railroads have been upheld: +a prohibition against operation on certain streets,[262] restrictions on +speed, operations, etc., in business sections,[263] requirement of +construction of a sidewalk across a right of way,[264] or removal of a +track crossing a thoroughfare,[265] compelling the presence of a flagman +at a crossing notwithstanding that automatic device might be cheaper and +better,[266] compulsory examination of employees for color +blindness,[267] full crews on certain trains,[268] specification of a +type of locomotive headlight,[269] safety appliance regulations,[270] +and a prohibition on the heating of passenger cars from stoves or +furnaces inside or suspended from the cars.[271] + + +Liabilities and Penalties + +A statute making the initial carrier[272] or the connecting or +delivering carrier,[273] liable to the shipper for the nondelivery of +goods is not unconstitutional; nor is a law which provides that a +railroad shall be responsible in damages to the owner of property +injured by fire communicated by its locomotive engines and which grants +the railroad an insurable interest in such property along its route and +authority to procure insurance against such liability.[274] Equally +consistent with the requirements of due process are the following two +enactments; the first, imposing on all common carriers a penalty for +failure to settle within a reasonable specified period claims for +freight lost or damaged in shipment and conditioning payment of that +penalty upon recovery by the claimant in subsequent suit of more than +the amount tendered,[275] and the second, levying double damages and an +attorney's fee upon a railroad for failure to pay within a reasonable +time after demand the amount claimed by an owner for stock injured or +killed. However, only in the event that the application of the latter +statute is limited to cases where the plaintiff has not demanded more +than he recovered in court will its constitutionality be upheld;[276] +but when the penalty allowed thereunder is exacted in a case in which +the plaintiff demanded more than he sued for and recovered, a defendant +railroad is arbitrarily deprived of its property without due +process.[277] The requirements of fair play are similarly violated by a +statute which, by imposing double liability for failure to pay the full +amount of damages within 60 days after notice, unless the claimant +recovers less than the amount offered in settlement, in effect penalizes +a carrier for guessing incorrectly what a jury would award.[278] + +To penalize a carrier which has collected transportation charges in +excess of established maximum rates by permitting a person wronged to +sue for and collect as liquidated damages $500 plus a reasonable +attorney's fee is to subject the carrier to a requirement so +unreasonable as to be repugnant to the due process clause; for such +liability is not only disproportionate to actual damages, but is being +exacted under conditions which do not afford the carrier an adequate +opportunity for safely testing the validity of the rates before any +liability for the penalty attaches.[279] Where it appears, however, that +the carrier had an opportunity to test the reasonableness of the rate, +and that its deviation therefrom, by collection of an overcharge, did +not proceed from any belief that the rate was invalid, the validity of +the penalty imposed is not to be tested by comparison with the amount of +the overcharge. Inasmuch as it is imposed as punishment for violation of +a law, the legislature may adjust its amount to the public wrong rather +than the private injury, and the only limitation which the Fourteenth +Amendment imposes is that the penalty prescribed shall not be "so severe +and oppressive as to be wholly disproportioned to the offense and +obviously unreasonable." In accordance with the latter standard, a +statute granting an aggrieved passenger (who recovered $100 for an +overcharge of 60 cents) the right to recover in a civil suit not less +than $50 nor more than $300 plus costs and a reasonable attorney's fee +is constitutional.[280] + +For like reasons, a statute requiring railroads to erect and maintain +fences and cattle guards, and making them liable in double amount of +damages for their failure to so maintain them is not +unconstitutional.[281] Nor is a Nebraska law which establishes a minimum +rate of speed for delivery of livestock and which requires every carrier +violating the same to pay the owner of such livestock the sum of $10 per +car per hour.[282] On the other hand, when a telephone company, in +accordance with its established and uncontested regulations, suspends +the service of a patron in arrears, infliction upon it of penalties +aggregating $3,600, levied pursuant to a statute imposing fines of $100 +per day for alleged discrimination, is so plainly arbitrary and +oppressive as to take property without due process.[283] + + +REGULATION OF CORPORATIONS, BUSINESS, PROFESSIONS, AND TRADES + + +Domestic Corporations + +Although a corporation is the creation of a State which reserves the +power to amend or repeal corporate charters, the retention of such power +will not support the taking of the corporate property without due +process of law. To terminate the life of a corporation by annulling its +charter is not to confiscate its property but to turn it over to the +stockholders after liquidation.[284] Conversely, unreasonable +regulation, as by the imposition of confiscatory rates, although it +ostensibly falls short of termination of the corporate existence, +entails an invalid deprivation.[285] + + +Foreign Corporations + +Foreign corporations also enjoy the protection which the due process +clause affords; but such protection does not entitle them to enter +another State or, once having been permitted to enter, to continue to do +business therein.[286] The power of a State to exclude or to expel a +foreign corporation being almost plenary as long as interstate commerce +is not directly affected, it follows that a State may subject such entry +or continued operation to conditions. Thus, a State law which requires +the filing of articles with a local official as a condition prerequisite +to the validity of conveyances of local realty to such corporations is +not violative of due process.[287] Neither is a State statute which +requires a foreign insurance company, as part of the price of entry, to +maintain reserves computed by a specific percentage of premiums, +including membership fees, received in all States.[288] Similarly a +statute requiring corporations to dispose of farm land not necessary to +the conduct of their business is not invalid as applied to a foreign +hospital corporation, even though the latter, because of changed +economic conditions, is unable to recoup its original investment from +the sale which it is thus compelled to make.[289] + + +Business: In General + +"The Constitution does not guarantee the unrestricted privilege to +engage in a business or to conduct it as one pleases. Certain kinds of +business may be prohibited; and the right to conduct a business, or to +pursue a calling, may be conditioned. * * * Statutes prescribing the +terms upon which those conducting certain businesses may contract, or +imposing terms if they do enter into agreements, are within the State's +competency."[290] + +Laws Prohibiting Trusts, Discrimination, Restraint of Trade.--A +State act prohibiting trusts, etc., is not in conflict with the +Fourteenth Amendment as to a person combining with others to pool and +fix prices, divide net earnings, and prevent competition in the purchase +and sale of grain.[291] Nor does the Fourteenth Amendment preclude a +State from adopting a policy against all combinations of competing +corporations and enforcing it even against combinations which may have +been induced by good intentions and from which benefit and not injury +may have resulted.[292] Nor is freedom of contract unconstitutionally +abridged by a statute which prohibits retail lumber dealers from uniting +in an agreement not to purchase materials from wholesalers selling +directly to consumers in the retailers' localities,[293] nor by a law +punishing combinations for "maliciously" injuring a rival in his +business profession or trade.[294] Similarly, a prohibition of unfair +discrimination by any one engaged in the manufacture or distribution of +a commodity in general use for the purpose of intentionally destroying +competition of any regular dealer in such commodity by making sales +thereof at a lower rate in one section of the State than in another, +after equalization for distance, effects no invalid deprivation of +property or interference with freedom of contract.[295] Liberty of +contract is infringed, however, by a law punishing dealers in cream who +pay higher prices in one locality than in another. Although high bidding +by strong buyers tends toward monopoly, the statute has no reasonable +relation to such bidding, but infringes private rights whose exercise is +not shown to produce evil consequences.[296] A law sanctioning contracts +requiring that commodities identified by trade mark will not be sold by +the vendee or subsequent vendees except at prices stipulated by the +original vendor does not violate the due process clause.[297] + +Statutes Preventing Fraud in Sale of Goods.--Laws and +ordinances tending to prevent frauds and requiring honest weights and +measures in the sale of articles of general consumption have long been +considered lawful exertions of the police power.[298] Thus, a +prohibition on the issuance by other than an authorized weigher of any +weight certificate for grain weighed at any warehouse or elevator where +State weighers are stationed, or to charge for such weighing, is not +unconstitutional.[299] Nor is a municipal ordinance requiring that +commodities sold in load lots by weight be weighed by a public +weigh-master within the city invalid as applied to one delivering coal +from State-tested scales at a mine outside the city.[300] A statute +requiring merchants to record sales in bulk not made in the regular +course of business is also within the police power.[301] + +Similarly, the power of a State to prescribe standard containers to +protect buyers from deception as well as to facilitate trading and to +preserve the condition of the merchandise is not open to question. +Accordingly, an administrative order issued pursuant to an authorizing +statute and prescribing the dimensions, form, and capacity of containers +for strawberries and raspberries is not arbitrary inasmuch as the form +and dimensions bore a reasonable relation to the protection of the +buyers and the preservation in transit of the fruit.[302] Similarly, an +ordinance fixing standard sizes of bread loaves and prohibiting the sale +of other sizes is not unconstitutional.[303] However, by a case decided +in 1924, a "tolerance" of only two ounces in excess of the minimum +weight of a loaf of bread is unreasonable when it is impossible to +manufacture good bread without frequently exceeding the prescribed +tolerance and is consequently unconstitutional;[304] but by one decided +ten years later, regulations issued in furtherance of a statutory +authorization which impose a rate of tolerance not to exceed three +ounces to a pound of bread and requiring that the bread maintain the +statutory minimum weight for not less than 12 hours after cooling are +constitutional.[305] Likewise a law requiring that lard not sold in bulk +should be put upon in containers holding one, three, or five pounds +weight, or some whole multiple of these numbers, does not deprive +sellers of their property without the process of law.[306] + +The right of a manufacturer to maintain secrecy as to his compounds and +processes must be held subject to the right of the State, in the +exercise of the police power and in the promotion of fair dealing, to +require that the nature of the product be fairly set forth.[307] Nor +does a statute providing that the purchaser of harvesting or threshing +machinery for his own use shall have a reasonable time after delivery +for inspecting and testing it, and permitting recission of the contract +if the machinery does not prove reasonably adequate, and further +declaring any agreement contrary to its provisions to be against public +policy and void, does not violate the due process clause.[308] + +Blue Sky Laws; Laws Regulating Boards of Trade, Etc.--In the +exercise of its power to prevent fraud and imposition, a State may +regulate trading in securities within its borders, require a license of +those engaging in such dealing, make issuance of a license dependent on +a public officer's being satisfied of the good repute of the applicants, +and permit him, subject to judicial review of his findings, to revoke +the same.[309] A State may forbid the giving of options to sell or buy +at a future time any grain or other commodity.[310] It may also forbid +sales on margin for future delivery;[311] and may prohibit the keeping +of places where stocks, grain, etc., are sold but not paid for at the +time, unless a record of the same be made and a stamp tax paid.[312] +Making criminal any deduction by the purchaser from the actual weight of +grain, hay, seed, or coal under a claim of right by reason of any custom +or rule of a board of trade is a valid exercise of the police power and +does not deprive the purchaser of his property without due process of +law, nor interfere with his liberty of contract.[313] + +Trading Stamps.--A prohibitive license fee upon the use of +trading stamps is not unconstitutional.[314] + + +Banking + +The Fourteenth Amendment does not deny to States the power to forbid a +business simply because it was permitted at common law; and therefore, +where public interests so demand, a State may place the banking business +under legislative control and prohibit it except under prescribed +conditions. Accordingly, a statute subjecting State banks to assessments +for a depositors' guaranty fund is within the police power of the States +and does not deprive the banks of property without due process of +law.[315] Also, a law requiring savings banks to turn over to the State +deposits inactive for thirty years (when the depositor cannot be found), +with provision for payment to the depositor or his heirs on +establishment of the right, does not effect an invalid taking of the +property of said banks; nor does a Kentucky statute requiring banks to +turn over to the protective custody of that State deposits that have +been inactive ten or twenty-five years (depending on the nature of the +deposit).[316] + +The constitutional rights of creditors in an insolvent bank in the hands +of liquidators are not violated by a later statute permitting reopening +under a reorganization plan approved by the Court, the liquidating +officer, and by three-fourths of the creditors.[317] Similarly, a +Federal Reserve bank is not unlawfully deprived of business rights of +liberty of contract by a law which allows State banks to pay checks in +exchange when presented by or through a Federal Reserve bank, post +office, or express company and when not made payable otherwise by a +maker.[318] + + +Loans, Interest, Assignments + +In fixing maximum rates of interest on money loaned within its borders, +a State is acting clearly within its police power; and the details are +within legislative discretion if not unreasonably or arbitrarily +exercised.[319] Equally valid as an exercise of a State's police power +is a requirement that assignments of future wages as security for debts +of less than $200, to be valid, must be accepted in writing by the +employer, consented to by the assignors, and filed in a public office. +Such a requirement deprives neither the borrower nor the lender of his +property without due process of law.[320] + + +Insurance + +The relations generally of those engaged in the insurance business[321] +as well as the business itself have been peculiarly subject to +supervision and control.[322] The State may fix insurance rates and +regulate the compensation of insurance agents.[323] It may impose a fine +on "any person 'who shall act in any manner in the negotiation or +transaction of unlawful insurance * * * with a foreign insurance company +not admitted to do business [within said State].'"[324] It may forbid +life insurance companies and their agents to engage in the undertaking +business and undertakers to serve as life insurance agents.[325] Nor +does a Virginia law which forbids the making of contracts of casualty or +surety insurance, by companies authorized to do business therein, except +through registered agents, which requires that such contracts applicable +to persons or property in the State be countersigned by a registered +local agent, and which prohibits such agents from sharing more than 50% +of a commission with a nonresident broker, deprive authorized foreign +casualty and surety insurers of due process.[326] And just as all banks +may be required to contribute to a depositors' guaranty fund, so may all +automobile liability insurers be required to submit to the equitable +apportionment among them of applicants who are in good faith entitled +to, but are financially unable to, procure such insurance through +ordinary methods.[327] + +However, a statute which prohibits the assured from contracting directly +with a marine insurance company outside the State for coverage of +property within the State is invalid as a deprivation of liberty without +due process of law.[328] For the same reason, a State may not prevent a +citizen from concluding with a foreign life insurance company at its +home office a policy loan agreement whereby the policy of his life is +pledged as collateral security for a cash loan to become due upon +default in payment of premiums, in which case the entire policy reserve +might be applied to discharge the indebtedness. Authority to subject +such an agreement to the conflicting provisions of domestic law is not +deducible from the power of a State to license a foreign insurance +company as a condition of its doing business therein.[329] + +A stipulation that policies of hail insurance shall take effect and +become binding twenty-four hours after the hour in which an application +is taken and further requiring notice by telegram of rejection of an +application is not invalid.[330] Nor is any arbitrary restraint upon +their liberty of contract imposed upon surety companies by a statute +providing that any bond executed after its enactment for the faithful +performance of a building contract shall inure to the benefit of +materialmen and laborers, notwithstanding any provision of the bond to +the contrary.[331] Likewise constitutional is a law requiring that a +policy, indemnifying a motor vehicle owner against liability to persons +injured through negligent operation, shall provide that bankruptcy of +the insured shall not release the insurer from liability to an injured +person.[332] + +If fire insurance companies, in case of total loss, are compelled to pay +the amount for which the property was insured, less depreciation between +the time of issuing the policy and the time of the loss, such insurers +are not deprived of their property without due process of law.[333] +Moreover, even though it has its attorney-in-fact located in Illinois, +signs all its contracts there, and forwards therefrom all checks in +payment of losses, a reciprocal insurance association, if it covers real +property located in New York, may be compelled to comply with New York +regulations which require maintenance of an office in that State and the +countersigning of policies by an agent resident therein.[334] Also, to +discourage monopolies and to encourage competition in the matter of +rates, a State constitutionally may impose on all fire insurance +companies connected with a tariff association fixing rates a liability +or penalty to be collected by the insured of 25% in excess of actual +loss or damage, stipulations in the insurance contract to the contrary +notwithstanding.[335] + +A State statute by which a life insurance company, if it fails to pay +upon demand the amount due under a policy after death of the insured, is +made liable in addition for fixed damages, reasonable in amount, and for +a reasonable attorney's fee is not unconstitutional even though payment +is resisted in good faith and upon reasonable grounds.[336] It is also +proper by law to cut off a defense by a life insurance company based on +false and fraudulent statements in the application, unless the matter +misrepresented actually contributed to the death of the insured.[337] A +provision that suicide, unless contemplated when the application for a +policy was made, shall be no defense is equally valid.[338] When a +cooperative life insurance association is reorganized so as to permit it +to do a life insurance business of every kind, policyholders are not +deprived of their property without due process of law.[339] Similarly, +when the method of liquidation provided by a plan of rehabilitation of a +mutual life insurance company is as favorable to dissenting +policyholders as would have been the sale of assets and pro rata +distribution to all creditors, the dissenters are unable to show any +taking without due process. Dissenters have no constitutional right to a +particular form of remedy.[340] + + +Professions, Trades, Occupations + +Employment Agencies.--An act imposing license fees for +operating such agencies and prohibiting them from sending applicants to +an employer who has not applied for labor does not deny due process of +law.[341] + +Pharmacies.--A Pennsylvania law forbidding a corporation to own +therein any drug store, excepting those owned and operated at the time +of the enactment, unless all its stockholders are licensed pharmacists, +violates the due process clause as applied to a foreign corporation, all +of whose stockholders are not pharmacists, which sought to extend its +business in Pennsylvania by acquiring and operating therein two +additional stores.[342] + +Miscellaneous Business, Professions, Trades, and +Occupations.--The practice of medicine, using this word in its most +general sense, has long been the subject of regulation;[343] and in +pursuance of its power a State may exclude osteopathic physicians from +hospitals maintained by it or its municipalities;[344] and may regulate +the practice of dentistry by prescribing qualifications that are +reasonably necessary, requiring licenses, establishing a supervisory +administrative board, and by prohibiting certain advertising regardless +of its truthfulness.[345] But while statutes requiring pilots to be +licensed[346] and railroad engineers to pass color blindness tests[347] +have been sustained, an act making it a misdemeanor for a person to act +as a railway passenger conductor without having had two years' +experience as a freight conductor or brakeman is invalid.[348] + +Legislation has been upheld which regulated or required licenses for +admissions to places of amusement,[349] grain elevators,[350] detective +agencies,[351] sale of cigarettes,[352] or cosmetics,[353] and the +resale of theatre tickets;[354] or which absolutely forbade the +advertising of cigarettes,[355] or the use of a representation of the +United States flag on an advertising medium,[356] the solicitation by a +layman of business of collecting and adjusting claims,[357] the keeping +of private markets within six squares of a public market,[358] the +keeping of billiard halls except in hotels,[359] or the purchase by junk +dealers of wire, copper, etc., without ascertaining the sellers' right +to sell.[360] + + +PROTECTION OF RESOURCES OF THE STATE + + +Oil and Gas + +To prevent waste production may be prorated; the prohibition of wasteful +conduct, whether primarily in behalf of the owners of gas in a common +reservoir or because of the public interests involved is consistent with +the Constitution.[361] Thus a statute which defines waste as including, +in addition to its ordinary meaning, economic waste, surface waste, and +waste incident to production in excess of transportation or marketing +facilities or reasonable market demands, and which provides that +whenever full production from a common source of supply can be obtained +only under conditions constituting waste, a producer may take only such +proportion of all that may be produced from such common source without +waste, as the production of his wells bears to the total production of +such common source, is not repugnant to the due process clause.[362] But +whether a system of proration based on hourly potential is as fair as +one based upon estimated recoverable reserves or some other combination +of factors is a question for administrative and not judicial judgment. +In a domain of knowledge still shifting and growing, and in a field +where judgment is necessarily beset by the necessity of inferences +bordering on the conjecture even for those learned in the art, it has +been held to be presumptuous for courts, on the basis of conflicting +expert testimony, to nullify an oil proration order, promulgated by an +administrative commission in execution of a regulatory scheme intended +to conserve a State's oil resources, as violative of due process.[363] +On the other hand, where the evidence showed that an order, purporting +to limit daily total production of a gas field and to prorate the +allowed production among several wells, had for its real purpose, not +the prevention of waste nor the undue drainage from the reserves of +other well owners, but rather the compelling of pipe line owners to +furnish a market to those who had no pipe line connections, the order +was held void as a taking of private property for private benefit.[364] +As authorized by statute the Oklahoma Corporation Commission, finding +that existing low field prices for gas were resulting in economic and +physical waste, issued orders fixing a minimum price for natural gas and +requiring the Cities Service Company to take gas ratably from another +producer in the same field at the dictated price. The orders were +sustained by the Court as conservation measures.[365] + +Even though carbon black is more valuable than the gas from which it is +extracted, and notwithstanding a resulting loss of investment in a plant +for the manufacture of carbon black, a State, in the exercise of its +police power, may forbid the use of natural gas for products, such as +carbon black, in the production of which such gas is burned without +fully utilizing for other manufacturing or domestic purposes the heat +therein contained.[366] Likewise, for the purpose of regulating and +adjusting coexisting rights of surface owners to underlying oil and gas, +it is within the power of a State to prohibit the operators of wells +from allowing natural gas, not conveniently necessary for other +purposes, to come to the surface without its lifting power having been +utilized to produce the greatest quantity of oil in proportion.[367] + + +Protection of Property Damaged by Mining or Drilling of Wells + +An ordinance conditioning the right to drill for oil and gas within the +city limits upon the filing of a bond in the sum of $200,000 for each +well, to secure payment of damages from injuries to any persons or +property resulting from the drilling operation, or maintenance of any +well or structures appurtenant thereto, is consistent with due process +of law, and is not rendered unreasonable by the requirement that the +bond be executed, not by personal sureties, but by a bonding company +authorized to do business in the State.[368] On the other hand, a +Pennsylvania statute, which forbade the mining of coal under private +dwellings or streets or cities by a grantor that had reserved the right +to mine, was viewed as restricting the use of private property too much, +and hence as a "taking" without due process of law.[369] + + +Water + +A statute making it unlawful for a riparian owner to divert water into +another State does not deprive him of property without due process of +law. "The constitutional power of the State to insist that its natural +advantages shall remain unimpaired by its citizens is not dependent upon +any nice estimate of the extent of present use or speculation as to +future needs. * * * What it has it may keep and give no one a reason for +its will."[370] + + +Apple and Citrus Fruit Industries + +A statute requiring the destruction of cedar trees to avoid the +infecting with cedar rust of apple orchards within the vicinity of two +miles is not unreasonable, notwithstanding the absence of provision for +compensation for the trees thus removed or the decrease in the market +value of realty caused by their destruction. Apple growing being one of +the principal agricultural pursuits in Virginia and the value of cedar +trees throughout that State being small as compared with that of apple +orchards, the State was constitutionally competent to decide upon the +destruction of one class of property in order to save another which, in +the judgment of its legislature, is of greater value to the public.[371] +With a similar object in view; namely, to protect the reputation of one +of its major industries, Florida was held to possess constitutional +authority to penalize the delivery for shipment in interstate commerce +of citrus fruits so immature as to be unfit for consumption.[372] + + +Fish and Game + +Over fish found within its waters, and over wild game, the State has +supreme control.[373] It may regulate or prohibit fishing and hunting +within its limits;[374] and for the effective enforcement of such +restrictions, it may forbid the possession within its borders of special +instruments of violations, such as nets, traps, and seines, regardless +of the time of acquisition or the protestations of lawful intentions on +the part of a particular possessor.[375] To conserve for food fish found +within its waters, a State constitutionally may provide that a reduction +plant, processing fish for commercial purposes, may not accept more fish +than can be used without deterioration, waste, or spoilage; and, as a +shield against the covert depletion of its local supply, may render such +restriction applicable to fish brought into the State from the +outside.[376] Likewise, it is within the power of a State to forbid the +transportation outside the State of game killed therein;[377] and to +make illegal possession during the closed season even of game imported +from abroad.[378] + + +LIMITATIONS ON OWNERSHIP + + +Zoning, Building Lines, Etc. + +By virtue of their possession of the police power, States and their +municipal subdivisions may declare that in particular circumstances and +in particular localities specific businesses, which are not nuisances +_per se_ are to be deemed nuisances in fact and in law.[379] +Consequently when, by an ordinance enacted in good faith, a +municipality prohibited brickmaking in a designated area, the land of a +brickmaker in said area was not taken without due process of law, +although such land contained valuable clay deposits which could not +profitably be removed for processing elsewhere, was far more valuable +for brickmaking than for any other purpose, and had been acquired by him +before it was annexed to the municipality, and had long been used as a +brickyard.[380] On the same basis laws have been upheld which restricted +the location of dairy or cow stables,[381] of livery stables,[382] of +the grazing of sheep near habitations.[383] Also a State may declare the +emission of dense smoke in cities or populous neighborhoods a nuisance +and restrain it; and regulations to that effect are not invalid even +though they affect the use of property or subject the owner to the +expense of complying with their terms.[384] + +Not only may the height of buildings be regulated;[385] but it also is +permissible to create a residential district in a village and to exclude +therefrom apartment houses, retail stores, and billboards. Before +holding unconstitutional an ordinance establishing such a district, it +must be shown to be clearly arbitrary and unreasonable and to have no +substantial relation to the public health, safety, or general +welfare.[386] On the other hand, erection of a home for the aged within +a residential district cannot be made to depend upon the consent of +owners of two-thirds of the property within 400 feet of the site +thereof;[387] nor may the interests of nonassenting property owners be +ignored by an ordinance which requires municipal officers to establish +building lines in a block on request of owners of two-thirds of the +property therein.[388] But ordinances requiring lot owners, when +constructing new buildings, to set them back a certain distance from the +street lines is constitutional unless clearly arbitrary or +unreasonable.[389] However, colored persons cannot be forbidden to +occupy houses in blocks where the greater number of houses are occupied +by white persons, and vice versa. Such a prohibition, the practical +effect of which is to prevent the sale of lots in such blocks to colored +persons, violates the constitutional prohibitions against interference +with property rights except by due process of laws; and cannot be +sustained on the ground that it will promote public peace by preventing +race conflicts.[390] + + +Safety Regulations + +As a legitimate exercise of the police power calculated to promote +public safety and diminish fire hazards, municipal ordinances have been +sustained which prohibit the storage of gasoline within 300 feet of any +dwelling,[391] or require that all tanks with a capacity of more than +ten gallons, used for the storage of gasoline, be buried at least three +feet under ground,[392] or which prohibit washing and ironing in public +laundries and wash houses, within defined territorial limits, from 10 +p.m. to 6 a.m.[393] Equally sanctioned by the Fourteenth Amendment is +the demolition and removal by cities of wooden buildings erected within +defined fire limits contrary to regulations in force at the time.[394] +Nor does construction of property in full compliance with existing laws +confer upon the owner an immunity against exercise of the police power. +Thus, a 1944 amendment to a Multiple Dwelling Law, requiring +installation of automatic sprinklers in lodginghouses of nonfireproof +construction erected prior to said enactment, does not, as applied to a +lodginghouse constructed in 1940 in conformity with all laws then +applicable, deprive the owner thereof of due process, even though +compliance entails an expenditure of $7,500 on a property worth only +$25,000.[395] + + +THE POLICE POWER + + +General + +According to settled principles, the police power of a State must be +held to embrace the authority not only to enact directly quarantine[396] +and health laws of every description but also to vest in municipal +subdivisions a capacity to safeguard by appropriate means public health, +safety and morals. The manner in which this objective is to be +accomplished is within the discretion of the State and its localities, +subject only to the condition that no regulation adopted by either shall +contravene the Constitution or infringe any right granted or secured by +that instrument.[397] + + +Health Measures + +Protection of Water Supply.--A State may require the removal of +timber refuse from the vicinity of a watershed for a municipal water +supply to prevent the spread of fire and consequent damage to such +watershed.[398] + +Garbage.--An ordinance for cremation of garbage and refuse at a +designated place as a means for the protection of the public health is +not a taking of private property without just compensation even though +such garbage and refuse may have some elements of value for certain +purposes.[399] + +Sewers.--Compelling property owners to connect with a publicly +maintained system of sewers and enforcing that duty by criminal +penalties does not violate the due process clause.[400] + +Food and Drugs, Etc.--"The power of the State to * * * prevent +the production within its borders of impure foods, unfit for use, and +such articles as would spread disease and pestilence, is well +established";[401] and statutes forbidding or regulating the manufacture +of oleomargarine have been upheld as a valid exercise of such +power.[402] For the same reasons, statutes ordering the destruction of +unsafe and unwholesome food[403], prohibiting the sale and authorizing +confiscation of impure milk[404] have been sustained, notwithstanding +that such articles had a value for purposes other than food. There also +can be no question of the authority of the State, in the interest of +public health and welfare, to forbid the sale of drugs by itinerant +vendors,[405] or the sale of spectacles by an establishment not in +charge of a physician or optometrist.[406] Nor is it any longer possible +to doubt the validity of State regulations pertaining to the +administration, sale, prescription, and use of dangerous and +habit-forming drugs.[407] + +Milk.--Equally valid as police power regulations are laws +forbidding the sale of ice cream not containing a reasonable proportion +of butter fat,[408] or of condensed milk made from skimmed milk rather +than whole milk,[409] or of food preservatives containing boric +acid.[410] Similarly, a statute which prohibits the sale of milk to +which has been added any fat or oil other than milk fat, and which has, +as one of its purposes, the prevention of fraud and deception in the +sale of milk products, does not, when applied to "filled milk" having +the taste, consistency, and appearance of whole milk products, violate +the due process clause. Filled milk is inferior to whole milk in its +nutritional content; and cannot be served to children as a substitute +for whole milk without producing a dietary deficiency.[411] However, a +statute forbidding the use of shoddy, even when sterilized, was held to +be arbitrary and therefore invalid.[412] + + +Protection of the Public Morals + +Gambling and Lotteries.--Unless effecting a clear, unmistakable +infringement of rights securely by fundamental law, legislation +suppressing gambling will be upheld by the Court as concededly within +the police power of a State.[413] Accordingly, a State may validly make +a judgment against those winning money a lien upon the property in which +gambling is conducted with the owner's knowledge and consent.[414] For +the same reason, lotteries, including those operated under a legislative +grant, may be forbidden, irrespective of any particular equities.[415] + +Red Light Districts.--An ordinance prescribing limits in a city +outside of which no woman of lewd character shall dwell does not deprive +persons owning or occupying property in or adjacent to said limits of +any rights protected by the Constitution.[416] + +Sunday Blue Laws.--The Supreme Court has uniformly recognized +State laws relating to the observance of Sunday as representing a +legitimate exercise of the police power. Thus, a law forbidding the +keeping open of barber shops on Sunday is constitutional.[417] + +Intoxicating Liquor.--"* * * on account of their well-known +noxious qualities and the extraordinary evils shown by experience to be +consequent upon their use, a State * * * [is competent] to prohibit +[absolutely the] manufacture, gift, purchase, sale, or transportation of +intoxicating liquors within its borders * * *."[418] And to implement +such prohibition, a State has the power to declare that places where +liquor is manufactured or kept shall be deemed common nuisances;[419] +and even to subject an innocent owner to the forfeiture of his property +for the acts of a wrongdoer.[420] + + +Regulation of Motor Vehicles and Carriers + +The highways of a State are public property, the primary and preferred +use of which is for private purposes; their uses for purposes of gain +may generally be prohibited by the legislature or conditioned as it sees +fit.[421] In limiting the use of its highways for intrastate +transportation for hire, a State reasonably may provide that carriers +who have furnished adequate, responsible, and continuous service over a +given route from a specified date in the past shall be entitled to +licenses as a matter of right, but that the licensing of those whose +service over the route began later than the date specified shall depend +upon public convenience and necessity.[422] To require private contract +carriers for hire to obtain a certificate of convenience and necessity, +which is not granted if the service of common carriers is impaired +thereby, and to fix minimum rates applicable thereto which are not less +than those prescribed for common carriers is valid as a means of +conserving highways;[423] but any attempt to convert private carriers +into common carriers,[424] or to subject them to the burdens and +regulations of common carriers, without expressly declaring them to be +common carriers, is violative of due process.[425] In the absence of +legislation by Congress a State may, in protection of the public safety, +deny an interstate motor carrier the use of an already congested +highway.[426] + +In exercising its authority over its highways, on the other hand, a +State is limited not merely to the raising of revenue for maintenance +and reconstruction, or to regulations as to the manner in which vehicles +shall be operated, but may also prevent the wear and hazards due to +excessive size of vehicles and weight of load. Accordingly, a statute +limiting to 7,000 pounds the net load permissible for trucks is not +unreasonable.[427] No less constitutional is a municipal traffic +regulation which forbids the operation in the streets of any +advertising vehicle, excepting vehicles displaying business notices or +advertisements of the products of the owner and not used mainly for +advertising; and such regulation may be validly enforced to prevent an +express company from selling advertising space on the outside of its +trucks. Inasmuch as it is the judgment of local authorities that such +advertising affects public safety by distracting drivers and +pedestrians, courts are unable to hold otherwise in the absence of +evidence refuting that conclusion.[428] + +Any appropriate means adopted to insure compliance and care on the part +of licensees and to protect other highway users being consonant with due +process, a State may also provide that one, against whom a judgment is +rendered for negligent operation and who fails to pay it within a +designated time, shall have his license and registration suspended for +three years, unless, in the meantime, the judgment is satisfied or +discharged.[429] By the same token a nonresident owner who loaned his +automobile in another State, by the law of which he was immune from +liability for the borrower's negligence, and who was not in the State at +the time of an accident, is not subjected to any unconstitutional +deprivation by a law thereof, imposing liability on the owner for the +negligence of one driving the car with the owner's permission.[430] +Compulsory automobile insurance is so plainly valid as to present no +federal question.[431] + + +Succession to Property + +When a New York Decedent Estate Law, effective after 1930, grants for +the first time to a surviving spouse a right of election to take as in +intestacy, and the husband, by executing in 1934 a codicil to his will +drafted in 1929, made this provision operative, his widow, +notwithstanding her waiver in 1922 of any right in her husband's estate, +may avail herself of such right of election. The deceased husband's +heirs cannot contend that the impairment of the widow's waiver by +subsequent legislation deprived his estate of property without due +process of law. Rights of succession to property are of statutory +creation. Accordingly, New York could have conditioned any further +exercise of testamentary power upon the giving of right of election to +the surviving spouse regardless of any waiver however formally +executed.[432] + +Administration of Estates.--Even after the creation of +testamentary trust, a State retains the power to devise new and +reasonable directions to the trustee to meet new conditions arising +during its administration, especially such as the depression presented +to trusts containing mortgages. Accordingly, no constitutional right is +violated by the retroactive application to an estate on which +administration had already begun of a statute which had the effect of +taking away a remainderman's right to judicial examination of the +trustee's computation of income. Judicial rules, promulgated prior to +such statute and which were more favorable to the interests of +remaindermen, can be relied upon by the latter only insofar as said +rules were intended to operate retroactively; for the decedent, in whose +estate the remaindermen had an interest, died even before such court +rules were established. If a property right in a particular rule of +income allotment in salvage proceedings vested at all, it would seem to +have done so at the death of the decedent or testator.[433] + +Abandoned Property.--As applied to insurance policies on the +lives of New York residents issued by foreign corporations for delivery +in New York, where the insured persons continued to be residents and the +beneficiaries were resident at the maturity date of the policies, a New +York Abandoned Property Law requiring payment to the State of money +owing by life insurers and remaining unclaimed for seven years does not +deprive such foreign companies of property without due process. The +relationship between New York and its residents who abandon claims +against foreign insurance companies, and between New York and foreign +insurance companies doing business therein is sufficiently close to give +New York jurisdiction.[434] In Standard Oil Co. _v._ New Jersey,[435] a +sharply divided Court held recently that due process is not violated by +a statute escheating to the State shares of stock in a domestic +corporation and unpaid dividends declared thereon, even though the +last-known owners were nonresidents and the stock was issued and the +dividends were held in another State. The State's power over the debtor +corporation gives it power to seize the debts or demands represented by +the stock and dividends. + + +Vested Rights, Remedial Rights, Political Candidacy + +Inasmuch as the right to become a candidate for State office is a +privilege only of State citizenship, an unlawful denial of such right +is not a denial of a right of "property."[436] However, an existing +right of action to recover damages for an injury is property, which a +legislature has no power to destroy.[437] Thus, the retroactive repeal +of a provision which made directors liable for moneys embezzled by +corporate officers, by preventing enforcement of a liability which +already had arisen, deprived certain creditors of their property without +due process of law.[438] But while a vested cause of action is property, +a person has no property, in the constitutional sense, in any particular +form of remedy; and is guaranteed only the preservation of a substantial +right to redress by any effective procedure.[439] Accordingly, a statute +creating an additional remedy for enforcing stockholders' liability is +not, as applied to stockholders then holding stock, violative of due +process.[440] Nor is a law which lifts a statute of limitations and make +possible a suit, theretofore barred, for the value of certain +securities. "The Fourteenth Amendment does not make an act of State +legislation void merely because it has some retrospective operation. +* * * Some rules of law probably could not be changed retroactively +without hardship and oppression, * * *, certainly it cannot be said that +lifting the bar of a statute of limitation so as to restore a remedy +lost through mere lapse of time is _per se_ an offense against the +Fourteenth Amendment."[441] + + +Man's Best Friend + +A statute providing that no dog shall be entitled to the protection of +the law unless placed upon the assessment rolls, and that in a civil +action for killing a dog the owner cannot recover beyond the value fixed +by himself in the last assessment preceding the killing is within the +police power of the State.[442] + + +Control of Local Units of Government + +The Fourteenth Amendment does not deprive a State of the power to +determine what duties may be performed by local officers, nor whether +they shall be appointed or popularly elected.[443] Its power over the +rights and property of cities held and used for governmental purposes +was unaltered by the ratification thereof.[444] Thus, notwithstanding +that it imposes liability irrespective of the power of a city to have +prevented the violence, a statute requiring cities to indemnify owners +of property damaged by mobs or during riots effects no unconstitutional +deprivation of the property of such municipalities.[445] Likewise, a +person obtaining a judgment against a municipality for damages +resulting from a riot is not deprived of property without due process +of law by an act which so limits the municipality's taxing power as to +prevent collection of funds adequate to pay it. As long as the judgment +continues as an existing liability unconstitutional deprivation is +experienced.[446] + +Local units of government obliged to surrender property to other units +newly created out of the territory of the former cannot successfully +invoke the due process clause,[447] nor may taxpayers allege any +unconstitutional deprivation as the result of changes in their tax +burden attendant upon the consolidation of contiguous +municipalities.[448] Nor is a statute requiring counties to reimburse +cities of the first class but not other classes for rebates allowed for +prompt payment of taxes in conflict with the due process clause.[449] + + +TAXATION + + +In General + +It was not contemplated that the adoption of the Fourteenth Amendment +would restrain or cripple the taxing power of the States.[450] Rather, +the purpose of the amendment was to extend to the residents of the +States the same protection against arbitrary State legislation affecting +life, liberty, and property as was afforded against Congress by the +Fifth Amendment.[451] + + +Public Purpose + +Inasmuch as public moneys cannot be expended for other than public +purposes, it follows that an exercise of the taxing power for merely +private purposes is beyond the authority of the States.[452] Whether a +use is public or private is ultimately a judicial question, however, and +in the determination thereof the Court will be influenced by local +conditions and by the judgments of State tribunals as to what are to be +deemed public uses in any State.[453] Taxes levied for each of the +following listed purposes have been held to be for a public use: city +coal and fuel yard,[454] State bank, warehouse, elevator, flour-mill +system, and homebuilding projects,[455] society for preventing cruelty +to animals (dog license tax),[456] railroad tunnel,[457] books for +school children attending private as well as public schools,[458] and +relief of unemployment.[459] + + +Other Considerations Affecting Validity: Excessive Burden; Ratio of +Amount to Benefit Received + +When the power to tax exists, the extent of the burden is a matter for +the discretion of the lawmakers;[460] and the Court will refrain from +condemning a tax solely on the ground that it is excessive.[461] Nor can +the constitutionality of the power to levy taxes be made to depend upon +the taxpayer's enjoyment of any special benefit from use of the funds +raised by taxation.[462] + + +Estate, Gift, and Inheritance Taxes + +The power of testamentary disposition and the privilege of inheritance +being legitimate subjects of taxation, a State may apply its inheritance +tax to either the transmission, or the exercise of the legal power of +transmission, of property by will or descent, or to the legal privilege +of taking property by devise or descent.[463] Accordingly, an +inheritance tax law, enacted after the death of a testator, but before +the distribution of his estate, constitutionally may be imposed on the +shares of legatees, notwithstanding that under the law of the State in +effect on the date of such enactment, ownership of the property passed +to the legatees upon the testator's death.[464] Equally consistent with +due process is a tax on an _inter vivos_ transfer of property by deed +intended to take effect upon the death of the grantor.[465] + +The due process clause places no restriction on a State as to the time +at which an inheritance tax shall be levied or the property valued for +purposes of such a tax; and for that reason a graduated tax on the +transfer of contingent remainders, undiminished by the value of an +intervening life estate but not payable until after the death of the +life tenant, is valid.[466] Also, when a power of appointment has been +granted by deed, transfer tax upon the exercise of the power by will is +not a taking of property without due process of law, even though the +instrument creating the power was executed prior to enactment of the +taxing statute.[467] Likewise when a transfer tax law did not become +effective until after a deed creating certain remainders had been +executed, but the State court applied the tax on the theory that the +vesting actually occurred after the tax law became operative, no denial +of due process resulted. "* * *, the statute unquestionably might have +made the tax applicable to this transfer, * * * [and the Court need] +* * * not inquire * * * into the reasoning by which * * *" the State +held the statute operative.[468] + +On the other hand, when remainders indisputably vest at the time of the +creation of a trust and a succession tax is enacted thereafter, the +imposition of said tax on the transfer of such remainder is +unconstitutional.[469] But where the remaindermen's interests are +contingent and do not vest until the donor's death subsequent to the +adoption of the statute, the tax is valid.[470] Another example of valid +retroactive taxation is to be found in a New York statute amending a +1930 estate tax law. The amendment required inclusion in the decedent's +gross estate, for tax computation purposes, of property in respect of +which the decedent exercised after 1930, by will, a nongeneral power of +appointment created prior to that year. The amendment reached such +transfers under powers of appointment as under the previous statute +escaped taxation. In sustaining application of the amendment, the Court +held that the inclusion in the gross estate of property never owned by +the decedent, but appointed by her will under a limited power which +could not be exercised in favor of the decedent, her creditors, or her +estate, did not deny due process to those who inherited the decedent's +property, even though, because the tax rate was progressive, the net +amount they inherited was less than it would have been if the appointed +property had not been included in the gross estate.[471] In summation, +the Court has noted that insofar as retroactive taxation of vested gifts +has been voided, the justification therefor has been that "the nature or +amount of the tax could not reasonably have been anticipated by the +taxpayer at the time of the particular voluntary act which the +[retroactive] statute later made the taxable event * * * Taxation, +* * *, of a gift which * * * [the donor] might well have refrained from +making had he anticipated the tax, * * * [is] thought to be so arbitrary +* * * as to be a denial of due process."[472] + + +Other Types of Taxes + +Income Taxes.--Any attempt by a State to measure a tax on one +person's income by reference to the income of another is contrary to due +process as guaranteed by the Fourteenth Amendment. Thus a husband cannot +be taxed on the combined total of his and his wife's incomes as shown by +separate returns, where her income is her separate property and where, +by reason of the tax being graduated, its amount exceeded the sum of the +taxes which would have been due had their separate incomes been +separately assessed.[473] Moreover, a tax on income, unlike a gift tax, +is not necessarily unconstitutional, because retroactive. Taxpayers +cannot complain of arbitrary action or assert surprise in the +retroactive apportionment of tax burdens to income when that is done by +the legislature at the first opportunity after knowledge of the nature +and amount of the income is available.[474] + +Franchise Taxes.--A city ordinance imposing annual license +taxes on light and power companies is not violative of the due process +clause merely because the city has entered the power business in +competition with such companies.[475] Nor does a municipal charter +authorizing the imposition upon a local telegraph company of a tax upon +the lines of the company within its limits at the rate at which other +property is taxed, but upon an arbitrary valuation per mile, deprive the +company of its property without due process of law, inasmuch as the tax +is a mere franchise or privilege tax.[476] + +Severance Taxes.--A State excise on the production of oil which +extends to the royalty interest of the lessor in the oil produced under +an oil lease as well as to the interest of the lessee engaged in the +active work of production, the tax being apportioned between these +parties according to their respective interest in the common venture, is +not arbitrary as regards the lessor, but consistent with due +process.[477] + +Real Property Taxes (Assessment).--The maintenance of a high +assessment in the face of declining value is merely another way of +achieving an increase in the rate of property tax. Hence, an +over-assessment constitutes no deprivation of property without due +process of law.[478] Likewise, land subject to mortgage may be taxed +for its full value without deduction of the mortgage debt from the +valuation.[479] + +Real Property Taxes: Special Assessments.--A State may defray +the entire expense of creating, developing, and improving a political +subdivision either from funds raised by general taxation, or by +apportioning the burden among the municipalities in which the +improvements are made, or by creating, or authorizing the creation of, +tax districts to meet sanctioned outlays.[480] Where a State statute +authorizes municipal authorities to define the district to be benefited +by a street improvement and to assess the cost of the improvement upon +the property within the district in proportion to benefits, their action +in establishing the district and in fixing the assessments on included +property, after due hearing of the owners as required by the statute +cannot, when not arbitrary or fraudulent, be reviewed under the +Fourteenth Amendment upon the ground that other property benefited by +the improvement was not included.[481] + +It is also proper to impose a special assessment for the preliminary +expenses of an abandoned road improvement, even though the assessment +exceeds the amount of the benefit which the assessors estimated the +property would receive from the completed work.[482] Likewise a levy +upon all lands within a drainage district of a tax of twenty-five cents +per acre to defray preliminary expenses does not unconstitutionally take +the property of landowners within that district who may not be benefited +by the completed drainage plans.[483] On the other hand, when the +benefit to be derived by a railroad from the construction of a highway +will be largely offset by the loss of local freight and passenger +traffic, an assessment upon such railroad is violative of due +process,[484] whereas any gains from increased traffic reasonably +expected to result from a road improvement will suffice to sustain an +assessment thereon.[485] Also the fact that the only use made of a lot +abutting on a street improvement is for a railway right of way does not +make invalid, for lack of benefits, an assessment thereon for grading, +curbing, and paving.[486] However, when a high and dry island was +included within the boundaries of a drainage district from which it +could not be benefited directly or indirectly, a tax on such island was +held to be a deprivation of property without due process of law.[487] +Finally, a State may levy an assessment for special benefits resulting +from an improvement already made[488] and may validate an assessment +previously held void for want of authority.[489] + + +JURISDICTION TO TAX + + +Land + +Prior even to the ratification of the Fourteenth Amendment, it was +settled principle that a State could not tax land situated beyond its +limits; and subsequently elaborating upon that principle the Court has +said that "* * *, we know of no case where a legislature has assumed to +impose a tax upon land within the jurisdiction of another State, much +less where such action has been defended by a court."[490] Insofar as a +tax payment may be viewed as an exaction for the maintenance of +government in consideration of protection afforded, the logic sustaining +this rule is self-evident. + + +Tangible Personalty + +As long as tangible personal property has a situs within its borders, a +State validly may tax the same, whether directly through an _ad valorem_ +tax or indirectly through death taxes, irrespective of the residence of +the owner.[491] By the same token, if tangible personal property makes +only occasional incursions into other States, its permanent situs +remains in the State of origin, and is taxable only by the latter.[492] +The ancient maxim, _mobilia sequuntur personam_, which had its origin +when personal property consisted in the main of articles appertaining to +the person of the owner, yielded in modern times to the "law of the +place where the property is kept and used." In recent years, the +tendency has been to treat tangible personal property as "having a situs +of its own for the purpose of taxation, and correlatively to * * * +exempt [it] at the domicile of its owner."[493]The benefit-protection +theory of taxation, upon which the Court has in fact relied to sustain +taxation exclusively by the situs State, logically would seem to permit +taxation by the domiciliary State as well as by the nondomiciliary State +in which the tangibles are situate, especially when the former levies +the tax on the owner in terms of the value of the tangibles. Thus far, +however, the Court has taken the position that when the tangibles have a +situs elsewhere, the domiciliary State can neither control such +property nor extend to it or to its owner such measure of protection as +would be adequate to meet the jurisdictional requirements of due +process. + + +Intangible Personalty + +General.--To determine whether a State, or States, may tax +intangible personal property, the Court has applied the fiction, +_mobilia sequuntur personam_ and has also recognized that such property +may acquire, for tax purposes, a business or commercial situs where +permanently located; but it has never clearly disposed of the issue as +to whether multiple personal property taxation of intangibles is +consistent with due process. In the case of corporate stock, however, +the Court has obliquely acknowledged that the owner thereof may be taxed +at his own domicile, at the commercial situs of the issuing corporation, +and at the latter's domicile; but, as of the present date, +constitutional lawyers are speculating whether the Court would sustain a +tax by all three jurisdictions, or by only two of them, and, if the +latter, which two, the State of the commercial situs and of the issuing +corporation's domicile, or the State of the owner's domicile and that of +the commercial situs.[494] + +Taxes on Intangibles Sustained.--Thus far, the Court has +sustained the following personal property taxes on intangibles: + +(1) A debt held by a resident against a nonresidence, evidenced by a +bond of the debtor and secured by a mortgage on real estate in the State +of the debtor's residence.[495] + +(2) A mortgage owned and kept outside the State by a nonresident but on +land within the State.[496] + +(3) Investments, in the form of loans to residents, made by a resident +agent of a nonresident creditor, are taxable to the nonresident +creditor.[497] + +(4) Deposits of a resident in a bank in another State, where he carries +on a business and from which these deposits are derived, but belonging +absolutely to him and not used in the business, are subject to a +personal property tax in the city of his residence, whether or not they +are subject to tax in the State where the business is carried on. The +tax is imposed for the general advantage of living within the +jurisdiction [benefit-protection theory], and may be measured by +reference to the riches of the person taxed.[498] + +(5) Membership owned by a nonresident in a domestic exchange, known as a +chamber of commerce.[499] + +(6) Membership by a resident in a stock exchange located in another +State. "Double taxation" the Court observed "by one and the same State +is not" prohibited "by the Fourteenth Amendment; much less is taxation +by two States upon identical or closely related property interests +falling within the jurisdiction of both, forbidden."[500] + +(7) A resident owner may be taxed on stock held in a foreign corporation +that does no business and has no property within the taxing State. The +Court also added that "undoubtedly the State in which a corporation is +organized may * * *, [tax] of all its shares whether owned by residents +or nonresidents."[501] + +(8) Stock in a foreign corporation owned by another foreign corporation +transacting its business within the taxing State. The Court attached no +importance to the fact that the shares were already taxed by the State +in which the issuing corporation was domiciled and might also be taxed +by the State in which the issuing corporation was domiciled and might +also be taxed by the State in which the stock owner was domiciled; or at +any rate did not find it necessary to pass upon the validity of the +latter two taxes. The present levy was deemed to be tenable on the basis +of the benefit-protection theory; namely, "the economic advantages +realized through the protection, at the place * * *, [of business situs] +of the ownership of rights in intangibles * * *"[502] + +(9) Shares owned by nonresident shareholders in a domestic corporation, +the tax being assessed on the basis of corporate assets and payable by +the corporation either out of its general fund or by collection from the +shareholder. The shares represent an aliquot portion of the whole +corporate assets, and the property right so represented arises where the +corporation has its home, and is therefore within the taxing +jurisdiction of the State, notwithstanding that ownership of the stock +may also be a taxable subject in another State.[503] + +(10) A tax on the dividends of a corporation may be distributed ratably +among stockholders regardless of their residence outside the State, the +stockholders being the ultimate beneficiaries of the corporation's +activities within the taxing State and protected by the latter and +subject to its jurisdiction.[504] This tax, though collected by the +corporation, is on the transfer to a stockholder of his share of +corporate dividends within the taxing State, and is deducted from said +dividend payments.[505] + +(11) Stamp taxes on the transfer within the taxing State by one +nonresident to another of stock certificates issued by a foreign +corporation;[506] and upon promissory notes executed by a domestic +corporation, although payable to banks in other States.[507] These +taxes, however, were deemed to have been laid, not on the property, but +upon an event, the transfer in one instance, and execution, in the +latter, which took place in the taxing State. + +Taxes on Intangibles Invalidated.--The following personal +property taxes on intangibles have not been upheld: + +(1) Debts evidenced by notes in safekeeping within the taxing State, but +made and payable and secured by property in a second State and owned by +a resident of a third State.[508] + +(2) A property tax sought to be collected from a life beneficiary on the +corpus of a trust composed of property located in another State and as +to which said beneficiary had neither control nor possession, apart from +the receipt of income therefrom.[509] However, a personal property tax +may be collected on one-half of the value of the corpus of a trust from +a resident who is one of the two trustees thereof, notwithstanding that +the trust was created by the will of a resident of another State in +respect of intangible property located in the latter State, at least +where it does not appear that the trustee is exposed to the danger of +other _ad valorem_ taxes in another State.[510] The first case, Brooke +_v._ Norfolk,[511] is distinguishable by virtue of the fact that the +property tax therein voided was levied upon a resident beneficiary +rather than upon a resident trustee in control of nonresident +intangibles. Different too is Safe Deposit and Trust Co. _v._ +Virginia,[512] where a property tax was unsuccessfully demanded of a +nonresident trustee with respect to nonresident intangibles under its +control. + +(3) A tax, measured by income, levied on trust certificates held by a +resident, representing interests in various parcels of land (some inside +the State and some outside), the holder of the certificates, though +without a voice in the management of the property, being entitled to a +share in the net income and, upon sale of the property, to the proceeds +of the sale.[513] + +Transfer Taxes (Inheritance, Estate, Gift Taxes).--Being +competent to regulate exercise of the power of testamentary disposition +and the privilege of inheritance, a State may base its succession taxes +upon either the transmission, or an exercise of the legal power of +transmission, of property by will or by descent, or the enjoyment of the +legal privilege of taking property by devise or descent.[514] But +whatever may be the justification of their power to levy such taxes, +States have consistently found themselves restricted by the rule, +established as to property taxes in 1905 in Union Refrigerator Transit +Co. _v._ Kentucky,[515] and subsequently reiterated in Frick _v._ +Pennsylvania[516] in 1925, which precludes imposition of transfer taxes +upon tangible personal property by any State other than the one in which +such tangibles are permanently located or have an actual situs. In the +case of intangibles, however, the States have been harassed by the +indecision of the Supreme Court; for to an even greater extent than is +discernible in its treatment of property taxes on intangibles, it has +oscillated in upholding, then rejecting, and again currently sustaining +the levy by more than one State of death taxes upon intangibles +comprising the estate of a decedent. + +Until 1930, transfer taxes upon intangibles levied by both the +domiciliary as well as nondomiciliary, or situs State, were with rare +exceptions approved. Thus, in Bullen _v._ Wisconsin,[517] the +domiciliary State of the creator of a trust was held competent to levy +an inheritance tax, upon the death of the settlor, on his trust fund +consisting of stocks, bonds, and notes kept and administered in another +State and as to which the settlor reserved the right to control +disposition and to direct payment of income for life, such reserved +powers being equivalent to a fee. Cognizance was taken of the fact that +the State in which these intangibles had their situs had also taxed the +trust. Levy of an inheritance tax by a nondomiciliary State was +sustained on similar grounds in Wheeler _v._ Sohmer, wherein it was held +that the presence of a negotiable instrument was sufficient to confer +jurisdiction upon the State seeking to tax its transfer.[518] On the +other hand, the mere ownership by a foreign corporation of property in a +nondomiciliary State was held insufficient to support a tax by that +State on the succession to shares of stock in that corporation owned by +a nonresident decedent.[519] Also against the trend was Blodgett _v._ +Silberman[520] wherein the Court defeated collection of a transfer tax +by the domiciliary State by treating coins and bank notes deposited by a +decedent in a safe deposit box in another State as tangible property, +albeit it conceded that the domiciliary State could tax the transfer of +books and certificates of indebtedness found in that safe deposit box as +well as the decedent's interest in a foreign partnership. + +In the course of about two years following the recent Depression, the +Court handed down a group of four decisions which, for the time being at +any rate, placed the stamp of disapproval upon multiple transfer and--by +inference--other multiple taxation of intangibles. Asserting, as it did +in one of these cases, that "practical considerations of wisdom, +convenience and justice alike dictate the desirability of a uniform +general rule confining the jurisdiction to impose death transfer taxes +as to intangibles to the State of the [owner's] domicile; * * *"[521] +the Court, through consistent application of the maxim, _mobilia +sequuntur personam_, proceeded to deny the right of nondomiciliary +States to tax and to reject as inadequate jurisdictional claims of the +latter founded upon such bases as control, benefit, and protection or +situs. During this interval, 1930-1932, multiple transfer taxation of +intangibles came to be viewed, not merely as undesirable, but as so +arbitrary and unreasonable as to be prohibited by the due process +clause. + +Beginning, in 1930, with Farmers' Loan and Trust Co. _v._ +Minnesota,[522] the Court reversed its former ruling in Blackstone _v._ +Miller,[523] in which it had held that the State in which a debtor was +domiciled or a bank located could levy an inheritance tax on the +transfer of the debt or the deposit, notwithstanding that the creditor +had his domicile in a different State. Farmers' Loan and Trust Co. _v._ +Minnesota, strictly appraised, was authority simply for the proposition +that jurisdiction over a debtor, in this instance a State which had +issued bonds held by a nonresident creditor, was inadequate to sustain a +tax by that debtor State on the transfer of such securities. The +securities in question, which had never been used by the creditor in any +business in the issuing State, were located in the State in which the +creditor had his domicile, and were deemed to be taxable only in the +latter. In Baldwin _v._ Missouri,[524] a nondomiciliary State was +prevented from applying its inheritance tax to bonds, bank deposits, and +promissory notes, all physically present within its limits and some of +them secured by lands therein, when the owner thereof was domiciled in +another State. A like result, although on this occasion on grounds of +lack of evidence of any "business situs," was reached in Beidler _v._ +South Carolina Tax Commission,[525] in which the Court ruled that a +State, upon the death of a nonresident creditor, may not apply its +inheritance tax to a debt [open account] owned by one of its domestic +corporations. Finally, in First National Bank _v._ Maine,[526] which has +since been overruled in State Tax Commission _v._ Aldrich,[527] the +Court declared that only the State in which the owner of corporate stock +died domiciled was empowered to tax the succession to the shares by will +or inheritance and that the State in which the issuing corporation was +domiciled could not do so. + +Without expressly overruling more than one of these four cases +condemning multiple succession taxation of intangibles, the Court, +beginning with Curry _v._ McCanless[528] in 1939, announced a departure +from the "doctrine, of recent origin, that the Fourteenth Amendment +precludes the taxation of any interest in the same intangible in more +than one State * * *." Taking cognizance of the fact that this doctrine +had never been extended to the field of income taxation or consistently +applied in the field of property taxation, where the concepts of +business situs as well as of domiciliary situs had been utilized to +sustain double taxation, especially in connection with shares of +corporate stock, the Court declared that a correct interpretation of +constitutional requirements would dictate the following conclusions: +"From the beginning of our constitutional system control over the person +at the place of his domicile and his duty there, common to all citizens, +to contribute to the support of government have been deemed to afford an +adequate constitutional basis for imposing on him a tax on the use and +enjoyment of rights in intangibles measured by their value. * * * But +when the taxpayer extends his activities with respect to his +intangibles, so as to avail himself of the protection and benefit of the +laws of another State, in such a way as to bring his person or * * * +[his intangibles] within the reach of the tax gatherer there, the reason +for a single place of taxation no longer obtains, * * * [However], the +State of domicile is not deprived, by the taxpayer's activities +elsewhere, of its constitutional jurisdiction to tax." In accordance +with this line of reasoning, Tennessee, where a decedent died domiciled, +and Alabama, where a trustee, by conveyance from said decedent, held +securities on specific trusts, were both deemed competent to impose a +tax on the transfer of these securities passing under the will of the +decedent. "In effecting her purposes," the testatrix was viewed as +having "brought some of the legal interests which she created within the +control of one State by selecting a trustee there, and others within the +control of the other State, by making her domicile there." She had found +it necessary to invoke "the aid of the law of both States, and her +legatees" were subject to the same necessity. + +These statements represented a belated adoption of the views advanced by +Chief Justice Stone in dissenting or concurring opinions which he filed +in three of the four decisions rendered during 1930-1932. By the line of +reasoning taken in these opinions, if protection or control was extended +to, or exercised over, intangibles or the person of their owner, then as +many States as afforded such protection or were capable of exerting such +dominion should be privileged to tax the transfer of such property. On +this basis, the domiciliary State would invariably qualify as a State +competent to tax and a nondomiciliary State, so far as it could +legitimately exercise control or could be shown to have afforded a +measure of protection that was not trivial or insubstantial. + +On the authority of Curry _v._ McCanless, the Court, in Pearson _v._ +McGraw,[529] also sustained the application of an Oregon transfer tax to +intangibles handled by an Illinois trust company and never physically +present in Oregon, jurisdiction to tax being viewed as dependent, not on +the location of the property in the State, but on control over the owner +who was a resident of Oregon. In Graves _v._ Elliott,[530] decided in +the same year, the Court upheld the power of New York, in computing its +estate tax, to include in the gross estate of a domiciled decedent the +value of a trust of bonds managed in Colorado by a Colorado trust +company and already taxed on its transfer by Colorado, which trust the +decedent had established while in Colorado and concerning which he had +never exercised any of his reserved powers of revocation or change of +beneficiaries. It was observed that "the power of disposition of +property is the equivalent of ownership, * * * and its exercise in the +case of intangibles is * * * [an] appropriate subject of taxation at the +place of the domicile of the owner of the power. Relinquishment at +death, in consequence of the non-exercise in life, of a power to revoke +a trust created by a decedent is likewise an appropriate subject of +taxation."[531] Consistent application of the principle enunciated in +Curry _v._ McCanless is also discernible in two later cases in which the +Court sustained the right of a domiciliary State to tax the transfer of +intangibles kept outside its boundaries, notwithstanding that "in some +instances they may be subject to taxation in other jurisdictions, to +whose control they are subject and whose legal protection they enjoyed." +In Graves _v._ Schmidlapp[532] an estate tax was levied upon the value +of the subject of a general testamentary power of appointment +effectively exercised by a resident donee over intangibles held by +trustees under the will of a nonresident donor of the power. Viewing the +transfer of interest in said intangibles by exercise of the power of +appointment as the equivalent of ownership, the Court quoted from +McCulloch _v._ Maryland[533] to the effect that the power to tax "'is an +incident of sovereignty, and is coextensive with that to which it is an +incident.'" Again, in Central Hanover Bank & T. Co. _v._ Kelly,[534] the +Court approved a New Jersey transfer tax imposed on the occasion of the +death of a New Jersey grantor of an irrevocable trust executed, and +consisting of securities located, in New York, and providing for the +disposition of the corpus to two nonresident sons. + +The costliness of multiple taxation of estates comprising intangibles is +appreciably aggravated when each of several States founds its tax not +upon different events or property rights but upon an identical basis; +namely that, the decedent died domiciled within its borders. Not only is +an estate then threatened with excessive contraction but the contesting +States may discover that the assets of the estate are insufficient to +satisfy their claims. Thus, in Texas _v._ Florida,[535] the State of +Texas filed an original petition in the Supreme Court, in which it +asserted that its claim, together with those of three other States, +exceeded the value of the estate, that the portion of the estate within +Texas alone would not suffice to discharge its own tax, and that its +efforts to collect its tax might be defeated by adjudications of +domicile by the other States. The Supreme Court disposed of this +controversy by sustaining a finding that the decedent had been domiciled +in Massachusetts, but intimated that thereafter it would take +jurisdiction in like situations only in the event that an estate did not +exceed in value the total of the conflicting demands of several States +and that the latter were confronted with a prospective inability to +collect. + + +Corporation Taxes + +(1) Intangible Personal Property.--A State in which a foreign +corporation has acquired a commercial domicile and in which it maintains +its general business offices may tax the latter's bank deposits and +accounts receivable even though the deposits are outside the State and +the accounts receivable arise from manufacturing activities in another +State.[536] Similarly, a nondomiciliary State in which a foreign +corporation did business can tax the "corporate excess" arising from +property employed and business done in the taxing State.[537] On the +other hand, when the foreign corporation transacts only interstate +commerce within a State, any excise tax on such excess is void, +irrespective of the amount of the tax.[538] A domiciliary State, +however, may tax the excess of market value of outstanding capital stock +over the value of real and personal property and certain indebtedness of +a domestic corporation even though this "corporate excess" arose from +property located and business done in another State and was there +taxable. Moreover, this result follows whether the tax is considered as +one on property or on the franchise.[539] Also a domiciliary State, +which imposes no franchise tax on a stock fire insurance corporation, +validly may assess a tax on the full amount of its paid-in capital stock +and surplus, less deductions for liabilities, notwithstanding that such +domestic corporation concentrates its executive, accounting, and other +business offices in New York, and maintains in the domiciliary State +only a required registered office at which local claims are handled. +Despite "the vicissitudes which the so-called 'jurisdiction-to-tax' +doctrine has encountered * * *," the presumption persists that +intangible property is taxable by the State of origin.[540] But a +property tax on the capital stock of a domestic company which includes +in the appraisement thereof the value of coal mined in the taxing State +but located in another State awaiting sale deprives the corporation of +its property without due process of law.[541] Also void for the same +reason is a State tax on the franchise of a domestic ferry company which +includes in the valuation thereof the worth of a franchise granted to +the said company by another State.[542] + +(2) Privilege Taxes Measured by Corporate Stock.--Since the tax +is levied not on property but on the privilege of doing business in +corporate form, a domestic corporation may be subjected to a privilege +tax graduated according to paid up capital stock, even though the +latter represents capital not subject to the taxing power of the +State.[543] By the same token, the validity of a franchise tax, imposed +on a domestic corporation engaged in foreign maritime commerce and +assessed upon a proportion of the total franchise value equal to the +ratio of local business done to total business, is not impaired by the +fact that the total value of the franchise was enhanced by property and +operations carried on beyond the limits of the State.[544] However, a +State, under the guise of taxing the privilege of doing an intrastate +business, cannot levy on property beyond its borders; and, therefore, as +applied to foreign corporations, a license tax based on authorized +capital stock is void,[545] even though there be a maximum to the +fee,[546] unless apportioned according to some method, as, for example, +a franchise tax based on such proportion of outstanding capital stock as +is represented by property owned and used in business transacted in the +taxing State.[547] An entrance fee, on the other hand, collected only +once as the price of admission to do an intrastate business, is +distinguishable from a tax and accordingly may be levied on a foreign +corporation on the basis of a sum fixed in relation to the amount of +authorized capital stock (in this instance, a $5,000 fee on an +authorized capital of $100,000,000).[548] + +(3) Privilege Taxes Measured by Gross Receipts.--A municipal +license tax imposed as a percentage of the receipts of a foreign +corporation derived from the sales within and without the State of goods +manufactured in the city is not a tax on business transactions or +property outside the city and therefore does not violate the due process +clause.[549] But a State is wanting in jurisdiction to extend its +privilege tax to the gross receipts of a foreign contracting corporation +for work done outside the taxing State in fabricating equipment later +installed in the taxing State. Unless the activities which are the +subject of the tax are carried on within its territorial limits, a State +is not competent to impose such a privilege tax.[550] + +(4) Taxes on Tangible Personal Property.--When rolling stock +is permanently located and employed in the prosecution of a business +outside the boundaries of a domiciliary State, the latter has no +jurisdiction to tax the same.[551] Vessels, however, inasmuch as they +merely touch briefly at numerous ports, never acquire a taxable situs at +any one of them, and are taxable by the domicile of their owners or not +at all;[552] unless, of course, the ships operate wholly on the waters +within one State, in which event they are taxable there and not at the +domicile of the owners.[553] Only recently airplanes have been treated +in a similar manner for tax purposes. Noting that the entire fleet of +airplanes of an interstate carrier were "never continuously without the +[domiciliary] State during the whole tax year," that such airplanes also +had their "home port" in the domiciliary State, and that the company +maintained its principal office therein, the Court sustained a personal +property tax applied by the domiciliary State to all the airplanes owned +by the taxpayer. No other State was deemed able to accord the same +protection and benefits as the taxing State in which the taxpayer had +both its domicile and its business situs; and the doctrines of Union +Refrigerator Transit Co. _v._ Kentucky,[554] as to the taxability of +permanently located tangibles, and that of apportionment, for +instrumentalities engaged in interstate commerce[555] were held to be +inapplicable.[556] + +Conversely, a nondomiciliary State, although it may not tax property +belonging to a foreign corporation which has never come within its +borders, may levy on movables which are regularly and habitually used +and employed therein. Thus, while the fact that cars are loaded and +reloaded at a refinery in a State outside the owner's domicile does not +fix the situs of the entire fleet in such State, the latter may +nevertheless tax the number of cars which on the average are found to be +present within its borders.[557] Moreover, in assessing that part of a +railroad within its limits, a State need not treat it as an independent +line, disconnected from the part without, and place upon the property +within the State only a value which could be given to it if operated +separately from the balance of the road. The State may ascertain the +value of the whole line as a single property and then determine the +value of the part within on a mileage basis, unless there be special +circumstances which distinguish between conditions in the several +States.[558] But no property of an interstate carrier can be taken into +account unless it can be seen in some plain and fairly intelligible way +that it adds to the value of the road and the rights exercised in the +State.[559] Also, a State property tax on railroads, which is measured +by gross earnings apportioned to mileage, is not unconstitutional in the +absence of proof that it exceeds what would be legitimate as an ordinary +tax on the property valued as part of a going concern or that it is +relatively higher than taxes on other kinds of property.[560] The tax +reaches only revenues derived from local operations, and the fact that +the apportionment formula does not result in mathematical exactitude is +not a constitutional defect.[561] + + +Income and Other Taxes + +Individual Incomes.--Consistently with due process of law, a +State annually may tax the entire net income of resident individuals +from whatever source received,[562] and that portion of a nonresident's +net income derived from property owned, and from any business, trade, or +profession carried on, by him within its borders.[563] Jurisdiction, in +the case of residents, is founded upon the rights and privileges +incident to domicile; that is, the protection afforded the recipient of +income in his person, in his right to receive the income, and in his +enjoyment of it when received, and, in the case of nonresidents, upon +dominion over either the receiver of the income or the property or +activity from which it is derived, and upon the obligation to contribute +to the support of a government which renders secure the collection of +such income. Accordingly, a State may tax residents on income from rents +of land located outside the State and from interest on bonds physically +without the State and secured by mortgage upon lands similarly +situated;[564] and the income received by a resident beneficiary from +securities held by a trustee in a trust created and administered in +another State, and not directly taxable to the trustee.[565] Nor does +the fact that another State has lawfully taxed identical income in the +hands of trustees operating therein necessarily destroy a domiciliary +State's right to tax the receipt of said income by a resident +beneficiary. "The taxing power of a State is restricted to her confines +and may not be exercised in respect of subjects beyond them."[566] +Likewise, even though a nonresident does no business within a State, the +latter may tax the profits realized by the nonresident upon his sale of +a right appurtenant to membership in a stock exchange within its +borders.[567] + +Incomes of Foreign Corporations.--A tax based on the income of +a foreign corporation may be determined by allocating to the State a +proportion of the total income which the tangible property in the State +bears to the total.[568] However, such a basis may work an +unconstitutional result if the income thus attributed to the State is +out of all appropriate proportion to the business there transacted by +the corporation. Evidence may always be submitted which tends to show +that a State has applied a method which, albeit fair on its face, +operates so as to reach profits which are in no sense attributable to +transactions within its jurisdiction.[569] Nevertheless, a foreign +corporation is in error when it contends that due process is denied by a +franchise tax measured by income, which is levied, not upon net income +from intrastate business alone, but on net income justly attributable to +all classes of business done within the State, interstate and foreign, +as well as intrastate business.[570] Inasmuch as the privilege granted +by a State to a foreign corporation of carrying on local business +supports a tax by that State on the income derived from that business, +it follows that the Wisconsin privilege dividend tax, consistently with +the due process clause, may be applied to a Delaware corporation, having +its principal offices in New York, holding its meetings and voting its +dividends in New York, and drawing its dividend checks on New York bank +accounts. The tax is imposed on the "privilege of declaring and +receiving dividends" out of income derived from property located and +business transacted in the State, equal to a specified percentage of +such dividends, the corporation being required to deduct the tax from +dividends payable to resident and nonresident shareholders and pay it +over to the State.[571] + +Chain Store Taxes.--A tax on chain stores, at a rate per store +determined by the number of stores both within and without the State, is +not unconstitutional as a tax in part upon things beyond the +jurisdiction of the State.[572] + +Insurance Company Taxes.--A privilege tax on the gross premiums +received by a foreign life insurance company at its home office for +business written in the State does not deprive the company of property +without due process;[573] but a tax is bad when the company has +withdrawn all its agents from the State and has ceased to do business, +merely continuing to be bound to policyholders resident therein and +receiving at its home office the renewal premiums.[574] Distinguishable +therefrom is the following tax which was construed as having been +levied, not upon annual premiums nor upon the privilege merely of doing +business during the period that the company actually was within the +State, but upon the privilege of entering and engaging in business, the +percentage "on the annual premiums _to be paid throughout the life of +the policies issued_." By reason of this difference a State may continue +to collect such tax even after the company's withdrawal from the +State.[575] + +A State which taxes the insuring of property within its limits may +lawfully extend its tax to a foreign insurance company which contracts +with an automobile sales corporation in a third State to insure its +customers against loss of cars purchased through it, so far as the cars +go into possession of purchasers within the taxing State.[576] On the +other hand, a foreign corporation admitted to do a local business, which +insures its property with insurers in other States who are not +authorized to do business in the taxing State, cannot constitutionally +be subjected to a 5% tax on the amount of premiums paid for such +coverage.[577] Likewise a Connecticut life insurance corporation, +licensed to do business in California, which negotiated reinsurance +contracts in Connecticut, received payment of premiums thereon in +Connecticut, and was there liable for payment of losses claimed +thereunder, cannot be subjected by California to a privilege tax +measured by gross premiums derived from such contracts, notwithstanding +that the contracts reinsured other insurers authorized to do business in +California and protected policies effected in California on the lives of +residents therein. The tax cannot be sustained whether as laid on +property, business done, or transactions carried on, within California, +or as a tax on a privilege granted by that State.[578] + +When policy loans to residents are made by a local agent of a foreign +insurance company, in the servicing of which notes are signed, security +taken, interest collected, and debts are paid within the State, such +credits are taxable to the company, notwithstanding that the promissory +notes evidencing such credits are kept at the home office of the +insurer.[579] But when a resident policyholder's loan is merely charged +against the reserve value of his policy, under an arrangement for +extinguishing the debt and interest thereon by deduction from any claim +under the policy, such credit is not taxable to the foreign insurance +company.[580] Premiums due from residents on which an extension has been +granted by foreign companies also are credits on which the latter may be +taxed by the State of the debtor's domicile;[581] and the mere fact that +the insurers charge these premiums to local agents and give no credit +directly to policyholders does not enable them to escape this tax.[582] + + +PROCEDURE IN TAXATION + + +In General + +Exactly what due process requires in the assessment and collection of +general taxes has never been decided by the Supreme Court. While it was +held that "notice to the owner at some stage of the proceedings, as well +as an opportunity to defend, is essential" for imposition of special +taxes, it has also ruled that laws for assessment and collection of +general taxes stand upon a different footing and are to be construed +with the utmost liberality, even to the extent of acknowledging that no +notice whatever is necessary.[583] Due process of law as applied to +taxation does not mean judicial process;[584] neither does it require +the same kind of notice as is required in a suit at law, or even in +proceedings for taking private property under the power of eminent +domain.[585] If a taxpayer is given an opportunity to test the validity +of a tax at any time before it is final, whether the proceedings for +review take place before a board having a quasi-judicial character, or +before a tribunal provided by the State for the purpose of determining +such questions, due process of law is not denied.[586] + + +Notice and Hearing in Relation to General Taxes + +"Of the different kinds of taxes which the State may impose, there is a +vast number of which, from their nature, no notice can be given to the +taxpayer, nor would notice be of any possible advantage to him, such as +poll taxes, license taxes (not dependent upon the extent of his +business), and generally, specific taxes on things, or persons, or +occupations. In such cases the legislature, in authorizing the tax, +fixes its amount, and that is the end of the matter. If the tax be not +paid, the property of the delinquent may be sold, and he be thus +deprived of his property. Yet there can be no question, that the +proceeding is due process of law, as there is no inquiry into the weight +of evidence, or other element of a judicial nature, and nothing could be +changed by hearing the taxpayer. No right of his is, therefore, invaded. +Thus, if the tax on animals be a fixed sum per head, or on articles a +fixed sum per yard, or bushel, or gallon, there is nothing the owner can +do which can affect the amount to be collected from him. So, if a person +wishes a license to do business of a particular kind, or at a particular +place, such as keeping a hotel or a restaurant, or selling liquors, or +cigars, or clothes, he has only to pay the amount required by law and go +into the business. There is no need in such cases for notice or hearing. +So, also, if taxes are imposed in the shape of licenses for privileges, +such as those on foreign corporations for doing business in the State, +or on domestic corporations for franchises, if the parties desire the +privilege, they have only to pay the amount required. In such cases +there is no necessity for notice or hearing. The amount of the tax would +not be changed by it."[587] + + +Notice and Hearing in Relation to Assessments + +"But where a tax is levied on property not specifically, but according +to its value, to be ascertained by assessors appointed for that purpose +upon such evidence as they may obtain, a different principle comes in. +The officers in estimating the value act judicially; and in most of the +States provision is made for the correction of errors committed by them, +through boards of revision or equalization, sitting at designated +periods provided by law to hear complaints respecting the justice of the +assessments. The law in prescribing the time when such complaints will +be heard, gives all the notice required, and the proceeding by which the +valuation is determined, though it may be followed, if the tax be not +paid, by a sale of the delinquent's property, is due process of +law."[588] + +Nevertheless, it has never been considered necessary to the validity of +a tax that the party charged shall have been present, or had an +opportunity to be present, in some tribunal when he was assessed.[589] +Where a tax board has its time of sitting fixed by law and where its +sessions are not secret, no obstacle prevents the appearance of any one +before it to assert a right or redress a wrong; and in the business of +assessing taxes, this is all that can be reasonably asked.[590] Nor is +there any constitutional command that notice of an assessment as well as +an opportunity to contest it be given in advance of the assessment. It +is enough that all available defenses may be presented to a competent +tribunal during a suit to collect the tax and before the demand of the +State for remittance becomes final.[591] A hearing before judgment, with +full opportunity to submit evidence and arguments being all that can be +adjudged vital, it follows that rehearings and new trials are not +essential to due process of law.[592] One hearing is sufficient to +constitute due process;[593] and the requirements of due process are +also met if a taxpayer, who had no notice of a hearing, does receive +notice of the decision reached thereat, and is privileged to appeal the +same and, on appeal, to present evidence and be heard on the valuation +of his property.[594] + + +Notice and Hearing in Relation to Special Assessments + +However, when assessments are made by a political subdivision, a taxing +board or court, according to special benefits, the property owner is +entitled to be heard as to the amount of his assessments and upon all +questions properly entering into that determination.[595] The hearing +need not amount to a judicial inquiry,[596] but a mere opportunity to +submit objections in writing, without the right of personal appearance, +is not sufficient.[597] If an assessment for a local improvement is made +in accordance with a fixed rule prescribed by legislative act, the +property owner is not entitled to be heard in advance on the question of +benefits.[598] On the other hand, if the area of the assessment district +was not determined by the legislature, a landowner does have the right +to be heard respecting benefits to his property before it can be +included in the improvement district and assessed; but due process is +not denied if, in the absence of actual fraud or bad faith, the decision +of the agency vested with the initial determination of benefits is made +final.[599] The owner has no constitutional right to be heard in +opposition to the launching of a project which may end in assessment; +and once his land has been duly included within a benefit district, the +only privilege which he thereafter enjoys is to a hearing upon the +apportionment; that is, the amount of the tax which he has to pay.[600] +Nor can he rightfully complain because the statute renders conclusive, +after said hearing, the determination as to apportionment by the same +body which levied the assessment.[601] + +More specifically, where the mode of assessment resolves itself into a +mere mathematical calculation, there is no necessity for a hearing.[602] +Statutes and ordinances providing for the paving and grading of streets, +the cost thereof to be assessed on the front foot rule, do not, by their +failure to provide for a hearing or review of assessments, generally +deprive a complaining owner of property without due process of law.[603] +In contrast, when an attempt is made to cast upon particular property a +certain proportion of the construction cost of a sewer not calculated by +any mathematical formula, the taxpayer has a right to be heard.[604] + + +Sufficiency and Manner of Giving Notice + +Notice, insofar as it is required, may be either personal, or by +publication, or by statute fixing the time and place of hearing.[605] A +State statute, consistently with due process, may designate a +corporation as the agent of a nonresident stockholder to receive notice +and to represent him in proceedings for correcting assessments.[606] +Also "where the State * * * [desires] to sell land for taxes upon +proceedings to enforce a lien for the payment thereof, it may proceed +directly against the land within the jurisdiction of the Court, and a +notice which permits all interested, who are 'so minded,' to ascertain +that it is to be subjected to sale to answer for taxes, and to appear +and be heard, whether to be found within the jurisdiction or not, is due +process of law within the Fourteenth Amendment * * *."[607] A +description, even though it not be technically correct, which identifies +the land will sustain an assessment for taxes and a notice of sale +therefor when delinquent. If the owner knows that the property so +described is his, he is not, by reason of the insufficient description, +deprived of his property without due process. Where tax proceedings are +_in rem_, owners are bound to take notice thereof, and to pay taxes on +their property, even if assessed to unknown or other persons; and if an +owner stands by and sees his property sold for delinquent taxes, he is +not thereby wrongfully deprived of his property.[608] + + +Sufficiency of Remedy + +When no other remedy is available, due process is denied by a judgment +of a State court withholding a decree in equity to enjoin collection of +a discriminatory tax.[609] Requirements of due process are similarly +violated by a statute which limits a taxpayer's right to challenge an +assessment to cases of fraud or corruption,[610] and by a State tribunal +which prevents a recovery of taxes imposed in violation of the +Constitution and laws of the United States by invoking a State law +limiting suits to recover taxes alleged to have been assessed illegally +to taxes paid at the time and in the manner provided by said law.[611] + + +Laches + +Persons failing to avail themselves of an opportunity to object and be +heard, cannot thereafter complain of assessments as arbitrary and +unconstitutional.[612] Likewise a car company, which failed to report +its gross receipts as required by statute, has no further right to +contest the State comptroller's estimate of those receipts and his +adding thereto the 10% penalty permitted by law.[613] + + +Collection of Taxes + +To reach property which has escaped taxation, a State may tax the +estates of decedents for a period anterior to death and grant +proportionate deductions for all prior taxes which the personal +representative can prove to have been paid.[614] Collection of an +inheritance tax also may be expedited by a statute requiring the sealing +of safe deposit boxes for at least ten days after the death of the +renter and obliging the lessor to retain assets found therein sufficient +to pay the tax that may be due the State.[615] Moreover, with a view to +achieving a like result in the case of gasoline taxes, a State may +compel retailers to collect such taxes from consumers and, under penalty +of a fine for delinquency, to remit monthly the amounts thus +collected.[616] Likewise, a tax on the tangible personal property of a +nonresident owner may be collected from the custodian or possessor of +such property, and the latter, as an assurance of reimbursement, may be +granted a lien on such property.[617] In collecting personal income +taxes, however, most States require employers to deduct and withhold the +tax from the wages of only nonresident employees; but the duty thereby +imposed on the employer has never been viewed as depriving him of +property without due process of law, nor has the adjustment of his +system of accounting and paying salaries which withholding entails been +viewed as an unreasonable regulation of the conduct of his +business.[618] + +As a State may provide in advance that taxes shall bear interest from +the time they become due, it may with equal validity stipulate that +taxes which have become delinquent shall bear interest from the time the +delinquency commenced. Likewise, a State may adopt new remedies for the +collection of taxes and apply these remedies to taxes already +delinquent.[619] After liability of a taxpayer has been fixed by +appropriate procedure, collection of a tax by distress and seizure of +his person does not deprive him of liberty without due process of +law.[620] Nor is a foreign insurance company denied due process of law +when its personal property is distrained to satisfy unpaid taxes.[621] + +The requirements of due process are fulfilled by a statute which, in +conjunction with affording an opportunity to be heard, provides for the +forfeiture of titles to land for failure to list and pay taxes thereon +for certain specified years.[622] No less constitutional, as a means of +facilitating collection, is an _in rem_ proceeding, to which the land +alone is made a party, whereby tax liens on land are foreclosed and all +pre-existing rights or liens are eliminated by a sale under a decree in +said proceeding.[623] On the other hand, while the conversion of an +unpaid special assessment into both a personal judgment therefor against +the owner as well as a charge on the land is consistent with the +Fourteenth Amendment,[624] a judgment imposing personal liability +against a nonresident taxpayer over whom the State court acquired no +jurisdiction is void.[625] Apart from such restraints, however, a State +is free to adopt new remedies for the collection of taxes and even to +apply new remedies to taxes already delinquent.[626] + + +EMINENT DOMAIN + + +Historical Development + +"Prior to the adoption of the Fourteenth Amendment," the power of +eminent domain, which is deemed to inhere in every State and to be +essential to the performance of its functions,[627] "was unrestrained by +any federal authority."[628] An express prohibition against the taking +of private property for public use without just compensation was +contained in the Fifth Amendment; but an effort to extend the +application thereof to the States had been defeated by the decision, in +1833, in Barron _v._ Baltimore.[629] The most nearly comparable +provision included in the Fourteenth Amendment, was the prohibition +against a State depriving a person of property without due process of +law. The Court was accordingly confronted with the task of determining +whether this restraint on State action, minus the explicit provision for +just compensation found in the Fifth Amendment, afforded property owners +the same measure of protection as did the latter in its operation as a +limitation on the Federal Government. The Court's initial answer to this +question, as set forth in Davidson _v._ New Orleans,[630] decided in +1878, was in the negative; and on the ground of the omission of the +clause found in the Fifth Amendment from the terms of the Fourteenth, it +refused to equate the just compensation with due process. Within less +than a decade thereafter, however, the Court modified its position, and +in Chicago, B. & Q.R. Co. _v._ Chicago,[631] seven Justices +unequivocally rejected the contention, obviously based on the Davidson +Case that "the question as to the amount of compensation to be awarded +to the railroad company was one of local law merely, and [insofar as] +that question was determined in the mode prescribed by the Constitution +and [State] law, the [property owner] appearing and having full +opportunity to be heard, the requirement of due process of law was +observed." On the contrary, the seven Justices maintained that although +a State "legislature may prescribe a form of procedure to be observed in +the taking of private property for public use, * * * it is not due +process of law if provision be not made for compensation * * * The mere +form of the proceeding instituted against the owner, * * *, cannot +convert the process used into due process of law, if the necessary +result be to deprive him of his property without compensation." + + +Public Use + +While acknowledging that agreement was virtually nonexistent as to "what +are public uses for which the right of compulsory taking may be +employed," the Court, until 1946, continued to reiterate "the nature of +the uses, whether public or private, is ultimately a judicial +question."[632] But because of proclaimed willingness to defer to local +authorities, especially "the highest court of the State" in resolving +such an issue,[633] the Court, as early as 1908, was obliged to admit +that, notwithstanding its retention of the power of judicial review, "no +case is recalled where this Court has condemned as a violation of the +Fourteenth Amendment a taking upheld by the State court as a taking for +public uses * * *"[634] In 1946, however, without endeavoring to +ascertain whether "the scope of the judicial power to determine what is +a 'public use' in Fourteenth Amendment controversies, * * *" is the +same as under the Fifth Amendment, a majority of the Justices, in a +decision involving the Federal Government, declared that "it is the +function of * * * [the legislative branch] to decide what type of taking +is for a public use * * *"[635] + + +Necessity for a Taking + +"Once it is admitted or judicially determined that a proposed +condemnation is for a public purpose and within the statutory authority, +a political or judicially nonreviewable question may emerge, to wit, the +necessity or expediency of the condemnation of the particular +property."[636] The necessity and expediency of the taking are +legislative questions to be determined by such agency and in such mode +as the State may designate.[637] + + +What Constitutes a Taking For a Public Use + +To constitute a public use within the law of eminent domain, it is not +essential that an entire community should directly participate in or +enjoy an improvement, and, in ascertaining whether a use is public, not +only present demands of the public but those which may be fairly +anticipated in the future may be considered.[638] Moreover, it is also +not necessary that property should be absolutely taken, in the narrowest +sense of the word, to bring the case within the protection of this +constitutional provision, but there may be such serious interruption to +the common and necessary use of property as will be equivalent to a +taking. "It would be * * * [an] unsatisfactory result, if * * *, it +shall be held that if the government refrains from the absolute +conversion of real property to the uses of the public, it can destroy +its value entirely, can inflict irreparable and permanent injury to any +extent, can in effect, subject it to total destruction without making +any compensation, because, in the narrowest sense of that word, it [has] +not [been] taken for the public use."[639] + +Takings for a purpose that is public hitherto have been held to comprise +the following: a privately owned water supply system formerly operated +under contract with the municipality effecting the taking;[640] a right +of way across a neighbor's land for the enlargement of an irrigation +ditch therein to enable the taker to obtain water for irrigating land +that would otherwise remain valueless;[641] a right of way across a +placer mining claim for the aerial bucket line of a mining +corporation;[642] land, water, and water rights for the production of +electric power by a public utility;[643] water rights by an interurban +railway company for the production of power in excess of current +needs;[644] places of historical interest;[645] land taken for the +purpose of exchange with a railroad company for a portion of its right +of way, required for widening a highway;[646] land by a railway for a +spur track;[647] establishment by a municipality of a public hack stand +upon the driveway maintained by a railroad upon its own terminal grounds +to afford ingress and egress to its patrons.[648] Likewise, damages for +which compensation must be paid are sustained by an upper riparian +proprietor by reason of the erection of a dam by a lower mill owner +under authority of a "mill act."[649] On the other hand, even when +compensation is tendered, an owner of property cannot be compelled to +assent to its taking by the State for the private use of another. Such a +taking is prohibited, by the due process clause. Thus, a State, by law, +could not require a railroad corporation, which had permitted the +erection of two grain elevators by private citizens on its right of way, +to grant upon like terms, a location to another group of farmers +desirous of erecting a third grain elevator for their own benefit.[650] + + +Just Compensation + +"When * * * [the] power [of eminent domain] is exercised it can only be +done by giving the party whose property is taken or whose use and +enjoyment of such property is interfered with, full and adequate +compensation, not excessive or exorbitant, but just compensation."[651] +However, "there must be something more than an ordinary honest mistake +of law in the proceedings for compensation before a party can make out +that the State has deprived him of his property +unconstitutionally."[652] Unless, by its rulings of law, the State court +prevented a complainant from obtaining substantially any compensation, +its findings as to the amount of damages will not be overturned on +appeal, even though as a consequence of error therein the property owner +received less than he ought.[653] Accordingly, when a State court, +expressly recognizing a right of recovery for any substantial damage, +found that none had been shown by the proof, its award of only $1 as +nominal damages was held to present no question for review.[654] "All +that is essential is that in some appropriate way, before some properly +constituted tribunal, inquiry shall be made as to the amount of +compensation, and when this has been provided there is that due process +of law which is required by the Federal Constitution."[655] + +"The general rule is that compensation 'is to be estimated by reference +to the uses for which the property is suitable, having regard to the +existing business and wants of the community, or such as may be +reasonably expected in the immediate future,' * * * [but] 'mere possible +or imaginary uses, or the speculative schemes of its proprietor, are to +be excluded.'"[656] Damages are measured by the loss to the owner, not +by the gain to the taker;[657] and attorneys' fees and expenses are not +embraced therein.[658] "When the public faith and credit are pledged to +a reasonably prompt ascertainment and payment, and there is adequate +provision for enforcing the pledge, * * * the requirement of just +compensation is satisfied."[659] + + +Uncompensated Takings + +"It is well settled that 'neither a natural person nor a corporation can +claim damages on account of being compelled to render obedience to a +police regulation designed to secure the common welfare.' * * * +Uncompensated obedience to a regulation enacted for the public safety +under the police power of the State is not a taking or damaging without +just compensation of private property, * * *"[660] Thus, the flooding +of lands consequent upon private construction of a dam under authority +of legislation enacted to subserve the drainage of lowlands was not a +taking which required compensation to be made, especially since such +flooding could have been prevented by raising the height of dikes around +the lands. "The rule to be gathered from these cases is that where there +is a practical destruction, or material impairment of the value of +plaintiff's lands, there is a taking, which demands compensation, but +otherwise where, as in this case, plaintiff is merely put to some extra +expense in warding off the consequences of the overflow."[661] +Similarly, when a city, by condemnation proceedings, sought to open a +street across the tracks of a railroad, it was not obligated to pay the +expenses that the railroad would incur in planking the crossing, +constructing gates, and posting gatemen at the crossing. The railway was +presumed to have "laid its tracks subject to the condition necessarily +implied that their use could be so regulated by competent authority as +to insure the public safety."[662] Also, one who leased oyster beds in +Hampton Roads from Virginia for $1 per acre under guaranty of an +"absolute right" to use and occupy them was held to have acquired such +rights subject to the superior power of Virginia to authorize Newport +News to discharge its sewage into the sea; and, hence could not +successfully contend that the resulting pollution of his oysters +constituted an uncompensated taking without due process of law.[663] + + +Consequential Damages + +"Acts done in the proper exercise of governmental powers, and not +directly encroaching upon private property, though their consequences +may impair its use, are universally held not to be a taking within the +meaning of the due process clause."[664] Accordingly, consequential +damages to abutting property caused by an obstruction in a street +resulting from the authorization of a railroad to erect tracks, sheds, +and fences over a portion thereof have been held to effect no +unconstitutional deprivation of property.[665] Likewise, the erection +over a street of an elevated viaduct, intended for general public travel +and not devoted to the exclusive use of a private transportation +corporation, has been declared to be a legitimate street improvement +equivalent to a change in grade; and, as in the case of a change of +grade, the owner of land abutting on the street has been refused damages +for impairment of access to his land and the lessening of the +circulation of light and air over it.[666] + +Limits to the Above Rule.--There are limits however, to the +amount of destruction or impairment of the enjoyment or value of private +property which public authorities or citizens acting in their behalf may +occasion without the necessity of paying compensation therefor. Thus, in +upholding zoning regulations limiting the height of buildings which may +be constructed in a designated zone, the Court has warned that similar +regulations, if unreasonable, arbitrary, and discriminatory, may be held +to deprive an owner of the profitable use of his property and hence to +amount to a taking sufficient to require compensation to be paid for +such invasion of property rights.[667] Similarly, in voiding a statute +forbidding mining of coal under private dwellings or streets or cities +in places where such right to mine has been reserved in a conveyance, +Justice Holmes, speaking for his associates, declared if a regulation +restricting the use of private property goes too far, it will be +recognized as a taking for which compensation must be made. "Some values +are enjoyed under an implied limitation, and must yield to the police +power. But obviously the implied limitation must have its limits, * * * +One fact for consideration in determining such limits is the extent of +the diminution. * * * The damage [here] is not common or public. * * * +The extent of the taking is great. It purports to abolish what is +recognized in Pennsylvania as an estate in land."[668] + + +Due Process in Eminent Domain + +(1) Notice.--If the owner of property sought to be condemned is +a nonresident, personal notice is not requisite and service may be +effected by publication.[669] In fact, "it has been uniformly held that +statutes providing for * * * condemnation of land may adopt a procedure +summary in character, and that notice of such proceedings may be +indirect, provided only that the period of notice of the initiation of +proceedings and the method of giving it are reasonably adapted to the +nature of the proceedings and their subject matter." Insofar as +reasonable notice is deemed to be essential, that requirement was +declared to have been satisfied by a statute providing that notice of +initiation of proceedings for establishment of a county road be +published on three successive weeks in three successive issues of a +paper published in the county, and that all meetings of the county +condemning agency be public and published in a county newspaper.[670] + +(2) Hearing.--The necessity and expediency of a taking being +legislative questions irrespective of who may be charged with their +decision, a hearing thereon need not be afforded;[671] but the mode of +determining the compensation payable to an owner must be such as to +furnish him with an opportunity to be heard. Among several admissible +modes is that of causing the amount to be assessed by viewers, or by a +jury, generally without a hearing, but subject to the right of the owner +to appeal for a judicial review thereof at which a trial on the evidence +may be had. Through such an appeal the owner obtains the hearing to +which he is entitled;[672] and the fact that after having been +adequately notified of the determination by the condemning authorities, +the former must exercise his right of appeal within a limited period +thereafter, such as 30 days, has been held not so arbitrary as to +deprive him of property without due process of law.[673] Nor is there +any "denial of due process in making the findings of fact by the triers +of fact, whether commissioners or a jury, final as to such facts [that +is, conclusive as to the mere value of the property], and leaving open +to the courts simply the inquiry as to whether there was any erroneous +basis adopted by the triers in their appraisal, * * *"[674] + +(3) Occupation in Advance of Condemnation.--Due process does +require that condemnation precede occupation by the condemning authority +so long as the opportunity for a hearing as to the value of the land is +guaranteed during the condemnation proceedings. Where the statute +contains an adequate provision for assured payment of compensation +without unreasonable delay, the taking may precede compensation.[675] + + +DUE PROCESS OF LAW IN CIVIL PROCEEDINGS + + +Some General Criteria + +What is due process of law depends on the circumstances.[676] It varies +with the subject matter and the necessities of the situation. By due +process of law is meant one which, following the forms of law, is +appropriate to the case, and just to the parties affected. It must be +pursued in the ordinary mode prescribed by law; it must be adapted to +the end to be attained; and whenever necessary to the protection of the +parties, it must give them an opportunity to be heard respecting the +justice of the judgment sought. Any legal proceeding enforced by public +authority, whether sanctioned by age or custom or newly devised in the +discretion of the legislative power, which regards and preserves these +principles of liberty and justice, must be held to be due process of +law.[677] + +Ancient Usage and Uniformity.--What is due process of law may +be ascertained in part by an examination of those settled usages and +modes of proceedings existing in the common and statute law of England +before the emigration of our ancestors, and shown not to have been +unsuited to their civil and political condition by having been acted on +by them after the settlement of this country. If it can show the +sanction of settled usage both in England and in this country, a process +of law which is not otherwise forbidden may be taken to be due process +of law. In other words, the antiquity of a procedure is a fact of weight +in its behalf. However, it does not follow that a procedure settled in +English law at the time of the emigration and brought to this country +and practiced by our ancestors is, or remains, an essential element of +due process of law. If that were so, the procedure of the first half of +the seventeenth century would be fastened upon American jurisprudence +like a strait jacket, only to be unloosed by constitutional amendment. +Fortunately, the States are not tied down by any provision of the +Constitution to the practice and procedure which existed at the common +law, but may avail themselves of the wisdom gathered by the experience +of the country to make changes deemed to be necessary.[678] + +Equality.--If due process is to be secured, the laws must +operate alike upon all, and not subject the individual to the arbitrary +exercise of governmental power unrestrained by established principles of +private rights and distributive justice. Where a litigant has the +benefit of a full and fair trial in the State courts, and his rights are +measured, not by laws made to affect him individually, but by general +provisions of law applicable to all those in like condition, he is not +deprived of property without due process of law, even if he can be +regarded as deprived of his property by an adverse result.[679] + +Due Process and Judicial Process.--Due process of law does not +always mean a proceeding in court.[680] Proceedings to raise revenue by +levying and collecting taxes are not necessarily judicial, neither are +administrative and executive proceedings, yet their validity is not +thereby impaired.[681] Moreover, the due process clause has been +interpreted as not requiring that the judgment of an expert commission +be supplanted by the independent view of judges based on the conflicting +testimony, prophecies, and impressions of expert witnesses when +judicially reviewing a formula of a State regulatory commission for +limiting daily production in an oil field and for proration among the +several well owners.[682] + +Nor does the Fourteenth Amendment prohibit a State from conferring upon +nonjudicial bodies certain functions that may be called judicial, or +from delegating to a court powers that are legislative in nature. For +example, State statutes vesting in a parole board certain judicial +functions,[683] or conferring discretionary power upon administrative +boards to grant or withhold permission to carry on a trade,[684] or +vesting in a probate court authority to appoint park commissioners and +establish park districts[685] are not in conflict with the due process +clause and present no federal question. Whether legislative, executive, +and judicial powers of a State shall be kept altogether distinct and +separate, or whether they should in some particulars be merged is for +the determination of the State.[686] + + +Jurisdiction + +In General.--Jurisdiction may be defined as the power to create +legal interests; but if a State attempts to exercise such power with +respect to persons or things beyond its borders, its action is in +conflict with the Fourteenth Amendment and is void within as well as +without its territorial limits. The foundation of jurisdiction is +therefore physical power capable of being exerted over persons through +_in personam_ actions and over things, generally through actions _in +rem_.[687] In proceedings _in personam_ to determine liability of a +defendant, no property having been subjected by such litigation to the +control of the Court, jurisdiction over the defendant's person is a +condition prerequisite to the rendering of any effective decree.[688] +That condition is fulfilled; that is, a State is deemed capable of +exerting jurisdiction over an individual if he is physically present +within the territory of the State, if he is domiciled in the State +although temporarily absent therefrom, or if he has consented to the +exercise of jurisdiction over him. In actions _in rem_, however, a State +validly may proceed to settle controversies with regard to rights or +claims against property within its borders, notwithstanding that control +of the defendant is never obtained. Accordingly, by reason of its +inherent authority over titles to land within its territorial confines, +a State may proceed through its courts to judgment respecting the +ownership of such property, even though it lacks the constitutional +competence to reach claimants of title who reside beyond its +borders.[689] By the same token, probate[690] and garnishment or foreign +attachment[691] proceedings, being in the nature of _in rem_ actions for +the disposition of property, may be prosecuted to conclusion without +requirement of the presence of all parties in interest.[692] + +How Perfected: By Voluntary Appearance or Service of +Process.--It is not enough, however, that a State be potentially +capable of exercising control over persons and property. Before a State +legitimately can exercise such power to alter private interests, its +jurisdiction must be perfected by the employment of an appropriate mode +of serving process deemed effective to acquaint all parties of the +institution of proceedings calculated to affect their rights; for the +interest of no one constitutionally may be impaired by a decree +resulting from litigation concerning which he was afforded neither +notice nor an opportunity to participate.[693] Voluntary appearance, on +the other hand, may enable a State not only to obtain jurisdiction over +a person who was otherwise beyond the reach of its process; but also, as +in the case of a person who was within the scope of its jurisdiction, to +dispense with the necessity of personal service. When a party +voluntarily appears in a cause and actively conducts his defense, he +cannot thereafter claim that he was denied due process merely because he +was not served with process when the original action was commenced.[694] + +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 + +Benson _v._ United States, 146 U.S. 325 (1892), 306 + +Berea College _v._ Kentucky, 211 U.S. 45 (1908), 344, 562, 965 + +Bergemann _v._ Backer, 157 U.S. 655 (1895), 1141 + +Berizzi Bros. Co. _v._ S.S. Pesaro, 271 U.S. 562 (1926), 609 + +Bernheimer _v._ Converse, 206 U.S. 516 (1907), 355 + +Bessette _v._ W.B. Conkey Co., 194 U.S. 324 (1904), 521 + +Best & Co. _v._ Maxwell, 311 U.S. 454 (1940), 189 + +Bethlehem Motors Corp. _v._ Flynt, 256 U.S. 421 (1921), 185 + +Bethlehem Steel Co. _v._ New York Labor Relations Bd., 330 U.S. 767 +(1947), 136 + +Betts _v._ Brady, 316 U.S. 455 (1942), 1099, 1104, 1105, 1108 + +Biddinger _v._ Police Comr., 245 U.S. 128 (1917), 695 + +Biddle _v._ Perovich, 274 U.S. 480 (1927), 407, 842 + +Bier _v._ McGehee, 148 U.S. 137 (1893), 329 + +Bigelow _v._ Old Dominion Copper Min. & S. Co., 225 U.S. 111 (1912), +654, 658, 660 + +Billings _v._ Illinois, 188 U.S. 97 (1903), 1151 + +Billings _v._ United States, 232 U.S. 261 (1914), 320, 863 + +Bilokumsky _v._ Tod, 263 U.S. 149 (1923), 824 + +Bi-Metallic Co. _v._ Colorado, 239 U.S. 441 (1915), 1059, 1084 + +Binderup _v._ Pathe Exchange, 263 U.S. 291 (1923), 567 + +Bingaman _v._ Golden Eagle Western Lines, 297 U.S. 626 (1936), 186, 195 + +Binghamton Bridge, The, 3 Wall. 51 (1865), 347 + +Binney _v._ Long, 299 U.S. 280 (1936), 1039 + +Binns _v._ United States, 194 U.S. 486 (1904), 109, 703 + +Bishop _v._ United States, 197 U.S. 334 (1905), 476 + +Black & White Taxicab & T. Co. _v._ Brown & Yellow Taxicab & T. Co., 276 +U.S. 518 (1928), 603 + +Blackmer _v._ United States, 284 U.S. 421 (1932), 540, 847 + +Blackstone _v._ Miller, 188 U.S. 189 (1903), 1046, 1047 + +Blair _v._ Chicago, 201 U.S. 400 (1906), 347 + +Blake _v._ McClung, 172 U.S. 239 (1898), 687, 690, 691, 1144 + +Blake _v._ United States, 103 U.S. 227 (1881), 460 + +Blau _v._ United States, 340 U.S. 159 (1950), 843 + +Blau _v._ United States, 340 U.S. 332 (1951), 843 + +Bleistein _v._ Donaldson Lithographing Co., 188 U.S. 239 (1903), 276 + +Blinn _v._ Nelson, 222 U.S. 1 (1911), 1093 + +Block _v._ Hirsh, 256 U.S. 135 (1921), 293, 296 + +Blodgett _v._ Holden, 275 U.S. 142 (1927), 863 + +Blodgett _v._ Silberman, 277 U.S. 1 (1928), 673, 730, 1042, 1045 + +Bloomer _v._ McQuewan, 14 How. 539 (1852), 271, 275 + +Bloomer _v._ Millinger, 1 Wall. 340 (1864), 271 + +Bluefield Waterworks & Improv. Co. _v._ Pub. Serv. Comm., 262 U.S. 679 +(1923), 1006 + +Blumenstock Bros. _v._ Curtis Pub. Co., 252 U.S. 436 (1920), 120 + +Board of Assessors _v._ New York L. Ins. Co., 216 U.S. 517 (1910), 1056 + +Board of Comms. _v._ Seber, 318 U.S. 705 (1943), 735 + +Board of Councilmen of Frankfort _v._ State National Bank, 184 U.S. 696 +(1902), 567 + +Board of Education _v._ Barnette, 319 U.S. 624 (1943), 563, 767, 786, +787 + +Board of Education _v._ Illinois, 203 U.S. 553 (1906), 1051 + +Board of Liquidation _v._ McComb, 92 U.S. 531 (1876), 931, 932, 933 + +Board of Public Works _v._ Columbia College, 17 Wall. 521 (1873), 656, +658 + +Bob-Lo Excursion Co. _v._ Michigan, 333 U.S. 28 (1948), 230, 1162 + +Bollman, Ex parte, 4 Cr. 75 (1807), 313, 314, 315, 512, 523, 612, 618, +639, 643, 645 + +Bonaparte _v._ Camden & A.R. Co., 3 Fed. Cas. No. 1,617 (1830), 350 + +Bonaparte _v._ Tax Court, 104 U.S. 592 (1882), 675 + +Bond _v._ Hume, 243 U.S. 15 (1917), 675, 681 + +Boom Co. _v._ Patterson, 98 U.S. 403 (1879), 870 + +Booth _v._ Illinois, 184 U.S. 425 (1902), 1019 + +Booth _v._ Indiana, 237 U.S. 391 (1915), 987 + +Booth Fisheries Co. _v._ Industrial Commission, 271 U.S. 208 (1926), 990 + +Borden Company _v._ Borella, 325 U.S. 679 (1945), 157 + +Borden's Farm Products Co. _v._ Ten Eyck, 297 U.S. 251 (1936), 1154 + +Borer _v._ Chapman, 119 U.S. 587 (1887), 672 + +Boers _v._ Preston, 111 U.S. 252 (1884), 571 + +Boske _v._ Comingore, 177 U.S. 459 (1900), 633 + +Bosley _v._ McLaughlin, 236 U.S. 385 (1915), 986, 1159 + +Boston Beer Co. _v._ Massachusetts, 97 U.S. 25 (1878), 346, 358, 1032 + +Boston & Montana Consolidated Copper & Silver Mining Co. _v._ Montana +Ore Purchasing Co., 188 U.S. 632 (1903), 567 + +Boswell _v._ Otis, 9 How. 336 (1850), 1081 + +Bothwell _v._ Buckbee-Mears Co., 275 U.S. 274 (1927), 120 + +Botiller _v._ Dominguez, 130 U.S. 238 (1889), 421, 493 + +Bourjois, Inc. _v._ Chapman, 301 U.S. 183 (1937), 237, 1024 + +Boutell _v._ Walling, 327 U.S. 463 (1946), 158 + +Bowen _v._ Johnston, 306 U.S. 19 (1939), 305 + +Bowers _v._ Kerbaugh-Empire Co., 271 U.S. 170 (1926), 1192, 1199 + +Bowersock _v._ Smith, 243 U.S. 29 (1917), 1091 + +Bowles _v._ Willingham, 321 U.S. 503 (1944), 76, 296, 849, 855, 859 + +Bowman _v._ Chicago, & N.W.R. Co., 125 U.S. 465 (1888), 218, 238, 268, +365 + +Bowman _v._ Continental Oil Co., 256 U.S. 642 (1921), 184, 239 + +Bowman _v._ Lewis, 101 U.S. 22 (1880), 1166 + +Boyce's Executors _v._ Grundy, 3 Pet. 210 (1830), 524 + +Boyd _v._ Nebraska ex rel. Thayer, 143 U.S. 135 (1892), 255, 699 + +Boyd _v._ United States, 116 U.S. 616 (1886), 824, 825, 842 + +Boyd _v._ United States, 142 U.S. 450 (1892), 410 + +Boyer, Ex parte, 109 U.S. 629 (1884), 577 + +Boynton _v._ Hutchinson Gas Co., 291 U.S. 656 (1934), 982 + +Bozza _v._ United States, 330 U.S. 160 (1947), 839 + +Brader _v._ James, 246 U.S. 88 (1918), 864 + +Bradfield _v._ Roberts, 175 U.S. 291 (1899), 764 + +Bradford Electric Light Co. _v._ Clapper, 286 U.S. 145 (1932), 676, 681 + +Bradley _v._ Lightcap, 195 U.S. 1 (1904), 356 + +Bradley _v._ Public Utilities Commission, 289 U.S. 92 (1933), 226, 1032, +1155 + +Bradwell _v._ Illinois, 16 Wall. 130 (1873), 687, 971 + +Brady _v._ Roosevelt S.S. Co., 317 U.S. 575 (1943), 587 + +Bragg _v._ Weaver, 251 U.S. 57 (1919), 1064, 1069, 1084 + +Branch _v._ Haas, 16 F. 53 (1883), 1174 + +Brannan _v._ Stark, 342 U.S. 451 (1952), 78 + +Bransford, Ex parte, 310 U.S. 354 (1940), 631 + +Branson _v._ Bush, 251 U.S. 182 (1919), 1153 + +Brass _v._ North Dakota ex rel. Stoeser, 153 U.S. 391 (1894), 996 + +Bratton _v._ Chandler, 260 U.S. 110 (1922), 1085, 1086 + +Braxton County Court _v._ West Virginia, 208 U.S. 192 (1908), 540, 982 + +Brazee _v._ Michigan, 241 U.S. 340 (1916), 1023 + +Breard _v._ Alexandria, 341 U.S. 622 (1951), 786, 1156 + +Breedlove _v._ Suttles, 302 U.S. 277 (1937), 87, 971, 1152, 1220 + +Breese _v._ United States, 226 U.S. 1 (1912), 838 + +Breiholz _v._ Pocahontas County, 257 U.S. 118 (1921), 1059 + +Brennan _v._ Titusville, 153 U.S. 289 (1894), 187, 218 + +Brewing Co. _v._ Liquor Comm'n., 305 U.S. 391 (1939), 241 + +Bridge Proprietors _v._ Hoboken Co., 1 Wall. 116 (1863), 330 + +Bridges _v._ California, 314 U.S. 252 (1941), 517, 563, 783, 788, 800, +809 + +Brig Ann, The, 9 Cr. 289 (1815), 575 + +Brigantine William, The, 28 Fed. Cas. 16,700 (1808), 167 + +Brig Aurora, The, 7 Cr. 382 (1813), 74, 79 + +Briggs _v._ Elliott, 342 U.S. 350 (1952), 1163 + +Brillhart _v._ Excess Insurance Co., 316 U.S. 491 (1942), 553, 627 + +Brimmer _v._ Rebman, 138 U.S. 78 (1891), 183, 214, 238 + +Brinegar _v._ United States, 338 U.S. 160 (1949), 791, 830 + +Brinkerhoff-Faris Trust & Sav. Co. _v._ Hill, 281 U.S. 673 (1930), 1060 + +Briscoe _v._ Bank of Kentucky, 11 Pet. 257 (1837), 326, 930 + +Briscoe _v._ Rudolph, 221 U.S. 547 (1911), 304 + +Bristol _v._ Washington County, 177 U.S. 133 (1900), 1044 + +Broad River Power Co. _v._ South Carolina ex rel. Daniel, 281 U.S. 537 +(1930), 1011 + +Broderick _v._ Rosner, 294 U.S. 629 (1935), 657, 678 + +Brodnax _v._ Missouri, 219 U.S. 285 (1911), 189, 1019 + +Brolan _v._ United States, 236 U.S. 216 (1915), 124, 163 + +Bromley _v._ McCaughn, 280 U.S. 124 (1929), 321, 863 + +Bronson _v._ Kinzie, 1 How. 311 (1843), 354 + +Brooke _v._ Norfolk, 277 U.S. 27 (1928), 1044 + +Brooks _v._ United States, 267 U.S. 432 (1925), 171, 919 + +Brooks _v._ United States, 147 F. (2d) 134 (1945), 953 + +Brooks _v._ United States, 324 U.S. 878 (1945), 953 + +Brooks-Scanlon Co. _v._ Railroad Commission, 251 U.S. 396 (1920), 1011 + +Brown _v._ Baskin, 78 F. Supp. 933 (1948), 1185 + +Brown _v._ Duchesne, 19 How. 183 (1857), 271 + +Brown _v._ Elliott, 225 U.S. 392 (1912), 881 + +Brown _v._ Fletcher, 210 U.S. 82 (1908), 658, 659, 662, 672 + +Brown _v._ Grant, 116 U.S. 207 (1886), 700 + +Brown _v._ Houston, 114 U.S. 622 (1885), 169, 183, 218 + +Brown _v._ Maryland, 12 Wheat. 419 (1827), 107, 175, 177, 178, 182, 183, +198, 215, 218, 238, 363, 364 + +Brown _v._ Mississippi, 297 U.S. 278 (1936), 1112, 1119, 1138, 1139 + +Brown _v._ New Jersey, 175 U.S. 172 (1899), 1071, 1098, 1110 + +Brown _v._ Penobscot Bank, 8 Mass. 445 (1812), 357 + +Brown _v._ Piper, 91 U.S. 37 (1875), 273 + +Brown _v._ Smart, 145 U.S. 454 (1892), 265 + +Brown _v._ United States, 8 Cr. 110 (1814), 865 + +Brown _v._ United States, 263 U.S. 78 (1923), 294, 866 + +Brown _v._ Walker, 161 U.S. 591 (1896), 407, 411, 842, 843 + +Brown _v._ Western Ry. Co. of Alabama, 338 U.S. 294 (1949), 637 + +Brown (Marcus) Holding Co. _v._ Feldman, 256 U.S. 170 (1921), 359, 953 + +Browne _v._ Strode, 5 Cr. 303 (1809), 611 + +Browning _v._ Hooper, 269 U.S. 396 (1926), 1059 + +Browning _v._ Waycross, 233 U.S. 16 (1914), 121, 188 + +Bruno _v._ U.S., 308 U.S. 287 (1939), 843 + +Brushaber _v._ Union Pacific R. Co., 240 U.S. 1 (1916), 105, 110, 541, +862, 863, 1192, 1200 + +Bryant, In re, 4 Fed. Cas. No. 2067 (1865), 122 + +Buchalter _v._ New York, 319 U.S. 427 (1943), 1132 + +Buchanan _v._ Warley, 245 U.S. 60 (1917), 1029, 1161 + +Buck _v._ Beach, 206 U.S. 392 (1907), 1044 + +Buck _v._ Bell, 274 U.S. 200 (1927), 984, 1153, 1156, 1161 + +Buck _v._ California, 342 U.S. 99 (1952), 227 + +Buck _v._ Colbath, 3 Wall. 334 (1866), 526, 627 + +Buck _v._ Kuykendall, 267 U.S. 307 (1925), 228 + +Buckstaff Bath House _v._ McKinley, 308 U.S. 358 (1939), 731 + +Budd _v._ New York, 143 U.S. 517 (1892), 975, 996, 999 + +Bugajewitz _v._ Adams, 228 U.S. 585 (1913), 259, 317 + +Building Service Employees Union _v._ Gazzam, 339 U.S. 532 (1950), 782 + +Bullen _v._ Wisconsin, 240 U.S. 625 (1916), 1045 + +Bunting _v._ Oregon, 243 U.S. 426 (1917), 979, 987, 1158 + +Burbank _v._ Ernst, 232 U.S. 162 (1914), 672 + +Burdeau _v._ McDowell, 256 U.S. 465 (1921), 823, 831 + +Burdick _v._ United States, 236 U.S. 79 (1915), 407, 842 + +Burford, Ex parte, 3 Cr. 448 (1806), 825 + +Burgess _v._ Salmon, 97 U.S. 381 (1878), 103, 316 + +Burgess _v._ Seligman, 107 U.S. 20 (1883), 332, 606 + +Burk-Waggoner Oil Asso. _v._ Hopkins, 269 U.S. 110 (1925), 1197 + +Burnes Nat. Bank _v._ Duncan, 265 U.S. 17 (1924), 309 + +Burnet _v._ Coronado Oil & Gas Co., 285 U.S. 393 (1932), 108, 566 + +Burnet _v._ Harmel, 287 U.S. 103 (1932), 1200 + +Burnet _v._ Sanford & B. Co., 282 U.S. 359 (1931), 1201 + +Burns Baking Co. _v._ Bryan, 264 U.S. 504 (1924), 1019 + +Burroughs _v._ United States, 290 U.S. 534 (1934), 386 + +Burrow-Giles Lithographic Co. _v._ Sarony, 111 U.S. 53 (1884), 276 + +Burstyn (Joseph), Inc. _v._ Wilson, 343 U.S. 495 (1952), 788 + +Burton _v._ United States, 202 U.S. 344 (1906), 88, 98, 840, 881, 884 + +Bus Employees _v._ Wisconsin Board, 340 U.S. 383 (1951), 173, 252, 724 + +Bush & Sons Co. _v._ Maloy, 267 U.S. 317 (1925), 228 + +Butchers' Union Co. _v._ Crescent City Co., 111 U.S. 746 (1884), 351 + +Bute _v._ Illinois, 333 U.S. 640 (1948), 1105, 1108 + +Butler _v._ Boston & Savannah S.S. Co., 130 U.S. 527 (1889), 583 + +Butler _v._ Goreley, 146 U.S. 303 (1892), 264 + +Butler _v._ Pennsylvania, 10 How. 402 (1850), 341 + +Butler _v._ Perry, 240 U.S. 328 (1916), 285, 952 + +Butler Bros. _v._ McColgan, 315 U.S. 501 (1942), 209 + +Butte City Water Co. _v._ Baker, 196 U.S. 119 (1905), 78 + +Butters _v._ Oakland, 263 U.S. 162 (1923), 1040 + +Butterworth _v._ Hoe, 112 U.S. 50 (1884), 274, 536 + +Buttfield _v._ Stranahan, 192 U.S. 470 (1904), 76, 162 + +Buzard _v._ Houston, 119 U.S. 347 (1886), 895 + +Byars _v._ United States, 273 U.S. 28 (1927), 825, 828, 831 + +Byrne _v._ Missouri, 8 Pet. 40 (1834), 326 + + +C + +Cafeteria Employees Union _v._ Angelos, 320 U.S. 293 (1943), 782 + +Cahen _v._ Brewster, 203 U.S. 543 (1906), 1037 + +Cairo & F.R. Co. _v._ Hecht, 95 U.S. 168 (1877), 355 + +Calder _v._ Bull, 3 Dall. 386 (1798), 316, 317, 327, 555, 558, 563, 564 + +Calder _v._ Michigan, 218 U.S. 591 (1910), 344 + +Caldwell _v._ North Carolina, 187 U.S. 622 (1903), 187 + +Caldwell _v._ Sioux Falls Stock Yards Co., 242 U.S. 559 (1917), 235, +1019 + +Caldwell _v._ Texas, 137 U.S. 691 (1891), 1141 + +California _v._ Central Pacific Railroad, 127 U.S. 1 (1888), 132, 310 + +California _v._ Deseret Water, Oil & Irrig. Co., 243 U.S. 415 (1917), +702 + +California _v._ Southern Pacific Co., 157 U.S. 229 (1895), 596, 597, 612 + +California _v._ Thompson, 313 U.S. 109 (1941), 177, 196, 218, 219, 228 + +California _v._ United States, 320 U.S. 577 (1944), 130 + +California _v._ Zook, 336 U.S. 725 (1949), 250 + +California Auto Ass'n. _v._ Maloney, 341 U.S. 105 (1951), 1021 + +California Reduction Co. _v._ Sanitary Reduction Works, 199 U.S. 306 +(1905), 982, 1030 + +Callan _v._ Wilson, 127 U.S. 540 (1888), 303, 877, 878, 879 + +Camfield _v._ United States, 167 U.S. 518 (1897), 702 + +Caminetti _v._ United States, 242 U.S. 470 (1917), 170 + +Cammeyer _v._ Newton, 94 U.S. 225 (1877), 275 + +Campbell _v._ Boyreau, 21 How. 223 (1859), 897 + +Campbell _v._ California, 200 U.S. 87 (1906), 1151 + +Campbell _v._ Holt, 115 U.S. 620 (1885), 1093 + +Canadian Aviator _v._ United States, 324 U.S. 215 (1945), 575 + +Canadian N.R. Co. _v._ Eggen, 252 U.S. 553 (1920), 692 + +Canizio _v._ New York, 327 U.S. 82 (1946), 1102 + +Cannon _v._ New Orleans, 20 Wall. 577 (1874), 366 + +Canton R. Co. _v._ Rogan, 340 U.S. 511 (1951), 363 + +Cantwell _v._ Connecticut, 310 U.S. 296 (1940), 757, 765, 766, 777, 788 + +Capital City Dairy Co. _v._ Ohio ex rel. Attorney General, 183 U.S. 238 +(1902), 1154 + +Capital Traction Co. _v._ Hof, 174 U.S. 1 (1899), 303, 879, 892, 893, +896 + +Capital Trust Co. _v._ Calhoun, 250 U.S. 208 (1919), 857 + +Capitol Greyhound Lines _v._ Brice, 339 U.S. 542 (1950), 212 + +Cardillo _v._ Liberty Mutual Co., 330 U.S. 469 (1947), 682 + +Cardwell _v._ American River Bridge Co., 113 U.S. 205 (1885), 231 + +Carfer _v._ Caldwell, 200 U.S. 293 (1906), 1072 + +Cargill Co. _v._ Minnesota, 180 U.S. 452 (1901), 235, 1024, 1148 + +Carlesi _v._ New York, 233 U.S. 51 (1914), 410, 1161 + +Carley & Hamilton _v._ Snook, 281 U.S. 66 (1930), 1151 + +Carlisle _v._ United States, 16 Wall. 147 (1873), 645 + +Carll, Ex parte, 106 U.S. 521 (1883), 309 + +Carlson _v._ California, 310 U.S. 106 (1940), 781 + +Carlson _v._ Landon, 342 U.S. 524 (1952), 261, 904 + +Carmichael _v._ Southern Coal & Coke Co., 300 U.S. 644 (1937), 1037 + +Carmichael _v._ Southern Coal & Coke Co., 301 U.S. 495 (1937), 540 + +Carneal _v._ Banks, 10 Wheat. 181 (1825), 416 + +Carolene Products Co. _v._ United States, 323 U.S. 18 (1944), 859 + +Carolina Glass Co. _v._ South Carolina, 240 U.S. 305 (1916), 932 + +Carondelet Canal Co. _v._ Louisiana, 233 U.S. 362 (1914), 330 + +Carpenter _v._ Pennsylvania, 17 How. 456 (1855), 327 + +Carpenter _v._ Shaw, 280 U.S. 363 (1930), 864, 1060 + +Carpenters & Joiners Union _v._ Ritter's Cafe, 315 U.S. 722 (1942), 782, +787 + +Carr _v._ United States, 98 U.S. 433 (1879), 586 + +Carroll _v._ Becker, 285 U.S. 380 (1932), 93 + +Carroll _v._ Greenwich Ins. Co., 199 U.S. 401 (1905), 971, 1022, 1160 + +Carroll _v._ United States, 267 U.S. 132 (1925), 823, 824, 830 + +Carson _v._ Roane-Anderson Co., 342 U.S. 232 (1952), 734 + +Carson Petroleum Co. _v._ Vial, 279 U.S. 95 (1929), 186 + +Carstairs _v._ Cochran, 193 U.S. 10 (1904), 1042, 1061 + +Carter _v._ Carter Coal Co., 298 U.S. 238 (1936), 78, 154, 541, 562, +565, 918 + +Carter _v._ Illinois, 329 U.S. 173 (1946), 1102, 1138 + +Carter _v._ McClaughry, 183 U.S. 365 (1902), 840 + +Carter _v._ Roberts, 177 U.S. 496 (1900), 286 + +Carter _v._ Virginia, 321 U.S. 131 (1944), 241, 1233 + +Cartlidge _v._ Rainey, 168 F. (2d) 841 (1948), 1233 + +Carver _v._ Jackson ex dem. Astor, 4 Pet. 1 (1830), 896 + +Cary _v._ Curtis, 3 How. 236 (1845), 512, 525, 618, 619, 620 + +Case _v._ Bowles, 327 U.S. 92 (1946), 918, 919, 1064 + +Case of Jefferson Davis, 7 Fed. Cas. No. 3621a (1871), 643 + +Case of the State Tax on Foreign-Held Bonds, 15 Wall. 300 (1873), 179, +193, 198 + +Caskey Baking Co. _v._ Virginia, 313 U.S. 117 (1941), 184, 1148 + +Cass Farm Co. _v._ Detroit, 181 U.S. 396 (1901), 1036 + +Cassell _v._ Texas, 339 U.S. 282 (1950), 1168 + +Cavanaugh _v._ Looney, 248 U.S. 453 (1919), 934 + +Cavellier, In re, 159 Misc. (N.Y.) 212 (1936), 1220 + +Central Greyhound Lines, Inc. _v._ Mealey, 334 U.S. 653 (1948), 206 + +Central Hanover Bank & T. Co. _v._ Kelly, 319 U.S. 94 (1943), 1049 + +Central Land Co. _v._ Laidley, 159 U.S. 103 (1895), 329 + +Central Lumber Co. _v._ South Dakota, 226 U.S. 157 (1912), 1018 + +Central National Bank _v._ Stevens, 169 U.S. 432 (1898), 627 + +Central of Georgia R. Co. _v._ Murphey, 196 U.S. 194 (1905), 247 + +Central of Georgia R. Co. _v._ Wright, 207 U.S. 127 (1907), 849, 1060, +1085 + +Central P.R. Co. _v._ Gallatin (Sinking-Fund Cases), 99 U.S. 700 (1879), +362, 563, 981 + +Central Union Trust Co. _v._ Garvan, 254 U.S. 554 (1921), 295 + +Chae Chan Ping _v._ United States, 130 U.S. 581 (1889), 421 + +Chaffin _v._ Taylor, 116 U.S. 567 (1886), 326 + +Chalker _v._ Birmingham & M.W.R. Co., 249 U.S. 522 (1919), 693 + +Chambers _v._ Baltimore & O.R. Co., 207 U.S. 142 (1907), 687, 692 + +Chambers _v._ Florida, 309 U.S. 227 (1940), 1112, 1113, 1121 + +Champion _v._ Ames (The Lottery Case), 188 U.S. 321 (1903), 124, 168, +169, 919 + +Champlain Realty Co. _v._ Brattleboro, 260 U.S. 366 (1922), 186 + +Champlin Ref. Co. _v._ Corporation Commission, 286 U.S. 210 (1932), 1025 + +Champlin Refining Co. _v._ United States, 329 U.S. 29 (1946), 860 + +Chandler _v._ Dix, 194 U.S. 590 (1904), 931, 936 + +Chandler _v._ Wise, 307 U.S. 474 (1939), 715 + +Chanler _v._ Kelsey, 205 U.S. 466 (1907), 1038 + +Chaplinsky _v._ New Hampshire, 315 U.S. 568 (1942), 786, 788, 791 + +Chapman _v._ Brewer, 114 U.S. 158 (1885), 895 + +Chapman _v._ King, 154 F. (2d) 460 (1946), 1208 + +Chapman _v._ King, 327 U.S. 800 (1946), 1208 + +Chapman _v._ Zobelein, 237 U.S. 135 (1915), 1037, 1062 + +Chapman, In re, 166 U.S. 661 (1897), 84-86, 98, 476, 841 + +Chappell _v._ United States, 160 U.S. 499 (1896), 865 + +Charles River Bridge Co. _v._ Warren Bridge Co., 11 Pet. 420 (1837), +339, 343, 346 + +Charleston Assn. _v._ Alderson, 324 U.S. 182 (1945), 1152 + +Charlotte, C. & A.R. Co. _v._ Gibbes, 142 U.S. 386 (1892), 213 + +Charlotte Harbor & N.R. Co. _v._ Welles, 260 U.S. 8 (1922), 1041 + +Charlton _v._ Kelly, 229 U.S. 447 (1913), 425, 426, 473, 493 + +Chase National Bank _v._ United States, 278 U.S. 327 (1929), 321 + +Chase Securities Corp. _v._ Donaldson, 325 U.S. 304 (1945), 1035, 1093 + +Chassaniol _v._ Greenwood, 291 U.S. 584 (1934), 189 + +Chastleton Corp. _v._ Sinclair, 264 U.S. 543 (1924), 293, 359 + +Cheatham et al. _v._ United States, 92 U.S. 85 (1875), 541, 621 + +Cheever _v._ Wilson, 9 Wall. 108 (1870), 662, 682 + +Chelentis _v._ Luckenbach S.S. Co., 247 U.S. 372 (1918), 579 + +Chemung Canal Bank _v._ Lowery, 93 U.S. 72 (1876), 692 + +Cheney Bros. Co. _v._ Massachusetts, 246 U.S. 147 (1918), 187, 197, 1150 + +Cherokee Nation _v._ Georgia, 5 Pet. 1 (1831), 431, 548, 610 + +Cherokee Nation _v._ Southern Kansas R. Co., 135 U.S. 641 (1890), 132, +432, 872 + +Cherokee Tobacco, The, 11 Wall. 616 (1871), 421, 432, 433 + +Chesapeake & O.R. Co. _v._ Miller, 114 U.S. 176 (1885), 343 + +Chesapeake & O.R. Co. _v._ Public Service Commission, 242 U.S. 603 +(1917), 1011, 1012 + +Chicago _v._ Sturges, 222 U.S. 313 (1911), 1036 + +Chicago & A.R. Co. _v._ Tranbarger, 238 U.S. 67 (1915), 327, 346, 352, +1011 + +Chicago & A.R. Co. _v._ Wiggins Ferry Co., 119 U.S. 615 (1887), 654, +676, 677 + +Chicago & Grand Trunk Ry. Co. _v._ Wellman, 143 U.S. 339 (1892), 539, +540, 561, 1005, 1009 + +Chicago & N.W.R. Co. _v._ Fuller, 17 Wall. 560 (1873), 126 + +Chicago & N.W.R. Co. _v._ Nye Schneider Fowler Co., 260 U.S. 35 (1922), +1015, 1092 + +Chicago & N.W.R. Co. _v._ Whitton, 13 Wall. 270 (1872), 311 + +Chicago & S. Airlines _v._ Waterman Steamship Corp., 333 U.S. 103 +(1948), 473, 474, 550, 623 + +Chicago, B. & K.C.R. Co. _v._ Guffey, 120 U.S. 569 (1887), 348 + +Chicago, B. & Q.R. Co. _v._ Babcock, 204 U.S. 585 (1907), 1152 + +Chicago, B. & Q.R. Co. _v._ Chicago, 166 U.S. 226 (1897), 752, 897, 999, +1010, 1063, 1067, 1089 + +Chicago, B. & Q.R. Co. _v._ Cram, 228 U.S. 70 (1913), 1016 + +Chicago, B. & Q.R. Co. _v._ Harrington, 241 U.S. 177 (1916), 141 + +Chicago, B. & Q.R. Co. _v._ Illinois ex rel. Grimwood, 200 U.S. 561 +(1906), 982, 1010, 1011 + +Chicago, B. & Q.R. Co. _v._ Iowa, 94 U.S. 155 (1877), 1009, 1143 + +Chicago, B. & Q.R. Co. _v._ McGuire, 219 U.S. 549 (1911), 986, 990 + +Chicago, B. & Q.R. Co. _v._ Nebraska, 170 U.S. 57 (1898), 1011 + +Chicago, B. & Q.R. Co. _v._ Wisconsin R.R. Com., 237 U.S. 220 (1915), 221 + +Chicago Board of Trade _v._ Olsen, 262 U.S. 1 (1923), 149 + +Chicago City _v._ Robbins, 2 Bl. 419 (1862), 604 + +Chicago Dock & Canal Co. _v._ Fraley, 228 U.S. 680 (1913), 1146 + +Chicago, I. & L.R. Co. _v._ United States, 219 U.S. 486 (1911), 247 + +Chicago, I. & L.R. Co. _v._ United States, 270 U.S. 287 (1926), 861 + +Chicago L. Ins. Co. _v._ Cherry, 244 U.S. 25 (1917), 1141 + +Chicago, M. & St. P.R. Co. _v._ Ackley, 94 U.S. 179 (1877), 1143 + +Chicago, M. & St. P.R. Co. _v._ Iowa, 233 U.S. 334 (1914), 1013 + +Chicago, M. & St. P.R. Co. _v._ Minneapolis C. & C. Asso., 247 U.S. 490 +(1918), 1013 + +Chicago, M. & St. P.R. Co. _v._ Minnesota, 134 U.S. 418 (1890), 77, 995, +999 + +Chicago, M. & St. P.R. Co. _v._ Polt, 232 U.S. 165 (1914), 1015 + +Chicago, M. & St. P.R. Co. _v._ Public Utilities Commission, 274 U.S. +344 (1927), 1000 + +Chicago, M. & St. P.R. Co. _v._ Solan, 169 U.S. 133 (1898), 223 + +Chicago, M. & St. P.R. Co. _v._ Wisconsin, 238 U.S. 491 (1915), 344, +1012 + +Chicago, R.I. & P.R. Co. _v._ Arkansas, 219 U.S. 453 (1911), 223, 1014 + +Chicago, R.I. & P.R. Co. _v._ Cole, 251 U.S. 54 (1919), 1091 + +Chicago, R.I. & P.R. Co. _v._ Cramer, 232 U.S. 490 (1914), 247 + +Chicago, R.I. & P.R. Co. _v._ Hardwick Farmers Elevator Co., 226 U.S. +426 (1913), 247 + +Chicago, R.I. & P.R. Co. _v._ McGlinn, 114 U.S. 542 (1885), 305 + +Chicago, R.I. & P.R. Co. _v._ Perry, 259 U.S. 548 (1922), 992, 1158 + +Chicago, R.I. & P.R. Co. _v._ Sturm, 174 U.S. 710 (1899), 674 + +Chicago, R.I. & P.R. Co. _v._ United States, 284 U.S. 80 (1931), 862 + +Chicago, St. P., M. & O.R. Co. _v._ Holmberg, 282 U.S. 162 (1930), 1011 + +Chicago Title & Trust Co. _v._ 4136 Wilcox Bldg. Corp., 302 U.S. 120 +(1937), 264 + +Chinese Exclusion Case, 120 U.S. 581 (1889), 259 + +Chin Tow _v._ United States, 208 U.S. 8 (1908), 852 + +Chirac _v._ Chirac, 2 Wheat. 259 (1817), 258, 416 + +Chisholm _v._ Georgia, 2 Dall. 419 (1793), 60, 334, 512, 539, 585, 591, +596, 597, 611, 929, 930 + +Choate _v._ Trapp, 224 U.S. 665 (1912), 433, 864 + +Choctaw O. & G.R. Co. _v._ Harrison, 235 U.S. 292 (1914), 735 + +Christ Church _v._ Philadelphia County, 24 How. 300 (1861), 343 + +Christian _v._ Atlantic & N.C.R. Co., 133 U.S. 233 (1890), 932 + +Christmas _v._ Russell, 5 Wall. 290 (1866), 654, 674 + +Christoffel _v._ United States, 338 U.S. 84 (1949), 86, 97, 98 + +Church _v._ Hubbart, 2 Cr. 187 (1804), 575 + +Church _v._ Kelsey, 121 U.S. 282 (1887), 1096 + +Church of Jesus Christ of L.D.S. _v._ United States, 136 U.S. 1 (1890), +703 + +Chy Lung _v._ Freeman, 92 U.S. 275 (1876), 216 + +Cincinnati _v._ Louisville & N.R. Co., 223 U.S. 390 (1912), 699 + +Cincinnati _v._ Vester, 281 U.S. 439 (1930), 866, 1064 + +Cincinnati, N.O. & T.P.R. Co. _v._ Interstate Commerce Commission, 162 +U.S. 184 (1896), 134 + +Cincinnati, N.O. & T.P.R. Co. _v._ Kentucky, 115 U.S. 321 (1885), 1060, +1085 + +Cincinnati, P.B.S. & P. Packet Co. _v._ Catlettsburg, 105 U.S. 559 +(1882), 366 + +Cincinnati Soap Co. _v._ United States, 301 U.S. 308 (1937), 116, 117, +323 + +Cincinnati Street R. Co. _v._ Snell, 193 U.S. 30 (1904), 1089 + +Cities Service Co. _v._ Peerless Co., 340 U.S. 179 (1950), 234, 1026 + +Cities Service Co. _v._ McGrath, 342 U.S. 330 (1952), 295 + +Citizens Nat. Bank _v._ Durr, 257 U.S. 99 (1921), 1044 + +Citizens Savings & Loan Association _v._ Topeka, 20 Wall. 655 (1875), +751, 1037 + +City Bank Farmers Trust Co. _v._ Schnader, 293 U.S. 112 (1934), 1045 + +City of Panama, The, 101 U.S. 453 (1880), 575, 704 + +Civil Rights Cases, 109 U.S. 3 (1883), 919, 952, 953, 1175 + +Claflin _v._ Houseman, 93 U.S. 130 (1876), 636, 637, 726, 739 + +Clallam County _v._ United States, 263 U.S. 341 (1923), 289, 310, 733 + +Clark _v._ Allen, 331 U.S. 503 (1947), 417, 425 + +Clark _v._ Barnard, 108 U.S. 436 (1883), 936 + +Clark _v._ Graham, 6 Wheat. 577 (1821), 651 + +Clark _v._ Nash, 198 U.S. 361 (1905), 1063, 1065 + +Clark _v._ Paul Gray, Inc., 306 U.S. 583 (1939), 212, 1151 + +Clark _v._ Poor, 274 U.S. 554 (1927), 212 + +Clark _v._ Smith, 13 Pet. 195 (1839), 895 + +Clark _v._ Willard, 292 U.S. 112 (1934), 681 + +Clark _v._ Wooster, 119 U.S. 322 (1886), 893 + +Clark Distilling Co. _v._ Western Maryland R. Co., 242 U.S. 311 (1917), +176, 219, 239, 1032 + +Clark Thread Co. _v._ Willimantic Linen Co., 140 U.S. 481 (1891), 272 + +Clarke _v._ Clarke, 178 U.S. 186 (1900), 673 + +Clarke, Ex parte, 100 U.S. 399 (1880), 93, 94 + +Clason _v._ Indiana, 306 U.S. 439 (1939), 237 + +Clement Nat. Bank _v._ Vermont, 231 U.S. 120 (1914), 1058 + +Cleveland _v._ United States, 323 U.S. 329 (1945), 115, 733 + +Cleveland _v._ United States, 329 U.S. 14 (1946), 170 + +Cleveland, C.C. & St. L.R. Co. _v._ Backus, 154 U.S. 439 (1894), 201 + +Cleveland Electric Ry. Co. _v._ Cleveland, 204 U.S. 116 (1907), 1009 + +Cline _v._ Frink Dairy, 274 U.S. 445 (1927), 1097 + +Clinton _v._ Englebrecht, 13 Wall. 434 (1872), 704 + +Cloverleaf Co. _v._ Patterson, 315 U.S. 148 (1942), 250 + +Cluett _v._ Claflin, 140 U.S. 180 (1891), 273 + +Clyatt _v._ United States, 197 U.S. 207 (1905), 951, 953 + +Clyde Mallory Lines _v._ Alabama ex rel. State Docks Commission, 296 +U.S. 261 (1935), 366 + +Cochran _v._ Kansas, 316 U.S. 255 (1942), 1166 + +Cochran _v._ Louisiana State Bd. of Ed., 281 U.S. 370 (1930), 764, 1037 + +Cockrill _v._ California, 268 U.S. 258 (1925), 1096 + +Coe _v._ Armour Fertilizer Works, 237 U.S. 413 (1915), 1074, 1085, 1088 + +Coe _v._ Coe, 334 U.S. 378 (1948), 668, 669 + +Coe _v._ Errol, 116 U.S. 517 (1886), 171, 180, 185 + +Coffey _v._ Harlan County, 204 U.S. 659 (1907), 1092 + +Coffey _v._ United States, 116 U.S. 436 (1886), 840 + +Coffin _v._ Coffin, 4 Mass. 1 (1808), 99, 100 + +Coffin Bros. & Co. _v._ Bennett, 277 U.S. 29 (1928), 1087 + +Coffman _v._ Breeze Corporations, Inc., 323 U.S. 316 (1945), 540, 550, +553, 562 + +Cohen _v._ Beneficial Industrial Loan Corp., 337 U.S. 541 (1949), 564, +608, 1090, 1166 + +Cohens _v._ Virginia, 6 Wheat 264 (1821), 121, 303, 538, 554, 560, 569, +585, 593, 597, 612, 613, 625, 929 + +Cole _v._ Arkansas, 333 U.S. 196 (1948), 1133 + +Cole _v._ Arkansas, 338 U.S. 345 (1949), 1097 + +Cole _v._ Cunningham, 133 U.S. 107 (1890), 654, 674, 687 + +Colegrove _v._ Green, 328 U.S. 549 (1946), 93, 94, 548, 1165 + +Coleman _v._ Miller, 307 U.S. 433 (1939), 98, 547, 548, 712, 714, 982 + +Colgate _v._ Harvey, 296 U.S. 404 (1935), 693, 968, 971, 1149 + +Collector _v._ Day, 11 Wall. 113 (1871), 106, 916, 917 + +Collins, Ex parte, 277 U.S. 565 (1938), 631 + +Collins _v._ Hardyman, 341 U.S. 651 (1951), 810 + +Collins _v._ Johnston, 237 U.S. 502 (1915), 1133, 1161 + +Collins _v._ Loisel, 262 U.S. 426 (1923), 839 + +Collins _v._ New Hampshire, 171 U.S. 30 (1898), 240 + +Collins _v._ Texas, 223 U.S. 288 (1912), 1024 + +Collins _v._ Yosemite Park & Curry Co., 304 U.S. 518 (1938), 305, 731, +1233 + +Colorado _v._ United States, 271 U.S. 153 (1926), 137 + +Colorado Central Consol. Min. Co. _v._ Turck, 150 U.S. 138 (1893), 616 + +Colorado Nat. Bank _v._ Bedford, 310 U.S. 41 (1940), 734 + +Colorado-Wyoming Co. _v._ Comm'n., 324 U.S. 626 (1945), 138 + +Columbia R. Gas & E. Co. _v._ South Carolina, 261 U.S. 236 (1923), 329 + +Columbus & G.R. Co. _v._ Miller, 283 U.S. 96 (1931), 982, 1153 + +Commercial & Railroad Bank of Vicksburg _v._ Slocomb, 14 Pet. 60 (1840), +601 + +Commercial Pub. Co. _v._ Beckwith, 188 U.S. 567 (1903), 656 + +Commercial Trust Co. of New Jersey _v._ Miller, 262 U.S. 51 (1923), 547 + +Commissioner _v._ Wilcox, 327 U.S. 404 (1946), 1201 + +Commonwealth _v._ Blanding, 3 Pick. (Mass.) 304 (1825), 771 + +Commonwealth _v._ Gordon, 66 D & C (Pa.) 101 (1949), 781 + +Commonwealth _v._ Pouliot, 292 Mass. 229 (1935), 952 + +Communications Comm'n. _v._ N.B.C, 319 U.S. 239 (1943), 788 + +Compania Espanola de Navegacion Maritima, S.A. _v._ The Navemar, 303 +U.S. 68 (1938), 474, 609 + +Compagnie Francaise de Navigation a Vapeur _v._ Louisiana State Board of +Health, 186 U.S. 380 (1902), 217, 1029 + +Concordia P. Ins. Co. _v._ Illinois, 292 U.S. 535 (1934), 1150 + +Concrete Appliances Co. _v._ Gomery, 269 U.S. 177 (1925), 273 + +Confiscation Cases, The. _See_ United States _v._ Clarke. + +Conley _v._ Mathieson Alkali Works, 190 U.S. 406 (1903), 1077 + +Connecticut General Life Insurance Co. _v._ Johnson, 303 U.S. 77 (1938), +1056, 1143 + +Connecticut Ins. Co. _v._ Moore, 333 U.S. 541 (1948), 362, 1034 + +Connecticut Mut. L. Ins. Co. _v._ Cushman, 108 U.S. 51 (1883), 355 + +Connecticut Mut. Ins. Co. _v._ Spratley, 172 U.S. 602 (1899), 660 + +Conner _v._ Elliott, 18 How. 591 (1856), 691 + +Connolly _v._ Union Sewer Pipe Co., 184 U.S. 540 (1902), 1160 + +Conrad _v._ Waples, 96 U.S. 279 (1878), 295 + +Consolidated Coal Co. _v._ Illinois, 185 U.S. 203 (1902), 987 + +Consolidated Edison Co. _v._ National Labor Relations Board, 305 U.S. +197 (1938), 849, 850 + +Consolidated Rendering Co. _v._ Vermont, 207 U.S. 541 (1908), 1122, 1167 + +Consumers' Co. _v._ Hatch, 224 U.S. 148 (1912), 1010 + +Continental Baking Co. _v._ Woodring, 286 U.S. 352 (1932), 212, 227, +228, 934, 1033, 1151 + +Continental Co. _v._ Tennessee, 311 U.S. 5 (1940), 1055 + +Continental Ill. Nat. Bank & T. Co. _v._ Chicago, R.I., & P.R. Co., 294 +U.S. 648 (1935), 262, 263, 362, 858 + +Continental Tie & Lumber Co. _v._ United States, 286 U.S. 290 (1932), +1197 + +Converse _v._ Hamilton, 224 U.S. 243 (1912), 678 + +Conway _v._ Taylor, 1 Bl. 603 (1862), 231 + +Cook _v._ Cook, 342 U.S. 126 (1951), 670 + +Cook _v._ Hart, 146 U.S. 183 (1892), 696 + +Cook _v._ Marshall County, 196 U.S. 261 (1905), 1148 + +Cook _v._ Pennsylvania, 97 U.S. 566 (1878), 185, 364 + +Cook _v._ Tait, 265 U.S. 47 (1924), 862 + +Cook _v._ United States, 138 U.S. 157 (1891), 317, 881 + +Cook _v._ United States, 288 U.S. 102 (1933), 422 + +Cooke _v._ United States, 267 U.S. 517 (1925), 517, 847 + +Cooley _v._ Board of Wardens of Port of Philadelphia, 12 How. 299 +(1851), 176, 180, 217, 219, 227, 229, 323, 364, 366 + +Coolidge _v._ Long, 282 U.S. 582 (1931), 863, 1039 + +Coombes _v._ Getz, 285 U.S. 434 (1932), 330, 344, 1035 + +Cooney _v._ Mountain States Telephone & Telegraph Co., 294 U.S. 384 +(1935), 126, 195, 197 + +Cooper _v._ Newell, 173 U.S. 555 (1899), 684 + +Cooper _v._ Reynolds, 10 Wall. 308 (1870), 658, 1081 + +Cooper _v._ United States, 280 U.S. 409 (1930), 863 + +Coppage _v._ Kansas, 236 U.S. 1 (1915), 985, 991 + +Corfield _v._ Coryell, 6 Fed. Cas. 3230 (1823), 689, 690 + +Corn Exch. Bank _v._ Coler, 280 U.S. 218 (1930), 1081 + +Corn Products Ref. Co. _v._ Eddy, 249 U.S. 427 (1919), 238, 241, 1019, +1154 + +Cornell _v._ Coyne, 192 U.S. 418 (1904), 321 + +Cornell Steamboat Co. _v._ United States, 321 U.S. 634 (1944), 130 + +Coronado Coal Co. _v._ United Mine Workers, 268 U.S. 295 (1925), 149 + +Corp. of Brick Church _v._ Mayor et al., 5 Cowen (N.Y.) 538 (1826), 349 + +Corporations Commission _v._ Lowe, 281 U.S. 431 (1930), 1154 + +Corrigan _v._ Buckley, 271 U.S. 323 (1926), 1161 + +Corry _v._ Baltimore, 196 U.S. 466 (1905), 1060 + +Corson _v._ Maryland, 120 U.S. 502 (1887), 187 + +Cotting _v._ Godard, 183 U.S. 79 (1901), 996 + +Coughran _v._ Bigelow, 164 U.S. 301 (1896), 896 + +Coulter _v._ Louisville & N.R. Co., 196 U.S. 599 (1905), 1152 + +Counselman _v._ Hitchcock, 142 U.S. 547 (1892), 842, 878 + +Covell _v._ Heyman, 111 U.S. 176 (1884), 526, 626, 627 + +Coverdale _v._ Arkansas-Louisiana Pipe Line Co., 303 U.S. 604 (1938), +181, 198 + +Covington _v._ Kentucky, 173 U.S. 231 (1899), 340 + +Covington & C. Bridge Co. _v._ Kentucky, 154 U.S. 204 (1894), 120, 193, +218, 231 + +Cox _v._ Lott (State Tonnage Tax Cases), 12 Wall. 204 (1871), 366 + +Cox _v._ New Hampshire, 312 U.S. 569 (1941), 788 + +Cox _v._ Texas, 202 U.S. 446 (1906), 1148 + +Cox _v._ Wood, 247 U.S. 3 (1918), 285 + +Coy, In re, 127 U.S. 731 (1888), 94 + +Coyle _v._ Smith, 221 U.S. 559 (1911), 698 + +Craig _v._ Harney, 331 U.S. 367 (1947), 784 + +Craig _v._ Hecht, 263 U.S. 255 (1923), 516 + +Craig _v._ Missouri, 4 Pet. 410 (1830), 326 + +Crain _v._ United States, 162 U.S. 625 (1896), 847 + +Cramer _v._ United States, 325 U.S. 1 (1945), 640, 642, 645 + +Crandall _v._ Nevada, 6 Wall. 35 (1868), 180, 192, 242, 967, 968 + +Crane _v._ Commissioner, 331 U.S. 1 (1947), 1198 + +Crane _v._ Hahlo, 258 U.S. 142 (1922), 343 + +Crane _v._ Johnson, 242 U.S. 339 (1917), 1155 + +Crane _v._ New York, 239 U.S. 195 (1915), 971, 1158 + +Crane-Johnson Co. _v._ Helvering, 311 U.S. 54 (1940), 1197 + +Crawford _v._ Branch Bank of Alabama, 7 How. 279 (1849), 355 + +Crawford _v._ United States, 212 U.S. 183 (1909), 879 + +Cream of Wheat Co. _v._ Grand Forks County, 253 U.S. 325 (1920), 1050 + +Crenshaw _v._ Arkansas, 227 U.S. 389 (1913), 187 + +Crenshaw _v._ United States, 134 U.S. 99 (1890), 340, 458 + +Crescent Cotton Oil Co. _v._ Mississippi, 257 U.S. 129 (1921), 1145 + +Crew Levick Co. _v._ Pennsylvania, 245 U.S. 292 (1917), 364 + +Cross _v._ Burke, 146 U.S. 82 (1892), 615 + +Cross _v._ North Carolina, 132 U.S. 131 (1889), 1141 + +Crossman _v._ Lurman, 192 U.S. 189 (1904), 248 + +Crowell _v._ Benson, 285 U.S. 22 (1932), 622, 893, 1003 + +Crowley _v._ Christensen, 137 U.S. 86 (1890), 971 + +Crutcher _v._ Kentucky, 141 U.S. 47 (1891), 194, 202, 689, 967 + +Cudahy Packing Co. _v._ Hinkle, 278 U.S. 460 (1929), 195, 1051 + +Cudahy Packing Co. _v._ Minnesota, 246 U.S. 450 (1918), 200 + +Cudahy Packing Co. _v._ Parramore, 263 U.S. 418 (1923), 681 + +Cullinan _v._ Walker, 262 U.S. 134 (1923), 1195 + +Cumming _v._ County Board of Education, 175 U.S. 528 (1899), 1162 + +Cummings _v._ Deutsche Bank, 300 U.S. 115 (1937), 865 + +Cummings _v._ Missouri, 4 Wall. 277 (1867), 316, 327, 328, 736 + +Cummings _v._ Nat. Bank, 101 U.S. 153 (1880), 895 + +Cunningham _v._ Macon & Brunswick R. Co., 109 U.S. 446 (1883), 588, 589, +931 + +Cunningham _v._ Neagle, 135 U.S. 1 (1890), 727 + +Cunnius _v._ Reading School Dist., 198 U.S. 458 (1905), 1082 + +Cuno Corp. _v._ Automatic Devices Corp., 314 U.S. 84 (1941), 272, 273 + +Curran _v._ Arkansas, 15 How. 304 (1853), 326, 332, 344 + +Currin _v._ Wallace, 306 U.S. 1 (1939), 76, 78, 176, 552, 853, 854 + +Curry _v._ McCanless, 307 U.S. 357 (1939), 1047, 1048, 1050 + +Curry _v._ United States, 314 U.S. 14 (1941), 731 + +Curtis, Ex parte, 106 U.S. 371 (1882), 309, 460, 793 + +Curtis _v._ Whitney, 13 Wall. 68 (1872), 355 + +Cusack Co. _v._ Chicago, 242 U.S. 526 (1917), 1029 + +Cuyahoga River Power Co. _v._ Akron, 240 U.S. 462 (1916), 329 + + +D + +Dahnke-Walker Milling Co. _v._ Bondurant, 257 U.S. 282 (1921), 120, 182 + +Dallemagne _v._ Moisan, 197 U.S. 169 (1905), 636 + +Dalton _v._ Jennings, 93 U.S. 271 (1876), 273 + +Dane _v._ Jackson, 256 U.S. 589 (1921), 1037 + +Danforth _v._ United States, 308 U.S. 271 (1939), 871 + +Daniel Ball, The, 10 Wall. 557 (1871), 125, 128, 577, 868 + +Daniel _v._ Family Security Life Ins. Co., 336 U.S. 220 (1949), 564, +1021, 1155 + +Danzer Co. _v._ Gulf & S.I.R. Co., 268 U.S. 633 (1925), 857 + +Darby _v._ Mayer, 10 Wheat. 465 (1825), 673 + +D'Arcy _v._ Ketchum, 11 How. 165 (1850), 658 + +Darling _v._ Newport News, 249 U.S. 540 (1919), 1067 + +Darnell _v._ Indiana, 226 U.S. 390 (1912), 1149 + +Darnell & Son Co. _v._ Memphis, 208 U.S. 113 (1908), 185 + +Darrington _v._ Bank of Alabama, 13 How. 12 (1851), 326 + +Dartmouth College _v._ Woodward, 4 Wheat. 518 (1819), 332, 336, 338, +352, 555 + +Davidson _v._ New Orleans, 96 U.S. 97 (1878), 847, 972, 999, 1062, 1146 + +Davis, The, 10 Wall. 15 (1870), 586, 610 + +Davis _v._ Beason, 133 U.S. 333 (1890), 765, 766, 772 + +Davis _v._ Brig Seneca, 21 Fed. Cas. No. 12,670 (1829), 573 + +Davis _v._ Cleveland, C.C. & St. L.R. Co., 217 U.S. 157 (1910), 235 + +Davis _v._ Davis, 305 U.S. 32 (1938), 663 + +Davis _v._ Department of Labor, 317 U.S. 249 (1942), 581, 583 + +Davis _v._ Elmira Savings Bank, 161 U.S. 275 (1896), 725 + +Davis _v._ Farmers Co-operative Co., 262 U.S. 312 (1923), 1076 + +Davis _v._ Gray, 16 Wall. 203 (1873), 931 + +Davis _v._ Massachusetts, 167 U.S. 43 (1897), 785, 809 + +Davis _v._ Hildebrant. _See_ Ohio ex rel. Davis _v._ Hildebrant. + +Davis _v._ Schnell, 81 F. Supp. 872 (1949), 1186 + +Davis _v._ United States, 328 U.S. 582 (1946), 824 + +Davis _v._ Virginia, 236 U.S. 697 (1915), 187 + +Day-Brite Lighting, Inc. _v._ Missouri, 342 U.S. 421 (1952), 989 + +Dayton Coal & I. Co. _v._ Barton, 183 U.S. 23 (1901), 987 + +Dayton-Goose Creek R. Co. _v._ United States, 263 U.S. 456 (1924), 861 + +Dean Milk Co. _v._ Madison, 340 U.S. 349 (1951), 238 + +Debs, In re, 158 U.S. 564 (1895), 268, 484, 495, 516, 878 + +Debs _v._ United States, 249 U.S. 211 (1919), 297, 774, 794 + +Decatur _v._ Paulding, 14 Pet. 497 (1840), 501, 546 + +De Geofroy _v._ Riggs, 133 U.S. 258 (1890), 302, 416 + +De Groot _v._ United States, 5 Wall. 419 (1867), 514, 536, 586 + +De Jonge _v._ Oregon, 299 U.S. 353 (1937), 757, 773, 806 + +Delaware, L. & W.R. Co. _v._ Morristown, 276 U.S. 182 (1928), 1066 + +Delaware, L. & W.R. Co. _v._ Pennsylvania, 198 U.S. 341 (1905), 1050 + +Delaware Railroad Tax, 18 Wall. 206 (1874), 342 + +Delgado _v._ Chavez, 140 U.S. 586 (1891), 1096. + +De Lima _v._ Bidwell, 182 U.S. 1 (1901), 419 + +De Meerleer _v._ Michigan, 329 U.S. 663 (1947), 1103, 1108 + +Demorest _v._ City Bank Co., 321 U.S. 36 (1944), 1034 + +Den ex dem. Murray _v._ Hoboken Land & Improvement Co., 18 How. 272 +(1856), 308, 823, 845, 846 + +Dennick _v._ R.R., 103 U.S. 11 (1881), 675, 676 + +Dennis _v._ United States, 339 U.S. 162 (1950), 879 + +Dennis _v._ United States, 341 U.S. 494 (1951), 519, 770, 795, 796, 801, +843 + +Denny _v._ Bennett, 128 U.S. 489 (1888), 265 + +Dent _v._ West Virginia, 129 U.S. 114 (1889), 1024 + +Denver _v._ Denver Union Water Co., 216 U.S. 178 (1918), 1008 + +Denver _v._ New York Trust Co., 229 U.S. 123 (1913), 1009 + +Denver & R.G.R. Co. _v._ Denver, 250 U.S. 241 (1919), 223, 345, 1009, +1014 + +Denver Union Stock Yards Co. _v._ United States, 304 U.S. 470 (1938), +860 + +Dept. of Treasury of Indiana _v._ Mfg. Co., 313 U.S. 252 (1941), 204 + +Dept. of Treasury of Indiana _v._ Wood Corp., 313 U.S. 62 (1941), 198, +204 + +Des Moines Gas Co. _v._ Des Moines, 238 U.S. 153 (1915), 1002, 1007, +1008 + +Des Moines Nat. Bank _v._ Fairweather, 263 U.S. 103 (1923), 734 + +De Treville _v._ Smalls, 98 U.S. 517 (1879), 321 + +Detroit _v._ Osborne, 135 U.S. 492 (1890), 687 + +Detroit _v._ Parker, 181 U.S. 399 (1901), 1059 + +Detroit Bank _v._ United States, 317 U.S. 329 (1943), 853, 854 + +Detroit Trust Company _v._ The "Thomas Barlum," 293 U.S. 21 (1934), 311 + +Detroit United Railway Co. _v._ Detroit, 255 U.S. 171 (1921), 1009 + +Detroit United Railway Co. _v._ Michigan, 242 U.S. 238 (1916), 329 + +Dewey _v._ Des Moines, 173 U.S. 193 (1899), 1062, 1080 + +Dewing _v._ Perdicaries, 96 U.S. 193 (1878), 728 + +Diamond Glue Co. _v._ United States Glue Co., 187 U.S. 611 (1903), 120 + +Diamond Match Co. _v._ Ontonagon, 188 U.S. 82 (1903), 181 + +Diamond Rubber Co. _v._ Consolidated Tire Co., 220 U.S. 428 (1911), 272 + +Dick _v._ United States, 208 U.S. 340 (1908), 253, 432, 699 + +Dier _v._ Banton, 262 U.S. 147 (1923), 843 + +Dietzsch _v._ Huidekoper, 103 U.S. 494 (1881), 629 + +Diggs _v._ Wolcott, 4 Cr. 179 (1807), 628 + +Dillon _v._ Gloss, 256 U.S. 368 (1921), 39, 712, 713, 714 + +Dimick _v._ Schiedt, 293 U.S. 474 (1935), 892, 896 + +Di Santo _v._ Pennsylvania, 273 U.S. 34 (1927), 196, 219, 228 + +District of Columbia _v._ Bailey, 171 U.S. 161 (1898), 301, 854 + +District of Columbia _v._ Brooke, 214 U.S. 138 (1909), 854 + +District of Columbia _v._ Clawans, 300 U.S. 617 (1937), 878 + +District of Columbia _v._ Colts, 282 U.S. 63 (1930), 878 + +Dixie Ohio Express Co. _v._ State Revenue Commission, 306 U.S. 72 +(1939), 212 + +Dobbins _v._ Erie County, 16 Pet. 435 (1842), 731 + +Dobbins _v._ Los Angeles, 195 U.S. 223 (1904), 1028 + +Dodge _v._ Board of Education of Chicago, 302 U.S. 74 (1937), 340 + +Dodge _v._ Brady, 240 U.S. 122 (1916), 621 + +Dodge _v._ Osborn, 240 U.S. 118 (1916), 621, 858 + +Dodge _v._ Woolsey, 18 How. 331 (1856), 329, 541, 602 + +Doe _v._ Braden, 16 How. 636 (1853), 473 + +Doe ex dem. Governeur's Heirs _v._ Robertson, 11 Wheat. 332 (1826), 258 + +Dohany _v._ Rogers, 281 U.S. 362 (1930), 1065, 1067, 1166 + +Doherty & Co. _v._ Goodman, 294 U.S. 623 (1935), 691 + +Dominion Hotel _v._ Arizona, 249 U.S. 265 (1919), 1146, 1159 + +Donald _v._ Philadelphia & R. Coal & I. Co, 241 U.S. 329 (1916), 638 + +Donaldson _v._ Read Magazine, 333 U.S. 178 (1948), 269, 805, 859, 905 + +Dooley _v._ United States, 182 U.S. 222 (1901), 404 + +Dooley _v._ United States, 183 U.S. 151 (1901), 321 + +Dorchy _v._ Kansas, 264 U.S. 286 (1924), 992 + +Doremus _v._ Board of Education, 342 U.S. 429 (1952), 542, 763 + +Dorr _v._ United States, 195 U.S. 138 (1904), 703 + +Doty _v._ Love, 295 U.S. 64 (1935), 1020 + +Double-Pointed Tack Co. _v._ Two Rivers Mfg. Co., 109 U.S. 117 (1883), +273 + +Douglas _v._ Kentucky, 168 U.S. 488 (1897), 1031 + +Douglas _v._ New York, N.H. & H.R. Co., 279 U.S. 377 (1929), 687, 692 + +Douglas _v._ Noble, 261 U.S. 165 (1923), 1024 + +Dow _v._ Beidelman, 125 U.S. 680 (1888), 999 + +Dow _v._ Johnson, 100 U.S. 158 (1880), 294 + +Dow Chemical Co. _v._ Halliburton Co., 324 U.S. 320 (1945), 272 + +Dowling Bros. Distilling Co. _v._ United States, 153 F. (2d) 353 (1946), +1234 + +Downes _v._ Bidwell, 182 U.S. 244 (1901), 60, 110, 430, 703 + +Downham _v._ Alexandria, 10 Wall. 173 (1870), 693 + +Doyle _v._ Continental Ins. Co., 94 U.S. 535 (1877), 638 + +Doyle _v._ Mitchell Bros. Co., 247 U.S. 179 (1918), 1192 + +Dozier _v._ Alabama, 218 U.S. 124 (1910), 187 + +Draper _v._ United States, 164 U.S. 240 (1896), 699 + +Dred Scott Case: _See_ Scott _v._ Sandford. + +Drew _v._ Thaw, 235 U.S. 432 (1914), 695 + +Dreyer _v._ Illinois, 187 U.S. 71 (1902), 1071, 1135 + +Driscoll _v._ Edison Co., 307 U.S. 104 (1939), 1005 + +Drivers Union _v._ Meadowmoor Co., 312 U.S. 287 (1941), 781, 787 + +Dubuque & S.C.R. Co. _v._ Richmond, 19 Wall. 584 (1874), 362 + +Duckworth _v._ Arkansas, 314 U.S. 390 (1941), 218, 241, 1233 + +Dugan _v._ Ohio, 277 U.S. 61 (1928), 1131 + +Dugan _v._ United States, 3 Wheat. 172 (1818), 584 + +Duhne _v._ New Jersey, 251 U.S. 311 (1920), 930 + +Duignan _v._ United States, 274 U.S. 195 (1927), 897 + +Duke _v._ United States, 301 U.S. 492 (1937), 838 + +Dumbra _v._ United States, 268 U.S. 435 (1925), 825 + +Duncan _v._ Darst, 1 How. 301 (1843), 627 + +Duncan _v._ Kahanamoku, 324 U.S. 833 (1945), 401 + +Duncan _v._ Kahanamoku, 327 U.S. 304 (1946), 294 + +Duncan _v._ McCall, 139 U.S. 449 (1891), 634 + +Duncan _v._ Missouri, 152 U.S. 377 (1894), 329, 1166 + +Dunham _v._ Dennison Mfg. Co., 154 U.S. 103 (1894), 273 + +Duplex Printing Press Co. _v._ Deering, 254 U.S. 443 (1921), 149, 524 + +Durand _v._ Hollins, 4 Blatch. 451 (1860), 487 + +Durousseau _v._ United States, 6 Cr. 307 (1810), 614 + +Dynes _v._ Hoover, 20 How. 65 (1858), 286 + + +E + +East Hartford _v._ Hartford Bridge Co., 10 How. 511 (1851), 340 + +East New York Savings Bank _v._ Hahn, 326 U.S. 230 (1945), 361 + +East Ohio Gas Co. _v._ Tax Com. of Ohio, 283 U.S. 465 (1931), 195, 234 + +Eastern Air Transport, Inc. _v._ South Carolina Tax Comm., 285 U.S. 147 +(1932), 184, 186 + +Easton, Ex parte, 95 U.S. 68 (1877), 574 + +Eberle _v._ Michigan, 232 U.S. 700 (1914), 1155 + +Eberly _v._ Moore, 24 How. 147 (1861), 526 + +Economy Light and Power Co. _v._ United States, 256 U.S. 113 (1921), +128, 230 + +Edelman _v._ Boeing Air Transport, Inc., 289 U.S. 249 (1933), 186 + +Educational Films Corp. _v._ Ward, 282 U.S. 379 (1931), 734 + +Edwards _v._ California, 314 U.S. 160 (1941), 120, 192, 218, 242, 968 + +Edwards _v._ Cuba Railroad, 268 U.S. 628 (1925), 1197 + +Edwards _v._ Elliott, 21 Wall. 532 (1874), 892 + +Edwards _v._ Kearzey, 96 U.S. 595 (1878), 360 + +Edwards _v._ United States, 286 U.S. 482 (1932), 103 + +Edye _v._ Robertson (Head Money Cases), 112 U.S. 580 (1884), 418, 420, +431 + +Effinger _v._ Kenney, 115 U.S. 566 (1885), 356 + +Eichholz _v._ Public Service Com. of Missouri, 306 U.S. 268 (1939), 227 + +Eilenbecker _v._ District Court, 134 U.S. 31 (1890), 1096 + +Eisner _v._ Macomber, 252 U.S. 189 (1920), 1192, 1193, 1194, 1195 + +Electric Bond & Share Co. _v._ Securities & Exchange Commission, 303 +U.S. 419 (1938), 151, 270, 550, 552 + +Elk _v._ Wilkins, 112 U.S. 94 (1884), 255, 1171 + +Elkison _v._ Deliesseline, 8 Fed. Cas. No. 4366 (1823), 241 + +Ellerbee _v._ Aderhold, 5 F. Supp. 1022 (1934), 1214 + +Ellis _v._ United States, 206 U.S. 246 (1007), 855 + +El Paso & N.E.R. Co. _v._ Gutierrez, 215 U.S. 87 (1909), 703 + +Emblem _v._ Lincoln Land Co., 184 U.S. 600 (1902), 702, 703 + +Embry _v._ Palmer, 107 U.S. 3 (1883), 305, 311, 657, 685 + +Emert _v._ Missouri, 156 U.S. 296 (1895), 184, 1155 + +Employers' Liability Assurance Co. _v._ Cook, 281 U.S. 233 (1930), 582 + +Employers' Liability Cases. _See_ Howard _v._ Illinois C.R. Co. + +Endicott Co. _v._ Encyclopedia Press, 266 U.S. 285 (1924), 1081 + +Endicott Johnson Corp. _v._ Perkins, 317 U.S. 501 (1943), 521 + +Endo, Ex parte, 323 U.S. 283 (1944), 297 + +Engel _v._ O'Malley, 219 U.S. 128 (1911), 235 + +English _v._ Richardson, 224 U.S. 680 (1912), 864 + +Equitable L. Assur. Soc. _v._ Brown, 187 U.S. 308 (1902), 684 + +Equitable L. Assur. Soc. _v._ Pennsylvania, 238 U.S. 143 (1915), 1055 + +Erb _v._ Morasch, 177 U.S. 584 (1900), 223 + +Erhardt _v._ Boaro, 113 U.S. 527 (1885), 78 + +Erie R. Co. _v._ Erie & Western T. Co., 204 U.S. 220 (1907), 575 + +Erie R. Co. _v._ New York, 233 U.S. 671 (1914), 247 + +Erie R. Co. _v._ Public Utility Commission, 254 U.S. 394 (1921), 223 + +Erie R. Co. _v._ Solomon, 237 U.S. 427 (1915), 1014 + +Erie R. Co. _v._ Tompkins, 304 U.S. 64 (1938), 332, 605 + +Erie R. Co. _v._ Williams, 233 U.S. 685 (1914), 983, 987 + +Escanaba & L.M. Transp. Co. _v._ Chicago, 107 U.S. 678 (1883), 231, 698 + +Esenwein _v._ Commonwealth, 325 U.S. 279 (1945), 666, 667 + +Essanay Film Mfg. Co. _v._ Kane, 258 U.S. 358 (1922), 524 + +Essex _v._ New England Teleg. Co., 239 U.S. 313 (1915), 232 + +Essgee Co. _v._ United States, 262 U.S. 151 (1923), 827 + +Estin _v._ Estin, 334 U.S. 541 (1948), 667, 670 + +Ettor _v._ Tacoma, 228 U.S. 148 (1913), 342 + +Eubank _v._ Richmond, 226 U.S. 137 (1912), 983, 1029 + +Euclid _v._ Ambler Realty Co., 272 U.S. 365 (1026), 1028 + +Eunson _v._ Dodge, 18 Wall. 414 (1873), 271 + +Eureka Pipe Line Co. _v._ Hallanan, 257 U.S. 265 (1921), 138, 182, 195 + +Evans _v._ Eaton, 3 Wheat 454 (1818), 274 + +Evans _v._ Gore, 253 U.S. 245 (1920), 105, 530 + +Evans _v._ Jordan, 9 Cr. 199 (1815), 271, 275 + +Everard's Breweries _v._ Day, 265 U.S. 545 (1924), 919 + +Everett _v._ Everett, 215 U.S. 203 (1909), 654 + +Everson _v._ Board of Education, 330 U.S. 1 (1947), 760, 764 + +Exchange, The _v._ McFaddon, 7 Cr. 116 (1812), 609 + + +F + +Fahey _v._ Mallonee, 332 U.S. 245 (1947), 76 + +Fair, The, _v._ Kohler Die Co., 228 U.S. 22 (1913), 567 + +Fairbank _v._ United States, 181 U.S. 283 (1901), 322 + +Fairchild _v._ Hughes, 258 U.S. 126 (1922), 542, 715 + +Fairfax's Devisee _v._ Hunter's Lessee, 7 Cr. 603 (1813), 416 + +Fair Haven & W.R. Co. _v._ New Haven, 203 U.S. 379 (1906), 344 + +Fairmont Creamery Co. _v._ Minnesota, 274 U.S. 1 (1927), 1018 + +Faitoute Iron & Steel Co. _v._ Asbury Park, 316 U.S. 502 (1942), 340, +357 + +Fall _v._ Eastin, 215 U.S. 1 (1909), 655, 673 + +Fallbrook Irrig. District _v._ Bradley, 164 U.S. 112 (1896), 1059, 1140 + +Fargo _v._ Hart, 193 U.S. 490 (1904), 1053 + +Fargo _v._ Michigan (Fargo _v._ Stevens), 121 U.S. 230 (1887), 204 + +Farish _v._ State Banking Board, 235 U.S. 498 (1915), 936 + +Farmers' & Mechanics' Nat. Bank _v._ Dearing, 91 U.S. 29 (1875), 267 + +Farmers & Merchants Bank _v._ Federal Reserve Bank, 262 U.S. 649 (1923), +326, 1020 + +Farmers & M. Sav. Bank _v._ Minnesota, 232 U.S. 516 (1914), 1149 + +Farmers' Loan & Trust Co. _v._ Lake St. Elev. R. Co., 177 U.S. 51 +(1900), 627, 628 + +Farmers' Loan & Trust Co. _v._ Minnesota, 280 U.S. 204 (1930), 1046 + +Farmers' Union Co-op _v._ Commissioner of Int. Rev., 90 F. (2d) 488 +(1937), 1197 + +Farncomb _v._ Denver, 252 U.S. 7 (1920), 1061 + +Farrington _v._ Tokushige, 273 U.S. 284 (1927), 855 + +Fassett, In re, 142 U.S. 479 (1892), 575 + +Fauntleroy _v._ Lum, 210 U.S. 230 (1908), 654, 657, 674 + +Fay _v._ New York, 332 U.S. 261 (1947), 1110, 1111, 1131, 1168 + +Fayerweather _v._ Ritch, 195 U.S. 276 (1904), 848 + +Federal Baseball Club _v._ National League, 259 U.S. 200 (1922), 120 + +Federal Communications Commission _v._ Pottsville Broadcasting Co., 309 +U.S. 134 (1940), 75 + +Federal Communications Commission _v._ WJR, 337 U.S. 265 (1949), 850 + +Federal Compress & Warehouse Co. _v._ McLean, 291 U.S. 17 (1934), 235 + +Federal Housing Authority _v._ Burr, 309 U.S. 242 (1940), 591 + +Federal Land Bank _v._ Bismarck Lumber Co., 314 U.S. 95 (1941), 733 + +Federal Land Bank _v._ Priddy, 295 U.S. 229 (1935), 586 + +Federal Power Commission _v._ East Ohio Gas Co., 338 U.S. 464 (1950), +138, 921 + +Federal Power Commission _v._ Hope Natural Gas Co., 320 U.S. 591 (1944), +851, 860, 1004, 1005 + +Federal Power Commission _v._ National Gas Pipeline Co., 315 U.S. 575 +(1942), 137, 851, 860, 1004, 1005 + +Federal Power Commission _v._ Pacific Power & Light Co., 307 U.S. 156 +(1939), 620 + +Federal Radio Commission _v._ General Electric Co., 281 U.S. 464 (1930), +535, 536, 537, 623 + +Federal Radio Commission _v._ Nelson Bros. Bond & Mortgage Co., 289 U.S. +266 (1933), 75, 78, 120, 126 + +Federal Trade Commission _v._ American Tobacco Co., 264 U.S. 298 (1924), +827 + +Federal Trade Commission _v._ Bunte Bros., 312 U.S. 349 (1941), 153 + +Federal Trade Commission _v._ Pacific States Paper Trade Assoc., 273 +U.S. 52 (1927), 120 + +Feiner _v._ New York, 340 U.S. 315 (1951), 768, 778 + +Feldman _v._ United States, 322 U.S. 487 (1944), 843 + +Felsenheld _v._ United States, 186 U.S. 126 (1902), 111 + +Felt & Tarrant Manufacturing Co. _v._ Gallagher, 306 U.S. 62 (1939), 190 + +Felts _v._ Murphy, 201 U.S. 123 (1906), 1127 + +Fenner _v._ Boykin, 271 U.S. 240 (1926), 934 + +Fernandez _v._ Wiener, 326 U.S. 340 (1945), 110, 321, 863, 918 + +Ferry _v._ Corbett, 258 U.S. 609 (1922), 691 + +Ferry _v._ Spokane P. & S.R. Co., 258 U.S. 314 (1922), 691, 971 + +Fertilizing Co. _v._ Hyde Park, 97 U.S. 659 (1878), 345 + +Ficklen _v._ Shelby County Taxing District, 145 U.S. 1 (1892) 188, 191 + +Fidelity & C. Trust Co. _v._ Louisville, 245 U.S. 54 (1917), 1044 + +Fidelity & D. Co. _v._ United States, 187 U.S. 315 (1902), 894 + +Fidelity Mut. Life Asso. _v._ Mettler, 185 U.S. 308 (1902), 1167 + +Fidelity National Bank & Trust Co. _v._ Swope, 274 U.S. 123 (1927) 514, +551 + +Fidelity Union Trust Co. _v._ Field, 311 U.S. 169 (1940), 607 + +Field _v._ Clark, 143 U.S. 649 (1892), 79, 80, 97, 98, 442, 547 + +Field _v._ Seabury, 19 How. 323 (1857), 702 + +Fifth Ave. Coach Co. _v._ New York, 221 U.S. 467 (1911), 1154 + +Filer & S. Co. _v._ Diamond Iron Works, 270 F. 489 (1921), 893 + +Filer & S. Co. _v._ Diamond Iron Works, 256 U.S. 691 (1921), 893 + +Finch & Co. _v._ McKittrick, 305 U.S. 395 (1939), 241, 1232 + +Fink _v._ O'Neil, 106 U.S. 272 (1882), 526 + +Finley _v._ California, 222 U.S. 28 (1911), 1161 + +Fire Asso. of Philadelphia _v._ New York, 119 U.S. 110 (1886), 120, +1144, 1146, 1150 + +First Bank Stock Corp. _v._ Minnesota, 301 U.S. 234 (1937), 1044 + +First Nat. Bank _v._ Adams, 258 U.S. 362 (1922), 734 + +First Nat. Bank _v._ Fellows ex rel. Union Trust Co., 244 U.S. 416 +(1917), 78, 309 + +First Nat. Bank _v._ Kentucky, 9 Wall. 353 (1870), 725 + +First Nat. Bank _v._ Louisiana Tax Commission, 289 U.S. 60 (1933), 1147 + +First Nat. Bank _v._ Maine, 284 U.S. 312 (1932), 1046, 1047 + +First Nat. Bank _v._ United Air Lines, 342 U.S. 396 (1952), 677 + +First Nat. Bank _v._ Yankton County, 101 U.S. 129 (1880), 703 + +Fischer _v._ St. Louis, 194 U.S. 361 (1904), 1028, 1157 + +Fisher _v._ Hurst, 333 U.S. 147 (1948), 1163 + +Fisher _v._ Pace, 336 U.S. 155 (1949), 1130 + +Fisher's Blend Station _v._ State Tax Commission, 297 U.S. 650 (1936), +126, 195, 204 + +Fisheries _v._ Holyoke Water Power Co., 104 Mass. 446 (1870), 344 + +Fisk _v._ Jefferson Police Jury, 116 U.S. 131 (1885), 341, 356 + +Fiske _v._ Kansas, 274 U.S. 380 (1927), 757, 772, 773 + +Fitts _v._ McGhee, 172 U.S. 516 (1899), 930, 933 + +Fitzgerald Co. _v._ Pedersen, 324 U.S. 720 (1945), 157 + +Flanagan _v._ Federal Coal Co., 267 U.S. 222 (1925), 182 + +Fleming _v._ Mohawk Wrecking & Lumber Co., 331 U.S. 111 (1947), 293 + +Fleming _v._ Page, 9 How. 603 (1850), 390, 404 + +Fleming _v._ Rhodes, 331 U.S. 100 (1947), 540, 561, 856 + +Fletcher _v._ Peck, 6 Cr. 87 (1810), 335, 350, 352, 555, 560, 976 + +Flexner _v._ Farson, 248 U.S. 289 (1919), 1074 + +Flint _v._ Stone Tracy Co., 220 U.S. 107 (1911), 98, 102, 107, 319, 827, +863, 1192 + +Florida _v._ Georgia, 17 How. 478 (1855), 612 + +Florida _v._ Mellon, 273 U.S. 12 (1927), 110, 594, 596 + +Florsheim _v._ Schilling, 137 U.S. 64 (1890), 273 + +Follett _v._ Town of McCormick, 321 U.S. 573 (1944), 563, 792 + +Fonda, Ex parte, 117 U.S. 516 (1886), 634 + +Fong Yue Ting _v._ United States, 149 U.S. 698 (1893), 73, 259, 421, 624 + +Foote & Co. _v._ Stanley, 232 U.S. 494 (1914), 183, 214 + +Ford _v._ Delta & Pine Land Co., 164 U.S. 662 (1897), 348 + +Ford _v._ Surget, 97 U.S. 594 (1878), 728 + +Ford Motor Co. _v._ Beauchamp, 308 U.S. 331 (1939), 198, 203 + +Ford Motor Co. _v._ Dept. of Treasury of Indiana, 323 U.S. 459 (1945), +935, 936 + +Forsyth _v._ Hammond, 166 U.S. 506 (1897), 705 + +Fort Leavenworth R. Co. _v._ Lowe, 114 U.S. 525 (1885), 307, 429 + +Ft. Smith Light & Traction Co. _v._ Board of Improv., 274 U.S. 387 +(1927), 1154 + +Ft. Smith Light & Traction Co. _v._ Bourland, 267 U.S. 330 (1925), 1011 + +Foster _v._ Davenport, 22 How. 244 (1859), 229 + +Foster _v._ Illinois, 332 U.S. 134 (1947), 1103, 1104 + +Foster _v._ Kansas ex rel. Johnston, 112 U.S. 201 (1884), 1096 + +Foster _v._ Master & Wardens of Port of New Orleans, 94 U.S. 246 (1877), +229 + +Foster _v._ Neilson, 2 Pet. 253 (1829), 414, 418, 422, 426, 472, 473, +547 + +Foster-Fountain Packing Co. _v._ Haydel 278 U.S. 1 (1928), 219, 245 + +Foulke _v._ Burke, 342 U.S. 881 (1951), 1107 + +Fourteen Diamond Rings _v._ United States, 183 U.S. 176 (1901), 413 + +Fowler _v._ Lindsay, 3 Dall. 411 (1799), 592 + +Fox _v._ Ohio, 5 How. 410 (1847), 266, 751 + +Fox _v._ Standard Oil Co., 294 U.S. 87 (1935), 1037, 1148 + +Fox _v._ Washington, 236 U.S. 273 (1915), 773, 778, 782 + +Fox Film Corp. _v._ Doyal, 286 U.S. 123 (1932), 276, 734 + +Francis _v._ Resweber, 329 U.S. 459 (1947), 1161 + +Francis _v._ Southern Pacific Co., 333 U.S. 445 (1948), 724 + +Francis Wright, The, 105 U.S. 381 (1882), 615 + +Frank _v._ Mangum, 237 U.S. 309 (1915), 314, 327, 634, 1127, 1131, 1138, +1139 + +Frasch _v._ Moore, 211 U.S. 1 (1908), 514, 537 + +Frazier _v._ United States, 335 U.S. 497 (1948), 879 + +Frederickson _v._ Louisiana, 23 How. 445 (1860), 429 + +Freeborn _v._ The "Protector," 12 Wall. 700 (1872), 282 + +Freeborn _v._ Smith, 2 Wall. 160 (1865), 699 + +Freeman _v._ Hewit, 329 U.S. 249 (1946), 179, 204, 206 + +Freeman _v._ Howe, 24 How. 450 (1861), 524, 627, 628 + +French _v._ Barber Asphalt Paving Co., 181 U.S. 324 (1901), 972, 1059 + +French _v._ Hay, 22 Wall. 231 (1875), 629 + +French _v._ Weeks, 259 U.S. 326 (1922), 477 + +Frick _v._ Pennsylvania, 268 U.S. 473 (1925), 1042, 1045 + +Fries Case, 9 Fed. Cas. No. 5126 (1799), 640 + +Fries Case, 9 Fed. Cas. No. 5127 (1800), 640 + +Frisbie _v._ United States, 157 U.S. 160 (1895), 857 + +Frohwerk _v._ United States, 249 U.S. 204 (1919), 297, 774, 794 + +Frost _v._ Corporation Commission, 278 U.S. 515 (1929), 1145 + +Frost _v._ Railroad Commission, 271 U.S. 583 (1926), 1032 + +Frothingham _v._ Mellon, 262 U.S. 447 (1923), 114 + +Fuller, Ex parte, 262 U.S. 91 (1923), 827, 843 + +Funk Bros. Seed Co. _v._ Kalo Co., 333 U.S. 127 (1948), 272 + + +G + +Gagnon _v._ United States, 193 U.S. 451 (1904), 526 + +Gaines _v._ Fuentes, 92 U.S. 10 (1876), 524, 619 + +Gaines _v._ Washington, 277 U.S. 81 (1928), 1098, 1130 + +Gallegos _v._ Nebraska, 342 U.S. 55 (1951), 1107 + +Galloway _v._ United States, 319 U.S. 372 (1943), 893, 897 + +Galpin _v._ Page, 18 Wall. 350 (1874), 659 + +Galveston Electric Co. _v._ Galveston, 258 U.S. 388 (1922), 1006, 1008 + +Galveston, H. & S.A. Ry. Co. _v._ Texas, 170 U.S. 226 (1898), 200, 567 + +Galveston, H. & S.A. Ry. Co. _v._ Texas, 210 U.S. 217 (1908), 202, 203, +204 + +Galveston Wharf Co. _v._ Galveston, 260 U.S. 473 (1923), 1063 + +Gambino _v._ United States, 275 U.S. 310 (1927), 831 + +Games _v._ Dunn, 14 Pet. 322 (1840), 896 + +Gange Lumber Co. _v._ Rowley, 326 U.S. 295 (1945), 1093 + +Gant _v._ Oklahoma City, 289 U.S. 98 (1933), 1026 + +Gardner _v._ Collector, 6 Wall. 499 (1868), 103 + +Garfield _v._ United States, 211 U.S. 249 (1908), 864 + +Garland, Ex parte, 4 Wall. 333 (1867), 316, 317, 409, 512, 527, 736 + +Garner _v._ Los Angeles Board, 341 U.S. 716 (1951), 801 + +Garnett, In re, 141 U.S. 1 (1891), 575, 577, 583 + +Garrison _v._ New York, 21 Wall. 196 (1875), 352 + +Gasoline Products Co. _v._ Champlin Refining Co., 283 U.S. 494 (1931), +892 + +Gasquet _v._ Fenner, 247 U.S. 16 (1918), 673 + +Gasquet _v._ Lapeyre, 242 U.S. 367 (1917), 313 + +Gassies _v._ Ballon, 6 Pet. 761 (1832), 255 + +Gayes _v._ New York, 332 U.S. 145 (1947), 1103 + +Gee Wah Lee _v._ United States, 25 F. (2d) 107 (1928), 893 + +Gee Wah Lee _v._ United States, 277 U.S. 608 (1928), 893 + +Geer _v._ Connecticut, 161 U.S. 519 (1896), 242, 245, 690, 1027 + +Gelfert _v._ National City Bank, 313 U.S. 221 (1941), 361 + +Gelpcke _v._ Dubuque, 1 Wall. 175 (1864), 331, 604, 605 + +Gemsco Inc. _v._ Walling, 324 U.S. 244 (1945), 157 + +General Investment Co. _v._ New York Central R. Co., 271 U.S. 228 +(1926), 512 + +General Oil Co. _v._ Crain, 209 U.S. 211 (1908), 185 + +General Railway Signal Co. _v._ Virginia, 246 U.S. 500 (1918), 121 + +General Smith, The, 4 Wheat. 438 (1819), 574 + +General Trading Company _v._ State Tax Commission, 322 U.S. 335 (1944), +190 + +Genesee Chief, The, 12 How. 443 (1852), 577 + +Geofroy _v._ Riggs, 133 U.S. 258 (1890), 428, 429 + +Georgia _v._ Brailsford, 2 Dall. 402 (1792), 612 + +Georgia _v._ Chattanooga, 264 U.S. 472 (1924), 1069 + +Georgia _v._ Evans, 316 U.S. 159 (1942), 598 + +Georgia _v._ Pennsylvania R. Co., 324 U.S. 439 (1945), 544 + +Georgia _v._ Stanton, 6 Wall. 50 (1868), 543, 545, 548, 596 + +Georgia _v._ Tennessee Copper Co., 206 U.S. 230 (1907), 544, 598, 599 + +Georgia R. & Power Co. _v._ Decatur, 262 U.S. 432 (1923), 349 + +Georgia R. & Power Co. _v._ Railroad Comm., 262 U.S. 625 (1923), 1002, +1006 + +Georgia R. Co. _v._ Redwine, 342 U.S. 299 (1952), 351, 934 + +Gerling _v._ Baltimore & O.R. Co., 151 U.S. 673 (1894), 638 + +German Alliance Ins. Co. _v._ Hale, 219 U.S. 307 (1911), 1022 + +German Alliance Ins. Co. _v._ Lewis, 233 U.S. 389 (1914), 996, 1021, +1155 + +German Savings Loan Society _v._ Dormitzer, 192 U.S. 125 (1904), 662 + +Gibbes _v._ Zimmerman, 290 U.S. 326 (1933), 1020, 1035 + +Gibbons _v._ District of Columbia, 116 U.S. 404 (1886), 304 + +Gibbons _v._ Ogden, 9 Wheat 1 (1824), 118, 121, 122, 125, 151, 156, 161, +162, 166, 169, 174, 175, 176, 192, 215, 228, 246, 721, 723, 735 + +Gibbons _v._ United States, 8 Wall. 269 (1869), 586 + +Gibbs _v._ Burke, 337 U.S. 773 (1949), 1107, 1109 + +Giboney _v._ Empire Storage Co., 336 U.S. 490 (1949), 782, 994 + +Gibson _v._ Chouteau, 13 Wall. 92 (1872), 702, 703 + +Gibson _v._ Lyon, 115 U.S. 439 (1885), 684 + +Gibson _v._ Mississippi, 162 U.S. 565 (1896), 329, 1169 + +Gibson _v._ United States, 166 U.S. 269 (1897), 128, 868 + +Gilbert _v._ Minnesota, 254 U.S. 325 (1920), 297, 794 + +Gilchrist _v._ Interborough Rapid Transit Co., 279 U.S. 159 (1929), 570, +631 + +Giles _v._ Harris, 189 U.S. 475 (1903), 544, 1164 + +Gilfillan _v._ Union Canal Co., 109 U.S. 401 (1883), 355 + +Gillespie _v._ Oklahoma, 257 U.S. 501 (1922), 735 + +Gilman _v._ Philadelphia, 3 Wall. 713 (1866), 127, 180 + +Giozza _v._ Tiernan, 148 U.S. 657 (1893), 971, 1149 + +Girouard _v._ United States, 328 U.S. 61 (1946), 257, 768 + +Gitlow _v._ New York, 268 U.S. 652 (1925), 752, 757, 775, 778, 798 + +Given _v._ Wright, 117 U.S. 648 (1886), 336 + +Givens _v._ Zerbst, 255 U.S. 11 (1921), 404 + +Gladson _v._ Minnesota, 166 U.S. 427 (1897), 221, 270, 1012 + +Glasgow _v._ Moyer, 225 U.S. 420 (1912), 314 + +Glasser _v._ United States, 315 U.S. 60 (1942), 885 + +Glenn _v._ Garth, 147 U.S. 360 (1893), 676, 677 + +Glidden _v._ Harrington, 189 U.S. 255 (1903), 1057, 1060 + +Gloucester Ferry Co. _v._ Pennsylvania, 114 U.S. 196 (1885), 192, 209, +231, 366 + +Go-Bart Importing Co. _v._ United States, 282 U.S. 344 (1931), 828 + +Goesaert _v._ Cleary, 335 U.S. 464 (1948), 1159 + +Goldey _v._ Morning News, 156 U.S. 518 (1895), 660, 1077 + +Goldman _v._ United States, 316 U.S. 129 (1942), 824 + +Goltra _v._ Weeks, 271 U.S. 536 (1926), 588, 589, 590 + +Gompers _v._ Bucks Stove & Range Co., 221 U.S. 418 (1911), 516, 786, 792 + +Gompers _v._ United States, 233 U.S. 604 (1914), 521, 770, 878 + +Gong Lum _v._ Rice, 275 U.S. 78 (1927), 1162 + +Gonsalves _v._ Morse Dry Dock Co., 266 U.S. 171 (1924), 582 + +Goodrich _v._ Edwards, 255 U.S. 527 (1921), 1199 + +Goodrich _v._ Ferris, 214 U.S. 71 (1909), 1072, 1082, 1088 + +Gordon _v._ United States, 2 Wall. 561 (1865), 513 + +Gordon _v._ United States, 117 U.S. 697 decided (1864) reported (1886), +513, 534, 535, 550, 623 + +Gorieb _v._ Fox, 274 U.S. 603 (1927), 1029, 1157 + +Gorin _v._ United States, 312 U.S. 19 (1941), 883 + +Goto _v._ Lane, 265 U.S. 393 (1924), 314 + +Gould et al. _v._ United States, 328 U.S. 848 (1946), 1234 + +Gould et al. _v._ United States, 329 U.S. 820 (1946), 1234 + +Gouled _v._ United States, 255 U.S. 298 (1921), 824, 825 + +Governor of Georgia _v._ Madrazo, 1 Pet. 110 (1828), 929, 931 + +Graham _v._ Folsom, 200 U.S. 248 (1906), 356 + +Graham _v._ Goodcell, 282 U.S. 409 (1931), 858 + +Graham _v._ West Virginia, 224 U.S. 616 (1912), 328, 1098, 1133, 1135, +1137, 1161 + +Grand Lodge, F. & A.M. _v._ New Orleans, 166 U.S. 143 (1897), 342 + +Grand Trunk Western R. Co. _v._ Railroad Commission, 221 U.S. 400 +(1911), 329 + +Granger Cases, 94 U.S. 113 (1877), 220, 981 + +Graniteville Mfg. Co. _v._ Query, 283 U.S. 376 (1931), 1044 + +Grannis _v._ Ordean, 234 U.S. 385 (1914), 1072, 1073, 1083 + +Grant _v._ United States, 227 U.S. 74 (1913), 827 + +Grant Smith-Porter Ship Co. _v._ Rohde, 257 U.S. 469 (1922), 574, 582 + +Grant Timber & Mfg. Co. _v._ Gray, 236 U.S. 133 (1915), 1091 + +Grapeshot, The, _v._ Wallerstein, 9 Wall. 129 (1870), 574 + +Graves _v._ Elliott, 307 U.S. 383 (1939), 1048 + +Graves _v._ Eubank, 205 Ala. 174 (1921), 1220 + +Graves _v._ Minnesota, 272 U.S. 425 (1926), 1024 + +Graves _v._ New York ex rel. O'Keefe, 306 U.S. 466 (1939), 106, 219, 916 + +Graves _v._ O'Keefe, 306 U.S. 466 (1939), 731 + +Graves _v._ Schmidlapp, 315 U.S. 657 (1942), 1046, 1049 + +Graves _v._ Texas Co., 298 U.S. 393 (1936), 731, 936 + +Great A. & P. Tea Co. _v._ Grosjean, 301 U.S. 412 (1937), 1055, 1148 + +Great Atlantic & Pacific Tea Co. _v._ Supermarket Equipment, 340 U.S. +147 (1950), 271, 272, 274 + +Great Lakes Co. _v._ Huffman, 319 U.S. 293 (1943), 553 + +Great Northern Ins. Co. _v._ Read, 322 U.S. 47 (1944), 587, 935, 936 + +Great Northern R. Co. _v._ Cahill, 253 U.S. 71 (1920), 1012 + +Great Northern R. Co. _v._ Minnesota, 278 U.S. 503 (1929), 201, 1053 + +Great Northern R. Co. _v._ Minnesota ex rel. Clara City, 246 U.S. 434 +(1918), 345, 1014 + +Great Northern R. Co. _v._ Minnesota ex rel. Railroad & Warehouse +Commission, 238 U.S. 340 (1915), 1012 + +Great Northern R. Co. _v._ Washington, 300 U.S. 154 (1937), 213 + +Great Southern Fire Proof Hotel Co. _v._ Jones, 193 U.S. 532 (1904), 331 + +Great Western Telegraph Co. _v._ Purdy, 162 U.S. 329 (1896), 654 + +Greeley _v._ Lowe, 155 U.S. 58 (1894), 895 + +Green, In re, 134 U.S. 377 (1890), 386 + +Green _v._ Biddle, 8 Wheat. 1 (1823), 369, 370 + +Green _v._ Chicago, B. & Q.R. Co., 205 U.S. 530 (1907), 1076, 1079 + +Green _v._ Frazier, 253 U.S. 233 (1920), 1037, 1063, 1064 + +Green _v._ Van Buskirk, 7 Wall. 139 (1869), 655 + +Green Bay & M. Canal Co. _v._ Patten Paper Co., 172 U.S. 58 (1898), 131 + +Greene, In re, 52 Fed. 104 (1892), 171 + +Greene _v._ Louisville & I.R. Co., 244 U.S. 499 (1917), 931 + +Greenough _v._ Tax Assessors, 331 U.S. 486 (1947), 1044 + +Greenwood _v._ Union Freight R. Co., 105 U.S. 13 (1882), 343, 344 + +Gregory, In re, 219 U.S. 210 (1911), 314 + +Greiner _v._ Lewellyn, 258 U.S. 384 (1922), 107 + +Grenada Lumber Co. _v._ Mississippi, 217 U.S. 433 (1910), 1017 + +Griffin _v._ Griffin, 327 U.S. 220 (1946), 671, 1074 + +Griffin _v._ McCoach, 313 U.S. 498 (1941), 680 + +Griffin _v._ Thompson, 2 How. 244 (1844), 326, 526 + +Griffin's Case, 11 Fed. Cas. No. 5815 (1869), 1173 + +Griffith _v._ Connecticut, 218 U.S. 563 (1910), 1021 + +Grimley, In re, 137 U.S. 147 (1890), 285 + +Gring _v._ Ives, 222 U.S. 365 (1912), 231 + +Groesbeck _v._ Duluth, S.S. & A.R. Co., 250 U.S. 607 (1919), 1000 + +Grosjean _v._ American Press Co., 297 U.S. 233 (1936), 792, 965, 981 + +Grossman, Ex parte, 267 U.S. 87 (1925), 408, 521 + +Grover & B. Sewing-Mach. Co. _v._ Radcliffe, 137 U.S. 287 (1890), 656, +659, 662 + +Groves _v._ Slaughter, 15 Pet. 449 (1841), 162, 164 + +Grovey _v._ Townsend, 295 U.S. 45 (1935), 565, 1142, 1164, 1185 + +Grubb _v._ Public Utilities Commission, 281 U.S. 470 (1930), 631 + +Gruber, Ex parte, 269 U.S. 302 (1925), 572 + +Gryger _v._ Burke, 334 U.S. 728 (1948), 328, 1106, 1137, 1141 + +Guaranty Trust Co. _v._ United States, 304 U.S. 126 (1938), 439, 609, +610 + +Guaranty Trust Co. _v._ Virginia, 305 U.S. 19 (1938), 1054 + +Guaranty Trust Co. _v._ York, 326 U.S. 99 (1945), 608 + +Guessefeldt _v._ McGrath, 342 U.S. 308 (1952), 865 + +Guinn _v._ United States, 238 U.S. 347 (1915), 1164, 1183, 1184 + +Gulf, C. & S.F.R. Co. _v._ Ellis, 165 U.S. 150 (1897), 1167 + +Gulf Fisheries Co. _v._ MacInerney, 276 U.S. 124 (1928), 363, 364 + +Gully _v._ First National Bank, 299 U.S. 109 (1936), 567 + +Gumbel _v._ Pitkin, 124 U.S. 131 (1888), 512, 526 + +Gundling _v._ Chicago, 177 U.S. 183 (1900), 1024, 1157 + +Gunter _v._ Atlantic C.L.R. Co., 200 U.S. 273 (1906), 931 + +Gusik _v._ Schilder, 339 U.S. 977 (1950), 314 + +Gut _v._ Minnesota, 9 Wall. 35 (1870), 329 + +Guthrie Nat. Bank _v._ Guthrie, 173 U.S. 528 (1899), 893 + +Guy _v._ Baltimore, 100 U.S. 434 (1880), 185 + +Gwin _v._ Breedlove, 2 How. 29 (1844), 326 + +Gwin, White & Prince _v._ Henneford, 305 U.S. 434 (1939), 196, 204, 205, +219, 220 + + +H + +Haas _v._ Henkel, 216 U.S. 462 (1910), 881 + +Haavik _v._ Alaska Packers' Association, 263 U.S. 510 (1924), 693, 863 + +Hadacheck _v._ Sebastian, 239 U.S. 394 (1915), 983, 1028, 1154 + +Haddock _v._ Haddock, 201 U.S. 562 (1906), 662, 664 + +Hagar _v._ Reclamation Dist. No. 108, 111 U.S. 701 (1884), 1040, 1057, +1058, 1070 + +Hagner _v._ United States, 285 U.S. 427 (1932), 881 + +Hagood _v._ Southern, 117 U.S. 52 (1886), 931, 932 + +Hague _v._ C.I.O., 307 U.S. 496 (1939), 785, 788, 808, 809, 968 + +Hairston _v._ Danville & W.R. Co., 208 U.S. 598 (1908), 1064, 1065, 1066 + +Hale _v._ Bimco Trading Co., 306 U.S. 375 (1939), 238 + +Hale _v._ Henkel, 201 U.S. 43 (1906), 824, 827, 844 + +Hale _v._ Iowa State Board of Assessment, 302 U.S. 95 (1937), 348 + +Hale _v._ Kentucky, 303 U.S. 613 (1938), 1098 + +Haley _v._ Ohio, 332 U.S. 596 (1948), 1104, 1118, 1121 + +Hall _v._ De Cuir, 95 U.S. 485 (1878), 218, 230, 1162 + +Hall _v._ Geiger-Jones Co., 242 U.S. 539 (1917), 235, 983, 1019 + +Hall _v._ Wisconsin, 103 U.S. 5 (1880), 341 + +Hallinger _v._ Davis, 146 U.S. 314 (1892), 1110 + +Halter _v._ Nebraska, 205 U.S. 34 (1907), 1024, 1154 + +Halvey _v._ Halvey, 330 U.S. 610 (1947), 671 + +Hamilton _v._ Brown, 161 U.S. 256 (1896), 1083 + +Hamilton _v._ Dillin, 21 Wall. 73 (1875), 280, 289, 404 + +Hamilton _v._ Kentucky Distilleries & Wine Co., 251 U.S. 146 (1919), +292, 564, 918 + +Hamilton _v._ Regents, 293 U.S. 245 (1934), 768, 985 + +Hamilton Mfg. Co. _v._ Massachusetts, 6 Wall. 632 (1868), 730 + +Hammer _v._ Dagenhart, 247 U.S. 251 (1918), 122, 166, 168, 170, 171, +172, 173, 917, 918 + +Hammond Packing Co. _v._ Arkansas, 212 U.S. 322 (1909), 345, 1122, 1166 + +Hammond Packing Co. _v._ Montana, 233 U.S. 331 (1914), 1149 + +Hampton, The, 5 Wall. 372 (1867), 296 + +Hampton _v._ McConnell, 3 Wheat. 234 (1818), 653, 654, 656, 657 + +Hampton & Co. _v._ United States, 276 U.S. 394 (1928), 73, 74, 77, 80, +112 + +Hanauer _v._ Doane, 12 Wall. 342 (1871), 640, 643 + +Hanauer _v._ Woodruff, 15 Wall. 439 (1873), 1174 + +Hancock _v._ Muskogee, 250 U.S. 454 (1919), 1059 + +Hancock National Bank _v._ Farnum, 176 U.S. 640 (1900), 660, 678 + +Hanford _v._ Davies, 163 U.S. 273 (1896), 329 + +Hanley _v._ Donoghue, 116 U.S. 1 (1885), 654, 674 + +Hanley _v._ Kansas City Southern R. Co., 187 U.S. 617 (1903), 122 + +Hannegan _v._ Esquire, Inc., 327 U.S. 146 (1946), 269, 804 + +Hannibal & St. L.R. Co. _v._ Husen, 95 U.S. 465 (1878), 222 + +Hannibal Bridge Co. _v._ United States, 221 U.S. 194 (1911), 867 + +Hannis Distilling Co. _v._ Baltimore, 216 U.S. 285 (1910), 1042, 1061 + +Hanover Insurance Co. _v._ Harding, 272 U.S. 494 (1926), 1144, 1150 + +Hanover Nat. Bank _v._ Moyses, 186 U.S. 181 (1902), 262, 264, 848 + +Hans _v._ Louisiana, 134 U.S. 1 (1890), 930 + +Hans Rees' Sons _v._ North Carolina, 283 U.S. 123 (1931), 209, 1054 + +Harding _v._ Harding, 198 U.S. 317 (1905), 656 + +Hardware Dealers Mut. F. Ins. Co. _v._ Glidden Co., 284 U.S. 151 (1931), +1089, 1166 + +Harisiades _v._ Shaughnessy, 342 U.S. 580 (1952), 261 + +Harkin _v._ Brundage, 276 U.S. 36 (1928), 627 + +Harkness _v._ Hyde, 98 U.S. 476 (1879), 1074 + +Harkrader _v._ Wadley, 172 U.S. 148 (1898), 627, 630, 634 + +Harman _v._ Chicago, 147 U.S. 396 (1893), 230 + +Harriman _v._ Interstate Commerce Comm., 211 U.S. 407 (1908), 84 + +Harris, Re, 221 U.S. 274 (1911), 843 + +Harris _v._ Balk, 198 U.S. 215 (1905), 674 + +Harris _v._ South Carolina, 338 U.S. 68 (1949), 1120, 1121 + +Harris _v._ United States, 331 U.S. 145 (1947), 828 + +Harrisburg, The, 119 U.S. 199 (1886), 575 + +Harrison _v._ St. Louis & S.F.R. Co., 232 U.S. 318 (1914), 638 + +Hart _v._ United States, 118 U.S. 62 (1886), 323, 324 + +Hartford Accident & Indemnity Co. _v._ Illinois ex rel. McLaughlin, 298 +U.S. 155 (1936), 235 + +Hartford Acci. & Indem. Co. _v._ Nelson (N.O.) Mfg. Co., 291 U.S. 352 +(1934), 1022 + +Hartford L. Ins. Co. _v._ Barber, 245 U.S. 146 (1917), 654 + +Hartford L. Ins. Co. _v._ Blincoe, 255 U.S. 129 (1921), 1092 + +Hartford L. Ins. Co. _v._ Ibs, 237 U.S. 662 (1915), 654 + +Hartford Steam Boiler Inspection & Ins. Co. _v._ Harrison, 301 U.S. 459 +(1937), 1156 + +Hartzel _v._ United States, 322 U.S. 680 (1944), 794 + +Harvester Co. _v._ Dept. of Taxation, 322 U.S. 435 (1944), 1044 + +Harvester Co. _v._ Dept. of Treasury, 322 U.S. 340 (1944), 204 + +Hauenstein _v._ Lynham, 100 U.S. 483 (1880), 415 + +Hauge _v._ Chicago, 299 U.S. 387 (1937), 1018 + +Haupt _v._ United States, 330 U.S. 631 (1947), 641, 645 + +Havemeyer _v._ Iowa County, 3 Wall. 294 (1866), 331 + +Haver _v._ Yaker, 9 Wall. 32 (1870), 404, 418 + +Hawaii _v._ Mankichi, 190 U.S. 197 (1903), 703 + +Hawes _v._ Georgia, 258 U.S. 1 (1922), 1032, 1096 + +Hawes _v._ Oakland, 104 U.S. 450 (1881), 541 + +Hawk, Ex parte, 321 U.S. 114 (1944), 1125 + +Hawk _v._ Olson, 326 U.S. 271 (1945), 1100, 1102 + +Hawke _v._ Smith, 253 U.S. 221 (1920), 386, 713 + +Hawker _v._ New York, 170 U.S. 189 (1898), 328, 1024, 1096 + +Hawkins _v._ Barney, 5 Pet. 457 (1831), 355 + +Hawkins _v._ Bleakly, 243 U.S. 210 (1917), 989, 1094 + +Hawks _v._ Hamill, 288 U.S. 52 (1933), 934 + +Hawley _v._ Malden, 232 U.S. 1 (1914), 1044 + +Hawley _v._ Walker, 232 U.S. 718 (1914), 987 + +Hayburn's Case, 2 Dall. 409 (1792), 485, 512, 550, 558, 623 + +Hayes _v._ Missouri, 120 U.S. 68 (1887), 210, 1166 + +Hayman _v._ Galveston, 273 U.S. 414 (1927), 1024, 1155 + +Hays _v._ Pacific Mail S.S. Co., 17 How. 596 (1855), 210 + +Hays _v._ Seattle, 251 U.S. 233 (1920), 1070 + +Head _v._ Amoskeag Mfg. Co., 113 U.S. 9 (1885), 1066 + +Head Money Cases, 112 U.S. 580 (1884), 110, 111, 414 + +Heald _v._ District of Columbia, 259 U.S. 114 (1922), 304 + +Heath & M. Mfg. Co. _v._ Worst, 207 U.S. 338 (1907), 1019 + +Hebe Co. _v._ Shaw, 248 U.S. 297 (1919), 237, 1031 + +Heckers _v._ Fowler, 2 Wall. 123 (1864), 527 + +Heff, In re, 197 U.S. 488 (1905), 253 + +Hegeman Farms Corp. _v._ Baldwin, 293 U.S. 163 (1934), 245 + +Heim _v._ McCall, 239 U.S. 175 (1915), 971, 1158 + +Heine _v._ Levee Commissioners, 19 Wall. 655 (1874), 356 + +Heiner _v._ Donnan, 285 U.S. 312 (1932), 863 + +Heisler _v._ Thomas Colliery Co., 260 U.S. 245 (1922), 181, 1148 + +Helena Waterworks Co. _v._ Helena, 195 U.S. 383 (1904), 1009 + +Helis _v._ Ward, 308 U.S. 365 (1939), 848 + +Helson & Randolph _v._ Kentucky, 279 U.S. 245 (1929), 186, 195, 231, 968 + +Helvering _v._ Bruun, 309 U.S. 461 (1940), 1198 + +Helvering _v._ Bullard, 303 U.S. 297 (1938), 321 + +Helvering _v._ Davis, 301 U.S. 619 (1937), 116, 724, 863, 918 + +Helvering _v._ Gerhardt, 304 U.S. 405 (1938), 106, 108, 109 + +Helvering _v._ Gowran, 302 U.S. 238 (1937), 1195 + +Helvering _v._ Griffiths, 318 U.S. 371 (1943), 566, 1195 + +Helvering _v._ Horst, 311 U.S. 112 (1940), 1198 + +Helvering _v._ Independent L. Ins. Co., 292 U.S. 371 (1934), 1200 + +Helvering _v._ Lerner Stores Corp., 314 U.S. 463 (1941), 862 + +Helvering _v._ Mitchell, 303 U.S. 391 (1938), 840, 841, 863, 1197 + +Helvering _v._ Mountain Producers Corp., 303 U.S. 376 (1938), 108 + +Helvering _v._ National Grocery Co., 304 U.S. 282 (1938), 863, 921, 1197 + +Helvering _v._ Northwest Steel Mills, 311 U.S. 46 (1940), 863, 921, 1196 + +Helvering _v._ Powers, 293 U.S. 214 (1934), 107 + +Helvering _v._ Winmill, 305 U.S. 79 (1938), 1200 + +Helwig _v._ United States, 188 U.S. 605 (1903), 111 + +Hemphill _v._ Orloff, 277 U.S. 537 (1928), 689 + +Henderson _v._ New York, 92 U.S. 259 (1876), 122, 193, 216 + +Henderson _v._ United States, 339 U.S. 816 (1950), 1162 + +Henderson Co. _v._ Thompson, 300 U.S. 258 (1937), 1026 + +Henderson's Distilled Spirits, 14 Wall. 44 (1872), 897 + +Hendersonville Light & Power Co. _v._ Blue Ridge Interurban R. Co., 243 +U.S. 563 (1917), 1065 + +Hendrick _v._ Maryland, 235 U.S. 610 (1915), 211, 212, 227, 540 + +Hendry (C.J.) Co. _v._ Moore, 318 U.S. 133 (1943), 575, 576 + +Hendy _v._ Miners' Iron Works, 127 U.S. 370 (1888), 273 + +Henkels _v._ Sutherland, 271 U.S. 298 (1926), 872 + +Henley _v._ Myers, 215 U.S. 373 (1910), 355 + +Henneford _v._ Silas Mason Co., 300 U.S. 577 (1937), 189 + +Hennen, Ex parte, 13 Pet. 225 (1839), 453, 457 + +Hennen, Ex parte, 13 Pet. 230 (1839), 452 + +Hennington _v._ Georgia, 163 U.S. 299 (1896), 222 + +Henry Ford & Son _v._ Little Falls Fibre Co., 280 U.S. 369 (1930), 128 + +Hepburn _v._ Ellzey, 2 Cr. 445 (1805), 302, 599 + +Hepburn _v._ Griswold, 8 Wall. 603 (1870), 118, 287, 362 + +Hepner _v._ United States, 213 U.S. 103 (1909), 878 + +Herndon _v._ Chicago, R.I. & P.R. Co., 218 U.S. 135 (1910), 638 + +Herndon _v._ Lowry, 301 U.S. 242 (1937), 563, 777, 806 + +Herron _v._ Southern P. Co., 283 U.S. 91 (1931), 1091 + +Hess _v._ Pawloski, 274 U.S. 352 (1927), 661, 691, 1074 + +Hester _v._ United States, 265 U.S. 57 (1924), 824 + +Hewitt Realty Co. _v._ Commissioner of Internal Rev., 76 F. (2d) 880 +(1935), 1198 + +Heyman _v._ Hays, 236 U.S. 178 (1915), 187, 195 + +Hiatt _v._ Brown, 339 U.S. 103 (1950), 286, 551 + +Hibben _v._ Smith, 191 U.S. 310 (1903), 972, 1059 + +Hibernia Sav. & L. Soc. _v._ San Francisco, 200 U.S. 310 (1906), 730 + +Hicklin _v._ Coney, 290 U.S. 169 (1933), 212, 227, 1155 + +Hickman _v._ Jones, 9 Wall. 197 (1870), 728 + +Higginbotham _v._ Baton Rouge, 306 U.S. 535 (1939), 341 + +Highland _v._ Russell Car & Snow Plow Co., 279 U.S. 253 (1929), 855 + +Highland Farms Dairy, Inc. _v._ Agnew, 300 U.S. 608 (1937), 237, 705 + +Hill _v._ Florida, 325 U.S. 538 (1945), 252, 724 + +Hill _v._ Martin, 296 U.S. 393 (1935), 524 + +Hill _v._ Merchants' Mut. Ins. Co., 134 U.S. 515 (1890), 355 + +Hill _v._ Texas, 316 U.S. 400 (1942), 1168 + +Hill _v._ United States, 9 How. 386 (1850), 585 + +Hill _v._ United States ex rel. Weiner, 300 U.S. 105 (1937), 853 + +Hill _v._ Wallace, 259 U.S. 44 (1922), 111, 621, 918 + +Hillsborough _v._ Cromwell, 326 U.S. 620 (1946), 1144, 1152 + +Hilton _v._ Guyot, 159 U.S. 113 (1895), 685 + +Hinderlider _v._ La Plata Co., 304 U.S. 92 (1938), 367, 370 + +Hine, The, _v._ Trevor, 4 Wall. 555 (1867), 579 + +Hines _v._ Davidowitz et al., 312 U.S. 52 (1941), 73, 259, 260, 417 + +Hines _v._ Lowrey, 305 U.S. 85 (1938), 857 + +Hinson _v._ Lott, 8 Wall. 148 (1869), 189 + +Hipp _v._ Babin, 19 How. 271 (1857), 895 + +Hirabayashi _v._ United States, 320 U.S. 81 (1943), 76, 290, 297, 395, +1158 + +Hirota _v._ MacArthur, 338 U.S. 197 (1948), 317 + +Hodge _v._ Muscatine County, 196 U.S. 276 (1905), 1057 + +Hodge Drive-It-Yourself Co. _v._ Cincinnati, 284 U.S. 335 (1932), 1033, +1155 + +Hodges _v._ Easton, 106 U.S. 408 (1883), 897 + +Hodges _v._ United States, 203 U.S. 1 (1906), 949, 952 + +Hodgson & Thompson _v._ Bowerbank, 5 Cr. 303 (1809), 611, 623 + +Hoeper _v._ Tax Commissioner, 284 U.S. 206 (1931), 1039 + +Hoffman _v._ United States, 341 U.S. 479 (1951), 842 + +Hoke _v._ Henderson, 15 N.C. 1 (4 Dev. 1), (1833), 341 + +Hoke _v._ United States, 227 U.S. 308 (1913), 170, 919 + +Holden _v._ Hardy, 169 U.S. 366 (1898), 971, 977, 986, 1112, 1158 + +Holden _v._ Joy, 17 Wall. 211 (1872), 432 + +Holden _v._ Minnesota, 137 U.S. 483 (1890), 328 + +Holland _v._ Challen, 110 U.S. 15 (1884), 895 + +Hollingsworth _v._ Virginia, 3 Dall. 378 (1798), 105, 712 + +Hollister _v._ Benedict & B. Mfg. Co., 113 U.S. 59 (1885), 275, 867 + +Holmes _v._ Conway, 241 U.S. 624 (1916), 1089 + +Holmes _v._ Goldsmith, 147 U.S. 150 (1893), 619 + +Holmes _v._ Hurst, 174 U.S. 82 (1899), 275 + +Holmes _v._ Jennison, 14 Pet. 540 (1840), 73, 325, 367, 433 + +Holmgren _v._ United States, 217 U.S. 509 (1910), 258, 737 + +Holt _v._ United States, 218 U.S. 245 (1910), 843, 1124 + +Holyoke Water Power Co. _v._ Lyman, 15 Wall. 500 (1873), 344 + +Home Bldg. & Loan Asso. _v._ Blaisdell, 290 U.S. 398 (1934), 280, 332, +359, 360, 362, 564 + +Home Ins. Co. _v._ Dick, 281 U.S. 397 (1930), 1093 + +Home Ins. Co. _v._ Morse, 20 Wall. 445 (1874), 638 + +Home Ins. Co. _v._ New York, 134 U.S. 594 (1890), 730 + +Home of Friendless _v._ Rouse, 8 Wall. 430 (1869), 339, 342, 343, 351 + +Home Telephone & Telegraph Co. _v._ Los Angeles, 227 U.S. 278 (1913), +934 + +Home Telephone Co. _v._ Los Angeles, 211 U.S. 265 (1908), 349, 352 + +Honeyman _v._ Hanan, 302 U.S. 375 (1937), 1089 + +Honeyman _v._ Jacobs, 306 U.S. 549 (1939), 361 + +Hood _v._ Du Mond, 336 U.S. 525 (1949), 245 + +Hood _v._ McGehee, 237 U.S. 611 (1915), 673 + +Hood, H.P. & Sons _v._ United States, 307 U.S. 588 (1939), 160 + +Hooe _v._ Jamieson, 166 U.S. 395 (1897), 302 + +Hooe _v._ United States, 218 U.S. 322 (1910), 495 + +Hooe _v._ Werner, 166 U.S. 399 (1897), 302 + +Hooper _v._ California, 155 U.S. 648 (1895), 1021 + +Hoopeston Canning Co. _v._ Cullen, 318 U.S. 313 (1943), 1022, 1155 + +Hooven & Allison Co. _v._ Evatt, 324 U.S. 652 (1945), 178, 219, 363, 364 + +Hope Gas Case, 320 U.S. 591, 606 (1944), 1007 + +Hope Natural Gas Co. _v._ Hall, 274 U.S. 284 (1927), 181 + +Hopkins _v._ Clemson Agricultural College, 221 U.S. 636 (1911), 930, +931, 936 + +Hopkins Federal Savings & Loan Asso. _v._ Cleary, 296 U.S. 315 (1935), +920 + +Hopkirk _v._ Bell, 3 Cr. 454 (1806), 415 + +Hopt _v._ Utah, 110 U.S. 574 (1884), 317, 847 + +Horn _v._ Lockhart, 17 Wall. 570 (1873), 728 + +Hornbuckle _v._ Toombs, 18 Wall. 648 (1874), 704 + +Horstmann Co. _v._ United States, 257 U.S. 138 (1921), 869 + +Hotchkiss _v._ Greenwood, 11 How. 248 (1850), 272 + +Hotel & Restaurant Employees' Alliance _v._ Board, 315 U.S. 437 (1942), +781 + +Houck _v._ Little River Drainage Dist., 239 U.S. 254 (1915), 1041 + +House _v._ Mayes, 219 U.S. 270 (1911), 1019 + +House _v._ Mayo, 324 U.S. 42 (1945), 1101, 1102 + +Houston _v._ Moore, 5 Wheat. 1 (1820), 299, 300, 635, 636 + +Houston _v._ Ormes, 252 U.S. 469 (1920), 932 + +Houston, E. & W.T.R. Co. _v._ United States, 234 U.S. 342 (1914), 135, +219 + +Houston & Texas Central R.R. Co. _v._ Texas, 177 U.S. 66 (1900), 326, +330 + +Hovey _v._ Elliott, 167 U.S. 409 (1897), 848 + +Howard _v._ Fleming, 191 U.S. 126 (1903), 1094 + +Howard _v._ Gipsy Oil Co., 247 U.S. 503 (1918), 734 + +Howard _v._ Illinois Central R. Co., 207 U.S. 463 (1908), 141, 165, 563, +917 + +Howard _v._ Kentucky, 200 U.S. 164 (1906), 1127 + +Howe Machine Co. _v._ Gage, 100 U.S. 676 (1880), 184, 185, 191 + +Hoxie _v._ New York, N.H. & H.R. Co., 82 Conn. 352 (1909), 637 + +Hubert _v._ New Orleans, 215 U.S. 170 (1909), 330 + +Hudson _v._ Guestier, 4 Cr. 293 (1808), 575 + +Hudson County Water Co. _v._ McCarter, 209 U.S. 349, (1908), 243, 358, +690, 983, 1026 + +Hughes _v._ Edwards, 9 Wheat. 489 (1824), 416 + +Hughes _v._ Fetter, 341 U.S. 609 (1951), 657, 677 + +Hughes _v._ Gault, 271 U.S. 142 (1926), 881 + +Hughes _v._ Superior Court of California, 339 U.S. 460 (1950), 782 + +Hughes Bros. Timber Co. _v._ Minnesota, 272 U.S. 469 (1926), 186 + +Hull _v._ Burr, 234 U.S. 712 (1914), 567 + +Hull, Ex parte, 312 U.S. 546 (1941), 1137 + +Hump Hairpin Mfg. Co. _v._ Emerson, 258 U.S. 290 (1922), 187, 197 + +Humphrey _v._ Pegues, 16 Wall. 244 (1873), 342 + +Humphrey _v._ United States, 295 U.S. 602 (1935), 458, 460 + +Hunt _v._ Palao, 4 How. 589 (1846), 699 + +Hunter _v._ Pittsburgh, 207 U.S. 161 (1907), 340, 1036 + +Hunter _v._ Wood, 209 U.S. 205 (1908), 633 + +Huntington _v._ Attrill, 146 U.S. 657 (1892), 658, 674 + +Huntington _v._ Texas, 16 Wall. 402 (1873), 728 + +Hurd _v._ Hodge, 334 U.S. 24 (1948), 854, 1161 + +Hurley _v._ Kincaid, 285 U.S. 95 (1932), 872 + +Hurtado _v._ California, 110 U.S. 516 (1884), 752, 845, 973, 1070, 1071, +1098, 1109 + +Huse _v._ Glover, 119 U.S. 543 (1886), 230, 366, 699 + +Husty _v._ United States, 282 U.S. 694 (1931), 830 + +Hutchings _v._ Low, 15 Wall. 77 (1873), 702 + +Hutchinson _v._ Valdosta, 227 U.S. 303 (1913), 1030 + +Hutchinson Ice Cream Co. _v._ Iowa, 242 U.S. 153 (1916), 1031 + +Hyatt _v._ New York ex rel. Corkran, 188 U.S. 691 (1903), 695 + +Hyde _v._ United States, 225 U.S. 347 (1912), 881 + +Hygrade Provision Co. _v._ Sherman, 266 U.S. 497 (1925), 237, 934 + +Hylton _v._ United States, 3 Dall. 171 (1796), 318, 558 + +Hysler _v._ Florida, 315 U.S. 411 (1942), 1125 + + +I + +Ickes _v._ Fox, 300 U.S. 82 (1937), 590 + +Illinois _v._ Economy Power Light Co., 234 U.S. 497 (1914), 229 + +Illinois Central R. Co. _v._ Behrens, 233 U.S. 473 (1914), 141 + +Illinois Central R. Co. _v._ Bosworth, 133 U.S. 92 (1890), 408, 645 + +Illinois Central R. Co. _v._ Decatur, 147 U.S. 190 (1893), 343 + +Illinois Central R. Co. _v._ Illinois, 146 U.S. 387 (1892), 221, 350, +698 + +Illinois C.R. Co. _v._ Illinois ex rel. Butler, 163 U.S. 142 (1896), 270 + +Illinois Central R. Co. _v._ McKendree, 203 U.S. 514 (1906), 122, 168 + +Illinois Cent. R. Co. _v._ Minnesota, 309 U.S. 157 (1940), 203, 204, +1053, 1148 + +Illinois Central R. Co. _v._ Peery, 242 U.S. 292 (1916), 141 + +Illinois C.R. Co. _v._ Public Utilities Commission, 245 U.S. 493 (1918), +219 + +Illinois ex rel. McCollum _v._ Board of Education, 333 U.S. 203 (1948), +542 + +Illinois Gas Co. _v._ Public Service Co., 314 U.S. 498 (1942), 219, 251 + +Illinois Natural Gas Co. _v._ Central Pub. Serv. Co., 314 U.S. 498 +(1942), 138 + +Independent Warehouses Inc. _v._ Scheele, 331 U.S. 70 (1947), 185, 1148 + +Indian Motorcycle Co. _v._ United States, 283 U.S. 570 (1931), 106 + +Indian Territory Illuminating Oil Co. _v._ Oklahoma, 240 U.S. 522 +(1916), 735 + +Indiana ex rel. Anderson _v._ Brand Trustee, 303 U.S. 95 (1938), 341, +570 + +Indianapolis, City of, _v._ Chase National Bank, 314 U.S. 63 (1941), 603 + +Indianapolis Brewing Co. _v._ Liquor Commission, 305 U.S. 391 (1939), +1232 + +Industrial Commn. _v._ McCartin, 330 U.S. 622 (1947), 682 + +Ingels _v._ Morf, 300 U.S. 290 (1937), 212 + +Ingenohl _v._ Olsen, 273 U.S. 541 (1927), 685 + +Inland Empire Council _v._ Millis, 325 U.S. 697 (1945), 850 + +Inman Steamship Co. _v._ Tinker, 94 U.S. 238 (1877), 366 + +Innes _v._ Tobin, 240 U.S. 127 (1916), 694, 695 + +Insurance Co. _v._ New Orleans, Fed. Cas. No. 7,052 (1870), 965 + +Intermountain Rate Cases (United States _v._ Atchison, T. & S.P.R. Co.) +234 U.S. 476 (1914), 137 + +International Bridge Co. _v._ New York, 254 U.S. 126 (1920), 1010 + +International Brotherhood _v._ Western U. Tel. Co., 46 F. (2d) 736 +(1931), 953 + +International Brotherhood _v._ Western U. Tel. Co., 284 U.S. 630 (1931), +953 + +International Harvester Co. _v._ Evatt, 329 U.S. 416 (1947), 203 + +International Harvester Co. _v._ Kentucky, 234 U.S. 579 (1914), 234, +660, 1079 + +International Harvester Co. _v._ Missouri, 234 U.S. 199 (1914), 1017 + +International Milling Co. _v._ Columbia T. Co., 292 U.S. 511 (1934), +234, 1100 + +International Paper Co. _v._ Massachusetts, 246 U.S. 135 (1918), 196, +1051 + +International Paper Co. _v._ United States, 282 U.S. 399 (1931), 867 + +International Postal Supply Co. _v._ Bruce, 194 U.S. 601 (1904), 590 + +International Shoe Co. _v._ Pinkus, 278 U.S. 261 (1929), 265 + +International Shoe Co. _v._ Shartel, 279 U.S. 429 (1929), 203 + +International Shoe Co. _v._ Washington, 326 U.S. 310 (1945), 1075, 1078, +1079 + +International Text Book Co. _v._ Pigg, 217 U.S. 91 (1910), 120 + +International Union, Etc. _v._ Tennessee Copper Co., 31 F. Supp. 1015 +(1940), 1133 + +Interstate Amusement Co. _v._ Albert, 239 U.S. 560 (1916), 234 + +Interstate Busses Corp. _v._ Blodgett, 276 U.S. 245 (1928), 212 + +Interstate Busses Corp. _v._ Holyoke Street R. Co., 273 U.S. 45 (1927), +228 + +Interstate Commerce Com. _v._ Alabama Midland R. Co., 168 U.S. 144 +(1897), 134 + +Interstate Commerce Commission _v._ Baird, 194 U.S. 25 (1904), 827 + +Interstate Commerce Commission _v._ Brimson, 154 U.S. 447 (1894), 84, +134, 514, 521, 550, 847, 893 + +Interstate Commerce Commission _v._ Goodrich Transit Co., 224 U.S. 194 +(1912), 76, 137 + +Interstate Commerce Commission _v._ Illinois C.R. Co., 215 U.S. 452 +(1910), 1001, 1003 + +Interstate Commerce Comn. _v._ Louisville & N.R. Co., 227 U.S. 88 +(1913), 77 + +Interstate Commerce Commission _v._ Union Pacific R. Co., 222 U.S. 541 +(1912), 1002 + +Interstate Commerce Commission _v._ United States ex rel. Humboldt S.S. +Co., 224 U.S. 474 (1912), 703 + +Interstate Natural Gas Co. _v._ Federal Power Com., 331 U.S. 682 (1947), +251 + +Interstate Oil Pipe Line Co. _v._ Stone, 337 U.S. 662 (1949), 203, 208 + +Interstate Transit _v._ Lindsey, 283 U.S. 183 (1931), 195, 212 + +Iowa C.R. Co. _v._ Iowa, 160 U.S. 389 (1896), 1089 + +Iron Cliffs Co. _v._ Negaunee Iron Co., 197 U.S. 463 (1905), 1072 + +Irvine _v._ Marshall, 20 How. 558 (1858), 702, 703 + +Irving Trust Co. _v._ Day, 314 U.S. 556 (1942), 1034 + +Irwin _v._ Wright, 258 U.S. 219 (1922), 732 + +Isbrandtsen-Moller Co. _v._ United States, 300 U.S. 139 (1937), 860 + + +J + +Jack _v._ Kansas, 199 U.S. 372 (1905), 1112 + +Jackson _v._ Lamphire, 3 Pet. 280 (1830), 355, 358 + +Jackson _v._ Roby, 109 U.S. 440 (1883), 78 + +Jackson _v._ Steamboat Magnolia, 20 How. 296 (1858), 578 + +Jackson _v._ Twentyman, 2 Pet. 136 (1829), 611 + +Jackson _v._ United States, 230 U.S. 1 (1913), 128 + +Jackson, Ex parte, 96 U.S. 727 (1878), 268, 824 + +Jacob _v._ Roberts, 223 U.S. 261 (1912), 1084 + +Jacobs _v._ Marks, 182 U.S. 583 (1901), 656 + +Jacobs _v._ United States, 290 U.S. 13 (1933), 869, 871, 872 + +Jacobson _v._ Massachusetts, 197 U.S. 11 (1905), 60, 564, 984, 1029 + +Jaehne _v._ New York, 128 U.S. 189 (1888), 327 + +James _v._ Appel, 192 U.S. 129 (1904), 1140 + +James _v._ Bowman, 190 U.S. 127 (1903), 1186 + +James _v._ Campbell, 104 U.S. 356 (1882), 275, 867 + +James _v._ Dravo Contracting Co., 302 U.S. 134 (1937), 198, 305, 307, +369, 730, 731, 1051 + +James-Dickinson Farm Mortg. Co. _v._ Harry, 273 U.S. 119 (1927), 1094 + +James Stewart & Co. _v._ Sadrakula, 309 U.S. 94 (1940), 305 + +Jamison _v._ Texas, 318 U.S. 413 (1943), 786 + +Janney _v._ Columbian Ins. Co., 10 Wheat. 411 (1825), 574, 579 + +Japanese Immigrant Case, 189 U.S. 86 (1903), 259 + +Jaster _v._ Currie, 198 U.S. 144 (1905), 659 + +Jatros _v._ Bowles, 143 F. (2d) 453 (1944), 1234 + +Jefferson Branch Bank _v._ Skelly, 1 Bl. 436 (1862), 330 + +Jefferson City Gaslight Co. _v._ Clark, 95 U.S. 644 (1877), 893 + +Jennings _v._ Carson, 4 Cr. 2 (1807), 575 + +Jennings _v._ Illinois, 343 U.S. 104 (1952), 1121 + +Jensen _v._ Continental Life Ins. Co., 28 F. (2d) 545 (1928), 894 + +Jensen _v._ Continental Life Ins. Co., 279 U.S. 842 (1929), 894 + +Jerome _v._ United States, 318 U.S. 101 (1943), 841 + +Johannessen _v._ United States, 225 U.S. 227 (1912), 257, 258, 317 + +John _v._ Paullin, 231 U.S. 583 (1913), 699 + +John Hancock Mut. Life Ins. Co. _v._ Yates, 299 U.S. 178 (1936), 677 + +Johnson _v._ Chicago & P. Elevator Co., 119 U.S. 388 (1886), 312, 323, +1089 + +Johnson _v._ Eisentrager, 339 U.S. 763 (1950), 404, 846, 851 + +Johnson _v._ Gearlds, 234 U.S. 422 (1914), 253 + +Johnson _v._ Lankford, 245 U.S. 541 (1918), 935 + +Johnson _v._ Maryland, 254 U.S. 51 (1920), 270, 724, 725 + +Johnson _v._ Muelberger, 341 U.S. 581 (1951), 671 + +Johnson _v._ New York Life Ins. Co., 187 U.S. 491 (1903), 676 + +Johnson _v._ Sayre, 158 U.S. 109 (1895), 838, 847 + +Johnson _v._ United States, 318 U.S. 189 (1943), 843 + +Johnson _v._ United States, 333 U.S. 10 (1948), 824, 828 + +Johnson _v._ Yellow Cab Co., 321 U.S. 383 (1944), 305 + +Johnson _v._ Zerbst, 304 U.S. 458 (1938), 885 + +Johnson Oil Ref. Co. _v._ Oklahoma ex rel. Mitchell, 290 U.S. 158 +(1933), 1042, 1053 + +Johnson Steel Str. Rail Co. _v._ Wharton, 152 U.S. 252 (1894), 620 + +Jones _v._ Buffalo Creek Coal & Coke Co., 245 U.S. 328 (1917), 849 + +Jones _v._ League, 18 How. 76 (1855), 601 + +Jones _v._ Meehan, 175 U.S. 1 (1899), 433 + +Jones _v._ Opelika, 316 U.S. 584 (1942), 767 + +Jones _v._ Opelika, 319 U.S. 103 (1943), 767, 792 + +Jones _v._ Portland, 245 U.S. 217 (1917), 1037 + +Jones _v._ Prairie Oil & Gas Co., 273 U.S. 195 (1927), 1082 + +Jones _v._ Union Guano Co., 264 U.S. 171 (1924), 1090 + +Jones _v._ United States, 137 U.S. 202 (1890), 610, 619, 881 + +Jones _v._ Van Zandt, 5 How. 215 (1847), 696 + +Jordan _v._ Massachusetts, 225 U.S. 167 (1912), 1089, 1096, 1098, 1110, +1131 + +Joseph _v._ Carter & Weekes Stevedoring Co., 330 U.S. 422 (1947), 206 + +Joslin Mfg. Co. _v._ Providence, 262 U.S. 668 (1923), 1064, 1067, 1069 + +Jourdan _v._ Barrett, 4 How. 169 (1846), 702 + +Joy _v._ St. Louis, 201 U.S. 332 (1906), 700 + +Juilliard _v._ Greenman (Legal Tender Cases), 12 Wall. 457 (1871), 118, +267, 310, 362, 563 + +Juilliard _v._ Greenman (Legal Tender Cases), 110 U.S. 421 (1884), 73, +166, 266, 310 + +Julian _v._ Central Trust Co., 193 U.S. 93 (1904), 628, 629 + +Jurney _v._ MacCracken, 294 U.S. 125 (1935), 85, 86 + +Just _v._ Chambers, 312 U.S. 383 (1941), 575, 579 + +Justices of the Supreme Court _v._ United States ex rel. Murray, 9 Wall. +274 (1870), 892, 893, 897 + + +K + +Kahn _v._ Anderson 255 U.S. 1 (1921), 847 + +Kalb _v._ Feuerstein, 308 U.S. 433 (1940), 265 + +Kalem Co. _v._ Harper Bros., 222 U.S. 55 (1911), 275 + +Kane _v._ New Jersey, 242 U.S. 160 (1916), 212, 227, 661 + +Kansas _v._ Colorado, 206 U.S. 46 (1907), 71, 73, 379, 592, 593, 920 + +Kansas _v._ United States, 204 U.S. 331 (1907), 587 + +Kansas City, M. & B.R. Co. _v._ Stiles, 242 U.S. 111 (1916), 197, 1051 + +Kansas City Ry. _v._ Kansas, 240 U.S. 227 (1916), 197, 1051 + +Kansas City Southern R. Co. _v._ Anderson, 233 U.S. 325 (1914), 1015 + +Kansas City Southern R. Co. _v._ Kaw Valley Drainage District, 233 U.S. +75 (1914), 219, 224 + +Kansas City Southern R. Co. _v._ Road Improv. Dist., 256 U.S. 658 +(1921), 1153 + +Kansas City Southern R. Co. _v._ Road Improv. Dist., 266 U.S. 379 +(1924), 1041 + +Kansas City Structural Steel Co. _v._ Arkansas, 269 U.S. 148 (1925), 121 + +Kansas Indians, The (Blue Jacket _v._ Johnson County), 5 Wall. 737 +(1867), 432, 735 + +Karem _v._ United States, 121 F. 250 (1903), 1186 + +Kauffman _v._ Wooters, 138 U.S. 285 (1891), 1090 + +Kaukauna Water Power Co. _v._ Green Bay & M. Canal Co., 142 U.S. 254 +(1891), 131 + +Kawakita _v._ United States, 343 U.S. 717 (1952), 642, 643 + +Kawananakoa _v._ Polyblank, 205 U.S. 349 (1907), 586 + +Kay _v._ United States, 303 U.S. 1 (1938), 883 + +Kearney, Ex parte, 7 Wheat. 38 (1822), 314 + +Keefe _v._ Clark, 322 U.S. 393 (1944), 349 + +Keeney _v._ New York, 222 U.S. 525 (1912), 1037, 1149 + +Keerl _v._ Montana, 213 U.S. 135 (1909), 1135 + +Kehrer _v._ Stewart, 197 U.S. 60 (1905), 184 + +Keifer & Keifer _v._ Reconstruction Finance Corp. & Regional +Agricultural Credit Corp., 306 U.S. 381 (1939), 590 + +Keim _v._ United States, 177 U.S. 290 (1900), 546 + +Keith _v._ Clark, 97 U.S. 454 (1878), 728 + +Keller _v._ Potomac Electric Power Co., 261 U.S. 428 (1923), 304, 535, +536, 537, 623 + +Keller _v._ United States, 213 U.S. 138 (1909), 122, 261, 917 + +Kelley _v._ Rhoads, 188 U.S. 1 (1903), 120, 186 + +Kelly _v._ Pittsburgh, 104 U.S. 78 (1881), 1037 + +Kelly _v._ Washington ex rel. Foss Co., 302 U.S. 1 (1937), 223, 230, 251 + +Kemmler, Ex parte, 136 U.S. 436 (1890), 971, 1134 + +Kendall _v._ United States ex rel. Stokes, 12 Pet. 524 (1838), 303, 479, +501, 522, 546 + +Kendall _v._ Winsor, 21 How. 322 (1859), 271 + +Kennecott Copper Corp. _v._ State Tax Commission, 327 U.S. 573 (1946), +932, 935, 936 + +Kennedy _v._ Becker, 241 U.S. 556 (1916), 701 + +Kenney _v._ Supreme Lodge, 252 U.S. 411 (1920), 657 + +Kennon _v._ Gilmer, 131 U.S. 22 (1889), 893 + +Kenosha _v._ Lamson, 9 Wall. 477 (1870), 331 + +Kentucky _v._ Dennison, 24 How. 66 (1861), 512, 612, 694, 695, 738 + +Kentucky _v._ Indiana, 281 U.S. 163 (1930), 593 + +Kentucky _v._ Powers, 201 U.S. 1 (1906), 620 + +Kentucky Finance Corp. _v._ Paramount Auto Exch. Corp., 262 U.S. 544 +(1923), 981, 1144, 1167 + +Kentucky Union Co. _v._ Kentucky, 219 U.S. 140 (1911), 327, 1092, 1152 + +Kentucky Whip & Collar Co. _v._ Illinois C.R. Co., 299 U.S. 334 (1937), +172, 219, 859, 919 + +Kenward _v._ "Admiral Peoples," The. _See_ "Admiral Peoples," The. + +Keokee Consol. Coke Co. _v._ Taylor, 234 U.S. 224 (1914), 987, 1158 + +Keokuk & Hamilton Bridge Co. _v._ United States, 260 U.S. 125 (1922), +586 + +Keokuk Northern Line Packet Co. _v._ Keokuk, 95 U.S. 80 (1877), 366 + +Kepner _v._ United States, 195 U.S. 100 (1904), 839 + +Ker _v._ Illinois, 119 U.S. 436 (1886), 696 + +Kerr _v._ Devisees of Moon, 9 Wheat. 565 (1824), 673 + +Kersh Lake Drainage Dist. _v._ Johnson, 309 U.S. 485 (1940), 656 + +Keystone Mfg. Co. _v._ Adams, 151 U.S. 139 (1894), 272 + +Kidd _v._ Pearson, 128 U.S. 1 (1888), 120, 122, 239, 1032 + +Kidd, D. & P. Co. _v._ Musselman Grocer Co., 217 U.S. 461 (1910), 1018 + +Kiernan _v._ Portland, 223 U.S. 151 (1912), 705 + +Kilbourn _v._ Thompson, 103 U.S. 168 (1881), 83, 84, 85, 99, 100 + +Killian _v._ Ebbinghaus, 110 U.S. 568 (1884), 895 + +Kimball Laundry Co. _v._ United States, 338 U.S. 1 (1949), 298, 870, 871 + +Kimmish _v._ Ball, 129 U.S. 217 (1889), 236 + +King _v._ Cross, 175 U.S. 396 (1899), 674 + +King _v._ Mullins, 171 U.S. 404 (1898), 1062 + +King _v._ Order of United Commercial Travelers, 333 U.S. 153 (1948), 607 + +Kirby _v._ United States, 174 U.S. 47 (1899), 884 + +Kirschbaum _v._ Walling, 316 U.S. 517 (1942), 157 + +Kirtland _v._ Hotchkiss, 100 U.S. 491 (1879), 693, 971, 1044 + +Klaxon Co. _v._ Stentor, 313 U.S. 487 (1941), 677 + +Klein, In re, 1 How. 277 (1843), 264 + +Kline _v._ Burke Construction Co., 260 U.S. 226 (1922), 512, 620, 623, +628 + +Klinger _v._ Missouri, 13 Wall. 257 (1872), 327 + +Knapp _v._ Morss, 150 U.S. 221 (1893), 273 + +Knapp, Stout & Co. _v._ McCaffrey, 177 U.S. 638 (1900), 574, 579 + +Knauer _v._ United States, 328 U.S. 654 (1946), 257, 258 + +Knauff _v._ Shaughnessy, 338 U.S. 537 (1950), 260 + +Kneedler _v._ Lane, 45 Pa. 238 (1863), 285 + +Knickerbocker Ice Co. _v._ Stewart, 253 U.S. 149 (1920), 311, 580, 583 + +Knight _v._ United Land Asso., 142 U.S. 161 (1891), 698 + +Knights of Pythias _v._ Meyer, 265 U.S. 30 (1924), 685 + +Knote _v._ United States, 95 U.S. 149 (1877), 323, 324, 411, 645 + +Knowlton _v._ Moore, 178 U.S. 41 (1900), 110, 320, 1191 + +Knox _v._ Greenleaf, 4 Dall. 360 (1802), 601 + +Knox _v._ Lee, 12 Wall. 457 (1871), 73, 266, 287, 856 + +Knoxville _v._ Water Company, 212 U.S. 1 (1909), 1002, 1007 + +Knoxville Iron Co. _v._ Harbison, 183 U.S. 13 (1901), 987, 1158 + +Knoxville Water Co. _v._ Knoxville, 200 U.S. 22 (1906), 349 + +Koehler _v._ United States, 342 U.S. 852 (1951), 883, 1176 + +Koenig _v._ Flynn, 285 U.S. 375 (1932), 93 + +Kohl _v._ United States, 91 U.S. 367 (1876), 268, 308, 865 + +Kohn _v._ Central Distributing Co., 306 U.S. 531 (1939), 524 + +Kollock, In re, 165 U.S. 526 (1897), 76, 111 + +Korematsu _v._ United States, 323 U.S. 214 (1944), 76, 297, 395 + +Korn _v._ Mutual Assur. Soc, 6 Cr. 192 (1810), 302 + +Koshland _v._ Helvering, 298 U.S. 441 (1936), 1195 + +Kotch _v._ Pilot Comm'rs., 330 U.S. 552 (1947), 1157 + +Kovacs _v._ Cooper, 336 U.S. 77 (1949), 563, 564, 768, 785, 791 + +Kraus & Bros. _v._ United States, 327 U.S. 614 (1946), 82, 881 + +Kreiger _v._ Kreiger, 334 U.S. 555 (1948), 667, 668 + +Kring _v._ Missouri, 107 U.S. 221 (1883), 328 + +Krippendorf _v._ Hyde, 110 U.S. 276 (1884), 627 + +Kryger _v._ Wilson, 242 U.S. 171 (1916), 675, 681 + +Kuehner _v._ Irving Trust Co., 299 U.S. 445 (1937), 858 + +Kuhn _v._ Fairmont Coal Co., 215 U.S. 349 (1910), 604, 605 + +Kunz _v._ New York, 340 U.S. 290 (1951), 768, 792 + +Kurtz _v._ Moffitt, 115 U.S. 487 (1885), 482, 615 + +Kwock Jan Fat _v._ White, 253 U.S. 454 (1920), 852 + + +L + +La Abra Silver Mining Co. _v._ United States, 175 U.S. 423 (1899), 103, +421, 514, 550, 624 + +LaBelle Iron Works _v._ United States, 256 U.S. 377 (1921), 110, 863 + +Labor Board _v._ Virginia Power Co., 314 U.S. 469 (1941), 793 + +Lacassagne _v._ Chapuis, 144 U.S. 119 (1892), 611 + +Ladew _v._ Tennessee Copper Co., 218 U.S. 357 (1910), 620 + +Lafayette Insurance Co. _v._ French et al., 18 How. 404 (1856), 660 + +Lake Erie & W.R. Co. _v._ State Public Utilities Comm. ex rel. Cameron, +249 U.S. 422 (1919), 1012 + +Lake Shore & M.S.R. Co. _v._ Clough, 242 U.S. 375 (1917), 1011 + +Lake Shore & M.S.R. Co. _v._ Ohio ex rel. Lawrence, 173 U.S. 285 (1899), +221, 222 + +Lake Shore & M.S.R. Co. _v._ Prentice, 147 U.S. 101 (1893), 604 + +Lake Shore & M.S.R. Co. _v._ Smith, 173 U.S. 684 (1899), 344, 1016 + +Lamar _v._ United States, 241 U.S. 103 (1916), 881 + +Lam Mow _v._ Nagle, 24 F. (2d) 316 (1928), 964 + +Lampasas _v._ Bell, 180 U.S. 276 (1901), 540 + +Land _v._ Dollar, 330 U.S. 731 (1947), 588, 590 + +Lane _v._ Vick, 3 How. 464 (1845), 604, 605 + +Lane _v._ Wilson, 307 U.S. 268 (1939), 571, 1164, 1184 + +Lange, Ex parte, 18 Wall. 163 (1874), 839 + +Langnes _v._ Green, 282 U.S. 531 (1931), 524 + +Lankford _v._ Platte Iron Works, 235 U.S. 461 (1915), 932 + +Lanzetta _v._ New Jersey, 306 U.S. 451 (1939), 984, 1098 + +Lapeyre _v._ United States, 17 Wall. 191 (1873), 103 + +Large Oil Co. _v._ Howard, 248 U.S. 549 (1919), 735 + +Largent _v._ Texas, 318 U.S. 418 (1943), 786, 788 + +Larson _v._ Domestic & Foreign Corp., 337 U.S. 682 (1949), 495, 588, +589, 590, 929, 931, 934 + +Lascelles _v._ Georgia, 148 U.S. 537 (1893), 696 + +La Tourette _v._ McMaster, 248 U.S. 465 (1919), 687, 691, 1021 + +Latta & T. Constr. Co. _v._ The Raithmoor, 241 U.S. 166 (1916), 575 + +Lauf _v._ E.G. Shinner & Co., 303 U.S. 323 (1938), 524, 620, 622 + +Laura, The, 114 U.S. 411 (1885), 411 + +La Vengeance, 3 Dall. 297 (1796), 575, 576 + +Lawrence _v._ State Tax Commission, 286 U.S. 276 (1932), 1054 + +Lawton _v._ Steele, 152 U.S. 133 (1894), 1086 + +League _v._ Texas, 184 U.S. 156 (1902), 1062 + +Lee _v._ Mississippi, 332 U.S. 742 (1948), 1119 + +Lee _v._ Osceola & L. River Road Improv. Dist, 268 U.S. 643 (1925), 732 + +Lee, On _v._ United States, 343 U.S. 747 (1952), 824 + +Legal Tender Cases (Juilliard _v._ Greenman), 12 Wall. 457 (1871), 118, +267, 310, 362, 563 + +Legal Tender Cases (Juilliard _v._ Greenman), 110 U.S. 421 (1884), 266, +326 + +Lehigh Valley R. Co., In re, 265 U.S. 573 (1924), 610 + +Lehigh Valley R. Co. _v._ Barlow, 244 U.S. 183 (1917), 141 + +Lehigh Valley R. Co. _v._ Public Utility Comrs., 278 U.S. 24 (1928), +1011 + +Lehmann _v._ State Board of Public Accountancy, 263 U.S. 394 (1923), 328 + +Lehon _v._ Atlanta, 242 U.S. 53 (1916), 1024 + +Leigh _v._ Green, 193 U.S. 79 (1904), 1060, 1062 + +Leisy _v._ Hardin, 135 U.S. 100 (1890), 218, 239, 268 + +Leland _v._ Oregon, 343 U.S. 790 (1952), 1096 + +Leloup _v._ Port of Mobile, 127 U.S. 640 (1888), 193, 202 + +Lemieux _v._ Young, 211 U.S. 489 (1909), 1018, 1156 + +Lemke _v._ Farmers Grain Co., 258 U.S. 50 (1922), 149, 244 + +Lem Woon _v._ Oregon, 229 U.S. 586 (1913), 1098 + +Leser _v._ Garnett, 258 U.S. 130 (1922), 98, 712, 713, 714 + +Lessee of Livingston _v._ Moore, 7 Pet. 469 (1933), 751 + +Levering & Garrigues Co. _v._ Morrin, 289 U.S. 103 (1933), 567 + +Levitt, Ex parte, 302 U.S. 633 (1937), 101, 542, 612 + +Levy Leasing Co. _v._ Siegel, 258 U.S. 242 (1922), 359 + +Lewis _v._ Cocks, 23 Wall. 466 (1874), 895 + +Lewis Blue Point Oyster Cultivation Co. _v._ Briggs, 229 U.S. 82 (1913), +868 + +Lewis Publishing Co. _v._ Morgan, 229 U.S. 288 (1913), 269 + +L'Hote _v._ New Orleans, 177 U.S. 587 (1900), 1031, 1154 + +Liberato _v._ Royer, 270 U.S. 535 (1926), 416 + +Liberty Warehouse Co. _v._ Burley Tobacco Growers' Co-op. Marketing +Asso., 276 U.S. 71 (1928), 513, 965 + +Liberty Warehouse Co. _v._ Grannis, 273 U.S. 70 (1927), 513, 551 + +License Cases, 5 How. 504 (1847), 122, 723 + +License Tax Cases, 5 Wall. 462 (1867), 105, 110 + +Lichter _v._ United States, 334 U.S. 742 (1948), 75, 281, 289, 290 + +Life & C. Ins. Co. _v._ McCray, 291 U.S. 566 (1934), 1023, 1092 + +Liggett Co. _v._ Lee, 288 U.S. 517 (1933), 1149 + +Liggett (Louis K.) Co. _v._ Baldridge, 278 U.S. 105 (1928), 981, 983, +1023 + +Light _v._ United States, 220 U.S. 523 (1911), 702 + +Lincoln County _v._ Luning, 133 U.S. 529 (1890), 930, 936 + +Lincoln Federal Labor Union _v._ Northwestern Co., 335 U.S. 525 (1949), +783, 991, 993, 1023, 1150 + +Lincoln Nat. Life Ins. Co. _v._ Read, 325 U.S. 673 (1945), 1150 + +Lindenmuller _v._ The People, 33 Barbour (N.Y.) 548 (1861), 357 + +Lindsay & Phelps Co. _v._ Mullen, 176 U.S. 126 (1900), 231 + +Lindsey _v._ Washington, 301 U.S. 397 (1937), 328 + +Lindsley _v._ Natural Carbonic Gas Co., 220 U.S. 61 (1911), 1025, 1145, +1146, 1166 + +Ling Su Fan _v._ United States, 218 U.S. 302 (1910), 266 + +L'Invincible, 1 Wheat. 238 (1816), 575 + +Lipke _v._ Lederer, 259 U.S. 557 (1922), 621, 849 + +Lisenba _v._ California, 314 U.S. 219 (1941), 1113, 1125, 1132 + +Litchfield _v._ Webster Co., 101 U.S. 773 (1880), 931 + +Little _v._ Barreme, 2 Cr. 170 (1804), 492, 498, 501 + +Liverpool & L. & G. Ins. Co. _v._ Board of Assessors, 221 U.S. 346 +(1911), 1056 + +Livingston _v._ Moore, 7 Pet. 469 (1833), 352 + +Lloyd _v._ Matthews, 155 U.S. 222 (1894), 676 + +Local 167 _v._ United States, 291 U.S. 293 (1934), 149 + +Loche _v._ New Orleans, 4 Wall. 172 (1867), 327, 338 + +Lochner _v._ New York, 198 U.S. 45 (1905), 564, 846, 977 + +Locke _v._ Dane, 9 Mass. 360 (1812), 338 + +Lockerty _v._ Phillips, 319 U.S. 182 (1943), 525, 532, 620 + +Lockwood, In re, 154 U.S. 116 (1894), 971 + +Locomobile Co. of America _v._ Massachusetts, 246 U.S. 146 (1918), 197 + +Loewe _v._ Lawlor, 208 U.S. 274 (1908), 149 + +Logan _v._ United States, 144 U.S. 263 (1892), 309, 839, 967 + +Londoner _v._ Denver, 210 U.S. 373 (1908), 850, 1059, 1060 + +Lonergan _v._ United States, 303 U.S. 33 (1938), 587 + +Lone Star Gas Co. _v._ Texas, 304 U.S. 224 (1938), 218, 234 + +Lone Wolf _v._ Hitchcock, 187 U.S. 553 (1903), 432, 864 + +Loney, In re, 134 U.S. 372 (1890), 96, 633 + +Long _v._ Ansell, 293 U.S. 76 (1934), 99 + +Long _v._ Rockwood, 277 U.S. 142 (1928), 276, 734 + +Long Island Water Supply Co. _v._ Brooklyn, 166 U.S. 685 (1897), 1063, +1065, 1069, 1096 + +Long Sault Development Co. _v._ Call, 242 U.S. 272 (1916), 329 + +Longyear _v._ Toolan, 209 U.S. 414 (1908), 1060 + +Look Tin Sing, In re, 21 F. 905 (1884), 964 + +Looney _v._ Crane Company, 245 U.S. 178 (1917), 196, 197, 1051 + +Looney _v._ Eastern Texas R. Co., 247 U.S. 214 (1918), 628 + +Lorain Journal _v._ United States, 342 U.S. 143 (1951), 793 + +Lord _v._ Steamship Co., 102 U.S. 541 (1881), 229 + +Lord de la Warre's Case, 11 Co. Rep. 1 a, 77 Eng. Repr. 1145 (1597), 645 + +Los Angeles _v._ Los Angeles Gas & Electric Corp., 251 U.S. 32 (1919), +1009 + +Los Angeles Gas Co. _v._ R.R. Comm'n., 289 U.S. 287 (1933), 1007, 1008 + +Lothrop _v._ Stedman, 15 Fed. Cas. No. 8,519 (1875), 344 + +Lottawanna, The (Rodd _v._ Heartt), 21 Wall. 558 (1875), 130, 579, 582, +583 + +Lottery Cases, The (Champion _v._ Ames), 188 U.S. 321 (1903), 124, 168, +169, 919 + +Loughborough _v._ Blake, 5 Wheat. 317 (1820), 304, 321 + +Loughran _v._ Loughran, 292 U.S. 216 (1934), 671 + +Louisiana _v._ Cummins, 314 U.S. 577 (1941), 613 + +Louisiana _v._ Garfield, 211 U.S. 70 (1908), 588 + +Louisiana _v._ McAdoo, 234 U.S. 627 (1914), 588, 590 + +Louisiana _v._ Pilsbury, 105 U.S. 278 (1882), 330 + +Louisiana _v._ Texas, 176 U.S. 1 (1900), 217, 595 + +Louisiana ex rel. Elliott _v._ Jumel, 107 U.S. 711 (1883), 931, 932 + +Louisiana ex rel. Folsom Bros. _v._ New Orleans, 109 U.S. 285 (1883), +343, 1036 + +Louisiana ex rel. Francis _v._ Resweber, 329 U.S. 459 (1947), 1134, 1136 + +Louisiana ex rel. Nelson _v._ St. Martin's Parish, 111 U.S. 716 (1884), +356 + +Louisiana ex rel. Ranger _v._ New Orleans, 102 U.S. 203 (1880), 355 + +Louisiana Public Service Comm. _v._ Texas & N.O.R. Co., 284 U.S. 125 +(1931), 219, 322, 323 + +Louisiana Ry. & Nav. Co. _v._ New Orleans, 235 U.S. 164 (1914), 330 + +Louisville & J. Ferry Co. _v._ Kentucky, 188 U.S. 385 (1903), 1041, 1050 + +Louisville & N.R. Co. _v._ Barber Asphalt Pav. Co., 197 U.S. 430 (1905), +1041 + +Louisville & N.R. Co. _v._ Central Stockyards Co., 212 U.S. 132 (1909), +685, 1013 + +Louisville & N.R. Co. _v._ Deer, 200 U.S. 176 (1906), 674 + +Louisville & N.R. Co. _v._ Garrett, 231 U.S. 298 (1913), 329, 1001, 1004 + +Louisville & N.R. Co. _v._ Greene, 244 U.S. 522 (1917), 931 + +Louisville & N.R. Co. _v._ Kentucky, 183 U.S. 503 (1902), 1013 + +Louisville & N.R. Co. _v._ Mottley, 219 U.S. 467 (1911), 137, 219 + +Louisville & N.R. Co. _v._ Palmes, 109 U.S. 244 (1883), 347 + +Louisville & N.R. Co. _v._ Parker, 242 U.S. 13 (1916), 141 + +Louisville & N.R. Co. _v._ Schmidt, 177 U.S. 230 (1900), 1073, 1088, +1089 + +Louisville, Cincinnati & Charleston R. Co. _v._ Letson, 2 How. 497 +(1844), 601 + +Louisville Gas & E. Co. _v._ Coleman, 277 U.S. 32 (1928), 1147, 1149 + +Louisville Joint Stock Bank _v._ Radford, 295 U.S. 555 (1935), 264, 362, +858 + +Louisville Water Co. _v._ Clark, 143 U.S. 1 (1892), 343, 846, 877 + +Lovell _v._ City of Griffin, 303 U.S. 444 (1938), 570, 786, 788 + +Low _v._ Austin, 13 Wall. 29 (1872), 303, 364 + +Lowe _v._ Kansas, 163 U.S. 81 (1896), 1092, 1167 + +Lucas _v._ Alexander, 279 U.S. 573 (1929), 1199 + +Luckenbach S.S. Co. _v._ United States, 272 U.S. 533 (1926), 616 + +Ludecke _v._ Watkins, 335 U.S. 160 (1948), 293, 298, 474, 548, 853 + +Ludwig _v._ Western Union Teleg. Co., 216 U.S. 146 (1910), 196 + +Lugo _v._ Suazo, 59 F. (2d) 386 (1932), 214 + +Luke _v._ Lyde, 2 Burr. 883 (1759), 604 + +Luria _v._ United States, 231 U.S. 9 (1913), 849, 893 + +Lustig _v._ United States, 338 U.S. 74 (1949), 831 + +Luther _v._ Borden, 7 How. 1 (1849), 386, 399, 546, 548, 705 + +Luxton _v._ North River Bridge Co., 153 U.S. 525 (1894), 132, 310 + +Lynch _v._ Hornby, 247 U.S. 339 (1918), 863, 1193 + +Lynch _v._ Turrish, 247 U.S. 221 (1918), 1193 + +Lynch _v._ United States, 292 U.S. 571 (1934), 118, 857, 858 + +Lynde _v._ Lynde, 181 U.S. 183 (1901), 671 + +Lyon _v._ Mutual Benefit Health & Accident Assn., 305 U.S. 484 (1039), +897 + +Lyons _v._ Oklahoma, 322 U.S. 596 (1944), 1114, 1115, 1141 + + +M + +Mabee _v._ White Plains Publishing Co., 327 U.S. 178 (1946), 158 + +Macallen _v._ Massachusetts, 279 U.S. 620 (1929), 730 + +MacDougall _v._ Green, 335 U.S. 281 (1948), 548, 971, 1165, 1208 + +Mackay Teleg. & Cable Co. _v._ Little Rock, 250 U.S. 94 (1919), 214 + +Mackenzie _v._ Hare, 239 U.S. 299 (1915), 255, 259 + +Mackin _v._ United States, 117 U.S. 348 (1886), 838 + +MacLaughlin _v._ Alliance Ins. Co., 286 U.S. 244 (1932), 1200 + +Madden _v._ Kentucky, 309 U.S. 83 (1940), 563, 693, 969, 971, 1145, 1148 + +Madera Waterworks _v._ Madera, 228 U.S. 454 (1913), 349, 1009 + +Madisonville Traction Co. _v._ St. Bernard Min. Co., 196 U.S. 239 +(1905), 629 + +Madsen _v._ Kinsella, 343 U.S. 341 (1952), 404, 493 + +Mager _v._ Grima, 8 How. 490 (1850), 364 + +Magnano Co. _v._ Hamilton, 292 U.S. 40 (1934), 111, 1030, 1148 + +Magniac _v._ Thompson, 7 Pet. 348 (1833), 896 + +Magnolia Petroleum Co. _v._ Hunt, 320 U.S. 430 (1943), 682 + +Magoun _v._ Illinois Trust & Sav. Bank, 170 U.S. 283 (1898), 1151 + +Maguire _v._ Reardon, 255 U.S. 271 (1921), 1029 + +Maguire _v._ Trefry, 253 U.S. 12 (1920), 1054 + +Mahler _v._ Eby, 264 U.S. 32 (1924), 78, 317, 853 + +Mahn _v._ Hardwood, 112 U.S. 354 (1884), 274 + +Mahnich _v._ Southern S.S. Co., 321 U.S. 96 (1944), 566 + +Mahon _v._ Justice, 127 U.S. 700 (1888), 696 + +Mahoney _v._ Triner Corp., 304 U.S. 401 (1938), 1231 + +Maine _v._ Grand Trunk R. Co., 142 U.S. 217 (1891), 202, 207 + +Maiorano _v._ Baltimore & O.R. Co., 213 U.S. 268 (1909), 416 + +Malinski _v._ New York, 324 U.S. 401 (1945), 1114, 1115, 1117, 1121, +1123, 1124 + +Mallett _v._ North Carolina, 181 U.S. 589 (1901), 329, 1166 + +Mallinckrodt Chemical Works _v._ Missouri ex rel. Jones, 238 U.S. 41 +(1915), 1160 + +Malloy _v._ South Carolina, 237 U.S. 180 (1915), 328 + +Manchester _v._ Massachusetts, 139 U.S. 240 (1891), 578, 1027 + +Mandeville _v._ Canterbury, 318 U.S. 47 (1943), 627 + +Mandeville Is. Farms _v._ American C.S. Co., 334 U.S. 219 (1948), 143, +147 + +Manhattan L. Ins. Co. _v._ Cohen, 234 U.S. 123 (1914), 1167 + +Manigault _v._ Springs, 199 U.S. 473 (1905), 357, 358, 1067 + +Mankin _v._ Chandler & Co., 2 Brock. 125 (1823), 653 + +Manley _v._ Georgia, 279 U.S. 1 (1929), 1094, 1095 + +Mantle Lamp Co. _v._ Aluminum Co., 301 U.S. 544 (1937), 273 + +Manuel _v._ Wulff, 152 U.S. 505 (1894), 258 + +Marbles _v._ Creecy, 215 U.S. 63 (1909), 695 + +Marbury _v._ Madison, 1 Cr. 137 (1803), 101, 341, 453, 454, 458, 460, +478, 522, 545, 546, 559, 560, 612 + +Marchant _v._ Pennsylvania Railroad Co., 153 U.S. 380 (1894), 1068, 1071 + +Marconi Wireless Teleg. Co. _v._ United States, 320 U.S. 1 (1943), 272 + +Margolin _v._ United States, 269 U.S. 93 (1925), 857 + +Marianna Flora, The, 11 Wheat. 1 (1826), 278 + +Maricopa County _v._ Valley National Bank, 318 U.S. 357 (1943), 734 + +Marin _v._ Augedahl, 247 U.S. 142 (1918), 678 + +Marino _v._ Ragen, 332 U.S. 561 (1947), 1104, 1109 + +Marine R. & Coal Co. _v._ United States, 257 U.S. 47 (1921), 301 + +Market St. R. Co. _v._ Comm'n., 324 U.S. 548 (1945), 1008 + +Markham _v._ Allen, 326 U.S. 490 (1946), 627 + +Marr _v._ United States, 268 U.S. 536 (1925), 1195 + +Marron _v._ United States, 275 U.S. 192 (1927), 825, 828 + +Marsh _v._ Alabama, 326 U.S. 501 (1946), 563, 786 + +Marshall _v._ Baltimore & Ohio R. Co., 16 How. 314 (1854), 602 + +Marshall _v._ Dye, 231 U.S. 250 (1913), 705, 982 + +Marshall _v._ Gordon, 243 U.S. 521 (1917), 85, 86 + +Marshall _v._ Holmes, 141 U.S. 589 (1891), 629 + +Martin _v._ Hunter, 1 Wheat. 304 (1816), 60, 554, 555, 569, 616, 622, +625, 727 + +Martin _v._ Lankford, 245 U.S. 547 (1918), 935 + +Martin _v._ Mott, 12 Wheat. 19 (1827), 299, 391, 400, 483 + +Martin _v._ Pittsburgh & L.E.R. Co., 203 U.S. 284 (1906), 270 + +Martin _v._ Struthers, 319 U.S. 141 (1943), 768, 786 + +Martin _v._ Waddell, 16 Pet. 367 (1842), 700 + +Martin _v._ West, 222 U.S. 191 (1911), 235 + +Martino _v._ Michigan Window Cleaning Company, 327 U.S. 173 (1946), 158 + +Marvin _v._ Trout, 199 U.S. 212 (1905), 1031, 1096 + +Maryland _v._ Soper, 270 U.S. 9 (1926), 501, 634, 728 + +Maryland _v._ Soper, 270 U.S. 96 (1926), 634 + +Maryland _v._ West Virginia, 217 U.S. 577 (1910), 301 + +Maryland Casualty Co. _v._ Pacific Coal & Oil Co., 312 U.S. 270 (1941), +553 + +Mason _v._ Haile, 12 Wheat. 370 (1827), 355 + +Mason _v._ United States, 244 U.S. 362 (1917), 842 + +Mason _v._ United States, 260 U.S. 545 (1923), 482 + +Massachusetts _v._ Mellon, 262 U.S. 447 (1923), 114, 542, 543, 548, 561, +596, 612 + +Massachusetts _v._ Missouri, 308 U.S. 1. (1939), 594 + +Massachusetts State Grange _v._ Benton, 272 U.S. 525 (1926), 542, 934 + +Mast, Foos & Co. _v._ Stover Mfg. Co., 177 U.S. 485 (1900), 626 + +Mathews _v._ Zane, 7 Wheat. 164 (1822), 103 + +Matson Navigation Co. _v._ State Board, 297 U.S. 441 (1936), 203, 209, +1054 + +Mattingly _v._ District of Columbia, 97 U.S. 687 (1878), 304 + +Mattox _v._ United States, 156 U.S. 237 (1895), 884 + +Mattson _v._ Department of Labor, 293 U.S. 151 (1934), 1093 + +Maul _v._ United States, 274 U.S. 501 (1927), 575 + +Maurer _v._ Hamilton, 309 U.S. 598 (1940), 218, 226 + +Maxwell _v._ Bugbee, 250 U.S. 525 (1919), 687, 693, 1151 + +Maxwell _v._ Dow, 176 U.S. 581 (1900), 752, 879, 882, 971, 1096, 1098, +1109, 1110 + +Maxwell _v._ Stewart, 21 Wall. 71 (1875), 674 + +May _v._ New Orleans, 178 U.S. 496 (1900), 178, 363 + +Mayfield _v._ Richards, 115 U.S. 137 (1885), 293 + +Mayflower Farms _v._ Ten Eyck, 297 U.S. 266 (1936), 1156 + +Maynard _v._ Hill, 125 U.S. 190 (1888), 352 + +Mayo _v._ United States, 319 U.S. 441 (1943), 733 + +Mayor of Vidalia _v._ McNeely, 274 U.S. 676 (1927), 231 + +Mayor _v._ Cooper, 6 Wall. 247 (1868), 512, 569, 619, 620, 623 + +McAllister _v._ United States, 141 U.S. 174 (1891), 534 + +McCabe _v._ Atchison, T. & S.F.R. Co., 235 U.S. 151 (1914), 698, 699, +704, 1162 + +McCall _v._ California, 136 U.S. 104 (1890), 222, 228 + +McCandless _v._ United States, 298 U.S. 342 (1936), 870 + +McCardle, Ex parte, 6 Wall. 318 (1868), 614 + +McCardle, Ex parte, 7 Wall. 506 (1869), 523, 614 + +McCardle _v._ Indianapolis Water Co., 272 U.S. 400 (1926), 1006 + +McCarroll _v._ Dixie Greyhound Lines, 309 U.S. 176 (1940), 177, 186, +195, 206, 219 + +McCarthy _v._ Arndstein, 262 U.S. 355 (1923), 827, 843 + +McCarthy _v._ Arndstein, 266 U.S. 34 (1924), 842, 843 + +McCaughey _v._ Lyall, 224 U.S. 558 (1912), 1082 + +McCloskey _v._ Tobin, 252 U.S. 107 (1920), 1024, 1156 + +McClung _v._ Silliman, 6 Wheat. 598 (1821), 522 + +McClurg _v._ Kingsland, 1 How. 202 (1843), 275 + +McCollum _v._ Board of Education, 333 U.S. 203 (1948), 758, 760, 762 + +McCormick _v._ Sullivant, 10 Wheat. 192 (1825), 673 + +McCoy _v._ Union Elev. Co., 247 U.S. 354 (1918), 329 + +McCracken _v._ Hayward, 2 How. 608 (1844), 354 + +McCray _v._ United States, 195 U.S. 27 (1904), 111, 564, 863 + +McCready _v._ Virginia, 94 U.S. 391 (1877), 690 + +McCrone _v._ United States, 307 U.S. 61 (1939), 521 + +McCulloch _v._ Maryland, 4 Wheat. 316 (1819), 60, 71, 73, 106, 146, 156, +266, 267, 279, 307, 309, 495, 555, 721, 728, 729, 732, 735, 736, 790, +915, 1049 + +McCullough _v._ Virginia, 172 U.S. 102 (1898), 330 + +McDermott _v._ Wisconsin, 228 U.S. 115 (1913), 153, 248 + +McDonald _v._ Mabee, 243 U.S. 90 (1917), 659, 1073, 1074 + +McDonald _v._ Massachusetts, 180 U.S. 311 (1901), 328, 1161 + +McDonald _v._ Oregon R. & Nav. Co., 233 U.S. 665 (1914), 1141 + +McDonald _v._ Pless, 238 U.S. 264 (1915), 526 + +McDonald _v._ United States, 335 U.S. 451 (1948), 829 + +McElmoyle _v._ Cohen, 13 Pet. 312 (1839), 654 + +McElrath _v._ United States, 102 U.S. 426 (1880), 534, 893 + +McFaddin _v._ Evans-Snider-Buel Co., 185 U.S. 505 (1902), 856 + +McGahey _v._ Virginia, 135 U.S. 662 (1890), 330, 355 + +McGoldrick _v._ Berwind-White Coal Mining Co., 309 U.S. 33 (1940), 189, +190 + +McGoldrick _v._ Compagnie Generale, 309 U.S. 430 (1940), 190 + +McGoldrick _v._ Felt & Tarrant Co., 309 U.S. 70 (1940), 190 + +McGoldrick _v._ Gulf Oil Corp., 309 U.S. 414 (1940), 363 + +McGovern _v._ New York, 229 U.S. 363 (1913), 1066 + +McGrain _v._ Daugherty, 273 U.S. 135 (1927), 83-85, 91, 97, 825 + +McGuire _v._ United States, 273 U.S. 95 (1927), 831 + +McIntire _v._ Wood, 7 Cr. 504 (1813), 512, 522 + +McKane _v._ Durston, 153 U.S. 684 (1894), 687, 1133, 1138 + +McKim _v._ Voorhies, 7 Cr. 279 (1812), 627 + +McKinley _v._ United States, 249 U.S. 397 (1919), 285 + +McKissick _v._ Carmichael, 187 F. 2d 949 (1951), 1163 + +McKnett _v._ St. Louis & S.F.R. Co., 292 U.S. 230 (1934), 692 + +McLaurin _v._ Oklahoma State Regents, 339 U.S. 637 (1950), 1162 + +McLean _v._ Arkansas, 211 U.S. 539 (1909), 988, 1018, 1158 + +McLean _v._ Meek, 18 How. 16 (1856), 672 + +McLeod _v._ Dilworth Co., 322 U.S. 327 (1944), 191 + +McLeod _v._ Threlkeld, 319 U.S. 491 (1943), 158 + +McMillen _v._ Anderson, 95 U.S. 37 (1877), 1057, 1058, 1071 + +McNabb _v._ United States, 318 U.S. 332 (1943), 842 + +McNally _v._ Hill, 293 U.S. 131 (1934), 314 + +McNaughton _v._ Johnson, 242 U.S. 344 (1917), 1024, 1155 + +McNeill _v._ Southern R. Co., 202 U.S. 543 (1906), 222 + +McNiel, Ex parte, 13 Wall. 236 (1872), 366, 574 + +McPherson _v._ Blacker, 146 U.S. 1 (1892), 385, 548, 1172 + +Mechanics' & Traders' Bank _v._ Debolt, 18 How. 380 (1856), 602 + +Medley, Ex parte, 134 U.S. 160 (1890), 328 + +Meehan _v._ Valentine, 145 U.S. 611 (1892), 896 + +Meeker _v._ Lehigh Valley R. Co., 236 U.S. 434 (1915), 894 + +Memphis _v._ United States, 97 U.S. 293 (1878), 356 + +Memphis & C.R. Co. _v._ Pace, 282 U.S. 241 (1931), 1153 + +Memphis Gas Co. _v._ Beeler, 315 U.S. 649 (1942), 209, 1050 + +Memphis & L.R.R. Co. _v._ Berry, 112 U.S. 609 (1884), 347 + +Memphis Natural Gas Co. _v._ Stone, 335 U.S. 80 (1948), 198, 207 + +Memphis Steam Laundry _v._ Stone, 342 U.S. 389 (1952), 192 + +Merchants' Bank _v._ Pennsylvania, 167 U.S. 461 (1897), 1060 + +Merchants Exch. _v._ Missouri ex rel. Barker, 248 U.S. 365 (1919), 1018 + +Merchants' Loan & T. Co. _v._ Smietanka, 255 U.S. 509 (1921), 1194 + +Merchants Mut. Auto Liability Ins. Co. _v._ Smart, 267 U.S. 126 (1925), +1022 + +Merchants Nat. Bank _v._ United States, 101 U.S. 1 (1880), 266 + +Meriwether _v._ Garrett, 102 U.S. 472 (1880), 340 + +Merrick _v._ Halsey & Co., 242 U.S. 568 (1917), 235, 1019 + +Merryman, Ex parte, 17 Fed. Cas. No. 9487 (1861), 315 + +Metcalf _v._ Mitchell, 269 U.S. 514 (1926), 107 + +Metropolis Theatre Co. _v._ Chicago, 228 U.S. 61 (1913), 1149 + +Metropolitan Casualty Ins. Co. _v._ Brownell, 294 U.S. 580 (1935), 120 + +Metropolitan L. Ins. Co. _v._ New Orleans, 205 U.S. 395 (1907),, 1056 + +Metropolitan R. Co. _v._ District of Columbia, 132 U.S. 1 (1889), 301 + +Meyer _v._ Nebraska, 262 U.S. 390 (1923), 984 + +Meyer _v._ Richmond, 172 U.S. 82 (1898), 1068 + +Meyer _v._ Wells, Fargo & Co., 223 U.S. 298 (1912), 204 + +Michaelson _v._ United States, 266 U.S. 42 (1924), 512, 516, 521, 565 + +Michigan C.R. Co. _v._ Michigan Railroad Commission, 236 U.S. 615 +(1915), 1013 + +Michigan C.R. Co. _v._ Powers, 201 U.S. 245 (1906), 1058 + +Michigan Public Utilities Commission _v._ Duke, 266 U.S. 570 (1925), +1032 + +Michigan Trust Co. _v._ Ferry, 228 U.S. 346 (1913), 655, 1082 + +Middleton _v._ Texas Power & Light Co., 249 U.S. 152 (1919), 1145, 1159 + +Midland Realty Co. _v._ Kansas City P. & L. Co., 300 U.S. 109 (1937), +358 + +Miedreich _v._ Lauenstein, 232 U.S. 236 (1914), 1083 + +Miles _v._ Graham, 268 U.S. 501 (1925), 105, 530, 535 + +Miles _v._ Illinois C.R. Co., 315 U.S. 698 (1942), 692 + +Miles _v._ Safe Deposit & Trust Co., 259 U.S. 247 (1922), 1195 + +Milheim _v._ Moffat Tunnel Improv. Dist., 262 U.S. 710 (1923), 1037 + +Milk Control Board _v._ Eisenberg Farm Products, 306 U.S. 346 (1939), +218, 237, 245 + +Milk Wagon Drivers' Union _v._ Lake Valley Farm Products, 311 U.S. 91 +(1940), 524, 622 + +Millard _v._ Roberts, 202 U.S. 429 (1906), 102 + +Miller _v._ Foree, 116 U.S. 22 (1885), 273 + +Miller _v._ Horton, 152 Mass. 540 (1891), 1086 + +Miller _v._ McLaughlin, 281 U.S. 261 (1930), 1027 + +Miller _v._ Milwaukee, 272 U.S. 713 (1927), 730 + +Miller _v._ New York, 15 Wall. 478 (1873), 343 + +Miller _v._ Schoene, 276 U.S. 272 (1928), 1027, 1156 + +Miller _v._ Standard Nut Margarine Co., 284 U.S. 498 (1932), 621 + +Miller _v._ Strahl, 239 U.S. 426 (1915), 1155 + +Miller _v._ United States, 11 Wall. 268 (1871), 280, 295, 565, 645 + +Miller _v._ Wilson, 236 U.S. 373 (1915), 986, 1159 + +Millers' Underwriters _v._ Braud, 270 U.S. 59 (1926), 582 + +Milligan, Ex parte, 4 Wall. 2 (1866), 280, 286, 294, 314, 315, 390, 399 + +Milliken _v._ Meyer, 311 U.S. 457 (1940), 659, 1074 + +Mills _v._ Duryee, 7 Cr. 481 (1813), 653, 658, 661 + +Mills _v._ Green, 159 U.S. 651 (1895), 545 + +Millsaps College _v._ Jackson, 275 U.S. 129 (1927), 348 + +Milwaukee County _v._ White (M.E.), Co., 296 U.S. 268 (1935), 654, 655, +675, 684 + +Milwaukee Social Democratic Publishing Co. _v._ Burleson, 255 U.S. 407 +(1921), 269 + +Mimmack _v._ United States, 97 U.S. 426 (1878), 404 + +Minersville School Dist. _v._ Gobitis, 310 U.S. 586 (1940), 767 + +Mine Safety Appliances Co. _v._ Forrestal, 326 U.S. 371 (1945), 588 + +Minneapolis & St. L.R. Co. _v._ Beckwith, 129 U.S. 26 (1889), 1016, +1142, 1156 + +Minneapolis & St. L.R. Co. _v._ Bombolis, 241 U.S. 211 (1916), 893 + +Minneapolis & St. L.R. Co. _v._ Emmons, 149 U.S. 364 (1893), 345, 1156 + +Minneapolis & St. L.R. Co. _v._ Minnesota ex rel. Railroad & W. +Commission, 193 U.S. 53 (1904), 1012 + +Minnesota _v._ Barber, 136 U.S. 313 (1890), 238 + +Minnesota _v._ Blasius, 290 U.S. 1 (1933), 149, 185, 189 + +Minnesota _v._ Hitchcock, 185 U.S. 373 (1902), 588 + +Minnesota _v._ Northern Securities Co., 184 U.S. 199 (1902), 596, 597 + +Minnesota _v._ Probate Court, 309 U.S. 270 (1940), 984, 1098, 1161 + +Minnesota _v._ United States, 305 U.S. 382 (1939), 587, 588 + +Minnesota Assn. _v._ Benn, 261 U.S. 140 (1923), 1079 + +Minnesota ex rel. Whipple _v._ Martinson, 256 U.S. 41 (1921), 1030 + +Minnesota Rate Cases (Simpson _v._ Shepard) 230 U.S. 352 (1913), 176, +218, 236, 1006 + +Minor _v._ Happersett, 21 Wall. 162 (1875), 87, 705, 971 + +Mintz _v._ Baldwin, 289 U.S. 346 (1933), 237, 250, 251 + +Mississippi _v._ Johnson, 4 Wall. 475 (1867), 499, 543, 546, 596 + +Mississippi R. Commission _v._ Mobile & O.R. Co., 244 U.S. 388 (1917), +1009 + +Mississippi Use of Robertson _v._ Miller, 276 U.S. 174 (1928), 341 + +Missouri _v._ Canada, 305 U.S. 337 (1938), 1162 + +Missouri _v._ Dockery, 191 U.S. 165 (1903), 1152 + +Missouri _v._ Fiske, 290 U.S. 18 (1933), 934, 936 + +Missouri _v._ Holland, 252 U.S. 416 (1920), 308, 428, 544, 612 + +Missouri _v._ Illinois, 180 U.S. 208 (1901), 592, 599 + +Missouri _v._ Lewis, 101 U.S. 22 (1880), 1110, 1112 + +Missouri _v._ Missouri Pacific R. Co., 292 U.S. 13 (1934), 615 + +Missouri & A. Lumber & Min. Co _v._ Greenwood Dist., 249 U.S. 170 +(1919), 352 + +Missouri ex rel. Barrett _v._ Kansas Natural Gas Co., 265 U.S. 298 +(1924), 138, 233 + +Missouri ex rel. Gaines _v._ Canada, 305 U.S. 337 (1938), 1142 + +Missouri ex rel. Hurwitz _v._ North, 271 U.S. 40 (1926), 1086, 1155 + +Missouri ex rel. Southwestern Bell Teleph. Co. _v._ Public Service +Commission, 262 U.S. 276 (1923), 1005, 1006 + +Missouri, K. & T.R. Co. _v._ Cade, 233 U.S. 642 (1914), 1092, 1167 + +Missouri, K. & T.R. Co. _v._ Haber, 169 U.S. 613 (1898), 222, 248 + +Missouri, K. & T.R. _v._ Harris, 234 U.S. 412 (1914), 1167 + +Missouri, K. & T.R. Co. _v._ May, 194 U.S. 267 (1904), 1156 + +Missouri, K. & T.R. Co. _v._ Reynolds, 255 U.S. 565 (1921), 1076 + +Missouri, K. & T.R. Co. _v._ Texas, 245 U.S. 484 (1918), 219 + +Missouri P.R. Co. _v._ Castle, 224 U.S. 541 (1912), 971 + +Missouri P.R. Co. _v._ Humes, 115 U.S. 512 (1885), 1016, 1156 + +Missouri P.R. Co. _v._ Kansas, 248 U.S. 276 (1919), 103, 413 + +Missouri P.R. Co. _v._ Kansas ex rel. Taylor, 216 U.S. 262 (1910), 1011, +1012 + +Missouri P.R. Co. _v._ Larabee, 234 U.S. 459 (1914), 1167 + +Missouri P.R. Co. _v._ Larabee Flour Mills Co., 211 U.S. 612 (1909), 222 + +Missouri P.R. Co. _v._ McGrew Coal Co., 244 U.S. 191 (1917), 1013 + +Missouri P.R. Co. _v._ Nebraska, 217 U.S. 196 (1910), 1009, 1012 + +Missouri P.R. Co. _v._ Nebraska ex rel. Board of Transportation, 164 +U.S. 403 (1896), 1066 + +Missouri P.R. Co. _v._ Norwood, 283 U.S. 249 (1931), 223, 1014 + +Missouri P.R. Co. _v._ Porter, 273 U.S. 341 (1927), 247 + +Missouri P.R. Co. _v._ Tucker, 230 U.S. 340 (1913), 1015 + +Missouri P.R. Co. _v._ Western Crawford Road Improv. Dist, 266 U.S. 187 +(1924), 1040 + +Mitchell _v._ Clark, 110 U.S. 633 (1884), 362, 501 + +Mitchell _v._ Harmony, 13 How. 115 (1852), 298, 404, 496, 896 + +Mitchell _v._ United States, 267 U.S. 341 (1925), 871 + +Mittle _v._ State of South Carolina, 260 U.S. 705 (1922), 1220 + +Mobile _v._ Watson, 116 U.S. 289 (1886), 356 + +Mobile & Ohio R.R. Co. _v._ Tennessee, 153 U.S. 486 (1894), 330 + +Mobile County _v._ Kimball, 102 U.S. 691 (1881), 120, 124 + +Mobile, J. & K.C.R. Co. _v._ Turnipseed, 219 U.S. 35 (1910), 1094, 1095, +1166 + +Modern Woodmen _v._ Mixer, 267 U.S. 544 (1925), 678 + +Moffitt _v._ Kelly, 218 U.S. 400 (1910), 352 + +Monaco _v._ Mississippi, 292 U.S. 313 (1934), 930 + +Monamotor Oil Co. _v._ Johnson, 292 U.S. 86 (1934), 186 + +Mondou _v._ New York, N.H. & H.R. Co. (Second Employers' Liability +Cases), 223 U.S. 1 (1912), 141, 247, 637, 727 + +Monongahela Bridge Co. _v._ United States, 216 U.S. 177 (1910), 128 + +Monongahela Nav. Co. _v._ United States, 148 U.S. 312 (1893), 129, 750, +867, 870, 872 + +Montana Catholic Missions _v._ Missoula County, 200 U.S. 118 (1906), 567 + +Montana Company _v._ St Louis Min. & Mill Co., 152 U.S. 160 (1894), 1096 + +Montello, The, 20 Wall. 430 (1874), 578 + +Montoya _v._ Gonzales, 232 U.S. 375 (1914), 856 + +Mooney _v._ Holohan, 294 U.S. 103 (1935), 634, 1125 + +Mooney _v._ Smith, 305 U.S. 598 (1938), 1125 + +Mooney, Ex parte, 10 Cal. (2d) 1, 73 P. (2d) 554 (1937), 1125 + +Moore _v._ Dempsey, 261 U.S. 86 (1923), 1131, 1138, 1139 + +Moore _v._ Fidelity & Deposit Co., 272 U.S. 317 (1926), 631 + +Moore _v._ Houston, 3 S. & R. (Pa.) 169 (1817), 299 + +Moore _v._ Illinois, 14 How. 13 (1853), 696 + +Moore _v._ Missouri, 159 U.S. 673 (1895), 1161 + +Moore _v._ Mitchell, 281 U.S. 18 (1930), 675 + +Moore _v._ New York, 333 U.S. 565 (1948), 1110, 1111 + +Moran _v._ Sturges, 154 U.S. 256 (1894), 627 + +Moran, In re, 203 U.S. 96 (1903), 634 + +More _v._ Steinbach, 127 U.S. 70 (1888), 895 + +Morehead _v._ New York ex rel. Tipaldo, 298 U.S. 587 (1936), 980, 989, +1159 + +Morf _v._ Bingaman, 298 U.S. 407 (1936), 212, 1149, 1151 + +Morgan _v._ Devine, 237 U.S. 632 (1915), 840 + +Morgan _v._ Gay, 19 Wall. 81 (1874), 619 + +Morgan _v._ Louisiana, 93 U.S. 217 (1876), 347 + +Morgan _v._ TVA, 28 F. Supp. 732 (1939), 460 + +Morgan _v._ United States, 304 U.S. 1 (1938), 850 + +Morgan _v._ Virginia, 328 U.S. 373 (1946), 225, 1162 + +Morgan Envelope Co. _v._ Albany Perforated Wrapping Paper Co., 152 U.S. +425 (1894), 273 + +Morgan's L. & T.R. & S.S. Co. _v._ Louisiana Bd. of Health, 118 U.S. 455 +(1886), 217, 236, 312, 323, 366 + +Morley _v._ Lake Shore & M.S.R. Co., 146 U.S. 162 (1892), 343, 352 + +Morris _v._ Duby, 274 U.S. 135 (1927), 227 + +Morris _v._ Jones, 329 U.S. 545 (1947), 657 + +Morris _v._ United States, 174 U.S. 196 (1899), 301 + +Morrison _v._ California, 288 U.S. 591 (1933), 1096 + +Morrison _v._ California, 291 U.S. 82 (1934), 1096 + +Morrison _v._ Work, 266 U.S. 481 (1925), 588 + +Morrissey, In re, 137 U.S. 157 (1890), 285 + +Morton Salt Co. _v._ Suppiger Co., 314 U.S. 488 (1942), 275 + +Moses Taylor, The, _v._ Hammons, 4 Wall. 411 (1867), 576, 579 + +Mosher _v._ Phoenix, 287 U.S. 29 (1932), 567 + +Motes _v._ United States, 178 U.S. 458 (1900), 309, 884 + +Motion Picture Co. _v._ Universal Film Co., 243 U.S. 502 (1917), 275 + +Motor Freight Carriers _v._ National War Labor Board, 143 F. (2d) 145 +(1944), 394 + +Mountain Timber Co. _v._ Washington, 243 U.S. 219 (1917), 704, 989, 1159 + +Mt. Vernon-Woodberry Cotton Duck Co. _v._ Alabama Interstate Power Co., +240 U.S. 30 (1916), 1065 + +Moyer _v._ Peabody, 212 U.S. 78 (1909), 484 + +Mugler _v._ Kansas, 123 U.S. 623 (1887), 239, 973, 975, 976, 977, 1032 + +Muhlker _v._ New York & H.R. Co., 197 U.S. 544 (1905), 331 + +Mulford _v._ Smith, 307 U.S. 38 (1939), 76, 160, 856 + +Mullan _v._ United States, 140 U.S. 240 (1891), 404, 847 + +Mullan _v._ United States, 212 U.S. 516 (1909), 286 + +Mullane _v._ Central Hanover Tr. Co., 339 U.S. 306 (1950), 1083 + +Mullaney _v._ Anderson, 342 U.S. 415 (1952), 690 + +Muller _v._ Dows, 94 U.S. 444 (1877), 602 + +Muller _v._ Oregon, 208 U.S. 412 (1908), 979, 986, 1159 + +Munday _v._ Wisconsin Trust Co., 252 U.S. 499 (1920), 1016 + +Munn _v._ Illinois, 94 U.S. 113 (1877), 133, 312, 323, 340, 972, 973, +975, 994, 996, 998, 999, 1004, 1005 + +Munsey _v._ Clough, 196 U.S. 364 (1905), 695 + +Murdock _v._ Pennsylvania, 319 U.S. 105 (1943), 563, 767, 792 + +Murphy _v._ California, 225 U.S. 623 (1912), 1024, 1154 + +Murphy _v._ Massachusetts, 177 U.S. 155 (1900), 1135, 1138 + +Murphy _v._ Ramsey, 114 U.S. 15 (1885), 317, 703 + +Murray _v._ Charleston, 96 U.S. 432 (1878), 343 + +Murray _v._ Hoboken Land & Improvement Co., 18 How. 272 (1856), 622 + +Murray _v._ Wilson Distilling Co., 213 U.S. 151 (1909), 930, 931, 936 + +Muskrat _v._ United States, 219 U.S. 346 (1911), 511, 514, 539, 540, +550, 551, 561, 623 + +Musser _v._ Utah, 333 U.S. 95 (1948), 780 + +Mutual Assur. Soc. _v._ Watts, 1 Wheat. 279 (1816), 302 + +Mutual Ben. L. Ins. Co. _v._ Tisdale, 91 U.S. 238 (1876), 258 + +Mutual Film Corp. _v._ Hodges, 236 U.S. 248 (1915), 238 + +Mutual Film Corp. _v._ Industrial Commission, 236 U.S. 230 (1915), 788 + +Mutual L. Ins. Co. _v._ Harris, 97 U.S. 331 (1878), 654 + +Mutual Life Ins. Co. _v._ Johnson, 293 U.S. 335 (1934), 605 + +Mutual Life Insurance Co. _v._ Spratley, 172 U.S. 602 (1899),, 1077 + +Mutual Loan Co. _v._ Martell, 222 U.S. 225 (1911), 1021 + +Mutual Reserve, etc. Assn. _v._ Phelps, 190 U.S. 147 (1903),, 1078 + +Myers _v._ Irwin, 2 Sergeant & Rawle's (Pa.) 367 (1816), 357 + +Myers _v._ United States, 264 U.S. 95 (1924), 878 + +Myers _v._ United States, 272 U.S. 52 (1926), 380, 450, 456 + +Myles Salt Co. _v._ Iberia & St. M. Drainage Dist., 239 U.S. 478 (1916), +1041 + + +N + +Napier _v._ Atlantic Coast Line R. Co., 272 U.S. 605 (1926),, 250 + +Nardone _v._ United States, 302 U.S. 379 (1937), 824 + +Nardone _v._ United States, 308 U.S. 338 (1939), 824 + +Nash _v._ United States, 229 U.S. 373 (1913), 883 + +Nashville, C. & St. L.R. Co. _v._ Alabama, 128 U.S. 96 (1888), 141, 222, +1014, 1024 + +Nashville, C. & St. L. Ry. _v._ Browning, 310 U.S. 362 (1940), 201, 204, +1040, 1152 + +Nashville, C. & St. L.R. Co. _v._ Wallace, 288 U.S. 249 (1933), 186, +514, 551, 553, 1037, 1148 + +Nashville, C. & St. L.R. Co. _v._ Walters, 294 U.S. 405, (1935), 982, +1009, 1011 + +Nashville, C. & St. L.R. Co. _v._ White, 278 U.S. 456 (1929), 1014 + +Natal _v._ Louisiana, 139 U.S. 621 (1891), 1024, 1155 + +Nathan _v._ Louisiana, 8 How. 73 (1850), 188, 364 + +Nathanson _v._ United States, 290 U.S. 41 (1933), 823 + +National Association of Manufacturers _v._ McGrath, 103 F. Supp. 510 +(1952), 810 + +National Broadcasting Co. _v._ United States, 319 U.S. 190 (1943), 75, +78 + +National Cotton Oil Co. _v._ Texas, 197 U.S. 115 (1905), 1017 + +National Council _v._ State Council, 203 U.S. 151 (1906), 1016 + +National Exchange Bank _v._ Peters, 144 U.S. 570 (1892), 616 + +National Exchange Bank _v._ Wiley, 195 U.S. 257 (1904), 656, 1072 + +National Fertilizer Asso. _v._ Bradley, 301 U.S. 178 (1937), 1019 + +National Gas Pipeline Co. _v._ Slattery, 302 U.S. 300 (1937), 234 + +National Labor Relations Board _v._ Fainblatt, 306 U.S. 601 (1939), 155 + +National Labor Relations Board _v._ Friedman-Harry Marks Clothing Co., +301 U.S. 58 (1937), 155 + +National Labor Relations Board _v._ Fruehauf Trailer Co., 301 U.S. 49 +(1937), 155 + +National Labor Relations Board _v._ Jones & Laughlin Steel Corporation, +301 U.S. 1 (1937), 154, 723, 855, 859, 893, 918, 980 + +National Labor Relations Board _v._ Mackay Co., 304 U.S. 333 (1938), +850, 859 + +National Labor Relations Board _v._ Stowe Spinning Co., 336 U.S. 226 +(1949), 859 + +National Mutual B. & L. Asso. _v._ Brahan, 193 U.S. 635 (1904), 676, +679, 680 + +National Mutual Insurance Co. _v._ Tidewater Transfer Co., 337 U.S. 582 +(1949) 303, 537, 600 + +National Paper & Type Co. _v._ Bowers, 266 U.S. 373 (1924), 321, 868 + +National Prohibition Cases. _See_ Rhode Island _v._ Palmer. + +National Safe Deposit Co. _v._ Stead, 232 U.S. 58 (1914), 1061, 1121 + +National Union F. Ins. Co. _v._ Wanberg, 260 U.S. 71 (1922), 1022 + +Natural Gas Pipeline Co. _v._ Slattery, 302 U.S. 300 (1937), 234 + +Neagle, In re, 135 U.S. 1 (1890), 460, 482, 501, 633 + +Neal _v._ Delaware, 103 U.S. 370 (1881), 1142, 1183 + +Near _v._ Minnesota, 283 U.S. 697 (1931), 757, 786 + +Nebbia _v._ New York, 291 U.S. 502 (1934), 244, 982, 996, 997, 998, +1017, 1154, 1160 + +Neblett _v._ Carpenter, 305 U.S. 297 (1938), 362, 1023 + +Nebraska _v._ Wyoming, 325 U.S. 589 (1945), 593 + +Nectaw _v._ Cambridge, 277 U.S. 183 (1928), 1028 + +Neely _v._ Hankel, 180 U.S. 109 (1901), 308, 317, 427, 473 + +Nelson _v._ Montgomery Ward & Company, 312 U.S. 373 (1941), 190 + +Nelson _v._ Sears, Roebuck & Company, 312 U.S. 359 (1941), 190 + +Newark _v._ New Jersey, 262 U.S. 192 (1923), 1143 + +Newark Fire Ins. Co. _v._ State Board, 307 U.S. 313 (1939), 1050 + +New Bedford Dry Dock Co. _v._ Purdy, 258 U.S. 96 (1922), 574 + +Newberry _v._ United States, 256 U.S. 232 (1921), 94, 96 + +New Brunswick _v._ United States, 276 U.S. 547 (1928), 732 + +Newburyport Water Co. _v._ Newburyport, 193 U.S. 561 (1904), 567, 1009 + +New England Divisions Case. _See_ Akron, C. & Y.R. Co. _v._ United +States. + +New England M. Inc. Co. _v._ Dunham, 11 Wall. 1 (1871), 574 + +New Hampshire _v._ Louisiana, 108 U.S. 76 (1883), 594, 930 + +New Haven & N. Co. _v._ Hamersley, 104 U.S. 1 (1881), 345 + +New Jersey _v._ New York, 283 U.S. 336 (1931), 612 + +New Jersey _v._ New York, 5 Pet. 284 (1831), 592 + +New Jersey _v._ Sargent, 269 U.S. 328 (1926), 543, 596 + +New Jersey _v._ Wilson, 7 Cr. 164 (1812), 341 + +New Jersey _v._ Yard, 95 U.S. 104 (1877), 343 + +New Jersey Bell Telephone Co. _v._ State Bd. of Taxes & Assessments, 280 +U.S. 338 (1930), 126, 203, 204 + +New Jersey Steam Nav. Co. _v._ Merchants' Bank, 6 How. 344 (1848), 573, +574, 577 + +New Mexico _v._ Lane, 243 U.S. 52 (1917), 588 + +New Mexico ex rel. McLean _v._ Denver & R.G.R. Co., 203 U.S. 38 (1906), +214 + +New Negro Alliance _v._ Sanitary Grocery Co., 303 U.S. 552 (1938), 524, +622 + +New Orleans _v._ New Orleans Waterworks Co., 142 U.S. 79 (1891), 352 + +New Orleans _v._ Winter, 1 Wheat. 91 (1816), 302, 600 + +New Orleans & Lake R. Co. _v._ Louisiana, 157 U.S. 219 (1895), 355 + +New Orleans Debenture Redemption Co. _v._ Louisiana, 180 U.S. 320 +(1901), 1016 + +New Orleans Gas Light Co. _v._ Drainage Commission, 197 U.S. 453 +(1905), 1010 + +New Orleans Gas Co. _v._ Louisiana Light Co., 115 U.S. 650 (1885), 329, +351 + +New Orleans Public Service, Inc., _v._ New Orleans, 281 U.S. 682 (1930), +983, 1010 + +New Orleans Waterworks Co. _v._ Louisiana Sugar Ref. Co., 125 U.S. 18 +(1888), 329 + +New Orleans Waterworks Co. _v._ Rivers, 115 U.S. 674 (1885), 329 + +Newport & Cincinnati Bridge Co. _v._ United States, 105 U.S. 470 (1882), +128 + +New State Ice Co. _v._ Liebmann, 285 U.S. 262 (1932), 996, 997 + +Newton _v._ Consolidated Gas Co., 258 U.S. 165 (1922), 1008 + +Newton _v._ Mahoning County, 100 U.S. 548 (1880), 340 + +New York _v._ Compagnie Generale Transatlantique, 107 U.S. 59 (1883), +193 + +New York _v._ Eno, 155 U.S. 89 (1894), 634 + +New York _v._ Illinois, 274 U.S. 488 (1927), 544 + +New York _v._ Irving Trust Co., 288 U.S. 329 (1933), 265 + +New York _v._ Miln, 11 Pet. 102 (1837), 122, 216, 241, 722 + +New York _v._ United States, 257 U.S. 591 (1922), 219, 362, 921 + +New York _v._ United States, 326 U.S. 572 (1946), 108, 916, 1064 + +New York _v._ United States, 331 U.S. 284 (1947), 77 + +New York _v._ United States, 342 U.S. 882 (1951), 77 + +New York Central _v._ Miller, 202 U.S. 584 (1906), 1052 + +New York C. & H.R.R. Co. _v._ Bd. of Chosen Freeholders, 227 U.S. 248 +(1913), 130, 231 + +New York C.R. Co. _v._ Bianc, 250 U.S. 596 (1919), 990 + +New York C.R. Co. _v._ White, 243 U.S. 188 (1917), 141, 358, 989, 1096, +1159 + +New York Central Securities Corp _v._ United States, 287 U.S. 12 (1932), +75, 78 + +New York, Ex parte, 256 U.S. 490 (1921), 930 + +New York ex rel. Bank of Commerce _v._ Comrs. of Taxes & Assessments, 2 +Bl. 620 (1863), 729 + +New York ex rel. Bryant _v._ Zimmerman, 278 U.S. 63 (1928), 971, 1156 + +New York ex rel. Burke _v._ Wells, 208 U.S. 14 (1908), 364 + +New York ex rel. Cohn _v._ Graves, 300 U.S. 308 (1937), 1054 + +New York ex rel. Hatch _v._ Reardon, 204 U.S. 152 (1907), 188, 1044 + +New York ex rel. Lieberman _v._ Van De Carr, 199 U.S. 552 (1905), 1029, +1071, 1154 + +New York ex rel. New York, C. & H.R.R. Co. _v._ Miller, 202 U.S. 584 +(1906), 211, 1042 + +New York ex rel. New York Electric Lines Co. _v._ Squire, 145 U.S. 175 +(1892), 213 + +New York ex rel. New York & O. Gas Co. _v._ McCall, 245 U.S. 345 (1917), +1011 + +New York ex rel. Rogers _v._ Graves, 299 U.S. 401 (1937), 731 + +New York ex rel. Whitman _v._ Wilson, 318 U.S. 688 (1943), 1125 + +New York ex rel. Woodhaven Gas Light Co. _v._ Public Service Commission, +269 U.S. 244 (1925), 1011 + +New York Indians, The, 5 Wall. 761 (1867), 432, 735 + +New York Life Ins. Co. _v._ Cravens, 178 U.S. 389 (1900), 120, 680 + +New York L. Ins. Co. _v._ Deer Lodge County, 231 U.S. 495 (1913), 120 + +New York L. Ins. Co. _v._ Dodge, 246 U.S. 375 (1918), 1022 + +New York Life Ins. Co. _v._ Head, 234 U.S. 149 (1914), 679 + +New York & N.E.R. Co. _v._ Bristol, 151 U.S. 556 (1894), 345, 1156 + +New York, N.H. & H.R. Co. _v._ New York, 165 U.S. 628 (1897), 222, 223, +1014 + +New York, P. & N. Teleg. Co. _v._ Dolan, 265 U.S. 96 (1924), 1039 + +New York Rapid Transit Co. _v._ City of New York, 303 U.S. 573 (1938), +347, 1148 + +New York State R. Co. _v._ Shuler, 265 U.S. 379 (1924), 990 + +New York Trust Co. _v._ Eisner, 256 U.S. 345 (1921), 320 + +Ng Fung Ho _v._ White, 259 U.S. 276 (1922), 853 + +Nicchia _v._ New York, 254 U.S. 228 (1920), 1037 + +Nichols _v._ Coolidge, 274 U.S. 531 (1927), 863 + +Nichols _v._ United States, 7 Wall. 122 (1869), 586 + +Nickel _v._ Cole, 256 U.S. 222 (1921), 1038 + +Nickey _v._ Mississippi, 292 U.S. 393 (1934), 1058 + +Nicol _v._ Ames, 173 U.S. 509 (1899), 320, 1191 + +Nielsen, Ex parte, 131 U.S. 176 (1889), 840 + +Nielsen _v._ Johnson, 279 U.S. 47 (1929), 416, 439 + +Niemotko _v._ Maryland, 340 U.S. 268 (1951), 768 + +Nigro _v._ United States, 276 U.S. 332 (1928), 111 + +Nippert _v._ Richmond, 327 U.S. 416 (1946), 191, 1079 + +Nishimura Ekiu _v._ United States, 142 U.S. 651 (1892), 452 + +Nixon _v._ Condon, 286 U.S. 73 (1932), 1142, 1164, 1185 + +Nixon _v._ Herndon, 273 U.S. 536 (1927), 1142, 1164, 1185 + +Noble _v._ Union River Logging R. Co., 147 U.S. 165 (1893), 501, 857 + +Noble State Bank _v._ Haskell, 219 U.S. 104 (1911), 983, 1020 + +Nogueira _v._ New York, N.H. & H.R. Co., 281 U.S. 128 (1930), 581, 582 + +Norfolk & S. Turnpike Co. _v._ Virginia, 225 U.S. 264 (1912), 1010 + +Norfolk & W.R. Co. _v._ Pendleton, 156 U.S. 667 (1895), 347 + +Norfolk & W.R. Co. _v._ Pennsylvania, 136 U.S. 114 (1890), 195 + +Norfolk & W.R. Co. _v._ Sims, 191 U.S. 441 (1903), 187 + +Norman _v._ Baltimore & O.R. Co., 294 U.S. 240 (1935), 266, 310, 856 + +Norris _v._ Alabama, 294 U.S. 587 (1935), 1098 + +North American Cold Storage Co. _v._ Chicago, 211 U.S. 306 (1908), 1030, +1087 + +North American Co. _v._ S.E.C., 327 U.S. 686 (1946), 151 + +North Carolina _v._ Temple, 134 U.S. 22 (1890), 933 + +North Carolina _v._ United States, 325 U.S. 507 (1945), 137 + +North Laramie Land Co. _v._ Hoffman, 268 U.S. 276 (1925), 1069 + +North Pacific S.S. Co. _v._ Hall Brothers M.R. & S. Co., 249 U.S. 119 +(1919), 574 + +Northern Assur. Co. _v._ Grand View Bldg. Asso., 203 U.S. 106 (1906), +685 + +Northern Coal & Dock Co. _v._ Strand, 278 U.S. 142 (1928), 582 + +Northern Pac. R.R. _v._ Babcock, 154 U.S. 190 (1894), 677 + +Northern Pac. R. Co. _v._ Minnesota, 208 U.S. 583 (1908), 345 + +Northern P.R. Co. _v._ Myers, 172 U.S. 589 (1899), 732 + +Northern P.R. Co. _v._ North Dakota, 250 U.S. 135 (1919), 280 + +Northern Securities Co. _v._ United States, 193 U.S. 197 (1904), 147, +166, 920, 981 + +Northern Transp. Co. _v._ Chicago, 99 U.S. 635 (1879), 229, 1068 + +Northwest Airlines _v._ Minnesota, 322 U.S. 292 (1944), 210, 211, 1052 + +Northwestern Bell Teleph. Co. _v._ Nebraska State R. Com., 297 U.S. 471 +(1936), 232 + +Northwestern Electric Co. _v._ Federal Power Commission, 321 U.S. 119 +(1944), 860, 921 + +Northwestern Laundry Co. _v._ Des Moines, 239 U.S. 486 (1916), 1028 + +Northwestern Mutual L. Ins. Co. _v._ Wisconsin, 247 U.S. 132 (1918), +1148 + +Northwestern Mutual L. Ins. Co. _v._ Wisconsin, 275 U.S. 136 (1927), 730 + +Northwestern Nat. L. Ins. Co. _v._ Riggs, 203 U.S. 243 (1906), 809, 981, +1023 + +Northwestern Union Packet Co. _v._ St. Louis, 100 U.S. 423 (1880), 366 + +Norton Co. _v._ Dept. of Revenue, 340 U.S. 534 (1951), 192 + +Nortz _v._ United States, 294 U.S. 317 (1935), 266 + +Nutting _v._ Massachusetts, 185 U.S. 553 (1902), 1021 + +Nye _v._ United States, 313 U.S. 33 (1941), 517, 784 + + +O + +O'Brien _v._ Miller, 168 U.S. 287 (1897), 574 + +Oceanic Steam Nav. Co. _v._ Stranahan, 214 U.S. 320 (1909), 852, 878 + +Ochoa _v._ Hernandez Y Morales, 230 U.S. 139 (1913), 856 + +Octavia, The, 1 Wheat. 20 (1816), 573 + +O'Donnell _v._ Great Lakes Dredge & Dock Co., 318 U.S. 36 (1943), 130, +583 + +O'Donoghue _v._ United States, 289 U.S. 516 (1933), 303, 305, 531, 537 + +Oetjen _v._ Central Leather Co., 246 U.S. 297 (1918), 439, 473, 474 + +Offield _v._ New York, N.H. & H.R. Co., 203 U.S. 372 (1906), 1063 + +Ogden _v._ Saunders, 12 Wheat. 213 (1827), 264, 265, 334, 353, 563 + +Ogden _v._ Witherspoon, 18 Fed. Cas. No. 10, 461 (1802), 560 + +O'Gorman & Young _v._ Hartford F. Ins. Co., 282 U.S. 251 (1931) 996, +1021 + +Ohio _v._ Chattanooga Boiler & Tank Co., 289 U.S. 439 (1933), 655 + +Ohio _v._ Helvering, 292 U.S. 360 (1934), 107 + +Ohio _v._ Thomas, 173 U.S. 276 (1899), 633, 724 + +Ohio ex rel. Bryant _v._ Akron Metropolitan Park Dist., 281 U.S. 74 +(1930), 704, 705, 1072, 1166 + +Ohio ex rel. Clarke _v._ Deckebach, 274 U.S. 392 (1927), 1158 + +Ohio ex rel. Davis _v._ Hildebrant, 241 U.S. 565 (1916), 93, 705 + +Ohio ex rel. Lloyd _v._ Dollison, 194 U.S. 445 (1904), 1155 + +Ohio ex rel. Popovici _v._ Agler, 280 U.S. 379 (1930), 571, 613 + +Ohio Life Insurance Co. _v._ Debolt, 16 How. 416 (1854), 330 + +Ohio Oil Co. _v._ Conway, 281 U.S. 146 (1930), 1148 + +Ohio Oil Co. _v._ Indiana (No. 1), 177 U.S. 190 (1900), 1025 + +Ohio Tax Cases, 232 U.S. 576 (1914), 1148 + +Ohio Valley Water Company _v._ Ben Avon Borough, 253 U.S. 287 (1920), +1003 + +Okanogan Indians _v._ United States, 279 U.S. 655 (1929), 103 + +Oklahoma _v._ Atchison, Topeka & Santa Fe R. Co., 220 U.S. 277 (1911), +594, 596, 597, 598 + +Oklahoma _v._ Atkinson Co., 313 U.S. 508 (1941), 865, 868, 920 + +Oklahoma _v._ Kansas Natural Gas Co., 221 U.S. 229 (1911), 243, 245, +1025 + +Oklahoma _v._ Texas, 258 U.S. 574 (1922), 703 + +Oklahoma _v._ United States Civil Service Commission, 330 U.S. 127 +(1947), 116, 794, 920 + +Oklahoma ex rel. Johnson _v._ Cook, 304 U.S. 387 (1938), 594, 596, 597 + +Oklahoma ex rel. Phillips _v._ Atkinson Co., 313 U.S. 508 (1941), 132 + +Oklahoma Gas Co. _v._ Packing Co., 292 U.S. 386 (1934), 631 + +Oklahoma Packing Co. _v._ Oklahoma Gas and Electric Co., 309 U.S. 4 +(1940), 524 + +Oklahoma Press Publishing Co. _v._ Walling, 327 U.S. 186 (1946), 521, +793, 826, 827, 828, 844 + +Oklahoma Tax Comm'n. _v._ Barnsdall Refiners, 296 U.S. 521 (1936), 734 + +Oklahoma Tax Comm'n. _v._ Texas Co., 336 U.S. 342 (1949), 734 + +Olcott _v._ Fond du Lac County, 16 Wall. 678 (1873), 331 + +Old Colony Trust Co. _v._ Commissioner of Internal Revenue, 279 U.S. 716 +(1920), 534 + +Old Colony Trust Co. _v._ Seattle, 271 U.S. 426 (1926), 934 + +Old Dearborn Distributing Co. _v._ Seagram-Distillers Corp., 299 U.S. +183 (1936), 1018 + +Old Dominion Land Co. _v._ United States, 269 U.S. 55 (1925), 866, 867 + +Old Dominion S.S. Co. _v._ Gilmore (The "Hamilton"), 207 U.S. 398 +(1907), 130, 575, 579 + +Old Dominion S.S. Co. _v._ Virginia, 198 U.S. 299 (1905), 210, 1052 + +Old Wayne Life Assn. _v._ McDonough, 204 U.S. 8 (1907), 659, 1076 + +Olin _v._ Kitzmiller, 259 U.S. 260 (1922), 370 + +Oliver Iron Company _v._ Lord, 262 U.S. 172 (1923), 120, 181 + +Oliver, In re, 333 U.S. 257 (1948), 1130 + +Olmstead _v._ United States, 277 U.S. 438 (1928), 824 + +Olmsted _v._ Olmsted, 216 U.S. 386 (1910), 673 + +Olsen _v._ Nebraska, 313 U.S. 236 (1941), 997, 1023 + +Olsen _v._ Smith, 195 U.S. 332 (1904), 1024 + +Olson _v._ United States, 292 U.S. 246 (1934), 870 + +Omaechevarria _v._ Idaho, 246 U.S. 343 (1918), 1154 + +O'Malley _v._ Woodrough, 307 U.S. 277 (1939), 106, 530 + +Omnia Commercial Co. _v._ United States, 261 U.S. 502 (1923), 867 + +O'Neil _v._ Vermont, 144 U.S. 323 (1892), 752, 904 + +O'Neill _v._ Leamer, 239 U.S. 244 (1915), 705 + +Ontario Land Co. _v._ Yordy, 212 U.S. 152 (1909), 1060 + +Opp Cotton Mills _v._ Administrator, 312 U.S. 126 (1941), 75, 81, 849 + +Order of Travelers _v._ Wolfe, 331 U.S. 586 (1947), 679 + +Oregon _v._ Hitchcock, 202 U.S. 60 (1906), 588, 590 + +Oregon & C.R. Co. _v._ United States, 243 U.S. 549 (1917), 857 + +Oregon Short Line & Utah N. Ry. Co. _v._ Skottowe, 162 U.S. 490 (1896), +567 + +Oregon-Washington R. & Nav. Co. _v._ Washington, 270 U.S. 87 (1926), 249 + +Orient Ins. Co. _v._ Board of Assessors, 221 U.S. 358 (1911), 1056 + +Orient Ins. Co. _v._ Daggs, 172 U.S. 557 (1899), 965, 1022, 1145 + +Orleans, The, _v._ Phoebus, 11 Pet. 175 (1837), 578 + +Orr _v._ Gilman, 183 U.S. 278 (1902), 327, 1038 + +Orr _v._ Hodgson, 4 Wheat. 458 (1819), 416 + +Orton _v._ Smith, 18 How. 263 (1856), 627, 628 + +Osborn _v._ Bank of the United States, 9 Wheat. 738 (1824), 257, 267, +309, 538, 561, 568, 629, 728, 730, 929, 931 + +Osborn _v._ Ozlin, 310 U.S. 53 (1940), 1021 + +Osborne _v._ Florida, 164 U.S. 650 (1897), 196 + +Osborne _v._ Mobile, 16 Wall. 479 (1873), 366 + +Oshkosh Waterworks Co. _v._ Oshkosh, 187 U.S. 437 (1903), 355 + +Osman _v._ Douds, 339 U.S. 846 (1950), 795 + +Osterman _v._ Baldwin, 6 Wall. 116 (1867), 257 + +Otis _v._ Parker, 187 U.S. 606 (1903), 1019, 1156 + +Otis Co. _v._ Ludlow Mfg. Co., 201 U.S. 140 (1906), 1066 + +Ott _v._ Mississippi Barge Line Co., 336 U.S. 169 (1949), 210 + +Ouachita Packet Co. _v._ Aiken, 121 U.S. 444 (1887), 231, 366 + +Overnight Motor Co. _v._ Missel, 316 U.S. 572 (1942), 157 + +Overstreet _v._ North Shore Corp., 318 U.S. 125 (1943), 157 + +Owensboro Nat. Bank _v._ Owensboro, 173 U.S. 664 (1899), 734 + +Owings _v._ Speed, 5 Wheat. 420 (1820), 743 + +Ownbey _v._ Morgan, 256 U.S. 94 (1921),1089, 1091 + +Oyama _v._ California, 332 U.S. 633 (1948), 417, 968, 1157 + +Ozan Lumber Co. _v._ Union County Nat. Bank, 207 U.S. 251 (1907), 276 + +Ozark Pipe Line _v._ Monier, 266 U.S. 555 (1925), 194 + + +P + +Pace _v._ Alabama, 106 U.S. 583 (1883), 1161 + +Pace _v._ Burgess, 92 U.S. 372 (1876), 322 + +Pacific Coast Dairy _v._ Dept. of Agriculture, 318 U.S. 285 (1943), 305, +726 + +Pacific Gas & Electric Co. _v._ Police Court, 251 U.S. 22 (1919), 1011, +1156 + +Pacific Ins. _v._ Comm'n., 306 U.S. 493 (1939), 682 + +Pacific Ins. Co. _v._ Soule, 7 Wall. 433 (1869), 319 + +Pacific Railroad Removal Cases (Union P.R. Co. _v._ Myers), 115 U.S. 1 +(1885), 310, 568 + +Pacific Railway Cases, 127 U.S. 1 (1888), 114 + +Pacific Railway Commission, In re, 32 Fed. 241 (1887), 539 + +Pacific R. Co. _v._ Maguire, 20 Wall. 36 (1874), 342 + +Pacific States Box & Basket Co. _v._ White, 296 U.S. 176 (1935), 1019, +1085, 1160 + +Pacific States Telephone & Telegraph Co. _v._ Oregon, 223 U.S. 118 +(1912), 548, 705 + +Pacific Steam Whaling Co. _v._ United States, 187 U.S. 447 (1903), 621 + +Pacific Telephone & Telegraph Co. _v._ Gallagher, 306 U.S. 182 (1939), +186 + +Pacific Teleph. & Teleg. Co. _v._ Tax Commission, 297 U.S. 403 (1936), +126, 136, 197 + +Packard _v._ Banton, 264 U.S. 140 (1924), 1033, 1155 + +Packer Corp. _v._ Utah, 285 U.S. 105 (1932), 1024, 1153 + +Packet Co. _v._ Keokuk, 95 U.S. 80 (1877), 210, 231 + +Paddell _v._ New York, 211 U.S. 446 (1908), 1040 + +Page (Miller) _v._ United States, 11 Wall. 268 (1871), 865 + +Page _v._ United States, 127 U.S. 67 (1888), 99 + +Paine Lumber Co. _v._ Neal, 244 U.S. 459 (1917), 524 + +Palko _v._ Connecticut, 302 U.S. 319 (1937), 791, 971, 1098, 1112, 1116, +1122, 1135, 1136 + +Palmer _v._ Ashe, 342 U.S. 134 (1951), 1107 + +Palmer _v._ Barrett, 162 U.S. 399 (1896), 306 + +Palmer _v._ McMahon, 133 U.S. 660 (1890), 1062, 1071 + +Palmetto F. Ins. Co. _v._ Connecticut, 272 U.S. 295 (1926), 1056 + +Panama R. Co. _v._ Johnson, 264 U.S. 375 (1924), 854 + +Panama Refining Co. _v._ Ryan, 293 U.S. 388 (1935), 76, 80, 81, 380 + +Panhandle Co. _v._ Michigan Comm'n., 341 U.S. 329 (1951), 234 + +Panhandle Eastern Pipe Line Co. _v._ Public Serv. Commission of Indiana, +332 U.S. 507 (1947), 234, 250 + +Panhandle Eastern Pipe Line Co. _v._ State Highway Commission, 294 U.S. +613 (1935), 983, 1010 + +Panhandle Oil Co. _v._ Knox, 277 U.S. 218 (1928), 731 + +Paquete Habana, The, 175 U.S. 677 (1900), 296 + +Paramino Lumber Co. _v._ Marshall, 309 U.S. 370 (1940), 311, 856 + +Parker _v._ Brown, 317 U.S. 341 (1943), 177, 218, 219, 250 + +Parker _v._ Motor Boat Sales, 314 U.S. 244 (1941), 582 + +Parkersburg & O. Transp. Co. _v._ Parkersburg, 107 U.S. 691 (1883), 127, +231, 366 + +Parkinson _v._ United States, 121 U.S. 281 (1887), 838 + +Parsons _v._ Armor, 3 Pet. 413 (1830), 897 + +Parsons _v._ Bedford, 3 Pet. 433 (1830), 891, 893 + +Parsons _v._ District of Columbia, 170 U.S. 45 (1898), 848 + +Parsons _v._ United States, 167 U.S. 324 (1897), 460 + +Passaic Bridges, The, 3 Wall. 782 (1866), 122 + +Passavant _v._ United States, 148 U.S. 214 (1893), 849 + +Passenger Cases, 7 How. 283 (1849), 122 + +Patapsco Guano Co. _v._ Board of Agriculture, 171 U.S. 345 (1898), 183, +238, 365 + +Patent Clothing Co. _v._ Glover, 141 U.S. 560 (1891), 273 + +Paterno _v._ Lyons, 334 U.S. 314 (1948), 1133 + +Patsone _v._ Pennsylvania, 232 U.S. 138 (1914), 1158 + +Patterson _v._ Colorado, 205 U.S. 454 (1907), 752, 771, 774, 784, 1141 + +Patterson _v._ The "Eudora," 190 U.S. 169 (1903), 855 + +Patterson _v._ Kentucky, 97 U.S. 501 (1879), 122, 276 + +Patton _v._ Brady, 184 U.S. 608 (1902), 320, 864, 1191 + +Patton _v._ Mississippi, 332 U.S. 463 (1947), 1168 + +Patton _v._ United States, 281 U.S. 276 (1930), 879 + +Paul _v._ Virginia, 8 Wall. 168 (1869), 120, 193, 198, 361, 689, 965 + +Paulsen _v._ Portland, 149 U.S. 30 (1893), 1059, 1085 + +Pawhuska _v._ Pawhuska Oil Co., 250 U.S. 394 (1919), 982 + +Pawlet _v._ Clark, 9 Cr. 292 (1815), 609 + +Payne _v._ Kansas, 248 U.S. 112 (1918), 1148 + +Peabody _v._ Eisner, 247 U.S. 347 (1918), 1193 + +Peabody _v._ United States, 231 U.S. 530 (1913), 586, 867 + +Pearson _v._ McGraw, 308 U.S. 313 (1939), 1048 + +Pearson _v._ Yewdall, 95 U.S. 294 (1877), 892 + +Pease _v._ Peck, 18 How. 595 (1856), 604 + +Pease _v._ Rathbun-Jones Eng. Co., 243 U.S. 273 (1917), 893 + +Peck _v._ Jenness, 7 How. 612 (1849), 627, 628 + +Peck & Co. _v._ Lowe, 247 U.S. 165 (1918), 321 + +Pedersen _v._ Delaware L. & W.R. Co., 229 U.S. 146 (1913), 141 + +Peete _v._ Morgan, 19 Wall. 581 (1874), 366 + +Peggy, The. _See_ United States _v._ Schooner Peggy. + +Peik _v._ Chicago & Northwestern R. Co., 94 U.S. 164 (1877), 220, 998, +1143 + +Penfield Co. _v._ Securities & Exchange Commission, 330 U.S. 585 (1947), +521 + +Penhallow _v._ Doane, 3 Dall. 54 (1795), 73, 280 + +Penn Dairies _v._ Milk Control Comm'n., 318 U.S. 261 (1943), 726 + +Pennekamp _v._ Florida, 328 U.S. 331 (1946), 784, 789 + +Pennie _v._ Reis, 132 U.S. 464 (1889), 982 + +Pennington _v._ Fourth Nat. Bank, 243 U.S. 269 (1917), 1072, 1081 + +Pennington _v._ Gibson, 16 How. 65 (1854), 684 + +Pennock _v._ Dialogue, 2 Pet. 1 (1829), 271 + +Pennoyer _v._ McConnaughy, 140 U.S. 1 (1891), 931, 932, 933 + +Pennoyer _v._ Neff, 95 U.S. 714 (1878), 659, 1072, 1073, 1080, 1081 + +Pennsylvania _v._ Quicksilver Min. Co., 10 Wall. 553 (1871), 596, 597 + +Pennsylvania _v._ West Virginia, 262 U.S. 553 (1923), 138, 218, 243, +593 + +Pennsylvania _v._ Wheeling Bridge Co., 13 How. 518 (1852), 126, 127, +214, 545 + +Pennsylvania _v._ Wheeling & B. Bridge Co., 18 How. 421 (1856), 120, +214, 322, 369, 370 + +Pennsylvania Coal Co. _v._ Mahon, 260 U.S. 393 (1922), 983, 1026, 1065, +1068 + +Pennsylvania College Cases, 13 Wall. 190 (1872), 343, 344 + +Pennsylvania ex rel. Sullivan _v._ Ashe, 302 U.S. 51 (1937), 1161 + +Pennsylvania F. Ins. Co. _v._ Gold Issue Min. & Mill. Co., 243 U.S. 93 +(1917), 676, 1076 + +Pennsylvania Hospital _v._ Philadelphia, 245 U.S. 20 (1917), 350, 352, +1063 + +Pennsylvania Natural Gas Co. _v._ Public Serv. Com., 252 U.S. 23 (1920), +233 + +Pennsylvania R. Co. _v._ Illinois Brick Co., 297 U.S. 447 (1936), 220 + +Pensacola Teleg. Co. _v._ Western U. Teleg. Co., 96 U.S. 1 (1878), 120, +125, 133, 193, 232, 270 + +Peonage Cases, 123 F. 671 (1903), 951 + +People _v._ Board of Supervisors, 7 Wall. 26 (1869), 729 + +People _v._ Croswell, 3 Johns (N.Y.) 337 (1804), 771 + +Peoples Natural Gas Co. _v._ Public Serv. Com., 270 U.S. 550 (1926), 234 + +Pep Boys, The _v._ Pyroil Sales Co., 299 U.S. 198 (1936), 1018 + +Perkins _v._ Benguet Mining Co., 342 U.S. 437 (1952), 1080 + +Perkins _v._ Elg, 307 U.S. 325 (1939), 258, 552, 964 + +Perkins, Secretary of Labor _v._ Lukens Steel Co., 310 U.S. 113 (1940), +589 + +Perley _v._ North Carolina, 249 U.S. 510 (1919), 1030 + +Perlman _v._ United States, 247 U.S. 7 (1918), 827 + +Permoli _v._ New Orleans, 3 How. 589 (1845), 698, 699, 751 + +Perrin _v._ United States, 232 U.S. 478 (1914), 253 + +Perry _v._ Haines, 191 U.S. 17 (1903), 578 + +Perry _v._ United States, 294 U.S. 330 (1935), 118, 267, 362, 857, 1174 + +Pervear _v._ Massachusetts, 5 Wall. 475 (1867), 364, 751 + +Petersen Baking Co. _v._ Bryan, 290 U.S. 570 (1934), 1019 + +Peterson, Ex parte, 253 U.S. 300 (1920), 512, 527, 892, 894 + +Petit _v._ Minnesota, 177 U.S. 164 (1900), 1031, 1154 + +Pettibone _v._ Nichols, 203 U.S. 192 (1906), 695, 696 + +Peyroux _v._ Howard, 7 Pet. 324 (1833), 577 + +Phalen _v._ Virginia, 8 How. 163 (1850), 358 + +Phelps _v._ Board of Education, 300 U.S. 319 (1937), 341, 1146 + +Phelps _v._ United States, 274 U.S. 341 (1927), 872 + +Phelps Dodge Corp. _v._ National Labor Relations Bd., 313 U.S. 177 +(1941), 854 + +Philadelphia, B. & W.R. Co. _v._ Schubert, 224 U.S. 603 (1912), 855 + +Philadelphia Co. _v._ Stimson, 223 U.S. 605 (1912), 501, 588, 590, 855 + +Philadelphia & Reading Ry. Co. _v._ McKibbin, 243 U.S. 264 (1917), 1075 + +Philadelphia & R.R. _v._ Pennsylvania, 15 Wall. 232 (1873), 180, 193, +198, 200 + +Philadelphia & S. Mail S.S. Co. _v._ Pennsylvania, 122 U.S. 326 (1887), +200, 204, 366 + +Phillips _v._ Comr. of Internal Revenue, 283 U.S. 589 (1931), 110, 849 + +Phillips _v._ Dime Trust & Safe Deposit Co., 284 U.S. 160 (1931), 320 + +Phillips _v._ Payne, 92 U.S. 130 (1876), 301 + +Phillips _v._ United States, 312 U.S. 246 (1941), 631 + +Phillips Co. _v._ Walling, 324 U.S. 490 (1945), 157 + +Phillips Petroleum Co. _v._ Jenkins, 297 U.S. 629 (1936), 344 + +Phillips Petroleum Co. _v._ Oklahoma, ibid., 190 (1950), 1026 + +Phipps _v._ Cleveland Refining Co., 261 U.S. 449 (1923), 184 + +Phoenix F. & M. Insurance Co. _v._ Tennessee, 161 U.S. 174 (1896), 347 + +Picard _v._ East Tennessee Virginia & Georgia R. Co., 130 U.S. 637 +(1889), 347 + +Pickard _v._ Pullman Southern Car Co., 117 U.S. 34 (1886), 202 + +Pierce _v._ Carskadon, 16 Wall. 234 (1873), 327, 328 + +Pierce _v._ Creecy, 210 U.S. 387 (1908), 695 + +Pierce _v._ Society of Sisters, 268 U.S. 510 (1925), 765, 981, 984 + +Pierce _v._ United States, 160 U.S. 355 (1896), 843 + +Pierce _v._ United States, 252 U.S. 239 (1920), 775, 794 + +Pierce Oil Corp. _v._ Hope, 248 U.S. 498 (1919), 1029 + +Pierce Oil Corp. _v._ Hopkins, 264 U.S. 137 (1924), 1061 + +Pierce Oil Corp. _v._ Phoenix Ref. Co., 259 U.S. 125 (1922), 1009 + +Pierre _v._ Louisiana, 306 U.S. 354 (1939), 1098, 1168 + +Pietro Campanella, The, 73 F. Supp. 18 (1947), 1174 + +Pink _v._ A.A.A. Highway Express, 314 U.S. 201 (1941), 680 + +Pinkerton _v._ United States, 328 U.S. 640 (1946), 840 + +Pipe Line Cases. _See_ United States _v._ Ohio Oil Co. + +Piqua Branch of the State Bank _v._ Knoop, 16 How. 369 (1854), 342 + +Pitney _v._ Washington, 240 U.S. 387 (1916), 184, 1019 + +Pittman _v._ Home Owners' Loan Corp., 308 U.S. 21 (1939), 309, 733 + +Pittsburgh, C.C. & St. L.R. Co. _v._ Backus, 154 U.S. 421 (1894), 201, +1053, 1058, 1140 + +Pittsburgh, C.C. & St. L.R. Co. _v._ Board of Public Works, 172 U.S. 32 +(1898), 1058 + +Pittsburgh & S. Coal Co. _v._ Bates, 156 U.S. 577 (1895), 124, 183 + +Pizitz Dry Goods Co. _v._ Yeldell, 274 U.S. 112 (1927), 1092 + +Plaquemines Tropical Fruit Co. _v._ Henderson, 170 U.S. 511 (1898), 620 + +Pleasants _v._ Fant, 22 Wall. 116 (1875), 896 + +Plessy _v._ Ferguson, 163 U.S. 537 (1896), 952, 1162 + +Plumley _v._ Massachusetts, 155 U.S. 461 (1894), 239, 241 + +Plummer _v._ Coler, 178 U.S. 115 (1900), 730 + +Plymouth Coal Co. _v._ Pennsylvania, 232 U.S. 531 (1914), 987 + +Poe _v._ Seaborn, 282 U.S. 101 (1930), 110 + +Poindexter _v._ Greenhow, 114 U.S. 270 (1885), 326, 356, 931, 933 + +Polish Alliance _v._ Labor Board, 322 U.S. 643 (1944), 173 + +Polk _v._ Mutual Reserve Fund Life Association, 207 U.S. 310 (1907), +1023 + +Pollard _v._ Hagan, 3 How. 212 (1845), 130, 698, 699, 700 + +Pollock _v._ Farmers' Loan & Trust Co., 157 U.S. 429 (1895), 106, 317, +541, 565, 1191-1193 + +Pollock _v._ Farmers' Loan & Trust Co., 158 U.S. 601 (1895), 319, 565, +1191-1193 + +Pollock _v._ Williams, 322 U.S. 4 (1944), 951 + +Ponzi _v._ Fessenden, 258 U.S. 254 (1922), 634 + +Poole _v._ Fleeger, 11 Pet. 185 (1837), 367, 370 + +Pope Mfg. Co. _v._ Gormully Mfg. Co., 144 U.S. 238 (1892), 273 + +Pope _v._ United States, 323 U.S. 1 (1944), 117, 311, 536 + +Pope _v._ Williams, 193 U.S. 621 (1904), 971, 1165 + +Poresky, Ex parte, 290 U.S. 30 (1933), 1033 + +Portland Railway, Light & Power Co. _v._ Railroad Com. of Oregon, 229 +U.S. 397 (1913), 358 + +Port Richmond & Bergen Point Ferry Co. _v._ Bd. of Chosen Freeholders, +234 U.S. 317 (1914), 231 + +Portsmouth Harbor Land & Hotel Co. _v._ United States, 250 U.S. 1 +(1919), 867 + +Portsmouth Harbor Land & Hotel Co. _v._ United States, 260 U.S. 327 +(1922), 496, 867, 1065, 1068 + +Postal Teleg. Cable Co. _v._ Adams, 155 U.S. 688 (1895), 203 + +Postal Teleg. Cable Co. _v._ New Hope, 192 U.S. 55 (1904), 214 + +Postal Teleg. Cable Co. _v._ Newport, 247 U.S. 464 (1918), 1088 + +Postal Teleg. Cable Co. _v._ Richmond, 249 U.S. 252 (1919), 232 + +Postal Teleg. Cable Co. _v._ Taylor, 192 U.S. 64 (1904), 214 + +Postum Cereal Co. _v._ California Fig Nut Co., 272 U.S. 693 (1927), 514, +536, 623 + +Potter _v._ United States, 155 U.S. 438 (1894), 884 + +Potts _v._ Creager, 155 U.S. 597 (1895), 273 + +Pound _v._ Turck, 95 U.S. 459 (1878), 231 + +Powell _v._ Alabama, 287 U.S. 45 (1932), 1098, 1099, 1101, 1108, 1133 + +Powell _v._ Pennsylvania, 127 U.S. 678 (1888), 976, 977, 1030 + +Power Comm'n. _v._ Pipeline Co., 315 U.S. 575 (1942), 998, 1007, 1008 + +Power Mfg. Co. _v._ Saunders, 274 U.S. 490 (1927), 1167 + +Prentis _v._ Atlantic Coast Line Co., 211 U.S. 210 (1908), 631, 1009 + +Presser _v._ Illinois, 116 U.S. 252 (1886), 366, 813, 971 + +Preston _v._ Manard, 116 U.S. 661 (1886), 273 + +Price _v._ Illinois, 238 U.S. 446 (1915), 1031, 1154 + +Price _v._ Johnston, 334 U.S. 266 (1948), 313, 315 + +Price _v._ Pennsylvania R. Co., 113 U.S. 218 (1885), 270 + +Prigg _v._ Pennsylvania, 16 Pet. 539 (1842), 72, 73, 427, 636, 637, 694, +696, 737 + +Prince _v._ Massachusetts, 321 U.S. 158 (1944), 563, 768 + +Princess Lida of Thurn & Taxis _v._ Thompson, 305 U.S. 456 (1939), 627 + +Principality of Monaco _v._ Mississippi, 292 U.S. 313 (1934), 609 + +Prize Cases, The, 2 Black 635 (1863), 283, 390 + +Propper _v._ Clark, 337 U.S. 472 (1949), 627 + +Prosser _v._ Northern P.R. Co., 152 U.S. 59 (1894), 231 + +Prout _v._ Starr, 188 U.S. 537 (1903), 629, 931 + +Providence Bank _v._ Billings, 4 Pet. 514 (1830), 339, 345, 563 + +Providence & N.Y.S.S. Co. _v._ Hill Mfg. Co., 109 U.S. 578 (1883), 130 + +Provident Inst. for Savings _v._ Malone, 221 U.S. 660 (1911), 1020 + +Provident Inst. for Savings _v._ Massachusetts, 6 Wall. 611 (1868), 730 + +Provident Sav. Life Assur. Soc. _v._ Kentucky, 239 U.S. 103 (1915), 1055 + +Provo Bench Canal & Irrig. Co. _v._ Tanner, 239 U.S. 323 (1915), 1066 + +Prudential Ins. Co. _v._ Cheek, 259 U.S. 530 (1922), 771, 992, 1158 + +Prudential Insurance Co. _v._ Benjamin, 328 U.S. 408 (1946), 127, 176, +198, 214 + +Public Bank, Ex Parte, 278 U.S. 101 (1928), 631 + +Public Clearing House _v._ Coyne, 194 U.S. 497 (1904), 269, 805, 847, +859 + +Public Service Co. _v._ Corboy, 250 U.S. 153 (1919), 931 + +Public Utilities Com. _v._ Attleboro Steam & Electric Co., 273 U.S. 83 +(1927), 138, 233 + +Public Utilities Com. _v._ Landon, 249 U.S. 236 (1919), 233 + +Public Utilities Commission _v._ Pollak, 343 U.S. 451 (1952), 785 + +Public Utility Commissioners _v._ New York Telegh. Co., 271 U.S. 23 +(1926), 1008 + +Public Utility Comrs. _v._ Ynchausti & Co., 251 U.S. 401 (1920), 846 + +Puget Sound Power & Light Co. _v._ Seattle, 291 U.S. 619 (1934), 1039, +1148, 1149 + +Puget Sound Stevedoring Co. _v._ Tax Commission of Washington, 302 U.S. +90 (1937), 195, 204, 207 + +Puget Sound Traction, Light & P. Co. _v._ Reynolds, 244 U.S. 574 (1917), +349 + +Pullman Co. _v._ Adams, 189 U.S. 420 (1903), 196 + +Pullman Co. _v._ Kansas ex rel. Coleman, 216 U.S. 56 (1910), 196 + +Pullman Co. _v._ Knott, 235 U.S. 23 (1914), 1061 + +Pullman Co. _v._ Richardson, 261 U.S. 330 (1923), 200 + +Pullman's Palace Car Co. _v._ Pennsylvania, 141 U.S. 18 (1891), 199, +201, 211, 1052 + +Pumpelly _v._ Green Bay Company, 13 Wall. 166 (1872), 1065, 1068 + +Pure Oil Co. _v._ Minnesota, 248 U.S. 158 (1918), 214, 238 + +Purity Extract & Tonic Co. _v._ Lynch, 226 U.S. 192 (1912), 1032 + +Pyle _v._ Kansas, 317 U.S. 213 (1942), 1125, 1126 + + +Q + +Quackenbush _v._ United States, 177 U.S. 20 (1900), 460 + +Quaker City Cab Co. _v._ Pennsylvania, 277 U.S. 389 (1928), 1149 + +Quarles, In re, 158 U.S. 532 (1895), 309, 967 + +Queenside Hills Realty Co. _v._ Saxl, 328 U.S. 80 (1946), 1029, 1155 + +Quick Bear _v._ Leupp, 210 U.S. 50 (1908), 764 + +Quicksall _v._ Michigan, 339 U.S. 660 (1950), 1107 + +Quirin, Ex parte, 317 U.S. 1 (1942), 286, 401, 404, 838 + +Quong Wing _v._ Kirkendall, 223 U.S. 59 (1912), 1148, 1149 + +Quon Quon Poy _v._ Johnson, 273 U.S. 352 (1927), 846, 852 + + +R + +Radice _v._ New York, 264 U.S. 292 (1924), 1159 + +Radio Comm. _v._ Nelson Bros. Co., 289 U.S. 266 (1933), 788 + +Ragan _v._ Merchants Transfer & W. Co., 337 U.S. 530 (1949), 608 + +Rahrer, In re, 140 U.S. 545 (1891), 218, 219, 239 + +Rail & River Coal Co. _v._ Yaple, 236 U.S. 338 (1915), 988 + +Railroad Co. _v._ Georgia, 98 U.S. 359 (1879), 347 + +Railroad Co. _v._ Grant, 98 U.S. 398 (1879), 615 + +Railroad Co. _v._ Husen, 95 U.S. 465 (1878), 236 + +Railroad Co. _v._ McClure, 10 Wall. 511 (1871), 329 + +Railroad Co. _v._ Peniston, 18 Wall. 5 (1873), 200, 732 + +Railroad Commission _v._ Eastern Texas R. Co., 264 U.S. 79 (1924), 1011 + +Railroad Commission _v._ Oil Co., 310 U.S. 573 (1940), 1025 + +R.R. Commission _v._ Humble Oil & Refining Co., 311 U.S. 578 (1941), +1025 + +R.R. Commission _v._ Oil Co., 311 U.S. 570 (1941), 1025, 1071 + +R.R. Commission _v._ Pacific Gas Co., 302 U.S. 388 (1938), 1007 + +Railroad Retirement Board _v._ Alton R. Co., 295 U.S. 330 (1935), 142, +564, 862 + +Railroad Retirement Board _v._ Duquesne Warehouse Company, 326 U.S. 446 +(1946), 143 + +Railway Express Agency _v._ New York, 336 U.S. 106 (1949), 227, 564, +854, 1033, 1134 + +Railway Mail Assn. _v._ Corsi, 326 U.S. 88 (1945), 270, 993 + +Rainey _v._ United States, 232 U.S. 310 (1914), 102 + +Rakes _v._ United States, 212 U.S. 55 (1909), 309 + +Randall _v._ Baltimore & O.R. Co., 109 U.S. 478 (1883), 896 + +Rapier, In re, 143 U.S. 110 (1892), 167, 168 + +Rassmussen _v._ United States, 197 U.S. 516 (1905), 703, 877, 879 + +Rast _v._ Van Deman & Lewis, 240 U.S. 342 (1916), 184, 1019 + +Rathbun, Executor _v._ United States (Humphrey _v._ United States, 295 +U.S. 602 (1935)), 458 + +Ratterman _v._ Western Union Teleg. Co., 127 U.S. 411 (1888), 204, 207 + +Rawlins _v._ Georgia, 201 U.S. 638 (1906), 1111, 1169 + +Ray _v._ Blair, 343 U.S. 214 (1952), 386, 942-944 + +Raymond _v._ Chicago Union Traction Co., 207 U.S. 20 (1907), 1152 + +Reagan _v._ Farmers' Loan & Trust Co., 154 U.S. 362 (1894), 630, 931, +933, 999, 1001 + +Reagan _v._ Mercantile Trust Co., 154 U.S. 413 (1894), 725 + +Real Silk Hosiery Mills _v._ Portland, 268 U.S. 325 (1925), 187 + +Rearick _v._ Pennsylvania, 203 U.S. 507 (1906), 187 + +Reaves _v._ Ainsworth, 219 U.S. 296 (1911), 847 + +Reckendorfer _v._ Faber, 92 U.S. 347 (1876), 272, 273 + +Red "C" Oil Mfg. Co. _v._ Board of Agriculture, 222 U.S. 380 (1912), +183, 214 + +Red Cross Line _v._ Atlantic Fruit Co., 264 U.S. 109 (1924), 579 + +Red River Valley Nat. Bank _v._ Craig, 181 U.S. 548 (1901), 355 + +Reed, Ex parte, 100 U.S. 13 (1879), 847 + +Reed _v._ Director General of Railroads, 258 U.S. 92 (1922), 141 + +Rees _v._ Watertown, 19 Wall 107 (1874), 357, 1074 + +Reeside _v._ Walker, 11 How. 272 (1851), 324 + +Reetz _v._ Michigan, 188 U.S. 505 (1903), 328, 1024, 1138 + +Reggel, Ex parte, 114 U.S. 642 (1885), 695 + +Reichelderfer _v._ Quinn, 287 U.S. 315 (1932), 870 + +Reichert _v._ Felps, 6 Wall. 160 (1868), 421 + +Reid _v._ Colorado, 187 U.S. 137 (1902), 248 + +Reily _v._ Lamar, 2 Cr. 344 (1805), 302 + +Reiman, In re, 20 Fed. Cas. No. 11,673 (1874), 263 + +Reinecke _v._ Smith, 289 U.S. 172 (1933), 863, 864 + +Reinman _v._ Little Rock, 237 U.S. 171 (1915), 1028 + +Reitz _v._ Mealey, 314 U.S. 33 (1941), 265, 1033 + +Renaud _v._ Abbott, 116 U.S. 277 (1886), 659 + +Republic of Colombia, Ex parte, 195 U.S. 604 (1904), 610 + +Republic of Peru, Ex parte, 318 U.S. 578 (1943), 474 + +Rescue Army _v._ Municipal Court of Los Angeles, 331 U.S. 549 (1947), +562 + +Respublica _v._ Oswald, 1 Dall. 319 (1788), 771 + +Reynolds _v._ Crawfordsville First Nat. Bank, 112 U.S. 405 (1884), 895 + +Reynolds _v._ Stockton, 140 U.S. 254 (1891), 659, 678 + +Reynolds _v._ United States, 98 U.S. 145 (1879), 704, 759, 766, 877, +880, 884 + +Rhode Island _v._ Massachusetts, 12 Pet. 657 (1838), 311, 370, 592, 593, +612, 618 + +Rhode Island _v._ Palmer, 253 U.S. 350 (1920), 712 + +Rhode Island Hospital Trust Co. _v._ Doughton, 270 U.S. 69 (1926), 1046 + +Rhodes _v._ Iowa, 170 U.S. 412 (1898), 239 + +Ribnik _v._ McBride, 277 U.S. 350 (1928), 997 + +Ricaud _v._ American Metal Co., 246 U.S. 304 (1918), 474 + +Rice _v._ Chicago Board of Trade, 331 U.S. 247 (1947), 250 + +Rice _v._ Elmore, 165 F. (2d) 387 (1947), 1185 + +Rice _v._ Elmore, 333 U.S. 875 (1948), 1185 + +Rice _v._ M. & N.W.R. Co., 1 Bl. 358 (1862), 619 + +Rice _v._ Olson, 324 U.S. 786 (1945), 1102, 1103, 1108 + +Rice _v._ Rice, 336 U.S. 674 (1949), 669 + +Rice _v._ Santa Fe Elevator Corp., 331 U.S. 218 (1947), 251, 724 + +Richards _v._ Washington Terminal Co., 233 U.S. 546 (1914), 867 + +Richfield Oil Corp. _v._ State Board of Equalization, 329 U.S. 69 +(1946), 204 + +Richmond & A.R. Co. _v._ Patterson Tobacco Co., 169 U.S. 311 (1898), 223 + +Richmond, F. & P.R. Co. _v._ Richmond, 96 U.S. 521 (1878), 1014, 1156 + +Rickert Rice Mills _v._ Fontenot, 297 U.S. 110 (1936), 590 + +Riehle _v._ Margolies, 279 U.S. 218 (1929), 524, 627 + +Riggs _v._ Del Drago, 317 U.S. 95 (1942), 110 + +Riley _v._ Massachusetts, 232 U.S. 671 (1914), 986, 987 + +Riley _v._ New York Trust Company, 315 U.S. 343 (1942), 672 + +Rindge Co. _v._ Los Angeles County, 262 U.S. 700 (1923), 866, 1065 + +Ritchie _v._ McMullen, 159 U.S. 235 (1895), 685 + +Riverdale Cotton Mills _v._ Alabama & Georgia Mfg. Co., 198 U.S. 188 +(1905), 628, 660 + +Riverside Mills _v._ Menefee, 237 U.S. 189 (1915), 1074, 1077 + +Riverside Oil Co. _v._ Hitchcock, 190 U.S. 316 (1903), 501 + +Road Improv. Dist. _v._ Missouri P.R. Co., 274 U.S. 188 (1927), 1041, +1153 + +RoBards _v._ Lamb, 127 U.S. 58 (1888), 1082 + +Robbins _v._ Shelby County Taxing District, 120 U.S. 489 (1887), 186, +189, 191 + +Roberts _v._ New York, 295 U.S. 264 (1935), 1067 + +Roberts _v._ Reilly, 116 U.S. 80 (1885), 694, 695 + +Roberts _v._ Richland Irrig. Co., 289 U.S. 71 (1933), 1040 + +Robertson _v._ Baldwin, 165 U.S. 275 (1897), 636, 770, 774, 884, 952 + +Robertson _v._ Pickrell, 109 U.S. 608 (1883), 656, 673 + +Robertson _v._ California, 328 U.S. 440 (1946), 127 + +Robinson, Ex parte, 19 Wall. 505 (1874), 515 + +Roche _v._ McDonald, 275 U.S. 449 (1928), 655, 657 + +Rochester R. Co. _v._ Rochester, 205 U.S. 236 (1907), 347 + +Rochin _v._ California, 342 U.S. 165 (1952), 843, 1121, 1124 + +Rockefeller _v._ United States, 257 U.S. 176 (1921), 1195 + +Rodd _v._ Heartt (The "Lottawanna"), 21 Wall. 558 (1875), 130, 579 + +Rodman _v._ Pothier, 264 U.S. 399 (1924), 695 + +Rodney _v._ Hoey, 53 F. Supp. 604 (1944), 1197 + +Roe _v._ Kansas ex rel. Smith, 278 U.S. 191 (1929), 1065 + +Rogers _v._ Alabama, 192 U.S. 226 (1904), 658 + +Rogers _v._ Arkansas, 227 U.S. 401 (1913), 187 + +Rogers _v._ Hennepin County, 240 U.S. 184 (1916), 1044 + +Rogers _v._ Peck, 199 U.S. 425 (1905), 1141 + +Rogers _v._ United States, 141 U.S. 548 (1891), 897 + +Rogers _v._ United States, 340 U.S. 367 (1951), 842, 843, 844 + +Rogers Park Water Co. _v._ Fergus, 180 U.S. 624 (1901), 349 + +Roland Co. _v._ Walling, 326 U.S. 657 (1946), 158, 173 + +Roller _v._ Holly, 176 U.S. 398 (1900), 1088 + +Rolston _v._ Missouri Fund Commissioners, 120 U.S. 390 (1887), 932 + +Romeu _v._ Todd, 206 U.S. 358 (1907), 704 + +Rooney _v._ North Dakota, 196 U.S. 319 (1905), 327, 328 + +Root _v._ Woolworth, 150 U.S. 401 (1893), 629 + +Rorick _v._ Commissioners, 307 U.S. 208 (1939), 631 + +Roschen _v._ Ward, 279 U.S. 337 (1929), 1030 + +Rosen _v._ United States, 161 U.S. 29 (1896), 884 + +Rosenberg Bros. & Co. _v._ Curtis Brown Co., 260 U.S. 516 (1923), 1076 + +Rosenberger _v._ Pacific Exp. Co., 241 U.S. 48 (1916), 219 + +Rosengrant, Ex parte, 213 Ala. 202 (1925), 582 + +Rosengrant _v._ Havard, 273 U.S. 664 (1927), 582 + +Rosenthal _v._ New York, 226 U.S. 260 (1912), 1024 + +Ross, In re, 140 U.S. 453 (1891), 60, 427, 430, 533, 877 + +Ross _v._ Oregon, 227 U.S. 150 (1913), 327, 329 + +Rowan _v._ Runnels, 5 How. 134 (1847), 604 + +Royal Arcanum _v._ Green, 237 U.S. 531 (1915), 678 + +Royall, Ex parte, 117 U.S. 241 (1886), 633 + +Royster Guano Co. _v._ Virginia, 253 U.S. 412 (1920), 1150, 1152 + +Rubber-Tip Pencil Co. _v._ Howard, 20 Wall. 498 (1874), 272, 273 + +Ruddy _v._ Rossi, 248 U.S. 104 (1918), 702 + +Ruhlin _v._ New York Life Ins. Co., 304 U.S. 202 (1938), 608 + +Rumely _v._ United States, 197 F. 2d 166, 174-175 (1952), 810 + +Runkle _v._ United States, 122 U.S. 543 (1887), 476, 477 + +Ruppert _v._ Caffey, 251 U.S. 264 (1920), 293 + +Russian Volunteer Fleet _v._ United States, 282 U.S. 481 (1931), 865 + +Ruthenberg _v._ United States, 245 U.S. 480 (1918), 880 + +Rutkin _v._ United States, 343 U.S. 130 (1952), 1201 + + +S + +Sacher _v._ United States, 343 U.S. 1 (1952), 519 + +Safe Deposit and Trust Co. _v._ Virginia, 280 U.S. 83 (1929), 1044 + +Sage Stores _v._ Kansas, 323 U.S. 32 (1944), 1031 + +Saia _v._ New York, 334 U.S. 558 (1948), 563, 785, 788 + +St. Anthony Falls Water Power Co. _v._ Board of Water Commissioners, 168 +U.S. 349 (1897), 362 + +St. Clair _v._ Cox, 106 U.S. 350 (1882), 1077 + +St. Germain _v._ Brunswick, 135 U.S. 227 (1890), 273 + +St. John _v._ New York, 201 U.S. 633 (1906), 1154 + +St. Joseph Stock Yards Co. _v._ United States, 298 U.S. 38 (1936), 850, +860 + +St. Lawrence, The, 1 Bl. 522 (1862), 579 + +St. Louis & K.C. Land Co. _v._ Kansas City, 241 U.S. 419 (1916), 893, +1059 + +St. Louis & O'Fallon Ry. _v._ United States, 279 U.S. 461 (1929), 1006 + +St. Louis & S.F.R. Co. _v._ James, 161 U.S. 545 (1896), 369, 602 + +St. Louis & S.F.R. Co. _v._ Mathews, 165 U.S. 1 (1897), 345, 1015, 1156 + +St. Louis & S.F.R. Co. _v._ Middlekamp, 256 U.S. 226 (1921), 1152 + +St. Louis & S.F.R. Co. _v._ Public Service Com., 261 U.S. 369 (1923), +221 + +St. Louis & S.F.R. Co. _v._ Public Service Com., 254 U.S. 535 (1921), +219, 221 + +St. Louis Cotton Compress Co. _v._ Arkansas, 260 U.S. 346 (1922), 1056 + +St. Louis, I.M. & S.R. Co. _v._ Arkansas, 240 U.S. 518 (1916), 223, 1014 + +St. Louis, I.M. & S.R. Co. _v._ Edwards, 227 U.S. 265 (1913), 247 + +St. Louis, I.M. & S.R. Co. _v._ Paul, 173 U.S. 404 (1899), 988 + +St. Louis, I.M. & S.R. Co. _v._ Taylor, 210 U.S. 281 (1908), 78, 616 + +St. Louis, I.M. & S.R. Co. _v._ Williams, 251 U.S. 63 (1919), 1015 + +St. Louis, I.M. & S.R. Co. _v._ Wynne, 224 U.S. 354 (1912), 1015 + +St. Louis Poster Advertising Co. _v._ St. Louis, 249 U.S. 269 (1919), +1029 + +St. Louis, S.F. & T.R. Co. _v._ Seale, 229 U.S. 156 (1913), 141 + +St. Louis, S.W.R. Co. _v._ Alexander, 227 U.S. 218 (1913), 1076, 1077 + +St. Louis, S.W.R. Co. _v._ Arkansas, 217 U.S. 136 (1910), 222 + +St. Louis, S.W.R. Co. _v._ Arkansas ex rel. Norwood, 235 U.S. 350 +(1914), 1051 + +St. Louis, S.W. Ry. Co. _v._ United States, 245 U.S. 136 (1917), 861 + +St. Pierre _v._ United States, 319 U.S. 41 (1943), 545 + +Salinger _v._ Loisel, 265 U.S. 224 (1924), 315, 881 + +Salinger _v._ United States, 272 U.S. 542 (1926), 884 + +Salomon _v._ State Tax Commission, 278 U.S. 484 (1929), 1038 + +Salt Co. _v._ East Saginaw, 13 Wall. 373 (1872), 342 + +Samuel, The, 1 Wheat. 9 (1816),, 576 + +Samuels _v._ McCurdy, 267 U.S. 188 (1925), 327, 1087 + +Sanborn, In re, 148 U.S. 222 (1893), 514, 550 + +Sanders _v._ Armour Fertilizer Works, 292 U.S. 190 (1934), 684 + +San Diego Land & Town Co. _v._ Jasper, 189 U.S. 439 (1903), 1002, 1006 + +San Diego Land & Town Company _v._ National City, 174 U.S. 739 (1899), +1002, 1006 + +Sands _v._ Manistee R. Imp. Co., 123 U.S. 288 (1887), 231, 699 + +Sanitary District of Chicago _v._ United States, 266 U.S. 405 (1925), +920 + +Santa Clara County _v._ Southern P.R. Co., 118 U.S. 394 (1886), 1143, +1146 + +Santa Cruz Fruit Packing Co. _v._ N.L.R.B., 303 U.S. 453 (1938),, 155 + +Santiago _v._ Nogueras, 214 U.S. 260 (1909), 404, 493 + +Santovincenzo _v._ Egan, 284 U.S. 30 (1931), 439 + +Sapphire, The, 11 Wall. 164 (1871), 610 + +Sarah, The, 8 Wheat. 391 (1823), 575, 893 + +Satterlee _v._ Matthewson, 2 Pet. 380 (1829), 336, 343 + +Sauer _v._ New York, 206 U.S. 536 (1907), 331, 1068 + +Sanders _v._ Armour Fertilizer Works, 292 U.S. 190 (1934), 684 + +Saunders _v._ Shaw, 244 U.S. 317 (1917), 1088 + +Saunders _v._ Wilkins, 152 F. (2d) 235 (1945), 1172 + +Saunders _v._ Wilkins, 328 U.S. 870 (1946), 1172 + +Saunders _v._ Wilkins, 329 U.S. 825 (1946), 1172 + +Savage _v._ Jones, 225 U.S. 501 (1912), 183, 238, 241, 248 + +Savings & Loan Association _v._ Topeka, 20 Wall. 655 (1875), 975 + +Savings & L. Soc. _v._ Multnomah County, 169 U.S. 421 (1898), 1044 + +Sawyer _v._ Kochersperger, 170 U.S. 303 (1898), 567 + +Sawyer _v._ Piper, 189 U.S. 154 (1903), 1091 + +Sawyer, In re, 124 U.S. 200 (1888), 630 + +Schaefer _v._ United States, 251 U.S. 466 (1920), 774, 794 + +Schechter Poultry Corporation _v._ United States, 295 U.S. 495 (1935), +75, 76, 78, 153, 917 + +Schenck _v._ United States, 249 U.S. 47 (1919), 297, 772, 773, 774, 776, +794, 799 + +Scher _v._ United States, 305 U.S. 251 (1938),, 830 + +Schick _v._ United States, 195 U.S. 65 (1904), 878 + +Schmidinger _v._ Chicago, 226 U.S. 578 (1913), 982, 1018, 1019, 1154 + +Schneider _v._ Irvington (State), 308 U.S. 147 (1939), 563, 786, 788 + +Schneiderman _v._ United States, 320 U.S. 118 (1943), 257 + +Schnell _v._ Davis, 336 U.S. 933 (1949), 1186 + +Schoenthal _v._ Irving Trust Co., 287 U.S. 92 (1932), 895 + +Scholey _v._ Rew, 23 Wall. 331 (1875), 319 + +Schollenberger _v._ Pennsylvania, 171 U.S. 1 (1898), 240, 364 + +Schooner Betsey, The, 4 Cr. 443 (1808), 575 + +Schooner Sally, The, 2 Cr. 406 (1805), 575 + +Schulte _v._ Gangi, 328 U.S. 108 (1946), 158 + +Schuylkill Trust Co. _v._ Pennsylvania, 302 U.S. 506 (1938), 571, 1044 + +Schwab _v._ Berggren, 143 U.S. 442 (1892), 1127 + +Schwab _v._ Richardson, 263 U.S. 88 (1923), 1051 + +Schwabacher _v._ United States, 334 U.S. 182 (1948), 251 + +Scott _v._ Donald, 165 U.S. 58 (1897), 931 + +Scott _v._ Donald, 165 U.S. 107 (1897), 931 + +Scott _v._ McNeal, 154 U.S. 34 (1894), 330, 1072 + +Scott _v._ Neely, 140 U.S. 106 (1891), 895 + +Scott _v._ Sandford (Dred Scott Case), 19 How. 393 (1857), 60, 61, 254, +312, 687, 688, 845, 846, 963, 964, 972 + +Scottish Union & Nat. Ins. Co. _v._ Bowland, 196 U.S. 611 (1905), 1062 + +Scranton _v._ Wheeler, 179 U.S. 141 (1900), 588 + +Screws _v._ United States, 325 U.S. 91 (1945), 882, 1176 + +Scully _v._ Bird, 209 U.S. 481 (1908), 931 + +Seaboard Air Line R. Co. _v._ Blackwell, 244 U.S. 310 (1917), 223 + +Seaboard Air Line R. Co. _v._ Daniel, 333 U.S. 118 (1948), 251 + +Seaboard Air Line R. Co. _v._ Railroad Commission, 240 U.S. 324 (1916), +1013 + +Seaboard Air Line R. Co. _v._ United States, 254 U.S. 57 (1920), 861 + +Seaboard Air Line R. Co. _v._ Watson, 287 U.S. 86 (1932), 1156 + +Searight _v._ Stokes, 3 How. 151 (1845), 268 + +Seattle _v._ Oregon & W.R. Co., 255 U.S. 56 (1921), 128 + +Secombe, Ex parte, 19 How. 9 (1857), 528 + +Second Employers' Liability Cases (Mondou _v._ New York, N.H. & H.R. +Co.), 223 U.S. 1 (1912), 125, 739 + +Second Williams Case, 325 U.S. 279 (1945), 663, 665 + +Securities Exchange Commission _v._ Chenery Corp., 332 U.S. 194 (1947), +856 + +Security Mut. L. Ins. Co. _v._ Prewitt, 202 U.S. 246 (1906), 198, 638 + +Security Sav. Bank _v._ California, 263 U.S. 282 (1923), 355 + +Sei Fujii _v._ State of California, 242 P. 2d 617 (1952), 417 + +Selective Draft Law Cases, 245 U.S. 366 (1918), 285 + +Selig _v._ Hamilton, 234 U.S. 652 (1914), 355, 678 + +Selliger _v._ Kentucky, 213 U.S. 200 (1909), 364 + +Selover, Bates & Co. _v._ Walsh, 226 U.S. 112 (1912), 965 + +Semler _v._ Oregon State Dental Examiners, 294 U.S. 608 (1935), 1024, +1155 + +Senior _v._ Braden, 295 U.S. 422 (1935), 1045 + +Senn _v._ Tile Layers Protective Union, 301 U.S. 468 (1937), 991, 992 + +Sentell _v._ New Orleans & C.R. Co., 166 U.S. 698 (1897), 1035 + +Sere _v._ Pitot, 6 Cr. 332 (1810), 302, 703 + +Seton Hall College _v._ South Orange, 242 U.S. 100 (1916), 343 + +Seufert Bros. Co. _v._ United States, 249 U.S. 194 (1919), 700 + +Sewing Machine Companies, 18 Wall. 553 (1874), 619 + +Seymour _v._ Osborne, 11 Wall. 516 (1871), 272 + +Shaffer _v._ Carter, 252 U.S. 37 (1920), 209, 693, 1054, 1150 + +Shallenberger _v._ First State Bank, 219 U.S. 114 (1911), 1020 + +Shanks _v._ Delaware L. & W.R. Co., 239 U.S. 556 (1916), 141 + +Shanks _v._ Dupont, 3 Pet. 242 (1830), 258 + +Shapiro _v._ United States, 335 U.S. 1 (1948), 827, 828, 844 + +Sharp _v._ United States, 191 U.S. 341 (1903), 870 + +Shaw _v._ Gibson-Zahniser Oil Corp., 276 U.S. 575 (1928), 735 + +Sheehan Co. _v._ Shuler, 265 U.S. 371 (1924), 990 + +Sheldon _v._ Sill, 8 How. 441 (1850), 512, 619, 620 + +Shelley _v._ Kraemer, 334 U.S. 1 (1948), 1142, 1161 + +Shelton _v._ Platt, 139 U.S. 591 (1891), 621 + +Shelton _v._ Tiffin, 6 How. 163 (1848), 601 + +Shenfield _v._ Nashawannuck Mfg. Co., 137 U.S. 56 (1890), 273 + +Shepherd _v._ Florida, 341 U.S. 50 (1951), 1098, 1168 + +Sheppard _v._ Taylor, 5 Pet. 675 (1831), 574 + +Sherlock _v._ Alling, 93 U.S. 99 (1876), 575 + +Sherrer _v._ Sherrer, 334 U.S. 343 (1948), 668, 669 + +Shields _v._ Coleman, 157 U.S. 168 (1895), 627 + +Shields _v._ Ohio, 95 U.S. 319 (1877), 344 + +Shields _v._ Thomas, 18 How. 253 (1856), 893 + +Shields _v._ Utah, Idaho R. Co., 305 U.S. 185 (1938), 623 + +Shively _v._ Bowlby, 152 U.S. 1 (1894), 130, 700 + +Shoemaker _v._ United States, 147 U.S. 282 (1893), 301, 303, 452, 866, +872 + +Shoener _v._ Pennsylvania, 207 U.S. 188 (1907), 1133 + +Shreveport Case, The (Houston E. & W.T.R. Co. _v._ United States), 234 +U.S. 342 (1914), 135, 219 + +Shriver _v._ Woodbine Sav. Bank, 285 U.S. 467 (1932), 1035 + +Shurtleff _v._ United States, 189 U.S. 311 (1903), 460 + +Siebold, Ex parte, 100 U.S. 371 (1880), 93, 94, 452, 495, 722, 738 + +Silas Mason Co. _v._ Tax Commission of Washington, 302 U.S. 186 (1937), +307 + +Siler _v._ L. & N.R. Co., 213 U.S. 175 (1909), 562 + +Silesian-American Corp. _v._ Clark, 332 U.S. 469 (1947), 295, 865 + +Silver _v._ Silver, 280 U.S. 117 (1929),, 1155 + +Silver Thorne Lumber Co. _v._ United States, 251 U.S. 385 (1920), 831 + +Silz _v._ Hesterberg, 211 U.S. 31 (1908), 217, 246, 1027 + +Simmons _v._ Saul, 138 U.S. 439 (1891), 660, 674 + +Simmons _v._ United States, 142 U.S. 148 (1891), 839 + +Simms _v._ Simms, 175 U.S. 162 (1899), 703 + +Simon _v._ Southern R. Co., 236 U.S. 115 (1915), 629, 660, 1073, 1076 + +Simons, In re, 247 U.S. 231 (1918), 895 + +Simpson _v._ Shepard (Minnesota Rate Cases), 230 U.S. 352 (1913), 177, +222, 235, 1000, 1002 + +Sinclair _v._ United States, 279 U.S. 263 (1929), 84, 85, 311, 493 + +Sinclair & Carroll Co. _v._ Interchemical Corp., 325 U.S. 327 (1945), +272 + +Singer Sewing Machine Co. _v._ Brickell, 233 U.S. 304 (1914), 184 + +Sinking Fund Cases (Central P.R. Co. _v._ Gallatin & Union P.R. Co. _v._ +United States), 99 U.S. 700, (1879), 362, 563, 981 + +Sinnot _v._ Davenport, 22 How. 227 (1859), 229 + +Sioux City Bridge Co. _v._ Dakota County, 260 U.S. 441 (1923), 1152 + +Sioux Remedy Co. _v._ Cope, 235 U.S. 197 (1914), 234 + +Sioux Tribe _v._ United States, 316 U.S. 317 (1942), 702 + +Sipuel _v._ Oklahoma, 332 U.S. 631 (1948), 1163 + +Siren, The, 7 Wall. 152 (1869), 586, 610 + +Siren, The, 13 Wall. 389 (1871), 296, 575 + +Sistare _v._ Sistare, 218 U.S. 1 (1910), 655, 671 + +Six Companies of California _v._ Highway Dist, 311 U.S. 180 (1940), 608 + +Six Hundred Twenty Church Street Bldg. Corp., In re, 299 U.S. 24 +(1936),, 858 + +Skaneateles Waterworks Co. _v._ Skaneateles, 184 U.S. 354 (1902), 349, +1009 + +Skinner _v._ Oklahoma, 316 U.S. 535 (1942), 1156, 1161 + +Skinner & Eddy Corp., Ex parte, 265 U.S. 86 (1924), 895 + +Skiriotes _v._ Florida, 313 U.S. 69 (1941), 325 + +Slaughter-House Cases, 16 Wall. 36 (1873), 686, 687, 752, 949, 965, 972, +974, 985, 1143, 1160 + +Sligh _v._ Kirkwood, 237 U.S. 52 (1915), 243, 982, 983, 1027, 1030 + +Sloan Shipyards _v._ United States Fleet Corp., 258 U.S. 549 (1922), +289, 310, 586 + +Slocum _v._ New York Life Insurance Company, 228 U.S. 364 (1913), 896 + +Smiley _v._ Holm, 285 U.S. 355 (1932), 93, 548 + +Smiley _v._ Kansas, 196 U.S. 447 (1905), 1017 + +Smith _v._ Adams, 130 U.S. 167 (1889), 539 + +Smith _v._ Alabama, 124 U.S. 465 (1888), 222 + +Smith _v._ Allwright, 321 U.S. 649 (1944), 565, 566, 1142, 1164, 1185, +1186 + +Smith _v._ Cahoon, 283 U.S. 553 (1931), 228, 1032, 1145, 1156 + +Smith _v._ Davis, 323 U.S. 111 (1944), 730 + +Smith _v._ Illinois Bell Teleph. Co., 270 U.S. 587 (1926), 1002 + +Smith _v._ Indiana, 191 U.S. 138 (1903), 540, 982 + +Smith _v._ Interstate Commerce Comm., 245 U.S. 33 (1917), 84 + +Smith _v._ Kansas City Title & Trust Co., 255 U.S. 180 (1921), 114, 267, +309, 541 + +Smith _v._ Maryland, 18 How. 71 (1855), 576, 751 + +Smith _v._ Nichols, 21 Wall. 112 (1875), 272 + +Smith _v._ O'Grady, 312 U.S. 329 (1941), 1099, 1101, 1108 + +Smith _v._ Reeves, 178 U.S. 436 (1900), 588, 930, 935, 936 + +Smith _v._ St. Louis, & S.W.R. Co., 181 U.S. 248 (1901), 236 + +Smith _v._ Texas, 233 U.S. 630 (1914), 1024 + +Smith _v._ Texas, 311 U.S. 128 (1940), 1098, 1168 + +Smith _v._ Turner (Passenger Cases), 7 How. 283 (1849), 192, 216, 242, +323 + +Smith _v._ Whitman Saddle Co., 148 U.S. 674 (1893), 273 + +Smith _v._ Whitney, 116 U.S. 167 (1886), 286, 482 + +Smith _v._ Wilson, 273 U.S. 388 (1927), 631 + +Smithsonian Institution _v._ St. John, 214 U.S. 19 (1909), 676 + +Smoot Sand & Gravel Corp. _v._ Washington Airport, 283 U.S. 348 (1931), +301 + +Smyth _v._ Ames, 169 U.S. 466 (1898), 630, 931, 933, 981, 1000, 1005, +1006, 1007 + +Snowden _v._ Hughes, 321 U.S. 1 (1944), 971, 1035, 1142, 1165 + +Snyder _v._ Bettman, 190 U.S. 249 (1903), 107 + +Snyder _v._ Marks, 109 U.S. 189 (1883), 541, 621 + +Snyder _v._ Massachusetts, 291 U.S. 97 (1934), 1089, 1096, 1110, 1112, +1128, 1132, 1133 + +Society for Savings _v._ Coite, 6 Wall. 594 (1868), 730 + +Sola Electric Co. _v._ Jefferson Electric Co., 317 U.S. 173 (1942), 724 + +Solesbee _v._ Balkcom, 339 U.S. 9 (1950), 1129, 1135 + +Soliah _v._ Heskin, 222 U.S. 522 (1912), 1036, 1059 + +Sonneborn Eros. _v._ Cureton, 262 U.S. 506 (1923), 184, 239 + +Sonzinsky _v._ United States, 300 U.S. 506 (1937), 111 + +Soon Hing _v._ Crowley, 113 U.S. 703 (1885), 1029 + +Soper _v._ Lawrence Bros. Co., 201 U.S. 359 (1906), 1093 + +South _v._ Peters, 339 U.S. 276 (1950), 548, 1165 + +South Carolina _v._ Bailey, 289 U.S. 412 (1933), 695 + +South Carolina _v._ Gaillard, 101 U.S. 433 (1880), 355 + +South Carolina _v._ Georgia, 93 U.S. 4 (1876), 128, 322 + +South Carolina _v._ United States, 199 U.S. 437 (1905), 107 + +South Carolina _v._ Wesley, 155 U.S. 542 (1895), 931 + +South Carolina Highway Dept. _v._ Barnwell Bros., 303 U.S. 177 (1938), +177, 218, 227, 982 + +South Covington & C. Street R. Co. _v._ Covington, 235 U.S. 537 (1915), +219, 223 + +South Covington & C. St. By. Co. _v._ Newport, 259 U.S. 97 (1922), 567 + +South Dakota _v._ North Carolina, 192 U.S. 286 (1904), 593, 930 + +Southern Iowa Electric Co. _v._ Chariton, 255 U.S. 539 (1921), 349 + +Southern Natural Gas Corp. _v._ Alabama, 301 U.S. 148 (1937), 198 + +Southern Pacific Co. _v._ Arizona, 325 U.S. 761 (1945), 177, 217, 223, +225, 724 + +Southern Pacific Co. _v._ Campbell, 230 U.S. 537 (1913), 349 + +Southern Pacific Co. _v._ Denton, 146 U.S. 202 (1892), 638 + +Southern Pacific Co. _v._ Gallagher, 306 U.S. 167 (1939), 186 + +Southern Pacific Co. _v._ Jensen, 244 U.S. 205 (1917), 580, 583, 625 + +Southern Pacific Co. _v._ Kentucky, 222 U.S. 63 (1911), 1052 + +Southern Pacific Co. _v._ Lowe, 247 U.S. 330 (1918), 1193 + +Southern R. Co. _v._ Burlington Lumber Co., 225 U.S. 99 (1912), 247 + +Southern R. Co. _v._ Greene, 216 U.S. 400 (1910), 1149, 1150 + +Southern R. Co. _v._ Kentucky, 274 U.S. 76 (1927), 202 + +Southern R. Co. _v._ King, 217 U.S. 524 (1910), 220, 224 + +Southern R. Co. _v._ Painter, 314 U.S. 155 (1941), 629 + +Southern R. Co. _v._ Puckett, 244 U.S. 571 (1917), 141 + +Southern R. Co. _v._ Railroad Comm., 236 U.S. 439 (1915), 247 + +Southern R. Co. _v._ Reid, 222 U.S. 424 (1912), 247, 248 + +Southern R. Co. _v._ United States, 222 U.S. 20 (1911), 139 + +Southern Realty Co. _v._ Walker, 211 U.S. 603 (1909), 603 + +Southern S.S. Co. _v._ National Labor Relations Board, 316 U.S. 31 +(1942), 577 + +Southern S.S. Co. _v._ Portwardens, 6 Wall. 31 (1867), 366 + +Southwestern Bell Telephone Co. _v._ Oklahoma, 303 U.S. 206 (1938), 570 + +Southwestern Bell Telephone Co. _v._ Pub. Serv. Comm., 262 U.S. 276 +(1923), 1006 + +Southwestern Oil Co. _v._ Texas, 217 U.S. 114 (1910), 1036, 1149 + +Southwestern Teleg. & Teleph. Co. _v._ Danaher, 238 U.S. 482 (1915), +1016 + +Sovereign Camp _v._ Bolin, 305 U.S. 66 (1938), 678 + +Spalding & Bros. _v._ Edwards, 262 U.S. 66 (1923), 321 + +Sparf _v._ United States, 156 U.S. 51 (1895), 896 + +Spaulding _v._ Vilas, 161 U.S. 483 (1896), 501 + +Spector Motor Service _v._ McLaughlin, 323 U.S. 101 (1944), 562 + +Spector Motor Service _v._ O'Connor, 340 U.S. 602 (1951), 209 + +Spies _v._ Illinois, 123 U.S. 131 (1887), 752 + +Spokane & I.E.R. Co. _v._ Whitley, 237 U.S. 487 (1915), 658 + +Spokane County _v._ United States, 279 U.S. 80 (1929), 722 + +Spragins _v._ Houghton, 3 Ill. 377 (1840), 258 + +Spreckels Sugar Refining Co. _v._ McClain, 192 U.S. 397 (1904), 319 + +Springer _v._ Philippine Islands, 277 U.S. 189 (1928), 459 + +Springer _v._ United States, 102 U.S. 586 (1881), 319, 849, 1191 + +Springville _v._ Thomas, 166 U.S. 707 (1897), 892 + +Sproles _v._ Binford, 286 U.S. 374 (1932), 227, 1033, 1155 + +Sprott _v._ United States, 20 Wall. 459 (1874), 640, 643 + +Sprout _v._ South Bend, 277 U.S. 163 (1928), 197, 212, 1033 + +S.R.A., Inc. _v._ Minnesota, 327 U.S. 558 (1946), 306 + +Stack _v._ Boyle, 342 U.S. 1 (1951), 904 + +Stacy _v._ Thrasher, use of Sellers, 6 How. 44 (1848), 654, 660, 672 + +Stafford _v._ Wallace, 258 U.S. 495 (1922), 120, 149 + +Stamey _v._ United States, 37 F. (2d) 188 (1929), 895 + +Standard Oil Co. _v._ Graves, 249 U.S. 389 (1919), 184, 239 + +Standard Oil Co. _v._ Marysville, 279 U.S. 582 (1929), 1029 + +Standard Oil Co. _v._ Missouri ex rel. Hadley, 224 U.S. 270 (1912), +1140, 1141 + +Standard Oil Co. _v._ New Jersey, 341 U.S. 428 (1951), 1034 + +Standard Oil Co. _v._ Tennessee ex rel. Cates, 217 U.S. 413 (1910), 1160 + +Stanley _v._ Public Utilities Commission, 295 U.S. 76 (1935), 1032 + +Stanley _v._ Schwalby, 162 U.S. 255 (1896), 587 + +Stanton _v._ Baltic Mining Co., 240 U.S. 103 (1916), 319, 320, 1192 + +State _v._ McClure, 7 Boyce (Del.) 265; 105 A. 712 (1919), 952 + +State _v._ Mittle, 120 S.C. 526 (1922), 1220 + +State _v._ Mittle, 260 U.S. 705 (1922), 1220 + +State Bank of Ohio _v._ Knoop, 16 How. 369 (1854), 330 + +State Board of Equalization _v._ Young's Market Co., 299 U.S. 59 (1936), +241, 1231, 1232 + +State Corp. Commission _v._ Wichita Gas Co., 290 U.S. 561 (1934), 138 + +State Farm Ins. Co. _v._ Duel, 324 U.S. 154 (1945), 680, 1016 + +State Freight Tax Case. _See_ Philadelphia & R.R. Co. _v._ Pennsylvania. + +State Industrial Board of N.Y. _v._ Terry & Trench Co., 273 U.S. 639 +(1926), 582 + +State of Minnesota _v._ Chicago, M. & St. Paul R. Co., 38 Minn. 281 +(1888), 77 + +State Tax Commission _v._ Aldrich, 316 U.S. 174 (1942), 1045, 1047 + +State Tax Commission _v._ Interstate Natural Gas Co., 284 U.S. 41 +(1931), 182, 195 + +State Tax Comm'n. _v._ Van Cott, 306 U.S. 511 (1939), 731 + +State Tax Comrs. _v._ Jackson, 283 U.S. 527 (1931), 1148, 1149 + +Staten Island R.T.R. Co. _v._ Phoenix Indemnity Co., 281 U.S. 98 (1930), +990 + +Steamship Appam, The, 243 U.S. 124 (1917), 418 + +Stearns _v._ Minnesota, 179 U.S. 223 (1900), 330, 344, 367, 699, 700 + +Stebbins _v._ Riley, 268 U.S. 137 (1925), 1037, 1045 + +Steele _v._ Louisville & N.R. Co., 323 U.S. 192 (1944), 854 + +Steele _v._ United States, No. 1, 267 U.S. 498 (1925), 825 + +Steele, Ex parte, 162 Fed. 694 (1908), 545 + +Stefanelli _v._ Minard, 342 U.S. 117 (1951), 1124 + +Stelle _v._ Carroll, 12 Pet. 201 (1838), 302 + +Stellwagen _v._ Clum, 245 U.S. 605 (1918), 264, 265 + +Stephan _v._ United States, 319 U.S. 423 (1943), 615 + +Stephan _v._ United States, 133 F. (2d) 87 (1943), 643 + +Stephenson _v._ Binford, 287 U.S. 251 (1932), 1032 + +Sterling _v._ Constantin, 287 U.S. 378 (1932), 484, 931, 934 + +Stettler _v._ O'Hara, 243 U.S. 629 (1917), 980 + +Steuart & Bros. Inc. _v._ Bowles, 322 U.S. 398 (1944), 82, 397 + +Stevens _v._ Gladding, 17 How. 447 (1855), 275 + +Stevenson _v._ Fain, 195 U.S. 165 (1904), 620 + +Steward Machine Co. _v._ Davis, 301 U.S. 548 (1937), 115, 116, 724, 853, +863, 918 + +Stewart _v._ B. & O.R. Co., 168 U.S. 445 (1897), 676 + +Stewart _v._ Foster, 2 Binney's (Pa.) 110 (1809), 258 + +Stewart _v._ Kahn, 11 Wall. 493 (1871), 293 + +Stewart _v._ Kansas City, 239 U.S. 14 (1915), 982, 1036 + +Stewart _v._ Keyes, 295 U.S. 403 (1935), 1093 + +Stewart _v._ Michigan, 232 U.S. 665 (1914), 187 + +Stewart Dry Goods Co. _v._ Lewis, 294 U.S. 550 (1935), 1037, 1149 + +Stilson _v._ United States, 250 U.S. 583 (1919), 880 + +Stipcich _v._ Metropolitan L. Ins. Co., 277 U.S. 311 (1928), 1021 + +Stockard _v._ Morgan, 185 U.S. 27 (1902), 187 + +Stockdale _v._ Atlantic Ins. Co., 20 Wall. 323 (1874), 863 + +Stockholders _v._ Sterling, 300 U.S. 175 (1937), 1141 + +Stoehr _v._ Wallace, 255 U.S. 239 (1921), 295, 865 + +Stoll _v._ Gottlieb, 305 U.S. 165 (1938), 570 + +Stone _v._ Farmers' Loan & Trust Co. (Railroad Commission Cases), 116 +U.S. 307 (1886), 349 + +Stone _v._ Mississippi ex rel. Harris, 101 U.S. 814 (1880), 351, 358, +1031 + +Stoner _v._ New York Life Ins. Co., 311 U.S. 464 (1940), 608 + +Storaasli _v._ Minnesota, 283 U.S. 57 (1931), 1155 + +Stoughton _v._ Baker et al., 4 Mass. 522 (1808), 338 + +Stoutenburgh _v._ Hennick, 129 U.S. 141 (1889), 122, 187, 304 + +Strassheim _v._ Daily, 221 U.S. 280 (1911), 695 + +Stratton's Independence _v._ Howbert, 231 U.S. 399 (1914), 1192 + +Strauder _v._ West Virginia, 100 U.S. 303 (1880), 1176 + +Straus _v._ Foxworth, 231 U.S. 162 (1913), 982, 1062 + +Strauss, In re, 197 U.S. 324 (1905), 695 + +Strawbridge _v._ Curtiss, 3 Cr. 267 (1806), 601 + +Strickley _v._ Highland Boy Gold Mining Co., 200 U.S. 527 (1906), 1065 + +Stroble _v._ California, 343 U.S. 181 (1952), 1121 + +Stromberg _v._ California, 283 U.S. 359 (1931), 773, 778 + +Strother _v._ Lucas, 12 Pet. 410 (1838), 418 + +Stroud _v._ United States, 251 U.S. 15 (1919), 824 + +Stuart _v._ Laird, 1 Cr. 299 (1803), 529 + +Sturges _v._ Crowninshield, 4 Wheat. 122 (1819), 264, 334, 355, 555 + +Sturges & B. Mfg. Co. _v._ Beauchamp, 231 U.S. 320 (1914), 987 + +Sugarman _v._ United States, 249 U.S. 182 (1919), 297 + +Sugar Trust Case, The (United States _v._ E.C. Knight Co.), 156 U.S. 1 +(1895), 153 + +Sugg _v._ Hendrix, 142 F. (2d) 740 (1944), 1074 + +Sugg _v._ Thornton, 132 U.S. 524 (1889), 1074 + +Sullivan _v._ Kidd, 254 U.S. 433 (1921), 416 + +Sullivan _v._ United States, 274 U.S. 259 (1950), 843 + +Sully _v._ American Nat. Bank, 178 U.S. 289 (1900), 1144 + +Sultan Ry. & Timber Co. _v._ Dept. of Labor, 277 U.S. 135 (1928), 582 + +Summers, In re, 325 U.S. 561 (1945), 768 + +Sunday Lake Iron Co. _v._ Wakefield Twp., 247 U.S. 350 (1918), 1152 + +Sunshine Anthracite Coal Co. _v._ Adkins, 310 U.S. 381 (1940), 75, 76, +111, 564, 853, 855 + +Superintendent _v._ Commissioner, 295 U.S. 418 (1935), 1171 + +Superior Bath House Co. _v._ McCarroll, 312 U.S. 176 (1941), 731 + +Superior Oil _v._ Mississippi ex rel. Knox, 280 U.S. 390 (1930), 189 + +Surplus Trading Co. _v._ Cook, 281 U.S. 647 (1930), 305, 307 + +Susquehanna & Wyoming V.R. & C. Co. _v._ Blatchford, 11 Wall. 172 +(1871), 611 + +Susquehanna Coal Co. _v._ South Amboy, 228 U.S. 665 (1913), 185 + +Susquehanna Power Co. _v._ State Tax Comm'n., 283 U.S. 291 (1931), 732 + +Sutton _v._ Leib, 342 U.S. 402 (1952), 671 + +Swafford _v._ Templeton, 185 U.S. 487 (1902), 87 + +Swaim _v._ United States, 165 U.S. 553 (1897), 286, 404 + +Swanson _v._ Marra Bros., 328 U.S. 1 (1946), 583 + +Sweatt _v._ Painter, 339 U.S. 629 (1950), 1162 + +Sweet _v._ Rechel, 159 U.S. 380 (1895), 1063 + +Swift _v._ McPherson, 232 U.S. 51 (1914), 656, 684 + +Swift _v._ Tyson, 16 Pet. 1 (1842), 603, 604, 605, 606, 607 + +Swift & Co. _v._ United States, 196 U.S. 375 (1905), 120, 147, 148 + + +T + +Taft _v._ Bowers, 278 U.S. 470 (1929), 1198 + +Takahashi _v._ Fish & Game Comm'n., 334 U.S. 410 (1948), 417, 1158 + +Tameling _v._ United States Freehold & Emigration Co., 93 U.S. 644 +(1877), 702 + +Tanner _v._ Little, 240 U.S. 369 (1916), 184, 1019 + +Tayloe _v._ Thomson, 5 Pet. 358 (1831), 302 + +Taylor _v._ Alabama, 335 U.S. 252 (1948), 1119 + +Taylor _v._ Beckham, 178 U.S. 548 (1900), 705, 982 + +Taylor _v._ Carryl, 20 How. 583 (1857), 575, 625, 627 + +Taylor _v._ Georgia, 315 U.S. 25 (1942), 951 + +Taylor _v._ Mississippi, 319 U.S. 583 (1943), 768 + +Taylor _v._ Morton, 23 Fed. Cas. No. 13,799 (1855), 420, 426 + +Taylor _v._ Secor (State Railroad Tax Cases), 92 U.S. 575 (1876), 1058 + +Taylor _v._ Taintor, 16 Wall. 366 (1873), 694, 695 + +Taylor _v._ Thomas, 22 Wall. 479 (1875), 728 + +Taylor _v._ United States, 207 U.S. 120 (1907), 839 + +Taylor _v._ United States, 286 U.S. 1 (1932), 824 + +Taylor _v._ Ypsilanti, 105 U.S. 60 (1882), 331 + +Teal _v._ Felton, 12 How. 284 (1852), 636 + +Teamsters' Union _v._ Hanke, 339 U.S. 470 (1950), 782 + +Ten East Fortieth St. Co. _v._ Callus, 325 U.S. 578 (1945), 158 + +Tennessee _v._ Davis, 100 U.S. 257 (1880), 311, 501, 569, 632, 722, 728 + +Tennessee _v._ Sneed, 96 U.S. 69 (1877), 355 + +Tennessee _v._ Union & Planters' Bank, 152 U.S. 454 (1894), 567 + +Tennessee _v._ Whitworth, 117 U.S. 139 (1886), 347 + +Tennessee Coal Co. _v._ George, 233 U.S. 354 (1914), 677 + +Tennessee Electric Power Co. _v._ Tennessee Valley Authority, 306 U.S. +118 (1939) 590, 909 + +Tenney _v._ Brandhove, 341 U.S. 367 (1951), 100 + +Terlinden _v._ Ames, 184 U.S. 270 (1902), 473 + +Terminal R. Asso. _v._ Brotherhood of R.R. Trainmen, 318 U.S. 1 (1943), +219, 220, 223 + +Terminiello _v._ Chicago, 337 U.S. 1 (1949), 778, 792 + +Terrace _v._ Thompson, 263 U.S. 197 (1923), 417, 934, 981, 1158 + +Terral _v._ Burke Construction Co., 257 U.S. 529 (1922), 638 + +Terrett _v._ Taylor, 9 Cr. 43 (1815), 338 + +Terry _v._ Anderson, 95 U.S. 628 (1877), 355 + +Testa _v._ Katt, 330 U.S. 386 (1947), 637, 724, 727 + +Texas _v._ Florida, 306 U.S. 398 (1939), 593, 594, 1049 + +Texas _v._ Interstate Commerce Commission, 258 U.S. 158 (1922), 544, 613 + +Texas _v._ White, 7 Wall. 700 (1869), 299, 704, 728 + +Texas & N.O.R. Co. _v._ Brotherhood of Railway & S.S. Clerks, 281 U.S. +548 (1930), 142, 855 + +Texas & N.O.R. Co. _v._ Miller, 221 U.S. 408 (1911), 676 + +Texas & P.R. Co. _v._ Rigsby, 241 U.S. 33 (1916), 139 + +Texas & P.R. Co. _v._ Southern P. Co., 137 U.S. 48 (1890), 656 + +Texas & P. Ry. Co. _v._ United States, 286 U.S. 285 (1932), 1197 + +Texas Co. _v._ Brown, 258 U.S. 466 (1922), 184, 239 + +Thames & Mersey Ins. Co. _v._ United States, 237 U.S. 19 (1915), 322 + +Thiel _v._ Southern Pacific Co., 328 U.S. 217 (1946), 854, 1131 + +Thirty Hogsheads of Sugar _v._ Boyle, 9 Cr. 191 (1815), 575 + +Thomas _v._ Collins, 323 U.S. 516 (1945), 563, 783, 788, 789, 809 + +Thomas _v._ Gay, 169 U.S. 264 (1898), 432 + +Thomas _v._ Kansas City Southern R. Co., 261 U.S. 481 (1923), 1153 + +Thomas _v._ Richmond, 12 Wall. 349 (1871), 728 + +Thomas _v._ United States, 192 U.S. 363 (1904), 319 + +Thomas Jefferson, The, 10 Wheat. 428 (1825), 576, 578 + +Thompson _v._ Central Ohio R. Co., 6 Wall. 134 (1868), 895 + +Thompson _v._ Consolidated Gas Utilities Corp., 300 U.S. 55 (1937), 1025 + +Thompson _v._ Darden, 198 U.S. 310 (1905), 323 + +Thompson _v._ Lee County, 3 Wall. 327 (1866), 331 + +Thompson _v._ Missouri, 171 U.S. 380 (1898), 329 + +Thompson _v._ Roe ex dem. Carroll, 22 How. 422 (1860), 304 + +Thompson _v._ Thompson, 226 U.S. 551 (1913), 657, 663 + +Thompson _v._ Union P.R. Co., 9 Wall. 579 (1870), 732 + +Thompson _v._ United States, 142 U.S. 471 (1892), 321 + +Thompson _v._ United States, 155 U.S. 271 (1894), 839 + +Thompson _v._ Utah, 170 U.S. 343 (1898), 329, 879 + +Thompson _v._ Whitman, 18 Wall. 457 (1874), 661 + +Thomson _v._ Pacific Railroad, 9 Wall. 579 (1870), 132 + +Thorington _v._ Montgomery, 147 U.S. 490 (1893), 1141 + +Thorington _v._ Smith, 8 Wall. 1 (1869), 640, 1174 + +Thormann _v._ Frame, 176 U.S. 350 (1900), 678 + +Thornhill _v._ Alabama, 310 U.S. 88 (1940), 563, 777, 781, 782 + +Thornton _v._ Duffy, 254 U.S. 361 (1920), 990 + +Thornton _v._ United States, 271 U.S. 414 (1926), 919 + +Thorpe _v._ Rutland & Burlington Railroad, 27 Vt. 140 (1854), 345 + +Thurlow _v._ Massachusetts, 5 How. 504 (1847), 124 + +Tidal Oil Co. _v._ Flanagan, 263 U.S. 444 (1924), 329, 332 + +Tiernan _v._ Rinker, 102 U.S. 123 (1880), 185 + +Tiger _v._ Western Investment Co., 221 U.S. 286 (1911), 864 + +Tigner _v._ Texas, 310 U.S. 141 (1940), 1160 + +Tilt _v._ Kelsey, 207 U.S. 43 (1907), 672 + +Tilton, The, 23 Fed. Cas. No. 14,054 (1830), 574 + +Tindal _v._ Wesley, 167 U.S. 204 (1897), 588, 931, 934 + +Tinsley _v._ Anderson, 171 U.S. 101 (1898), 634, 1096 + +Tinsley _v._ Treat, 205 U.S. 20 (1907), 881 + +Titus _v._ Wallick, 306 U.S. 282 (1939), 657 + +Todok _v._ Union State Bank, 281 U.S. 449 (1930), 416 + +Toledo Newspaper Co. _v._ United States, 247 U.S. 402 (1918), 516, 518, +784 + +Tomkins _v._ Missouri, 323 U.S. 485 (1945), 1100, 1101, 1102 + +Tomlinson _v._ Branch, 15 Wall. 460 (1873), 931 + +Tonawanda _v._ Lyon, 181 U.S. 389 (1901), 1036, 1059 + +Toombs _v._ Citizens Bank, 281 U.S. 643 (1930), 1085 + +Toomer _v._ Witsell, 334 U.S. 385 (1948), 181, 245, 690 + +Tot _v._ United States, 319 U.S. 463 (1943), 849 + +Totten _v._ United States, 92 U.S. 105 (1876), 404 + +Toucey _v._ New York Life Insurance Co., 314 U.S. 118 (1941), 627, 628, +629 + +Townsend _v._ Burke, 334 U.S. 736 (1948), 1106, 1108 + +Townsend _v._ Yeomans, 301 U.S. 441 (1937), 250, 996 + +Tracy _v._ Ginzberg, 205 U.S. 170 (1907), 1140 + +Trade Mark Cases, 100 U.S. 82 (1879), 122 + +Transportation Co. _v._ Parkersburg, 107 U.S. 691 (1883), 210, 214 + +Transportation Line _v._ Hope, 95 U.S. 297 (1877), 896 + +Travelers Health Assn. _v._ Virginia, 339 U.S. 643 (1950), 1079 + +Travelers' Ins. Co. _v._ Connecticut, 185 U.S. 364 (1902), 693 + +Travis _v._ Yale & Towne Mfg. Co., 252 U.S. 60 (1920), 687, 692, 1054, +1061, 1150 + +Treasury of Indiana _v._ Wood Preserving Corp., 313 U.S. 62 (1941), 198, +204 + +Treat _v._ White, 181 U.S. 264 (1901), 863 + +Treat Mfg. Co. _v._ Standard Steel & Iron Co., 157 U.S. 674 (1895), 896 + +Tregea _v._ Modesto Irrigation District, 164 U.S. 179 (1896), 540 + +Treichler _v._ Wisconsin, 338 U.S. 251 (1949), 1045 + +Treigle _v._ Acme Homestead Asso., 297 U.S. 189 (1936), 983 + +Treinies _v._ Sunshine Mining Co., 308 U.S. 66 (1939), 603, 934 + +Trenton _v._ New Jersey, 262 U.S. 182 (1923), 340, 609, 982, 1036 + +Trinityfarm Const. Co. _v._ Grosjean, 291 U.S. 466 (1934), 731 + +Truax _v._ Corrigan, 257 U.S. 312 (1921), 991, 992, 1142, 1145, 1166 + +Truax _v._ Raich, 239 U.S. 33 (1915), 931, 934, 1158 + +Trupiano _v._ United States, 334 U.S. 699 (1948), 829 + +Trusler _v._ Crooks, 269 U.S. 475 (1926), 918 + +Tua _v._ Carriere, 117 U.S. 201 (1886), 264 + +Tucker _v._ Alexandroff, 183 U.S. 424 (1902), 433, 493 + +Tucker _v._ Texas, 326 U.S. 517 (1946), 786 + +Tulee _v._ Washington, 315 U.S. 681 (1942), 701 + +Tumey _v._ Ohio, 273 U.S. 510 (1927), 1131 + +Turner _v._ Bank of North America, 4 Dall. 8 (1799), 617 + +Turner _v._ Maryland, 107 U.S. 38 (1883), 364 + +Turner _v._ New York, 168 U.S. 90 (1897), 1093 + +Turner _v._ Pennsylvania, 338 U.S. 62 (1949), 1120, 1121 + +Turner _v._ Williams, 194 U.S. 279 (1904), 259 + +Turpin _v._ Lemon, 187 U.S. 51 (1902), 1057 + +Turpin & Bro. _v._ Burgess, 117 U.S. 504 (1886), 321, 322 + +Tutun _v._ United States, 270 U.S. 568 (1926), 624 + +Twin City Nat. Bank _v._ Nebeker, 167 U.S. 196 (1897), 102 + +Twining _v._ New Jersey, 211 U.S. 78 (1908), 752, 843, 845, 967, 971, +1071, 1084, 1111, 1112, 1116, 1118 + +Twitchell _v._ Pennsylvania, 7 Wall. 321 (1869), 751 + +Tyee Realty Co. _v._ Anderson, 240 U.S. 115 (1916), 1192 + +Tyler, In re, 149 U.S. 164 (1893), 933 + +Tyler _v._ Defrees, 11 Wall. 331 (1871), 299 + +Tyler _v._ Judges of the Court of Registration, 179 U.S. 405 (1900), 982 + +Tyler _v._ United States, 281 U.S. 497 (1930), 320, 540, 864 + +Tyson & Bros.--United Theatre Ticket Offices _v._ Banton, 273 U.S. 418 +(1927), 996 + + +U + +Ughbanks _v._ Armstrong, 208 U.S. 481 (1908), 1133, 1161 + +Underwood Typewriter Co. _v._ Chamberlain, 254 U.S. 113 (1920), 209, +1054 + +Unemployment Comm'n. _v._ Aragon, 329 U.S. 143 (1946), 78 + +Union Bridge Co. _v._ United States, 204 U.S. 364 (1907), 78, 128 + +Union Brokerage Co. _v._ Jensen, 322 U.S. 202 (1944), 234, 250 + +Union National Bank _v._ Lamb, 337 U.S. 38 (1949), 657 + +Union Pacific R. Co. _v._ Pub. Service Comm., 248 U.S. 67 (1918), 197 + +Union P.R. Co. _v._ United States (Sinking Fund Cases), 99 U.S. 700 +(1879), 846 + +Union Paper Collar Co. _v._ Van Dusen, 23 Wall. 530 (1875), 272, 273 + +Union Refrigerator Transit Co. _v._ Kentucky, 199 U.S. 194 (1905) 211, +1041, 1042, 1045, 1052 + +Union Tank Line _v._ Wright, 249 U.S. 275 (1919), 202, 1053 + +United Fuel Gas Co. _v._ Hallanan, 257 U.S. 277 (1921), 138, 182, 195 + +United Fuel Gas Co. _v._ Railroad Commission, 278 U.S. 300 (1929), 1011 + +United Gas Public Service Co. _v._ Texas, 303 U.S. 123 (1938), 570 + +United Public Workers of America _v._ Mitchell, 330 U.S. 75 (1947), 450, +460, 545, 550, 561, 794, 909 + +United R. & Electric Co. _v._ West, 280 U.S. 234 (1930), 1007 + +United States, Ex Parte, 242 U.S. 27 (1916), 407 + +United States _v._ Abilene & S.R. Co., 265 U.S. 274 (1924), 850 + +United States _v._ Aczel, 219 F. 917 (1915), 1208 + +United States _v._ Alford, 274 U.S. 264 (1927), 883 + +United States _v._ Allegheny County, 322 U.S. 174 (1944), 732 + +United States _v._ American Bell Tel. Co., 128 U.S. 315 (1888), 584 + +United States _v._ Amsden, 6 F. 819 (1881), 1186 + +United States _v._ Anderson, 9 Wall. 56 (1870), 547 + +United States _v._ Appalachian Electric Power Co., 311 U.S. 377 (1940), +128, 131, 550, 577, 868, 869, 920 + +United States _v._ Arizona, 295 U.S. 174 (1935), 128 + +United States _v._ Arjona, 120 U.S. 479 (1887), 278 + +United States _v._ Arredondo, 6 Pet. 691 (1932), 512 + +United States _v._ Atchison, T. & S.F.R. Co., 234 U.S. 476 (1914), 137 + +United States _v._ Athens Armory, 24 Fed. Cas. No. 14,473 (1868), 643 + +United States _v._ Bailey, 9 Pet. 238 (1835), 636 + +United States _v._ Ball, 163 U.S. 662 (1896), 839 + +United States _v._ Ballard, 322 U.S. 78 (1944), 766 + +United States _v._ Ballin, 144 U.S. 1 (1892), 96, 97, 98 + +United States _v._ Baltimore & O.R. Co., 17 Wall. 322 (1873), 106, 340 + +United States _v._ Barnow, 239 U.S. 74 (1915), 309 + +United States _v._ Bathgate, 246 U.S. 220 (1918), 88 + +United States _v._ Bausch & L. Optical Co., 321 U.S. 707 (1944), 828 + +United States _v._ Bayer, 331 U.S. 532 (1947), 840 + +United States _v._ Beebe, 127 U.S. 338 (1888), 584 + +United States _v._ Bekins, 304 U.S. 27 (1938), 262, 264 + +United States _v._ Belmont, 301 U.S. 324 (1937), 437, 439 + +United States _v._ Bennett, 232 U.S. 299 (1914), 862 + +United States _v._ Benz, 282 U.S. 304 (1931), 407 + +United States _v._ Berwind-White Coal Mine Co., 274 U.S. 564 (1927), 861 + +United States _v._ Bethlehem Steel Corp., 315 U.S. 289 (1942), 289 + +United States _v._ Bevans, 3 Wheat. 336 (1818), 578 + +United States _v._ Bitty, 208 U.S. 393 (1908), 615 + +United States _v._ Brig Malek Adhel, 2 How. 210 (1844), 278 + +United States _v._ Brime, 272 U.S. 549 (1926), 149 + +United States _v._ Britton, 108 U.S. 199 (1883), 878 + +United States _v._ Brooks, 54 F. Supp. 995 (1944), 953 + +United States _v._ Bryan, 339 U.S. 323 (1950), 86, 98 + +United States _v._ Burnison, 339 U.S. 87 (1950), 724 + +United States _v._ Burns, 12 Wall. 246 (1871), 275, 404 + +United States _v._ Burr, 4 Cr. 470 (1807), 640, 643, 645 + +United States _v._ Butler, 297 U.S. 1 (1936), 114, 115, 153, 561, 564, +918 + +United States _v._ California, 297 U.S. 175 (1936), 139, 920 + +United States _v._ California, 332 U.S. 19 (1947), 163, 325, 585, 700 + +United States _v._ Capital Transit Co., 338 U.S. 286 (1949), 137 + +United States _v._ Carll, 105 U.S. 611 (1882), 884 + +United States _v._ Carmack, 329 U.S. 230 (1946), 865 + +United States _v._ Carolene Products Co., 304 U.S. 144 (1938), 124, 563, +791, 804, 859, 918 + +United States _v._ Cathcart, 25 Fed. Cas. No. 14,756 (1864), 643 + +United States _v._ Causby, 328 U.S. 256 (1946), 867, 1065, 1068 + +United States _v._ Chamber, 291 U.S. 217 (1934), 545, 1214 + +United States _v._ Chandler-Dunbar Waterpower Co., 229 U.S. 53 (1913), +128, 130, 869, 870 + +United States _v._ Chemical Foundation, 272 U.S. 1 (1926), 80, 290, 295, +865 + +United States _v._ Chicago, M., St. P. & Pac. R. Co., 312 U.S. 592 +(1941), 128 + +United States _v._ C.I.O., 335 U.S. 105 (1948), 565, 793 + +United States _v._ Clarke, 8 Pet. 436 (1834), 585 + +United States _v._ Clarke, 20 Wall. 92 (1874), 477 + +United States _v._ Classic, 313 U.S. 299 (1941) 87, 94, 1164, 1176, 1185 + +United States _v._ Coe, 155 U.S. 76 (1894), 534 + +United States _v._ Cohen Grocery Company, 255 U.S. 81 (1921), 881 + +United States _v._ Commodities Trading Corp., 339 U.S. 121 (1950), 298, +870 + +United States _v._ Commodore Park, Inc., 324 U.S. 386 (1945), 128, 868 + +United States _v._ Constantine, 296 U.S. 287 (1935), 110, 111, 919, 1214 + +United States _v._ Cook, 17 Wall. 168 (1872), 884 + +United States _v._ Coolidge, 1 Wheat. 415 (1816), 878 + +United States _v._ Coombs, 12 Pet. 72 (1838), 578 + +United States _v._ Cooper, 4 Dall. 341 (1800), 99 + +United States _v._ Cornell, 25 Fed. Cas. No. 14,867 (1819), 307 + +United States _v._ Cors, 337 U.S. 325 (1949), 298, 870 + +United States _v._ Corson, 114 U.S. 619 (1885), 404 + +United States _v._ Cramer, 137 F. (2d) 888 (1943), 643 + +United States _v._ Cress, 243 U.S. 316 (1917), 128, 869, 1065, 1068 + +United States _v._ Cruikshank, 92 U.S. 542 (1876), 806, 807, 813, 884, +967, 1183 + +United States _v._ Curtiss-Wright Export Corp., 299 U.S. 304 (1936), 72, +73, 80, 280, 380, 392, 413, 429 + +United States _v._ Darby, 312 U.S. 100 (1941) 153, 156, 163, 173, 724, +827, 883, 917, 918 + +United States _v._ Dawson, 15 How. 467 (1853), 881 + +United States _v._ De Los Reyes, 3 Phil. 349 (1904), 643 + +United States _v._ Delaware & H. Co., 213 U.S. 366 (1909), 137, 565 + +United States _v._ Detroit Timber & Lumber Co., 200 U.S. 321 (1906), 524 + +United States _v._ De Walt, 128 U.S. 393 (1888), 838 + +United States _v._ Dewitt, 9 Wall. 41 (1870), 122, 168, 917 + +United States _v._ Dickinson, 331 U.S. 745 (1947), 867, 869 + +United States _v._ Di Re, 332 U.S. 581 (1948), 830 + +United States _v._ Doremus, 249 U.S. 86 (1919), 111 + +United States _v._ Duell, 172 U.S. 576 (1899), 274 + +United States _v._ Dunnington, 146 U.S. 338 (1892), 865 + +United States _v._ Eaton, 144 U.S. 677 (1892), 82, 878 + +United States _v._ Eckford, 6 Wall. 484 (1868), 586, 619 + +United States _v._ E.C. Knight Co. (The "Sugar Trust" Case), 156 U.S. 1 +(1895), 144, 154 + +United States _v._ Eliason, 16 Pet. 291 (1842), 302, 477, 482 + +United States _v._ Evans, 213 U.S. 297 (1909), 545, 839 + +United States _v._ Farden, 99 U.S. 10 (1879), 477 + +United States _v._ Felin (J.J.) & Co., 334 U.S. 624 (1948), 870 + +United States _v._ Ferger, 250 U.S. 199 (1919), 143, 919 + +United States _v._ Ferreira, 13 How. 40 (1852), 513, 535, 550, 551, 623 + +United States _v._ Fisher, 2 Cr. 358 (1805), 117, 307, 722 + +United States _v._ Fisher, 109 U.S. 143 (1883), 341 + +United States _v._ Fitzgerald, 15 Pet. 407 (1841), 702 + +United States _v._ Fleischman, 339 U.S. 349 (1950), 86 + +United States _v._ Fletcher, 148 U.S. 84 (1893), 476, 477 + +United States _v._ Flores, 3 F. Supp. 134 (1932), 279 + +United States _v._ Flores, 289 U.S. 137 (1933), 279 + +United States _v._ Forty-three Gallons of Whiskey, 93 U.S. 188 (1876), +421 + +United States _v._ Forty-three Gallons of Whiskey, 108 U.S. 491 (1883), +432 + +United States _v._ Fox, 94 U.S. 315 (1877), 308 + +United States _v._ Fox, 95 U.S. 670 (1878), 309 + +United States _v._ Frankfort Distilleries, Inc., 324 U.S. 293 (1945), +1234 + +United States _v._ Fricke, 259 F. 673 (1919), 643 + +United States _v._ Furlong, 5 Wheat. 184 (1820), 297, 841 + +United States _v._ Gale, 109 U.S. 65 (1883), 93, 94 + +United States _v._ Garbish, 222 U.S. 257 (1911), 855 + +United States _v._ Gaskin, 320 U.S. 527 (1944), 954 + +United States _v._ General Motors Corp., 323 U.S. 373 (1945), 298, 871 + +United States _v._ Germaine, 99 U.S. 508 (1879), 452 + +United States _v._ Gettysburg Electric R. Co., 160 U.S. 668 (1896), 114, +866 + +United States _v._ Gordon, 25 Fed. Cas. No. 15,231 (1861), 964 + +United States _v._ Gradwell, 243 U.S. 476 (1917), 88 + +United States _v._ Gratiot, 14 Pet. 526 (1840), 701 + +United States _v._ Great Falls Mfg. Co., 112 U.S. 645 (1884), 872 + +United States _v._ Greathouse, 26 Fed. Cas. No. 15,254 (1863), 643 + +United States _v._ Greiner, 26 Fed. Cas. No. 15,262 (1861), 643 + +United States _v._ Grimaud, 220 U.S. 506 (1911), 76, 82 + +United States _v._ Hall, 98 U.S. 343 (1879), 309 + +United States _v._ Hammond, 1 Cr. 15 (1801), 301 + +United States _v._ Hanway, 26 Fed. Cas. No. 15,299 (1851), 640, 643 + +United States _v._ Harris, 106 U.S. 629 (1883), 688, 953, 1176 + +United States _v._ Hartwell, 6 Wall. 385 (1868), 386, 445 + +United States _v._ Haupt, 136 F. (2d) 661 (1943), 643 + +United States _v._ Hayman, 342 U.S. 205 (1952), 885 + +United States _v._ Heinszen & Co., 206 U.S. 370 (1907), 858 + +United States _v._ Hill, 248 U.S. 420 (1919), 120, 170 + +United States _v._ Hodges, 26 Fed. Cas. No. 15,374 (1815), 643 + +United States _v._ Holliday, 3 Wall. 407 (1866), 253 + +United States _v._ Home Ins. Co., 22 Wall. 99 (1875), 728 + +United States _v._ Hoxie, 26 Fed. Cas. No. 15,407 (1808), 643 + +United States _v._ Hudson & Goodwin, 299 U.S. 498 (1937), 863, 878 + +United States _v._ Hudson & Goodwin, 7 Cr. 32 (1812), 618, 878 + +United States _v._ Hvoslef, 237 U.S. 1 (1915), 322 + +United States _v._ Jacobs, 306 U.S. 363 (1939), 864 + +United States _v._ Jeffers, 342 U.S. 481 (1951), 824 + +United States _v._ Jefferson Electric Co., 291 U.S. 386 (1934), 550 + +United States _v._ John J. Felin & Co., 334 U.S. 624 (1948), 298 + +United States _v._ Johnson, 323 U.S. 273 (1944), 881 + +United States _v._ Joint-Traffic Assoc., 171 U.S. 505 (1898), 147 + +United States _v._ Jones, 18 How. 92 (1856), 477 + +United States _v._ Jones, 109 U.S. 513 (1883), 73, 865, 872 + +United States _v._ Ju Toy, 198 U.S. 253 (1905), 846, 852 + +United States _v._ Kagama, 118 U.S. 375 (1886), 73, 253 + +United States _v._ Kansas City Life Ins. Co., 339 U.S. 799 (1950), 869 + +United States _v._ Keehler, 9 Wall. 83 (1870), 728 + +United States _v._ Kirby, 7 Wall. 482 (1869), 270 + +United States _v._ Klamath Indians, 304 U.S. 119 (1938), 871 + +United States _v._ Klein, 13 Wall. 128 (1872), 324, 407, 411, 514 + +United States _v._ Knight (E.C.) Co., 156 U.S. 1 (1895), 144 + +United States _v._ La Franca, 282 U.S. 568 (1931), 841 + +United States _v._ Lagnason, 3 Phil. 472 (1904), 643 + +United States _v._ Landram, 118 U.S. 81 (1886), 895 + +United States _v._ Lanza, 260 U.S. 377 (1922), 841 + +United States _v._ Lee, 106 U.S. 196 (1882), 501, 588, 590, 872, 931, +934 + +United States _v._ Lee, 26 Fed. Cas. No. 15,584 (1814), 586, 587, 643 + +United States _v._ Lefkowitz, 285 U.S. 452 (1932), 828 + +United States _v._ Louisiana, 339 U.S. 699 (1950), 585, 700, 894 + +United States _v._ Lovett, 328 U.S. 303 (1946), 316, 460 + +United States _v._ Lowden, 308 U.S. 225 (1939), 861 + +United States _v._ Lynah, 188 U.S. 445 (1903), 865, 869, 1065, 1068 + +United States _v._ Macintosh, 283 U.S. 605 (1931), 257, 280, 769 + +United States _v._ Mack, 295 U.S. 480 (1935), 1214 + +United States _v._ Magtibay, 2 Phil. 703 (1903), 643 + +United States _v._ Marigold, 9 How. 560 (1850), 161, 266, 309 + +United States _v._ Masonite Corp., 316 U.S. 265 (1942), 275 + +United States _v._ Maxwell Land-Grant & R. Co., 121 U.S. 325 (1887), 702 + +United States _v._ McGratney, 104 U.S. 621 (1882), 699 + +United States _v._ McGowan, 302 U.S. 535 (1938), 702 + +United States _v._ McLemore, 4 How. 286 (1846), 586 + +United States _v._ McMillan, 165 U.S. 504 (1897), 703, 704 + +United States _v._ Michigan, 190 U.S. 379 (1903), 585 + +United States _v._ Midwest Oil Co., 236 U.S. 459 (1915), 482, 702 + +United States _v._ Miller, 307 U.S. 174 (1939), 813 + +United States _v._ Miller, 317 U.S. 369 (1943), 870 + +United States _v._ Minnesota, 270 U.S. 181 (1926), 585 + +United States _v._ Mitchell, 26 Fed. Cas. No. 15,788 (1795), 640, 612 + +United States _v._ Mitchell, 109 U.S. 146 (1883), 341 + +United States _v._ Mitchell, 322 U.S. 65 (1944), 843 + +United States _v._ Monia, 317 U.S. 424 (1943), 842 + +United States _v._ Montgomery Ward & Co., 150 F. (2d) 369 (1945), 392 + +United States _v._ Moreland, 258 U.S. 433 (1922), 303, 838 + +United States _v._ Morton Salt Co., 338 U.S. 632 (1950), 828 + +United States _v._ Mosley, 238 U.S. 383 (1915), 87, 88, 94, 309 + +United States _v._ Murdock, 284 U.S. 141 (1931), 842 + +United States _v._ National Association of Real Estate Boards, 339 U.S. +485 (1950), 840 + +United States _v._ New River Collieries Co., 262 U.S. 341 (1923), 870 + +United States _v._ New Wrinkle, Inc., 342 U.S. 371 (1952), 275 + +United States _v._ New York & C. Mail S.S. Co., 269 U.S. 304 (1925), 859 + +United States _v._ N.Y. Rayon Importing Co., 329 U.S. 654 (1947), 587 + +United States _v._ New York Telephone Co., 326 U.S. 638 (1946), 860 + +United States _v._ Nice, 241 U.S. 591 (1916), 253 + +United States _v._ North American Co., 253 U.S. 330 (1920), 495 + +United States _v._ North Carolina, 136 U.S. 211 (1890), 584 + +United States _v._ Ohio Oil Co., 234 U.S. 548 (1914), 137, 138 + +United States _v._ Oppenheimer, 242 U.S. 85 (1916), 839 + +United States _v._ Oregon, 295 U.S. 1 (1935), 703 + +United States _v._ Oregon State Medical Society, 343 U.S. 326 (1952), +121 + +United States _v._ Ortega, 11 Wheat. 467 (1826), 571 + +United States _v._ Pacific Railroad, 120 U.S. 227 (1887), 298 + +United States _v._ Padelford, 9 Wall. 531 (1870), 407 + +United States _v._ Palmer, 3 Wheat. 610 (1818), 473 + +United States _v._ Palmer, 128 U.S. 262 (1888), 275 + +United States _v._ Paramount Pictures, 334 U.S. 131 (1948), 787 + +United States _v._ Pennsylvania R. Co., 323 U.S. 612 (1945), 135 + +United States _v._ Percheman, 7 Pet. 51 (1833), 423 + +United States _v._ Perez, 9 Wheat. 579 (1824), 839, 1135 + +United States _v._ Perkins, 116 U.S. 483 (1886), 460 + +United States _v._ Petrillo, 332 U.S. 1 (1947), 564, 883, 953, 1146 + +United States _v._ Petty Motor Co., 327 U.S. 372 (1946), 298, 871 + +United States _v._ Pewee Coal Co., 341 U.S. 114 (1951), 494, 495, 497, +871 + +United States _v._ Phellis, 257 U.S. 156 (1921), 1195 + +United States _v._ Pink, 315 U.S. 203 (1942), 438, 497, 722 + +United States _v._ Potter, 56 Fed. 83 (1892), 881 + +United States _v._ Powell, 27 Fed. Cas. No. 16,079 (1871), 1173 + +United States _v._ Powers, 307 U.S. 214 (1939), 317 + +United States _v._ Price, 116 U.S. 43 (1885), 323 + +United States _v._ Pryor, 27 Fed Cas. No. 16,096 (1814), 643 + +United States _v._ Rabinowitz, 339 U.S. 56 (1950), 566, 829 + +United States _v._ Railroad Bridge Co., 27 Fed. Cas. No. 16,114 (1855), +268 + +United States _v._ Randenbush, 8 Pet. 288 (1834), 840 + +United States _v._ Rauscher, 119 U.S. 407 (1886), 418, 696 + +United States _v._ Ravara, 2 Dall. 297 (1793), 571 + +United States _v._ Reading Railroad, 123 U.S. 113 (1887), 895 + +United States _v._ Realty Co., 163 U.S. 427 (1896), 117, 323, 893 + +United States _v._ Reese, 92 U.S. 214 (1876), 93, 1183, 1186 + +United States _v._ Regan, 232 U.S. 37 (1914), 878 + +United States _v._ Reynolds, 235 U.S. 133 (1914), 950 + +United States _v._ Rio Grande Dam & Irrig. Co., 174 U.S. 690 (1899), 128 + +United States _v._ River Rouge Improv. Co., 269 U.S. 411 (1926), 128 + +United States _v._ Rizzo, 297 U.S. 530 (1936), 1214 + +United States _v._ Robinson, 259 F. 685 (1919), 643 + +United States _v._ Rock Royal Co-operative, 307 U.S. 533 (1939), 75, 76, +78, 160, 172, 854, 855 + +United States _v._ Russell, 13 Wall. 623 (1871), 298, 404, 496, 872 + +United States _v._ Safety Car Heating & L. Co., 297 U.S. 88 (1936), 1199 + +United States _v._ Sanchez, 340 U.S. 42 (1950), 111 + +United States _v._ Sandoval, 231 U.S. 28 (1914), 253, 699 + +United States _v._ San Francisco, 310 U.S. 16 (1940), 702 + +United States _v._ Sanges, 144 U.S. 310 (1892), 839 + +United States _v._ San Jacinto Tin Co., 125 U.S. 273 (1888), 584 + +United States _v._ Saylor, 322 U.S. 385 (1944), 87, 88, 94 + +United States _v._ Schooner Betsey & Charlotte, 4 Cr. 443 (1808), 576 + +United States _v._ Schooner Peggy, 1 Cr. 103 (1801), 417, 422 + +United States _v._ Schooner Sally, 2 Cr. 406 (1805), 576 + +United States _v._ Schurz, 102 U.S. 378 (1880), 501 + +United States _v._ Schwimmer, 279 U.S. 644 (1929), 257, 769 + +United States _v._ Shaw, 309 U.S. 495 (1940), 587 + +United States _v._ Shipp, 203 U.S. 563 (1906), 520 + +United States _v._ Shreveport Grain & Elevator Co., 287 U.S. 77 (1932), +76, 883 + +United States _v._ Simmons, 96 U.S. 360 (1878), 884 + +United States _v._ Simms, 1 Cr. 252 (1803), 302 + +United States _v._ Sing Tuck, 194 U.S. 161 (1904), 852 + +United States _v._ Smith, 5 Wheat. 153 (1820), 278 + +United States _v._ Smith, 286 U.S. 6 (1932), 97, 454 + +United States _v._ Smith, 331 U.S. 469 (1947), 314 + +United States _v._ Socony-Vacuum Oil Co., 310 U.S. 150 (1940), 881 + +United States _v._ South-Eastern Underwriters Association, 322 U.S. 533 +(1944), 121, 168, 177, 207, 214 + +United States _v._ Spector, 343 U.S. 169 (1952), 261, 881 + +United States _v._ Sponenbarger, 308 U.S. 256 (1939), 867 + +United States _v._ Sprague, 282 U.S. 716 (1931), 713, 915 + +United States _v._ Stafoff, 260 U.S. 477 (1923), 1214 + +United States _v._ Stinson, 197 U.S. 200 (1905), 610 + +United States _v._ Sullivan, 274 U.S. 259 (1927), 1201 + +United States _v._ Sullivan, 332 U.S. 689 (1948), 153 + +United States _v._ Tarble, 13 Wall. 397 (1872), 631, 728 + +United States _v._ Teller, 107 U.S. 64 (1883), 795 + +United States _v._ Texas, 143 U.S. 621 (1892), 585, 698 + +United States _v._ Texas, 339 U.S. 707 (1950), 585, 699, 700 + +United States _v._ The Thekla, 266 U.S. 328 (1924), 610 + +United States _v._ Toronto Nav. Co., 338 U.S. 396 (1949), 298, 870 + +United States _v._ Trans-Missouri Freight Asso., 166 U.S. 290 (1897), +147 + +United States _v._ United Mine Workers, 330 U.S. 258 (1947), 485, 520, +622 + +United States _v._ United States Fidelity Co., 309 U.S. 506 (1940), 591 + +United States _v._ Unzeuta, 281 U.S. 138 (1930), 306, 307 + +United States _v._ Utah, 283 U.S. 64 (1931), 585 + +United States _v._ Van Duzee, 140 U.S. 169 (1891), 884 + +United States _v._ Vigol, 28 Fed. Cas. No. 16,621 (1795), 640, 642 + +United States _v._ Waddell, 112 U.S. 76 (1884), 309, 702, 967 + +United States _v._ Wallace & Tiernan Co., 336 U.S. 793 (1949), 831 + +United States _v._ Walsh, 331 U.S. 432 (1947), 136, 153 + +United States _v._ Welch, 217 U.S. 333 (1910), 870 + +United States _v._ Werner, 247 F. 708 (1918), 643 + +United States _v._ West Virginia, 295 U.S. 463 (1935), 584, 585 + +United States _v._ Wheeler, 254 U.S. 281 (1920), 688, 967, 1175 + +United States _v._ White, 322 U.S. 694 (1944), 827, 844 + +United States _v._ William, The, 28 Fed. Cas. No. 16,700 (1808), 161 + +United States _v._ Williams, 302 U.S. 46 (1937), 285 + +United States _v._ Willow River Power Co., 324 U.S. 499 (1945), 128, 869 + +United States _v._ Wilson, 7 Pet. 150 (1833), 406, 407, 839 + +United States _v._ Wiltberger, 5 Wheat. 76 (1820), 646 + +United States _v._ Winans, 198 U.S. 371 (1905), 700 + +United States _v._ Wong Kim Ark, 160 U.S. 649 (1898), 964 + +United States _v._ Wood, 299 U.S. 123 (1936), 879 + +United States _v._ Worrall, 2 Dall. 384 (1790), 309 + +United States _v._ Wrightwood Dairy Co., 315 U.S. 110 (1942), 122, 153, +159 + +United States _v._ Wurzbach, 280 U.S. 396 (1930), 94, 883 + +United States _v._ Yuginovich, 256 U.S. 450 (1921), 110, 1204 + +United States _v._ Zucker, 161 U.S. 475 (1896), 878 + +United States ex rel. Attorney General _v._ Delaware & Hudson Co., 213 +U.S. 366 (1909), 861 + +United States ex rel. Bilokumsky _v._ Tod, 263 U.S. 149 (1923), 885 + +United States ex rel. Brown _v._ Lane, 232 U.S. 598 (1914), 864 + +United States ex rel. Burnett _v._ Teller, 107 U.S. 64 (1883), 857 + +United States ex rel. Creary _v._ Weeks, 259 U.S. 336 (1922), 847 + +United States ex rel. Dunlap _v._ Black, 128 U.S. 40 (1888), 501 + +United States ex rel. Goldberg _v._ Daniels, 231 U.S. 218 (1914), 588 + +United States ex rel. Greathouse _v._ Dern, 289 U.S. 352 (1933), 301 + +United States ex rel. Knauff _v._ Shaughnessy, 338 U.S. 537 (1950), 852 + +United States ex rel. McCann _v._ Adams, 320 U.S. 220 (1943), 885 + +United States ex rel. Milwaukee Publishing Co. _v._ Burleson, 255 U.S. +407 (1921), 860, 904 + +United States ex rel. Randall _v._ United States Marshal for Eastern +Dist. of New York, 143 F. (2d) 830 (1944), 1214 + +United States ex rel. Riggs _v._ Johnson County, 6 Wall. 166 (1868), 627 + +United States ex rel. Tisi _v._ Tod, 264 U.S. 131 (1924), 78 + +United States ex rel. Turner _v._ Fisher, 222 U.S. 204 (1911), 864 + +United States ex rel. Turner _v._ Williams, 194 U.S. 279 (1904), 874 + +United States ex rel. T.V.A. _v._ Powelson, 319 U.S. 266 (1943), 870 + +United States ex rel. T.V.A. _v._ Welch, 327 U.S. 546 (1946), 865, 1064 + +United States ex rel. Vajtauer _v._ Comr. of Immigration, 273 U.S. 103 +(1927), 853 + +United States Exp. Co. _v._ Kountze Bros., 8 Wall. 342 (1869), 311 + +United States Express Co. _v._ Minnesota, 223 U.S. 335 (1912), 204 + +United States Glue Co. _v._ Oak Creek, 247 U.S. 321 (1918), 208 + +United States Mortgage Co. _v._ Matthews, 293 U.S. 232 (1934), 355 + +United Surety Co. _v._ American Fruit Product Co., 238 U.S. 140 (1915), +848 + +University of Illinois _v._ United States, 289 U.S. 48 (1933), 107, 162 + +Untermeyer _v._ Anderson, 276 U.S. 440 (1928), 863 + +Upshaw _v._ United States, 335 U.S. 410 (1948), 843 + +Utah Power & Light Co. _v._ Pfost, 286 U.S. 165 (1932), 138, 181, 1051, +1148 + +Utah Power & Light Co. _v._ United States, 243 U.S. 389 (1917), 702 + +Utley _v._ St Petersburg, 292 U.S. 106 (1934), 1059 + +Uveges _v._ Pennsylvania, 335 U.S. 437 (1948), 1100, 1106, 1108, 1109 + + +V + +Valentine _v._ Chrestensen, 316 U.S. 52 (1942), 786 + +Valentine _v._ Great A. & P. Tea Co., 299 U.S. 32 (1936), 1149 + +Vallandigham, Ex parte, 28 Fed. Cas. No. 16,816 (1863), 643 + +Vallandigham, Ex parte, 1 Wall. 243 (1864), 612 + +Valvoline Oil Co. _v._ United States, 308 U.S. 141 (1939), 860 + +Van Brocklin _v._ Tennessee, 117 U.S. 151 (1886), 699, 703, 732 + +Vance _v._ Vance, 108 U.S. 514 (1883), 355 + +Vancouver S.S. Co. _v._ Rice, 288 U.S. 445 (1933), 581 + +Vandenbark _v._ Owens-Illinois Co., 311 U.S. 538 (1941), 608 + +Van Dyke _v._ Geary, 244 U.S. 39 (1917), 1002 + +Van Home's Lessee _v._ Dorrance, 2 Dall. 304 (1795), 560 + +Van Ness _v._ Bank of United States, 13 Pet. 17 (1839), 302 + +Van Oster _v._ Kansas, 272 U.S. 465 (1926), 1032 + +Veazie Bank _v._ Fenno, 8 Wall. 533 (1869), 108, 266, 310, 319 + +Veix _v._ Sixth Ward Building & Loan Ass'n. of Newark, 310 U.S. 32 +(1940), 359 + +Venner _v._ Great Northern R. Co., 209 U.S. 24 (1908), 620 + +Vial _v._ Penniman, 103 U.S. 714 (1881), 355 + +Vicksburg _v._ Tobin, 100 U.S. 430 (1880), 366 + +Vicksburg _v._ Vicksburg Waterworks Co., 202 U.S. 453 (1906), 329 + +Vicksburg & M.R. Co. _v._ Putnam, 118 U.S. 545 (1886), 895 + +Vicksburg S. & P.R. Co. _v._ Dennis, 116 U.S. 665 (1886), 348 + +Viereck _v._ United States, 318 U.S. 236 (1943), 881 + +Virginia, Ex parte, 100 U.S. 339 (1880), 1176 + +Virginia _v._ Imperial Sales Co., 293 U.S. 15 (1934), 200 + +Virginia _v._ Rives, 100 U.S. 313 (1880), 1142, 1168, 1176 + +Virginia _v._ Tennessee, 148 U.S. 503 (1893), 367, 369 + +Virginia _v._ West Virginia, 11 Wall. 39 (1871), 369 + +Virginia _v._ West Virginia, 206 U.S. 290 (1907), 595 + +Virginia _v._ West Virginia, 209 U.S. 514 (1908), 595 + +Virginia _v._ West Virginia, 220 U.S. 1 (1911), 593, 595 + +Virginia _v._ West Virginia, 222 U.S. 17 (1911), 595 + +Virginia _v._ West Virginia, 231 U.S. 89 (1913), 595 + +Virginia _v._ West Virginia, 234 U.S. 117 (1914), 595 + +Virginia _v._ West Virginia, 238 U.S. 202 (1915), 595 + +Virginia _v._ West Virginia, 241 U.S. 531 (1916), 595 + +Virginia _v._ West Virginia, 246 U.S. 565 (1918), 356, 370, 595, 593 + +Virginian R. Co. _v._ System Federation No. 40, 300 U.S. 515 (1937), +142, 540, 622, 855, 859 + +Voeller _v._ Neilston Co., 311 U.S. 531 (1941), 1083 + +Voight _v._ Wright, 141 U.S. 62 (1891), 238 + +Von Hoffman _v._ Quincy, 4 Wall. 535 (1867), 354, 355, 356 + +Von Moltke _v._ Gillies, 332 U.S. 708 (1948), 885 + + +W + +Wabash R. Co. _v._ Adelbert College, 208 U.S. 38 (1908), 627 + +Wabash R. Co. _v._ Defiance, 167 U.S. 88 (1897), 352 + +Wabash R. Co. _v._ Flannigan, 192 U.S. 29 (1904), 656 + +Wabash, St. Louis & Pacific R. Co. _v._ Illinois, 118 U.S. 557 (1886), +134, 220 + +Wachovia Bank & Trust Co. _v._ Doughton, 272 U.S. 567 (1926), 1046 + +Wade _v._ Hunter, 336 U.S. 684 (1949), 286, 839 + +Wade _v._ Mayo, 334 U.S. 672 (1948), 634, 1105, 1108, 1109 + +Wadley Southern R. Co. _v._ Georgia, 235 U.S. 651 (1915), 1013 + +Waggoner _v._ Flack, 188 U.S. 595 (1903), 355 + +Wagner _v._ Covington, 251 U.S. 95 (1919), 183, 184, 191, 239 + +Wagner _v._ Leser, 239 U.S. 207 (1915), 1041 + +Wagoner _v._ Evans, 170 U.S. 588 (1898), 703 + +Waite _v._ Macy, 246 U.S. 606 (1918), 590 + +Wales _v._ Stetson, 2 Mass. 143 (1806), 338 + +Waley _v._ Johnston, 316 U.S. 101 (1942), 314 + +Walker _v._ Johnston, 312 U.S. 275 (1941), 314, 885 + +Walker _v._ McLoud, 204 U.S. 302 (1907), 864 + +Walker _v._ New Mexico & S.P.R. Co., 165 U.S. 593 (1897), 703, 892, 894 + +Walker _v._ Sauvinet, 92 U.S. 90 (1876), 893, 971, 1096 + +Walker _v._ Whitehead, 16 Wall. 314 (1873), 332 + +Wall, Ex parte, 107 U.S. 265 (1883), 528, 847 + +Wallace _v._ Adams, 204 U.S. 415 (1907), 534 + +Wallace _v._ Hines, 253 U.S. 66 (1920), 202, 203, 1053 + +Wallace _v._ United States, 257 U.S. 541 (1922), 404, 460 + +Wallach _v._ Van Riswick, 92 U.S. 202 (1876), 645 + +Walla Walla _v._ Walla Walla Water Co., 172 U.S. 1 (1898), 329, 349 + +Walling _v._ Jacksonville Paper Co. 317 U.S. 564 (1943), 157 + +Walling _v._ Michigan, 116 U.S. 446 (1886), 185 + +Walls _v._ Midland Carbon Co., 254 U.S. 300 (1920), 1026 + +Walsh _v._ Brewster, 255 U.S. 536 (1921), 1199 + +Walton _v._ Southern Package Corp., 320 U.S. 540 (1944), 157 + +Ward _v._ Love County, 253 U.S. 17 (1920), 1060 + +Ward _v._ Maryland, 12 Wall. 418 (1871), 185, 692 + +Ward _v._ Race Horse, 163 U.S. 504 (1896), 432, 701 + +Ward _v._ Texas, 316 U.S. 547 (1942), 1113 + +Ward & Gow _v._ Krinsky, 259 U.S. 503 (1922), 989, 1159 + +Ware _v._ Hylton, 3 Dall. 199 (1797), 335, 415, 416, 555 + +Ware _v._ Mobile County, 209 U.S. 405 (1908), 189 + +Waring _v._ Clarke, 5 How. 441 (1847), 574, 576, 577, 893 + +Waring _v._ Mobile, 8 Wall. 110 (1869), 364 + +Warren-Bradshaw Co. _v._ Hall, 317 U.S. 88 (1942), 157 + +Washington _v._ Dawson & Co., 264 U.S. 219 (1924), 311, 581 + +Washington _v._ Superior Court, 289 U.S. 361 (1933), 1078 + +Washington ex rel. Oregon R. & N. Co. _v._ Fairchild, 224 U.S. 510 +(1912), 1013 + +Washington ex rel. Seattle Title Trust Co. _v._ Roberage, 278 U.S. 116 +(1928), 1029 + +Washington Market Co. _v._ District of Columbia, 172 U.S. 361 (1899), +304 + +Washington-Southern Navigation Co. _v._ Baltimore & P.S.B. Co., 263 U.S. +629 (1924), 526 + +Washington University _v._ Rouse, 8 Wall. 439 (1869), 351 + +Waterloo Distilling Corp. _v._ United States, 282 U.S. 577 (1931), 841 + +Waters-Pierce Oil Co. _v._ Texas, 212 U.S. 86 (1909), 1017, 1133 + +Watkins, Ex parte, 3 Pet. 193 (1830), 313, 314, 904 + +Watkins, Ex parte, 7 Pet. 568 (1833), 302 + +Watson _v._ Buck, 313 U.S. 387 (1941), 564 + +Watson _v._ Jones, 13 Wall. 679 (1872), 627 + +Watson _v._ Maryland, 218 U.S. 173 (1910), 1024, 1145, 1146, 1155 + +Watson _v._ Mercer, 8 Pet. 88 (1834), 327 + +Watson _v._ Tarpley, 18 How. 517 (1856), 604 + +Watts, In re, 190 U.S. 1 (1903), 265 + +Watts _v._ Indiana, 338 U.S. 49 (1949), 1120, 1121 + +Watts _v._ United States, 1 Wash. Terr. 288 (1870), 435 + +Waugh _v._ Mississippi University, 237 U.S. 589 (1915), 985 + +Wayman _v._ Southard, 10 Wheat. 1 (1825), 74, 75, 79, 512, 525 + +Weaver _v._ Palmer Bros. Co., 270 U.S. 402 (1926), 1031 + +Webb, Ex parte, 225 U.S. 663 (1912), 699 + +Webber _v._ Virginia, 103 U.S. 455 (1881), 185 + +Weber _v._ Freed, 239 U.S. 325 (1915), 162 + +Weber _v._ State Harbor Comrs., 18 Wall. 57 (1873), 698 + +Webster _v._ Reid, 11 How. 437 (1851), 893 + +Weeks _v._ United States, 232 U.S. 383 (1914), 828, 831, 905 + +Weems _v._ United States, 217 U.S. 349 (1910), 903 + +Weiss _v._ Stearn, 265 U.S. 242 (1924), 1195 + +Weiss _v._ United States, 308 U.S. 321 (1939), 136 + +Welch _v._ Cook, 97 U.S. 541 (1879), 304, 342 + +Welch _v._ Henry, 305 U.S. 134 (1938), 1039, 1150 + +Welch _v._ Swasey, 214 U.S. 91 (1909), 983, 1027, 1065, 1068, 1154 + +Welch Co. _v._ New Hampshire, 306 U.S. 79 (1939), 226, 251, 1155 + +Weller _v._ New York, 268 U.S. 319 (1925), 1024 + +Wells, Ex parte, 18 How. 307 (1856), 407 + +Wells _v._ Roper, 246 U.S. 335 (1918), 588, 590 + +Wells Fargo & Co. _v._ Ford, 238 U.S. 503 (1915), 658 + +Welton _v._ Missouri, 91 U.S. 275 (1876), 184, 218 + +West Coast Hotel _v._ Parrish, 300 U.S. 379 (1937), 303, 855, 980, 988, +1146, 1159 + +Western & A.R. Co. _v._ Georgia Public Service Commission, 267 U.S. 493 +(1925), 1012 + +Western & A.R. Co. _v._ Henderson, 279 U.S. 639 (1929), 1094, 1095 + +Western Distributing Co. _v._ Public Serv. Com. of Kansas, 285 U.S. 119 +(1932), 234 + +Western Life Indemnity Co. _v._ Rupp, 235 U.S. 261 (1914), 676 + +Western Live Stock _v._ Bureau of Revenue, 303 U.S. 250 (1938), 195, +204, 205, 207 + +Western Maid, The, 257 U.S. 419 (1922), 586 + +Western Oil Refining Co. _v._ Lipscomb, 244 U.S. 346 (1917), 187 + +Western Paper Makers' Chemical Co. _v._ United States, 271 U.S. 268 +(1926), 850 + +Western Turf Asso. _v._ Greenberg, 204 U.S. 359 (1907), 809, 981, 1024 + +Western Union Teleg. Co. _v._ Alabama Board of Assessment, 132 U.S. 472 +(1889), 204 + +Western Union Teleg. Co. _v._ Ann Arbor R. Co., 178 U.S. 239 (1900), 567 + +Western Union Teleg. Co. _v._ Brown, 234 U.S. 542 (1914), 232 + +Western Union Teleg. Co. _v._ Chiles, 214 U.S. 274 (1909), 305 + +Western Union Teleg. Co. _v._ Commercial Milling Co., 218 U.S. 406 +(1910), 232, 971, 1156 + +Western Union Teleg. Co. _v._ Crovo, 220 U.S. 364 (1911), 232 + +Western Union Teleg. Co. _v._ Foster, 247 U.S. 105 (1918), 120, 232 + +Western Union Teleg. Co. _v._ Industrial Com'n., 24 F. Supp. 370 (1938), +1085 + +Western Union Teleg. Co. _v._ International B. of E. Workers, 2 F (2d) +993 (1924), 953 + +Western Union Teleg. Co. _v._ Kansas ex rel. Coleman, 216 U.S. 1 (1910), +196, 1051 + +Western Union Teleg. Co. _v._ Lenroot, 323 U.S. 490 (1945), 158 + +Western Union Teleg. Co. _v._ Massachusetts, 125 U.S. 530 (1888), 200, +201 + +Western Union Teleg. Co. _v._ New Hope, 187 U.S. 419 (1903), 214 + +Western Union Teleg. Co. _v._ Pendleton, 122 U.S. 347 (1887), 232 + +Western Union Teleg. Co. _v._ Richmond, 224 U.S. 160 (1912), 232, 1009 + +Western Union Teleg. Co. _v._ Speight, 254 U.S. 17 (1920), 122, 126 + +Western Union Teleg. Co. _v._ Taggart, 163 U.S. 1 (1896), 201 + +Western Union Teleg. Co. _v._ Texas, 105 U.S. 460 (1882), 126, 193, 733 + +Weston _v._ Charleston, 2 Pet. 449 (1829), 729 + +West River Bridge Co. _v._ Dix, 6 How. 507 (1848), 350 + +West Side Belt R. Co. _v._ Pittsburgh Constr. Co., 219 U.S. 92 (1911), +685 + +West _v._ American Telephone & Telegraph Co., 311 U.S. 223 (1940), 607 + +West _v._ Louisiana, 194 U.S. 258 (1904), 1009, 1141 + +Wetmore _v._ Karrick, 205 U.S. 141 (1907), 659 + +Wharton _v._ Wise, 153 U.S. 155 (1894), 11, 369 + +Wheaton _v._ Peters, 8 Pet. 591 (1834), 271, 274, 275 + +Wheeler _v._ Jackson, 137 U.S. 245 (1890), 1092 + +Wheeler _v._ Sohmer, 233 U.S. 434 (1914), 1045, 1047 + +Wheeler _v._ United States, 226 U.S. 478 (1913), 827 + +Wheeler Lumber Bridge & Supply Co. _v._ United States, 281 U.S. 572 +(1930), 107 + +Wheeling, P. & C. Transportation Co. _v._ Wheeling, 99 U.S. 273 (1879), +366 + +Wheeling Steel Corp. _v._ Fox, 298 U.S. 193 (1936), 1042, 1050 + +Wheeling Steel Corp. _v._ Glander, 337 U.S. 562 (1949), 198, 1143, 1144, +1150 + +Whelan _v._ United States, 7 Cr. 112 (1812), 576 + +White _v._ Cannon, 6 Wall. 443 (1868), 728 + +White _v._ Hart, 13 Wall. 646 (1872), 728 + +White _v._ Ragen, 324 U.S. 760 (1945), 1102, 1125, 1126, 1137 + +White _v._ Texas, 310 U.S. 530 (1940), 1113 + +Whitehead _v._ Shattuck, 138 U.S. 146 (1891), 895 + +White River Turnpike Co. _v._ Vermont Cent. R. Co., 21 Vt. 590 (1849), +350 + +Whitfield _v._ Ohio, 297 U.S. 431 (1936), 217, 219, 240, 687 + +Whitfield ex rel. Hadley _v._ Aetna L. Ins. Co., 205 U.S. 489 (1907), +1023 + +Whitney _v._ California, 274 U.S. 357 (1927), 772, 776, 800, 1156 + +Whitney _v._ Graves, 299 U.S. 366 (1937), 1054 + +Whitney _v._ Robertson, 124 U.S. 190 (1888), 421, 422 + +Whitney _v._ State Tax Com., 309 U.S. 530 (1940), 1039 + +Whitten _v._ Tomlinson, 160 U.S. 231 (1895), 634 + +Wichita Railroad & L. Co. _v._ Public Utilities Commission, 260 U.S. 48 +(1922), 75, 1000 + +Wickard _v._ Filburn, 317 U.S. 111 (1942), 147, 153, 159, 564, 857 + +Wiggins Ferry Co. _v._ East St. Louis, 107 U.S. 365 (1883), 231, 366 + +Wight _v._ Davidson, 181 U.S. 371 (1901), 303, 846 + +Wilcox _v._ Jackson ex dem. McConnel, 13 Pet. 498 (1839), 477, 703 + +Wiley _v._ Sinkler, 179 U.S. 58 (1900), 87, 967 + +Wilkerson _v._ Utah, 99 U.S. 130 (1879), 904 + +Wilkes County _v._ Coler, 180 U.S. 506 (1901), 331 + +Willamette Iron Bridge Co. _v._ Hatch, 125 U.S. 1 (1888), 229, 699 + +Willard _v._ Presbury, 14. Wall. 676 (1870), 304 + +Willcox _v._ Consolidated Gas Co., 212 U.S. 19 (1909), 1002, 1006, 1008 + +Willcutts _v._ Bunn, 282 U.S. 216 (1931), 108 + +Williams, Ex Parte, 277 U.S. 267 (1928), 631 + +Williams _v._ Arkansas, 217 U.S. 79 (1910), 1156 + +Williams _v._ Baltimore, 289 U.S. 36 (1933), 982, 1143 + +Williams _v._ Bruffy, 96 U.S. 176 (1878), 325, 691 + +Williams _v._ Bruffy, 102 U.S. 248 (1880), 555 + +Williams _v._ Fears, 179 U.S. 270 (1900), 120, 693, 967, 971 + +Williams _v._ Johnson, 239 U.S. 414 (1915), 864 + +Williams _v._ Kaiser, 323 U.S. 471 (1945), 1100, 1101, 1102, 1103 + +Williams _v._ Mississippi, 170 U.S. 213 (1898), 1164, 1186 + +Williams _v._ New York, 337 U.S. 241 (1949), 1128 + +Williams _v._ North Carolina, 317 U.S. 287 (1942), 663, 665, 1133 + +Williams _v._ North Carolina, 325 U.S. 226 (1945), 663, 665 + +Williams _v._ Riley, 280 U.S. 78 (1929), 542 + +Williams _v._ Standard Oil Co., 278 U.S. 235 (1929), 996 + +Williams _v._ Suffolk Insurance Company, 13 Pet. 415 (1839), 472, 473 + +Williams _v._ United States, 1 How. 290 (1843), 477 + +Williams _v._ United States, 255 U.S. 336 (1921), 322 + +Williams _v._ United States, 289 U.S. 553 (1933), 512, 531, 534, 535 + +Williams _v._ United States, 341 U.S. 97 (1951), 883, 1176 + +Williamson _v._ Berry, 8 How. 495 (1850), 604, 605 + +Williamson _v._ Osenton, 232 U.S. 619 (1914), 601 + +Williamson _v._ United States 207 U.S. 425 (1908), 99 + +Willing _v._ Chicago Auditorium Association, 277 U.S. 274 (1928), 551 + +Willson _v._ Blackbird Creek Marsh Co., 2 Pet. 245 (1829), 217, 229, 230 + +Wilmette Park District _v._ Campbell, 338 U.S. 411 (1949), 107, 109 + +Wilmington & W.R. Co. _v._ King, 91 U.S. 3 (1875), 356 + +Wilmington Star Min. Co. _v._ Fulton, 205 U.S. 60 (1907), 971, 987 + +Wilmington Transp. Co. _v._ R.R. Com., 236 U.S. 151 (1915), 231 + +Wiloil Corp. _v._ Pennsylvania, 294 U.S. 169 (1935), 189 + +Wilson, Ex Parte, 114 U.S. 417 (1885), 838 + +Wilson _v._ Cook, 327 U.S. 474 (1946), 699, 703, 731 + +Wilson _v._ Eureka City, 173 U.S. 32 (1899), 1157 + +Wilson _v._ Gaines, 103 U.S. 417 (1881), 347 + +Wilson _v._ New, 243 U.S. 332 (1917), 142, 855 + +Wilson _v._ North Carolina ex rel. Caldwell, 169 U.S. 586 (1898), 1096 + +Wilson _v._ Seligman, 144 U.S. 41 (1892), 1074 + +Wilson _v._ Standefer, 184 U.S. 399 (1902), 355 + +Wilson _v._ United States, 162 U.S. 613 (1896), 843 + +Wilson _v._ United States, 221 U.S. 361 (1911), 827, 844, 884 + +Winnebago, The, (Iroquois Transp. Co. _v._ Delaney Forge & Iron Co.) 205 +U.S. 354 (1907), 235 + +Winona & St. P. Land Co. _v._ Minnesota, 159 U.S. 526 (1895), 1060 + +Winona & St. P.R. Co. _v._ Blake, 94 U.S. 180 (1877), 1143 + +Winters _v._ New York, 333 U.S. 507 (1948), 779, 1097 + +Winton _v._ Amos, 255 U.S. 373 (1921), 864 + +Wiscart _v._ Dauchy, 3 Dall. 321 (1796), 522, 560, 612, 614 + +Wisconsin _v._ Illinois, 278 U.S. 367 (1929), 128 + +Wisconsin _v._ Minnesota Mining Co., 311 U.S. 452 (1940), 1055 + +Wisconsin _v._ Pelican Insurance Co., 127 U.S. 265 (1888), 596, 597, +613, 654, 658, 674, 675, 684 + +Wisconsin _v._ Penney (J.C.) Co., 311 U.S. 435 (1940), 1054 + +Wisconsin & Michigan Ry. _v._ Powers, 191 U.S. 379 (1903), 204, 342, 343 + +Wisconsin Gas Co. _v._ United States, 322 U.S. 526 (1944), 1044 + +Wisconsin, M. & P.R. Co. _v._ Jacobson, 179 U.S. 287 (1900), 222, 1012 + +Wisconsin Railroad Com. _v._ Chicago, B. & Q.R.R. Co., 257 U.S. 563 +(1922), 136, 220 + +Wissner _v._ Wissner, 338 U.S. 655 (1950), 285 + +Withers _v._ Buckley, 20 How. 84 (1858), 699, 751 + +Withnell _v._ Ruecking Constr. Co., 249 U.S. 63 (1919), 1059 + +Wolf _v._ Colorado, 338 U.S. 25 (1949), 830, 831, 1122, 1123 + +Wolff Packing Co. _v._ Industrial Court, 262 U.S. 522 (1923), 992, 996 + +Wolff Packing Co. _v._ Industrial Court, 267 U.S. 552 (1925), 986 + +Wolsey _v._ Chapman, 101 U.S. 755 (1880), 477 + +Wong Doo _v._ United States, 265 U.S. 239 (1924), 315 + +Wong Yang Sung _v._ McGrath, 339 U.S. 33 (1950), 850, 852 + +Wong Wing _v._ United States, 163 U.S. 228 (1896), 838, 846 + +Wood & Henderson, In re, 210 U.S. 246 (1908), 893 + +Wood _v._ Broom, 287 U.S. 1 (1932), 94, 548 + +Wood _v._ Lovett, 313 U.S. 362 (1941), 332, 333 + +Woodruff _v._ Parham, 8 Wall. 123 (1869), 182, 183, 239, 363 + +Woodruff _v._ Trapnall, 10 How. 190 (1851), 326 + +Woods _v._ Miller, 333 U.S. 138 (1948), 293, 475, 859 + +Woods _v._ Stone, 333 U.S. 472 (1948), 856 + +Woods & Sons _v._ Carl, 203 U.S. 358 (1906), 276 + +Woodson _v._ Deutsche G. & S.S.V. Roessler, 292 U.S. 449 (1934), 865 + +Worcester _v._ Georgia, 6 Pet. 515 (1832), 431, 625 + +Worcester County Trust Co. _v._ Riley, 302 U.S. 292 (1937), 934 + +Worthen Co. _v._ Kavanaugh, 295 U.S. 56 (1935), 361 + +Worthen Co. _v._ Thomas, 292 U.S. 426 (1934), 361 + +Wright _v._ Davidson, 181 U.S. 371 (1901), 848 + +Wright _v._ Georgia R. & Bkg. Co., 216 U.S. 420 (1910), 347 + +Wright _v._ Mountain Trust Co., 300 U.S. 440 (1937), 263, 858 + +Wright _v._ Nagle, 101 U.S. 791 (1880), 330 + +Wright _v._ Union Central Insurance Co., 304 U.S. 502 (1938), 263 + +Wright _v._ United States, 302 U.S. 583 (1938), 103 + +Wuchter _v._ Pizzutti, 276 U.S. 13 (1928), 661, 1074, 1085, 1088 + +Wyandotte Gas Co. _v._ Kansas, 231 U.S. 622 (1914), 349 + + +Y + +Yakus _v._ United States, 321 U.S. 414 (1944), 76, 289, 512, 525, 532, +620, 624, 893 + +Yamashita, In re, 327 U.S. 1 (1946), 317, 846, 851 + +Yamataya _v._ Fisher, 189 U.S. 86 (1903), 852 + +Yarbrough, Ex parte, 110 U.S. 651 (1884), 87, 94, 309, 386, 967, 1172, +1183, 1208 + +Yarbrough _v._ Yarbrough, 290 U.S. 202 (1933), 671 + +Yates _v._ Milwaukee, 10 Wall. 497 (1870), 604 + +Yazoo & M.V.R. Co. _v._ Greenwood Grocery Co., 227 U.S. 1 (1913), 247 + +Yazoo & M.V.R. Co. _v._ Jackson Vinegar Co., 226 U.S. 217 (1912), 1015, +1092 + +Yeaton _v._ United States, 5 Cr. 281 (1809), 1214 + +Yee Hem _v._ United States, 268 U.S. 178 (1925), 849 + +Yeiser _v._ Dysart, 267 U.S. 540 (1925), 990 + +Yerger, Ex parte, 8 Wall. 85 (1869), 523, 612, 619 + +Yick Wo _v._ Hopkins, 118 U.S. 356 (1886), 981, 1142, 1143, 1145, 1157, +1158 + +York _v._ Texas, 137 U.S. 15 (1890), 1090 + +York Mfg. Co. _v._ Colley, 247 U.S. 21 (1918), 121 + +Yost _v._ Dallas County, 236 U.S. 50 (1915), 357 + +Young, Ex parte, 209 U.S. 123 (1908), 524, 628, 629, 630, 931, 933, 934 + +Young _v._ Masci, 289 U.S. 253 (1933), 1033 + +Young _v._ United States, 97 U.S. 39 (1878), 640 + +Young Co. _v._ McNeal-Edwards Co., 283 U.S. 398 (1931), 1090 + +Youngstown Co. _v._ Sawyer, 343 U.S. 579 (1952), 380, 489 + +Yu Cong Eng _v._ Trinidad, 271 U.S. 500 (1926), 855 + + +Z + +Zabriskie _v._ Hackensack & N.Y.R. Co., 18 N.J. Eq. 178 (1867), 344 + +Zahn _v._ Board of Public Works, 274 U.S. 325 (1927), 1028 + +Zakonaite _v._ Wolf, 226 U.S. 272 (1912), 853, 878 + +Zane _v._ Hamilton County, 189 U.S. 370 (1903), 352 + +Zap _v._ United States, 328 U.S. 624 (1946), 831 + +Ziffrin, Inc. _v._ Reeves, 308 U.S. 132 (1939), 241, 1232 + +Zorach _v._ Clauson, 303 N.Y. 161, 100 N.E. 2d 463 (1951), 762 + +Zorach _v._ Clauson, 343 U.S. 306 (1952), 763 + +Zucht _v._ King, 260 U.S. 174 (1922), 984 + + + + +INDEX + +Readers Should Also Consult the Table of Contents Preceding Each +Article and Amendment of the Constitution + + +A + +Abandoned Property, unclaimed funds of resident insurers, escheat from +foreign company, 1034 + +Administration of Estates, State powers as to, 1034 + +Administrative Agencies: + Created by President, 393-394, 396 + Discretion to discriminate, when a denial of equal protection, 1157 + Judicial review of, when a due process requisite, 850-853 + Jurisdictional facts, finality of determination by, 622-623 + State, procedural due process, notice and hearing, etc., 1084-1088, + 1139 + +Administrative Regulations (_see also_ Delegation of Power; Executive +Power; President: Powers): + Violations of, how punished as crimes, 82 + +Admiralty (_see also_ Courts (Federal); Navigable Waters; States; +States: Courts): + Congress, powers as to, 311, 573-574, 576-583 + Public merchant vessels, immune from suit, 474 + State wrongful death statutes, application to maritime torts, 574-575 + +Advertisements. _See_ Motor Vehicles; Trade-Marks. + +Advisory Opinions. _See_ Courts (Federal). + +Agriculture. _See_ Commerce; Commodity and Security Exchanges; Fruit; +Milk; Raisins; Warehouses; Wheat. + +Aircraft. _See_ Airplanes. + +Air Force. _See_ Land, Air, and Naval Forces. + +Airplanes: + Federal regulation, 138-139 + State taxation of, 210-211 + +Alcoholic Beverages. _See_ Intoxicating Liquors. + +Aliens (_see also_ Courts (Federal); Enemies; Japanese): + Deportation, exclusion, proceedings, due process in, 851-853 + Discrimination against by States, cities, when a denial of equal + protection, 1157-1158 + Due process of law, protected by, 846 + Entry, exclusion, powers of Congress as to, 259-261 + Fifth Amendment, protected by, limits, 439 + Fishing licenses, State refusal to issue to, validity, 417 + Land ownership by, State power to restrict, 416-417, 968, 1157-1158 + Property of, condemnation, 865 + Release from State custody by habeas corpus from federal court, 632 + State curbs on entry, validity, 215-216, 241 + +Alliances, States not to enter into, 325 + +Ambassadors, Public Ministers, Consuls (_see also_ Courts (Federal); +States: Courts): + Defined, appointment, salary, etc., 445-447 + +Amendments to Constitution. _See_ Constitution of the United States. + +Amnesty. _See_ Pardons; President: Powers. + +Antitrust Laws. _See_ Restraint of Trade. + +Apportionment of Representatives. _See_ House of Representatives. + +Appropriations (_see also_ Public Funds of United States): + Power of Congress to make, 323-324 + Required for withdrawals from Treasury, payment of claims, 323 + for Support of armies, two year limit, 279, 283-284 + +Army. _See_ Land, Air, and Naval Forces. + +Arsenals, purchased with State consent, federal jurisdiction over, 300, +306-307 + +Atomic Energy, 292 + +Attachment and Garnishment, railway cars in interstate commerce, under +State law, 235 + +Attorneys (_see also_ Courts (Federal)): + Defendant's right to, in federal criminal cases, 884-885 + Defendant's right to, in State criminal trials; fair trial doctrine, + 1098-1109 + Practice in federal courts, powers of Congress as to, etc., 527-528 + + +B + +Bail: + Denial of, by States, validity, 1133 + Excessive, not to be required, 903-904 + +Bankruptcy (_see also_ Due Process of Law): + Legislation, limitations imposed by due process clause, 857-858 + Persons covered by, 262-263 + Powers of Congress as to; limitations, 263-264 + Scope of relief to debtors, 262-263 + State insolvency laws, when operative, validity, 264-265 + States as creditors, filing of claims, 264-265 + +Banks (_see also_ National Banks; Taxation: States): + Federal tax on State bank notes, municipal notes, 265, 309-310 + in Interstate business, State regulation, 234-235 + State owned, suable, 930 + State regulation of, 1020, 1082 + Unclaimed funds in, escheat to State, due process limitations, 1082 + +Bearing Arms: + as Condition of naturalization, 256-257 + Constitutional right as to, 813 + +Bill of Rights: + Application to States, 750-752, 757, 760-764, 766-768, 771-773, + 775-792, 808-810, 830, 904, 985, 1100-1101, 1110-1113, 1115-1118, + 1121-1124, 1133 + Formulation, adoption, 749-750 + Intended scope, 770 + +Bills of Attainder, passage prohibited, 315-316, 326-327 + +Bills of Credit, States not to issue, 326 + +"Blue Ribbon" Juries. _See_ Juries. + +Blue Sky Laws, 1019 + +Borrowing Power, Federal, relation to coinage power, 117-118, 266-267 + +Boundaries of States, suits as to, 591-592 + +Bread. _See_ Food; Weights and Measures. + +Bridges across navigable streams, State power as to, 230-231 + +Building and Loan Association, conversion into federal, without State +consent, void, 920-921 + +Building sites purchased with State consent, Federal jurisdiction over, +300, 305-307 + +Business, Trades, and Professions, Regulation by States, Municipalities, +1017-1024, 1155 + +Businesses Affected with Public Interest, State regulation of, 995-997 + + +C + +Carriers (_see also_ Airplanes; Attachment and Garnishment; Public +Utilities; Restraint of Trade; Taxation: State; Vessels): + Bills of lading, Federal regulation as to, 143-144 + Motor, Federal regulation of, 138, 139 + Motor, State regulation of, 211-213, 226-228, 250, 1032-1033, 1153, + 1155 + Pipelines, oil and gas, Federal regulation of, 137-138 + Pipelines, power of States to compel service by, 1025 + Railroads, conflict of State, Federal regulations as to, 246-247, 251 + Railroads, Federal regulation of labor, rates, safety, etc., due + process limitations, 132-137, 139-143, 861-862 + Railroads, grade crossing elimination, compellable services, etc., + rates, safety; regulatory powers of States as to, 134-137, 220-225, + 998-1008, 1010-1016, 1156 + Transportation agencies, State control of, scope, 228 + +Censorship. _See_ Freedom of Religion, Speech, Press, Assembly; Motion +Pictures; Postal Service; War. + +Census (_See also_ Taxation (Federal)): + Basis of apportionment of seats in House of Representatives, 89-90 + Decennially taken; extended scope, 89-90 + +Chain Stores, taxation of, validity, 1055, 1147-1148 + +Child Labor: + Federal laws regulating, validity, 152-158 + State laws regulating, 987 + +Chinese (_see also_ Aliens): + Assigned to negro schools, validity, 1161 + +Cigarettes, State regulation of sale, 240 + +Citizens (State), Entitled to Privileges of Citizens in other States. +_See_ Comity Clause. + +Citizenship (_see also_ Comity Clause; Corporations; Courts (Federal); +President: Powers; Privileges and Immunities of U.S. and State +Citizens): + Defined; how acquired, exceptions, 254-256, 312, 699, 963-965 + How lost; expatriation, etc., 256-259 + of Inhabitants of territories, 254-255, 963-964 + Jus sanguinis, as basis of, 254-255 + Rights of naturalized persons, 257-258 + Who are citizens, 254-255, 312, 963-965 + +Civil Rights, infraction by individuals, Congress cannot punish, +1175-1176 + +Claims against United States (_see also_ Public Debt of the United +States): + Congress, powers as to, 324 + for Emancipation of slaves, void, 1174 + +Claims of United States, powers of Congress as to, 311 + +Clear and Present Danger. _See_ Freedom of Religion, Speech, Press, +Assembly. + +Coal: + Federal regulation as to, 153-154 + Prohibition of mining, under city streets, etc., 1026 + +Coins and Coinage. _See_ Counterfeiting; Money. + +Comity Clause (_See also_ Taxation: State): + Corporations not eligible to benefits of, 688-689 + Privileges and immunities of State citizens, scope, 689-693 + Sources, purposes of, how implemented, 686-688 + State citizenship, scope of, 688 + State discrimination as to nonresidents, limits, 691-693 + +Commerce (_see also_ Carriers; Child Labor; Coal; Foreign Commerce; +Hydroelectric Power; Interstate Commerce Commission; Navigation; +Original Package Doctrine; Police Power; Radio; Taxation; Wheat): + Commerce clause of Constitution as source of National power, 118-173, + 214-215, 217-220, 246-253 + Commerce clause of Constitution, purpose, meaning of terms, 118-126 + Concurrent Federal-State legislation as to, 246-252 + Foreign, powers of Congress as to interstate and, compared, 123-125, + 162-163, 165-167 + Grain futures, Federal regulation of, 149-150 + with Indian tribes, congressional power as to, 252-253 + Instruments of, powers of Congress as to, 125-126, 139 + Prohibition, restraint of, powers of Congress as to, 144-150 + Regulations, Federal, favoring certain ports, 322-323 + Reserved powers of States as limitation on Federal powers as to, + 121-122, 917-921 + State power to regulate interstate, Federal supremacy, 177-214, + 224-225, 249-252, 968, 1027 + Stockyards, Federal supervision of, 149 + +Commission Merchants, State regulation of, 235 + +Commodity and Security Exchanges, State regulation of, 250, 1019 + +Common Law (_see also_ Juries): + No Federal crimes under, 877 + +Communication, instrumentalities of, Federal regulation, 138-139 + +Communists, prosecution of, in relation to freedom of speech and press, +795-802 + +Compacts between States. _See_ States: Agreement with other States. + +Confederations, States not to enter into, 325 + +Confessions (_see also_ Self-Incrimination): + Forced, in State criminal trials, effect, 1111-1121 + +Confrontation: + Right of, in Federal criminal trials, 884 + Right of, presence of accused, in State criminal trials, 1126-1130 + +Congress (_see also_ Contempt; Elections; House of Representatives; +Impeachment; Investigations; Senate): + Internal Organization; Legislative Process: + Bills, how enacted into law, 101-103 + Concurrent resolutions, uses, 104 + Journal of proceedings, contents, evidence, etc., 95, 98 + Representatives, choice of Speaker, officers, 90 + Resolutions, etc., how made effective, status, 104-105 + Revenue bills, origination, amendment, 101-102 + Rules of procedure, determination, 95-97 + Yea and Nay votes, entry into journal, 95, 98, 102 + Judicial direction, immunity from, 500 + Members of Senate or House: + Attendance, compulsion of, 95 + Beginning of term, 1225 + Compensation for services before departments, restriction, 97-98 + Compensation, how fixed; when begins, 99 + Disorderly behavior, punishment, 95 + Election of, qualifications, each House to judge, 95-96 + Expulsion, 95, 97-98 + Freedom from arrest, libel suits, limits, 99-100 + not Impeachable, 500 + Incompatible offices, 100-101, 383 + Presidential electors, ineligible as, 383 + Qualifications, when fulfilled, enlargement of, 87-89, 91 + as Treaty negotiators, eligibility, 449 + Powers in Relation to Executive: + Conduct of foreign relations, cooperation with President in, 467-471 + Executive officers, control of conduct of, 478-480 + Sessions: + Adjournment by one House, restrictions, 95 + Frequency; beginning of, 1225 + Quorum required for, exceptions, 95-96 + +Conservation of Natural Resources, powers of States, 242-246, 1025-1027 + +Constitution of the United States: + Amendment of, process, limits of power, scope for judicial review, + 711-715 + Amendments, dates of ratification of, 37-54 + Amendments, resolutions proposing, not submitted to President, 105 + Doctrines of interpretation of, 71-81 + Preamble to, 19, 59-60, 166 + Ratification of, effective date, etc., 743 + Ratification, historical note on, 9-15 + +Consuls. _See_ Ambassadors. + +Containers (_see also_ Fraud; Original Package Doctrine): + Regulation by States, 1018 + +Contempt (_see also_ Courts (Federal); Courts (State)): + of Congress, punishment, 85-86 + Criminal, civil, distinguished, 521 + of State court, summary punishment, 1129-1130 + +Contracts, impairment by State prohibited, 329-362 + +Convict-Made Goods, State regulation of sale of, 240 + +Coolie Labor System. _See_ Involuntary Servitude. + +Copyright: + Nature, scope of right secured, 274-276 + Powers of Congress as to, 271, 275-276 + Royalties from, State taxation of, 734 + State powers as to, 276 + +Corporations (_see also_ Comity Clause; Courts (Federal); Taxation): + Charters, termination by States, 1016 + Charters, when contracts not to be impaired, 336-339, 343-352 + Dissolved by State, ineligible for bankruptcy, 263 + Due process of law, protected by, 981, 1016 + Equal protection of the laws, entitled to, exceptions, 1142-1144, + 1146-1147, 1149-1150, 1152 + Federal, liability for wrongful acts, 586-587 + Federal, powers of Congress as to, 267, 309-310 + Federal, suability of, 590-591 + Federal, taxation by States, etc., 732-734 + Foreign, appointment of agent for service of process, 1074, 1077-1080 + Foreign, equal protection clause as limit on taxation of, 1149-1150 + Foreign, right to sue in Federal courts, 638 + Foreign, State control over admission, licensing, operation, 231-232, + 234, 249, 1009, 1016, 1021-1022 + Foreign, suability, due process limitations, 1075-1080 + Freedom of speech and assembly, not claimable by, 809 + Privileges and immunities of United States, State, citizens, not + eligible to, 965 + Production of books and papers in State investigations, 1122 + Publications supporting candidates, restraints on, 793 + Self-incrimination, not protected against, 826, 843 + Stockholders' derivative actions, security for costs, 1089-1090 + +Counsel. _See_ Attorneys. + +Counterfeiting: + of Foreign money, power to punish, 278 + Punishment, powers of Congress, States, 265-266, 278 + +Court of Claims (_see also_ Claims against United States; Courts +(Federal)): + Judicial review of decisions, status, 535-536 + Jurisdiction, expansion as to adjudicated claims, 311 + +Courts (Federal) (_see also_ Boundaries of States; Corporations; Habeas +Corpus; Indians; Juries; Labor; Political Questions; Prizes of War; +Public Officers of the United States; States: Courts; States: Officers; +States: Powers; States: Suits by and against; Supreme Court of the +United States): + Admiralty and maritime jurisdiction; scope, types of cases, procedure + in, etc., 278-279, 572-583 + Advisory opinions not rendered by, 549-550 + Ancillary, inherent powers, 511-512, 515-528 + Attorneys, admission, disbarment by, 527-528 + Cases and controversies before, defined, attributes of, 538-553, 561, + 585 + Cases arising under Constitution, Laws, Treaties, 553-570 + Citizenship for jurisdictional purposes, 597, 599-603 + Congress, powers as to organization, jurisdiction of, 310, 525, + 528-537, 551, 574-580, 582-586, 591, 600, 603, 606-608, 611-624, + 630-632, 635-636 + Consular courts, 533 + Consuls, etc., suable in, 571-572 + Contempts, power to punish, regulation by Congress, 511, 515-521 + Corporations, citizenship for jurisdictional purposes, status to sue + in, 568, 597, 601-603, 638 + Declaratory judgments, power to issue, validity, etc., 513-514, + 551-553 + District of Columbia residents, citizenship for jurisdictional + purposes, 599-600 + in District of Columbia, status, powers, regulations by Congress, + 304-305, 522, 536-537 + Full faith and credit clause in, 684 + Immunity from suit of United States, States, foreign states, waiver, + etc., 585-591, 609 + Indian tribes, immunity from suit, removal of cases, 591 + Indian tribes, not foreign state for jurisdictional purposes, 431, 610 + Inferior, administrative matters, jurisdiction over, 623-624 + Inferior, creation, abolition, etc., by Congress, 277, 528-530 + Judges and juries in, functions distinguished, directed verdicts, + 895-897 + Judicial review by, origin, scope, limits, etc., 554-566, 799 + Jurisdiction concurrent with Supreme Court, scope, 613-614 + Jurisdiction, scope, 525, 538-635, 638 + Legislative, creation, etc., by Congress, 310, 533-537 + Nonjudicial functions, powers of Congress to vest in, 533-535, 537 + Power to render and enforce judgments, 595 + Presidential use of, to enforce laws, 484-486 + Referees, masters, special aids, appointment by, 527 + Rule-making power, derivation, limits, process, 74, 525-526 + of Specialized jurisdiction, organization, powers, etc., 531-533, 620 + State courts, controversies, concurrent jurisdiction, with, comity, + 624-635 + State courts, removal of cases to, from, 310, 567-569 + States, interest requisite for suits in, 114, 543, 594 + Status to sue in, 114, 541-543, 594 + Suits against States by citizens of other States, etc., 929-930 + Suits between citizens of different States, law applicable to, + interpretation (diversity of citizenship), 302, 332, 599-608 + Suits between State, or its citizens, and foreign states, citizens, + etc., 609-611 + Suits between States, 591-595 + Suits by States against citizens of another State, suits by, as parens + patriae, 596-599 + Suits by States to enforce their penal laws, 597 + Suits of citizens under land grants of different States, 608-609 + Suits of United States as party plaintiff or defendant, suits of, + against States, 584-591 + Territorial, how created, jurisdiction, etc., 703 + Territorial, transferral of cases from, when, 699 + Writs, congressional power as to issue by, 312-313, 522-525, 621-622 + +Courts Martial. _See_ Land, Air and Naval Forces. + +Courts (State): + Errors of, not effecting denial of due process, 1140-1141 + Impartiality essential to due process; effect of mob violence, 1131, + 1138-1139 + +Crimes and Offenses (_see also_ Criminal Prosecutions; Elections; +Felonies; High Seas; Taxation: Federal): + Definition; powers of Congress as to, 277-279, 308-309 + Federal, petty, serious, defined, 877-878, 881-883 + under National Prohibition Act, effect of repeal, 1214 + Penalties, gradation for different crimes, different criminals, + validity, 1160-1161 + Vagueness of statutes defining, effect, 881-883, 984, 1097 + +Criminal Prosecutions (_see also_ Attorneys; Confrontation; Crimes and +Offenses; Double Jeopardy; Due Process of Law; Ex Post Facto Laws; Grand +Juries; Habeas Corpus; Juries; Public Officers of United States; +Territories; Treaties): + Federal, place of trial, 880-881 + Federal, rights of accused, scope, 877-885 + +Cruel and Unusual Punishment, not to be inflicted, what constitutes, +903-905, 1133-1135 + + +D + +Dams, across navigable streams, State powers as to, 229-230 + +Debts due the United States, collection, 117 + +Debts of the United States: + Abrogation of gold clause in United States bonds, validity, 117 + Contraction, payment, 117 + +Declaratory Judgments. _See_ Courts (Federal). + +Delegation of Power: + Judicial, to administrative agencies, 521 + Legislative, by Congress, 71, 73-81, 392, 442 + to President, in conduct of foreign relations, 80, 380 + Rule-making, to courts, 74, 525-526 + by State legislatures, to rate-making commissions, 77 + in War, 289-291, 392 + +Descent. _See_ Succession to Property. + +Direct Tax. _See_ Taxation: Federal. + +Discrimination. _See_ Aliens; Chinese; Comity Clause; Equal Protection +of the Laws; Involuntary Servitude; Negroes; Restraint of Trade. + +District of Columbia (_see also_ Courts (Federal)): + Cession by States, effect, 301-302 + Courts of, powers, status, 304-305 + Diversity of citizenship clause, applicable to, 302 + Interstate commerce, taxation of, by, 304 + Jury trial, residents entitled to, 303, 892 + as a Municipal corporation, suability, powers, 300-301, 304 + Police power of, 303 + Retrocession of Alexandria County to Virginia, 301 + as Seat of government, powers of Congress as to, 300-305 + as a "State" for certain purposes, 302 + State laws applicable to, 302 + Taxation in, 303-304 + +Diversity of Citizenship. _See_ Courts (Federal). + +Divorce. _See_ Due Process of Law; Full Faith and Credit. + +Docks and Dock Yards. _See_ Wharves and Docks. + +Dogs, protection conditioned on owner's payment of tax, 1035 + +Domestic Violence, Federal protection of States against, 704-705 + +Double Jeopardy (_see also_ Due Process of Law): + Guaranty against, not applicable to military forces, 286 + What constitutes; protection against, limits, 837-841, 1135-1137 + +Drugs (_see also_ Pharmacies): + State, etc., laws regulating sale of, 1030 + +Dual Federalism (_see also_ States: Powers), 106, 915-919 + +Due Process of Law (Fifth Amendment) (_see also_ Administrative +Agencies; Aliens; Bankruptcy; Carriers; Corporations; Land, Air, and +Naval Forces; Police Power; Public Utilities): + in Administrative proceedings, essentials of, 849-853 + in Criminal proceedings, essentials of, 847, 881-885 + Discriminatory legislation, relation to, 853-854 + Indictment by grand Jury, precision required by, 838, 883-884 + as to Infamous crimes requiring grand jury indictment, 837-838 + Meaning, source, evolution of, 751, 844-846, 854-855 + Procedural protection of, essentials, 846-853 + Retroactive legislation, deprivation of property, as affected by, + 855-858 + Self-incrimination, protection against, 825-827, 830, 837, 841-844 + Substantive, essentials of, 853-864 + +Due Process of Law (Fourteenth Amendment) (_see also_ Full Faith and +Credit; Motor Vehicles): + in Administrative, legislative proceedings; notice and hearing, etc., + 1084-1088, 1139 + Appeal, new trial, etc., not required by, 1139 + in Civil proceedings, jurisdiction required, perfected by service of + process, appearance, etc., 1070-1089, 1096 + Comparison with clause in Fifth Amendment, 971-972 + in Criminal proceedings, 1096-1139 + in Divorce actions; jurisdiction required, 662-671 + Enforcement of, by Congress, limits, 1175-1177 + Historical development, 971-980 + Judgments without jurisdiction, process, etc., as denial of, 658-661, + 670-673 + Judicial procedure, as limitation on State regulation of, 1089-1096 + in Judicial proceedings, notice and hearing, etc., 1087-1088, 1139 + "Liberty", protected by, 983-997, 1017, 1019-1020, 1022 + "Persons", protected by, 981-982 + Retroactive repeal of certain rights, when a denial of, 1035, 1039 + Scope of protection, 981-1139 + + +E + +Earmarked Funds. _See_ General Welfare; Spending for the General +Welfare. + +Education. _See_ Negroes; Schools and Colleges. + +Elections (_see also_ House of Representatives; Negroes; President; +Election; Public Officers of the United States; Senate): + Congressional, use of State officers, etc., powers of Congress as to, + 87, 92-94, 738-739 + Crimes in relation to, 92 + Declaration of intention as prerequisite to voting, validity, 1165 + Grandfather clauses, void, 1184 + Inequalities in voting power from unfair apportionment and nominating + procedures, 92-94, 1165, 1207-1208 + Literacy requirements for voting, 1184-1186 + of Members of Congress, each House to be judge of, 95-96 + Municipal, Federal regulations pertaining to, 92-93 + Primary, for nomination of Congressmen, Federal regulations as to, 94 + Primary, status of political parties in, 1185 + Qualifications of voters; voting rights, Federal protection of, etc., + 87, 92-94, 386, 1170-1172, 1183-1186, 1207-1208, 1219-1220 + Time-off-for-voting laws, validity, 988 + +Electricity (_see also_ Public Utilities): + Interstate distribution of, Federal, State regulation, 137, 223 + +Embargoes. _See_ Conservation; Foreign Commerce. + +Eminent Domain (_see also_ Aliens; Navigable Waters): + Federal, just compensation defined, enforced; right to interest, etc., + 866-867, 869-872 + Federal, of State lands, 920 + Federal power of, scope, 837, 864-872, 920 + Federal, public use defined, determined, 865-866 + Federal, what constitutes a "taking", 867-869 + President, powers of, in war time, 403 + State, power of, inalienable, limited by due process clause, 349-350, + 1062-1070 + State, "taking", "for public use", just compensation, uncompensated + takings, consequential damages, defined, 1003-1068 + War damage, liability of United States, 298 + +Emoluments, acceptance from foreign states by public officers, +restricted, 324 + +Enemies: + Alien, confiscation of property, 865 + Alien, deportation after end of hostilities, 474-475 + Alien, not protected by due process of law, 846 + Alien, property, rights, status; effect of war on, 80, 294-298, 402, + 846, 865 + +Equal Protection of the Laws (_see also_ Corporation; Elections; +Negroes; State: Taxation): + Federal enforcement of guaranty; limits, 807-808, 919, 1175-1177 + Scope of protection, 1141-1170 + State action denying, what constitutes, 1141-1142 + +Escheat. _See_ Banks; Insurance. + +Estate, Gift, and Inheritance Taxes. _See_ Taxation. + +Evidence and Presumptions, burden of proof, prima facie evidence, etc., +due process limitations on State regulations as to, 1093-1096 + +Excises. _See_ Taxation. + +Executive Agreements (_see also_ President: Powers): + Distinguished from Treaties, 433, 442, 444-445 + Examples of, authorized, approved by Congress, 419, 433, 441-443, 445 + Supreme, over conflicting State laws, 1201 + Types of, 419, 433-445 + Validity, binding effect of, 433-444 + +Exports. _See_ Commerce; Foreign Commerce; Taxation. + +Ex Post Facto Laws: + Application to war criminals, 402-403 + Defined, 316-317 + Passage by States, scope of prohibition, 327-329 + Test oaths for office holding, 736 + +Extradition (_see also_ Habeas Corpus): + Congress, powers as to, 693-694 + Duty of State to surrender fugitives, 693-694, 738 + Felons fleeing District of Columbia, unnecessary, 303 + to Foreign nations, by President, 464 + to Foreign nations, by States, limitation, 325 + Fugitive from justice defined, 694-695 + Removal procedure, rights of fugitive, 695-696 + + +F + +Fair Trial (_see also_ Attorneys), 1098-1109, 1111-1113, 1129-1133, +1138-1139 + +Federal-State Relations, 736-739 + +Federal Supremacy. _See_ National Supremacy. + +Felonies (_see also_ Crimes and Offenses): + Committed on high seas, power of Congress as to, 277-279 + +Ferries (_see also_ Carriers): + on Navigable streams, State powers over, 231 + +Firearms. _See_ Bearing Arms. + +Fish, conservation of, powers of States, 217, 245, 690, 1027 + +Flag, reproduction on salable articles prohibited, 1154 + +Flag Salute Laws. _See_ Freedom of Religion, Speech, Press, Assembly. + +Flood Control, Federal power as to, 132 + +Food, State regulations as to manufacture, sale, purity, labelling, +weights, etc., 248, 250, 1030, 1154 + +Foreign Commerce (_see also_ Commerce; Game): + Prohibition of, by Congress, 160-163 + State police and taxing powers, relation to, 177-178, 215-217 + +Foreign Corporations. _See_ Corporations. + +Foreign Relations. _See_ Executive Agreements; President: Powers; +Recognition; Treaties. + +Forts, Federal jurisdiction over, 300, 305-307 + +Franchise Taxes. _See_ Taxation. + +Fraud, in sales, prevention by States, etc., 1018-1019 + +Freedom of Assembly. _See_ Freedom of Religion, Speech, Press, Assembly. + +Freedom of Press. _See_ Freedom of Religion, Speech, Press, Assembly. + +Freedom of Religion, Speech, Press, Assembly (_see also_ Communists; +Corporations; Labor; Land, Air and Naval Forces; Lobbying; Postal +Service; Public Officers of the United States; Radio; States: Officers; +Supreme Court of the United States; War): + of Assembly and petition; history, restraints on, 805-810 + Clear and present danger rule, 772-784, 787-792, 794-801 + Guaranty of, absorption into Fourteenth Amendment, 757 + of Press, contempt of court decrees as restraint on, 517, 783-784 + of Press, group libel laws as restraint on, 802-804 + of Press, motion picture censorship, validity, 787-788 + of Religion, compulsory public school attendance, effect on, 765 + of Religion, liability to military service as condition prerequisite + to certain privileges, effect on, 768 + of Religion, "no preference" doctrine, 758-759 + of Religion, public bus transportation for parochial schools, effect + on, 759, 764 + of Religion, "released time" for religious instruction, effect on, + 760-763 + of Religion, rights of Mormons, 759 + of Religion, scope, restraints on, 563-564, 764-769 + of Religion, "wall of separation" doctrine, 759-763 + Religious property, tax exemption, validity, 764 + Religious schools, free textbooks for, effect on, 764 + of Speech and press, censorship, 786-788 + of Speech and press, in parks and streets, 784-786, 791 + of Speech and press, restraint by taxation, labor regulations, etc., + 792-793 + of Speech and press, scope, 769-805 + of Speech, curbs on sound trucks, street car radios, effect on, 767, + 785 + +Freedom of Speech. _See_ Freedom of Religion, Speech, Press, Assembly. + +Fruit: + Export of, restriction by States, 243-244, 1027 + Immature citrus fruit, exclusion by States from interstate commerce, + 1027 + Protection of orchards by State by destruction of private property, + 1026-1027 + +Fugitive Slave Clause, 696 + +Fugitives from Justice. _See_ Extradition. + +Full Faith and Credit Clause (_see also_ Courts (Federal); Supreme Court +of the United States): + Adoption decrees, effect on inheritance in forum State, 673 + Common law, statutory, constitutional rights, scope of recognition by + States, 675-683 + Congress, power to effectuate, 651-652, 657, 683-685 + Decrees awarding alimony, custody of children, 670-671 + Divorce decrees, domicile as jurisdictional prerequisite to; effect on + alimony, custody of children, property, 662-670 + Garnishment decrees, 673-674 + Judgments, effect in forum State, limits, 653-674, 685 + Judgments, fraud as defense to enforcement of, 674 + Judgments, jurisdiction prerequisite to enforcement, 657-670, 682-683 + Penal judgments, limits on enforcement, 674-675 + Probate decrees, 672-673 + Purpose of clause, 652 + Suits against corporations, by stockholders, creditors, policy + holders, law applied by forum, 677-681 + Tort and contract actions, law applied by forum, 677, 681-682 + Workmen's compensation acts, application in forum, 681-682 + + +G + +Gambling: + Building used for, lien on, for money lost, 1031 + Lotteries, etc., State prohibition of, 1031 + +Game, conservation, restriction on export of, by States, 217, 242-243, +690, 1027 + +Garbage, municipal regulations as to disposal of, 1030 + +Gas (_see also_ Carriers; Public Utilities; Taxation: States): + Conservation, restriction of export of, by States, 243, 1025-1026 + Damages from drilling for, requiring bond to cover, 1026 + +Gasoline. _See_ Police Power; Prices, Charges, Rates; Taxation; Zoning. + +General Welfare, powers of Congress as to; State reserved powers as +limitation on, 112-117, 917-919 + +Gift Taxes. _See_ Taxation. + +Gold. _See_ Money; Public Debt of the United States. + +Governors. _See_ States: Governors. + +Grain. _See_ Agriculture; Commerce; Commodity and Security Exchange; +Conservation; Warehouses. + +Grand Jury (_see also_ Due Process of Law): + Abolition by States, 837, 1098 + +Grants-in-Aid, 113, 116 + +Group Libel, 802-804 + + +H + +Habeas Corpus (_see also_ Prisoners): + Errors at trial, issuance to correct, 312-313 + in Extradition proceedings, 695 + Issuance by Federal courts, 312-314 + Issuance by Federal or State court to release prisoner in custody of + other jurisdiction, 624, 626, 631-633 + Military tribunal, to review proceedings of, 286 + Review of conviction, use by prisoners to obtain, 1109, 1124-1126 + not a Substitute for appeal, 314 + Suspension, when valid, 315, 399-401 + +Habitual Offenders, successively heavier penalties on, validity, 1133, +1135, 1137, 1160 + +Health (_see also_ Drugs; Food; Garbage; Milk; Sewers; Water): + Power of States, etc., to safeguard, 1029-1031 + +High Seas: + Offenses committed on, defined, 277-279 + Power of States over citizens on, 325 + +Holding Companies. _See_ Public Utilities. + +Hot Pursuit, agreements with Mexico for crossing of boundary by troops, +434 + +House of Representatives (_see also_ Congress; Elections): + Apportionment, representation in, reduced for illegal voting + restrictions, etc., 1170-1172 + Composition, 89-90 + Election to fill vacancies in, 90 + Election to, State regulations as to, 93-94 + Impeachment, powers as to, 90 + Revenue bills originate in, 101-102 + +Hydroelectric Power, scope of Federal, State powers as to, 130-132 + + +I + +Immigration. _See_ Aliens. + +Impairment of Obligation of Contracts, 329-362 + +Impeachment (_see also_ House of Representatives; President; Senate): + Chief Justice; when presiding officer at trial, 91 + Judgment on conviction, limitations on penalties, 92 + Officers subject to; grounds for, 501 + +Implied Powers of Congress, 72-73 + +Imports. _See_ Commerce; Foreign Commerce; Inspection Laws; Taxation. + +Income Tax. _See_ Taxation. + +Indians (_see also_ Courts (Federal)): + Citizenship of, 254 + Commerce with, congressional power as to, 252-253 + Crimes on reservations, State jurisdiction as to, 698 + Fishing rights of, under treaty, application of State game laws to, + 700-701 + Liquor, prohibition on lands used by, 253, 698, 702 + "Not taxed"; included in apportioning seats in House of + Representatives, 1171-1172 + Regulations governing, due process limitations, 864 + State taxes on lessees of lands of, 735 + Treaties with, status, abrogation, etc., 431-432 + Vested property rights of, protected by Fifth Amendment, 432 + +Indictment. _See_ Due Process of Law; Grand Juries. + +Industrial Relations. _See_ Labor; Steel Seizure Case. + +Infamous Crimes. _See_ Due process of Law. + +Inherent Powers of National Government, 279-280, 380 + +Inheritance Taxes. _See_ Taxation. + +Insolvency. _See_ Bankruptcy. + +Inspection Laws, State, power to impose, application to imports, +exports, 235-238, 248, 250, 364-365 + +Insurance (_see also_ Abandoned Property; Corporations; Taxation: +State): + Agents acting as undertakers, sharing commissions, State regulations + as to, 1021 + Foreign companies, conditions of entry, regulation of relations with, + 1021-1022 + as Interstate commerce, Federal, State regulation of, 214-215 + Liquidation of companies, rights of dissenting policyholders, 1023 + Policy provisions, State regulations as to, 1022-1023 + Rates, agent's commissions, State regulation of, 996, 1153, 1155 + State regulation of, 996, 1021-1023, 1153, 1155 + +Insurrection. _See_ National Supremacy. + +Interest. _See_ Money Lending. + +International Law: + Application to prizes of war, 295-296 + as National public law, 277 + Offenses against, punishment by Congress; trial of, by military + commissions, 277-279 + President, as enforcer of, 435, 486-487 + +Interstate Commerce. _See_ Commerce. + +Interstate Commerce Commission, creation, powers, 134-137 + +Interstate Compacts. _See_ States: Agreements with other States. + +Intoxicating Liquors (_see also_ Prohibition Amendment; Prohibition +Repeal Amendment): + Destined for Federal area, exempt from State taxation, 1283 + Federal regulation, as affected by Twenty-first Amendment, 1233-1234 + Imported, discrimination in favor of domestic, by States, 1231-1232 + State power as to, scope under Twenty-first Amendment, 1231-1234 + State prohibition, regulation of sale, of, 238-239, 1031-1032, 1155 + Transportation into States in violation of State law, 1231-1233 + +Investigations by Congress, scope of power as to, 82-86 + +Involuntary Servitude: + Conscription does not create, 284-285 + Discriminations, compulsions, not amounting to, 284-285, 951-953 + Peonage defined as, statutes creating, 950-951 + Prohibited, except as punishment for crime; powers of Congress as to, + 950-951, 953-954 + + +J + +Japanese (_see also_ Aliens): + Exclusion from Pacific Coast in World War II, 297, 394-395 + +Jeopardy. _See_ Double Jeopardy. + +Judgments (_see also_ Full Faith and Credit): + Award of execution as essential to finality of, 511-512 + +Judges (Federal) (_see also_ Courts (Federal)): + Impeachment, 502-504 + of Legislative courts, tenure, salary, 534-535 + Nonjudicial functions, 549 + Salaries, diminution by taxation, etc., 105-106, 511, 530-531 + Tenure, 511, 528-530 + +Judges (State), pecuniary interest in verdict, violative of due process, +1131 + +Judicial Power: + Administrative power, as aid to, 521 + Defined, scope, attributes of, 511-539, 595 + Inherent limitations of, maxims of interpretation, 561-566 + Vested in Supreme Court and inferior courts created by Congress, + 511-512 + +Judicial Procedure. _See_ Courts (Federal); Courts (State). + +Judicial Review. _See_ Courts (Federal). + +Juries (_see also_ Courts (Federal); Public Officers of the United +States): + Challenges in selecting, "blue ribbon" juries, State regulations as + to, 1109-1111 + in Common law suits in Federal courts, functions of judges and, right + to, waiver, 891-897 + in Criminal trials in Federal courts, waiver, etc., 638, 878-880 + Dispensing with, in State civil proceedings, 1096 + Right to, in State criminal trials, 1109-1111 + Selection, number, size of vote by, power of States to alter, 1096, + 1109-1111 + +Jurisdiction, defined, distinguished from judicial power, 511-512 + + +K + +Kingbolt Clause. _See_ National Supremacy. + + +L + +Labor (_see also_ Child Labor; Full Faith and Credit Clause; President: +Powers; Women): + Collective bargaining; closed-shop; picketing; strikes, slow-downs, + and boycotts; unions; yellow-dog contracts, State regulations as to, + 781, 991-994, 1158 + Employer's freedom of speech, Wagner Act as curb on, 793 + Employment agencies, State regulation of fees, etc., 997, 1023 + Federal regulation, under commerce clause, 139-143, 152-158 + Hours of, State regulations of, 968, 1158-1159 + Injunctions in disputes, issuance by Federal courts, etc., not + productive of slavery, 484-486, 621-622, 953 + Liberty of contract, State interference with, 985-994 + Longshoremen's and Harbor Workers' Act, 581-582 + Loyalty affidavits required of union officers, 794-795 + Picketing, control of, as restraint on freedom of speech, press, + 781-783 + Railway, Federal regulations as to, 139-143 + State laws regulating, conflict with Federal, effect, 249, 251-252 + Steel Seizure Case, 489-499 + Union publications supporting candidates, restraints on, 793 + Wages, State regulations as to payment, rates, assignments of, + 987-988, 1020-1021, 1158 + Wartime controls of, wage stabilization, 392, 395-397 + Workmen's compensation laws (State), application to maritime workers, + abolition of common law defenses, etc., 311, 580-582, 989-990, 1091 + Work stoppages via union meetings during working hours, prohibition, + 809 + +Land, Air and Naval Forces (_see also_ Militia; President: Powers): + Air Force, establishment, 284 + Congress, power to raise, support, regulate, 279, 283-287, 299-300 + Conscription, validity, 284-285, 299-300 + Courts martial, judicial review of, when a due process requisite, + 285-286, 851 + Courts martial, Presidential sanction of, decrees of, 476 + Jury, not open to indictment or trial by, 285-286, 838 + Offenses arising in, trial, punishment, 285-286 + Personnel, care of, Federal regulations as to, 285, 299-300 + Recruiting, etc., of, utterances obstructing, prohibition, 794 + +Legal Tender. _See_ Money. + +Legislative Power: + Delegation of, 71-82 + Enumeration of; doctrine of, 71-73 + Preamble no source of, 59-60 + +Legislative Process. _See_ Congress; Internal Organization; Legislative +Power. + +Libel, group, 802-804 + +Liens, on vessels, under State laws, 235 + +Limitation of Actions, State enactment of, due process restrictions on, +1092-1093 + +Liquor. _See_ Indians; Intoxicating Liquors. + +Lobbying, as right of petition, regulation, 810 + +Lotteries. _See_ Gambling. + + +M + +Mandamus. _See_ Courts (Federal); States: Officers. + +Maritime Law. _See_ Admiralty. + +Marque and Reprisal, Letters of, grant by Congress, 279 + +Martial Law: + Effect on personal liberty, 484 + Nature of, when lawfully invoked, 398-403 + +Meat, importation, etc., of, State regulation, 236-238 + +Migration, interstate, State curbs on, 241-242, 968 + +Military Commissions, trial by, validity, 294, 399-403 + +Military Forces. _See_ Land, Air, and Naval Forces. + +Military Law. _See_ Land, Air and Naval Forces; Militia. + +Militia: + Jury, not open to indictment or trial by, 837-838 + Powers of Congress, States, as to, 299-300 + Refusal to serve with, penalty, 299 + +Milk (_see also_ Conservation): + Export, import, sale of, State regulations as to, 236-238, 244-245, + 1030-1031 + Price-fixing under Agricultural Marketing Agreement Act, 159-160 + Price, purity of, State regulations as to, 236-238, 244-245, 996-997, + 1030-1031, 1154 + +Mob violence. _See_ Confrontation; Domestic Violence; Due Process of +Law. + +Money (_see also_ Bills of Credit; Counterfeiting): + Coinage and borrowing powers of Congress, relation, etc., 265-267, + 309-310 + Gold clauses in contracts, abrogation, powers, of Congress as to, + 265-267, 287 + Legal tender, powers of States as to, 326 + Legal tender, Treasury notes as, 266-267, 287 + +Money Lending, State regulation of, 1020-1021 + +Monopolies. _See_ Restraint of Trade. + +Morals, State protection of, 1031-1032 + +Mortgages (_see also_ Taxation): + Moratorium, when valid, 354, 359-361 + +Motion Pictures (_see also_ Freedom of Religion, Speech, Press, +Assembly): + Censorship, importation of, State regulations as to, 237, 787-788 + +Motor Vehicles (_see also_ Carriers; Public Utilities; Taxation: State): + Advertising signs on, limited prohibition, validity, 1032-1033, + 1153-1154 + Insurer of operators of, liability, 1022 + Nonresident owners, etc., appointment of agent for service of process, + 660-661, 1074 + State, etc., regulatory powers as to, 211-212, 226-228, 250, + 1032-1033, 1153, 1155 + +Municipal Corporations. _See_ States: Political Subdivisions. + + +N + +National Banks: + Incorporation, etc., by Congress, 265, 267, 309 + State laws, application to, national supremacy, 725 + State taxation of, 729, 733 + +National Industrial Recovery Act (NIRA), void, 152-153 + +National Supremacy (_see also_ National Banks; Public Officers of the +United States; States: Courts; Taxation: State): + Conflict with Tenth Amendment, 915-921 + Examples, 122, 134-137, 139-140, 148, 231, 276, 310, 386, 416-418, + 437-438, 554-555, 568-569, 626-627, 631-633, 636-637, 698, 702, + 721-722, 724-739, 868, 916, 919, 966 + Federal contractors, State taxation of, application of State laws to, + 726, 730-732 + Federal instrumentalities, securities, State tax exemption, 728-736 + Meaning, interpretation, of, 721-722, 724-736 + State laws enacted during insurrection, effect, 728 + +Naturalization: + Cancellation for fraud, residence abroad, 256-257 + Powers of Congress as to, 254-259 + Retroactive effect of, 258 + +Navigable Waters (_see also_ Flood Control; Hydroelectric Power; +Navigation; Vessels): + Defined, 577-578, 867-868 + Regulatory powers of Congress, States as to, 126-132, 228-231 + Riparian owners injured by improvement of, right to compensation, + 867-869 + +Navigation (_see also_ Hydroelectric Power; Navigable Waters): + Instruments of, docks, ferries, etc., Federal regulation of, 128-130 + Obstructions to, Federal restraint of, 126-128 + +Navy. _See_ Land, Air and Naval Forces. + +Nazi Saboteurs, trial by military commission, 285-286, 401-402 + +"Necessary and Proper" Clause, 110, 121, 266-267, 307-311, 426-427 + +Negroes: + Citizenship of, 963-964 + Home ownership, occupancy, public restrictions on, private covenants + prohibiting, validity, 1028, 1142, 1161 + Right to vote, discriminatory devices denying, validity, 1163-1164, + 1183-1186, 1208 + Segregation in schools, conveyances, laws as to, validity, 1161-1163 + Segregation, State powers as to interstate carriers, 225-226, 230 + +Nobility, titles of, not granted by United States, nor accepted by +public officers without consent of Congress, 324 + + +O + +Oaths, powers of Congress as to, 736 + +Obligation of Contracts. _See_ Contracts. + +Officers of the United States. _See_ Public Officers of the United +States. + +Oil (_see also_ Taxation: State): + Conservation, powers of States, 1025-1026 + Damages from drilling, requiring bond to cover, 1026 + Leases from United States, cancellation for fraud, 311 + under Marginal belt along coast, powers of United States as to, 325, + 700 + +"Okies", State curbs on entry, 242, 968 + +Oleomargarine (_see also_ Taxation): + State laws prohibiting, regulating sale of, 239-240, 1030, 1154 + +Original Package Doctrine (_see also_ Taxation: State): + Effect on State regulation of cigarettes, convict-made goods, liquors, + oleomargarine, etc., 236-241 + Interstate and foreign commerce, relation to, 177-178, 180, 182-189, + 194, 236-241, 362-363 + + +P + +Packers and Stockyards Act. _See_ Commerce. + +Pardons: + Congressional powers as to; amnesty, etc., 324, 411, 527-528 + for Contempts, limitations on President, 408-409, 521 + Legal nature, essentials, of; limited effect, 324, 406-407, 409-411, + 527-528 + of Participant in Civil War, effect, 1173 + +Patents: + Nature and scope of right secured, 274-275 + Patentable discoveries, 271-273 + State powers as to, 276 + +Peddlers, State laws regulating, 786, 1155-1156 + +Penalties. _See_ Crimes and Offenses. + +Peonage. _See_ Involuntary Servitude. + +People of the United States: + "Citizens", synonymous with Sovereignty, possessors of, 59-60 + +Perjured testimony, conviction on, validity, 1124-1126 + +Petition, Right of. _See_ Freedom of Religion, Speech, Press, Assembly. + +Pharmacies, corporate operation of, State regulation as to, 1023 + +Picketing. _See_ Labor. + +Piers. _See_ Wharves and Docks. + +Pipe Lines. _See_ Carriers; Public Utilities. + +Piracy, power of Congress to define, punish, 277-279 + +Plants. _See_ Quarantine Laws. + +Police Power: + Corporations, contracts of, impairment by, 345-348, 350-352 + Federal, as limited by due process clause, 859-862 + Foreign commerce, in relation to, 215-217 + Implementation of, by Federal prohibition of commerce, 169-173 + Interstate commerce, in relation to, 215, 217-252, 968, 1232-1233 + State, as limited by equal protection clause, 1144-1146, 1153-1163 + State, conflict with national supremacy, 722-726 + State, defined, due process clause as restraint on, 974-980, 982-1036, + 1091 + State, impairment of contracts by, 357-361 + +Political Questions, concept of, examples, disposition by Federal +courts, etc., 93, 282, 309, 420, 425-426, 471-475, 546-549, 562-566, +571-572, 610, 704-705, 712-715, 1064, 1172 + +Poll Taxes (_see also_ Elections): + as Direct tax, 105, 317, 319, 321 + Exemptions, validity of, 1152 + as Qualification for voting, 970, 1152 + +Polygamy: + Religious precepts, practice pursuant to, 759, 765-766 + Seat in House of Representatives refused practitioner of, 89 + +Posse Comitatus, use by President, etc., in law enforcement, 483 + +Post Roads. _See_ Roads. + +Postal Power. _See_ Postal Service; Roads. + +Postal Service: + Congress, power to create, protect, 267-268 + Exclusion from mails, censorship, 268-270, 804-805 + Federal police power, regulations as to, 859 + State regulations affecting, 270 + +Preamble. _See_ Constitution of the United States. + +Presentment. _See_ Due Process of Law. + +President: + Cabinet as adviser of, origin, meetings, 405-406 + Compensation of, restrictions on alteration, dual salaries, etc., 384, + 388 + Election: + Candidate-elect, death of, powers of Congress as to, 1225-1226 + by Electors, number, duties of, etc., dispute over selection, + political loyalty, disposition, 383-386, 941-944 + by House of Representatives, when, how, 383, 941-944, 1225 + Immunity from judicial direction, injunction, etc., 499-501, 546 + Impeachment of, 501-503 + Message to Congress, 381 + Oath of office, effect, time for, 384, 388-389 + Powers (_see also_ Administrative Agencies; Constitution of the United + States; Delegation of Power; Eminent Domain; Executive Agreements; + Extradition; Pardons; Posse Comitatus; Public Officers of the + United States; War): + to Appoint officers, 404, 412, 445-450, 452-455 + as Commander in Chief; a civilian officer, 380, 389-405, 434-435, + 470, 476, 486-499 + to Conduct foreign relations, 412-413, 423-426, 433-437, 439-443, + 445-449, 462-471, 473-475 + Courts, use by, to enforce laws, 484-486 + Duty to execute the laws; powers derived from, 462, 470-471, 475-499 + Exercise of, when in person or by agents, 476-477 + to Inform Congress, convene it in special sessions, 462-463 + as to Lawmaking, legislative process, approval, veto of bills, etc., + 101-105 + Military forces, use by, to enforce laws, 482-485 + to Negotiate executive agreements, scope, 433-445 + to Negotiate, terminate treaties, 412-413, 419-420, 423-426 + of Pardon, amnesty, commutation, scope, 406-411 + to Protect citizens and property abroad, 487-488 + to Receive ambassadors, etc., 462-469 + of Recognition, 465-470, 472-473 + to Remove officers, 378-380, 404, 453-460, 478-481 + to Seize plants, factories, etc., 395-397, 489-499 + Source of, nature, scope, 377-381 + as to Subordinates, control, protection of, 460-462, 478-481 + to Suspend writ of habeas corpus, when valid, 315 + to Take measures short of war, 487-489 + as to War, 281-283, 290, 297-298, 380, 390-404, 419-420, 434, + 470-471, 474-475, 487-489 + to Withhold confidential communications from Congress, courts, + 460-462 + Qualifications, 384, 386-387 + Refusal to accept office; resignation, how effected, 388 + Succession to; vacancy existing at beginning of term, etc., 384, + 387-388, 1225 + Term, maximum duration, expiration, 377, 382, 1225, 1237 + +Price control in wartime, etc., 392-393, 1234 + +Price-fixing, validity, 159-160, 296 + +Prices, Charges, Rates, etc. (_see also_ Insurance; Milk; Public +Utilities; Stockyards; Warehouses): + State laws regulating, 994-1008 + +Primary Elections. _See_ Elections. + +Priorities. _See_ Rationing. + +Prisoners, right to appeals, corrective process, 1137-1139 + +Privileges and Immunities Clause (Art. IV). _See_ Comity Clause. + +Privileges and Immunities of State Citizens. _See_ Comity Clause. + +Privileges and Immunities of U.S. Citizens: + Abridgment by States prohibited; scope of protection, 963, 965-971 + Enforcement of guaranty by Congress, limits, 1175-1177 + Enumerated, 242, 751, 808-809, 967-971 + +Prizes of War, jurisdiction of Federal Courts as to, 295, 575 + +Production, Federal regulation of, under commerce clause, 152-160 + +Professions. _See_ Business, Trades, Professions. + +Prohibition Amendment (_see also_ Crimes and Offenses; Taxation: +Federal), 1213-1214 + +Prohibition Repeal Amendment, 1213, 1231-1234 + +Property. _See_ Due Process of Law; States; Taxation; United States. + +Protective Tariffs, 162 + +Psychopathic personality, commitment of, validity, 984 + +Public Debt of the United States: + Contracted before adoption of Constitution, 721 + Gold clause in U.S. bonds, validity of abrogation, 1174 + Validity not to be questioned, 1174 + +Public Funds of the United States (_see also_ Appropriations): + Accounting of receipts and expenditures required, 323 + +Public Lands. _See_ United States. + +Public Ministers. _See_ Ambassadors. + +Public Officers of the States. _See_ States: Officers. + +Public Officers of the United States (_see also_ Ambassadors; President: +Powers; Secret Agents): + _Ad interim_ designations by President, 455 + Appointment by President, with Senate approval, 453-454 + Categories of, "inferior", "employees", etc., 452 + Congress, assertion of appointing power, 449-450, 452 + Congress, power to condition removal of, by President, 459-460 + Control of conduct of, by Congress, 449-452 + Disqualification for rebellion, treason; removal of disability by + Congress, 1173 + Doctrines as to, "estate in office", "nature of office", 457-458 + Impeachment of, 455, 457, 501 + Indemnification of, by Congress, 501 + Jury service by, in Federal criminal trials, 879 + Liability of, for excess of authority, 500-501 + Membership in Congress restricted, 100-101 + "Office", defined, 445-446, 449, 457-458 + Political activities of, restricted, 94, 793-794 + Presidential electors, status as, 385-386 + Recess appointments of, 455 + Removal of, by President, 453-460, 478-481 + Speaker of the House, President pro tem of Senate, as, 387 + State taxation of salaries of, 731 + Subordinates of President, Judicial review, restraint of, 500-501 + Suits against, removal from State to Federal courts, 568-569 + Suits against, sovereign immunity issue, 580-590 + Trial of, for offense against, etc., State laws, removal to Federal + court, 501, 632-634, 724-728 + +Public Utilities (_see also_ Carriers; Taxation): + Federal regulation of, due process limitations, 860-862 + Holding companies, Federal regulation of, 150-151 + Rate regulation by States, judicial review of, 972, 998-1008 + State, etc., regulatory powers as to, 220-234, 249-251, 1008-1016, + 1156 + State taxation of, operated interstate, 209-214 + + +Q + +Quarantine Laws: + State, power to adopt, validity, 217, 235-237, 248-249 + State, relation to foreign commerce, 217 + +Quartering Soldiers in Private Homes, 817 + + +R + +Radio: + Censorship of, via broadcast licenses, 787 + Federal regulation, seizure, 125-126, 138-139, 486, 495 + +Railroads. _See_ Carriers. + +Raisins, marketing of, State regulation, 249 + +Rates. _See_ Prices, Charges, Rates, Etc. + +Rationing in wartime, 397-398 + +Real Property. _See_ Taxation: State. + +Reciprocal Trade Agreements, 441-442 + +Recognition of foreign governments, States, 465, 467-470, 472-473 + +Red-light districts, creation by municipalities, 1031 + +Rent Control, validity, 296, 358-359, 475, 855 + +Republican Form of Government, Federal guarantee of to States, 704 + +Resale Price Maintenance. _See_ Restraint of Trade. + +Reserved Powers. _See_ Commerce; General Welfare; States. + +Restraint of Trade: + Interstate, Federal prohibition of, 144-149 + Monopoly privileges, State grant of, validity, 1160 + Resale price maintenance, unfair discrimination, etc., State laws on, + 1017 + State antitrust laws, 1160 + +Retroactive. _See_ Contracts; Due Process of Law. + +Revenue. _See_ Taxation: Federal; Taxation: State. + +Right to Bear Arms. _See_ Bearing Arms. + +Rights, other than enumerated in Constitution, retention by people, 909 + +Roads (_see also_ Public Utilities): + Post roads, power of Congress to establish, 132, 267-268 + State toll tax on, mail trucks exempt, 268 + +Rule-Making Power (_see also_ Administrative Regulations), 76-78 + + +S + +Safety. _See_ Zoning. + +Schools and Colleges (_see also_ Negroes): + Curricula, military training, attendance at, State laws regulating, + 984-985 + +Searches and Seizures (_see also_ Corporations; Due Process of Law; +Self-Incrimination; Wiretapping): + Evidence obtained by, use of, 830-831 + Incidental to arrest, 828-829 + Records, requirement of keeping, disclosing as a, 827 + Self-incrimination, seizures entailing, etc., effect, 825-827 + by State, unreasonable, validity, 1121-1124 + Unreasonable, protection against, 823-831 + Vehicles, search of, without warrant, 830 + Warrants for, necessity, sufficiency of, 825-830 + +Seat of Government. _See_ District of Columbia. + +Secret agents, 437-438, 447-449, 1156 + +Secret Societies, State regulation of, 985, 1156 + +Securities (_see also_ Blue Sky Laws; Commodity and Security Exchanges): + Brokers in, State regulation, 235 + Issuance, trading in, Federal regulation, 150-151 + Sale of, State regulations as to, 1156 + +Segregation. _See_ Chinese; Japanese; Negroes. + +Self-Incrimination: + Privilege against, scope, 825-827, 841-844, 1111-1121 + in State criminal trials, 1111-1121 + +Senate (_see also_ Congress; Executive Agreements): + Assent to appointment of officers, 453-454 + Impeachments, trial by, vote to convict, 91 + Members not to serve as presidential electors, 91-92, 94, 1207-1208 + Members of, number of, popular election, 91-92, 94, 1207-1208 + Officers of, how chosen, 91 + Presidential diplomatic agents, powers as to choice of, etc., 437-438, + 447-449 + Revenue bills, may amend, 101-102 + Treaties, powers, duties as to, 412-413, 419, 434, 444-445 + Vacancies in, how filled, 1207 + Vice-President to preside over, casting vote, when, 91 + +Separation of Powers (_see also_ Delegation of Power): + Immunity of legislative, executive branches from judicial direction, + 499-500 + +Severance Taxes. _See_ Taxation. + +Sewers, compelling property owners to connect with, 1030 + +Sherman Act. _See_ Restraint of Trade. + +Shrimp, State restriction on export of, 245 + +Slavery (_see also_ Involuntary Servitude): + Importation of, not to be prohibited before 1808, 312 + +Social Security Act, validity, 115 + +Sound Trucks. _See_ Freedom of Religion, Speech, Press, Assembly. + +Sovereignty, where located, 59-60, 72 + +Special Assessments. _See_ Taxation: State. + +Spending for the General Welfare, powers of Congress, 112-117 + +Stare Decisis, 565-566 + +States: + Admiralty matters, rights, legislation as to, 574-582 + Admission on terms of equality, 697-701 + Agreements with other States: + Compact clause, history, 365-367 + Compacts, consent of Congress to, when required, 365, 367-369 + Compacts distinguished from treaties, 367 + Compacts, substance, legal effect of, 367-370 + Commerce clause, as restraint on powers of, 173-214 + Courts (_see also_ Courts (Federal); Full Faith and Credit): + Concurrent jurisdiction with Federal courts, comity, 624-627, 636 + Consuls, suable in, 571-572 + Contempt power of, 517 + Controversies with Federal courts, comity, 624-635 + Crimes on Indian reservations, jurisdiction, 698 + Enforcement of Federal laws by, 635-637, 726-727, 736-739 + Federal courts, interference with, illegal, 727-728 + Judicial review by, 560 + Procedure in; State regulation, due process limitations on, + 1089-1096, 1139 + Records of territorial court, transfer to, on State admission, 699 + Removal of cases from, to Federal courts, 567-569 + Review of, by Federal courts, 554-555 + Suits in, at common law, in lieu of Federal admiralty actions, + 575-576, 578-579 + Debts incurred in aid of rebellion, void, 1174 + Federal territorial statutes, application after State admission, 698 + Governors, veto of congressional districting laws, 93 + Immunity from Federal taxation, 105-109 + Immunity from suit without consent, 609 + Obligations owed to, by United States, 704-705 + Offenses on navigable waters, punishment by, 578 + Officers: + Acting under void statute, status of, 929 + Denying constitutional rights, Federal punishment of, 1176-1177 + Disqualification for rebellion, treason; removal of disability by + Congress, 1173 + National duties of, limits, 736-737 + Office of, when a contract not to be impaired, 340-341 + Political activity of, application of Federal Hatch Act, etc., 116, + 793-794 + Presidential electors, status as, 385-386 + Restraint of, by Federal courts, 629-630 + Salaries of, subject to Federal income tax, 105-106, 108 + Suits against, when immune from, 930-935 + Test oaths for, illegal, 736 + Political Subdivisions: + Bonds and charters of municipal corporations, impairment by States, + 339-340, 356-357 + Federal taxation, scope of immunity from, 106-109 + Municipalities, equal protection of the laws, not entitled to + invoke, 1143 + State control of, effect of due process clause on, 1035-1036 + Powers denied to, 325 + Property owned during territorial status, effect of admission as, on + title (off shore oil), 700 + Property transfers during territorial status, effect on, of admission + as State, 700 + Reserved powers of, invasion by treaty-making power, etc., 428-430, + 915-921 + Suits against, scope of immunity from, consent, waiver, 929-936 + United States, conditions, reservations, in cessions of property to, + 305-307 + +Steel Seizure Case, 489-499 + +Sterilization, sexual, State laws providing for, 984, 1161 + +Stockyards, State regulation of charges by, 996 + +Succession to Property, right of election to surviving spouse, effect of +creation, 1033 + +Suffrage. _See_ Elections. + +Sunday Blue Laws, 1031, 1154 + +Supreme Court of the United States: + Appellate jurisdiction, limitation of, by Congress, 614-615 + Chief Justice, presides at President's impeachment trial, 91 + Concurrent jurisdiction with lower Federal courts, 613 + Full faith and credit clause, application by, 682-685 + Legislative courts, appellate jurisdiction over, 536 + Original jurisdiction, 571, 591-595, 611-613 + Protection of, against noises, banners, etc., 792 + Rule-making authority, derivation, etc., 608 + Size, internal organization, sessions, etc., 528-529 + State court decisions, review by, 570-571 + State procedure, scope of review by, 1140-1141 + State's corrective process in criminal trials, review of adequacy, by, + 1138-1139 + + +T + +Tariffs, as regulation of foreign commerce, 162 + +Taxation: + Federal: + Capital gains, computing income tax on, 1197-1200 + Cooperatives, unincorporated joint stock associations, earnings, + 1196 + Corporate dividends, when taxable as income, 1193-1195 + Corporate earnings, undistributed, etc., when taxable as income, + 1195-1197 + Customs, import duties, 319 + Direct, apportionment, defined, 89, 105, 317-319, 321 + Discriminatory, retroactive, etc., due process limitations, 862-864 + in District of Columbia, 303-304, 321 + Excises, defined, 318-321, 1191 + Exports, exempt from, 105, 321-322 + Extermination by, 111 + Forbidden subjects, 105-109 + Income, allowable deductions, exemptions, losses, etc., 1198, + 1200-1201 + Income, as direct, or excise, tax, 319-321, 1191-1192 + Income, due process limitations, 862-863 + Income tax, power of Congress to levy, 1191-1201 + Inheritance tax, 1192 + Levy as penalty to enforce Federal, State laws, 1196-1197, 1214 + License taxes, 110 + Power of Congress to levy, 105, 110-117 + Preferences to ports of one State, duties on outbound vessels, + prohibitions, 322-323 + Regulation by taxation, 110-112 + on Rental value, when a direct, or income, tax, 1200 + Reserved powers of States, invasion by, 109, 916-919, 921 + Revenue bills, originate in House of Representatives, 101-102 + Suits to recover taxes, alteration of right, 858 + Tariffs, protective, 112 + Uniformity of duties, imports, excises, 105, 109-110 + of Unlawful articles, 1201, 1214 + State: + Airplanes operated in interstate commerce, 210-211, 1052 + Banks, 1147-1148 + Businesses selling goods of interstate origin, 186-192 + Carriers operated in interstate commerce, 179-180, 192-193, 197-203, + 206-213 + Collection by bailees, employers, retailers, safe deposit companies, + validity, 1061 + Collection, levy of, procedural due process in, jurisdiction, etc., + 1039-1062 + Commerce clause as restraint on, 177-214 + Companies engaged in interstate commerce, gross receipts, income, + franchise taxes, etc., 179-180, 186-198, 202-215 + Considerations as to validity; public purpose, severity, benefit, + 1036-1037, 1041-1043 + Copyright royalties, 734 + Corporations engaged in interstate commerce, 193-204, 206-215, 1040, + 1049-1053, 1148, 1151, 1153 + Due process clause as restraint on, 1036-1062 + Equal protection clause as limitation on, 1146-1153 + Equitable interest of purchaser of U.S. property, 306 + Exemption, as a contract protected against impairment, 341-343, + 347-348, 350 + Exports, imports, when valid, 362-365 + of Federal contractors, 730-732 + of Federal instrumentalities, functions, securities, etc., 728-737 + Federally chartered corporations, property of, 732 + Goods in interstate transit, restrictions, 179-183 + Income, due process, equal protection clause limitations on; + jurisdiction; collection by withholding, etc., 1039, 1053-1055, + 1061, 1150 + Inheritance, estate, gift; due process, equal protection clause, + limitations on, 1037-1039, 1045-1049, 1061, 1150-1151 + Insurance companies; due process, equal protection clause, + limitations on, etc., 1055-1056, 1062, 1148-1150 + Insurance companies engaged in interstate commerce, 214-215 + Lessees of Indian lands, validity, 735 + Motor vehicles, 211-213, 1151 + Multiple, 1041-1056 + Multiple taxation test applied to interstate commerce, 204-208, 1052 + Nonresident, scope for discrimination, 692-693 + Oleomargarine, 1148 + Preference of ports, prohibition on, inapplicable, 322 + Property employed in interstate commerce, apportionment, 198-212 + Public utilities, 213, 1039-1040, 1050-1053, 1148, 1151-1153 + Railroads, 1052-1053 + Real property, due process, equal protection clause, limitations on + assessment and collection, jurisdiction, etc., 1039-1041, + 1057-1062, 1152-1153 + Sales and use taxes, application to interstate commerce, 184-192 + Severance, due process limitations, 1039 + Special assessments, due process limitations on, 1040-1041 + Suits to recover, when within State immunity from suit, 935-936 + Tangible, intangible personalty, due process limitations on, + jurisdiction, 1041-1053 + Tonnage duties, restrictions on, 365-366 + Trusts, and beneficiaries of, due process limitations on, 1044-1049, + 1053 + Vessels operated in interstate commerce, 209-210 + +Teachers. _See_ States: Officers. + +Telegraph (_see also_ Public Utilities): + State regulation of, 231-232 + +Territories (_see also_ Citizenship): + Acquisition by conquest, disposal of, 403 + Congress, powers as to, 703 + Constitutional guaranties, application to, 703 + Courts of, powers of Congress as to, etc., 310, 533-535 + Federal taxes, uniformity requirement as to, 109-110 + Unincorporated; rights of persons accused of crimes in, 877 + +"Third Degree". _See_ Confessions. + +Tobacco (_see also_ Cigarettes), 240, 990 + +Tonnage Duties. _See_ Taxation: State. + +Trade-Marks; Advertisements, nature of, in relation to patents, +copyrights, 276 + +Trades. _See_ Business, Trades, Professions. + +Trading Stamps, State licensee fees on use, 1019 + +Transportation. _See_ Carriers; Commerce; Vessels. + +Treason, definition, requirements for conviction, punishment, 638-646 + +Treaties (_see also_ Executive Agreements; Indians; Political Questions; +President: Powers; Senate; States): + Effect of war on, 417 + Exterritorial rights granted by, effect, 877 + Implementation, repeal, termination by Congress, 418-421, 423-427, + 431-432 + Interpretation of, by whom, 423, 425-426 + as Law of the land; as contract; effect on State laws, State courts, + 413-425, 431-432 + when Self-executing, 417-418 + as Source of Federal power, limits, 426-431 + States not to enter into, 325 + Termination as international compact, how, by whom, 423-426 + +Troops (_see also_ Land, Air and Naval Forces): + Keeping in peacetime, by States, 365-366 + + +U + +Uniformity of Federal taxes. _See_ Taxation: Federal. + +Unit Rule in State Taxation of Carriers, 200-201 + +United States: + Obligations owed to States, 704-705 + Property ceded by States, conditions, reservations as to, 306-307 + Property of, jurisdiction as to, 305-307 + Property of, powers as to, disposal, etc., 701-703 + Property of, State powers as to, taxation of, 305-307, 732 + Public lands of, powers of States as to, 305, 702-703 + Public lands, powers as to, 701-702 + + +V + +Vaccination, compulsory, State laws providing for, 984 + +Vessels (_see also_ Carriers; War): + on Inland waters, Federal regulation of, 128-130 + Liens on, under State laws, 235 + on Navigable waters, State regulation of, 228-231 + Rates for service on, State regulation, 229, 231 + Safety devices on, Federal requirement, 139 + State taxation of, due process, etc., limitations, 209-210, 1052 + +Vice President: + Candidate elect, death of, powers of Congress to fill vacancy, etc., + 1225-1226 + Election of, duties of electors, Senate, 383, 941-944, 1226 + as Presiding officer in Senate, casting vote only, 91 + Resignation, refusal to accept, how evidenced, 388 + Succeeds to Presidency, when, 384, 387-388, 941-942 + Term, beginning of, etc., 377, 1225 + Vacancy in, power of Congress to fill, 384, 387-388 + +Voting. _See_ Elections. + + +W + +Wages. _See_ Labor. + +War (_see also_ Eminent Domain; Japanese; President: Powers): + Congress, power to declare, etc., 279-282, 286-293, 296-298, 395-397, + 399, 401-404 + Dates of beginning, termination, how fixed, 282 + Declaration, when required, 281-282 + Economic mobilization during, 280-289, 296 + Eminent domain in time of, liability of United States, 298 + Enemy aliens, restraint of, 297-298 + Enemy property during, 294-296 + Laws of, application, 293-294 + Legislation enacted in prior wars; postwar effect, 286-288, 292-293 + Personal liberty, restraint of, during, 297-298 + Powers, nature and source of, 279-281, 291-293 + Preparation for, in time of peace, 291-292 + President, powers of, absent a declaration of, 281-282 + Private rights during, 293-298 + Prizes of, laws applicable to, 295-296 + Seditious utterances in, powers of Congress as to, 297, 794 + Terminated, by whom, 474-475 + Theatre of war, defined, by whom, 294 + Treaty-making power, involvement in, pursuant to, 419-420 + +War Crimes, prosecution for, 402-403 + +Warehouses, grain, tobacco, State regulation of charges, etc., 251, 994, +996 + +Warrants. _See_ Searches and Seizures. + +Water (_see also_ Public Utilities): + Diversion by riparian owner, State prohibition, 1026 + Restrictions by States on export of, 243 + +Weights and Measures, 265, 1018 + +Wharves and Docks: + in Navigable streams, State powers as to, 229-231 + Purchased with State consent, Federal jurisdiction over, 305-306 + +Wheat, Federal regulation of production of, 159 + +Wills. _See_ Administration of Estates; Succession to Property. + +Wireless. _See_ Radio. + +Wiretapping, 824 + +Women (_see also_ Elections): + Citizenship of, 255, 259, 963 + Employment of, State regulations as to, 988, 1159 + Voting rights of, 1219-1220 + +Workmen's Compensation. _See_ Full Faith and Credit Clause; Labor. + +Work-Or-Fight, work-or-starve laws, validity, 952-953 + +Wrongful Death Statutes, State enforcement in Federal courts, 574, 579 + + +Y + +Yellow-Dog Contracts. _See_ Labor. + + +Z + +Zoning, building code, regulations, validity, 1027-1029, 1154-1156 + + + + +TRANSCRIBER'S NOTES: + + +Introduction: +page XII--added period after "thereby" to complete four period ellipsis +page XIV--corrected spelling of "kidnaping" to "kidnapping" +page XXI--corrected spelling of "injuction" to "injunction" and added + period after "law" to complete four period ellipsis +page XXII--corrected spelling of "achivement" to "achievement" +page XXVIII--added opening quotation mark to Justice Holmes' remarks +page XXIX--corrected spelling of "Genessee" to "Genesee" in "The + Genessee Chief" +page XXXIII--added period after "etc" +page XXXIV--added period after "etc" +Footnote 23--corrected case citation from "Dall. 54, 74" to "3 Dall. 54, + 74" +Footnote 61--removed comma after "Dall." + +Constitution of the United States: +page 22--corrected spelling of "questiond" to "questioned" +page 54--corrected spelling of "submisssion" to "submission" + +Article I: +page 68--added period after "etc" +page 76--corrected spelling of "alloting" to "allotting" +page 86--corrected spelling of "apropriate" to "appropriate" +page 95--corrected spelling of "caluse" to "clause" +page 104--added comma after "order" in "order, resolution, or vote" +page 146--corrected spelling of "REVIVED" to "REVISED" in "THE SHERMAN + ACT REVIVED" +page 146--corrected spelling of "Addystone" to "Addyston" in "Addystone + Pipe and Steel Co. v. United States" +page 152--corrected "be" to "by" in "It is an attempt for social ends to + impose by sheer fiat noncontractual incidents...." +page 158--removed comma after "St." in "10 East 40th St. v. Callus" +page 160--removed second "within" in "Activities conducted within within + the State lines...." +page 166--added period after "S" in "247 U.S 251" +page 178--corrected spelling of "concesssion" to "concession" +page 184--corrected spelling of "doctine" to "doctrine" +page 203--removed third "s" from "businesss" in "... taxing State and of +the business...." +page 216--removed comma after "York" in "New York v. Miln" +page 220--corrected spelling of "supoprt" to "support" +page 221--removed extraneous quotation mark before (1) +page 238--corrected spelling of "manufacure" to "manufacture" +page 244--corrected spelling of "comformably" to "conformably" +page 249--changed "in" to "In" in two places +page 254--corrected spelling of "possesions" to "possessions" and added + opening quotes in front of numbered paragraphs +page 255--added opening quotation mark in paragraph (7) +page 255--added opening quotes in front of numbered paragraphs and + removed unmatched quotation mark after "descent" in "... persons of + Chinese descent";" +page 260--corrected spelling of "esssential" to essential" +page 263--corrected spelling of "disolved" to "dissolved" +pages 272-273--added opening quotation marks to each paragraph of list + of patent court cases +page 273--corrected spelling of "reinfore" to "reinforce" +page 276--corrected spelling of "Farenheit" to "Fahrenheit" +page 277--corrected spelling of "Revolutionory" to "Revolutionary" +page 281--added ending quotation mark after "... was liberated with its + crew." +page 297--corrected spelling of "concered" to "concerned" +page 308--corrected spelling of "ocurred" to "occurred" +page 343--corrected spelling of "eath" to "each" +page 356--corrected spelling of "Justice Frankfurther" to "Justice + Frankfurter" +page 389--corrected spelling of "probabilty" to "probability" +Footnote 55--changed comma to period in "United States ex rel, Tisi v. + Tod" +Footnote 139--removed comma after "Stat." in "9 Stat., 428, 432-433" and + removed question mark in "Grand Depository of the Democratic + Principle"? +Footnote 215--changed comma after "Dall" to period--"Hollingsworth v. + Virginia, 3 Dall, 378 (1798)." +Footnote 353--removed comma after "Ball" +Footnote 366--removed period after "at" in "311 U.S. at 426." +Footnote 472--inserted hyphen in "Cooperative" in "United States v. Rock + Royal Cooperative" +Footnote 565--removed comma after "Inc." in "Eastern Air Transport, Inc. + v. South Carolina Tax Comm'n." +Footnote 576--added space between "air" and "transport" +Footnote 641--corrected spelling of "colleced" to "collected" +Footnote 789--added space between "Di" and "Santo" +Footnote 807--corrected "J.R." to "L.R." in "Hannibal & St. J.R. Co. v. + Husen" +Footnote 1061--removed period after "Elg" in "Perkins v. Elg." +Footnote 1121--removed comma in "218, U.S. 302" +Footnote 1160--added period after "Wall" in "Eunson v. Dodge, 18 Wall. + 414, 416" +Footnote 1168--in Justice Bradley quote, moved ending quotation mark + after "... made in good faith." +Footnote 1190--corrected spelling of "Bleisten" to "Bleistein" in + "Bleisten v. Donaldson Lithographing Co." +Footnote 1221--removed period after "Bas" in "Bas. v. Tingy" +Footnote 1299--changed comma to period after "Wall" in "Miller v. United + States, 11 Wall. 268 (1871)." +Footnote 1350--corrected "Sere" to "Sere" in "Sere v. Pitot" +Footnote 1613--corrected spelling of "Diety" to "Deity" in + "... principle which will impose laws even on the Diety...." +Footnote 1634--corrected "Cf," to "Cf." + +Article II +page 413--corrected spelling of "soverign" to "sovereign" +page 433--changed "they" to "the" in "... by the settlement the effect + of these cease <i>ipso facto</i> to be operative...." +page 443--added comma after "sell" in "... sell, transfer title to, + exchange, lease, lend, or otherwise dispose of...." +page 444--added comma after "governments" in "... claims against + foreign governments, fourteen were claims...." +page 472--removed extraneous "to" in "... assume a fact in regard to to + the sovereignty...." +page 492--removed " after "action" in "... successful defense of the + President's action,"...." +page 495--removed comma after "U.S." in "158 U.S., 564, 578" and removed + comma after "Wheat." in "4 Wheat., 316, 424" +page 502--corrected Alexander Hamilton quote from Federalist No. 65 by + changing "a" to "in" in "... as in common cases serve to limit...." +Footnote 85--corrected spelling of "Kahanomoku" to "Kahanamoku" in + "Duncan v. Kahanomoku" +Footnote 121--added period after "H" in "W.H. Humbert" +Footnote 158--corrected spelling of "forefeiture" to "forfeiture" and + corrected "he" to "be" in "... he the subject matter what it may...." +Footnote 172--changed comma to period in "6 Wall. 160" +Footnote 187--corrected "procedents" to "precedents" +Footnote 207--removed apostrophe after "States" in "... power can + consent to the United States being used...." +Footnote 281--added period after "Senate" +Footnote 286--added missing words [clerical superiors shall receive any + gift or] in brackets +Footnote 330--added comma after "VI" +Footnote 371--removed comma after "S.A." in "Compania Espanola de + Navegacion Maritima, S.A.," +Footnote 485--corrected spelling of "Dairy" to "Diary" + +Article III +page 515--corrected spelling of "sutained" to "sustained" +page 526--added space between "any" and "one" +page 530--removed comma after "Revenue" in "O'Malley, Collector of + Internal Revenue <i>v.</i> Woodrough" +page 540--added closing quotation mark before Footnote 156 anchor +page 545--removed extraneous quotation mark before Footnote anchor 187 +page 562--corrected spelling of "constitionality" to "constitutionality" +page 586--changed first "as" to "an" in "Although as officer acting as a + public...." +page 587--changed "is" to "it" in "... where is was held...." +page 607--corrected spelling of "longr" to "longer" +page 611--changed "where" to "were" in "... and other States where so + disturbed that...." +page 623--corrected spelling of "Consquently" to "Consequently" +page 645--added closing quotation mark after "clause 2." +Footnote 13--added period after "How" +Footnote 200--added period at end of sentence +Footnote 270--removed comma after "297" in "United States v. Butler, + 297, U.S. 1, 62-63 (1936)" +Footnote 379--changed comma to semi-colon after "(1867)" +Footnote 422--moved comma from after "339" to after "Texas" in "United + States v. Texas 339, U.S. 707 (1950)" +Footnote 444--added word "to" in "... was held not [to] be a suit...." +Footnote 599--corrected reference from "Wheat. 304 (1816)" to "1 Wheat. + 304 (1816)" +Footnote 659--changed comma to period in "1 Stat, 335 (1793)" +Footnote 660--added semi-colon after "(1856)" +Footnote 737--changed semi-colon to comma in "9 Fed. Cas. Nos. 5,126; + 5,127 (1799, 1800)", added opening parenthesis before "1863" in "26 + Fed. Cas. No. 15,254 1863)" + +Article IV +page 650--added period after "etc" +page 651--corrected "STATIC RELATIONS" to "STATE'S RELATIONS" +page 652--corrected spelling of "fulfilment" to "fulfillment" +page 681--changed "Where" to "Were" in "Where the company's contention + accepted...." +page 687--corrected spelling of "Souse" to "House" in "Slaughter-Souse + Cases +Footnote 3--changed comma to period after "Brock" +Footnote 66--changed period to comma after "287" in "... 317 U.S. 287. + he would prefer...." +Footnote 74--corrected spelling of "fedual" to "federal" +Footnote 97--corrected "N.O.R.R." to "N.O.R." in "Texas & N.O.R.R. Co. + v. Miller" +Footnote 171--corrected spelling of "Pawloske" to Pawloski" in "Hess v. + Pawloske" +Footnote 265--corrected "cf" to "cf." + +Article V +page 712--changed "... quorum--, and not ..." to "... quorum--and + not ..." +page 715--corrected spelling of "Inamsuch" to "Inasmuch" + +Aricle VI +page 719--added period after "etc" +page 722--corrected spelling of "nul" to "null" +page 733--corrected spelling of "funtions" to "functions" +page 736--corrected spelling of "Pinckeney" to "Pinckney" +Footnote 2--corrected case citation from "Wheat. 316" to "4 Wheat. 316" +Footnote 42--changed comma to period in "9 Wheat, 788 (1924)" + +Article VII +page 749--added opening quotation marks to paragraphs beginning "Art. + 1", "Art. 2", "Art. 3", and "Art. 6" + +Bill of Rights +Footnote 6--added period after "cit" in "op. cit" + +Amendment 1 +page 755--added period at end of "Hague v. C.I.O" +page 758--corrected spelling of "Calvanist" to "Calvinist" +page 759--corrected "I" to "1" in "I Tuck. Bl. Com." +page 761--changed ending double quotation mark to single in 'released + time," +page 771--removed comma after "Dallas" in "1 Dallas, 319, 325" +page 785--corrected spelling of "anouncements" to "announcements" +page 786--corrected spelling of "forbiding" to "forbidding" +page 794--removed period after "et" in "et. al." +page 795--corrected spelling of "verthrowing" to "overthrowing" +page 797--corrected spelling of "docrine" to "doctrine" +page 800--corrected spelling of "trivalities" to "trivialities" +page 806--inserted "of" into the phrase "in any accurate meaning of + these words" +Footnote 22--corrected spelling of "Morace Mann" to "Horace Mann" +Footnote 167--changed comma to period after "Comm'n" in "Communications + Comm'n, v. N.B.C." and added comma after N.B.C. +Footnote 184--corrected spelling of "Terminello" to "Terminiello" in + "Terminello v. Chicago" + +Amendment 4 +page 825--corrected spelling of "procedings" to "proceedings" +page 826--inserted "than" after "other" in "... if it is unreasonable on + grounds other self incrimination...." + +Amendment 5 +page 839--corrected spelling of "defendent" to "defendant" +page 841--removed hyphen in "accusare-seipsum" +page 850--removed period after "WJR" +page 852--corrected spelling of "ailen" to "alien" +page 869--corrected spelling of "benefitted" to "benefited" +Footnote 148--added hyphen in "Cooperative" in "United States v. Rock + Royal Cooperative" +Footnote 155--corrected spelling of "Idid." to "Ibid." +Footnote 160--corrected spelling of "Addystone" to "Addyston" in + "Addystone Pipe and Steel Co. v. United States" +Footnote 165--added hyphen in "Cooperative" in "United States v. Rock + Royal Cooperative" +Footnote 212--removed comma after "299" in "299, U.S. 232 (1936)" +Footnote 241--corrected spelling of "Untermyer" to "Untermeyer" +Footnote 261--added comma after "U.S." in "Brown v. U.S. 8 Cr. 110 + (1814)" + +Amendment 6 +page 882--corrected spelling of "willfullness" to "willfulness" +page 883--corrected spelling of "poltical" to "political" + +Amendment 7 +page 896--removed extraneous "had" in "... it was held that a trial + court had had the right...." + +Amendment 8 +page 903--removed semi-colon in "Who are to be the judges?;" +Footnote 5--corrected "USCA" to "U.S.C.A." + +Amendment 11 +page 929--corrected "Article 11" to "Amendment 11" +page 933--corrected spelling of "legislaion" to "legislation" +Footnote 4--corrected case citation from "Wheat. 738 (1824)" to "9 + Wheat. 738 (1824)" +Footnote 20--corrected case citation for "Pennoyer v. McConnaughy" from + "140 U.S. (1891)" to "140 U.S. 1 (1891)" +Footnote 23--added period after "rel" in "ex rel" + +Amendment 12 +page 944--corrected "undistinguishable" to "indistinguishable" + +Amendment 13 +page 952--in (5), added final period to "U.S.C.A." + +Amendment 14 +page 957--corrected page number reference from "669" to "969" +page 958--added period after "etc"--three occurrences on page +page 960--added period after "etc"--two occurrences on page +page 961--added period after "etc"--one occurrence on page +page 977--corrected spelling of "willingess" to "willingness" +page 1013--added opening single quote before "the" in "... the + furnishing of such necessary...." +page 1014--removed comma after "railroad" in "... provides that a + railroad, shall be responsible...." +page 1016--corrected "it" to "its" in "... unable to recoup it original + investment...." +page 1030--added comma after Footnote anchor [403], in "... statutes + ordering the destruction of unsafe and unwholesome food[403] + prohibiting the sale...." +page 1030--changed "forbade" to "forbid" in "... to forbade the sale of + drugs by itinerant vendors...." +page 1043--in (10), changed "later" to "latter" in "... protected by the + later and subject to its jurisdiction." +page 1051--corrected spelling of "coporations" to "corporations" +page 1058--changed "than" to "that" in "... opportunity to submit + evidence and arguments being all than can be adjudged vital...." +page 1071--corrected spelling of "determintion" to "determination" +page 1114--changed comma to period after "State" in "... the + constitutional rights of the States," +page 1114--corrected spelling of "consitutionally" to "constitutionally" +page 1134--added period after "rel" in "... in Louisiana ex rel Francis" +page 1153--corrected spelling of "arbitary" to "arbitrary" +Footnote 12--added hyphen in "Coop." in "Warehouse Co. v. Burley Tobacco + Growers' Coop. Marketing Asso." +Footnote 75--removed comma after "Cr." in "6 Cr., 87, 128 (1810)" +Footnote 94--removed period after "Board" in "National Labor Relations + Board. v. Jones & Laughlin" +Footnote 104--corrected spelling of "Schimdinger" to "Schmidinger" in + "Schimdinger v. Chicago" +Footnote 157--removed "in" in "... and intimidations of in injury to + future patrons...." +Footnote 219--corrected spelling of "revelant" to "relevant" +Footnote 221--changed period to comma after "(1944)" +Footnote 446--added period after "rel" in "ex rel" +Footnote 533--changed comma to period in "4 Wheat, 316, 429 (1819)" +Footnote 540--removed unmatched quotation mark +Footnote 695--removed comma in "19, Wall. 107 (1874)" +Footnote 698--corrected spelling of "Millikin" to "Milliken" in + "Millikin v. Meyer" +Footnote 700--corrected spelling of "Pawlocki" to Pawloski" in "Hess v. + Pawlocki" +Footnote 761--corrected spelling of "untrammelled" to "untrammeled" +Footnote 804--changed comma to period in "Wllson v. North Carolina ex + rel, Caldwell" and corrected spelling to "Wilson" +Footnote 854--removed comma in "342, U.S. 881 (1951)" +Footnote 874--inserted comma after "York" in "Moore v. New York 333 U.S. + 565, 569-570 (1948)" +Footnote 902--corrected "Section I" to "Section 1" +Footnote 937--corrected spelling of "Holahan" to "Holohan" in "Mooney v. + Holahan" +Footnote 954--corrected spelling of "habeus" to "habeas" +Footnote 969--added closing quotation mark after "invasion." +Footnote 974--corrected spelling of "gurantees" to "guarantees" +Footnote 1016--corrected "Q.R.R." to "Q.R." in "Chicago, B. & Q.R.R. Co. + v. Iowa" +Footnote 1048--corrected "exexempted" to "exempted" +Footnote 1104--changed comma to semi-colon before "oleomargarine" +Footnote 1203--corrected spelling of "Atchinson" to "Atchison" in + "Atchinson, T. & S.F.R. Co. v. Matthews" + +Amendment 16 +page 1189--added period after "etc" + +Amendment 18 +page 1213--changed comma to period after "1935" in "August 27, 1935," + +Acts Held Unconstitutional +page 1241--corrected spelling of "Reichart" to "Reichert" in "Reichart + v. Felps" +page 1246--corrected spelling of "waranted" to "warranted" +page 1247--changed "1" to "I" in "article 1, section 8, clause 3" +page 1250--in 51., removed comma after "Collector" in "Nichols, + Collector, v. Coolidge et al." +page 1254--in 73., corrected "article I, section 3, clause 9" to + "article I, section 9, clause 3" + +Table of Cases +page 1257--removed comma after 175 in "Addyston Pipe & Steel Co. v. + United States, 175, U.S. 211 (1899)" +page 1258--added period after "al" in "et al" +page 1259--removed period after "ex" in "Ashe v. United States ex. rel. + Valotta" +page 1261--added period after "S" in "195 U.S 375" +page 1262--corrected spelling of "Perovick" to "Perovich" in "Biddle v. + Perovick" +page 1263--removed comma after "451" in "342 U.S. 451, (1952)" +page 1264--removed comma after "Co." in "Brown v. Western Ry. Co., of + Alabama" +page 1268--corrected spelling of "Whitten" to "Whitton" in "Chicago & + Northwestern R. Co. v. Whitten" +page 1270--removed comma after "R." in "Columbia R., Gas & E. Co. v. + South Carolina" +page 1270--added period after "Pick" in "3 Pick (Mass.) 304 (1825)" +page 1270--corrected spelling of "Spratly" to "Spratley" in "Connecticut + Mut. Ins. Co. v. Spratly" +page 1274--corrected spelling of "Kahanomoku" to "Kahanamoku" +page 1276--removed comma after "91" in "91, U.S. 29 (1875)" +page 1285--removed hyphen in "Holyoke Water-Power Co. v. Lyman" +page 1289--removed comma after "Bay" in "Kaukauna Water Power Co. v. + Green Bay, & M. Canal Co." +page 1290--corrected spelling of "Morses" to "Morss" in "Knapp v. + Morses" +page 1291--removed period after "ex" in "Lake Erie & W.R. Co. v. State + Public Utilities Comm. ex. rel. Cameron" +page 1296--changed comma to period after "Wall" in "McCardle, Ex parte, 6 + Wall, 318 (1868)" +page 1296--corrected spelling of "McCullock" to "McCulloch" in + "McCullock v. Maryland" +page 1298--added comma after "Missouri" in "Missouri K. & T.R. Co. v. + Cade" +page 1301--added "Bank," after "Merchants'" in "New Jersey Steam Nav. + Co. v. Merchants' 6 How. 344 (1848)" +page 1304--corrected spelling of "Hildebrandt" to "Hildebrant" in "Ohio + ex rel. Davis <i>v.</i> Hildebrandt" +page 1307--removed period after "Elg" in "Perkins v. Elg." +page 1310--corrected "O.R.R." to "O.R." in "Randall v. Baltimore & + O.R.R. Co." +page 1310--added closing parenthesis after "(1935)" in "(Humphrey v. + United States, 295 U.S. 602 (1935)" +page 1313--corrected "NLRB" to "N.L.R.B." +page 1314--removed comma after "Sharp" in "Sharp, v. United States" +page 1315--removed period after "Bank" in "Shriver v. Woodbine Sav. + Bank." +page 1315--corrected spelling of "Galatin" to "Gallatin" in "Sinking + Fund Cases (Central P.R. Co. v. Galatin ... )" +page 1318--corrected spelling of "Stevans" to "Stevens" in "Stevans v. + Gladding" +page 1318--added period after "rel" in "Stone v. Mississippi ex rel + Harris" +page 1318--corrected spelling of "Crowinshield" to "Crowninshield" in + "Sturges v. Crowinshield" +page 1323--ordered page numbers in numerical order in "United States v. + Classic" +page 1326--added hyphen in "Cooperative" in "United States v. Rock Royal + Cooperative" +page 1332--removed comma after "205" in "205, U.S. 354 (1907)" +page 1332--corrected punctuation in "Chicago, B. & Q. RR. Co." to + Chicago, B. & Q.R.R. Co." + +Index +pages 1337-1361--in Index, added periods after "etc" where missing +page 1337--added period after "etc" in "State, procedural due process, + notice and hearing, etc" +page 1339--changed comma to semi-colon in "Coins and Coinage. See + Counterfeiting, Money." +page 1342--changed "431-610" to "431, 610" in "Indian tribes, not + foreign state for jurisdictional purposes, 431-610" +page 1344--added closing parenthesis after "Amendment" in "Due Process + of Law (Fourteenth Amendment" +page 1347--changed commas to semi-colons in "Health (see also Drugs, + Food, Garbage, Milk, Sewers, Water)" +page 1350--changed 2nd "Process" to "Power" in "Legislative Process. See + Congress; Internal Organization; Legislative Process" +page 1350--changed comma to semi-colon in "Mob violence. See + Confrontation; Domestic Violence, Due Process of Law." +page 1351--changed hyphen to colon in "Municipal Corporations. See + States-Political Subdivisions" + + + +***END OF THE PROJECT GUTENBERG EBOOK THE CONSTITUTION OF THE UNITED +STATES OF AMERICA: ANALYSIS AND INTERPRETATION*** + + +******* This file should be named 18637.txt or 18637.zip ******* + + +This and all associated files of various formats will be found in: +http://www.gutenberg.org/dirs/1/8/6/3/18637 + + + +Updated editions will replace the previous one--the old editions +will be renamed. + +Creating the works from public domain print editions means that no +one owns a United States copyright in these works, so the Foundation +(and you!) can copy and distribute it in the United States without +permission and without paying copyright royalties. Special rules, +set forth in the General Terms of Use part of this license, apply to +copying and distributing Project Gutenberg-tm electronic works to +protect the PROJECT GUTENBERG-tm concept and trademark. Project +Gutenberg is a registered trademark, and may not be used if you +charge for the eBooks, unless you receive specific permission. If you +do not charge anything for copies of this eBook, complying with the +rules is very easy. You may use this eBook for nearly any purpose +such as creation of derivative works, reports, performances and +research. They may be modified and printed and given away--you may do +practically ANYTHING with public domain eBooks. Redistribution is +subject to the trademark license, especially commercial +redistribution. + + + +*** START: FULL LICENSE *** + +THE FULL PROJECT GUTENBERG LICENSE +PLEASE READ THIS BEFORE YOU DISTRIBUTE OR USE THIS WORK + +To protect the Project Gutenberg-tm mission of promoting the free +distribution of electronic works, by using or distributing this work +(or any other work associated in any way with the phrase "Project +Gutenberg"), you agree to comply with all the terms of the Full Project +Gutenberg-tm License (available with this file or online at +http://www.gutenberg.org/license). + + +Section 1. General Terms of Use and Redistributing Project Gutenberg-tm +electronic works + +1.A. By reading or using any part of this Project Gutenberg-tm +electronic work, you indicate that you have read, understand, agree to +and accept all the terms of this license and intellectual property +(trademark/copyright) agreement. If you do not agree to abide by all +the terms of this agreement, you must cease using and return or destroy +all copies of Project Gutenberg-tm electronic works in your possession. +If you paid a fee for obtaining a copy of or access to a Project +Gutenberg-tm electronic work and you do not agree to be bound by the +terms of this agreement, you may obtain a refund from the person or +entity to whom you paid the fee as set forth in paragraph 1.E.8. + +1.B. "Project Gutenberg" is a registered trademark. It may only be +used on or associated in any way with an electronic work by people who +agree to be bound by the terms of this agreement. There are a few +things that you can do with most Project Gutenberg-tm electronic works +even without complying with the full terms of this agreement. See +paragraph 1.C below. There are a lot of things you can do with Project +Gutenberg-tm electronic works if you follow the terms of this agreement +and help preserve free future access to Project Gutenberg-tm electronic +works. See paragraph 1.E below. + +1.C. The Project Gutenberg Literary Archive Foundation ("the Foundation" +or PGLAF), owns a compilation copyright in the collection of Project +Gutenberg-tm electronic works. Nearly all the individual works in the +collection are in the public domain in the United States. If an +individual work is in the public domain in the United States and you are +located in the United States, we do not claim a right to prevent you from +copying, distributing, performing, displaying or creating derivative +works based on the work as long as all references to Project Gutenberg +are removed. Of course, we hope that you will support the Project +Gutenberg-tm mission of promoting free access to electronic works by +freely sharing Project Gutenberg-tm works in compliance with the terms of +this agreement for keeping the Project Gutenberg-tm name associated with +the work. You can easily comply with the terms of this agreement by +keeping this work in the same format with its attached full Project +Gutenberg-tm License when you share it without charge with others. + +1.D. The copyright laws of the place where you are located also govern +what you can do with this work. Copyright laws in most countries are in +a constant state of change. If you are outside the United States, check +the laws of your country in addition to the terms of this agreement +before downloading, copying, displaying, performing, distributing or +creating derivative works based on this work or any other Project +Gutenberg-tm work. The Foundation makes no representations concerning +the copyright status of any work in any country outside the United +States. + +1.E. Unless you have removed all references to Project Gutenberg: + +1.E.1. The following sentence, with active links to, or other immediate +access to, the full Project Gutenberg-tm License must appear prominently +whenever any copy of a Project Gutenberg-tm work (any work on which the +phrase "Project Gutenberg" appears, or with which the phrase "Project +Gutenberg" is associated) is accessed, displayed, performed, viewed, +copied or distributed: + +This eBook is for the use of anyone anywhere at no cost and with +almost no restrictions whatsoever. You may copy it, give it away or +re-use it under the terms of the Project Gutenberg License included +with this eBook or online at www.gutenberg.org + +1.E.2. If an individual Project Gutenberg-tm electronic work is derived +from the public domain (does not contain a notice indicating that it is +posted with permission of the copyright holder), the work can be copied +and distributed to anyone in the United States without paying any fees +or charges. If you are redistributing or providing access to a work +with the phrase "Project Gutenberg" associated with or appearing on the +work, you must comply either with the requirements of paragraphs 1.E.1 +through 1.E.7 or obtain permission for the use of the work and the +Project Gutenberg-tm trademark as set forth in paragraphs 1.E.8 or +1.E.9. + +1.E.3. If an individual Project Gutenberg-tm electronic work is posted +with the permission of the copyright holder, your use and distribution +must comply with both paragraphs 1.E.1 through 1.E.7 and any additional +terms imposed by the copyright holder. Additional terms will be linked +to the Project Gutenberg-tm License for all works posted with the +permission of the copyright holder found at the beginning of this work. + +1.E.4. Do not unlink or detach or remove the full Project Gutenberg-tm +License terms from this work, or any files containing a part of this +work or any other work associated with Project Gutenberg-tm. + +1.E.5. Do not copy, display, perform, distribute or redistribute this +electronic work, or any part of this electronic work, without +prominently displaying the sentence set forth in paragraph 1.E.1 with +active links or immediate access to the full terms of the Project +Gutenberg-tm License. + +1.E.6. You may convert to and distribute this work in any binary, +compressed, marked up, nonproprietary or proprietary form, including any +word processing or hypertext form. However, if you provide access to or +distribute copies of a Project Gutenberg-tm work in a format other than +"Plain Vanilla ASCII" or other format used in the official version +posted on the official Project Gutenberg-tm web site (www.gutenberg.org), +you must, at no additional cost, fee or expense to the user, provide a +copy, a means of exporting a copy, or a means of obtaining a copy upon +request, of the work in its original "Plain Vanilla ASCII" or other +form. Any alternate format must include the full Project Gutenberg-tm +License as specified in paragraph 1.E.1. + +1.E.7. Do not charge a fee for access to, viewing, displaying, +performing, copying or distributing any Project Gutenberg-tm works +unless you comply with paragraph 1.E.8 or 1.E.9. + +1.E.8. You may charge a reasonable fee for copies of or providing +access to or distributing Project Gutenberg-tm electronic works provided +that + +- You pay a royalty fee of 20% of the gross profits you derive from + the use of Project Gutenberg-tm works calculated using the method + you already use to calculate your applicable taxes. The fee is + owed to the owner of the Project Gutenberg-tm trademark, but he + has agreed to donate royalties under this paragraph to the + Project Gutenberg Literary Archive Foundation. Royalty payments + must be paid within 60 days following each date on which you + prepare (or are legally required to prepare) your periodic tax + returns. Royalty payments should be clearly marked as such and + sent to the Project Gutenberg Literary Archive Foundation at the + address specified in Section 4, "Information about donations to + the Project Gutenberg Literary Archive Foundation." + +- You provide a full refund of any money paid by a user who notifies + you in writing (or by e-mail) within 30 days of receipt that s/he + does not agree to the terms of the full Project Gutenberg-tm + License. You must require such a user to return or + destroy all copies of the works possessed in a physical medium + and discontinue all use of and all access to other copies of + Project Gutenberg-tm works. + +- You provide, in accordance with paragraph 1.F.3, a full refund of any + money paid for a work or a replacement copy, if a defect in the + electronic work is discovered and reported to you within 90 days + of receipt of the work. + +- You comply with all other terms of this agreement for free + distribution of Project Gutenberg-tm works. + +1.E.9. If you wish to charge a fee or distribute a Project Gutenberg-tm +electronic work or group of works on different terms than are set +forth in this agreement, you must obtain permission in writing from +both the Project Gutenberg Literary Archive Foundation and Michael +Hart, the owner of the Project Gutenberg-tm trademark. Contact the +Foundation as set forth in Section 3 below. + +1.F. + +1.F.1. Project Gutenberg volunteers and employees expend considerable +effort to identify, do copyright research on, transcribe and proofread +public domain works in creating the Project Gutenberg-tm +collection. Despite these efforts, Project Gutenberg-tm electronic +works, and the medium on which they may be stored, may contain +"Defects," such as, but not limited to, incomplete, inaccurate or +corrupt data, transcription errors, a copyright or other intellectual +property infringement, a defective or damaged disk or other medium, a +computer virus, or computer codes that damage or cannot be read by +your equipment. + +1.F.2. LIMITED WARRANTY, DISCLAIMER OF DAMAGES - Except for the "Right +of Replacement or Refund" described in paragraph 1.F.3, the Project +Gutenberg Literary Archive Foundation, the owner of the Project +Gutenberg-tm trademark, and any other party distributing a Project +Gutenberg-tm electronic work under this agreement, disclaim all +liability to you for damages, costs and expenses, including legal +fees. YOU AGREE THAT YOU HAVE NO REMEDIES FOR NEGLIGENCE, STRICT +LIABILITY, BREACH OF WARRANTY OR BREACH OF CONTRACT EXCEPT THOSE +PROVIDED IN PARAGRAPH F3. YOU AGREE THAT THE FOUNDATION, THE +TRADEMARK OWNER, AND ANY DISTRIBUTOR UNDER THIS AGREEMENT WILL NOT BE +LIABLE TO YOU FOR ACTUAL, DIRECT, INDIRECT, CONSEQUENTIAL, PUNITIVE OR +INCIDENTAL DAMAGES EVEN IF YOU GIVE NOTICE OF THE POSSIBILITY OF SUCH +DAMAGE. + +1.F.3. LIMITED RIGHT OF REPLACEMENT OR REFUND - If you discover a +defect in this electronic work within 90 days of receiving it, you can +receive a refund of the money (if any) you paid for it by sending a +written explanation to the person you received the work from. If you +received the work on a physical medium, you must return the medium with +your written explanation. The person or entity that provided you with +the defective work may elect to provide a replacement copy in lieu of a +refund. If you received the work electronically, the person or entity +providing it to you may choose to give you a second opportunity to +receive the work electronically in lieu of a refund. If the second copy +is also defective, you may demand a refund in writing without further +opportunities to fix the problem. + +1.F.4. Except for the limited right of replacement or refund set forth +in paragraph 1.F.3, this work is provided to you 'AS-IS', WITH NO OTHER +WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO +WARRANTIES OF MERCHANTIBILITY OR FITNESS FOR ANY PURPOSE. + +1.F.5. Some states do not allow disclaimers of certain implied +warranties or the exclusion or limitation of certain types of damages. +If any disclaimer or limitation set forth in this agreement violates the +law of the state applicable to this agreement, the agreement shall be +interpreted to make the maximum disclaimer or limitation permitted by +the applicable state law. The invalidity or unenforceability of any +provision of this agreement shall not void the remaining provisions. + +1.F.6. INDEMNITY - You agree to indemnify and hold the Foundation, the +trademark owner, any agent or employee of the Foundation, anyone +providing copies of Project Gutenberg-tm electronic works in accordance +with this agreement, and any volunteers associated with the production, +promotion and distribution of Project Gutenberg-tm electronic works, +harmless from all liability, costs and expenses, including legal fees, +that arise directly or indirectly from any of the following which you do +or cause to occur: (a) distribution of this or any Project Gutenberg-tm +work, (b) alteration, modification, or additions or deletions to any +Project Gutenberg-tm work, and (c) any Defect you cause. + + +Section 2. Information about the Mission of Project Gutenberg-tm + +Project Gutenberg-tm is synonymous with the free distribution of +electronic works in formats readable by the widest variety of computers +including obsolete, old, middle-aged and new computers. It exists +because of the efforts of hundreds of volunteers and donations from +people in all walks of life. + +Volunteers and financial support to provide volunteers with the +assistance they need, is critical to reaching Project Gutenberg-tm's +goals and ensuring that the Project Gutenberg-tm collection will +remain freely available for generations to come. In 2001, the Project +Gutenberg Literary Archive Foundation was created to provide a secure +and permanent future for Project Gutenberg-tm and future generations. +To learn more about the Project Gutenberg Literary Archive Foundation +and how your efforts and donations can help, see Sections 3 and 4 +and the Foundation web page at http://www.gutenberg.org/fundraising/pglaf. + + +Section 3. Information about the Project Gutenberg Literary Archive +Foundation + +The Project Gutenberg Literary Archive Foundation is a non profit +501(c)(3) educational corporation organized under the laws of the +state of Mississippi and granted tax exempt status by the Internal +Revenue Service. The Foundation's EIN or federal tax identification +number is 64-6221541. Contributions to the Project Gutenberg +Literary Archive Foundation are tax deductible to the full extent +permitted by U.S. federal laws and your state's laws. + +The Foundation's principal office is located at 4557 Melan Dr. S. +Fairbanks, AK, 99712., but its volunteers and employees are scattered +throughout numerous locations. Its business office is located at +809 North 1500 West, Salt Lake City, UT 84116, (801) 596-1887, email +business@pglaf.org. Email contact links and up to date contact +information can be found at the Foundation's web site and official +page at http://www.gutenberg.org/about/contact + +For additional contact information: + Dr. Gregory B. Newby + Chief Executive and Director + gbnewby@pglaf.org + +Section 4. Information about Donations to the Project Gutenberg +Literary Archive Foundation + +Project Gutenberg-tm depends upon and cannot survive without wide +spread public support and donations to carry out its mission of +increasing the number of public domain and licensed works that can be +freely distributed in machine readable form accessible by the widest +array of equipment including outdated equipment. Many small donations +($1 to $5,000) are particularly important to maintaining tax exempt +status with the IRS. + +The Foundation is committed to complying with the laws regulating +charities and charitable donations in all 50 states of the United +States. Compliance requirements are not uniform and it takes a +considerable effort, much paperwork and many fees to meet and keep up +with these requirements. We do not solicit donations in locations +where we have not received written confirmation of compliance. To +SEND DONATIONS or determine the status of compliance for any +particular state visit http://www.gutenberg.org/fundraising/donate + +While we cannot and do not solicit contributions from states where we +have not met the solicitation requirements, we know of no prohibition +against accepting unsolicited donations from donors in such states who +approach us with offers to donate. + +International donations are gratefully accepted, but we cannot make +any statements concerning tax treatment of donations received from +outside the United States. U.S. laws alone swamp our small staff. + +Please check the Project Gutenberg Web pages for current donation +methods and addresses. Donations are accepted in a number of other +ways including checks, online payments and credit card donations. +To donate, please visit: +http://www.gutenberg.org/fundraising/donate + + +Section 5. General Information About Project Gutenberg-tm electronic +works. + +Professor Michael S. Hart is the originator of the Project Gutenberg-tm +concept of a library of electronic works that could be freely shared +with anyone. For thirty years, he produced and distributed Project +Gutenberg-tm eBooks with only a loose network of volunteer support. + +Project Gutenberg-tm eBooks are often created from several printed +editions, all of which are confirmed as Public Domain in the U.S. +unless a copyright notice is included. Thus, we do not necessarily +keep eBooks in compliance with any particular paper edition. + +Most people start at our Web site which has the main PG search facility: + + http://www.gutenberg.org + +This Web site includes information about Project Gutenberg-tm, +including how to make donations to the Project Gutenberg Literary +Archive Foundation, how to help produce our new eBooks, and how to +subscribe to our email newsletter to hear about new eBooks. + |