(1915).
[102] Helis _v._ Ward, 308 U.S. 365 (1939).
[103] Fayerweather _v._ Ritch, 195 U.S. 276 (1904).
[104] Hanover Nat. Bank _v._ Moyses, 186 U.S. 181, 192 (1902).
[105] Parsons _v._ District of Columbia, 170 U.S. 45 (1898).
[106] Wright _v._ Davidson, 181 U.S. 371 (1901).
[107] Jones _v._ Buffalo Creek Coal & Coke Co., 245 U.S. 328 (1917).
[108] Luria _v._ United States, 231 U.S. 9 (1913).
[109] Yee Hem _v._ United States, 268 U.S. 178 (1925).
[110] Tot _v._ United States, 319 U.S. 463 (1943).
[111] Opp Cotton Mills _v._ Administrator, 312 U.S. 126, 152, 153
(1941).
[112] 321 U.S. 503 (1944).
[113] Ibid. 521.
[114] Consolidated Edison Co. _v._ National Labor Relations Board, 305
U.S. 197 (1938).
[115] Central of Georgia R. Co. _v._ Wright, 207 U.S. 127, 136, 138, 142
(1907); Lipke _v._ Lederer, 259 U.S. 557, 562 (1922).
[116] Phillips _v._ Comr. of Internal Revenue, 283 U.S. 589 (1931).
_Cf._ Springer _v._ United States, 102 U.S. 586, 593 (1881); and
Passavant _v._ United States, 148 U.S. 214 (1893).
[117] Wong Yang Sung _v._ McGrath, 339 U.S. 33, 50 (1950).
[118] Morgan _v._ United States, 304 U.S. 1, 18-19 (1938).
[119] National Labor Relations Board _v._ Mackay Co., 304 U.S. 333,
349-350 (1938).
[120] Western Paper Makers' Chemical Co. _v._ United States, 271 U.S.
268 (1926). _See also_ United States _v._ Abilene & S.R. Co., 265 U.S.
274, 288 (1924).
[121] Consolidated Edison Co. _v._ National Labor Relations Board, 305
U.S. 197, 229-230 (1938).
[122] Londoner _v._ Denver, 210 U.S. 373 (1908).
[123] Federal Communications Commission _v._ WJR, 337 U.S. 265, 274-277
(1949).
[124] Ibid. 276. "The requirements imposed by the guaranty [of due
process of law] are not technical, nor is any particular form of
procedure necessary." Inland Empire Council _v._ Millis, 325 U.S. 697,
710 (1945). _See_ Administrative Procedure Act, 60 Stat. 237 (1946); 5
U.S.C. Sec. 1001-1011.
[125] 298 U.S. 38 (1936).
[126] Ibid. 51-54. Justices Brandeis, Stone and Cardozo, while
concurring in the result, took exception to this proposition.
[127] Federal Power Commission _v._ Natural Gas Pipeline Co., 315 U.S.
575, 586 (1942); Federal Power Commission _v._ Hope Natural Gas Co., 320
U.S. 591 (1944).
[128] Federal Power Commission _v._ Hope Natural Gas Co., 320 U.S. 591,
602 (1944).
[129] 327 U.S. 1 (1946).
[130] 339 U.S. 103 (1950).
[131] Ibid. 111.
[132] 339 U.S. 703 (1950). Justices Black, Douglas and Burton dissented.
[133] United States _v._ Ju Toy, 198 U.S. 253, 263 (1905). _See also_
Yamataya _v._ Fisher, 189 U.S. 86, 100 (1903). _Cf._ United States ex
rel. Knauff _v._ Shaughnessy, 338 U.S. 537 (1950).
[134] Oceanic Steam Navig. Co. _v._ Stranahan, 214 U.S. 320 (1909).
[135] Kwock Jan Fat _v._ White, 253 U.S. 454, 457 (1920). _See also_
Chin Yow _v._ United States, 208 U.S. 8 (1908).
[136] United States _v._ Sing Tuck, 194 U.S. 161 (1904). _See also_ Quon
Quon Poy _v._ Johnson, 273 U.S. 352, 358 (1927).
[137] Zakonaite _v._ Wolf, 226 U.S. 272 (1012).
[138] 339 U.S. 33 (1950).
[139] 60 Stat. 237 (1946); 5 U.S.C. Sec. 1001 _et seq._ (1946).
[140] United States ex rel. Vajtauer _v._ Comr. of Immigration, 273 U.S.
103, 106 (1927). _See also_ Mahler _v._ Eby, 264 U.S. 32, 41 (1924).
[141] 198 U.S. 253 (1905).
[142] Ng Fung Ho _v._ White, 259 U.S. 276, 281 (1922).
[143] Ludecke _v._ Watkins, 335 U.S. 160 (1948). Three of the four
dissenting Justices, Justices Douglas, Murphy and Rutledge, argued that
even an enemy alien could not be deported without a fair hearing.
[144] Steward Machine Co. _v._ Davis, 301 U.S. 548, 584-585 (1937);
Currin _v._ Wallace, 306 U.S. 1, 14 (1939); Sunshine Anthracite Coal Co.
_v._ Adkins, 310 U.S. 381, 401 (1940); Detroit Bank _v._ United States,
317 U.S. 329, 337, 338 (1943).
[145] Hill _v._ United States ex rel. Weiner, 300 U.S. 105, 109 (1937).
[146] District of Columbia _v._ Brooke, 214 U.S. 138 (1909).
[147] Panama R. Co. _v._ Johnson, 264 U.S. 375, 392 (1924).
[148] United States _v._ Rock Royal Co-operative, 307 U.S. 533, 562, 565
(1939).
[149] Currin _v._ Wallace, 306 U.S. 1 (1939).
[150] Detroit Bank _v._ United States, 317 U.S. 329 (1943).
[151] Hurd _v._ Hodge, 334 U.S. 24 (1948).
[152] Thiel _v._ Southern Pacific Co., 328 U.S. 217 (1946).
[153] 323 U.S. 192 (1944).
[154] Ibid. 198, 199.
[155] Ibid. 208, 209. _Cf._ the following sentence from the concurring
opinion of Justice Jackson in Railway Express Agency, Inc. _v._ New
York, 336 U.S. 106, 112 (1949): "I regard it as a salutary doctrine that
cities, states and the Federal Government must exercise their powers so
as not to discriminate between their inhabitants except upon some
reasonable differentiation fairly related to the object of regulation."
[156] 208 U.S. 161, 174 (1908).
[157] 313 U.S. 177, 187 (1941).
[158] 261 U.S. 525, 546 (1923).
[159] 300 U.S. 379, 400 (1937).
[160] Addyston Pipe and Steel Co. _v._ United States, 175 U.S. 211, 229
(1899).
[161] Baltimore & O.R. Co. _v._ Interstate Commerce Commission, 221 U.S.
612 (1911); Wilson _v._ New, 243 U.S. 322 (1917); Ellis _v._ United
States, 206 U.S. 246 (1907). _See also_ United States _v._ Garbish, 222
U.S. 257 (1911).
[162] Patterson _v._ The "Eudora," 190 U.S. 169 (1903).
[163] Philadelphia, B. & W.R. Co. _v._ Schubert, 224 U.S. 603 (1912).
[164] Texas & N.O.R. Co. _v._ Brotherhood of Railway & S.S. Clerks, 281
U.S. 548 (1930); Virginian R. Co. _v._ System Federation, 300 U.S. 515,
559 (1937); National Labor Relations Board _v._ Jones & Laughlin Steel
Corp., 301 U.S. 1 (1937).
[165] Highland _v._ Russell Car & Snow Plow Co., 279 U.S. 253, 261
(1929); United States _v._ Rock Royal Co-operative, 307 U.S. 533 (1939);
Sunshine Anthracite Coal Co. _v._ Adkins, 310 U.S. 381 (1940); Bowles
_v._ Willingham, 321 U.S. 503 (1944).
[166] Farrington _v._ Tokushige, 273 U.S. 284 (1927).
[167] Yu Cong Eng _v._ Trinidad, 271 U.S. 500, 525 (1926).
[168] Fleming _v._ Rhodes, 331 U.S. 100, 107 (1947).
[169] Woods _v._ Stone, 333 U.S. 472 (1948).
[170] 332 U.S. 194, 203 (1947).
[171] Knox _v._ Lee, 12 Wall. 457, 551 (1871).
[172] Norman _v._ Baltimore & O.R. Co., 294 U.S. 240 (1935).
[173] 44 Stat. 1424 (1927), 33 U.S.C. 901 _et seq._ (1946).
[174] Paramino Lumber Co. _v._ Marshall, 309 U.S. 370 (1940).
[175] Mulford _v._ Smith, 307 U.S. 38 (1939).
[176] McFaddin _v._ Evans-Snider-Buel Co., 185 U.S. 505 (1902).
[177] Montoya _v._ Gonzales, 232 U.S. 375 (1914).
[178] Ochoa _v._ Hernandez y Morales, 230 U.S. 139 (1913).
[179] United States ex rel. Burnett _v._ Teller, 107 U.S. 64, 68 (1883).
[180] Oregon & C.R. Co. _v._ United States, 243 U.S. 549 (1917).
[181] Capital Trust Co. _v._ Calhoun, 250 U.S. 208 (1919).
[182] Frisbie _v._ United States, 157 U.S. 160 (1895); _see also_
Margolin _v._ United States, 269 U.S. 93 (1925); Hines _v._ Lowrey, 305
U.S. 85 (1938).
[183] Wickard _v._ Filburn, 317 U.S. 111 (1942).
[184] Noble _v._ Union River Logging R. Co., 147 U.S. 165 (1893).
[185] Danzer Co. _v._ Gulf & S.I.R. Co., 268 U.S. 633 (1925).
[186] Lynch _v._ United States, 292 U.S. 571, 579 (1934). _See also_
Perry _v._ United States, 294 U.S. 330 (1935).
[187] Louisville Joint Stock Land Bank _v._ Radford, 295 U.S. 555
(1935).
[188] Wright _v._ Mountain Trust Co., 300 U.S. 440 (1937).
[189] Continental Illinois Nat. Bank & Trust Co. _v._ Chicago R.I. &
P.R. Co., 294 U.S. 648 (1935).
[190] Kuehner _v._ Irving Trust Co., 299 U.S. 445 (1937).
[191] Re 620 Church Street Bldg. Corp., 299 U.S. 24 (1936).
[192] Lynch _v._ United States, 292 U.S. 571, 581 (1934).
[193] Dodge _v._ Osborn, 240 U.S. 118 (1916).
[194] Graham _v._ Goodcell, 228 U.S. 409 (1931).
[195] Anniston Mfg. Co. _v._ Davis, 301 U.S. 337 (1937).
[196] United States _v._ Heinszen & Co., 206 U.S. 370, 386 (1907).
[197] United States _v._ New York & C. Mail S.S. Co., 269 U.S. 304
(1925).
[198] United States _v._ Carolene Products Co., 304 U.S. 144 (1938);
Carolene Products Co. _v._ United States, 323 U.S. 18 (1944).
[199] Kentucky Whip Collar Co. _v._ Illinois C.R. Co., 299 U.S. 334
(1937).
[200] Virginian R. Co. _v._ System Federation, 300 U.S. 515, 559 (1937);
National Labor Relations Board _v._ Jones & Laughlin Steel Corp., 301
U.S. 1 (1937).
[201] National Labor Relations Board _v._ Stowe Spinning Co., 336 U.S.
226 (1949).
[202] National Labor Relations Board _v._ Mackay Co., 304 U.S. 333
(1938).
[203] Woods _v._ Miller, 333 U.S. 138, 146 (1948). _See also_ Bowles
_v._ Willingham, 321 U.S. 503 (1944).
[204] Ex parte Jackson, 96 U.S. 727 (1878).
[205] Public Clearing House _v._ Coyne, 194 U.S. 497 (1904); sustained
in Donaldson _v._ Read Magazine, 333 U.S. 178 (1948).
[206] 194 U.S. 497, 505-506.
[207] American School of Magnetic Healing _v._ McAnnulty, 187 U.S. 94
(1902).
[208] United States ex rel. Milwaukee Social Democratic Pub. Co. _v._
Burleson, 255 U.S. 407 (1921).
[209] St. Joseph Stock Yards Co. _v._ United States, 298 U.S. 38 (1936);
Denver Union Stock Yards Co. _v._ United States, 304 U.S. 470 (1938).
[210] 320 U.S. 591 (1944). The result of this case had been foreshadowed
by the opinion of Justice Stone in Federal Power Commission _v._ Natural
Gas Pipeline Co., 315 U.S. 575, 586 (1942) to the effect that the
Commission was not bound to the use of any single formula or combination
of formulas in determining rates.
[211] 320 U.S. 591, 602, 605 (1944).
[212] American Telephone & Telegraph Co. _v._ United States, 299 U.S.
232 (1936); United States _v._ New York Telephone Co., 326 U.S. 638
(1946); Northwestern Electric Co. _v._ Federal Power Commission, 321
U.S. 119 (1944).
[213] Valvoline Oil Co. _v._ United States, 308 U.S. 141 (1939);
Champlin Refining Co. _v._ United States, 329 U.S. 29 (1946).
[214] Isbrandtsen-Moller Co. _v._ United States, 300 U.S. 139, 146
(1937).
[215] St. Louis S.W. Ry. Co. _v._ United States, 245 U.S. 136, 143
(1917).
[216] Akron C. & Y.R. Co. _v._ United States, 261 U.S. 184 (1923).
[217] Dayton-Goose Creek R. Co. _v._ United States, 263 U.S. 456, 481,
483 (1924).
[218] Chicago, I. & L.R. Co. _v._ United States, 270 U.S. 287 (1926).
_Cf._ Seaboard Air Line R. Co. _v._ United States, 254 U.S. 57 (1920).
[219] United States _v._ Berwind-White Coal Mine Co., 274 U.S. 564, 575
(1927).
[220] United States ex rel. Attorney General _v._ Delaware & Hudson Co.,
213 U.S. 366, 405, 411, 415 (1909).
[221] United States _v._ Lowden, 308 U.S. 225 (1939).
[222] Louisville & N.R. Co. _v._ Mottley, 219 U.S. 467 (1911).
[223] Chicago, R.I. & P.R. Co. _v._ United States, 284 U.S. 80 (1931).
[224] Railroad Retirement Board _v._ Alton R. Co., 295 U.S. 330 (1935).
[225] United States _v._ Bennett, 232 U.S. 299, 307 (1914).
[226] Cook _v._ Tait, 265 U.S. 47 (1924).
[227] Helvering _v._ Lerner Stores Corp., 314 U.S. 463, 468 (1941).
[228] Brushaber _v._ Union P.R. Co., 240 U.S. 1, 24 (1916).
[229] McCray _v._ United States, 195 U.S. 27, 61 (1904).
[230] Treat _v._ White, 181 U.S. 264 (1901).
[231] Flint _v._ Stone Tracy Co., 220 U.S. 107 (1911).
[232] National Paper & Type Co. _v._ Bowers, 266 U.S. 373 (1924).
[233] Billings _v._ United States, 232 U.S. 261, 282 (1914).
[234] Steward Machine Co. _v._ Davis, 301 U.S. 548 (1937); Helvering
_v._ Davis, 301 U.S. 619 (1937).
[235] Bromley _v._ McCaughn, 280 U.S. 124 (1929).
[236] Haavik _v._ Alaska Packers' Association, 263 U.S. 510 (1924).
[237] Alaska Fish Salting & By-Products Co. _v._ Smith, 255 U.S. 44
(1921).
[238] La Belle Iron Works _v._ United States, 256 U.S. 377 (1921).
[239] Helvering _v._ Northwest Steel Mills, 311 U.S. 46 (1940).
[240] Fernandez _v._ Wiener, 326 U.S. 340 (1945); _cf._ Coolidge _v._
Long, 282 U.S. 582 (1931).
[241] Untermeyer _v._ Anderson, 276 U.S. 440 (1928). _See also_ Blodgett
_v._ Holden, 275 U.S. 142 (1927); Nichols _v._ Coolidge, 274 U.S. 531
(1927).
[242] Heiner _v._ Donnan, 285 U.S. 312 (1932).
[243] United States _v._ Hudson, 299 U.S. 498 (1937). _See also_
Stockdale _v._ Insurance Companies, 20 Wall. 323, 331, 341 (1874);
Brushaber _v._ Union Pac. R.R., 240 U.S. 1, 20 (1916); Lynch _v._
Hornby, 247 U.S. 339, 343 (1918).
[244] Cooper _v._ United States, 280 U.S. 409 (1930); _see also_
Reinecke _v._ Smith, 289 U.S. 172 (1933).
[245] Helvering _v._ Mitchell, 303 U.S. 391 (1938).
[246] Helvering _v._ Nat. Grocery Co., 304 U.S. 282 (1938).
[247] Patton _v._ Brady, 184 U.S. 608 (1902).
[248] Tyler _v._ United States, 281 U.S. 497 (1930); United States _v._
Jacobs, 306 U.S. 363 (1939).
[249] Reinecke _v._ Smith, 289 U.S. 172 (1933).
[250] Tiger _v._ Western Investment Co., 221 U.S. 286 (1911). _See also_
Brader _v._ James, 246 U.S. 88 (1918); Williams _v._ Johnson, 239 U.S.
414 (1915); Lone Wolf _v._. Hitchcock, 187 U.S. 553 (1903).
[251] Choate _v._ Trapp, 224 U.S. 665 (1912). _See also_ English _v._
Richardson, 224 U.S. 680 (1912).
[252] Garfield _v._ United States, 211 U.S. 249 (1908). _See also_
United States ex rel. Turner _v._ Fisher, 222 U.S. 204 (1911).
[253] Winton _v._ Amos, 255 U.S. 373 (1921).
[254] United States ex rel. Brown _v._ Lane, 232 U.S. 598 (1914).
[255] Walker _v._ McLoud, 204 U.S. 302, 309 (1907); Carpenter _v._ Shaw,
280 U.S. 363 (1930).
[256] United States _v._ Jones, 109 U.S. 513, 518 (1883); United States
_v._ Carmack, 329 U.S. 230, 241 (1946).
[257] United States _v._ Lynah, 188 U.S. 445, 465 (1903).
[258] Kohl _v._ United States, 91 U.S. 367, 374 (1876).
[259] Chappell _v._ United States, 160 U.S. 499, 510 (1896).
[260] Oklahoma _v._ Atkinson Co., 313 U.S. 508, 534 (1941).
[261] United States _v._ Chemical Foundation, 272 U.S. 1, 11 (1926).
_See also_ Brown _v._ U.S., 8 Cr. 110 (1814); Page (Miller) _v._ United
States, 11 Wall. 268, 304 (1871); Woodson _v._ Deutsche G. & S.S.V.
Roessler, 292 U.S. 449 (1934); United States _v._ Dunnington, 146 U.S.
338 (1892); Cummings _v._ Deutsche Bank, 300 U.S. 115 (1937).
[262] Stoehr _v._ Wallace, 255 U.S. 239, 245 (1921).
[263] Silesian-American Corp. _v._ Clark, 332 U.S. 469 (1947); Becker
Steel Co. _v._ Cummings, 296 U.S. 74 (1935).
[264] Russian Volunteer Fleet _v._ United States, 282 U.S. 481 (1931),
followed in Guessefeldt _v._ McGrath, 342 U.S. 308 (1952).
[265] Shoemaker _v._ United States, 147 U.S. 282, 298 (1893).
[266] 327 U.S. 546 (1946).
[267] Ibid. 551.
[268] Ibid. 556-557; citing United States _v._ Gettysburg Electric R.
Co., 160 U.S. 668, 680 (1896); Rindge Co. _v._ Los Angeles County, 262
U.S. 700, 709 (1923); Old Dominion Land Co. _v._ United States, 269 U.S.
55, 66 (1925); Cincinnati _v._ Vester, 281 U.S. 439, 446 (1930).
[269] 327 U.S. 546, 557-558.
[270] United States _v._ Gettysburg Electric R. Co., 160 U.S. 668
(1896).
[271] Brown _v._ United States, 263 U.S. 78 (1923).
[272] Monongahela Nav. Co. _v._ United States, 148 U.S. 312, 345 (1893).
[273] James _v._ Campbell, 104 U.S. 356, 358 (1882). _See also_
Hollister _v._ Benedict & B. Mfg. Co., 113 U.S. 59, 67 (1885).
[274] Omnia Commercial Co. _v._ United States, 261 U.S. 502 (1923).
[275] International Paper Co. _v._ United States, 282 U.S. 399 (1931).
[276] Hannibal Bridge Co. _v._ United States, 221 U.S. 194, 205 (1911).
[277] Old Dominion Land Co. _v._ United States, 269 U.S. 55 (1925).
[278] United States _v._ Sponenbarger, 308 U.S. 256 (1939).
[279] 12 Wall. 457, 551 (1871).
[280] 331 U.S. 745 (1947).
[281] Ibid. 748.
[282] United States _v._ Causby, 328 U.S. 256 (1946).
[283] Portsmouth Harbor Land & Hotel Co. _v._ United States, 260 U.S.
327 (1922). _Cf._ Portsmouth Harbor Land & Hotel Co. _v._ United States,
250 U.S. 1 (1919); Peabody _v._ United States, 231 U.S. 530 (1913).
[284] Richards _v._ Washington Terminal Co., 233 U.S. 546 (1914).
[285] Gibson _v._ United States, 166 U.S. 269, 271, 272 (1897).
[286] 10 Wall. 557 (1871).
[287] Ibid. 563.
[288] United States _v._ Appalachian Electric Power Co., 311 U.S. 377,
407, 409 (1940).
[289] Oklahoma _v._ Atkinson Co., 313 U.S. 508, 523 (1941).
[290] United States _v._ Commodore Park, Inc., 324 U.S. 386 (1945).
[291] Lewis Blue Point Oyster Cultivation Co. _v._ Briggs, 229 U.S. 82
(1913).
[292] United States _v._ Chandler-Dunbar Co., 229 U.S. 53 (1913).
[293] United States _v._ Willow River Power Co., 324 U.S. 499 (1945).
[294] United States _v._ Appalachian Electric Power Co., 311 U.S. 377,
427 (1940).
[295] United States _v._ Lynah, 188 U.S. 445 (1903). _See also_ Jacobs
_v._ United States, 290 U.S. 13 (1933).
[296] United States _v._ Cress, 243 U.S. 316, 328, 329 (1917).
[297] United States _v._ Dickinson, 331 U.S. 745 (1947).
[298] United States _v._ Kansas City Ins. Co., 339 U.S. 799 (1950).
[299] United States _v._ Cress, 243 U.S. 316 (1917).
[300] Horstmann Co. _v._ United States, 257 U.S. 138 (1921).
[301] Bauman _v._ Ross, 167 U.S. 548 (1897); Sharp _v._ United States,
191 U.S. 341, 351-352, 354 (1903).
[302] United States _v._ Welch, 217 U.S. 333 (1910).
[303] Bauman _v._ Ross, 167 U.S. 548 (1897).
[304] Monongahela Nav. Co. _v._ United States, 148 U.S. 312, 326 (1893).
[305] Reichelderfer _v._ Quinn, 287 U.S. 315, 318 (1932).
[306] Sharp _v._ United States, 191 U.S. 341 (1903).
[307] Monongahela Nav. Co. _v._ United States, 148 U.S. 312, 326 (1893).
[308] United States ex rel. T.V.A. _v._ Powelson, 319 U.S. 266, 281
(1943); United States _v._ Miller, 317 U.S. 369, 375 (1943).
[309] United States ex rel. T.V.A. _v._ Powelson, 319 U.S. 266, 275
(1943); United States _v._ New River Collieries Co., 262 U.S. 341
(1923).
[310] United States _v._ Miller, 317 U.S. 369, 374 (1943). _See also_
Olson _v._ United States, 292 U.S. 246 (1934). _Cf._ Kimball Laundry Co.
_v._ United States, 338 U.S. 1 (1949).
[311] Boom Co. _v._ Patterson, 98 U.S. 403 (1879); McCandless _v._
United States, 298 U.S. 342 (1936).
[312] United States _v._ Chandler-Dunbar Co., 229 U.S. 53 (1913).
[313] United States _v._ John J. Felin & Co., 334 U.S. 624 (1948).
[314] United States _v._ Commodities Trading Corp., 339 U.S. 121 (1950).
[315] United States _v._ Cors, 337 U.S. 325, 333 (1949). In United
States _v._ Toronto Nav Co., 338 U.S. 396 (1949) the Court reversed a
decision of the Court of Claims which based an award for an obsolete
Great Lakes car ferry in part on a capitalization of its prior earnings,
and in part on isolated sales of similar vessels used between Florida
and Cuba.
[316] Mitchell _v._ United States, 267 U.S. 341 (1925).
[317] United States _v._ General Motors Corp., 323 U.S. 373, 379 (1945).
[318] Ibid. 382-384.
[319] United States _v._ Petty Motor Co., 327 U.S. 372 (1946).
[320] 338 U.S. 1 (1949).
[321] 341 U.S. 114 (1951).
[322] Danforth _v._ United States, 308 U.S. 271, 284 (1939).
[323] United States _v._ Klamath Indians, 304 U.S. 119, 123 (1938);
Jacobs _v._ United States, 290 U.S. 13, 17 (1933).
[324] Albrecht _v._ United States, 329 U.S. 599 (1947).
[325] Henkels _v._ Sutherland, 271 U.S. 298 (1926). _See also_ Phelps
_v._ United States, 274 U.S. 341 (1927).
[326] Monongahela Nav. Co. _v._ United States, 148 U.S. 312, 327 (1893).
[327] United States _v._ Jones, 109 U.S. 513, 519 (1883).
[328] Bauman _v._ Ross, 167 U.S. 548, 593 (1897).
[329] United States _v._ Lee, 106 U.S. 196, 220 (1882).
[330] Jacobs _v._ United States, 290 U.S. 13 (1933); United States _v._
Great Falls Mfg. Co., 112 U.S. 645 (1884).
[331] Hurley _v._ Kincaid, 285 U.S. 95 (1932).
[332] Cherokee Nation _v._ Southern Kansas R. Co., 135 U.S. 641, 659
(1890).
[333] United States _v._ Russell, 13 Wall. 623 (1871).
[334] Shoemaker _v._ United States, 147 U.S. 282, 302 (1893).
AMENDMENT 6
RIGHTS OF ACCUSED IN CRIMINAL PROSECUTIONS
Page
Coverage of the amendment 877
Offenses against the United States 877
Trial by jury 878
Impartial jury 879
Place of trial 880
Definition of crime 881
Right of confrontation 884
Assistance of counsel 884
RIGHTS OF ACCUSED IN CRIMINAL PROSECUTIONS
Amendment 6
In all criminal prosecutions, the accused shall enjoy the right to a
speedy and public trial, by an impartial jury of the State and district
wherein the crime shall have been committed, which district shall have
been previously ascertained by law, and to be informed of the nature and
cause of the accusation; to be confronted with the witnesses against
him; to have compulsory process for obtaining witnesses in his favor,
and to have the Assistance of Counsel for his defense.
Coverage of the Amendment
Criminal prosecutions in the District of Columbia[1] and in incorporated
territories[2] must conform to this amendment, but those in
unincorporated territories need not.[3] For this purpose, Alaska was
held to be an incorporated territory even before the organization of its
territorial government.[4] In in re Ross[5] the requirements of this
amendment were held to cover only citizens and others within the United
States or who are brought to the United States for trial for alleged
offenses committed elsewhere, not to citizens residing or temporarily
sojourning abroad.[6] Accordingly, laws passed to carry into effect
treaties granting extraterritorial rights were not rendered
unconstitutional by the fact that they did not secure to an accused the
right to trial by jury.
Offenses Against the United States
There are no common law offenses against the United States. Only those
acts which Congress has forbidden, with penalties for disobedience of
its command, are crimes.[7] As used in the Constitution the word
"crime" embraces only offenses of a serious character. Petty offenses
may be proceeded against summarily in any tribunal legally constituted
for that purpose.[8] The nature of the act and the severity of
punishment prescribed determine whether an offense is serious or petty.
A penalty of $50 for a violation, not necessarily involving moral
delinquency, of a revenue statute indicates only a petty offense.[9] The
unlawful sale of the unused portion of railway excursion tickets without
a license, is at most an infringement of local police regulations; and
its moral quality is relatively inoffensive; it may therefore be tried
without a jury.[10] But a charge of driving an automobile recklessly, so
as to endanger life and property, is a "grave offense" for which a jury
trial is requisite.[11] A conspiracy to invade the rights of another
person also falls in that category.[12]
Actions to recover penalties imposed by act of Congress,[13] deportation
proceedings[14] and contempt proceedings[15] for violation of an
injunction have been held not to be criminal prosecutions. Only a
prosecution which is technically criminal in its nature falls within the
purview of Amendment VI.[16] The concept of a criminal prosecution is
much narrower than that of a "criminal case" under the Fifth
Amendment.[17]
Trial by Jury
The trial by jury required by the Constitution includes all the
essential elements of jury trial which were recognized in this country
and in England when the Constitution was adopted;[18] a jury must
consist of twelve men, neither more nor less;[19] the trial must be held
in the presence and under the superintendence of a judge having power to
instruct the jurors as to the law and advise them in respect of the
facts,[20] and the verdict must be unanimous.[21] But the requirement of
a jury trial is not jurisdictional; it is a privilege which the
defendant may waive with the consent of the Government and the approval
of the court. There is no distinction between a complete waiver of a
jury and a consent to be tried by less than twelve men.[22] When a
person is charged with more than one crime, the right to a speedy trial
does not require that he be first tried on the earliest indictment; no
constitutional right is violated by removing him to another jurisdiction
for trial on a later indictment.[23]
Impartial Jury
"* * *, the guarantee of an impartial jury to the accused in a criminal
prosecution, * * *, secures to him the right to enjoy that mode of trial
from the first moment, and in whatever court, he is put on trial for the
offense charged. * * * To accord to the accused a right to be tried by a
jury, in an appellate court, after he has been once fully tried
otherwise than by a jury, in the court of original jurisdiction, and
sentenced to pay a fine or be imprisoned for not paying it, does not
satisfy the requirements of the Constitution."[24]
The qualification of government employees to serve on juries in the
District of Columbia has been the principal source of controversy
concerning the meaning of the phrase "impartial jury." In 1909, the
Supreme Court decided, on common law grounds, that such employees were
disqualified in criminal proceedings instituted by the Government.[25]
As the proportion of public to private employees increased, this
decision created difficulties in securing properly qualified jurors. To
meet the situation, Congress removed the disqualification by statute in
1935. In United States _v._ Wood,[26] the act was held valid as applied
in a criminal prosecution for theft from a private corporation. By a
narrow majority the Court has subsequently held that government
employees as a class are not disqualified by an implied bias against a
person accused of violating the federal narcotics statutes,[27] nor
against an officer of the Communist party charged with willful failure
to appear before a Congressional committee in compliance with a
subpoena.[28] In both cases, the way was left open for a defendant to
establish the disqualification of federal employees by adducing proof of
actual bias.
The Constitution does not require Congress to allow peremptory
challenge to jurors in criminal cases. Consequently the contention that
several defendants being tried together on a charge of conspiracy were
denied a trial by an impartial jury because each was not allowed the
full statutory number of peremptory challenges was without merit.[29] It
is good ground for challenge for cause that a juror has formed an
opinion as to the issue to be tried. But every opinion which a juror may
entertain does not necessarily disqualify him. Upon the trial of the
issue of fact raised by such a challenge, the Court must determine
whether the nature and strength of the opinion are such as in law
necessary to raise the presumption of partiality.[30] A member of the
Socialist party is not denied any constitutional right by being tried by
a jury composed exclusively of members of other parties and of property
owners.[31]
Place of Trial
An accused cannot be tried in one district under an indictment showing
that the offense was committed in another;[32] the locality in which the
offense is charged to have been committed determines the place and court
of trial.[33] In a prosecution for conspiracy, the accused may be tried
in any State and district where an overt act was performed.[34] Where a
United States Senator was indicted for agreeing to receive compensation
for services to be rendered in a proceeding before a government
department, and it appeared that a tentative arrangement for such
services was made in Illinois and confirmed in St. Louis, the defendant
was properly tried in St. Louis, although he was not physically present
in Missouri when notice of ratification was dispatched.[35] The offense
of obtaining transportation of property in interstate commerce at less
than the carrier's published rates,[36] or the sending of excluded
matter through the mails,[37] may be made triable in any district
through which the forbidden transportation is conducted. By virtue of a
presumption that a letter is delivered in the district to which it is
addressed, the offense of scheming to defraud a corporation by mail was
held to have been committed in that district although the letter was
posted elsewhere.[38] The Constitution does not require any preliminary
hearing before issuance of a warrant for removal of an accused to the
court having jurisdiction of the charge.[39] The assignment of a
district judge from one district to another, conformably to statute,
does not create a new judicial district whose boundaries are undefined
nor subject the accused to trial in a district not established when the
offense with which he is charged was committed.[40] For offenses against
federal laws not committed within any State, Congress has the sole power
to prescribe the place of trial; such an offense is not local and may be
tried at such place as Congress may designate.[41] The place of trial
may be designated by statute after the offense has been committed.[42]
Definition of Crime
The effect of the clause entitling an accused to know the nature and
cause of the accusation against him commences with the statutes fixing
or declaring offenses. It adopts the general rule of the common law that
such statutes are not to be construed to embrace offenses which are not
within their intention and terms. Under this clause it is necessary that
a crime "be in some way declared by the legislative power"; it "cannot
be constructed by the courts from any supposed intention of the
legislature which the statute fails to state."[43] A criminal statute
which is so vague that it leaves the standard of guilt to the "variant
views of the different courts and juries which may be called on to
enforce it"[44] cannot be squared with this provision. Thus it was held,
in the United States v. Cohen Grocery Co.,[45] that a statute making it
unlawful "for any person willfully * * * to make any unjust or
unreasonable rate or charge in handling or dealing in or with any
necessaries" was unconstitutional because it was not "adequate to inform
persons accused of violation thereof of the nature and cause of the
accusation against them."[46] But a provision of the Immigration Act[47]
which makes it a felony for an alien against whom a specified order of
deportation is pending to "willfully fail or refuse to make timely
application in good faith for travel or other documents necessary to his
departure" is not, on its face, void for indefiniteness.[48]
An important aspect of this problem was presented, but not definitely
settled, in Screws _v._ United States.[49] There State law enforcement
officers had been convicted of violating a federal law making it a crime
for anyone acting under color of any law willfully to deprive anyone of
rights secured by the Constitution of the United States.[50] The
indictment charged that in beating to death a man whom they had just
arrested, these officers had deprived him of life without due process of
law. The defendant claimed that the statute was unconstitutional insofar
as it made criminal acts in violation of the due process clause, because
that concept was too vague to supply an ascertainable standard of
guilt.[51] Four opinions were written in the Supreme Court, no one of
which obtained the concurrence of a majority of the Justices. To "avoid
grave constitutional questions" four members construed the word
"willfully" as "connoting a purpose to deprive a person of a specific
constitutional right,"[52] and held that such "requirement of a specific
intent to deprive a person of a federal right made definite by decision
or other rule of law saves the Act from any charge of
unconstitutionality on the grounds of vagueness."[53] Justices Murphy
and Rutledge considered the statute to be sufficiently definite with
respect to the offense charged and thought it unnecessary to anticipate
doubts that might arise in other cases.[54] However, to prevent a
stalemate, Justice Rutledge voted with the four members who believed the
case should be reversed to be tried again on their narrower
interpretation of the statute. Justices Roberts, Frankfurter and Jackson
found the act too indefinite to be rescued by a restrictive
interpretation. With respect to the effect of the requirement of
willfulness, they said: "If a statute does not satisfy the due-process
requirement of giving decent advance notice of what it is which, if
happening, will be visited with punishment, so that men may presumably
have an opportunity to avoid the happening * * *, then 'willfully'
bringing to pass such an undefined and too uncertain event cannot make
it sufficiently definite and ascertainable. 'Willfully' doing something
that is forbidden, when that something is not sufficiently defined
according to the general conceptions of requisite certainty in our
criminal law, is not rendered sufficiently definite by that unknowable
having been done 'willfully.' It is true also of a statute that it
cannot lift itself up by its bootstraps."[55] In Williams _v._ United
States,[56] however, it was held by a sharply divided Court that Sec. 20
did not err for vagueness where the indictment made it clear that the
constitutional right violated by the defendant was immunity from the use
of force and violence to obtain a confession, and this meaning was also
made clear by the trial judge's charge to the jury.[57]
Statutes prohibiting the coercion of employers to hire unneeded
employees,[58] establishing minimum wages and maximum hours of service
for persons engaged in the production of goods for interstate
commerce,[59] forbidding undue or unreasonable restraints of trade,[60]
making it unlawful to build fires near any forest or inflammable
material,[61] banning the receipt of contributions by members of
Congress from federal employees for any political purpose,[62] or
penalizing the copying or taking of documents connected with the
national defense, with intent, or reason to believe that they are to be
used to the injury of the United States or to the advantage of a foreign
nation,[63] have been held to be sufficiently definite to be
constitutional. A provision penalizing excessive charges in connection
with loans from the Home Owners Loan Corporation was not rendered
indefinite by the exception of "ordinary fees for services actually
rendered,"[64] nor was a statute forbidding misstatement of the quantity
of the contents of a package wanting in certainty by reason of a proviso
permitting "reasonable variations."[65]
The constitutional right to be informed of the nature and cause of the
accusation entitles the defendant to insist that the indictment apprise
him of the crime charged with such reasonable certainty that he can make
his defense and protect himself after judgment against another
prosecution on the same charge.[66] No indictment is sufficient if it
does not allege all of the ingredients which constitute the crime. Where
the language of a statute is, according to the natural import of the
words, fully descriptive of the offense, it is sufficient if the
indictment follows the statutory phraseology;[67] but where the elements
of the crime have to be ascertained by reference to the common law or to
other statutes, it is not sufficient to set forth the offense in the
words of the statute; the facts necessary to bring the case within the
statutory definition must also be alleged.[68] If an offense cannot be
accurately and clearly described without an allegation that the accused
is not within an exception contained in the statutes, an indictment
which does not contain such allegation is defective.[69] Despite the
omission of obscene particulars, an indictment in general language is
good if the unlawful conduct is so described so as reasonably to inform
the accused of the nature of the charge sought to be established against
him.[70] The Constitution does not require the Government to furnish a
copy of the indictment to an accused.[71]
Right of Confrontation
The right of confrontation did not originate in the Sixth Amendment; it
was a common law right having recognized exceptions. The purpose of the
constitutional provision was to preserve that right, but not to broaden
it or wipe out the exceptions.[72] The amendment does not accord a right
to be apprised of the names of witnesses who appeared before a grand
jury.[73] It does not preclude the admission of dying declarations,[74]
nor of the stenographic report of testimony given at a former trial by a
witness since deceased.[75] An accused who is instrumental in concealing
a witness cannot complain of the admission of evidence to prove what
that witness testified at a former trial on a different indictment.[76]
If the absence of the witness is chargeable to the negligence of the
prosecution, rather than to the procurement of the accused, evidence
given in a preliminary hearing before a United States Commissioner
cannot be used at the trial.[77] A statute which declared that the
judgment of conviction against the principal felons should be conclusive
evidence, in a prosecution against persons to whom they had transferred
property, that the property had been stolen or embezzled from the United
States, was held to contravene this clause.[78]
Assistance of Counsel
The Sixth Amendment withholds from the federal courts, in all criminal
proceedings, the power to deprive an accused of his life or liberty
unless he has waived, or waives, the assistance of counsel.[79] Since
deportation proceedings are not criminal in character, the admission of
testimony given by the alien during investigation prior to arrest did
not render the hearing unfair, despite the fact that he had not been
advised of his right to have counsel or to decline to answer questions
as to his alienage.[80] The right to counsel is violated where, over the
defendant's objection, the court requires his counsel to represent a
co-defendant whose interest may possibly conflict with his;[81] likewise
where the trial judge decided, without notice to a defendant and without
his presence, that the latter had consented to be represented by counsel
who also represented another defendant in the same case.[82] The right
may be waived by a defendant whose education qualifies him to make an
intelligent choice.[83] A sentence imposed upon a plea of guilty is
invalid if such plea was entered through deception or coercion of the
prosecuting attorney, or in reliance upon erroneous advice given by a
lawyer in the employ of the Government, where the defendant did not have
the assistance of counsel and had not understandingly waived the right
to such assistance.[84]
Notes
[1] Callan _v._ Wilson, 127 U.S. 540 (1888).
[2] Reynolds _v._ United States, 98 U.S. 145 (1879). _See also_ Lovato
_v._ New Mexico, 242 U.S. 199 (1916).
[3] Balzac _v._ Porto Rico, 258 U.S. 298, 304-305 (1922).
[4] Rassmussen _v._ United States, 197 U.S. 516 (1905).
[5] 140 U.S. 453 (1891).
[6] Ibid. 464.
[7] United States _v._ Hudson & Goodwin, 7 Cr. 32, 33 (1812); United
States _v._ Coolidge, 1 Wheat. 415 (1816); United States _v._ Britton,
108 U.S. 199, 206 (1883); United States _v._ Eaton, 144 U.S. 677, 687
(1892).
[8] Callan _v._ Wilson, 127 U.S. 540, 552 (1888).
[9] Schick _v._ United States, 195 U.S. 65, 68 (1904).
[10] District of Columbia _v._ Clawans, 300 U.S. 617 (1937).
[11] District of Columbia _v._ Colts, 282 U.S. 63 (1930).
[12] Callan _v._ Wilson, 127 U.S. 540 (1888).
[13] Oceanic Navigation Co. _v._ Stranahan, 214 U.S. 320 (1909); Hepner
_v._ United States, 213 U.S. 103 (1909); United States _v._ Regan, 232
U.S. 37 (1914).
[14] United States ex rel. Turner _v._ Williams, 194 U.S. 279, 289
(1904); Zakonaite _v._ Wolf, 226 U.S. 272 (1912).
[15] In re Debs, 158 U.S. 564, 594 (1895); Gompers _v._ United States,
233 U.S. 604 (1914); Myers _v._ United States, 264 U.S. 95 (1924).
[16] United States _v._ Zucker, 161 U.S. 475, 481 (1896).
[17] Counselman _v._ Hitchcock, 142 U.S. 547, 563 (1892).
[18] Patton _v._ United States, 281 U.S. 276 (1930).
[19] Thompson _v._ Utah, 170 U.S. 343, 350 (1898); Rassmussen _v._
United States, 197 U.S. 518 (1905).
[20] Capital Traction Co. _v._ Hof, 174 U.S. 1, 13 (1899).
[21] Maxwell _v._ Dow, 176 U.S. 581, 586 (1900); Andres _v._ United
States, 333 U.S. 740 (1948).
[22] Patton _v._ United States, 281 U.S. 276 (1930).
[23] Beavers _v._ Haubert, 198 U.S. 77 (1905).
[24] Callan _v._ Wilson, 127 U.S. 540, 557 (1888).
[25] Crawford _v._ United States, 212 U.S. 183 (1909).
[26] 299 U.S. 123 (1936).
[27] Frazier _v._ United States, 335 U.S. 497 (1948).
[28] Dennis _v._ United States, 339 U.S. 162 (1950).
[29] Stilson _v._ United States, 250 U.S. 583, 586 (1919).
[30] Reynolds _v._ United States, 98 U.S. 145 (1879).
[31] Ruthenberg _v._ United States, 245 U.S. 480 (1918).
[32] Salinger _v._ Loisel, 265 U.S. 224 (1924).
[33] Beavers _v._ Henkel, 194 U.S. 73, 83 (1904).
[34] Brown _v._ Elliott, 225 U.S. 392 (1912); Hyde _v._ United States,
225 U.S. 347 (1912); Haas _v._ Henkel, 216 U.S. 462 (1910).
[35] Burton _v._ United States, 202 U.S. 344 (1906).
[36] Armour Packing Co. _v._ United States, 209 U.S. 56 (1908).
[37] United States _v._ Johnson, 323 U.S. 273, 274 (1944).
[38] Hagner _v._ United States, 285 U.S. 427, 429 (1932).
[39] Hughes _v._ Gault, 271 U.S. 142 (1926). _Cf._ Tinsley _v._ Treat,
205 U.S. 20 (1907); Beavers _v._ Henkel, 194 U.S. 73, 84 (1904).
[40] Lamar _v._ United States, 241 U.S. 103 (1916).
[41] Jones _v._ United States, 137 U.S. 202, 211 (1890); United States
_v._ Dawson, 15 How. 467, 488 (1853).
[42] Cook _v._ United States, 138 U.S. 157, 182 (1891). _See also_
United States _v._ Socony-Vacuum Oil Co., 310 U.S. 150, 250-254 (1940);
_also_ United States _v._ Johnson, 323 U.S. 273 (1944).
[43] United States _v._ Potter, 56 F. 83, 88 (1892). _See also_ Viereck
_v._ United States, 318 U.S. 236 (1943); Kraus Bros. _v._ United States,
327 U.S. 614, 621 (1946).
[44] United States _v._ Cohen Grocery Co., 264 F. 218, 220 (1920),
affirmed 255 U.S. 81 (1921).
[45] 255 U.S. 81 (1921).
[46] Ibid. 89.
[47] 8 U.S.C. Sec. 145 (c).
[48] United States _v._ Spector, 343 U.S. 169 (1952).
[49] 325 U.S. 91 (1945).
[50] Section 20 of the Criminal Code; 18 U.S.C. Sec. 242.
[51] 325 U.S. 91, 94, 95.
[52] Ibid. 101.
[53] Ibid. 103.
[54] Ibid. 113, 135.
[55] Ibid. 154.
[56] 341 U.S. 97 (1951).
[57] _See also_ Koehler et al. _v._ United States, 342 U.S. 852 (1951).
[58] United States _v._ Petrillo, 332 U.S. 1 (1947).
[59] United States _v._ Darby, 312 U.S. 100, 125 (1941).
[60] Nash _v._ United States, 229 U.S. 373 (1913).
[61] United States _v._ Alford, 274 U.S. 264 (1927).
[62] United States _v._ Wurzbach, 280 U.S. 396 (1930).
[63] Gorin _v._ United States, 312 U.S. 19 (1941).
[64] Kay _v._ United States, 303 U.S. 1 (1938).
[65] United States _v._ Shreveport Grain & Elevator Co., 287 U.S. 77
(1932).
[66] United States _v._ Cruikshank, 92 U.S. 542, 544, 558 (1876); United
States _v._ Simmons, 96 U.S. 360 (1878); Bartell _v._ United States, 227
U.S. 427 (1913); Burton _v._ United States, 202 U.S. 344 (1906).
[67] Potter _v._ United States, 155 U.S. 438, 444 (1894).
[68] United States _v._ Carll, 105 U.S. 611 (1882).
[69] United States _v._ Cook, 17 Wall. 168, 174 (1872).
[70] Rosen _v._ United States, 161 U.S. 29, 40 (1896).
[71] United States _v._ Van Duzee, 140 U.S. 169, 173 (1891).
[72] Salinger _v._ United States, 272 U.S. 542, 548 (1926).
[73] Wilson _v._ United States, 221 U.S. 361 (1911).
[74] Kirby _v._ United States, 174 U.S. 47, 61 (1809); Robertson _v._
Baldwin, 165 U.S. 275, 282 (1897).
[75] Mattox _v._ United States, 156 U.S. 237, 240 (1895).
[76] Reynolds _v._ United States, 98 U.S. 145, 160 (1879).
[77] Motes _v._ United States, 178 U.S. 458 (1900).
[78] Kirby _v._ United States, 174 U.S. 47 (1899).
[79] Johnson _v._ Zerbst, 304 U.S. 458, 463 (1938).
[80] United States ex rel. Bilokumsky _v._ Tod, 263 U.S. 149 (1923).
[81] Glasser _v._ United States, 315 U.S. 60 (1942).
[82] United States _v._ Hayman, 342 U.S. 205 (1952).
[83] Adams _v._ United States, 317 U.S. 269 (1942).
[84] Walker _v._ Johnston, 312 U.S. 275 (1941); Von Moltke _v._ Gillies,
332 U.S. 708 (1948). _See also_ United States ex rel. McCann _v._ Adams,
320 U.S. 220 (1943).
AMENDMENT 7
CIVIL TRIALS
Page
Trial by jury in civil cases 891
Origin and purpose of the amendment 891
Trial by jury, elements of, preserved 891
To what courts and cases applicable 892
Cases not governed by the amendment 893
Restrictive force of the amendment 894
Judge and jury 895
Line drawn by the common law 895
Directed verdicts 896
Waiver of right of trial by jury 897
Appeals from State courts to the Supreme Court 897
CIVIL TRIALS
Amendment 7
In Suits at common law, where the value in controversy shall exceed
twenty dollars, the right of trial by jury shall be preserved, and no
fact tried by a jury, shall be otherwise re-examined in any Court of the
United States, than according to the rules of the common law.
Trial by Jury in Civil Cases
ORIGIN AND PURPOSE OF THE AMENDMENT
Late in the Federal Convention it was moved that a clause be inserted in
article III, section 2 of the draft Constitution to read "* * * and a
trial by jury shall be preserved as usual in civil cases." The proposal
failed when it was pointed out that the make-up and powers of juries
differed greatly in different States and that a uniform provision for
all States was impossible.[1] The objection evidently anticipated that
in cases falling to their jurisdiction on account of the diversity of
citizenship of the parties, the federal courts would conform their
procedure to the laws of the several States.[2] The omission, however,
raised an objection to the Constitution which "was pressed with an
urgency and zeal * * * well-nigh preventing its ratification."[3] Nor
was the agitation assuaged by Hamilton's suggestion in The Federalist
that Congress would have ample power, in establishing the lower federal
courts and in making "exceptions" to the Supreme Court's appellate
jurisdiction, to safeguard jury trial in civil cases according to the
standards of the common law.[4] His argument bore fruit, nevertheless,
in the Seventh Amendment, whereby, in the words of the Court, the right
of trial by jury is preserved as it "existed under the English common
law when the amendment was adopted."[5]
TRIAL BY JURY, ELEMENTS OF, PRESERVED
"Trial by jury," in the sense of Amendment VII, "is a trial by a jury of
twelve men, in the presence and under the superintendence of a judge
empowered to instruct them on the law and to advise them on the facts
and (except in acquittal of a criminal charge) to set aside their
verdict if in his opinion it is against the law or the evidence."[6] A
further requisite is "that there shall be a unanimous verdict of the
twelve jurors in all federal courts where a jury trial is held."[7]
Assuming such a jury, the amendment has for its primary purpose the
preservation of "* * * the common law distinction between the province
of the court and that of the jury, whereby, in the absence of express or
implied consent to the contrary, issues of law are resolved by the court
and issues of fact are to be determined by the jury under appropriate
instructions by the court."[8] But the amendment "does not exact the
retention of old forms of procedure" nor does it "prohibit the
introduction of new methods of ascertaining what facts are in issue
* * *" or new rules of evidence.[9]
TO WHAT COURTS AND CASES APPLICABLE
Amendment VII governs only courts which sit under the authority of the
United States,[10] including courts in the territories[11] and the
District of Columbia.[12] It does not apply to a State court even when
it is enforcing a right created by federal statute.[13] Its coverage is
"* * * limited to rights and remedies peculiarly legal in their nature,
and such as it was proper to assert in courts of law and by the
appropriate modes and proceedings of courts of law."[14] The term
"common law" is used in contradistinction to suits in which equitable
rights alone were recognized at the time of the framing of the amendment
and equitable remedies were administered.[15] Hence it does not apply to
cases where recovery of money damages is incident to equitable relief
even though damages might have been recovered in an action at law.[16]
Nor does it apply to cases in admiralty and maritime jurisdiction, in
which the trial is by a court without a jury.[17] Nor does it reach
statutory proceedings unknown to the common law, such as an application
to a court of equity to enforce an order of an administrative body.[18]
CASES NOT GOVERNED BY THE AMENDMENT
Omission of a jury has been upheld in the following instances on the
ground that the suit in question was not a suit at common law within the
meaning of the Seventh Amendment;
(1) Suits to enforce claims against the United States.[19]
(2) Suit authorized by Territorial law against a municipality, based
upon a moral obligation only.[20]
(3) Suit to cancel a naturalization certificate for fraud.[21]
(4) Order of deportation of an alien.[22]
(5) Assessment of damages in patent infringement suit.[23]
(6) Longshoremen's and Harbor Workers' Compensation Act.[24]
(7) Jurisdiction of bankruptcy court to examine into reasonableness of
fees paid by person for legal services in contemplation of
bankruptcy.[25]
(8) Final decision of customs appraisers in regard to value of
imports.[26]
It has been further held that there was no infringement of the
constitutional right to trial by jury in the following circumstances:
(1) A territorial statute requiring specific answers to special
interrogations, in addition to a general verdict.[27]
(2) A rule of a District of Columbia court authorizing judgment by
default in an action _ex contractu_, on failure to show by affidavit a
good defense.[28]
(3) A federal court's observance of a State statute making a certified
copy of a coroner's verdict _prima facie_ evidence of the facts
stated.[29]
(4) A federal statute (24 Stat. 379) giving _prima facie_ effect to
findings of the Interstate Commerce Commission.[30]
(5) An order of a District of Columbia court appointing an auditor in a
law case to examine books and papers, make computations, hear testimony,
and render a report which will serve as _prima facie_ evidence of the
facts found and conclusions reached, unless rejected by the court.[31]
(6) A decree of the Supreme Court enjoining, in the exercise of its
original jurisdiction, the State of Louisiana from continuing to
trespass upon lands under the ocean beyond its coasts and requiring the
State to account for the money derived from that area.[32]
RESTRICTIVE FORCE OF THE AMENDMENT
But the absolute right to a trial of the facts by a jury may not be
impaired by any blending with a claim, properly cognizable at law, of a
demand for equitable relief in aid of the legal action or during its
pendency. Such aid in the federal courts must be sought in separate
proceedings.[33] Federal statutes from Revised Statutes (Sec. 723) through
the Judicial Code (Sec. 267), prohibiting courts of the United States to
sustain suits in equity where the remedy is complete at law, serve to
guard the right of trial by jury, and should be liberally construed.[34]
So also should Equity Rule 30, requiring the answer to a bill in equity
to state any counterclaim arising out of the same transaction; such rule
was not intended to change the line between law and equity, and must be
construed as referring to equitable counterclaims only.[35] Nor may the
distinction between law and equity, so far as federal courts are
concerned, be obliterated by State legislation.[36] So, where State law,
in advance of judgment, treated the whole proceeding upon a simple
contract, including determination of validity and of amount due, as an
equitable proceeding, it brought the case within the federal equity
jurisdiction on removal. Ascertainment of plaintiff's demand being
properly by action at law, however, the fact that the equity court had
power to summon a jury on occasion did not afford an equivalent of the
right of trial by jury secured by the Seventh Amendment.[37] But where
State law gives an equitable remedy, such as to quiet title to land, the
federal courts will enforce it if it does not obstruct the rights of the
parties as to trial by jury.[38] An order of the Court of Claims
attempting to reinstate a dismissed case in violation of plaintiff's
right to dismiss violates the latter's right to trial by jury and may be
corrected by mandamus.[39]
Judge and Jury
LINE DRAWN BY THE COMMON LAW
As was noted above, the primary purpose of the amendment was to preserve
the historic line separating the province of the jury from that of the
judge, without at the same time preventing procedural improvement which
did not transgress this line. Elucidating this formula, the Court has
achieved the following results: It is constitutional for a federal
judge, in the course of trial, to express his opinion upon the facts,
provided all questions of fact are ultimately submitted to the jury;[40]
to call the jury's attention to parts of the evidence he deems of
special importance,[41] being careful to distinguish between matters of
law and matters of opinion in relation thereto;[42] to inform the jury
when there is not sufficient evidence to justify a verdict, that such is
the case;[43] to direct the jury, after plaintiff's case is all in, to
return a verdict for the defendant on the ground of the insufficiency of
the evidence;[44] to set aside a verdict which in his opinion is against
the law or the evidence, and order a new trial;[45] to refuse defendant
a new trial on the condition, accepted by plaintiff, that the latter
remit a portion of the damages awarded him;[46] but not, on the other
hand, to deny plaintiff a new trial on the converse condition, although
defendant accepted it.[47]
DIRECTED VERDICTS
In 1913 the Court held, in Slocum _v._ New York Life Insurance
Company,[48] that where upon the evidence a federal trial court, sitting
in New York, ought to have directed a verdict for one party but the jury
found for the other contrary to the evidence, the amendment rendered it
improper for a federal appeals court to order, in accordance with New
York practice, the entry of a judgment contrary to the verdict; that the
only course open to either court was to order a new trial. While plainly
in accordance with the common law as it stood in 1791, the decision was
five-to-four and was subjected to a heavy fire of professional criticism
urging the convenience of the thing and the theory of the capacity of
the common law for growth.[49] It has, moreover, been impaired, if not
completely undermined by certain more recent holdings. In the first of
these,[50] in which the same Justice spoke for the Court as in the
Slocum Case, it was held that a trial court had the right to enter a
judgment on the verdict of the jury for the plaintiff after overruling a
motion by defendant for dismissal on the ground of insufficient
evidence. The Court owned that its ruling was out of line with some of
its expressions in the Slocum Case.[51] In the second case[52] the Court
sustained a United States district court in Arkansas, in an action
between parties of diverse citizenship, in rejecting a motion by
defendant for dismissal and peremptorily directing a verdict for the
plaintiff. The Supreme Court held that there was ample evidence to
support the verdict and that the trial court, in following Arkansas
procedure, had acted consistently with the Federal Conformity Act.[53]
In the third case,[54] which involved an action against the Government
for benefits under a war risk insurance policy which had been allowed to
lapse, the trial court directed a verdict for the Government on the
ground of the insufficiency of the evidence and was sustained in so
doing by both the circuit court of appeals and the Supreme Court. Three
Justices, speaking by Justice Black, dissented in an opinion in which it
is asserted that "today's decision marks a continuation of the gradual
process of judicial erosion which in one-hundred-fifty years has slowly
worn away a major portion of the essential guarantee of the Seventh
Amendment."[55] That the Court should experience occasional difficulty
in harmonizing the idea of preserving the historic common law covering
the relations of judge and jury with the notion of a developing common
law is not surprising.
WAIVER OF RIGHT OF TRIAL BY JURY
Parties have a right to enter into a stipulation waiving a jury and
submitting the case to the court upon an agreed statement of facts, even
without any legislative provision for waiver.[56] "* * * Congress has,
by statute, provided for the trial of issues of fact in civil cases by
the court without the intervention of a jury, only when the parties
waive their right to a jury by a stipulation in writing. Revised
Statutes sections 648, 649."[57] This statutory provision for a written
stipulation, however, does not preclude other kinds of waivers.[58] But
every reasonable presumption should be indulged against a waiver.[59]
None is to be implied from a request for a directed verdict.[60]
APPEALS FROM STATE COURTS TO THE SUPREME COURT
The last clause of Amendment VII is not restricted in its application to
suits at common law tried before juries in United States courts. It
applies equally to a case tried before a jury in a State court and
brought to the United States Supreme Court on appeal.[61]
Notes
[1] 2 Farrand, Records, 628.
[2] _See_ Federal Conformity Act, 28 U.S.C.A. Sec. 724.
[3] 2 Story, Commentaries on the Constitution, Sec. 1763.
[4] Federalist, Nos. 81 and 83.
[5] Baltimore & C. Line _v._ Redman, 295 U.S. 654, 657 (1935); Parsons
_v._ Bedford, 3 Pet. 433, 446-448 (1830).
[6] Capital Traction Co. _v._ Hof, 174 U.S. 1, 13, 14 (1899). Here it
was held that a civil trial before a justice of the peace in the
District of Columbia, although by a jury of twelve men, was not a jury
trial in the sense of Amendment VII.
[7] Maxwell _v._ Dow, 176 U.S. 581, 586 (1900). _See also_ American
Publishing Co. _v._ Fisher, 166 U.S. 464 (1897); Springville _v._
Thomas, 166 U.S. 707 (1897); Andres _v._ United States, 333 U.S. 740,
748 (1948).
[8] Baltimore & C. Line _v._ Redman, 295 U.S. 654, 657 (1935); Walker
_v._ New Mexico, & S.P.R. Co., 165 U.S. 593, 596 (1897); Gasoline
Products Co. _v._ Champlin Ref. Co., 283 U.S. 494, 497-499 (1931);
Dimick _v._ Schiedt, 293 U.S. 474, 476, 485-486 (1935).
[9] Gasoline Products Co. _v._ Champlin Ref. Co., 283 U.S. 494, 498
(1931); Ex parte Peterson, 253 U.S. 300, 309 (1920).
[10] Pearson _v._ Yewdall, 95 U.S. 294, 296 (1877). _See also_ Edwards
_v._ Elliott, 21 Wall. 532, 557 (1874); Justices of the Sup. Ct. _v._
United States ex rel. Murray, 9 Wall. 274, 277 (1870); Walker _v._
Sauvinet, 92 U.S. 90 (1876); St. Louis & K.C. Land Co. _v._ Kansas City,
241 U.S. 419 (1916).
[11] Webster _v._ Reid, 11 How. 437, 460 (1851); Kennon _v._ Gilmer, 131
U.S. 22, 28 (1889).
[12] Capital Traction Co. _v._ Hof, 174 U.S. 1, 5 (1899).
[13] Minneapolis & St. L.R. Co. _v._ Bombolis, 241 U.S. 211 (1916),
which involved The Federal Employers Liability Act of 1908. The ruling
is followed in four other cases in the same volume. _See_ ibid. 241,
261, 485 and 494.
[14] Shields _v._ Thomas, 18 How. 253, 262 (1856).
[15] Parsons _v._ Bedford, 3 Pet. 433, 447 (1830); Barton _v._ Barbour,
104 U.S. 126, 133 (1881).
[16] Clark _v._ Wooster, 119 U.S. 322, 325 (1886); Pease _v._
Rathbun-Jones Eng. Co., 243 U.S. 273, 279 (1917).
[17] Parsons _v._ Bedford, above; Waring _v._ Clarke, 5 How. 441, 460
(1847). _See also_ The "Sarah," 8 Wheat. 390, 391 (1823), and cases
there cited.
[18] Labor Board _v._ Jones & Laughlin, 301 U.S. 1, 48 (1937). _See
also_ Interstate Commerce Commission _v._ Brimson, 154 U.S. 447, 488
(1894); Yakus _v._ United States, 321 U.S. 414, 447 (1944).
[19] McElrath _v._ United States, 102 U.S. 426, 440 (1880). _See also_
Galloway _v._ United States, 319 U.S. 372, 388 (1943).
[20] Guthrie Nat. Bank _v._ Guthrie, 173 U.S. 528, 534 (1899). _See
also_ United States _v._ Realty Co., 163 U.S. 427, 439 (1896); Jefferson
City Gaslight Co. _v._ Clark, 95 U.S. 644, 653 (1877).
[21] Luria _v._ United States, 231 U.S. 9, 27 (1913).
[22] Gee Wah Lee _v._ United States, 25 F. (2d) 107 (1928); certiorari
denied, 277 U.S. 608 (1928).
[23] Filer & S. Co. _v._ Diamond Iron Works, 270 F. 489 (1921);
certiorari denied, 256 U.S. 691 (1921).
[24] Crowell _v._ Benson, 285 U.S. 22, 45 (1932).
[25] In re Wood and Henderson, 210 U.S. 246 (1908).
[26] Auffmordt _v._ Hedden, 137 U.S. 310, 329 (1890).
[27] Walker _v._ New Mexico & S.P.R. Co., 165 U.S. 593, 598 (1897).
[28] Fidelity & D. Co. _v._ United States, 187 U.S. 315, 320 (1902).
[29] Jensen _v._ Continental Life Ins. Co., 28 F. (2d) 545 (1928),
certiorari denied, 279 U.S. 842 (1929).
[30] Meeker _v._ Lehigh Valley R. Co., 236 U.S. 434, 439 (1915).
[31] Ex parte Peterson, 253 U.S. 300 (1920).
[32] United States _v._ Louisiana, 339 U.S. 699 (1950).
[33] Scott _v._ Neely, 140 U.S. 106, 109 (1891). _See also_ Bennett _v._
Butterworth, 11 How. 669 (1850); Hipp _v._ Babin, 19 How. 271, 278
(1857); Lewis _v._ Cocks, 23 Wall. 466, 470 (1874); Killian _v._
Ebbinghaus, 110 U.S. 568, 573 (1884); Buzard _v._ Houston, 119 U.S. 347,
351 (1886).
[34] Schoenthal _v._ Irving Trust Co., 287 U.S. 92, 94 (1932).
[35] American Mills Co. _v._ American Surety Co., 260 U.S. 360, 364
(1922). _See also_ Stamey _v._ United States, 37 F. (2d) 188 (1929).
[36] Thompson _v._ Central Ohio R. Co., 6 Wall. 134 (1868).
[37] Whitehead _v._ Shattuck, 138 U.S. 146 (1891); Buzard _v._ Houston,
119 U.S. 347 (1886); Greeley _v._ Lowe, 155 U.S. 58, 75 (1894).
[38] Clark _v._ Smith, 13 Pet. 195 (1839); Holland _v._ Challen, 110
U.S. 15 (1884); Reynolds _v._ Crawfordsville First Nat. Bank, 112 U.S.
405 (1884); Chapman _v._ Brewer, 114 U.S. 158 (1885); Cummings _v._
Merchants Nat. Bank, 101 U.S. 153, 157 (1880); United States _v._
Landram, 118 U.S. 81 (1886); More _v._ Steinbach, 127 U.S. 70 (1888).
_Cf._ Re Simons, 247 U.S. 231 (1918).
[39] Ex parte Skinner & Eddy Corp., 265 U.S. 86, 96 (1924).
[40] Vicksburg & M.R. Co. _v._ Putnam, 118 U.S. 545, 553 (1886); United
States _v._ Reading Railroad, 123 U.S. 113, 114 (1887).
[41] 118 U.S. 545; where are cited Carver _v._ Jackson ex dem. Astor et
al., 4 Pet. 1, 80 (1830); Magniac _v._ Thompson, 7 Pet. 348, 390 (1833);
Mitchell _v._ Harmony, 13 How. 115, 131 (1852); Transportation Line _v._
Hope, 95 U.S. 297, 302 (1877).
[42] Games _v._ Dunn, 14 Pet. 322, 327 (1840).
[43] Sparf _v._ United States, 156 U.S. 51, 99-100 (1895); Pleasants
_v._ Fant, 22 Wall. 116, 121 (1875); Randall _v._ Baltimore & Ohio R.R.
Co., 109 U.S. 478, 482 (1883); Meehan _v._ Valentine, 145 U.S. 611, 625
(1892); Coughran _v._ Bigelow, 164 U.S. 301 (1896).
[44] Treat Mfg. Co. _v._ Standard Steel & Iron Co., 157 U.S. 674 (1895);
Randall _v._ Baltimore & Ohio R.R. Co., 109 U.S. 478, 482 (1883) and
cases there cited.
[45] Capital Traction Co. _v._ Hof, 174 U.S. 1, 13 (1899).
[46] Arkansas Land & Cattle Co. _v._ Mann, 130 U.S. 69, 74 (1889).
[47] Dimick _v._ Schiedt, 293 U.S. 474, 476-478 (1935).
[48] 228 U.S. 364 (1913).
[49] _See_ Austin Wakeman Scott, Fundamentals of Procedure in Actions at
Law (1922), 103 and articles there cited.
[50] Baltimore & C. Line _v._ Redman, 295 U.S. 654 (1935).
[51] Ibid. 661.
[52] Lyon _v._ Mutual Benefit Assn., 305 U.S. 484 (1939).
[53] 28 U.S.C.A. Sec. 724.
[54] Galloway _v._ United States, 319 U.S. 372 (1943).
[55] Ibid. 397. As a matter of fact, the case being a claim against the
United States need not have been tried by a jury except for the
allowance of Congress.
[56] Henderson's Distilled Spirits, 14 Wall. 44, 53 (1872). _See also_
Rogers _v._ United States, 141 U.S. 548, 554 (1891); Parsons _v._ Armor,
3 Pet. 413 (1830); Campbell _v._ Boyreau, 21 How. 223 (1859).
[57] Baylis _v._ Travelers' Ins. Co., 113 U.S. 316, 321 (1885), holding
it error for a judge, in absence of any waiver, to find the facts and
render judgment thereon.
[58] Duignan _v._ United States, 274 U.S. 195, 198 (1927), holding jury
trial waived by an appearance and participation in the trial without
demanding a jury.
[59] Hodges _v._ Easton, 106 U.S. 408, 412 (1883).
[60] Aetna Insurance Co. _v._ Kennedy, 301 U.S. 389 (1937).
[61] _See_ Justices of the Sup. Ct. _v._ United States ex rel. Murray, 9
Wall. 274 (1870); Chicago, B. & Q.R. Co. _v._ Chicago, 166 U.S. 226, 242
(1897).
AMENDMENT 8
BAIL, FINES, AND OTHER PUNISHMENT FOR CRIME
Page
Excessive bail 903
Excessive fines 904
Cruel and unusual punishments 904
PUNISHMENT FOR CRIME
Amendment 8
Excessive bail shall not be required, nor excessive fines imposed, nor
cruel and unusual punishments inflicted.
When the Bill of Rights was being debated in Congress, two members took
exception to this proposal. One "objected to the words 'nor cruel and
unusual punishment,' the import of them being too indefinite."[1]
Another leveled a similar criticism at the entire amendment; "What is
meant by the terms excessive bail? Who are to be the judges? What is
understood by excessive fines? It lies with the court to determine. No
cruel and unusual punishment is to be inflicted; it is sometimes
necessary to hang a man, villains often deserve whipping, and perhaps
having their ears cut off; but are we in future to be prevented from
inflicting these punishments because they are cruel? If a more lenient
mode of correcting vice and deterring others from the commission of it
could be invented, it would be very prudent in the Legislature to adopt
it; but until we have some security that this will be done, we ought not
to be restrained from making necessary laws by any declaration of this
kind."[2]
Excessive Bail
A United States District Court fixed the bail of twelve persons who were
arrested on charge of conspiring to violate the Smith Act[3] at $50,000
each. This was on the theory advanced by the Government that each
petitioner was a pawn in a conspiracy and in obedience to a superior
would flee the jurisdiction, a theory to support which no evidence was
introduced. The Court held that bail set before trial at a figure higher
than reasonably calculated to assure the presence of defendant at his
trial is "excessive" in the sense of the Eighth Amendment, and that the
case of each defendant must be determined on its merits. Bail of larger
amount than that usually fixed for serious crimes must be justified by
evidence to the point.[4] But the power of the Attorney General, under
Sec. 23 of the Internal Security Act of 1950,[5] to hold in custody without
bail, at his discretion, pending determination as to their
deportability, aliens who are members of the Communist Party of the
United States, is not unconstitutional.[6]
Excessive Fines
The Supreme Court has had little to say with reference to excessive
fines or bail. In an early case it held that it had no appellate
jurisdiction to revise the sentence of an inferior court, even though
the excessiveness of the fine was apparent on the face of the record.[7]
In a dissenting opinion in United States ex rel. Milwaukee Publishing
Co. _v._ Burleson,[8] Justice Brandeis intimated that the additional
mailing costs incurred by a newspaper to which the second-class mailing
privilege had been denied constituted, in effect, a fine for a past
offense which, since it was made to grow indefinitely each day, was an
unusual punishment interdicted by the Constitution.[9]
Cruel and Unusual Punishments
The ban against "cruel and unusual punishment" has received somewhat
greater attention. In Wilkerson _v._ Utah[10] the Court observed that:
"Difficulty would attend the effort to define with exactness the extent
of the constitutional provision which provides that cruel and unusual
punishments shall not be inflicted, but it is safe to affirm that
punishments of torture, ... and all others in the same line of
unnecessary cruelty, are forbidden by that Amendment to the
Constitution."[11] Shooting as a mode of executing the death penalty was
sustained over the objection that it was cruel and unusual.
A partially successful effort has been made to enlarge the concept of
unusual punishment to cover penalties which shock the sense of justice
by their absolute or relative severity. Justice Field pointed the way
for this development in his dissenting opinion in O'Neil _v._
Vermont,[12] wherein the majority refused to apply the Eighth Amendment
to a State. With the concurrence of two other Justices he wrote that the
amendment was directed "against all punishments which by their excessive
length or severity are greatly disproportioned to the offenses
charged."[13] Eighteen years later a divided Court condemned a
Philippine statute prescribing fine and imprisonment of from twelve to
twenty years for entry of a known false statement in a public record, on
the ground that the gross disparity between this punishment and that
imposed for other more serious fines made it cruel and unusual, and as
such, repugnant to the Bill of Rights.[14] No constitutional infirmity
was discovered in a measure punishing as a separate offense each act of
placing a letter in the mails in pursuance of a single scheme to
defraud.[15]
Notes
[1] 1 Annals of Congress 754 (1791).
[2] Ibid.
[3] 18 U.S.C. Sec. 371, 2385.
[4] Stack _v._ Boyle, 342 U.S. 1 (1951).
[5] 8 U.S.C.A. Sec. 156 (a) (1); 64 Stat. 1011.
[6] Carlson _v._ Landon, 342 U.S. 524 (1952).
[7] Ex parte Watkins, 7 Pet. 568, 574 (1833).
[8] 255 U.S. 407 (1921).
[9] Ibid. 435.
[10] 99 U.S. 130 (1879).
[11] Ibid. 135.
[12] 144 U.S. 323 (1892).
[13] Ibid. 339, 340.
[14] Weems _v._ United States, 217 U.S. 349, 371, 382 (1910).
[15] Badders _v._ United States, 240 U.S. 391 (1916). _Cf._ Donaldson
_v._ Read Magazine, 333 U.S. 178, 191 (1948).
AMENDMENT 9
RIGHTS RETAINED BY THE PEOPLE
Amendment 9
The enumeration in the Constitution, of certain rights, shall not be
construed to deny or disparage others retained by the people.
The only right which the Supreme Court has explicitly acknowledged as
protected by this amendment is the right to engage in political
activity. That recognition was accorded by way of _dictum_ in United
Public Workers _v._ Mitchell, where the powers of Congress to restrict
the political activities of federal employees was sustained.[1] An
argument that the competition of the TVA in selling electricity at rates
lower than those previously charged by private companies serving the
area amounted to an indirect regulation of the rates of those companies
and a destruction of the liberty said to be guaranteed by the Ninth
Amendment to the people of the States to acquire property and employ it
in a lawful business, was summarily rejected.[2] Previously the Court
had upheld the right of the TVA to sell electricity, saying that the
Ninth Amendment did not withdraw the right expressly granted by section
3 of article IV to dispose of property belonging to the United
States.[3]
Notes
[1] 330 U.S. 75, 94 (1947).
[2] Tennessee Electric Power Co. _v._ T.V.A., 306 U.S. 118, 143, 144
(1939).
[3] Ashwander _v._ T.V.A., 297 U.S. 288, 330, 331 (1936). _See also_ the
language of Justice Chase in Calder _v._ Bull, 3 Dall. 386, 388 (1798);
and of Justice Miller for the Court in Loan Asso. _v._ Topeka, 20 Wall.
655, 662-663 (1874).
AMENDMENT 10
RESERVED STATE POWERS
Page
Scope and purpose 915
The taxing power 916
The commerce power 917
Police power 918
State activities and instrumentalities 919
RESERVED STATE POWERS
Amendment 10
The powers not delegated to the United States by the Constitution, nor
prohibited by it to the States, are reserved to the States respectively,
or to the people.
Scope and Purpose
"The Tenth Amendment was intended to confirm the understanding of the
people at the time the Constitution was adopted, that powers not granted
to the United States were reserved to the States or to the people. It
added nothing to the instrument as originally ratified * * *."[1] That
this provision was not conceived to be a yardstick for measuring the
powers granted to the Federal Government or reserved to the States was
clearly indicated by its sponsor, James Madison, in the course of the
debate which took place while the amendment was pending concerning
Hamilton's proposal to establish a national bank. He declared that:
"Interference with the power of the States was no constitutional
criterion of the power of Congress. If the power was not given, Congress
could not exercise it; if given, they might exercise it, although it
should interfere with the laws, or even the Constitutions of the
States."[2] Nevertheless, for approximately a century, from the death of
Marshall until 1937, the Tenth Amendment was frequently invoked to
curtail powers expressly granted to Congress, notably the powers to
regulate interstate commerce, to enforce the Fourteenth Amendment and to
lay and collect taxes.
The first, and logically the strongest, effort to set up the Tenth
Amendment as a limitation on federal power was directed to the expansion
of that power by virtue of the necessary and proper clause. In McCulloch
_v._ Maryland,[3] the Attorney-General of Maryland cited the charges
made by the enemies of the Constitution that it contained "* * * a vast
variety of powers, lurking under the generality of its phraseology,
which would prove highly dangerous to the liberties of the people, and
the rights of the states, * * *" and he cited the adoption of the Tenth
Amendment to allay these apprehensions, in support of his contention
that the power to create corporations was reserved by that amendment to
the States.[4] Stressing the fact that this amendment, unlike the
cognate section of the Articles of Confederation, omitted the word
"expressly" as a qualification of the powers granted to the National
Government, Chief Justice Marshall declared that its effect was to leave
the question "whether the particular power which may become the subject
of contest has been delegated to the one government, or prohibited to
the other, to depend upon a fair construction of the whole
instrument."[5]
The Taxing Power
Not until after the Civil War was the idea that the reserved powers of
the States comprise an independent qualification of otherwise
constitutional acts of the Federal Government actually applied to
nullify, in part, an act of Congress. This result was first reached in a
tax case--Collector _v._ Day.[6] Holding that a national income tax, in
itself valid, could not be constitutionally levied upon the official
salaries of State officers, Justice Nelson made the sweeping statement
that "* * * the States within the limits of their powers not granted,
or, in the language of the Tenth Amendment, 'reserved,' are as
independent of the general government as that government within its
sphere is independent of the States."[7] In 1939, Collector _v._ Day was
expressly overruled.[8] Nevertheless, the problem of reconciling State
and national interests still confronts the Court occasionally, and was
elaborately considered in New York _v._ United States,[9] where, by a
vote of six-to-two, the Court upheld the right of the United States to
tax the sale of mineral waters taken from property owned by a State.
Speaking for four members of the Court, Chief Justice Stone justified
the tax on the ground that "The national taxing power would be unduly
curtailed if the State, by extending its activities, could withdraw from
it subjects of taxation traditionally within it."[10] Justices
Frankfurter and Rutledge found in the Tenth Amendment "* * * no
restriction upon Congress to include the States in levying a tax exacted
equally from private persons upon the same subject matter."[11] Justices
Douglas and Black dissented, saying: "If the power of the federal
government to tax the States is conceded, the reserved power of the
States guaranteed by the Tenth Amendment does not give them the
independence which they have always been assumed to have."[12]
The Commerce Power
A year before Collector _v._ Day was decided, the Court held invalid,
except as applied in the District of Columbia and other areas over which
Congress has exclusive authority, a federal statute penalizing the sale
of dangerous illuminating oils.[13] The Court did not refer to the Tenth
Amendment. Instead, it asserted that the "* * * express grant of power
to regulate commerce among the States has always been understood as
limited by its terms; and as a virtual denial of any power to interfere
with the internal trade and business of the separate States; except,
indeed, as a necessary and proper means for carrying into execution some
other power expressly granted or vested."[14] Similarly, in the
Employers' Liability Cases,[15] an act of Congress making every carrier
engaged in interstate commerce liable to "any" employee, including those
whose activities related solely to intrastate activities, for injuries
caused by negligence, was held unconstitutional by a closely divided
Court, without explicit reliance on the Tenth Amendment. Not until it
was confronted with the Child Labor Law, which prohibited the
transportation in interstate commerce of goods produced in
establishments in which child labor was employed, did the Court hold
that the State police power was an obstacle to adoption of a measure
which operated directly and immediately upon interstate commerce. In
Hammer _v._ Dagenhart,[16] five members of the Court found in the Tenth
Amendment a mandate to nullify this law as an unwarranted invasion of
the reserved powers of the States. This decision was expressly overruled
in United States _v._ Darby.[17]
During the twenty years following Hammer _v._ Dagenhart, a variety of
measures designed to regulate economic activities, directly or
indirectly, were held void on similar grounds. Excise taxes on the
profits of factories in which child labor was employed,[18] on the sale
of grain futures on markets which failed to comply with federal
regulations,[19] on the sale of coal produced by nonmembers of a coal
code established as a part of a federal regulatory scheme,[20] and a tax
on the processing of agricultural products, the proceeds of which were
paid to farmers who complied with production limitations imposed by the
Federal Government,[21] were all found to invade the reserved powers of
the States. In Schechter Poultry Corporation _v._ United States[22] the
Court, after holding that the commerce power did not extend to local
sales of poultry, cited the Tenth Amendment to refute the argument that
the existence of an economic emergency justified the exercise of what
Chief Justice Hughes called "extraconstitutional authority."[23]
In 1941 the Court came full circle in its exposition of this amendment.
Having returned to the position of John Marshall four years earlier when
it sustained the Social Security[24] and National Labor Relations
Acts,[25] it explicitly restated Marshall's thesis in upholding the Fair
Labor Standards Act in United States _v._ Darby.[26] Speaking for a
unanimous Court, Chief Justice Stone wrote: "The power of Congress over
interstate commerce 'is complete in itself, may be exercised to its
utmost extent, and acknowledges no limitations other than are prescribed
in the Constitution.' * * * That power can neither be enlarged nor
diminished by the exercise or non-exercise of state power. * * * It is
no objection to the assertion of the power to regulate interstate
commerce that its exercise is attended by the same incidents which
attend the exercise of the police power of the states. * * * Our
conclusion is unaffected by the Tenth Amendment which * * * states but a
truism that all is retained which has not been surrendered."[27]
Police Power
But even prior to 1937 not all measures taken to promote objectives
which had traditionally been regarded as the responsibilities of the
States had been held invalid. In Hamilton _v._ Kentucky Distilleries
Co.,[28] a unanimous Court, speaking by Justice Brandeis, upheld "War
Prohibition", saying: "That the United States lacks the police power,
and that this was reserved to the States by the Tenth Amendment, is
true. But it is none the less true that when the United States exerts
any of the powers conferred upon it by the Constitution, no valid
objection can be based upon the fact that such exercise may be attended
by the same incidents which attend the exercise by a State of its police
power."[29] And in a series of cases, which today seem irreconcilable
with Hammer _v._ Dagenhart, it sustained federal laws penalizing the
interstate transportation of lottery tickets,[30] of women for immoral
purposes,[31] of stolen automobiles,[32] and of tick-infested
cattle.[33] It affirmed the power of Congress to punish the forgery of
bills of lading purporting to cover interstate shipments of
merchandise,[34] to subject prison made goods moved from one State to
another to the laws of the receiving State,[35] and to regulate
prescriptions for the medicinal use of liquor as an appropriate measure
for the enforcement of the Eighteenth Amendment.[36] But while Congress
might thus prevent the use of the channels of interstate commerce to
frustrate State law, it could not itself, the Court held, undertake to
punish a violation of that law by discriminatory taxation; and in United
States _v._ Constantine,[37] a grossly disproportionate excise tax
imposed on retail liquor dealers carrying on business in violation of
local law was held unconstitutional.
State Activities and Instrumentalities
Today it is apparent that the Tenth Amendment does not shield the States
nor their political subdivisions from the impact of the authority
affirmatively granted to the Federal Government. It was cited to no
avail in Case _v._ Bowles,[38] where a State officer was enjoined from
selling timber on school lands at a price in excess of the maximum
prescribed by the Office of Price Administration. When California
violated the Federal Safety Appliance Act in the operation of the State
Belt Railroad as a common carrier in interstate commerce it was held
liable for the statutory penalty.[39] At the suit of the Attorney
General of the United States, the Sanitary District of Chicago was
enjoined from diverting water from Lake Michigan in excess of a
specified rate. On behalf of a unanimous court, Justice Holmes wrote:
"This is not a controversy among equals. The United States is asserting
its sovereign power to regulate commerce and to control the navigable
waters within its jurisdiction. * * * There is no question that this
power is superior to that of the States to provide for the welfare or
necessities of their inhabitants."[40] Some years earlier, in a suit
brought by Kansas to prevent Colorado from using the waters of the
Arkansas River for irrigation, the Attorney General of the United States
had unsuccessfully advanced the claim that the Federal Government had an
inherent legislative authority to deal with the matter. In a petition to
intervene in the suit he had taken the position, as summarized by the
Supreme Court, that "the National Government * * * has the right to make
such legislative provision as in its judgment is needful for the
reclamation of all these arid lands and for that purpose to appropriate
the accessible waters. * * * All legislative power must be vested in
either the state or the National Government; no legislative powers
belong to a state government other than those which affect solely the
internal affairs of that State; consequently all powers which are
national in their scope must be found vested in the Congress of the
United States."[41] The petition to intervene was dismissed on the
ground that the authority claimed for the Federal Government was
incompatible with the Tenth Amendment; but this could hardly happen
today.[42] Under its superior power of eminent domain, the United States
may condemn land owned by a State even where the taking will interfere
with the State's own project for water development and conservation.[43]
The rights reserved to the States are not invaded by a statute which
requires a reduction in the amount of a federal grant-in-aid of the
construction of highways upon failure of a State to remove from office a
member of the State Highway Commission found to have violated federal
law by participating in a political campaign.[44]
Federal legislation frequently has been challenged as an
unconstitutional interference with the prerogative of the States to
control the entities they create, but the attack has been successful
only once, in Hopkins Federal Savings and Loan Association _v._
Cleary.[45] There an act of Congress authorizing the conversion of State
building and loan associations without State consent was found to
contravene the Tenth Amendment. Thirty years earlier, in Northern
Securities Co. _v._ United States,[46] a closely divided Court had ruled
that this amendment was no barrier to the application of the Sherman
Antitrust Act to prevent one corporation from restraining commerce by
means of stock ownership in two competing corporations. It announced the
general proposition that: "No State can, by merely creating a
corporation, or in any other mode, project its authority into other
States, and across the continent, so as to prevent Congress from
exerting the power it possesses under the Constitution over interstate
and international commerce, or so as to exempt its corporation engaged
in interstate commerce from obedience to any rule lawfully established
by Congress for such commerce. It cannot be said that any State may give
a corporation, created under its laws, authority to restrain interstate
or international commerce against the will of the nation as lawfully
expressed by Congress. Every corporation created by a State is
necessarily subject to the supreme law of the land."[47] Even a charter
contract between a State and an intrastate railroad, limiting the rates
of the latter, is no barrier to enforcement of an order of the
Interstate Commerce Commission requiring an increase in local rates to
remove a discrimination against interstate commerce.[48] An order of the
Federal Power Commission prescribing the methods of keeping the accounts
of an electric company was sustained over the objection that it violated
the reserved right of the States under the Tenth Amendment.[49] A
similar objection to the levy of a special surtax on any corporation
formed or availed of to prevent the imposition of a surtax upon its
shareholders was rejected, since the taxing statute did not limit in any
way the power of the corporations to declare or withhold dividends as
permitted by State law.[50] Likewise, the Court held that the failure to
allow a credit against the undistributed profits tax for earnings which
could not be distributed under State law did not infringe the reserved
power of the State over its corporate offspring.[51]
Notes
[1] United States _v._ Sprague, 282 U.S. 716, 733 (1931).
[2] II Annals of Congress 1897 (1791).
[3] 4 Wheat. 316 (1819).
[4] Ibid. 372.
[5] Ibid. 406.
[6] 11 Wall. 113 (1871).
[7] Ibid. 124.
[8] Graves _v._ O'Keefe, 306 U.S. 466 (1939).
[9] 326 U.S. 572 (1946).
[10] Ibid. 589.
[11] Ibid. 584.
[12] Ibid. 595.
[13] United States _v._ Dewitt, 9 Wall. 41 (1870).
[14] Ibid. 44.
[15] 207 U.S. 463 (1908). _See also_ Keller _v._ United States, 213 U.S.
138 (1909).
[16] 247 U.S. 251 (1918).
[17] 312 U.S. 100, 116, 117 (1941).
[18] Bailey _v._ Drexel Furniture Co., 259 U.S. 20, 36, 38 (1922).
[19] Hill _v._ Wallace, 259 U.S. 44 (1922). _See also_ Trusler _v._
Crooks, 269 U.S. 475 (1926).
[20] Carter _v._ Carter Coal Co., 298 U.S. 238 (1936).
[21] United States _v._ Butler, 297 U.S. 1 (1936).
[22] 295 U.S. 495 (1935).
[23] Ibid. 529.
[24] Steward Machine Co. _v._ Davis, 301 U.S. 548 (1937); Helvering _v._
Davis, 301 U.S. 619 (1937).
[25] National Labor Relations Board _v._ Jones & Laughlin Steel Corp.,
301 U.S. 1 (1937).
[26] 312 U.S. 100 (1941). _See also_ United States _v._ Carolene
Products Co., 304 U.S. 144, 147 (1938); Case _v._ Bowles, 327 U.S. 92,
101 (1946).
[27] 312 U.S. 100, 114, 123, 124 (1941). _See also_ Fernandez _v._
Wiener, 326 U.S. 340, 362 (1945).
[28] 251 U.S. 146 (1919).
[29] Ibid. 156.
[30] Champion _v._ Ames, 188 U.S. 321 (1903).
[31] Hoke _v._ United States, 227 U.S. 308 (1913).
[32] Brooks _v._ United States, 267 U.S. 432 (1925).
[33] Thornton _v._ United States, 271 U.S. 414 (1926).
[34] United States _v._ Ferger, 250 U.S. 199 (1919).
[35] Kentucky Whip & Collar Co. _v._ Illinois C.R. Co., 299 U.S. 334
(1937).
[36] Everhard's Breweries _v._ Day, 265 U.S. 545 (1924).
[37] 296 U.S. 287 (1935). The Civil Rights Act of 1875, which made it a
crime for one person to deprive another of equal accommodations at inns,
theaters or public conveyances was found to exceed the powers conferred
on Congress by the Thirteenth and Fourteenth Amendments, and hence to be
an unlawful invasion of the powers reserved to the States by the
Tenth--Civil Rights Cases, 109 U.S. 3, 15 (1883).
[38] 327 U.S. 92, 102 (1946).
[39] United States _v._ California, 297 U.S. 175 (1936).
[40] Sanitary District of Chicago _v._ United States, 266 U.S. 405, 425,
426 (1925).
[41] Kansas _v._ Colorado, 206 U.S. 46, 87, 89 (1907).
[42] _See_ United States _v._ Appalachian Electric Power Co., 311 U.S.
377 (1940).
[43] Oklahoma _v._ Atkinson Co., 313 U.S. 508, 534 (1941).
[44] Oklahoma _v._ United States Civil Service Commission, 330 U.S. 127,
142-144 (1947).
[45] 296 U.S. 315 (1935).
[46] 193 U.S. 197 (1904).
[47] Ibid. 345, 346.
[48] New York _v._ United States, 257 U.S. 591 (1922).
[49] Northwestern Electric Co. _v._ Federal Power Commission, 321 U.S.
119 (1944). _See also_ Federal Power Commission _v._ East Ohio Gas
Company, 338 U.S. 404 (1950).
[50] Helvering _v._ National Grocery Co., 304 U.S. 282 (1938).
[51] Helvering _v._ Northwest Steel Mills, 311 U.S. 46 (1940).
AMENDMENT 11
SUITS AGAINST STATES
Page
Purpose and early interpretation 929
Expansion of state immunity 930
Suits against state officials: two categories 930
Mandamus proceedings 932
Early limitation on injunction proceedings 932
Injunction proceedings today: Ex parte Young 933
Tort action against state officials 934
Suits to recover taxes 935
Consent of State to be sued 935
Waiver of immunity 936
SUITS AGAINST STATES
Amendment 11
The Judicial power of the United States shall not be construed to extend
to any suit in law or equity, commenced or prosecuted against one of the
United States by Citizens of another State, or by Citizens or Subjects
of any Foreign State.
Purpose and Early Interpretation
The action of the Supreme Court in accepting jurisdiction of a suit
against a State by a citizen of another State in 1793, in Chisholm _v._
Georgia[1] provoked such angry reactions in Georgia and such anxieties
in other States that at the first meeting of Congress after this
decision what became the Eleventh Amendment was proposed by an
overwhelming vote and ratified with "vehement speed."[2] The earliest
decisions interpretative of the amendment were three by Chief Justice
Marshall. In Cohens _v._ Virginia,[3] speaking for the Court, he held
that the prosecution of a writ of error to review a judgment of a State
court, alleged to be in violation of the Constitution or laws of the
United States, "does not commence or prosecute a suit against the
State," but continues one commenced by the State. The contrary holding
would have virtually repealed the 25th Section of the Judiciary Act of
1789 (_see_ p. 554), and brought something like anarchy in its wake. In
Osborn _v._ Bank of the United States,[4] decided three years later, the
Court laid down two rules, one of which has survived and the other of
which was soon abandoned. The latter was the holding that a suit is not
one against a State unless the State is a party to the record.[5] This
rule the Court was forced to repudiate seven years later in Governor of
Georgia _v._ Madrazo,[6] in which it was conceded that the suit had been
brought against the governor solely in his official capacity and with
the design of forcing him to exercise his official powers. It is now a
well-settled rule that in determining whether a suit is prosecuted
against a State "the Court will look behind and through the nominal
parties on the record to ascertain who are the real parties to the
suit."[7] The other, more successful rule was that a State official
possesses no official capacity when acting illegally and hence can
derive no protection from an unconstitutional statute of a State.[8]
Expansion of State Immunity
Subsequent cases giving the amendment a restrictive effect are those
holding that counties and municipalities are suable in the federal
courts;[9] and that government corporations of the State are not immune
when suable under the law which created them.[10] Meantime other cases
have expanded the prohibitions of the amendment to include suits brought
against a State by its own citizens,[11] by a foreign state,[12] by a
federally chartered corporation,[13] or by a State as an agent of its
citizens to collect debts owed them by another State.[14] These rulings
are based on the premise expressed in Hans _v._ Louisiana[15] that the
amendment "actually reversed the decision" in Chisholm _v._ Georgia and,
as Chief Justice Hughes indicated in Monaco _v._ Mississippi,[16] had
the effect of prohibiting any suit against a State without its consent
except when brought by the United States[17] or another State.
Suits Against State Officials: Two Categories
Most of the cases involving the Eleventh Amendment and those creating
the greatest difficulties are suits brought against State officials.
Such suits are governed by the same rules and principles as pertain to
the immunity of the United States itself from suits,[18] with the result
that the rules of governmental immunity from suit generally are grounded
on decisions arising under both article III and the Eleventh Amendment
without distinction as to whether a suit is against the United States or
a State.[19] The line is not always easy to draw, nor are the cases
always strictly consistent. They do yield, however, to the formulation
of certain general rules. Thus, suits brought against State officials
acting either in excess of their statutory authority[20] or in pursuance
of an unconstitutional statute[21] are suits against the officer in his
individual capacity and therefore are not prohibited by the Eleventh
Amendment; and suits against an officer for the commission of a common
law tort alleged to be justified by a statute or administrative order of
the State belong to the same category.[22] On the other hand, suits
against the officers of a State involving what is conceded to be State
property or suits asking for relief which clearly call for the exercise
of official authority cannot be sustained.[23]
Mandamus Proceedings
Thus mandamus proceedings which seek "affirmative official action" on
the part of State officials as "the performance of an obligation which
belongs to the State in its political capacity"[24] are uniformly
regarded as suits against the State. This rule is well illustrated by
Louisiana ex rel. Elliott _v._ Jumel[25] where a holder of Louisiana
State bonds sought to compel the State treasurer to apply a sinking fund
that had been created under an earlier constitution for the payment of
the bonds to such purpose after a new constitution had abolished this
provision for retiring the bonds. The proceeding was held to be a suit
against the State because: "The relief asked will require the officers
against whom the process is issued to act contrary to the positive
orders of the supreme political power of the State, whose creatures they
are, and to which they are ultimately responsible in law for what they
do. They must use the public money in the treasury and under their
official control in one way, when the supreme power has directed them to
use it in another, and they must raise more money by taxation when the
same power has declared that it shall not be done."[26] However,
mandamus proceedings to compel a State official to perform a plain or
ministerial duty which admits of no discretion are not suits against the
State since the official is regarded as acting in his individual
capacity in failing to act according to law.[27]
Early Limitation on Injunction Proceedings
In spite of a dictum by Justice Bradley in the McComb Case that the
writs of mandamus and injunction are somewhat correlative to each other
in suits against State officials for illegal actions,[28] injunctions
against State officials to restrain the enforcement of an
unconstitutional statute or action in excess of statutory authority are
more readily obtainable. They constitute in fact the single largest
class of cases involving the issue of State immunity. Until Reagan _v._
Farmers' Loan and Trust Company[29] the Court maintained a distinction
between the duty imposed upon an official by the general laws of the
State and the duty imposed by a specific unconstitutional statute and
held that whereas an injunction would not lie to restrain a State
official from enforcing an act alleged to be unconstitutional in
pursuance of the general duties of his office, it would lie to restrain
him from performing special duties vested in him by an unconstitutional
statute.[30] The leading cases assertive of this distinction are Ex
parte Ayers and Fitts _v._ McGhee, decided respectively in 1887 and
1899.[31]
Injunction Proceedings Today: Ex parte Young
However, the distinction between injunction suits to restrain an
official from pursuing his general duties under the law and those to
restrain the performance of special duties under an unconstitutional
statute had been largely lost even before Fitts _v._ McGhee, in Reagan
_v._ Farmers' Loan and Trust Company[32] and Smyth _v._ Ames,[33] where
injunctions issued by the lower federal courts to restrain the
enforcement of railroad rate regulations were sustained even though the
officials against whom the suits were brought were acting under general
law. What remained of the distinction as a limitation upon suits against
State officials was dispelled by Ex parte Young,[34] which not only
sustained an injunction restraining State officials from exercising
their discretionary duties but also upheld the authority of the lower
court to enjoin the enforcement of the statute prior to a determination
of its unconstitutionality. While Ex parte Ayers and Fitts _v._
McGhee[35] were not overruled, the inevitable effect of the Young Case
was to abrogate the rule that a suit in equity against a State official
to enjoin discretionary action is a suit against the State, and to
convert the injunction into a device to test the validity of State
legislation in the federal courts prior to its interpretation in the
State courts and prior to any opportunity for State officials to put the
act into operation.[36]
But the earlier rule still crops up at times. Thus as recently as 1937,
Ex parte Ayers[37] was applied to the interpretation of the Federal
Interpleader Act,[38] so as to prevent taxpayers from enjoining tax
officials from collecting death taxes arising from the competing claims
of two States as being the last domicile of a decedent.[39] On the other
hand, the Eleventh Amendment was held not to be infringed by joinder of
a State court judge and receiver in an interpleader proceeding in which
the State had no interest and neither the judge nor the receiver was
enjoined by the final decree.[40]
Tort Actions Against State Officials
In tort actions against State officials the rule of United States _v._
Lee[41] has been substantially incorporated into the Eleventh Amendment.
In Tindal _v._ Wesley[42] the Lee Case was held to permit a suit by
claimants to real property in South Carolina which they had purchased
from the State sinking fund commission but which had been retaken by the
State because the purchaser insisted on paying for the property with
revenue bond scrip issued by the State. In other cases the Court had
held that the immunity of a State from suit does not extend to actions
against State officials for damages arising out of willful and negligent
disregard of State laws.[43]
Suits to Recover Taxes
Recent decisions, however, have rendered suits against State officials
to recover taxes increasingly difficult to maintain. Although the Court
long ago held that the sovereign immunity of the State prevented a suit
to recover money in the general treasury,[44] it also held that a suit
would lie against a revenue officer to recover tax moneys illegally
collected and still in his possession.[45] Beginning, however, with
Great Northern Life Insurance Co. _v._ Read[46] in 1944 the Court has
held that this kind of suit cannot be maintained unless the State
expressly consents to suits in the federal courts. In this case the
State statute provided for the payment of taxes under protest and for
suits afterwards against State tax collection officials for the recovery
of taxes illegally collected. The act also provided for the segregation
by the collector of taxes paid under protest. The Read Case has been
followed in two more recent cases[47] involving a similar state of
facts, with the result that the rule once permitting such suits to
recover taxes from a segregated fund has been distinguished away.
Consent of State to be Sued
Although _dicta_ in some cases suggested that once a State consented
generally to be sued in a court of competent jurisdiction,[48] suits
could be maintained against it in the federal courts, later decisions
involving statutory provisions for the payment of taxes under protest
followed by a suit in a court of competent jurisdiction to recover do
not authorize suits in the federal courts. These rulings are based on
the assumption that when the court is dealing "with the sovereign
exemption from judicial interference in the vital field of financial
administration a clear declaration of the State's intention to submit
its fiscal problems to other courts than those of its own creation must
be found."[49] Long before these decisions it had been settled that a
State could confine to its own courts suits against it to recover
taxes.[50] Thus the questions involved in the cases laying down the
above rule concerned only the lack of an express consent to suit in the
federal courts.
Waiver of Immunity
The immunity of a State from suit is a privilege which it may waive at
pleasure by voluntary submission to suit,[51] as distinguished from
appearing in a similar suit to defend its officials,[52] and by general
law specifically consenting to suit in the federal courts. Such consent
must be clear and specific and consent to suit in its own courts does
not imply a waiver of immunity in the federal courts.[53] It follows,
therefore, that in consenting to be sued, the States, like the National
Government, may attach such conditions to suit as they deem fit.
Notes
[1] 2 Dall. 419 (1793).
[2] Justice Frankfurter dissenting in Larson _v._ Domestic & Foreign
Corp., 337 U.S. 682, 708 (1949).
[3] 6 Wheat. 264, 411-412 (1821).
[4] 9 Wheat. 738 (1824).
[5] Ibid. 850-858.
[6] 1 Pet. 110 (1828).
[7] Ex parte Ayers, 123 U.S. 443, 487 (1887).
[8] Osborn _v._ Bank of the United States, 9 Wheat. at 858, 859, 868.
[9] Lincoln County _v._ Luning, 133 U.S. 529 (1890).
[10] Hopkins _v._ Clemson Agricultural College, 221 U.S. 636 (1911).
_See also_ Bank of the United States _v._ Planters' Bank of Georgia, 9
Wheat. 904 (1824), where a State bank was held liable to suit although
the State owned a portion of its stock, and Briscoe _v._ Bank of
Kentucky, 11 Pet. 257 (1837), and Bank of Kentucky _v._ Wister, 2 Pet.
318 (1829), where the State bank was held liable to suit even though the
State owned all of the stock. Compare, however, Murray _v._ Wilson
Distilling Co., 213 U.S. 151 (1909), which held that a State in engaging
in the retail liquor business does not surrender its immunity to suit
for transaction of a nongovernmental nature. Here the State conducted
the business directly rather than through the medium of a corporation.
[11] Hans _v._ Louisiana, 134 U.S. 1 (1890); Fitts _v._ McGhee, 172 U.S.
516, 524 (1899); Duhne _v._ New Jersey, 251 U.S. 311, 313 (1920); Ex
parte New York, 256 U.S. 490 (1921).
[12] Monaco _v._ Mississippi, 292 U.S. 313, 329 (1934).