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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,
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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]


Résumé

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, § 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., § 137.

[37] Ibid., § 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_, § 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, § 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 § 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 § 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 § 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, § 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 § 3 independently of
§ 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 § 3 of the act of 1887, as interpreted
in the Shreveport Case, was greatly enlarged by § 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 employés 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 employés 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 § 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,
§§ 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, § 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, § 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 résumé 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, § 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, § 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
§ 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 § 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, § 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, § 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, § 1256. _See also_ ibid. §§ 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 § 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. § 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. § 51 (1946), superseded by 62
Stat. 696 (1948); 18 U.S.C. § 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: §§ 443,
448-458 (1907).

[129] 202 U.S. 344 (1906).

[130] Ibid. 369-370.

[131] Hinds' Precedents of the House of Representatives, I: §§ 474-477
(1907).

[132] 69 Cong. Rec. 1718 (1928).

[133] Hinds' Precedents of the House of Representatives, I: § 414
(1907).

[134] Ibid. §§ 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, § 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: §§ 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: § 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: § 2910-2915
(1907); Cannon's Precedents of the House of Representatives, VI: §§ 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, § 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, § 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 (§ 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: § 493
(1907); Cannon's Precedents of the House of Representatives, VI: §§ 63,
64 (1936).

[191] Hinds' Precedents of the House of Representatives, I: §§ 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, § 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: § 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, § 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, §
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 § 400; 488 § 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 § 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 §§ 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 § 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 § 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 résumé 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 § 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 Générale 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 résumé
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. § 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, § 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, §§ 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, § 311.

[1051] Ibid. § 313 (a) (4-6).

[1052] Ibid. § 313 (c).

[1053] 66 Stat. 163, § 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, § 340 (a); _see also_ Johannessen _v._ United
States, 225 U.S. 227 (1912).

[1055] Ibid. § 340 (c). For cancellation proceedings under the
Nationality Act of 1910 (54 Stat. 1158, § 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, § 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. § 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 §§ 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, § 212.

[1070] Ibid. § 212 (a) (28) (F).

[1071] 54 Stat. 670.

[1072] Hines _v._ Davidowitz, 312 U.S. 52, 69-70.

[1073] 66 Stat. 163; Tit. II, §§ 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, § 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, § 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, § 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_ Serè _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. §
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, § 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, § 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. § 515; 15 U.S.C. § 717j; 16 U.S.C. §§ 552, 667a; 33
U.S.C. §§ 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, § 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 § 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, § 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 matériel. 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. §§ 301-302, 331, 341.

[38] 343 U.S. 214 (1952).

[39] _See_ pp. 942-944.

[40] 1 Stat. 239.

[41] 3 U.S.C. § 23.

[42] 3 U.S.C. § 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, § 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. § 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), § 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. §§ 4083-4091.

[196] 18 U.S.C.A. §§ 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 § 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. § 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. §§ 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 employés 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 employé 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 employé in the government of the United States shall
solicit contributions from other officers, clerks, or employés 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. §§ 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. § 1539; Ex parte Hennen, 13 Pet. 225, 259 (1839).

[298] 3 Op. Atty. Gen. 188 (1837).

[299] 2 Story Comms., § 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. § 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. §§ 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. § 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, §§ 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. § 601.

[370] Ibid. § 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. §§ 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. § 5298; 50 U.S.C. § 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 §§ 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. §§ 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., §§ 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. §§ 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. § 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,
§§ 2315-2318 (1907).

[479] The Belknap Case, ibid. § 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, § 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, § 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, § 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, § 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,
§ 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, § 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 § 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.
§§ 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 § 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 § 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 § 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 § 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 § 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 § 11 and ordered a sale of the property in question. On appeal
to the Supreme Court, counsel for the assignee contended that § 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 § 265 of the Judicial Code [28 U.S.C.A. § 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 § 265, [28 U.S.C.A. § 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, § 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), § 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, § 2-3.

[95] Ibid. 73, 74-76; § 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. §§ 241, 296, 301-301a; 26 U.S.C. §§ 1102b, d, f.
The territorial judges in Alaska (48 U.S.C. § 112) have four-year terms
subject to removal by the President; in Hawaii six years unless removed
by the President (48 U.S.C. § 643), eight years in Puerto Rico (28
U.S.C. § 803); eight years in the Canal Zone subject to removal by the
President (48 U.S.C. § 1353); and four years in the Virgin Islands
unless sooner removed by the President (48 U.S.C. § 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, § 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. §§ 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, § 690; 28 U.S.C. § 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, § 4 (1882).

[303] 38 Stat. 803, § 5 (1915).

[304] 43 Stat. 936, 941 (1925); 28 U.S.C.A. § 1349.

[305] 3 Stat. 195, 198 (1815).

[306] 4 Stat. 632, 633, § 3 (1833).

[307] 12 Stat. 755, 756, § 5 (1863).

[308] 28 U.S.C.A. § 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] Börs _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, § 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. § 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, § 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), § 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. §§ 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, §§ 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, § 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. § 1652; 62 Stat. 944 (1948). In 1938, the year of the
Tompkins decision, the Conformity Act of 1872 (17 Stat. 196 § 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 § 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, §§ 1590-1595.

[603] 1 Stat. 73, §§ 9-11.

[604] Ibid.

[605] Ibid. §§ 14, 15, 17, 18.

[606] Ibid. § 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, §§ 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. § 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 § 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. § 1253, 2281, 2284. A supplementary act in 1913 (37 Stat. 1013)
amended § 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, § 14.

[683] 4 Stat. 634, § 7 (1833).

[684] 5 Stat. 539 (1942).

[685] 14 Stat. 385 (1867).

[686] Rev. Stat., § 753; 28 U.S.C.A. § 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. § 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, § 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. § 905 28 U.S.C. § 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 § 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, § 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, § 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_
Serè _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 § 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. § 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. § 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. §§ 357, 379; 18 ibid. § 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 § 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, § 1879 (1833).

[12] Ibid. § 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. §§ 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." § 5. It also forbids
display of any "flag, banner, or device designed or adapted to bring
into public notice any party, organization, or movement." § 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." § 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 § 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.
§ 47 (3).

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

[264] 2 U.S.C. §§ 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.) § 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, §
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. §§ 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. § 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 § 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. § 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. § 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 (§ 723) through
the Judicial Code (§ 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. § 724.

[3] 2 Story, Commentaries on the Constitution, § 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. § 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
§ 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. §§ 371, 2385.

[4] Stack _v._ Boyle, 342 U.S. 1 (1951).

[5] 8 U.S.C.A. § 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, § 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, § 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, § 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, § 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. § 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. § 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. § 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. § 56 and 18 U.S.C.A. § 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. § 56; 18 U.S.C.A. § 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
50¢ per $100 and deposits in banks within the State are taxed at 10¢ 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, § 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 § 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 § 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, § 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, § 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 à 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 50¢ per $100 on deposits in banks outside a
State in contrast with a rate of 10¢ 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 Baumé 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. § 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. § 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. § 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, § 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° 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° 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

Börs _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 à 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 Générale 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

Serè _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 "Serè" 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"