[101] United Surety Co. _v._ American Fruit Product Co., 238 U.S. 140

(1915).

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

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

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

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

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

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

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

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

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

[111] Opp Cotton Mills _v._ Administrator, 312 U.S. 126, 152, 153

(1941).

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

[113] Ibid. 521.

[114] Consolidated Edison Co. _v._ National Labor Relations Board, 305

U.S. 197 (1938).

[115] Central of Georgia R. Co. _v._ Wright, 207 U.S. 127, 136, 138, 142

(1907); Lipke _v._ Lederer, 259 U.S. 557, 562 (1922).

[116] Phillips _v._ Comr. of Internal Revenue, 283 U.S. 589 (1931).

_Cf._ Springer _v._ United States, 102 U.S. 586, 593 (1881); and

Passavant _v._ United States, 148 U.S. 214 (1893).

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

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

[119] National Labor Relations Board _v._ Mackay Co., 304 U.S. 333,

349-350 (1938).

[120] Western Paper Makers' Chemical Co. _v._ United States, 271 U.S.

268 (1926). _See also_ United States _v._ Abilene & S.R. Co., 265 U.S.

274, 288 (1924).

[121] Consolidated Edison Co. _v._ National Labor Relations Board, 305

U.S. 197, 229-230 (1938).

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

[123] Federal Communications Commission _v._ WJR, 337 U.S. 265, 274-277

(1949).

[124] Ibid. 276. "The requirements imposed by the guaranty [of due

process of law] are not technical, nor is any particular form of

procedure necessary." Inland Empire Council _v._ Millis, 325 U.S. 697,

710 (1945). _See_ Administrative Procedure Act, 60 Stat. 237 (1946); 5

U.S.C. Sec. 1001-1011.

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

[126] Ibid. 51-54. Justices Brandeis, Stone and Cardozo, while

concurring in the result, took exception to this proposition.

[127] Federal Power Commission _v._ Natural Gas Pipeline Co., 315 U.S.

575, 586 (1942); Federal Power Commission _v._ Hope Natural Gas Co., 320

U.S. 591 (1944).

[128] Federal Power Commission _v._ Hope Natural Gas Co., 320 U.S. 591,

602 (1944).

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

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

[131] Ibid. 111.

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

[133] United States _v._ Ju Toy, 198 U.S. 253, 263 (1905). _See also_

Yamataya _v._ Fisher, 189 U.S. 86, 100 (1903). _Cf._ United States ex

rel. Knauff _v._ Shaughnessy, 338 U.S. 537 (1950).

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

[135] Kwock Jan Fat _v._ White, 253 U.S. 454, 457 (1920). _See also_

Chin Yow _v._ United States, 208 U.S. 8 (1908).

[136] United States _v._ Sing Tuck, 194 U.S. 161 (1904). _See also_ Quon

Quon Poy _v._ Johnson, 273 U.S. 352, 358 (1927).

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

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

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

[140] United States ex rel. Vajtauer _v._ Comr. of Immigration, 273 U.S.

103, 106 (1927). _See also_ Mahler _v._ Eby, 264 U.S. 32, 41 (1924).

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

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

[143] Ludecke _v._ Watkins, 335 U.S. 160 (1948). Three of the four

dissenting Justices, Justices Douglas, Murphy and Rutledge, argued that

even an enemy alien could not be deported without a fair hearing.

[144] Steward Machine Co. _v._ Davis, 301 U.S. 548, 584-585 (1937);

Currin _v._ Wallace, 306 U.S. 1, 14 (1939); Sunshine Anthracite Coal Co.

_v._ Adkins, 310 U.S. 381, 401 (1940); Detroit Bank _v._ United States,

317 U.S. 329, 337, 338 (1943).

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

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

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

[148] United States _v._ Rock Royal Co-operative, 307 U.S. 533, 562, 565

(1939).

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

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

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

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

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

[154] Ibid. 198, 199.

[155] Ibid. 208, 209. _Cf._ the following sentence from the concurring

opinion of Justice Jackson in Railway Express Agency, Inc. _v._ New

York, 336 U.S. 106, 112 (1949): "I regard it as a salutary doctrine that

cities, states and the Federal Government must exercise their powers so

as not to discriminate between their inhabitants except upon some

reasonable differentiation fairly related to the object of regulation."

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

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

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

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

[160] Addyston Pipe and Steel Co. _v._ United States, 175 U.S. 211, 229

(1899).

[161] Baltimore & O.R. Co. _v._ Interstate Commerce Commission, 221 U.S.

612 (1911); Wilson _v._ New, 243 U.S. 322 (1917); Ellis _v._ United

States, 206 U.S. 246 (1907). _See also_ United States _v._ Garbish, 222

U.S. 257 (1911).

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

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

[164] Texas & N.O.R. Co. _v._ Brotherhood of Railway & S.S. Clerks, 281

U.S. 548 (1930); Virginian R. Co. _v._ System Federation, 300 U.S. 515,

559 (1937); National Labor Relations Board _v._ Jones & Laughlin Steel

Corp., 301 U.S. 1 (1937).

[165] Highland _v._ Russell Car & Snow Plow Co., 279 U.S. 253, 261

(1929); United States _v._ Rock Royal Co-operative, 307 U.S. 533 (1939);

Sunshine Anthracite Coal Co. _v._ Adkins, 310 U.S. 381 (1940); Bowles

_v._ Willingham, 321 U.S. 503 (1944).

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

[182] Frisbie _v._ United States, 157 U.S. 160 (1895); _see also_

Margolin _v._ United States, 269 U.S. 93 (1925); Hines _v._ Lowrey, 305

U.S. 85 (1938).

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

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

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

[186] Lynch _v._ United States, 292 U.S. 571, 579 (1934). _See also_

Perry _v._ United States, 294 U.S. 330 (1935).

[187] Louisville Joint Stock Land Bank _v._ Radford, 295 U.S. 555

(1935).

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

[189] Continental Illinois Nat. Bank & Trust Co. _v._ Chicago R.I. &

P.R. Co., 294 U.S. 648 (1935).

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

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

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

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

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

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

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

[197] United States _v._ New York & C. Mail S.S. Co., 269 U.S. 304

(1925).

[198] United States _v._ Carolene Products Co., 304 U.S. 144 (1938);

Carolene Products Co. _v._ United States, 323 U.S. 18 (1944).

[199] Kentucky Whip Collar Co. _v._ Illinois C.R. Co., 299 U.S. 334

(1937).

[200] Virginian R. Co. _v._ System Federation, 300 U.S. 515, 559 (1937);

National Labor Relations Board _v._ Jones & Laughlin Steel Corp., 301

U.S. 1 (1937).

[201] National Labor Relations Board _v._ Stowe Spinning Co., 336 U.S.

226 (1949).

[202] National Labor Relations Board _v._ Mackay Co., 304 U.S. 333

(1938).

[203] Woods _v._ Miller, 333 U.S. 138, 146 (1948). _See also_ Bowles

_v._ Willingham, 321 U.S. 503 (1944).

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

[205] Public Clearing House _v._ Coyne, 194 U.S. 497 (1904); sustained

in Donaldson _v._ Read Magazine, 333 U.S. 178 (1948).

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

[207] American School of Magnetic Healing _v._ McAnnulty, 187 U.S. 94

(1902).

[208] United States ex rel. Milwaukee Social Democratic Pub. Co. _v._

Burleson, 255 U.S. 407 (1921).

[209] St. Joseph Stock Yards Co. _v._ United States, 298 U.S. 38 (1936);

Denver Union Stock Yards Co. _v._ United States, 304 U.S. 470 (1938).

[210] 320 U.S. 591 (1944). The result of this case had been foreshadowed

by the opinion of Justice Stone in Federal Power Commission _v._ Natural

Gas Pipeline Co., 315 U.S. 575, 586 (1942) to the effect that the

Commission was not bound to the use of any single formula or combination

of formulas in determining rates.

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

[212] American Telephone & Telegraph Co. _v._ United States, 299 U.S.

232 (1936); United States _v._ New York Telephone Co., 326 U.S. 638

(1946); Northwestern Electric Co. _v._ Federal Power Commission, 321

U.S. 119 (1944).

[213] Valvoline Oil Co. _v._ United States, 308 U.S. 141 (1939);

Champlin Refining Co. _v._ United States, 329 U.S. 29 (1946).

[214] Isbrandtsen-Moller Co. _v._ United States, 300 U.S. 139, 146

(1937).

[215] St. Louis S.W. Ry. Co. _v._ United States, 245 U.S. 136, 143

(1917).

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

[217] Dayton-Goose Creek R. Co. _v._ United States, 263 U.S. 456, 481,

483 (1924).

[218] Chicago, I. & L.R. Co. _v._ United States, 270 U.S. 287 (1926).

_Cf._ Seaboard Air Line R. Co. _v._ United States, 254 U.S. 57 (1920).

[219] United States _v._ Berwind-White Coal Mine Co., 274 U.S. 564, 575

(1927).

[220] United States ex rel. Attorney General _v._ Delaware & Hudson Co.,

213 U.S. 366, 405, 411, 415 (1909).

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

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

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

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

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

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

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

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

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

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

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

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

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

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

_v._ Davis, 301 U.S. 619 (1937).

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

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

[237] Alaska Fish Salting & By-Products Co. _v._ Smith, 255 U.S. 44

(1921).

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

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

[240] Fernandez _v._ Wiener, 326 U.S. 340 (1945); _cf._ Coolidge _v._

Long, 282 U.S. 582 (1931).

[241] Untermeyer _v._ Anderson, 276 U.S. 440 (1928). _See also_ Blodgett

_v._ Holden, 275 U.S. 142 (1927); Nichols _v._ Coolidge, 274 U.S. 531

(1927).

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

[243] United States _v._ Hudson, 299 U.S. 498 (1937). _See also_

Stockdale _v._ Insurance Companies, 20 Wall. 323, 331, 341 (1874);

Brushaber _v._ Union Pac. R.R., 240 U.S. 1, 20 (1916); Lynch _v._

Hornby, 247 U.S. 339, 343 (1918).

[244] Cooper _v._ United States, 280 U.S. 409 (1930); _see also_

Reinecke _v._ Smith, 289 U.S. 172 (1933).

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

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

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

[248] Tyler _v._ United States, 281 U.S. 497 (1930); United States _v._

Jacobs, 306 U.S. 363 (1939).

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

[250] Tiger _v._ Western Investment Co., 221 U.S. 286 (1911). _See also_

Brader _v._ James, 246 U.S. 88 (1918); Williams _v._ Johnson, 239 U.S.

414 (1915); Lone Wolf _v._. Hitchcock, 187 U.S. 553 (1903).

[251] Choate _v._ Trapp, 224 U.S. 665 (1912). _See also_ English _v._

Richardson, 224 U.S. 680 (1912).

[252] Garfield _v._ United States, 211 U.S. 249 (1908). _See also_

United States ex rel. Turner _v._ Fisher, 222 U.S. 204 (1911).

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

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

[255] Walker _v._ McLoud, 204 U.S. 302, 309 (1907); Carpenter _v._ Shaw,

280 U.S. 363 (1930).

[256] United States _v._ Jones, 109 U.S. 513, 518 (1883); United States

_v._ Carmack, 329 U.S. 230, 241 (1946).

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

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

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

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

[261] United States _v._ Chemical Foundation, 272 U.S. 1, 11 (1926).

_See also_ Brown _v._ U.S., 8 Cr. 110 (1814); Page (Miller) _v._ United

States, 11 Wall. 268, 304 (1871); Woodson _v._ Deutsche G. & S.S.V.

Roessler, 292 U.S. 449 (1934); United States _v._ Dunnington, 146 U.S.

338 (1892); Cummings _v._ Deutsche Bank, 300 U.S. 115 (1937).

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

[263] Silesian-American Corp. _v._ Clark, 332 U.S. 469 (1947); Becker

Steel Co. _v._ Cummings, 296 U.S. 74 (1935).

[264] Russian Volunteer Fleet _v._ United States, 282 U.S. 481 (1931),

followed in Guessefeldt _v._ McGrath, 342 U.S. 308 (1952).

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

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

[267] Ibid. 551.

[268] Ibid. 556-557; citing United States _v._ Gettysburg Electric R.

Co., 160 U.S. 668, 680 (1896); Rindge Co. _v._ Los Angeles County, 262

U.S. 700, 709 (1923); Old Dominion Land Co. _v._ United States, 269 U.S.

55, 66 (1925); Cincinnati _v._ Vester, 281 U.S. 439, 446 (1930).

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

[270] United States _v._ Gettysburg Electric R. Co., 160 U.S. 668

(1896).

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

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

[273] James _v._ Campbell, 104 U.S. 356, 358 (1882). _See also_

Hollister _v._ Benedict & B. Mfg. Co., 113 U.S. 59, 67 (1885).

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

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

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

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

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

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

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

[281] Ibid. 748.

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

[283] Portsmouth Harbor Land & Hotel Co. _v._ United States, 260 U.S.

327 (1922). _Cf._ Portsmouth Harbor Land & Hotel Co. _v._ United States,

250 U.S. 1 (1919); Peabody _v._ United States, 231 U.S. 530 (1913).

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

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

[286] 10 Wall. 557 (1871).

[287] Ibid. 563.

[288] United States _v._ Appalachian Electric Power Co., 311 U.S. 377,

407, 409 (1940).

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

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

[291] Lewis Blue Point Oyster Cultivation Co. _v._ Briggs, 229 U.S. 82

(1913).

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

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

[294] United States _v._ Appalachian Electric Power Co., 311 U.S. 377,

427 (1940).

[295] United States _v._ Lynah, 188 U.S. 445 (1903). _See also_ Jacobs

_v._ United States, 290 U.S. 13 (1933).

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

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

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

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

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

[301] Bauman _v._ Ross, 167 U.S. 548 (1897); Sharp _v._ United States,

191 U.S. 341, 351-352, 354 (1903).

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

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

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

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

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

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

[308] United States ex rel. T.V.A. _v._ Powelson, 319 U.S. 266, 281

(1943); United States _v._ Miller, 317 U.S. 369, 375 (1943).

[309] United States ex rel. T.V.A. _v._ Powelson, 319 U.S. 266, 275

(1943); United States _v._ New River Collieries Co., 262 U.S. 341

(1923).

[310] United States _v._ Miller, 317 U.S. 369, 374 (1943). _See also_

Olson _v._ United States, 292 U.S. 246 (1934). _Cf._ Kimball Laundry Co.

_v._ United States, 338 U.S. 1 (1949).

[311] Boom Co. _v._ Patterson, 98 U.S. 403 (1879); McCandless _v._

United States, 298 U.S. 342 (1936).

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

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

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

[315] United States _v._ Cors, 337 U.S. 325, 333 (1949). In United

States _v._ Toronto Nav Co., 338 U.S. 396 (1949) the Court reversed a

decision of the Court of Claims which based an award for an obsolete

Great Lakes car ferry in part on a capitalization of its prior earnings,

and in part on isolated sales of similar vessels used between Florida

and Cuba.

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

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

[318] Ibid. 382-384.

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

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

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

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

[323] United States _v._ Klamath Indians, 304 U.S. 119, 123 (1938);

Jacobs _v._ United States, 290 U.S. 13, 17 (1933).

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

[325] Henkels _v._ Sutherland, 271 U.S. 298 (1926). _See also_ Phelps

_v._ United States, 274 U.S. 341 (1927).

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

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

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

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

[330] Jacobs _v._ United States, 290 U.S. 13 (1933); United States _v._

Great Falls Mfg. Co., 112 U.S. 645 (1884).

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

[332] Cherokee Nation _v._ Southern Kansas R. Co., 135 U.S. 641, 659

(1890).

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

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

AMENDMENT 6

RIGHTS OF ACCUSED IN CRIMINAL PROSECUTIONS

Page

Coverage of the amendment 877

Offenses against the United States 877

Trial by jury 878

Impartial jury 879

Place of trial 880

Definition of crime 881

Right of confrontation 884

Assistance of counsel 884

RIGHTS OF ACCUSED IN CRIMINAL PROSECUTIONS

Amendment 6

In all criminal prosecutions, the accused shall enjoy the right to a

speedy and public trial, by an impartial jury of the State and district

wherein the crime shall have been committed, which district shall have

been previously ascertained by law, and to be informed of the nature and

cause of the accusation; to be confronted with the witnesses against

him; to have compulsory process for obtaining witnesses in his favor,

and to have the Assistance of Counsel for his defense.

Coverage of the Amendment

Criminal prosecutions in the District of Columbia[1] and in incorporated

territories[2] must conform to this amendment, but those in

unincorporated territories need not.[3] For this purpose, Alaska was

held to be an incorporated territory even before the organization of its

territorial government.[4] In in re Ross[5] the requirements of this

amendment were held to cover only citizens and others within the United

States or who are brought to the United States for trial for alleged

offenses committed elsewhere, not to citizens residing or temporarily

sojourning abroad.[6] Accordingly, laws passed to carry into effect

treaties granting extraterritorial rights were not rendered

unconstitutional by the fact that they did not secure to an accused the

right to trial by jury.

Offenses Against the United States

There are no common law offenses against the United States. Only those

acts which Congress has forbidden, with penalties for disobedience of

its command, are crimes.[7] As used in the Constitution the word

"crime" embraces only offenses of a serious character. Petty offenses

may be proceeded against summarily in any tribunal legally constituted

for that purpose.[8] The nature of the act and the severity of

punishment prescribed determine whether an offense is serious or petty.

A penalty of $50 for a violation, not necessarily involving moral

delinquency, of a revenue statute indicates only a petty offense.[9] The

unlawful sale of the unused portion of railway excursion tickets without

a license, is at most an infringement of local police regulations; and

its moral quality is relatively inoffensive; it may therefore be tried

without a jury.[10] But a charge of driving an automobile recklessly, so

as to endanger life and property, is a "grave offense" for which a jury

trial is requisite.[11] A conspiracy to invade the rights of another

person also falls in that category.[12]

Actions to recover penalties imposed by act of Congress,[13] deportation

proceedings[14] and contempt proceedings[15] for violation of an

injunction have been held not to be criminal prosecutions. Only a

prosecution which is technically criminal in its nature falls within the

purview of Amendment VI.[16] The concept of a criminal prosecution is

much narrower than that of a "criminal case" under the Fifth

Amendment.[17]

Trial by Jury

The trial by jury required by the Constitution includes all the

essential elements of jury trial which were recognized in this country

and in England when the Constitution was adopted;[18] a jury must

consist of twelve men, neither more nor less;[19] the trial must be held

in the presence and under the superintendence of a judge having power to

instruct the jurors as to the law and advise them in respect of the

facts,[20] and the verdict must be unanimous.[21] But the requirement of

a jury trial is not jurisdictional; it is a privilege which the

defendant may waive with the consent of the Government and the approval

of the court. There is no distinction between a complete waiver of a

jury and a consent to be tried by less than twelve men.[22] When a

person is charged with more than one crime, the right to a speedy trial

does not require that he be first tried on the earliest indictment; no

constitutional right is violated by removing him to another jurisdiction

for trial on a later indictment.[23]

Impartial Jury

"* * *, the guarantee of an impartial jury to the accused in a criminal

prosecution, * * *, secures to him the right to enjoy that mode of trial

from the first moment, and in whatever court, he is put on trial for the

offense charged. * * * To accord to the accused a right to be tried by a

jury, in an appellate court, after he has been once fully tried

otherwise than by a jury, in the court of original jurisdiction, and

sentenced to pay a fine or be imprisoned for not paying it, does not

satisfy the requirements of the Constitution."[24]

The qualification of government employees to serve on juries in the

District of Columbia has been the principal source of controversy

concerning the meaning of the phrase "impartial jury." In 1909, the

Supreme Court decided, on common law grounds, that such employees were

disqualified in criminal proceedings instituted by the Government.[25]

As the proportion of public to private employees increased, this

decision created difficulties in securing properly qualified jurors. To

meet the situation, Congress removed the disqualification by statute in

1935. In United States _v._ Wood,[26] the act was held valid as applied

in a criminal prosecution for theft from a private corporation. By a

narrow majority the Court has subsequently held that government

employees as a class are not disqualified by an implied bias against a

person accused of violating the federal narcotics statutes,[27] nor

against an officer of the Communist party charged with willful failure

to appear before a Congressional committee in compliance with a

subpoena.[28] In both cases, the way was left open for a defendant to

establish the disqualification of federal employees by adducing proof of

actual bias.

The Constitution does not require Congress to allow peremptory

challenge to jurors in criminal cases. Consequently the contention that

several defendants being tried together on a charge of conspiracy were

denied a trial by an impartial jury because each was not allowed the

full statutory number of peremptory challenges was without merit.[29] It

is good ground for challenge for cause that a juror has formed an

opinion as to the issue to be tried. But every opinion which a juror may

entertain does not necessarily disqualify him. Upon the trial of the

issue of fact raised by such a challenge, the Court must determine

whether the nature and strength of the opinion are such as in law

necessary to raise the presumption of partiality.[30] A member of the

Socialist party is not denied any constitutional right by being tried by

a jury composed exclusively of members of other parties and of property

owners.[31]

Place of Trial

An accused cannot be tried in one district under an indictment showing

that the offense was committed in another;[32] the locality in which the

offense is charged to have been committed determines the place and court

of trial.[33] In a prosecution for conspiracy, the accused may be tried

in any State and district where an overt act was performed.[34] Where a

United States Senator was indicted for agreeing to receive compensation

for services to be rendered in a proceeding before a government

department, and it appeared that a tentative arrangement for such

services was made in Illinois and confirmed in St. Louis, the defendant

was properly tried in St. Louis, although he was not physically present

in Missouri when notice of ratification was dispatched.[35] The offense

of obtaining transportation of property in interstate commerce at less

than the carrier's published rates,[36] or the sending of excluded

matter through the mails,[37] may be made triable in any district

through which the forbidden transportation is conducted. By virtue of a

presumption that a letter is delivered in the district to which it is

addressed, the offense of scheming to defraud a corporation by mail was

held to have been committed in that district although the letter was

posted elsewhere.[38] The Constitution does not require any preliminary

hearing before issuance of a warrant for removal of an accused to the

court having jurisdiction of the charge.[39] The assignment of a

district judge from one district to another, conformably to statute,

does not create a new judicial district whose boundaries are undefined

nor subject the accused to trial in a district not established when the

offense with which he is charged was committed.[40] For offenses against

federal laws not committed within any State, Congress has the sole power

to prescribe the place of trial; such an offense is not local and may be

tried at such place as Congress may designate.[41] The place of trial

may be designated by statute after the offense has been committed.[42]

Definition of Crime

The effect of the clause entitling an accused to know the nature and

cause of the accusation against him commences with the statutes fixing

or declaring offenses. It adopts the general rule of the common law that

such statutes are not to be construed to embrace offenses which are not

within their intention and terms. Under this clause it is necessary that

a crime "be in some way declared by the legislative power"; it "cannot

be constructed by the courts from any supposed intention of the

legislature which the statute fails to state."[43] A criminal statute

which is so vague that it leaves the standard of guilt to the "variant

views of the different courts and juries which may be called on to

enforce it"[44] cannot be squared with this provision. Thus it was held,

in the United States v. Cohen Grocery Co.,[45] that a statute making it

unlawful "for any person willfully * * * to make any unjust or

unreasonable rate or charge in handling or dealing in or with any

necessaries" was unconstitutional because it was not "adequate to inform

persons accused of violation thereof of the nature and cause of the

accusation against them."[46] But a provision of the Immigration Act[47]

which makes it a felony for an alien against whom a specified order of

deportation is pending to "willfully fail or refuse to make timely

application in good faith for travel or other documents necessary to his

departure" is not, on its face, void for indefiniteness.[48]

An important aspect of this problem was presented, but not definitely

settled, in Screws _v._ United States.[49] There State law enforcement

officers had been convicted of violating a federal law making it a crime

for anyone acting under color of any law willfully to deprive anyone of

rights secured by the Constitution of the United States.[50] The

indictment charged that in beating to death a man whom they had just

arrested, these officers had deprived him of life without due process of

law. The defendant claimed that the statute was unconstitutional insofar

as it made criminal acts in violation of the due process clause, because

that concept was too vague to supply an ascertainable standard of

guilt.[51] Four opinions were written in the Supreme Court, no one of

which obtained the concurrence of a majority of the Justices. To "avoid

grave constitutional questions" four members construed the word

"willfully" as "connoting a purpose to deprive a person of a specific

constitutional right,"[52] and held that such "requirement of a specific

intent to deprive a person of a federal right made definite by decision

or other rule of law saves the Act from any charge of

unconstitutionality on the grounds of vagueness."[53] Justices Murphy

and Rutledge considered the statute to be sufficiently definite with

respect to the offense charged and thought it unnecessary to anticipate

doubts that might arise in other cases.[54] However, to prevent a

stalemate, Justice Rutledge voted with the four members who believed the

case should be reversed to be tried again on their narrower

interpretation of the statute. Justices Roberts, Frankfurter and Jackson

found the act too indefinite to be rescued by a restrictive

interpretation. With respect to the effect of the requirement of

willfulness, they said: "If a statute does not satisfy the due-process

requirement of giving decent advance notice of what it is which, if

happening, will be visited with punishment, so that men may presumably

have an opportunity to avoid the happening * * *, then 'willfully'

bringing to pass such an undefined and too uncertain event cannot make

it sufficiently definite and ascertainable. 'Willfully' doing something

that is forbidden, when that something is not sufficiently defined

according to the general conceptions of requisite certainty in our

criminal law, is not rendered sufficiently definite by that unknowable

having been done 'willfully.' It is true also of a statute that it

cannot lift itself up by its bootstraps."[55] In Williams _v._ United

States,[56] however, it was held by a sharply divided Court that Sec. 20

did not err for vagueness where the indictment made it clear that the

constitutional right violated by the defendant was immunity from the use

of force and violence to obtain a confession, and this meaning was also

made clear by the trial judge's charge to the jury.[57]

Statutes prohibiting the coercion of employers to hire unneeded

employees,[58] establishing minimum wages and maximum hours of service

for persons engaged in the production of goods for interstate

commerce,[59] forbidding undue or unreasonable restraints of trade,[60]

making it unlawful to build fires near any forest or inflammable

material,[61] banning the receipt of contributions by members of

Congress from federal employees for any political purpose,[62] or

penalizing the copying or taking of documents connected with the

national defense, with intent, or reason to believe that they are to be

used to the injury of the United States or to the advantage of a foreign

nation,[63] have been held to be sufficiently definite to be

constitutional. A provision penalizing excessive charges in connection

with loans from the Home Owners Loan Corporation was not rendered

indefinite by the exception of "ordinary fees for services actually

rendered,"[64] nor was a statute forbidding misstatement of the quantity

of the contents of a package wanting in certainty by reason of a proviso

permitting "reasonable variations."[65]

The constitutional right to be informed of the nature and cause of the

accusation entitles the defendant to insist that the indictment apprise

him of the crime charged with such reasonable certainty that he can make

his defense and protect himself after judgment against another

prosecution on the same charge.[66] No indictment is sufficient if it

does not allege all of the ingredients which constitute the crime. Where

the language of a statute is, according to the natural import of the

words, fully descriptive of the offense, it is sufficient if the

indictment follows the statutory phraseology;[67] but where the elements

of the crime have to be ascertained by reference to the common law or to

other statutes, it is not sufficient to set forth the offense in the

words of the statute; the facts necessary to bring the case within the

statutory definition must also be alleged.[68] If an offense cannot be

accurately and clearly described without an allegation that the accused

is not within an exception contained in the statutes, an indictment

which does not contain such allegation is defective.[69] Despite the

omission of obscene particulars, an indictment in general language is

good if the unlawful conduct is so described so as reasonably to inform

the accused of the nature of the charge sought to be established against

him.[70] The Constitution does not require the Government to furnish a

copy of the indictment to an accused.[71]

Right of Confrontation

The right of confrontation did not originate in the Sixth Amendment; it

was a common law right having recognized exceptions. The purpose of the

constitutional provision was to preserve that right, but not to broaden

it or wipe out the exceptions.[72] The amendment does not accord a right

to be apprised of the names of witnesses who appeared before a grand

jury.[73] It does not preclude the admission of dying declarations,[74]

nor of the stenographic report of testimony given at a former trial by a

witness since deceased.[75] An accused who is instrumental in concealing

a witness cannot complain of the admission of evidence to prove what

that witness testified at a former trial on a different indictment.[76]

If the absence of the witness is chargeable to the negligence of the

prosecution, rather than to the procurement of the accused, evidence

given in a preliminary hearing before a United States Commissioner

cannot be used at the trial.[77] A statute which declared that the

judgment of conviction against the principal felons should be conclusive

evidence, in a prosecution against persons to whom they had transferred

property, that the property had been stolen or embezzled from the United

States, was held to contravene this clause.[78]

Assistance of Counsel

The Sixth Amendment withholds from the federal courts, in all criminal

proceedings, the power to deprive an accused of his life or liberty

unless he has waived, or waives, the assistance of counsel.[79] Since

deportation proceedings are not criminal in character, the admission of

testimony given by the alien during investigation prior to arrest did

not render the hearing unfair, despite the fact that he had not been

advised of his right to have counsel or to decline to answer questions

as to his alienage.[80] The right to counsel is violated where, over the

defendant's objection, the court requires his counsel to represent a

co-defendant whose interest may possibly conflict with his;[81] likewise

where the trial judge decided, without notice to a defendant and without

his presence, that the latter had consented to be represented by counsel

who also represented another defendant in the same case.[82] The right

may be waived by a defendant whose education qualifies him to make an

intelligent choice.[83] A sentence imposed upon a plea of guilty is

invalid if such plea was entered through deception or coercion of the

prosecuting attorney, or in reliance upon erroneous advice given by a

lawyer in the employ of the Government, where the defendant did not have

the assistance of counsel and had not understandingly waived the right

to such assistance.[84]

Notes

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

[2] Reynolds _v._ United States, 98 U.S. 145 (1879). _See also_ Lovato

_v._ New Mexico, 242 U.S. 199 (1916).

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

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

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

[6] Ibid. 464.

[7] United States _v._ Hudson & Goodwin, 7 Cr. 32, 33 (1812); United

States _v._ Coolidge, 1 Wheat. 415 (1816); United States _v._ Britton,

108 U.S. 199, 206 (1883); United States _v._ Eaton, 144 U.S. 677, 687

(1892).

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

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

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

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

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

[13] Oceanic Navigation Co. _v._ Stranahan, 214 U.S. 320 (1909); Hepner

_v._ United States, 213 U.S. 103 (1909); United States _v._ Regan, 232

U.S. 37 (1914).

[14] United States ex rel. Turner _v._ Williams, 194 U.S. 279, 289

(1904); Zakonaite _v._ Wolf, 226 U.S. 272 (1912).

[15] In re Debs, 158 U.S. 564, 594 (1895); Gompers _v._ United States,

233 U.S. 604 (1914); Myers _v._ United States, 264 U.S. 95 (1924).

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

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

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

[19] Thompson _v._ Utah, 170 U.S. 343, 350 (1898); Rassmussen _v._

United States, 197 U.S. 518 (1905).

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

[21] Maxwell _v._ Dow, 176 U.S. 581, 586 (1900); Andres _v._ United

States, 333 U.S. 740 (1948).

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

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

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

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

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

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

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

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

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

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

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

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

[34] Brown _v._ Elliott, 225 U.S. 392 (1912); Hyde _v._ United States,

225 U.S. 347 (1912); Haas _v._ Henkel, 216 U.S. 462 (1910).

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

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

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

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

[39] Hughes _v._ Gault, 271 U.S. 142 (1926). _Cf._ Tinsley _v._ Treat,

205 U.S. 20 (1907); Beavers _v._ Henkel, 194 U.S. 73, 84 (1904).

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

[41] Jones _v._ United States, 137 U.S. 202, 211 (1890); United States

_v._ Dawson, 15 How. 467, 488 (1853).

[42] Cook _v._ United States, 138 U.S. 157, 182 (1891). _See also_

United States _v._ Socony-Vacuum Oil Co., 310 U.S. 150, 250-254 (1940);

_also_ United States _v._ Johnson, 323 U.S. 273 (1944).

[43] United States _v._ Potter, 56 F. 83, 88 (1892). _See also_ Viereck

_v._ United States, 318 U.S. 236 (1943); Kraus Bros. _v._ United States,

327 U.S. 614, 621 (1946).

[44] United States _v._ Cohen Grocery Co., 264 F. 218, 220 (1920),

affirmed 255 U.S. 81 (1921).

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

[46] Ibid. 89.

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

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

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

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

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

[52] Ibid. 101.

[53] Ibid. 103.

[54] Ibid. 113, 135.

[55] Ibid. 154.

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

[57] _See also_ Koehler et al. _v._ United States, 342 U.S. 852 (1951).

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

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

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

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

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

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

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

[65] United States _v._ Shreveport Grain & Elevator Co., 287 U.S. 77

(1932).

[66] United States _v._ Cruikshank, 92 U.S. 542, 544, 558 (1876); United

States _v._ Simmons, 96 U.S. 360 (1878); Bartell _v._ United States, 227

U.S. 427 (1913); Burton _v._ United States, 202 U.S. 344 (1906).

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

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

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

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

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

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

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

[74] Kirby _v._ United States, 174 U.S. 47, 61 (1809); Robertson _v._

Baldwin, 165 U.S. 275, 282 (1897).

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

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

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

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

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

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

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

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

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

[84] Walker _v._ Johnston, 312 U.S. 275 (1941); Von Moltke _v._ Gillies,

332 U.S. 708 (1948). _See also_ United States ex rel. McCann _v._ Adams,

320 U.S. 220 (1943).

AMENDMENT 7

CIVIL TRIALS

Page

Trial by jury in civil cases 891

Origin and purpose of the amendment 891

Trial by jury, elements of, preserved 891

To what courts and cases applicable 892

Cases not governed by the amendment 893

Restrictive force of the amendment 894

Judge and jury 895

Line drawn by the common law 895

Directed verdicts 896

Waiver of right of trial by jury 897

Appeals from State courts to the Supreme Court 897

CIVIL TRIALS

Amendment 7

In Suits at common law, where the value in controversy shall exceed

twenty dollars, the right of trial by jury shall be preserved, and no

fact tried by a jury, shall be otherwise re-examined in any Court of the

United States, than according to the rules of the common law.

Trial by Jury in Civil Cases

ORIGIN AND PURPOSE OF THE AMENDMENT

Late in the Federal Convention it was moved that a clause be inserted in

article III, section 2 of the draft Constitution to read "* * * and a

trial by jury shall be preserved as usual in civil cases." The proposal

failed when it was pointed out that the make-up and powers of juries

differed greatly in different States and that a uniform provision for

all States was impossible.[1] The objection evidently anticipated that

in cases falling to their jurisdiction on account of the diversity of

citizenship of the parties, the federal courts would conform their

procedure to the laws of the several States.[2] The omission, however,

raised an objection to the Constitution which "was pressed with an

urgency and zeal * * * well-nigh preventing its ratification."[3] Nor

was the agitation assuaged by Hamilton's suggestion in The Federalist

that Congress would have ample power, in establishing the lower federal

courts and in making "exceptions" to the Supreme Court's appellate

jurisdiction, to safeguard jury trial in civil cases according to the

standards of the common law.[4] His argument bore fruit, nevertheless,

in the Seventh Amendment, whereby, in the words of the Court, the right

of trial by jury is preserved as it "existed under the English common

law when the amendment was adopted."[5]

TRIAL BY JURY, ELEMENTS OF, PRESERVED

"Trial by jury," in the sense of Amendment VII, "is a trial by a jury of

twelve men, in the presence and under the superintendence of a judge

empowered to instruct them on the law and to advise them on the facts

and (except in acquittal of a criminal charge) to set aside their

verdict if in his opinion it is against the law or the evidence."[6] A

further requisite is "that there shall be a unanimous verdict of the

twelve jurors in all federal courts where a jury trial is held."[7]

Assuming such a jury, the amendment has for its primary purpose the

preservation of "* * * the common law distinction between the province

of the court and that of the jury, whereby, in the absence of express or

implied consent to the contrary, issues of law are resolved by the court

and issues of fact are to be determined by the jury under appropriate

instructions by the court."[8] But the amendment "does not exact the

retention of old forms of procedure" nor does it "prohibit the

introduction of new methods of ascertaining what facts are in issue

* * *" or new rules of evidence.[9]

TO WHAT COURTS AND CASES APPLICABLE

Amendment VII governs only courts which sit under the authority of the

United States,[10] including courts in the territories[11] and the

District of Columbia.[12] It does not apply to a State court even when

it is enforcing a right created by federal statute.[13] Its coverage is

"* * * limited to rights and remedies peculiarly legal in their nature,

and such as it was proper to assert in courts of law and by the

appropriate modes and proceedings of courts of law."[14] The term

"common law" is used in contradistinction to suits in which equitable

rights alone were recognized at the time of the framing of the amendment

and equitable remedies were administered.[15] Hence it does not apply to

cases where recovery of money damages is incident to equitable relief

even though damages might have been recovered in an action at law.[16]

Nor does it apply to cases in admiralty and maritime jurisdiction, in

which the trial is by a court without a jury.[17] Nor does it reach

statutory proceedings unknown to the common law, such as an application

to a court of equity to enforce an order of an administrative body.[18]

CASES NOT GOVERNED BY THE AMENDMENT

Omission of a jury has been upheld in the following instances on the

ground that the suit in question was not a suit at common law within the

meaning of the Seventh Amendment;

(1) Suits to enforce claims against the United States.[19]

(2) Suit authorized by Territorial law against a municipality, based

upon a moral obligation only.[20]

(3) Suit to cancel a naturalization certificate for fraud.[21]

(4) Order of deportation of an alien.[22]

(5) Assessment of damages in patent infringement suit.[23]

(6) Longshoremen's and Harbor Workers' Compensation Act.[24]

(7) Jurisdiction of bankruptcy court to examine into reasonableness of

fees paid by person for legal services in contemplation of

bankruptcy.[25]

(8) Final decision of customs appraisers in regard to value of

imports.[26]

It has been further held that there was no infringement of the

constitutional right to trial by jury in the following circumstances:

(1) A territorial statute requiring specific answers to special

interrogations, in addition to a general verdict.[27]

(2) A rule of a District of Columbia court authorizing judgment by

default in an action _ex contractu_, on failure to show by affidavit a

good defense.[28]

(3) A federal court's observance of a State statute making a certified

copy of a coroner's verdict _prima facie_ evidence of the facts

stated.[29]

(4) A federal statute (24 Stat. 379) giving _prima facie_ effect to

findings of the Interstate Commerce Commission.[30]

(5) An order of a District of Columbia court appointing an auditor in a

law case to examine books and papers, make computations, hear testimony,

and render a report which will serve as _prima facie_ evidence of the

facts found and conclusions reached, unless rejected by the court.[31]

(6) A decree of the Supreme Court enjoining, in the exercise of its

original jurisdiction, the State of Louisiana from continuing to

trespass upon lands under the ocean beyond its coasts and requiring the

State to account for the money derived from that area.[32]

RESTRICTIVE FORCE OF THE AMENDMENT

But the absolute right to a trial of the facts by a jury may not be

impaired by any blending with a claim, properly cognizable at law, of a

demand for equitable relief in aid of the legal action or during its

pendency. Such aid in the federal courts must be sought in separate

proceedings.[33] Federal statutes from Revised Statutes (Sec. 723) through

the Judicial Code (Sec. 267), prohibiting courts of the United States to

sustain suits in equity where the remedy is complete at law, serve to

guard the right of trial by jury, and should be liberally construed.[34]

So also should Equity Rule 30, requiring the answer to a bill in equity

to state any counterclaim arising out of the same transaction; such rule

was not intended to change the line between law and equity, and must be

construed as referring to equitable counterclaims only.[35] Nor may the

distinction between law and equity, so far as federal courts are

concerned, be obliterated by State legislation.[36] So, where State law,

in advance of judgment, treated the whole proceeding upon a simple

contract, including determination of validity and of amount due, as an

equitable proceeding, it brought the case within the federal equity

jurisdiction on removal. Ascertainment of plaintiff's demand being

properly by action at law, however, the fact that the equity court had

power to summon a jury on occasion did not afford an equivalent of the

right of trial by jury secured by the Seventh Amendment.[37] But where

State law gives an equitable remedy, such as to quiet title to land, the

federal courts will enforce it if it does not obstruct the rights of the

parties as to trial by jury.[38] An order of the Court of Claims

attempting to reinstate a dismissed case in violation of plaintiff's

right to dismiss violates the latter's right to trial by jury and may be

corrected by mandamus.[39]

Judge and Jury

LINE DRAWN BY THE COMMON LAW

As was noted above, the primary purpose of the amendment was to preserve

the historic line separating the province of the jury from that of the

judge, without at the same time preventing procedural improvement which

did not transgress this line. Elucidating this formula, the Court has

achieved the following results: It is constitutional for a federal

judge, in the course of trial, to express his opinion upon the facts,

provided all questions of fact are ultimately submitted to the jury;[40]

to call the jury's attention to parts of the evidence he deems of

special importance,[41] being careful to distinguish between matters of

law and matters of opinion in relation thereto;[42] to inform the jury

when there is not sufficient evidence to justify a verdict, that such is

the case;[43] to direct the jury, after plaintiff's case is all in, to

return a verdict for the defendant on the ground of the insufficiency of

the evidence;[44] to set aside a verdict which in his opinion is against

the law or the evidence, and order a new trial;[45] to refuse defendant

a new trial on the condition, accepted by plaintiff, that the latter

remit a portion of the damages awarded him;[46] but not, on the other

hand, to deny plaintiff a new trial on the converse condition, although

defendant accepted it.[47]

DIRECTED VERDICTS

In 1913 the Court held, in Slocum _v._ New York Life Insurance

Company,[48] that where upon the evidence a federal trial court, sitting

in New York, ought to have directed a verdict for one party but the jury

found for the other contrary to the evidence, the amendment rendered it

improper for a federal appeals court to order, in accordance with New

York practice, the entry of a judgment contrary to the verdict; that the

only course open to either court was to order a new trial. While plainly

in accordance with the common law as it stood in 1791, the decision was

five-to-four and was subjected to a heavy fire of professional criticism

urging the convenience of the thing and the theory of the capacity of

the common law for growth.[49] It has, moreover, been impaired, if not

completely undermined by certain more recent holdings. In the first of

these,[50] in which the same Justice spoke for the Court as in the

Slocum Case, it was held that a trial court had the right to enter a

judgment on the verdict of the jury for the plaintiff after overruling a

motion by defendant for dismissal on the ground of insufficient

evidence. The Court owned that its ruling was out of line with some of

its expressions in the Slocum Case.[51] In the second case[52] the Court

sustained a United States district court in Arkansas, in an action

between parties of diverse citizenship, in rejecting a motion by

defendant for dismissal and peremptorily directing a verdict for the

plaintiff. The Supreme Court held that there was ample evidence to

support the verdict and that the trial court, in following Arkansas

procedure, had acted consistently with the Federal Conformity Act.[53]

In the third case,[54] which involved an action against the Government

for benefits under a war risk insurance policy which had been allowed to

lapse, the trial court directed a verdict for the Government on the

ground of the insufficiency of the evidence and was sustained in so

doing by both the circuit court of appeals and the Supreme Court. Three

Justices, speaking by Justice Black, dissented in an opinion in which it

is asserted that "today's decision marks a continuation of the gradual

process of judicial erosion which in one-hundred-fifty years has slowly

worn away a major portion of the essential guarantee of the Seventh

Amendment."[55] That the Court should experience occasional difficulty

in harmonizing the idea of preserving the historic common law covering

the relations of judge and jury with the notion of a developing common

law is not surprising.

WAIVER OF RIGHT OF TRIAL BY JURY

Parties have a right to enter into a stipulation waiving a jury and

submitting the case to the court upon an agreed statement of facts, even

without any legislative provision for waiver.[56] "* * * Congress has,

by statute, provided for the trial of issues of fact in civil cases by

the court without the intervention of a jury, only when the parties

waive their right to a jury by a stipulation in writing. Revised

Statutes sections 648, 649."[57] This statutory provision for a written

stipulation, however, does not preclude other kinds of waivers.[58] But

every reasonable presumption should be indulged against a waiver.[59]

None is to be implied from a request for a directed verdict.[60]

APPEALS FROM STATE COURTS TO THE SUPREME COURT

The last clause of Amendment VII is not restricted in its application to

suits at common law tried before juries in United States courts. It

applies equally to a case tried before a jury in a State court and

brought to the United States Supreme Court on appeal.[61]

Notes

[1] 2 Farrand, Records, 628.

[2] _See_ Federal Conformity Act, 28 U.S.C.A. Sec. 724.

[3] 2 Story, Commentaries on the Constitution, Sec. 1763.

[4] Federalist, Nos. 81 and 83.

[5] Baltimore & C. Line _v._ Redman, 295 U.S. 654, 657 (1935); Parsons

_v._ Bedford, 3 Pet. 433, 446-448 (1830).

[6] Capital Traction Co. _v._ Hof, 174 U.S. 1, 13, 14 (1899). Here it

was held that a civil trial before a justice of the peace in the

District of Columbia, although by a jury of twelve men, was not a jury

trial in the sense of Amendment VII.

[7] Maxwell _v._ Dow, 176 U.S. 581, 586 (1900). _See also_ American

Publishing Co. _v._ Fisher, 166 U.S. 464 (1897); Springville _v._

Thomas, 166 U.S. 707 (1897); Andres _v._ United States, 333 U.S. 740,

748 (1948).

[8] Baltimore & C. Line _v._ Redman, 295 U.S. 654, 657 (1935); Walker

_v._ New Mexico, & S.P.R. Co., 165 U.S. 593, 596 (1897); Gasoline

Products Co. _v._ Champlin Ref. Co., 283 U.S. 494, 497-499 (1931);

Dimick _v._ Schiedt, 293 U.S. 474, 476, 485-486 (1935).

[9] Gasoline Products Co. _v._ Champlin Ref. Co., 283 U.S. 494, 498

(1931); Ex parte Peterson, 253 U.S. 300, 309 (1920).

[10] Pearson _v._ Yewdall, 95 U.S. 294, 296 (1877). _See also_ Edwards

_v._ Elliott, 21 Wall. 532, 557 (1874); Justices of the Sup. Ct. _v._

United States ex rel. Murray, 9 Wall. 274, 277 (1870); Walker _v._

Sauvinet, 92 U.S. 90 (1876); St. Louis & K.C. Land Co. _v._ Kansas City,

241 U.S. 419 (1916).

[11] Webster _v._ Reid, 11 How. 437, 460 (1851); Kennon _v._ Gilmer, 131

U.S. 22, 28 (1889).

[12] Capital Traction Co. _v._ Hof, 174 U.S. 1, 5 (1899).

[13] Minneapolis & St. L.R. Co. _v._ Bombolis, 241 U.S. 211 (1916),

which involved The Federal Employers Liability Act of 1908. The ruling

is followed in four other cases in the same volume. _See_ ibid. 241,

261, 485 and 494.

[14] Shields _v._ Thomas, 18 How. 253, 262 (1856).

[15] Parsons _v._ Bedford, 3 Pet. 433, 447 (1830); Barton _v._ Barbour,

104 U.S. 126, 133 (1881).

[16] Clark _v._ Wooster, 119 U.S. 322, 325 (1886); Pease _v._

Rathbun-Jones Eng. Co., 243 U.S. 273, 279 (1917).

[17] Parsons _v._ Bedford, above; Waring _v._ Clarke, 5 How. 441, 460

(1847). _See also_ The "Sarah," 8 Wheat. 390, 391 (1823), and cases

there cited.

[18] Labor Board _v._ Jones & Laughlin, 301 U.S. 1, 48 (1937). _See

also_ Interstate Commerce Commission _v._ Brimson, 154 U.S. 447, 488

(1894); Yakus _v._ United States, 321 U.S. 414, 447 (1944).

[19] McElrath _v._ United States, 102 U.S. 426, 440 (1880). _See also_

Galloway _v._ United States, 319 U.S. 372, 388 (1943).

[20] Guthrie Nat. Bank _v._ Guthrie, 173 U.S. 528, 534 (1899). _See

also_ United States _v._ Realty Co., 163 U.S. 427, 439 (1896); Jefferson

City Gaslight Co. _v._ Clark, 95 U.S. 644, 653 (1877).

[21] Luria _v._ United States, 231 U.S. 9, 27 (1913).

[22] Gee Wah Lee _v._ United States, 25 F. (2d) 107 (1928); certiorari

denied, 277 U.S. 608 (1928).

[23] Filer & S. Co. _v._ Diamond Iron Works, 270 F. 489 (1921);

certiorari denied, 256 U.S. 691 (1921).

[24] Crowell _v._ Benson, 285 U.S. 22, 45 (1932).

[25] In re Wood and Henderson, 210 U.S. 246 (1908).

[26] Auffmordt _v._ Hedden, 137 U.S. 310, 329 (1890).

[27] Walker _v._ New Mexico & S.P.R. Co., 165 U.S. 593, 598 (1897).

[28] Fidelity & D. Co. _v._ United States, 187 U.S. 315, 320 (1902).

[29] Jensen _v._ Continental Life Ins. Co., 28 F. (2d) 545 (1928),

certiorari denied, 279 U.S. 842 (1929).

[30] Meeker _v._ Lehigh Valley R. Co., 236 U.S. 434, 439 (1915).

[31] Ex parte Peterson, 253 U.S. 300 (1920).

[32] United States _v._ Louisiana, 339 U.S. 699 (1950).

[33] Scott _v._ Neely, 140 U.S. 106, 109 (1891). _See also_ Bennett _v._

Butterworth, 11 How. 669 (1850); Hipp _v._ Babin, 19 How. 271, 278

(1857); Lewis _v._ Cocks, 23 Wall. 466, 470 (1874); Killian _v._

Ebbinghaus, 110 U.S. 568, 573 (1884); Buzard _v._ Houston, 119 U.S. 347,

351 (1886).

[34] Schoenthal _v._ Irving Trust Co., 287 U.S. 92, 94 (1932).

[35] American Mills Co. _v._ American Surety Co., 260 U.S. 360, 364

(1922). _See also_ Stamey _v._ United States, 37 F. (2d) 188 (1929).

[36] Thompson _v._ Central Ohio R. Co., 6 Wall. 134 (1868).

[37] Whitehead _v._ Shattuck, 138 U.S. 146 (1891); Buzard _v._ Houston,

119 U.S. 347 (1886); Greeley _v._ Lowe, 155 U.S. 58, 75 (1894).

[38] Clark _v._ Smith, 13 Pet. 195 (1839); Holland _v._ Challen, 110

U.S. 15 (1884); Reynolds _v._ Crawfordsville First Nat. Bank, 112 U.S.

405 (1884); Chapman _v._ Brewer, 114 U.S. 158 (1885); Cummings _v._

Merchants Nat. Bank, 101 U.S. 153, 157 (1880); United States _v._

Landram, 118 U.S. 81 (1886); More _v._ Steinbach, 127 U.S. 70 (1888).

_Cf._ Re Simons, 247 U.S. 231 (1918).

[39] Ex parte Skinner & Eddy Corp., 265 U.S. 86, 96 (1924).

[40] Vicksburg & M.R. Co. _v._ Putnam, 118 U.S. 545, 553 (1886); United

States _v._ Reading Railroad, 123 U.S. 113, 114 (1887).

[41] 118 U.S. 545; where are cited Carver _v._ Jackson ex dem. Astor et

al., 4 Pet. 1, 80 (1830); Magniac _v._ Thompson, 7 Pet. 348, 390 (1833);

Mitchell _v._ Harmony, 13 How. 115, 131 (1852); Transportation Line _v._

Hope, 95 U.S. 297, 302 (1877).

[42] Games _v._ Dunn, 14 Pet. 322, 327 (1840).

[43] Sparf _v._ United States, 156 U.S. 51, 99-100 (1895); Pleasants

_v._ Fant, 22 Wall. 116, 121 (1875); Randall _v._ Baltimore & Ohio R.R.

Co., 109 U.S. 478, 482 (1883); Meehan _v._ Valentine, 145 U.S. 611, 625

(1892); Coughran _v._ Bigelow, 164 U.S. 301 (1896).

[44] Treat Mfg. Co. _v._ Standard Steel & Iron Co., 157 U.S. 674 (1895);

Randall _v._ Baltimore & Ohio R.R. Co., 109 U.S. 478, 482 (1883) and

cases there cited.

[45] Capital Traction Co. _v._ Hof, 174 U.S. 1, 13 (1899).

[46] Arkansas Land & Cattle Co. _v._ Mann, 130 U.S. 69, 74 (1889).

[47] Dimick _v._ Schiedt, 293 U.S. 474, 476-478 (1935).

[48] 228 U.S. 364 (1913).

[49] _See_ Austin Wakeman Scott, Fundamentals of Procedure in Actions at

Law (1922), 103 and articles there cited.

[50] Baltimore & C. Line _v._ Redman, 295 U.S. 654 (1935).

[51] Ibid. 661.

[52] Lyon _v._ Mutual Benefit Assn., 305 U.S. 484 (1939).

[53] 28 U.S.C.A. Sec. 724.

[54] Galloway _v._ United States, 319 U.S. 372 (1943).

[55] Ibid. 397. As a matter of fact, the case being a claim against the

United States need not have been tried by a jury except for the

allowance of Congress.

[56] Henderson's Distilled Spirits, 14 Wall. 44, 53 (1872). _See also_

Rogers _v._ United States, 141 U.S. 548, 554 (1891); Parsons _v._ Armor,

3 Pet. 413 (1830); Campbell _v._ Boyreau, 21 How. 223 (1859).

[57] Baylis _v._ Travelers' Ins. Co., 113 U.S. 316, 321 (1885), holding

it error for a judge, in absence of any waiver, to find the facts and

render judgment thereon.

[58] Duignan _v._ United States, 274 U.S. 195, 198 (1927), holding jury

trial waived by an appearance and participation in the trial without

demanding a jury.

[59] Hodges _v._ Easton, 106 U.S. 408, 412 (1883).

[60] Aetna Insurance Co. _v._ Kennedy, 301 U.S. 389 (1937).

[61] _See_ Justices of the Sup. Ct. _v._ United States ex rel. Murray, 9

Wall. 274 (1870); Chicago, B. & Q.R. Co. _v._ Chicago, 166 U.S. 226, 242

(1897).

AMENDMENT 8

BAIL, FINES, AND OTHER PUNISHMENT FOR CRIME

Page

Excessive bail 903

Excessive fines 904

Cruel and unusual punishments 904

PUNISHMENT FOR CRIME

Amendment 8

Excessive bail shall not be required, nor excessive fines imposed, nor

cruel and unusual punishments inflicted.

When the Bill of Rights was being debated in Congress, two members took

exception to this proposal. One "objected to the words 'nor cruel and

unusual punishment,' the import of them being too indefinite."[1]

Another leveled a similar criticism at the entire amendment; "What is

meant by the terms excessive bail? Who are to be the judges? What is

understood by excessive fines? It lies with the court to determine. No

cruel and unusual punishment is to be inflicted; it is sometimes

necessary to hang a man, villains often deserve whipping, and perhaps

having their ears cut off; but are we in future to be prevented from

inflicting these punishments because they are cruel? If a more lenient

mode of correcting vice and deterring others from the commission of it

could be invented, it would be very prudent in the Legislature to adopt

it; but until we have some security that this will be done, we ought not

to be restrained from making necessary laws by any declaration of this

kind."[2]

Excessive Bail

A United States District Court fixed the bail of twelve persons who were

arrested on charge of conspiring to violate the Smith Act[3] at $50,000

each. This was on the theory advanced by the Government that each

petitioner was a pawn in a conspiracy and in obedience to a superior

would flee the jurisdiction, a theory to support which no evidence was

introduced. The Court held that bail set before trial at a figure higher

than reasonably calculated to assure the presence of defendant at his

trial is "excessive" in the sense of the Eighth Amendment, and that the

case of each defendant must be determined on its merits. Bail of larger

amount than that usually fixed for serious crimes must be justified by

evidence to the point.[4] But the power of the Attorney General, under

Sec. 23 of the Internal Security Act of 1950,[5] to hold in custody without

bail, at his discretion, pending determination as to their

deportability, aliens who are members of the Communist Party of the

United States, is not unconstitutional.[6]

Excessive Fines

The Supreme Court has had little to say with reference to excessive

fines or bail. In an early case it held that it had no appellate

jurisdiction to revise the sentence of an inferior court, even though

the excessiveness of the fine was apparent on the face of the record.[7]

In a dissenting opinion in United States ex rel. Milwaukee Publishing

Co. _v._ Burleson,[8] Justice Brandeis intimated that the additional

mailing costs incurred by a newspaper to which the second-class mailing

privilege had been denied constituted, in effect, a fine for a past

offense which, since it was made to grow indefinitely each day, was an

unusual punishment interdicted by the Constitution.[9]

Cruel and Unusual Punishments

The ban against "cruel and unusual punishment" has received somewhat

greater attention. In Wilkerson _v._ Utah[10] the Court observed that:

"Difficulty would attend the effort to define with exactness the extent

of the constitutional provision which provides that cruel and unusual

punishments shall not be inflicted, but it is safe to affirm that

punishments of torture, ... and all others in the same line of

unnecessary cruelty, are forbidden by that Amendment to the

Constitution."[11] Shooting as a mode of executing the death penalty was

sustained over the objection that it was cruel and unusual.

A partially successful effort has been made to enlarge the concept of

unusual punishment to cover penalties which shock the sense of justice

by their absolute or relative severity. Justice Field pointed the way

for this development in his dissenting opinion in O'Neil _v._

Vermont,[12] wherein the majority refused to apply the Eighth Amendment

to a State. With the concurrence of two other Justices he wrote that the

amendment was directed "against all punishments which by their excessive

length or severity are greatly disproportioned to the offenses

charged."[13] Eighteen years later a divided Court condemned a

Philippine statute prescribing fine and imprisonment of from twelve to

twenty years for entry of a known false statement in a public record, on

the ground that the gross disparity between this punishment and that

imposed for other more serious fines made it cruel and unusual, and as

such, repugnant to the Bill of Rights.[14] No constitutional infirmity

was discovered in a measure punishing as a separate offense each act of

placing a letter in the mails in pursuance of a single scheme to

defraud.[15]

Notes

[1] 1 Annals of Congress 754 (1791).

[2] Ibid.

[3] 18 U.S.C. Sec. 371, 2385.

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

[5] 8 U.S.C.A. Sec. 156 (a) (1); 64 Stat. 1011.

[6] Carlson _v._ Landon, 342 U.S. 524 (1952).

[7] Ex parte Watkins, 7 Pet. 568, 574 (1833).

[8] 255 U.S. 407 (1921).

[9] Ibid. 435.

[10] 99 U.S. 130 (1879).

[11] Ibid. 135.

[12] 144 U.S. 323 (1892).

[13] Ibid. 339, 340.

[14] Weems _v._ United States, 217 U.S. 349, 371, 382 (1910).

[15] Badders _v._ United States, 240 U.S. 391 (1916). _Cf._ Donaldson

_v._ Read Magazine, 333 U.S. 178, 191 (1948).

AMENDMENT 9

RIGHTS RETAINED BY THE PEOPLE

Amendment 9

The enumeration in the Constitution, of certain rights, shall not be

construed to deny or disparage others retained by the people.

The only right which the Supreme Court has explicitly acknowledged as

protected by this amendment is the right to engage in political

activity. That recognition was accorded by way of _dictum_ in United

Public Workers _v._ Mitchell, where the powers of Congress to restrict

the political activities of federal employees was sustained.[1] An

argument that the competition of the TVA in selling electricity at rates

lower than those previously charged by private companies serving the

area amounted to an indirect regulation of the rates of those companies

and a destruction of the liberty said to be guaranteed by the Ninth

Amendment to the people of the States to acquire property and employ it

in a lawful business, was summarily rejected.[2] Previously the Court

had upheld the right of the TVA to sell electricity, saying that the

Ninth Amendment did not withdraw the right expressly granted by section

3 of article IV to dispose of property belonging to the United

States.[3]

Notes

[1] 330 U.S. 75, 94 (1947).

[2] Tennessee Electric Power Co. _v._ T.V.A., 306 U.S. 118, 143, 144

(1939).

[3] Ashwander _v._ T.V.A., 297 U.S. 288, 330, 331 (1936). _See also_ the

language of Justice Chase in Calder _v._ Bull, 3 Dall. 386, 388 (1798);

and of Justice Miller for the Court in Loan Asso. _v._ Topeka, 20 Wall.

655, 662-663 (1874).

AMENDMENT 10

RESERVED STATE POWERS

Page

Scope and purpose 915

The taxing power 916

The commerce power 917

Police power 918

State activities and instrumentalities 919

RESERVED STATE POWERS

Amendment 10

The powers not delegated to the United States by the Constitution, nor

prohibited by it to the States, are reserved to the States respectively,

or to the people.

Scope and Purpose

"The Tenth Amendment was intended to confirm the understanding of the

people at the time the Constitution was adopted, that powers not granted

to the United States were reserved to the States or to the people. It

added nothing to the instrument as originally ratified * * *."[1] That

this provision was not conceived to be a yardstick for measuring the

powers granted to the Federal Government or reserved to the States was

clearly indicated by its sponsor, James Madison, in the course of the

debate which took place while the amendment was pending concerning

Hamilton's proposal to establish a national bank. He declared that:

"Interference with the power of the States was no constitutional

criterion of the power of Congress. If the power was not given, Congress

could not exercise it; if given, they might exercise it, although it

should interfere with the laws, or even the Constitutions of the

States."[2] Nevertheless, for approximately a century, from the death of

Marshall until 1937, the Tenth Amendment was frequently invoked to

curtail powers expressly granted to Congress, notably the powers to

regulate interstate commerce, to enforce the Fourteenth Amendment and to

lay and collect taxes.

The first, and logically the strongest, effort to set up the Tenth

Amendment as a limitation on federal power was directed to the expansion

of that power by virtue of the necessary and proper clause. In McCulloch

_v._ Maryland,[3] the Attorney-General of Maryland cited the charges

made by the enemies of the Constitution that it contained "* * * a vast

variety of powers, lurking under the generality of its phraseology,

which would prove highly dangerous to the liberties of the people, and

the rights of the states, * * *" and he cited the adoption of the Tenth

Amendment to allay these apprehensions, in support of his contention

that the power to create corporations was reserved by that amendment to

the States.[4] Stressing the fact that this amendment, unlike the

cognate section of the Articles of Confederation, omitted the word

"expressly" as a qualification of the powers granted to the National

Government, Chief Justice Marshall declared that its effect was to leave

the question "whether the particular power which may become the subject

of contest has been delegated to the one government, or prohibited to

the other, to depend upon a fair construction of the whole

instrument."[5]

The Taxing Power

Not until after the Civil War was the idea that the reserved powers of

the States comprise an independent qualification of otherwise

constitutional acts of the Federal Government actually applied to

nullify, in part, an act of Congress. This result was first reached in a

tax case--Collector _v._ Day.[6] Holding that a national income tax, in

itself valid, could not be constitutionally levied upon the official

salaries of State officers, Justice Nelson made the sweeping statement

that "* * * the States within the limits of their powers not granted,

or, in the language of the Tenth Amendment, 'reserved,' are as

independent of the general government as that government within its

sphere is independent of the States."[7] In 1939, Collector _v._ Day was

expressly overruled.[8] Nevertheless, the problem of reconciling State

and national interests still confronts the Court occasionally, and was

elaborately considered in New York _v._ United States,[9] where, by a

vote of six-to-two, the Court upheld the right of the United States to

tax the sale of mineral waters taken from property owned by a State.

Speaking for four members of the Court, Chief Justice Stone justified

the tax on the ground that "The national taxing power would be unduly

curtailed if the State, by extending its activities, could withdraw from

it subjects of taxation traditionally within it."[10] Justices

Frankfurter and Rutledge found in the Tenth Amendment "* * * no

restriction upon Congress to include the States in levying a tax exacted

equally from private persons upon the same subject matter."[11] Justices

Douglas and Black dissented, saying: "If the power of the federal

government to tax the States is conceded, the reserved power of the

States guaranteed by the Tenth Amendment does not give them the

independence which they have always been assumed to have."[12]

The Commerce Power

A year before Collector _v._ Day was decided, the Court held invalid,

except as applied in the District of Columbia and other areas over which

Congress has exclusive authority, a federal statute penalizing the sale

of dangerous illuminating oils.[13] The Court did not refer to the Tenth

Amendment. Instead, it asserted that the "* * * express grant of power

to regulate commerce among the States has always been understood as

limited by its terms; and as a virtual denial of any power to interfere

with the internal trade and business of the separate States; except,

indeed, as a necessary and proper means for carrying into execution some

other power expressly granted or vested."[14] Similarly, in the

Employers' Liability Cases,[15] an act of Congress making every carrier

engaged in interstate commerce liable to "any" employee, including those

whose activities related solely to intrastate activities, for injuries

caused by negligence, was held unconstitutional by a closely divided

Court, without explicit reliance on the Tenth Amendment. Not until it

was confronted with the Child Labor Law, which prohibited the

transportation in interstate commerce of goods produced in

establishments in which child labor was employed, did the Court hold

that the State police power was an obstacle to adoption of a measure

which operated directly and immediately upon interstate commerce. In

Hammer _v._ Dagenhart,[16] five members of the Court found in the Tenth

Amendment a mandate to nullify this law as an unwarranted invasion of

the reserved powers of the States. This decision was expressly overruled

in United States _v._ Darby.[17]

During the twenty years following Hammer _v._ Dagenhart, a variety of

measures designed to regulate economic activities, directly or

indirectly, were held void on similar grounds. Excise taxes on the

profits of factories in which child labor was employed,[18] on the sale

of grain futures on markets which failed to comply with federal

regulations,[19] on the sale of coal produced by nonmembers of a coal

code established as a part of a federal regulatory scheme,[20] and a tax

on the processing of agricultural products, the proceeds of which were

paid to farmers who complied with production limitations imposed by the

Federal Government,[21] were all found to invade the reserved powers of

the States. In Schechter Poultry Corporation _v._ United States[22] the

Court, after holding that the commerce power did not extend to local

sales of poultry, cited the Tenth Amendment to refute the argument that

the existence of an economic emergency justified the exercise of what

Chief Justice Hughes called "extraconstitutional authority."[23]

In 1941 the Court came full circle in its exposition of this amendment.

Having returned to the position of John Marshall four years earlier when

it sustained the Social Security[24] and National Labor Relations

Acts,[25] it explicitly restated Marshall's thesis in upholding the Fair

Labor Standards Act in United States _v._ Darby.[26] Speaking for a

unanimous Court, Chief Justice Stone wrote: "The power of Congress over

interstate commerce 'is complete in itself, may be exercised to its

utmost extent, and acknowledges no limitations other than are prescribed

in the Constitution.' * * * That power can neither be enlarged nor

diminished by the exercise or non-exercise of state power. * * * It is

no objection to the assertion of the power to regulate interstate

commerce that its exercise is attended by the same incidents which

attend the exercise of the police power of the states. * * * Our

conclusion is unaffected by the Tenth Amendment which * * * states but a

truism that all is retained which has not been surrendered."[27]

Police Power

But even prior to 1937 not all measures taken to promote objectives

which had traditionally been regarded as the responsibilities of the

States had been held invalid. In Hamilton _v._ Kentucky Distilleries

Co.,[28] a unanimous Court, speaking by Justice Brandeis, upheld "War

Prohibition", saying: "That the United States lacks the police power,

and that this was reserved to the States by the Tenth Amendment, is

true. But it is none the less true that when the United States exerts

any of the powers conferred upon it by the Constitution, no valid

objection can be based upon the fact that such exercise may be attended

by the same incidents which attend the exercise by a State of its police

power."[29] And in a series of cases, which today seem irreconcilable

with Hammer _v._ Dagenhart, it sustained federal laws penalizing the

interstate transportation of lottery tickets,[30] of women for immoral

purposes,[31] of stolen automobiles,[32] and of tick-infested

cattle.[33] It affirmed the power of Congress to punish the forgery of

bills of lading purporting to cover interstate shipments of

merchandise,[34] to subject prison made goods moved from one State to

another to the laws of the receiving State,[35] and to regulate

prescriptions for the medicinal use of liquor as an appropriate measure

for the enforcement of the Eighteenth Amendment.[36] But while Congress

might thus prevent the use of the channels of interstate commerce to

frustrate State law, it could not itself, the Court held, undertake to

punish a violation of that law by discriminatory taxation; and in United

States _v._ Constantine,[37] a grossly disproportionate excise tax

imposed on retail liquor dealers carrying on business in violation of

local law was held unconstitutional.

State Activities and Instrumentalities

Today it is apparent that the Tenth Amendment does not shield the States

nor their political subdivisions from the impact of the authority

affirmatively granted to the Federal Government. It was cited to no

avail in Case _v._ Bowles,[38] where a State officer was enjoined from

selling timber on school lands at a price in excess of the maximum

prescribed by the Office of Price Administration. When California

violated the Federal Safety Appliance Act in the operation of the State

Belt Railroad as a common carrier in interstate commerce it was held

liable for the statutory penalty.[39] At the suit of the Attorney

General of the United States, the Sanitary District of Chicago was

enjoined from diverting water from Lake Michigan in excess of a

specified rate. On behalf of a unanimous court, Justice Holmes wrote:

"This is not a controversy among equals. The United States is asserting

its sovereign power to regulate commerce and to control the navigable

waters within its jurisdiction. * * * There is no question that this

power is superior to that of the States to provide for the welfare or

necessities of their inhabitants."[40] Some years earlier, in a suit

brought by Kansas to prevent Colorado from using the waters of the

Arkansas River for irrigation, the Attorney General of the United States

had unsuccessfully advanced the claim that the Federal Government had an

inherent legislative authority to deal with the matter. In a petition to

intervene in the suit he had taken the position, as summarized by the

Supreme Court, that "the National Government * * * has the right to make

such legislative provision as in its judgment is needful for the

reclamation of all these arid lands and for that purpose to appropriate

the accessible waters. * * * All legislative power must be vested in

either the state or the National Government; no legislative powers

belong to a state government other than those which affect solely the

internal affairs of that State; consequently all powers which are

national in their scope must be found vested in the Congress of the

United States."[41] The petition to intervene was dismissed on the

ground that the authority claimed for the Federal Government was

incompatible with the Tenth Amendment; but this could hardly happen

today.[42] Under its superior power of eminent domain, the United States

may condemn land owned by a State even where the taking will interfere

with the State's own project for water development and conservation.[43]

The rights reserved to the States are not invaded by a statute which

requires a reduction in the amount of a federal grant-in-aid of the

construction of highways upon failure of a State to remove from office a

member of the State Highway Commission found to have violated federal

law by participating in a political campaign.[44]

Federal legislation frequently has been challenged as an

unconstitutional interference with the prerogative of the States to

control the entities they create, but the attack has been successful

only once, in Hopkins Federal Savings and Loan Association _v._

Cleary.[45] There an act of Congress authorizing the conversion of State

building and loan associations without State consent was found to

contravene the Tenth Amendment. Thirty years earlier, in Northern

Securities Co. _v._ United States,[46] a closely divided Court had ruled

that this amendment was no barrier to the application of the Sherman

Antitrust Act to prevent one corporation from restraining commerce by

means of stock ownership in two competing corporations. It announced the

general proposition that: "No State can, by merely creating a

corporation, or in any other mode, project its authority into other

States, and across the continent, so as to prevent Congress from

exerting the power it possesses under the Constitution over interstate

and international commerce, or so as to exempt its corporation engaged

in interstate commerce from obedience to any rule lawfully established

by Congress for such commerce. It cannot be said that any State may give

a corporation, created under its laws, authority to restrain interstate

or international commerce against the will of the nation as lawfully

expressed by Congress. Every corporation created by a State is

necessarily subject to the supreme law of the land."[47] Even a charter

contract between a State and an intrastate railroad, limiting the rates

of the latter, is no barrier to enforcement of an order of the

Interstate Commerce Commission requiring an increase in local rates to

remove a discrimination against interstate commerce.[48] An order of the

Federal Power Commission prescribing the methods of keeping the accounts

of an electric company was sustained over the objection that it violated

the reserved right of the States under the Tenth Amendment.[49] A

similar objection to the levy of a special surtax on any corporation

formed or availed of to prevent the imposition of a surtax upon its

shareholders was rejected, since the taxing statute did not limit in any

way the power of the corporations to declare or withhold dividends as

permitted by State law.[50] Likewise, the Court held that the failure to

allow a credit against the undistributed profits tax for earnings which

could not be distributed under State law did not infringe the reserved

power of the State over its corporate offspring.[51]

Notes

[1] United States _v._ Sprague, 282 U.S. 716, 733 (1931).

[2] II Annals of Congress 1897 (1791).

[3] 4 Wheat. 316 (1819).

[4] Ibid. 372.

[5] Ibid. 406.

[6] 11 Wall. 113 (1871).

[7] Ibid. 124.

[8] Graves _v._ O'Keefe, 306 U.S. 466 (1939).

[9] 326 U.S. 572 (1946).

[10] Ibid. 589.

[11] Ibid. 584.

[12] Ibid. 595.

[13] United States _v._ Dewitt, 9 Wall. 41 (1870).

[14] Ibid. 44.

[15] 207 U.S. 463 (1908). _See also_ Keller _v._ United States, 213 U.S.

138 (1909).

[16] 247 U.S. 251 (1918).

[17] 312 U.S. 100, 116, 117 (1941).

[18] Bailey _v._ Drexel Furniture Co., 259 U.S. 20, 36, 38 (1922).

[19] Hill _v._ Wallace, 259 U.S. 44 (1922). _See also_ Trusler _v._

Crooks, 269 U.S. 475 (1926).

[20] Carter _v._ Carter Coal Co., 298 U.S. 238 (1936).

[21] United States _v._ Butler, 297 U.S. 1 (1936).

[22] 295 U.S. 495 (1935).

[23] Ibid. 529.

[24] Steward Machine Co. _v._ Davis, 301 U.S. 548 (1937); Helvering _v._

Davis, 301 U.S. 619 (1937).

[25] National Labor Relations Board _v._ Jones & Laughlin Steel Corp.,

301 U.S. 1 (1937).

[26] 312 U.S. 100 (1941). _See also_ United States _v._ Carolene

Products Co., 304 U.S. 144, 147 (1938); Case _v._ Bowles, 327 U.S. 92,

101 (1946).

[27] 312 U.S. 100, 114, 123, 124 (1941). _See also_ Fernandez _v._

Wiener, 326 U.S. 340, 362 (1945).

[28] 251 U.S. 146 (1919).

[29] Ibid. 156.

[30] Champion _v._ Ames, 188 U.S. 321 (1903).

[31] Hoke _v._ United States, 227 U.S. 308 (1913).

[32] Brooks _v._ United States, 267 U.S. 432 (1925).

[33] Thornton _v._ United States, 271 U.S. 414 (1926).

[34] United States _v._ Ferger, 250 U.S. 199 (1919).

[35] Kentucky Whip & Collar Co. _v._ Illinois C.R. Co., 299 U.S. 334

(1937).

[36] Everhard's Breweries _v._ Day, 265 U.S. 545 (1924).

[37] 296 U.S. 287 (1935). The Civil Rights Act of 1875, which made it a

crime for one person to deprive another of equal accommodations at inns,

theaters or public conveyances was found to exceed the powers conferred

on Congress by the Thirteenth and Fourteenth Amendments, and hence to be

an unlawful invasion of the powers reserved to the States by the

Tenth--Civil Rights Cases, 109 U.S. 3, 15 (1883).

[38] 327 U.S. 92, 102 (1946).

[39] United States _v._ California, 297 U.S. 175 (1936).

[40] Sanitary District of Chicago _v._ United States, 266 U.S. 405, 425,

426 (1925).

[41] Kansas _v._ Colorado, 206 U.S. 46, 87, 89 (1907).

[42] _See_ United States _v._ Appalachian Electric Power Co., 311 U.S.

377 (1940).

[43] Oklahoma _v._ Atkinson Co., 313 U.S. 508, 534 (1941).

[44] Oklahoma _v._ United States Civil Service Commission, 330 U.S. 127,

142-144 (1947).

[45] 296 U.S. 315 (1935).

[46] 193 U.S. 197 (1904).

[47] Ibid. 345, 346.

[48] New York _v._ United States, 257 U.S. 591 (1922).

[49] Northwestern Electric Co. _v._ Federal Power Commission, 321 U.S.

119 (1944). _See also_ Federal Power Commission _v._ East Ohio Gas

Company, 338 U.S. 404 (1950).

[50] Helvering _v._ National Grocery Co., 304 U.S. 282 (1938).

[51] Helvering _v._ Northwest Steel Mills, 311 U.S. 46 (1940).

AMENDMENT 11

SUITS AGAINST STATES

Page

Purpose and early interpretation 929

Expansion of state immunity 930

Suits against state officials: two categories 930

Mandamus proceedings 932

Early limitation on injunction proceedings 932

Injunction proceedings today: Ex parte Young 933

Tort action against state officials 934

Suits to recover taxes 935

Consent of State to be sued 935

Waiver of immunity 936

SUITS AGAINST STATES

Amendment 11

The Judicial power of the United States shall not be construed to extend

to any suit in law or equity, commenced or prosecuted against one of the

United States by Citizens of another State, or by Citizens or Subjects

of any Foreign State.

Purpose and Early Interpretation

The action of the Supreme Court in accepting jurisdiction of a suit

against a State by a citizen of another State in 1793, in Chisholm _v._

Georgia[1] provoked such angry reactions in Georgia and such anxieties

in other States that at the first meeting of Congress after this

decision what became the Eleventh Amendment was proposed by an

overwhelming vote and ratified with "vehement speed."[2] The earliest

decisions interpretative of the amendment were three by Chief Justice

Marshall. In Cohens _v._ Virginia,[3] speaking for the Court, he held

that the prosecution of a writ of error to review a judgment of a State

court, alleged to be in violation of the Constitution or laws of the

United States, "does not commence or prosecute a suit against the

State," but continues one commenced by the State. The contrary holding

would have virtually repealed the 25th Section of the Judiciary Act of

1789 (_see_ p. 554), and brought something like anarchy in its wake. In

Osborn _v._ Bank of the United States,[4] decided three years later, the

Court laid down two rules, one of which has survived and the other of

which was soon abandoned. The latter was the holding that a suit is not

one against a State unless the State is a party to the record.[5] This

rule the Court was forced to repudiate seven years later in Governor of

Georgia _v._ Madrazo,[6] in which it was conceded that the suit had been

brought against the governor solely in his official capacity and with

the design of forcing him to exercise his official powers. It is now a

well-settled rule that in determining whether a suit is prosecuted

against a State "the Court will look behind and through the nominal

parties on the record to ascertain who are the real parties to the

suit."[7] The other, more successful rule was that a State official

possesses no official capacity when acting illegally and hence can

derive no protection from an unconstitutional statute of a State.[8]

Expansion of State Immunity

Subsequent cases giving the amendment a restrictive effect are those

holding that counties and municipalities are suable in the federal

courts;[9] and that government corporations of the State are not immune

when suable under the law which created them.[10] Meantime other cases

have expanded the prohibitions of the amendment to include suits brought

against a State by its own citizens,[11] by a foreign state,[12] by a

federally chartered corporation,[13] or by a State as an agent of its

citizens to collect debts owed them by another State.[14] These rulings

are based on the premise expressed in Hans _v._ Louisiana[15] that the

amendment "actually reversed the decision" in Chisholm _v._ Georgia and,

as Chief Justice Hughes indicated in Monaco _v._ Mississippi,[16] had

the effect of prohibiting any suit against a State without its consent

except when brought by the United States[17] or another State.

Suits Against State Officials: Two Categories

Most of the cases involving the Eleventh Amendment and those creating

the greatest difficulties are suits brought against State officials.

Such suits are governed by the same rules and principles as pertain to

the immunity of the United States itself from suits,[18] with the result

that the rules of governmental immunity from suit generally are grounded

on decisions arising under both article III and the Eleventh Amendment

without distinction as to whether a suit is against the United States or

a State.[19] The line is not always easy to draw, nor are the cases

always strictly consistent. They do yield, however, to the formulation

of certain general rules. Thus, suits brought against State officials

acting either in excess of their statutory authority[20] or in pursuance

of an unconstitutional statute[21] are suits against the officer in his

individual capacity and therefore are not prohibited by the Eleventh

Amendment; and suits against an officer for the commission of a common

law tort alleged to be justified by a statute or administrative order of

the State belong to the same category.[22] On the other hand, suits

against the officers of a State involving what is conceded to be State

property or suits asking for relief which clearly call for the exercise

of official authority cannot be sustained.[23]

Mandamus Proceedings

Thus mandamus proceedings which seek "affirmative official action" on

the part of State officials as "the performance of an obligation which

belongs to the State in its political capacity"[24] are uniformly

regarded as suits against the State. This rule is well illustrated by

Louisiana ex rel. Elliott _v._ Jumel[25] where a holder of Louisiana

State bonds sought to compel the State treasurer to apply a sinking fund

that had been created under an earlier constitution for the payment of

the bonds to such purpose after a new constitution had abolished this

provision for retiring the bonds. The proceeding was held to be a suit

against the State because: "The relief asked will require the officers

against whom the process is issued to act contrary to the positive

orders of the supreme political power of the State, whose creatures they

are, and to which they are ultimately responsible in law for what they

do. They must use the public money in the treasury and under their

official control in one way, when the supreme power has directed them to

use it in another, and they must raise more money by taxation when the

same power has declared that it shall not be done."[26] However,

mandamus proceedings to compel a State official to perform a plain or

ministerial duty which admits of no discretion are not suits against the

State since the official is regarded as acting in his individual

capacity in failing to act according to law.[27]

Early Limitation on Injunction Proceedings

In spite of a dictum by Justice Bradley in the McComb Case that the

writs of mandamus and injunction are somewhat correlative to each other

in suits against State officials for illegal actions,[28] injunctions

against State officials to restrain the enforcement of an

unconstitutional statute or action in excess of statutory authority are

more readily obtainable. They constitute in fact the single largest

class of cases involving the issue of State immunity. Until Reagan _v._

Farmers' Loan and Trust Company[29] the Court maintained a distinction

between the duty imposed upon an official by the general laws of the

State and the duty imposed by a specific unconstitutional statute and

held that whereas an injunction would not lie to restrain a State

official from enforcing an act alleged to be unconstitutional in

pursuance of the general duties of his office, it would lie to restrain

him from performing special duties vested in him by an unconstitutional

statute.[30] The leading cases assertive of this distinction are Ex

parte Ayers and Fitts _v._ McGhee, decided respectively in 1887 and

1899.[31]

Injunction Proceedings Today: Ex parte Young

However, the distinction between injunction suits to restrain an

official from pursuing his general duties under the law and those to

restrain the performance of special duties under an unconstitutional

statute had been largely lost even before Fitts _v._ McGhee, in Reagan

_v._ Farmers' Loan and Trust Company[32] and Smyth _v._ Ames,[33] where

injunctions issued by the lower federal courts to restrain the

enforcement of railroad rate regulations were sustained even though the

officials against whom the suits were brought were acting under general

law. What remained of the distinction as a limitation upon suits against

State officials was dispelled by Ex parte Young,[34] which not only

sustained an injunction restraining State officials from exercising

their discretionary duties but also upheld the authority of the lower

court to enjoin the enforcement of the statute prior to a determination

of its unconstitutionality. While Ex parte Ayers and Fitts _v._

McGhee[35] were not overruled, the inevitable effect of the Young Case

was to abrogate the rule that a suit in equity against a State official

to enjoin discretionary action is a suit against the State, and to

convert the injunction into a device to test the validity of State

legislation in the federal courts prior to its interpretation in the

State courts and prior to any opportunity for State officials to put the

act into operation.[36]

But the earlier rule still crops up at times. Thus as recently as 1937,

Ex parte Ayers[37] was applied to the interpretation of the Federal

Interpleader Act,[38] so as to prevent taxpayers from enjoining tax

officials from collecting death taxes arising from the competing claims

of two States as being the last domicile of a decedent.[39] On the other

hand, the Eleventh Amendment was held not to be infringed by joinder of

a State court judge and receiver in an interpleader proceeding in which

the State had no interest and neither the judge nor the receiver was

enjoined by the final decree.[40]

Tort Actions Against State Officials

In tort actions against State officials the rule of United States _v._

Lee[41] has been substantially incorporated into the Eleventh Amendment.

In Tindal _v._ Wesley[42] the Lee Case was held to permit a suit by

claimants to real property in South Carolina which they had purchased

from the State sinking fund commission but which had been retaken by the

State because the purchaser insisted on paying for the property with

revenue bond scrip issued by the State. In other cases the Court had

held that the immunity of a State from suit does not extend to actions

against State officials for damages arising out of willful and negligent

disregard of State laws.[43]

Suits to Recover Taxes

Recent decisions, however, have rendered suits against State officials

to recover taxes increasingly difficult to maintain. Although the Court

long ago held that the sovereign immunity of the State prevented a suit

to recover money in the general treasury,[44] it also held that a suit

would lie against a revenue officer to recover tax moneys illegally

collected and still in his possession.[45] Beginning, however, with

Great Northern Life Insurance Co. _v._ Read[46] in 1944 the Court has

held that this kind of suit cannot be maintained unless the State

expressly consents to suits in the federal courts. In this case the

State statute provided for the payment of taxes under protest and for

suits afterwards against State tax collection officials for the recovery

of taxes illegally collected. The act also provided for the segregation

by the collector of taxes paid under protest. The Read Case has been

followed in two more recent cases[47] involving a similar state of

facts, with the result that the rule once permitting such suits to

recover taxes from a segregated fund has been distinguished away.

Consent of State to be Sued

Although _dicta_ in some cases suggested that once a State consented

generally to be sued in a court of competent jurisdiction,[48] suits

could be maintained against it in the federal courts, later decisions

involving statutory provisions for the payment of taxes under protest

followed by a suit in a court of competent jurisdiction to recover do

not authorize suits in the federal courts. These rulings are based on

the assumption that when the court is dealing "with the sovereign

exemption from judicial interference in the vital field of financial

administration a clear declaration of the State's intention to submit

its fiscal problems to other courts than those of its own creation must

be found."[49] Long before these decisions it had been settled that a

State could confine to its own courts suits against it to recover

taxes.[50] Thus the questions involved in the cases laying down the

above rule concerned only the lack of an express consent to suit in the

federal courts.

Waiver of Immunity

The immunity of a State from suit is a privilege which it may waive at

pleasure by voluntary submission to suit,[51] as distinguished from

appearing in a similar suit to defend its officials,[52] and by general

law specifically consenting to suit in the federal courts. Such consent

must be clear and specific and consent to suit in its own courts does

not imply a waiver of immunity in the federal courts.[53] It follows,

therefore, that in consenting to be sued, the States, like the National

Government, may attach such conditions to suit as they deem fit.

Notes

[1] 2 Dall. 419 (1793).

[2] Justice Frankfurter dissenting in Larson _v._ Domestic & Foreign

Corp., 337 U.S. 682, 708 (1949).

[3] 6 Wheat. 264, 411-412 (1821).

[4] 9 Wheat. 738 (1824).

[5] Ibid. 850-858.

[6] 1 Pet. 110 (1828).

[7] Ex parte Ayers, 123 U.S. 443, 487 (1887).

[8] Osborn _v._ Bank of the United States, 9 Wheat. at 858, 859, 868.

[9] Lincoln County _v._ Luning, 133 U.S. 529 (1890).

[10] Hopkins _v._ Clemson Agricultural College, 221 U.S. 636 (1911).

_See also_ Bank of the United States _v._ Planters' Bank of Georgia, 9

Wheat. 904 (1824), where a State bank was held liable to suit although

the State owned a portion of its stock, and Briscoe _v._ Bank of

Kentucky, 11 Pet. 257 (1837), and Bank of Kentucky _v._ Wister, 2 Pet.

318 (1829), where the State bank was held liable to suit even though the

State owned all of the stock. Compare, however, Murray _v._ Wilson

Distilling Co., 213 U.S. 151 (1909), which held that a State in engaging

in the retail liquor business does not surrender its immunity to suit

for transaction of a nongovernmental nature. Here the State conducted

the business directly rather than through the medium of a corporation.

[11] Hans _v._ Louisiana, 134 U.S. 1 (1890); Fitts _v._ McGhee, 172 U.S.

516, 524 (1899); Duhne _v._ New Jersey, 251 U.S. 311, 313 (1920); Ex

parte New York, 256 U.S. 490 (1921).

[12] Monaco _v._ Mississippi, 292 U.S. 313, 329 (1934).

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