The inhibition against denial of equal protection of the laws has

exclusive reference to State action. It means that no agency of the

State, legislative, executive or judicial,[1005] no instrumentality of

the State, and no person, officer or agent exerting the power of the

State shall deny equal protection to any person within the jurisdiction

of the State. The clause prohibits "discriminating and partial

legislation * * * in favor of particular persons as against others in

like condition."[1006] But it also has reference to the way the law is

administered. "Though the law itself be fair on its face and impartial

in appearance, yet, if it is applied and administered by public

authority with an evil eye and an unequal hand, so as practically to

make unjust and illegal discriminations between persons in similar

circumstances, material to their rights, the denial of equal justice is

still within the prohibition of the Constitution."[1007] This was said

in a case where a Chinese subject had been convicted of operating a

laundry in violation of a municipal ordinance which made it unlawful to

engage in such business (except in a building constructed of brick or

stone) without the consent of the board of supervisors. Permission had

been withheld from petitioner and 200 other Chinese subjects but had

been granted to 80 others to carry on the same business under similar

conditions. This discrimination solely on the basis of nationality was

held illegal. For an unlawful administration of a valid statute to

constitute a violation of constitutional rights, purposeful

discrimination must be shown. An erroneous performance of a statutory

duty, although a violation of the statute, is not without more a denial

of equal protection of the laws.[1008] This clause is also violated by

the withholding of equal access to the courts,[1009] or by inequality of

treatment in the courts.[1010] In Shelley _v._ Kraemer[1011] the use of

judicial power to enforce private agreements of a discriminatory

character was held unconstitutional. Holding that restrictive covenants

prohibiting the sale of homes to Negroes could not be enforced in the

courts, Chief Justice Vinson said: "These are not cases, as has been

suggested, in which the States have merely abstained from action,

leaving private individuals free to impose such discriminations as they

see fit. Rather, these are cases in which the States have made available

to such individuals the full coercive power of government to deny to

petitioners, on the grounds of race or color, the enjoyment of property

rights in premises which petitioners are willing and financially able to

acquire and which the grantors are willing to sell. The difference

between judicial enforcement and nonenforcement of the restrictive

covenants is the difference to petitioners between being denied rights

of property available to other members of the community and being

accorded full enjoyment of those rights on an equal footing."[1012] The

action of the curators of a state university in refusing admission to an

applicant on account of race is regarded as State action.[1013] A State

cannot avoid the impact of the clause by the delegation of

responsibility to a private body. After a period of vacillation, the

Supreme Court has determined that the action of a political party in

excluding Negroes from membership is unlawful when such membership is an

essential qualification for voting in a primary conducted pursuant to

State law.[1014]

"Persons"

In the case in which it was first called upon to interpret this clause

the Court expressed doubt whether "any action of a State not directed by

way of discrimination against the Negroes as a class, or on account of

their race, will ever be held to come within the purview of this

provision."[1015] That view was soon abandoned. In 1877 it took

jurisdiction of a series of cases, popularly known as the Granger cases,

in which railroad corporations sought protection under the due process

and equal protection clauses.[1016] Although every case was decided

against the corporations on its merits, there was no expression of any

doubt that the corporations were entitled to invoke the protection of

the amendment. Nine years later the issue was settled definitely by an

announcement from the bench by Chief Justice Waite that the Court would

not hear argument on the question whether the equal protection clause

applies to corporations, adding: "We are all of opinion that it

does."[1017] At the same term the Court gave the broadest possible

meaning to the word "person"; it held that: "These provisions are

universal in their application, to all persons within the territorial

jurisdiction, without regard to any differences of race, of color, or of

nationality; * * *"[1018] The only qualification of the meaning of

"person" is that introduced by subsequent decisions holding that a

municipal corporation cannot invoke the amendment against its

State.[1019]

"Within Its Jurisdiction"

It is persons "within its jurisdiction" that are entitled to equal

protection from a State. Largely because article IV, section 2, has from

the beginning entitled "Citizens of each State" to the "Privileges and

Immunities of Citizens in the several States," the Court has never

construed the phrase, "within its jurisdiction," in relation to natural

persons.[1020] The cases interpretive of this expression consequently

all concern corporations. In 1898, the Court laid down the rule that a

foreign corporation not doing business in a State under conditions that

subjected it to process issuing from the courts of the State at the

instance of suitors was not "within the jurisdiction," and could not

complain of the preference granted resident creditors in the

distribution of the assets of an insolvent corporation.[1021] That

principle was subsequently qualified, over the dissent of Justices

Brandeis and Holmes, by a holding that a foreign corporation which sued

in a court of a State in which it was not licensed to do business to

recover possession of property wrongfully taken from it in another State

was "within the jurisdiction" and could not be subjected to unequal

burdens in the maintenance of the suit.[1022] The test of amenability to

service of process within the State was ignored in a recent case dealing

with discriminatory assessment of property belonging to a nonresident

individual. In holding that a federal court had jurisdiction to

entertain a suit for a declaratory judgment to invalidate the tax, the

Supreme Court specifically mentioned the equal protection clause as the

source of the federal right, but took no account of the plaintiff's

status as a nonresident, beyond a passing reference to the existence of

diversity of citizenship.[1023] When a State has admitted a foreign

corporation to do business within its borders, that corporation is

entitled to equal protection of the laws, but not necessarily to

identical treatment with domestic corporations.[1024] A foreign

corporation licensed to do business within a State upon payment of an

annual license tax is subject to the power of the State to change at any

time the conditions of admission for the future. If it fails to pay an

increased license tax as a prerequisite to doing business, it is not

"within the jurisdiction" and unequal burdens may be laid upon it as

compared with other foreign corporations.[1025]

"Equal Protection of the Laws"

Equal protection of the laws means the protection of equal laws.[1026]

It forbids all invidious discrimination but does not require identical

treatment for all persons without recognition of differences in relevant

circumstances. It requires "that equal protection and security should be

given to all under like circumstances in the enjoyment of their personal

and civil rights; that all persons should be equally entitled to pursue

their happiness and acquire and enjoy property; that they should have

like access to the courts of the country for the protection of their

persons and property, the prevention and redress of wrongs, and the

enforcement of contracts; that no impediment should be interposed to the

pursuits of anyone except as applied to the same pursuits by others

under like circumstances; that no greater burdens should be laid upon

one than are laid upon others in the same calling and condition, and

that in the administration of criminal justice no different or higher

punishment should be imposed upon one than such as is prescribed to all

for like offenses."[1027] The Amendment was not "designed to interfere

with the power of the State, sometimes termed its 'police power,' to

prescribe regulations to promote the health, peace, morals, education,

and good order of the people, and to legislate so as to increase the

industries of the State, develop its resources, and add to its wealth

and prosperity * * * Regulations for these purposes may press with more

or less weight upon one than upon another, but they are designed, not

to impose unequal or unnecessary restrictions upon anyone, but to

promote, with as little individual inconvenience as possible, the

general good. Though, in many respects, necessarily special in their

character they do not furnish just ground of complaint if they operate

alike upon all persons and property under the same circumstances and

conditions."[1028] The due process and equal protection clauses overlap

but the spheres of protection they offer are not coterminous. The due

process clause "tends to secure equality of law in the sense that it

makes a required minimum of protection for everyone's right of life,

liberty, and property, which the Congress or the legislature may not

withhold. * * * The guaranty [of equal protection] was aimed at undue

favor and individual or class privilege, on the other hand, and at

hostile discrimination or the oppression of inequality, on the

other."[1029]

Legislative Classifications

Although the equal protection clause requires laws of like application

to all similarly situated, the legislature is allowed wide discretion in

the selection of classes.[1030] Classification will not render a State

police statute unconstitutional so long as it has a reasonable

basis;[1031] its validity does not depend on scientific or marked

differences in things or persons or in their relations. It suffices if

it is practical.[1032] While a State legislature may not arbitrarily

select certain individuals for the operation of its statutes, a

selection is obnoxious to the equal protection clause only if it is

clearly and actually arbitrary and not merely possibly so.[1033] A

substantial difference, in point of harmful results, between two methods

of operation, justifies a classification and the burden is on the

attacking party to prove it unreasonable.[1034] There is a strong

presumption that discriminations in State legislation are based on

adequate grounds.[1035] Every state of facts sufficient to sustain a

classification which can reasonably be conceived of as having existed

when the law was adopted will be assumed.[1036]

There is no doctrinaire requirement that legislation should be couched

in all-embracing terms.[1037] A police statute may be confined to the

occasion for its existence.[1038] The equal protection clause does not

mean that all occupations that are called by the same name must be

treated in the same way.[1039] The legislature is free to recognize

degrees of harm; a law which hits the evil where it is most felt will

not be overthrown because there are other instances to which it might

have been applied.[1040] The State may do what it can to prevent what is

deemed an evil and stop short of those cases in which the harm to the

few concerned is thought less important than the harm to the public that

would ensue if the rules laid down were made mathematically exact.[1041]

Exceptions of specified classes will not render the law unconstitutional

unless there is no fair reason for the law that would not equally

require its extension to the excepted classes.[1042] Incidental

individual inequality does not violate the Fourteenth Amendment.[1043]

One who is not discriminated against cannot attack a statute because it

does not go further; and if what it commands of one it commands of all

others in the same class, that person cannot complain of matter which

the statute does not cover.[1044]

TAXATION

At the outset, the Court did not regard the equal protection clause as

having any bearing on taxation.[1045] Before long, however, it took

jurisdiction of cases assailing specific tax laws under this

provision.[1046] In 1890 it conceded cautiously that "clear and hostile

discriminations against particular persons and classes, especially such

as are of an unusual character, unknown to the practice of our

governments, _might_ be obnoxious to the constitutional

prohibition."[1047] In succeeding years the clause has been invoked but

sparingly to invalidate State levies. In the field of property taxation,

inequality has been condemned only in two classes of cases: (1)

intentional discrimination in assessments; and (2) discrimination

against foreign corporations. In addition, there are a handful of cases

invalidating, because of inequality, State laws imposing income, gross

receipts, sales and license taxes.

Classifications for the Purpose of Taxation

The power of the State to classify for purposes of taxation is "of wide

range and flexibility."[1048] The Constitution does not prevent it "from

adjusting its system of taxation in all proper and reasonable ways. It

may, if it chooses, exempt certain classes of property from any taxation

at all, such as churches, libraries, and the property of charitable

institutions. It may impose different specific taxes upon different

trades and professions, and may vary the rates of excise upon various

products; it may tax real estate and personal property in a different

manner; it may tax visible property only, and not tax securities for

payment of money; it may allow deductions for indebtedness, or not allow

them. All such regulations, and those of like character, so long as they

proceed within reasonable limits and general usage, are within the

discretion of the State Legislature, * * *"[1049] A State may adjust

its taxing system in such a way as to favor certain industries or forms

of industry,[1050] and may tax different types of taxpayers differently,

despite the fact that they compete.[1051] It does not follow that

because "some degree of inequality from the nature of things must be

permitted, gross inequality must also be allowed."[1052] Classification

may not be arbitrary; it must be based on a real and substantial

difference,[1053] but the difference need not be great or

conspicuous;[1054] but there must be no discrimination in favor of one

as against another of the same class.[1055] Also, discriminations of an

unusual character are scrutinized with especial care.[1056] A gross

sales tax graduated at increasing rates with the volume of sales,[1057]

a heavier license tax on each unit in a chain of stores where the owner

has stores located in more than one county,[1058] and a gross receipts

tax levied on corporations operating taxicabs, but not on

individuals,[1059] have been held to be repugnant to the equal

protection clause. But it is not the function of the Court to consider

the propriety or justness of the tax, to seek for the motives and

criticize the public policy which prompted the adoption of the

statute.[1060] If the evident intent and general operation of the tax

legislation is to adjust the burden with a fair and reasonable degree of

equality, the constitutional requirement is satisfied.[1061] One not

within the class claimed to be discriminated against cannot raise the

question of constitutionality of a statute on the ground that it denies

equal protection of the law.[1062] If a tax applies to a class which may

be separately taxed, those within the class may not complain because the

class might have been more aptly defined, nor because others, not of the

class, are taxed improperly.[1063]

Foreign Corporations

The equal protection clause does not require identical taxes upon all

foreign and domestic corporations in every case.[1064] In 1886, a

Pennsylvania corporation previously licensed to do business in New York

challenged an increased annual license tax imposed by that State in

retaliation for a like tax levied by Pennsylvania against New York

corporations. This tax was held valid on the ground that the State,

having power to exclude entirely, could change the conditions of

admission for the future, and could demand the payment of a new or

further tax, as a license fee.[1065] Later cases whittled down this rule

considerably. The Court decided that "after its admission, the foreign

corporation stands equal and is to be classified with domestic

corporations of the same kind,"[1066] and that where it has acquired

property of a fixed and permanent nature in a State, it cannot be

subjected to a more onerous tax for the privilege of doing business than

domestic corporations.[1067] A State statute taxing foreign corporations

writing fire, marine, inland navigation and casualty insurance on net

receipts, including receipts from casualty business was held invalid

under the equal protection clause where foreign companies writing only

casualty insurance were not subject to a similar tax.[1068] Recently,

the doctrine of Fire Asso. of Philadelphia _v._ New York was revived to

sustain an increased tax on gross premiums which was exacted as an

annual license fee from foreign but not from domestic

corporations.[1069] Even though the right of a foreign corporation to do

business in a State rests on a license, yet the equal protection clause

is held to insure it equality of treatment, at least so far as _ad

valorem_ taxation is concerned.[1070]

Income Taxes

A State law which taxes the entire income, including that derived

without the State, of domestic corporations which do business in the

State, while exempting entirely the income received outside the State by

domestic corporations which do no local business, is arbitrary and

invalid.[1071] In taxing the income of a nonresident, there is no denial

of equal protection in limiting the deduction of losses to those

sustained within the State, although residents are permitted to deduct

all losses, wherever incurred.[1072] A retroactive statute imposing a

graduated tax at rates different from those in the general income tax

law, on dividends received in a prior year which were deductible from

gross income under the law in effect when they were received, is not

obnoxious to the equal protection clause.[1073]

Inheritance Taxes

In inheritance taxation, there is no denial of equal protection in

prescribing different treatment for lineal relations, collateral kindred

and strangers of the blood, or in increasing the proportionate burden of

the tax progressively as the amount of the benefit increases.[1074] A

tax on life estates where the remainder passes to lineal heirs is valid

despite the exemption of life estates where the remainder passes to

collateral heirs;[1075] there is no arbitrary classification in taxing

the transmission of property to a brother or sister, while exempting

that to a son-in-law or a daughter-in-law.[1076] Vested and contingent

remainders may be treated differently.[1077] The exemption of property

bequeathed to charitable or educational institutions may be limited to

those within the State.[1078] In computing the tax collectible from a

nonresident decedent's property within the State, a State may apply the

pertinent rates to the whole estate wherever located, and take that

proportion thereof which the property within the State bears to the

total; the fact that a greater tax may result than would be assessed on

an equal amount of property if owned by a resident,[1079] does not

invalidate the result.

Motor Vehicle Taxes

In demanding compensation for the use of highways, a State may exempt

certain types of vehicles, according to the purpose for which they are

used, from a mileage tax on carriers.[1080] A State maintenance tax act,

which taxes vehicle property carriers for hire at greater rates than

similar vehicles carrying property not for hire is reasonable, since the

use of roads by one hauling not for hire generally is limited to

transportation of his own property as an incident to his occupation and

is substantially less than that of one engaged in business as a common

carrier.[1081] A property tax on motor vehicles used in operating a

stage line that makes constant and unusual use of the highways may be

measured by gross receipts and be assessed at a higher rate than taxes

on property not so employed.[1082] Common motor carriers of freight

operating over regular routes between fixed termini may be taxed at

higher rates than other carriers, common and private.[1083] A fee for

the privilege of transporting motor vehicles on their own wheels over

the highways of the State for purpose of sale, does not violate the

equal protection clause as applied to cars moving in caravans.[1084] The

exemption from a tax for a permit to bring cars into the State in

caravans of cars moved for sale between zones in the State is not an

unconstitutional discrimination where it appears that the traffic

subject to the tax places a much more serious burden on the highways

than that which is exempt.[1085] The exemption of small vehicles from

graduated registration fees on carriers for hire,[1086] and of persons

whose vehicles haul passengers and farm products between points not

having railroad facilities or hauling farm and dairy products for a

producer from a vehicle license tax on private motor carriers, has been

upheld.[1087]

Poll Taxes

A poll tax statute exempting women, the aged and minors, does not make

an arbitrary classification[1088].

Property Taxes

The State's latitude of discretion is notably wide in the classification

of property for purposes of taxation and the granting of partial or

total exemption on the grounds of policy,[1089] whether the exemption

results from the terms of the statute or the conduct of a State official

under it.[1090] A provision for the forfeiture of land for nonpayment of

taxes is not invalid because the conditions to which it applies exist

only in a part of the State.[1091] Intentional and systematic

undervaluation by State officials of other taxable property in the same

class contravenes the constitutional right of one taxed upon the full

value of his property;[1092] but mere errors in judgment resulting in

unequal overvaluation or undervaluation, not intentional or systematic,

will not support a claim of discrimination.[1093] Differences in the

basis of assessment are not invalid where the person or property

affected might properly be placed in a separate class for purposes of

taxation.[1094] An owner aggrieved by discrimination is entitled to have

his assessment reduced to the common level.[1095] Equal protection is

denied if a State does not itself remove the discrimination; it cannot

impose upon the person against whom the discrimination is directed the

burden of seeking an upward revision of the assessment of other members

of the class.[1096] A corporation whose valuations were accepted by the

assessing commission cannot complain that it was taxed

disproportionately, as compared with others, if the commission did not

act fraudulently.[1097]

Special Assessment

A special assessment is not discriminatory because apportioned on an _ad

valorem_ basis, nor does its validity depend upon the receipt of some

special benefit as distinguished from the general benefit to the

community.[1098] Railroad property may not be burdened for local

improvements upon a basis so wholly different from that used for

ascertaining the contribution demanded of individual owners as

necessarily to produce manifest inequality.[1099] A special highway

assessment against railroads based on real property, rolling stock and

other personal property is unjustly discriminatory when other

assessments for the same improvement are based on real property

alone.[1100] A law requiring the franchise of a railroad to be

considered in valuing its property for apportionment of a special

assessment, is not invalid where the franchises were not added as a

separate personal property value to the assessment of the real

property.[1101] In taxing railroads within a levee district on a mileage

basis, it is not necessarily arbitrary to fix a lower rate per mile for

those having less than 25 miles of main line within the district than

for those having more.[1102]

POLICE POWER

Classification

Justice Holmes once called the equal protection clause the "usual last

refuge of constitutional arguments."[1103] When State action is attacked

under the due process clause, the assailant usually charges also that he

is denied the equal protection of the laws. Except where discrimination

on the basis of race or nationality is shown, few police regulations

have been found unconstitutional on this ground.[1104] The Court has

condemned a statute which forbade stock insurance companies to act

through agents who were their salaried employees, but permitted mutual

companies to operate in this manner.[1105] A law which required private

motor vehicle carriers to obtain certificates of convenience and

necessity and to furnish security for the protection of the public was

held invalid by reason of the exemption of carriers of fish, farm and

dairy products.[1106] Discrimination among milk dealers without well

advertised trade names, giving those who entered business before a

specified date the benefit of a price differential denied to those who

commenced operations thereafter, is arbitrary and unlawful.[1107] A

statute providing for the sterilization of defectives in State

institutions was sustained;[1108] but a similar act applicable to triple

offenders was held void.[1109]

Administrative Discretion

A municipal ordinance which vests in supervisory authorities a naked and

arbitrary power to grant or withhold consent to the operation of

laundries in wooden buildings, without consideration of the

circumstances of individual cases, constitutes a denial of equal

protection of the law when consent is withheld from certain persons

solely on the basis of nationality.[1110] But a city council may reserve

to itself the power to make exceptions from a ban on the operation of a

dairy within the city,[1111] or from building line restrictions.[1112]

Written permission of the mayor or president of the city council may be

required before any person shall move a building on a street.[1113] The

Mayor may be empowered to determine whether an applicant has a good

character and reputation and is a suitable person to receive a license

for the sale of cigarettes.[1114] In a recent case[1115] the Court held

that the unfettered discretion of officer river pilots to select their

apprentices, which was almost invariably exercised in favor of their

relatives and friends, was not a denial of equal protection to persons

not selected despite the fact that such apprenticeship was requisite for

appointment as a pilot.

Alien Laws

The Fourteenth Amendment prohibits purely arbitrary discrimination

against aliens.[1116] Where alien race and allegiance bear a reasonable

relation to a legitimate object of legislation, it may be made the basis

of classification. Thus, legislation has been upheld under which aliens

were forbidden to conduct pool rooms[1117] or to take game or possess

shotguns.[1118] A discrimination between citizens and aliens in the

matter of employment on public works is not unconstitutional.[1119] A

State cannot, however, deny to aliens the right to earn a living in

ordinary occupations. Consequently, a statute requiring that employers

of more than five workers employ not less than eighty percent qualified

electors or natural born citizens denies equal protection of the

law.[1120] Likewise a State law forbidding the issuance of commercial

fishing licenses to aliens ineligible for citizenship has been held

void.[1121] State laws forbidding aliens to own real estate, have been

upheld in the past.[1122] A less sympathetic attitude toward such

legislation was indicated in Oyama _v._ California, in 1948.[1123] There

the State of California sought to escheat land owned by an American-born

son of a Japanese father under a provision of its Alien Land Law which

made payment by an alien of the consideration for a transfer of land to

a third person _prima facie_ evidence of intent to evade the statute.

The Court held that the burden of proof imposed upon the son, an

American citizen, by reason of his parent's country of origin, was an

unlawful discrimination, but it did not pass upon the constitutionality

of the Alien Land Law itself. In concurring opinions four Justices took

the position that the law was incompatible with the Fourteenth

Amendment.[1124]

Labor Relations

Objections to labor legislation on the ground that the limitation of

particular regulations to specified industries was obnoxious to the

equal protection clause, have been consistently overruled. Statutes

limiting hours of labor for employees in mines, smelters,[1125] mills,

factories,[1126] or on public works[1127] have been sustained. So also

was a statute forbidding persons engaged in mining and manufacturing to

issue orders for payment of labor unless redeemable at face value in

cash.[1128] The exemption of mines employing less than ten persons from

a law pertaining to measurement of coal to determine a miner's wages is

not unreasonable.[1129] All corporations,[1130] or public service

corporations,[1131] may be required to issue to employees who leave

their service letters stating the nature of the service and the cause of

leaving even though other employers are not.

Industries may be classified in a workmen's compensation act according

to the respective hazards of each;[1132] the exemption of farm laborers

and domestic servants does not render such an act invalid.[1133] A

statute providing that no person shall be denied opportunity for

employment because he is not a member of a union does not offend the

equal protection clause.[1134]

Women, or particular classes of women, may be singled out for special

treatment, in the exercise of the State's protective power, without

violation of the Fourteenth Amendment. Classification may be based on

differences either in their physical characteristics or in the social

conditions which surround their employment. Restrictions on conditions

of employment in particular occupations are not invalid because the law

might have been made broader.[1135] One of the earliest pieces of social

legislation to be sustained was a ten-hour law for women employed in

laundries.[1136] A law limiting hours of labor for women in hotels is

not rendered unconstitutional by reason of the exemption of certain

railroad restaurants.[1137] Night work by women in restaurants may be

prohibited.[1138] Reversing earlier decisions, the Supreme Court upheld

a minimum wage law for women in 1937, saying that their unequal

bargaining position justified a law applicable only to them.[1139]

Women may be forbidden to engage in an occupation where their employment

may create special moral and social problems. A State statute forbidding

women to act as bartenders, but making an exception in favor of wives

and daughters of the male owners of liquor establishments was sustained

over the objection, which three Justices found persuasive, that the act

denied the equal protection of the law to female owners of such

establishments.[1140] Said Justice Frankfurter for the majority: "The

fact that women may now have achieved the virtues that men have long

claimed as their prerogatives and now indulge in vices that men have

long practiced, does not preclude the States from drawing a sharp line

between the sexes, certainly in such matters as the regulation of the

liquor traffic. * * * The Constitution does not require legislatures to

reflect sociological insight, or shifting social standards, any more

than it requires them to keep abreast of the latest scientific

standards."[1141]

Monopolies

On the principle that the law may hit the evil where it is most felt,

State Antitrust Laws applicable to corporations but not to

individuals,[1142] or to vendors of commodities but not to vendors of

labor,[1143] have been upheld. Contrary to its earlier view, the Court

now holds that an Antitrust Act which exempts agricultural products in

the hands of the producer is valid.[1144] Diversity with respect to

penalties also has been sustained. Corporations violating the law may be

proceeded against by bill in equity, while individuals are indicted and

tried.[1145] A provision, superimposed upon the general Antitrust Law,

for revocation of the licenses of fire insurance companies which enter

into illegal combinations, does not violate the equal protection

clause.[1146] A grant of monopoly privileges, if otherwise an

appropriate exercise of the police power, is immune to attack under that

clause.[1147]

Punishment for Crime

Equality of protection under the law implies that in the administration

of criminal justice no person shall be subject to any greater or

different punishment than another in similar circumstances.[1148]

Comparative gravity of criminal offenses is a matter for the State to

determine, and the fact that some offenses are punished with less

severity than others does not deny equal protection.[1149] Heavier

penalties may be imposed upon habitual criminals for like

offenses,[1150] even after a pardon for an earlier offense,[1151] and

such persons may be made ineligible for parole.[1152] A State law

doubling the sentence on prisoners attempting to escape does not deny

equal protection in subjecting prisoners who attempt to escape together

to different sentences depending on their original sentences.[1153]

Infliction of the death penalty for assaults with intent to kill by life

term convicts is not unconstitutional because not applicable to convicts

serving lesser terms.[1154] The Fourteenth Amendment does not preclude

the commitment of persons who, by an habitual course of misconduct, have

evidenced utter lack of power to control sexual impulses, and are likely

to inflict injury.[1155] A statute prohibiting a white person and a

Negro from living together in adultery or fornication is not invalid

because it prescribes penalties more severe than those to which the

parties would be subject were they both of the same race.[1156] The

equal protection clause does not prevent the execution of a prisoner

after the accidental failure of the first attempt.[1157] It does,

however, render invalid a statute requiring sterilization of persons

convicted of various offenses, including larceny by fraud, but exempting

embezzlers.[1158]

Segregation

Laws designed to segregate persons of different races in the location of

their homes, in the public schools and on public conveyances have been a

prolific source of litigation under the equal protection clause. An

ordinance intended to segregate the homes of white and colored races is

invalid.[1159] Private covenants forbidding the transfer of real

property to persons of a certain race or color have been held

lawful,[1160] but the enforcement of such agreements by a State through

its courts would constitute a denial of equal protection of the

laws.[1161] A statute providing for separate but equal accommodations on

railroads for white and colored persons has been held not to deny equal

protection of the law,[1162] but a separate coach law which permits

carriers to provide sleeping and dining cars only for white persons, is

invalid notwithstanding recognition by the legislature that there would

be little demand for them by colored persons.[1163] Fifty years ago the

action of a local board of education in suspending temporarily for

economic reasons a high school for colored children was held not to be a

sufficient reason for restraining the board from maintaining an existing

high school for white children, when the evidence did not indicate that

the board had proceeded in bad faith or had acted in hostility to the

colored race.[1164] A child of Chinese ancestry, who is a citizen of the

United States, is not denied equal protection of law by being assigned

to a public school provided for colored children, when equal facilities

for education are offered to both races.[1165]

Although the principle that separate but equal facilities satisfy

constitutional requirements has not been reversed, the Court in recent

years has been inclined to review more critically the facts of cases

brought before it to ascertain whether equality has, in fact, been

offered. In Missouri _v._ Canada[1166] it held that the State was

denying equal protection of the law in failing to provide a legal

education within the State for Negroes comparable to that afforded white

students. Pursuant to a policy of segregating Negro and white students,

the State had established a law school at the State university for white

applicants. In lieu of setting up one at its Negro university, it

authorized the curators thereof to establish such a school whenever in

their opinion it should be necessary and practicable to do so, and

pending such development, to arrange and pay for the legal education of

the State's Negroes at schools in other States. This was found

insufficient; the obligation of the State to afford the protection of

equal law can be performed only where its laws operate, that is to say,

within its own jurisdiction. It is there that equality of rights must be

maintained. In a later case the Court held that the State of Oklahoma

was obliged to provide legal education for a qualified Negro applicant

as soon as it did for applicants of any other group.[1167] To comply

with this mandate a State court entered an order requiring in the

alternative the admission of a Negro to the state-maintained law school

or non-enrollment of any other applicant until a separate school with

equal educational facilities should be provided for Negroes. Over the

objection of two Justices the Supreme Court held this order did not

depart from its mandate.[1168] After a close examination of the facts,

the Court concluded, in Sweatt _v._ Painter,[1169] that the legal

education offered in a separate law school for Negroes was inferior to

that afforded by the University of Texas Law School and hence that the

equal protection clause required that a qualified applicant be admitted

to the latter. In McLaurin _v._ Oklahoma State Regents[1170] the Court

held that enforced segregation of a Negro student admitted to a State

university was invalid because it handicapped him in the pursuit of

effective graduate instruction.

POLITICAL RIGHTS

In conjunction with the Fifteenth Amendment the equal protection clause

has played an important role in cases involving various expedients

devised to deprive Negro citizens of the right of suffrage. Attempts

have also been made, but thus far without success, to invoke this clause

against other forms of political inequality. The principal devices

employed to prevent voting by Negroes have been grandfather clauses,

educational qualifications, registration requirements and restrictions

on membership in a political party. Grandfather clauses exempting

persons qualified as electors before 1866 and their descendants from

requirements applicable to other voters, were held to violate the

Fifteenth Amendment.[1171] Educational qualifications which did not on

their face discriminate between white and Negro voters were sustained in

the absence of a showing that their actual administration was

evil.[1172] In 1903 in a suit charging that the registration procedure

prescribed by statute was fraudulently designed to prevent Negroes from

voting, the Court, in an opinion written by Justice Holmes, refused to

order the registration of an allegedly qualified Negro, on the whimsical

ground that to do so would make the Court a party to the fraudulent

plan.[1173] The opinion was careful to state that "we are not prepared

to say that an action at law could not be maintained on the facts

alleged in the bill." Such an action was brought some years later in

Oklahoma under a registration law enacted after its "grandfather"

statute had been held unconstitutional. Registration was not necessary

for persons who had voted at the previous election under the invalid

statute. Other persons were required to register during a twelve day

period or be forever disfranchised. A colored citizen who was refused

the right to vote in 1934 because of failure to register during the

prescribed period in 1916, was held to have a cause of action for

damages against the election officials under the Civil Rights Act of

1871. In the opinion of the Court reversing a judgment for the

defendants, Justice Frankfurter said:[1174] "The Amendment nullifies

sophisticated as well as simple minded modes of discrimination. It hits

onerous procedural requirements which effectively handicap exercise of

the franchise by the colored race although the abstract right to vote

may remain unrestricted as to race."

As the selection of candidates by primary elections became general, the

denial of the right to vote in the primary assumed dominant importance.

For many years the Court hesitated to hold that party primaries were

elections within the purview of the Constitution. During that period the

equal protection clause was relied upon to invalidate discrimination

against Negroes. Under the clause, it is necessary to find that

inequality is perpetrated by the State.[1175] The Court had no

difficulty in holding that a State statute which forbade voting by

Negroes in a party primary was obnoxious to the Fourteenth

Amendment.[1176] The same conclusion was reached with respect to

exclusion by action of a party executive committee pursuant to authority

conferred by statute.[1177] But at first it refused to extend this rule

to a restriction on membership imposed without statutory authority by

the State convention of a party.[1178] The latter case was soon

overruled; having, in the meanwhile, decided that a primary is an

integral part of the electoral machinery,[1179] the Court ruled in Smith

_v._ Allwright,[1180] that a restriction on party membership imposed by

a State convention was invalid under the Fifteenth Amendment, where such

membership was a prerequisite for voting in the primary.

Failure has attended the few attempts which have been made to strike

down other alleged discriminations in election laws or in their

administration. Nearly fifty years ago the Court rejected a claim that

an act forbidding the registration of a voter until one year after his

intent to become a legal voter shall have been recorded was a denial of

equal protection.[1181] In Snowden _v._ Hughes,[1182] it held that an

alleged erroneous refusal of a State Primary Canvassing Board to certify

a person as a successful candidate in a party primary was not, in the

absence of a showing of purposeful discrimination, a denial of a

constitutional right which would justify a suit for damages against

members of the Board. Three recent attacks on inequalities in the

effective voting power of persons residing in different geographical

areas were likewise unsuccessful. The Court refused, in Colegrove _v._

Green,[1183] to interfere to prevent the election of Representatives in

Congress by districts in Illinois, because of unequal apportionment. Two

years later, in MacDougall _v._ Green[1184] it held that a State law

requiring candidates of a new political party to obtain a minimum number

of signatures on their nominating petitions in each of 50 counties did

not withhold equal justice from the overwhelming majority of the voters

who resided in the 49 most populous counties. Over the dissent of

Justices Black and Douglas it affirmed the action of a federal district

court in dismissing a complaint challenging the validity of Georgia's

county unit election system, under which the votes of residents of the

most populous county have on the average but one-tenth the weight of

those in other counties.[1185]

PROCEDURE

General Doctrine

The equal protection clause does not exact uniformity of procedure.

State legislatures may classify litigation and adopt one type of

procedure for one class and a different type for another. The procedure

followed in condemnation suits brought by a State need not be the same

as in a suit started by a private corporation.[1186] Procedural rules

may vary in different geographic subdivisions of the State; the State

may be given a larger number of peremptory challenges to jurors in

capital cases in cities having more than 100,000 inhabitants than in

other areas.[1187] A State may require that disputes on the amount of

loss under fire insurance policies be submitted to arbitration.[1188] It

may prescribe the evidence which shall be received and the effect which

shall be given it; proof of one fact, or of several facts taken

collectively, may be made _prima facie_ evidence of another fact, so

long as it is not a mere arbitrary mandate and does not discriminate

invidiously between different persons in substantially the same

situations.[1189] A plaintiff in a stockholder's derivative suit may be

required to give security if he does not own a specified amount of

stock; the size of his financial interest may reasonably be considered

as some measure of his good faith and responsibility in bringing the

suit.[1190]

Access to Courts

The legislature may provide for diversity in the jurisdiction of its

several courts, both as to subject matter and finality of decision, if

all persons within the territorial limits of the respective jurisdiction

have an equal right in like cases to resort to them for redress.[1191]

There is no denial of equal protection of the law by reason of the fact

that in one district the State is allowed an appeal and in another

district it is not.[1192] The legislative discretion to grant or

withhold equitable relief in any class of cases must, under the equal

protection clause, be so exercised as not to grant equitable relief to

one, and to deny it to another under like circumstances and in the same

territorial jurisdiction. A State law forbidding injunctions in labor

disputes is invalid where injunctive relief is available in other

similar controversies.[1193] The action of prison officials in

suppressing a prisoner's appeal documents during the statutory period

for appeal constitutes a denial of equal protection by refusing him

privileges of appeal that were available to others.[1194]

Corporations

A statute permitting suits against domestic corporations to be brought

in any county in which the cause of action arose, is not void as denying

equal protection.[1195] Neither is a statute applicable only to

corporations requiring the production of books and papers upon notice,

with punishment for contempt upon neglect or refusal to comply.[1196]

Where, however, actions against domestic corporations may be brought

only in counties where they may have places of business or where a

chief officer resides, a statute authorizing action against a foreign

corporation in any county is discriminatory and invalid.[1197] So also

is a statute, applicable only to foreign corporations, which requires

the corporation, as a condition precedent to maintenance of an action,

to send its officer into the State, with papers and books bearing on the

matter in controversy, for examination before trial, where nonresident

individuals, as well as individuals and corporations within the State,

were subject to less onerous requirements.[1198]

Expenses of Litigation

A statute which directs that life and health insurance companies who

default in payments of their policies shall pay 12 per cent damages,

together with reasonable attorney's fees, does not deny the equal

protection of the law in failing to impose the same conditions on fire,

marine, and inland insurance companies, and on mutual benefit and relief

associations.[1199] Costs may be allowed to a person who has been

subjected to malicious prosecution, with provision for commitment of the

prosecutor until paid.[1200] Statutes providing for recovery of

reasonable attorney's fees in action on small claims against all classes

of defendants, individual and corporate,[1201] in mandamus

proceedings,[1202] or in actions against railroads for damages caused by

fires[1203] have been upheld. But a statute, applicable only to railway

corporations, providing for recovery of attorney's fees and costs in

actions for certain small claims was found to be repugnant to the equal

protection clause.[1204]

Selection of Jury

Exercising the authority conferred by section 5 of the Fourteenth

Amendment, Congress has expressly forbidden the exclusion of any citizen

from service as a grand or petit juror in any federal or State court, on

the ground of race or color.[1205] Jury commissioners are under the duty

"not to pursue a course of conduct in the administration of their office

which would operate to discriminate in the selection of jurors on racial

grounds."[1206] An accused does not, however, have a legal right to a

jury composed in whole or in part of members of his own race.[1207] Mere

inequality in the numbers of persons selected from different races is

not conclusive; discrimination is unlawful only if it is purposeful and

systematic.[1208] But where it appeared that no Negro had served on a

grand or petit jury for thirty years in a county in which 35 per cent of

the adult population was colored, the inference of systematic exclusion

was not repelled by a showing that few Negroes fulfilled the requirement

that a juror must be a qualified elector.[1209]

To what extent, if at all, the equal protection clause prevents the

exclusion from jury service of any class of persons on any basis other

than race or color is a still unsettled problem of constitutional

interpretation. The selection of jurors may be confined to males, to

citizens, to qualified electors, to persons within certain ages, or to

persons having prescribed educational qualifications.[1210] Certain

occupational groups, such as lawyers, preachers, ministers, doctors,

dentists, and engineers and firemen of railroad trains may be excluded

from jury service.[1211] An issue of even greater consequence is raised

by differentiation in the qualifications of persons selected to try

different kinds of cases. This was the question on which the Supreme

Court divided five to four in Fay _v._ New York[1212] where it upheld a

conviction by a "blue ribbon" jury. In that case defendants, officials

of certain labor unions, were convicted of extortion, by collecting

large sums from contractors for assisting them in avoiding labor

troubles. From a "blue ribbon" jury certain categories of persons

qualified for ordinary jury duty are excluded; and on this ground

defendants claimed that in being tried by such a jury they had been

denied "equal protection of the law" and deprived of "due process of

law," but especially the former, alleging that such juries had a higher

record of conviction than ordinary juries and that their sympathies were

"conservative." The Court, speaking by Justice Jackson, answered that "a

state is not required to try all offenses to the same forum," but

conceded that "a discretion, even if vested in the court, to shunt a

defendant before a jury so chosen as greatly to lessen his chances while

others accused of a like offense are tried by a jury so drawn as to be

more favorable to them, would hardly be 'equal protection of the

laws.'"[1213] However, he asserted that the New York statute authorizing

"blue ribbon" juries "does not exclude, or authorize the clerk to

exclude, any person or class because of race, creed, color or

occupation. It imposes no qualification of an economic nature beyond

that imposed by the concededly valid general panel statute. Each of the

grounds of elimination is reasonably and closely related to the juror's

suitability for the kind of service the special panel requires or to his

fitness to judge the kind of cases for which it is most frequently

utilized. Not all of the grounds of elimination would appear relevant to

the issues of the present case. But we know of no right of defendants to

have a specially constituted panel which would include all persons who

might be fitted to hear their particular and unique case."[1214] He held

further that defendants had failed to shoulder the necessary burden of

proof in support of their allegations of discrimination, and added: "At

most, the proof shows lack of proportional representation and there is

an utter deficiency of proof that this was the result of a purpose to

discriminate against this group as such. The uncontradicted evidence is

that no person was excluded because of his occupation or economic

status. All were subjected to the same tests of intelligence,

citizenship and understanding of English. The state's right to apply

these tests is not open to doubt even though they disqualify, especially

in the conditions that prevail in New York, a disproportionate number of

manual workers. A fair application of literacy, intelligence and other

tests would hardly act with proportional equality on all levels of life.

The most that the evidence does is to raise, rather than answer, the

question whether there was an unlawful disproportionate representation

of lower income groups on the special jury."[1215] Then, as to the due

process clause, he pointed out that the jury had had a long and varied

history in the course of which it has assumed many forms, and that for

that matter the Court "* * * has construed it to be inherent in the

independent concept of due process that condemnation shall be rendered

only after a trial, in which the hearing is a real one, not a sham or

pretense. * * * Trial must be held before a tribunal not biased by

interest in the event. * * * Undoubtedly a system of exclusions could be

so manipulated as to call a jury before which defendants would have so

little chance of a decision on the evidence that it would constitute a

denial of due process. A verdict on the evidence, however, is all an

accused can claim; he is not entitled to a set-up that will give a

chance of escape after he is properly proven guilty. Society also has a

right to a fair trial. The defendant's right is a neutral jury. He has

no constitutional right to friends on the jury."[1216]

APPORTIONMENT OF REPRESENTATION

Section 2. Representatives shall be apportioned among the

several States according to their respective numbers, counting the whole

number of persons in each State, excluding Indians not taxed. But when

the right to vote at any election for the choice of electors for

President and Vice President of the United States, Representatives in

Congress, the Executive and Judicial officers of a State, or the members

of the Legislature thereof, is denied to any of the male inhabitants of

such State, being twenty-one years of age, and citizens of the United

States, or in any way abridged, except for participation in rebellion,

or other crime, the basis of representation therein shall be reduced in

the proportion which the number of such male citizens shall bear to the

whole number of male citizens twenty-one years of age in such State.

In General

The effect of this section in relation to Negroes was indicated in Elk

_v._ Wilkins.[1217] "Slavery having been abolished, and the persons

formerly held as slaves made citizens, this clause fixing the

apportionment of representatives has abrogated so much of * * * [Article

I, Sec. 2, cl. 3] of the * * * original Constitution as counted only

three-fifths of such persons."

"Indians Not Taxed"

Although one authority on the legal status of the American Indian

observed that this "* * * phrase [was] never * * * more explicitly

defined, but probably * * * [meant] * * * Indians resident on

reservations, that is, on land not taxed by the States,"[1218] the

United States Attorney General, in 1940, commented as follows upon the

difficulty of arriving at any satisfactory construction of these words:

"Whether the phrase 'Indians not taxed' refers (1) to Indians not

actually paying taxes or only to those who are not subject to taxation

and (2) to Indians not taxed or subject to taxation by any taxing

authority or only to those not taxed or subject to taxation by the

States in which they reside * * * [presents] questions * * * [which

have] been discussed in a number of court decisions but the issue has

never been squarely raised in any of the decided cases. Some of the

cases and some statements appearing in the debates in the Constitutional

Convention lend support to the view that since all Indians are now

subject to the Federal income-tax laws [Superintendent _v._

Commissioner, 295 U.S. 418 (1935)] there are no longer any Indians not

taxed within the meaning of the constitutional phrase. On the other

hand, other decided cases and other statements appearing in the debates

in the Convention equally support the contrary view. * * *, the answer

to * * * [these questions] is not free from doubt."[1219]

As to the latest construction which Congress has given to this phrase in

apportioning seats in the House of Representatives, it is pertinent to

note that the Apportionment Act of 1929, at last amended in 1941,[1220]

excludes "Indians not taxed" from the computation of the total

population of each State. However, in reliance on the above-mentioned

decision that all Indians are now subject to federal income taxation,

the Director of the Census included all Indians in the 1940 tabulation

of total population in each State, and Congress took no action to alter

the effects which such inclusion had upon the number of seats

distributed to the several States.[1221]

Right to Vote

The right to vote intended to be protected refers to the right to vote

as established by the laws and constitution of the State; subject,

however, to the limitation that the Constitution, in article I, section

2, adopts as qualifications for voting for members of Congress those

qualifications established by the States for voting for the most

numerous branch of their legislatures.

To the latter extent the right to vote for members of Congress has been

declared to be fundamentally based upon the Constitution and as never

having been intended to be left within the exclusive control of the

States.[1222]

Reduction of State's Representation

"Questions relating to the apportionment of representatives among the

several States are political in their nature and reside exclusively

within the determination of Congress * * *" Consequently, a United

States District Court was obliged to dismiss an action for damages

against the Virginia Secretary of State for the latter's refusal to

certify the plaintiff as candidate for the office of Congressman at

large, inasmuch as the plaintiff's case rested on the theory that the

apportionment act of Congress and the Redistricting Act of Virginia, by

failing to take into account the disenfranchisement of 60% of the voters

occasioned by the poll tax, were both invalid, and that Virginia

accordingly was entitled to only four instead of nine Congressmen, which

four were to be elected at large.[1223] "It is well known that the

elective franchise has been limited or denied to citizens in various

States of the union in past years, but no serious attempt has been made

by Congress to enforce the mandate of the second section of the

Fourteenth Amendment, and it is noteworthy that there are no instances

in which the courts have attempted to revise the apportionment of

Representatives by Congress."[1224]

DISQUALIFICATION OF OFFICERS

Section 3. No Person shall be a Senator or Representative in

Congress, or elector of President and Vice President, or hold any

office, civil or military, under the United States, or under any State,

who, having previously taken an oath, as a member of Congress, or as an

officer of the United States, or as a member of any State legislature,

or as an executive or judicial officer of any State, to support the

Constitution of the United States, shall have engaged in insurrection or

rebellion against the same, or given aid or comfort to the enemies

thereof. But Congress may by a vote of two-thirds of each House, remove

such disability.

In General

The right to remove disabilities imposed by this section was exercised

by Congress at different times on behalf of enumerated

individuals--notably by act of December 14, 1869 (16 Stat. 607). In

1872, the disabilities were removed, by a blanket act, from all persons

"except Senators and Representatives of the Thirty-sixth and

Thirty-seventh Congresses, officers in the judicial military, and naval

service of the United States, heads of departments, and foreign

ministers of the United States" (17 Stat. 142). Twenty-six years later,

on June 6, 1898 (30 Stat. 432), Congress enacted briefly that "the

disability imposed by section 3 * * * incurred heretofore [prior to June

6, 1898], is hereby removed."[1225]

PUBLIC DEBT, ETC.

Section 4. The validity of the public debt of the United

States, authorized by law, including debts incurred for payment of

pensions and bounties for services in suppressing insurrection or

rebellion, shall not be questioned. But neither the United States nor

any State shall assume or pay any debt or obligation incurred in aid of

insurrection or rebellion against the United States, or any claim for

the loss or emancipation of any slave; but all such debts, obligations

and claims shall be held illegal and void.

Although section four "was undoubtedly inspired by the desire to put

beyond question the obligations of the Government issued during the

Civil War, its language indicates a broader connotation. * * * 'the

validity of the public debt' * * * [embraces] whatever concerns the

integrity of the public obligations," and applies to government bonds

issued after as well as before adoption of the Amendment.[1226]

ENFORCEMENT

Section 5. The Congress shall have power to enforce, by

appropriate legislation, the provisions of this article.

Scope of the Provision

"* * * until some State law has been passed, or some State action

through its officers or agents has been taken, adverse to the rights of

citizens sought to be protected by the Fourteenth Amendment, no

legislation of the United States under said amendment, nor any

proceeding under such legislation, can be called into activity: * * *

The legislation which Congress is authorized to adopt in this behalf is

not general legislation upon the rights of the citizen, but corrective

legislation, that is, such as may be necessary and proper for

counteracting such laws as the States may adopt or enforce, and which,

by the amendment, they are prohibited from making or enforcing, or such

acts and proceedings as the States may commit or take, and which, by the

amendment, they are prohibited from committing or taking."[1227]

Conversely, Congress may enforce the provisions of the amendment

whenever they are disregarded by either the legislative, the executive,

or the judicial department of the State. The mode of the enforcement is

left to its discretion. It may secure the right, that is, enforce its

recognition, by removing the case from a State court, in which it is

denied, into a federal court where it will be acknowledged.[1228]

Similarly, Congress may provide that "no citizen, possessing all other

qualifications which are or may be prescribed by law shall be

disqualified for service as grand or petit juror in any court of the

United States, or of any State, on account of race, color, or previous

condition of servitude; and any officer or other person charged with any

duty in the selection or summoning of jurors who shall exclude or fail

to summon any citizen for the cause aforesaid shall, on conviction

thereof, be deemed guilty of a misdemeanor, * * *"[1229] However, the

Supreme Court declined to sustain Congress when, under the guise of

enforcing the Fourteenth Amendment by appropriate legislation, it

enacted a statute which was not limited to take effect only in case a

State should abridge the privileges of United States citizens, but

applied no matter how well the State might have performed its duty, and

would subject to punishment private individuals who conspired to deprive

anyone of the equal protection of the laws.[1230]

Whether its powers of enforcement enable Congress constitutionally to

punish State officers who abuse their authority and act in violation of

their State's laws is a question on which the Justices only recently

have divided. Five Justices ruled in Screws _v._ United States[1231]

that section 20 of the Criminal Code[1232] which provides "whoever,

under the color of any law, statute, ordinance, * * *, willfully

subjects, * * *, any inhabitant of any State, * * * to the deprivation

of any rights, * * * protected by the Constitution and laws of the

United States, * * *" could be the basis of a prosecution of Screws, a

Georgia sheriff, and others, on charges of having, in the course of

arresting a Negro, brutally beaten him to death and deprive him of "the

right not to be deprived of life without due process of law."[1233]

Holding that, "abuse of State power" does not create "immunity to

federal power" these five Justices concluded that Ex parte

Virginia[1234] and United States _v._ Classic[1235] had rejected for all

time the defense that action by state officers in excess of their powers

did not constitute state action "under color of law" and therefore was

punishable, if at all, only as a crime against the State.[1236] The

conviction of Screws was, however, reversed on the ground that the jury

should have been instructed to say whether the accused had had the

"specific intent" to deprive their victim of his constitutional rights,

since in the absence of such a finding Sec. 20 failed for

indefiniteness.[1237] But this construction of the word "willfully"

appears subsequently to have been abandoned, or at least considerably

watered down. In Williams _v._ United States,[1238] decided in April

1951, the Court ruled, by a bare majority, that a conviction under Sec. 20

was not subject to objection on the ground of the vagueness of the

statute where the indictment made it clear that the constitutional right

violated by the defendant was immunity from the use of force and

violence to obtain a confession, and this meaning was also made clear by

the trial judge's charge to the jury.[1239] To the same effect is the

later case of Koehler _v._ United States[1240] in which the Court denied

certiorari in a case closely resembling that of Screws, although the

trial judge, while charging the jury that it must find specific intent,

nevertheless went on to say:"'The color of the act determines the

complexion of the intent. The intent to injure or defraud is presumed

when the unlawful act, which results in loss or injury, is proved to

have been knowingly committed. It is a well settled rule, which the law

applies to both criminal and civil cases, that the intent is presumed

and inferred from the result of the action.'"[1241]

Notes

[1] As to the other categories, see Art. I, Sec. 8, cl. 4, Naturalization

(_see_ pp. 254-256).

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

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

[4] By the Civil Rights Act of April 9, 1866 (14 Stat. 27), enacted two

years prior to the Fourteenth Amendment, "All persons born in the United

States and not subject to any foreign power, excluding Indians not

taxed, are hereby declared to be citizens of the United States; * * *"

[5] 169 U.S. 649 (1898).--Thus, a person who was born in the United

States of Swedish parents then naturalized here did not lose her

citizenship and was therefore not subject to deportation because of her

removal to Sweden during her minority, it appearing that her parents

resumed their citizenship in that country, but that she returned here on

attaining majority with intention to retain and maintain her

citizenship.--Perkins _v._ Elg, 307 U.S. 325 (1939).

[6] 169 U.S. 682.

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

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

[9] United States _v._ Gordon, Fed. Cas. No. 15,231 (1861). The term,

United States, is defined in the recently enacted Immigration and

Nationality Act as follows: "The term, 'United States', except as

otherwise specifically herein provided, when used in a geographical

sense, means the continental United States, Alaska, Hawaii, Puerto Rico,

Guam, and the Virgin Islands of the United States." 66 Stat. 165, Sec. 101

(38). Whether the expression is used in the same sense in Amendment XIV

may be questionable.

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

[11] Arver _v._ United States (Selective Draft Law Cases), 245 U.S. 366,

377, 388-389 (1918).

[12] Insurance Co. _v._ New Orleans, Fed. Cas. No. 7,052 (1870).--Not

being citizens of the United States, corporations accordingly have been

declared unable "to claim the protection of that clause of the

Fourteenth Amendment which secures the privileges and immunities of

citizens of the United States against abridgment or impairment by the

law of a State."--Orient Ins. Co. _v._ Daggs, 172 U.S. 557, 561 (1899).

This conclusion was in harmony with the earlier holding in Paul _v._

Virginia, 8 Wall. 168 (1869) to the effect that corporations were not

within the scope of the privileges and immunities clause of state

citizenship set out in article 4, section 2. _See also_ Selover, Bates &

Co. _v._ Walsh, 226 U.S. 112, 126 (1912); Berea College _v._ Kentucky,

211 U.S. 45 (1908); Liberty Warehouse Co. _v._ Burley Tobacco Growers'

Co-op. Marketing Asso., 276 U.S. 71, 89 (1928); Grosjean _v._ American

Press Co., 297 U.S. 233, 244 (1936).

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

[14] Ibid. 78-79.

[15] Ibid. 79, citing Crandall _v._ Nevada, 6 Wall. 35 (1868). Decided

before ratification of the Fourteenth Amendment.

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

[17] Crandall _v._ Nevada, 6 Wall. 35 (1868). This case has been cited

as supporting the claim that "the right to pass freely from State to

State" is "among the rights and privileges of National citizenship"

(Twining _v._ New Jersey, 211 U.S. 78, 97 (1908)); but it was pointed

out in United States _v._ Wheeler, 254 U.S. 281, 299 (1920), that the

statute involved in the Crandall Case was held to burden directly the

performance by the United States of its governmental functions. In

Williams _v._ Fears, 179 U.S. 270, 274 (1900), a law taxing the business

of hiring persons to labor outside the State was upheld on the ground

that it affected freedom of egress from the State "only incidentally and

remotely."

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

[19] Ex parte Yarbrough, 110 U.S. 651 (1884); Wiley _v._ Sinkler, 179

U.S. 58 (1900).

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

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

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

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

[24] 307 U.S. 496.

[25] Concurring in the result, Justice Stone contended that the case

should have been disposed of by reliance upon the due process, rather

than the privileges and immunities, clause, inasmuch as the record

disclosed that the complainants had not invoked the latter clause and

the evidence failed to indicate that any of the complainants were in

fact citizens or that any relation between citizens and the Federal

Government was involved.--Ibid. 525-527.

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

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

[28] 6 Wall. 35 (1868).

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

[30] 296 U.S. 404.

[31] _See_ Madden _v._ Kentucky, 309 U.S. 83, 93.

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

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

[34] Ibid. 640.

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

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

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

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

U.S. 195 (1915).

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

[40] Western U. Teleg. Co. _v._ Commercial Milling Co., 218 U.S. 406

(1910).

[41] Bradwell _v._ Illinois, 16 Wall. 130, 139 (1873); Re Lockwood, 154

U.S. 116 (1894).

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

[43] Bartemeyer _v._ Iowa, 18 Wall. 129 (1874); Mugler _v._ Kansas, 123

U.S. 623 (1887); Crowley _v._ Christensen, 137 U.S. 86, 91 (1890);

Giozza _v._ Tiernan, 148 U.S. 657 (1893).

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

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

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

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

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

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

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

[51] Twining _v._ New Jersey, 211 U.S. 78, 91-98 (1908). Reaffirmed in

Adamson _v._ California, 332 U.S. 46, 51-53 (1947).

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

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

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

[55] Madden _v._ Kentucky, 309 U.S. 83, 92-93 (1940); overruling Colgate

_v._ Harvey, 296 U.S. 404, 430 (1935).

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

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

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

[59] Carroll _v._ Greenwich Ins. Co., 199 U.S. 401, 410 (1905). _See

also_ French _v._ Barber Asphalt Paving Co., 181 U.S. 324, 328 (1901).

[60] Scott _v._ Sandford, 19 How. 393, 450 (1857), is the exception.

_See_ pp. 963-964.

[61] 16 Wall. 36 (1873).

[62] Ibid. 80-81.

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

[64] Ibid. 134.

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

[66] Ibid. 103-104.

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

[68] Ibid. 528, 532, 536.

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

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

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

[72] Savings & Loan Association _v._ Topeka, 20 Wall. 655, 663

(1875).--"There are * * * rights in every free government beyond the

control of the State. * * * There are limitations on [governmental

power] which grow out of the essential nature of all free governments.

Implied reservations of individual rights, without which the social

compact could not exist, * * *"

[73] "Rights to life, liberty, and the pursuit of happiness are

equivalent to the rights of life, liberty, and property. These are the

fundamental rights which can only be taken away by due process of law,

and which can only be interfered with, or the enjoyment of which can

only be modified, by lawful regulations necessary or proper for the

mutual good of all; * * * This right to choose one's calling is an

essential part of that liberty which it is the object of government to

protect; and a calling, when chosen, is a man's property and right. * *

* A law which prohibits a large class of citizens from adopting a lawful

employment, or from following a lawful employment previously adopted,

does deprive them of liberty as well as property, without due process of

law."--Slaughter-House Cases, 16 Wall. 36, 116, 122 (Justice Bradley).

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

[75] _See_ Fletcher _v._ Peck, 6 Cr. 87, 128 (1810).

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

[77] Ibid. 132.

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

[79] Ibid. 662.--"We cannot shut out of view the fact, within the

knowledge of all, that the public health, the public morals, and the

public safety, may be endangered by the general use of intoxicating

drinks; nor the fact, * * *, that * * * pauperism, and crime * * * are,

in some degree, at least, traceable to this evil."

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

[81] Ibid. 685.

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

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

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

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

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

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

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

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

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

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

[92] Ibid.

[93] Adkins _v._ Children's Hospital, 261 U.S. 525 (1923); Stettler _v._

O'Hara, 243 U.S. 629 (1917); Morehead _v._ New York ex rel. Tipaldo, 298

U.S. 587 (1936); overruled by West Coast Hotel Co. _v._ Parrish, 300

U.S. 379 (1937).

[94] West Coast Hotel Co. _v._ Parrish, 300 U.S. 379 (1937). Thus the

National Labor Relations Act was declared not to "interfere with the

normal exercise of the right of the employer to select its employees or

to discharge them." However, restraint of the employer for the purpose

of preventing an unjust interference with the correlative right of his

employees to organize was declared not to be arbitrary.--National Labor

Relations Board _v._ Jones & Laughlin, 301 U.S. 1, 44, 45-46 (1937).

[95] _See_ especially Howard Jay Graham, "The 'Conspiracy Theory' of the

Fourteenth Amendment", _Selected Essays on Constitutional Law_, I,

236-267 (1938).

[96] 94 U.S. 113.--In a case arising under the Fifth Amendment, decided

almost at the same time, the Court explicitly declared the United States

"equally with the States * * * are prohibited from depriving persons or

corporations of property without due process of law." Sinking Fund

Cases, 99 U.S. 700, 718-719 (1878).

[97] Smyth _v._ Ames, 169 U.S. 466, 522, 526 (1898); Kentucky Finance

Corp. _v._ Paramount Auto Exch. Corp., 262 U.S. 544, 550 (1923); Liggett

(Louis K.) Co. _v._ Baldridge, 278 U.S. 105 (1928).

[98] Northwestern Nat. L. Ins. Co. _v._ Riggs, 203 U.S. 243, 255 (1906);

Western Turf Assoc. _v._ Greenberg, 204 U.S. 359, 363 (1907); Pierce

_v._ Society of the Sisters, 268 U.S. 510, 535 (1925). Earlier, in 1904,

in Northern Securities Co. _v._ United States, (193 U.S. 197, 362), a

case interpreting the federal antitrust law, Justice Brewer, in a

concurring opinion, had declared that "a corporation, * * *, is not

endowed with the inalienable rights of a natural person."

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

[100] Yick Wo _v._ Hopkins, 118 U.S. 356 (1886); Terrace _v._ Thompson,

263 U.S. 197, 216 (1923).

[101] Columbus & G.R. Co. _v._ Miller, 283 U.S. 96 (1931); Pennie _v._

Reis, 132 U.S. 464 (1889); Taylor _v._ Beckham (No. 1), 178 U.S. 548

(1900); Straus _v._ Foxworth, 231 U.S. 162 (1913); Tyler _v._ Judges of

the Court of Registration, 179 U.S. 405, 410 (1900).

[102] Pawhuska _v._ Pawhuska Oil Co., 250 U.S. 394 (1919); Trenton _v._

New Jersey, 262 U.S. 182 (1923); Williams _v._ Baltimore, 289 U.S. 36

(1933).

[103] Boynton _v._ Hutchinson Gas Co., 291 U.S. 656 (1934); South

Carolina Highway Dept. _v._ Barnwell Bros., 303 U.S. 177 (1938).

The converse is not true, however; and "the interest of a State official

in vindicating the Constitution * * * gives him no legal standing to

attack the constitutionality of a State statute in order to avoid

compliance with it.--Smith _v._ Indiana, 191 U.S. 138 (1903); Braxton

County Ct. _v._ West Virginia, 208 U.S. 192 (1908); Marshall _v._ Dye,

231 U.S. 250 (1913); Stewart _v._ Kansas City, 239 U.S. 14 (1915). _See

also_ Coleman _v._ Miller, 307 U.S. 433, 437-446 (1939)."

[104] Bacon _v._ Walker, 204 U.S. 311 (1907); Chicago, B. & Q.R. Co.

_v._ Illinois ex rel. Grimwood, 200 U.S. 561, 592 (1906); California

Reduction Co. _v._ Sanitary Reduction Works, 199 U.S. 306, 318 (1905);

Eubank _v._ Richmond, 226 U.S. 137 (1912); Schmidinger _v._ Chicago, 226

U.S. 578 (1913); Sligh _v._ Kirkwood, 237 U.S. 52, 58-59 (1915); Nebbia

_v._ New York, 291 U.S. 502 (1934); Nashville C. & St. L.R. Co. _v._

Walters, 294 U.S. 405 (1935).

[105] Hadacheck _v._ Sebastian, 239 U.S. 394 (1915); Hall _v._

Geiger-Jones Co., 242 U.S. 539 (1917); Sligh _v._ Kirkwood, 237 U.S. 52,

58-59 (1915); Eubank _v._ Richmond, 226 U.S. 137, 142 (1912); Erie R.

Co. _v._ Williams, 233 U.S. 685, 699 (1914); Panhandle Eastern Pipe Line

Co. _v._ State Highway Commission, 294 U.S. 613, 622 (1935); Hudson

County Water Co. _v._ McCarter, 209 U.S. 349 (1908).

[106] Atlantic Coast Line R. Co. _v._ Goldsboro, 232 U.S. 548, 558

(1914).

[107] Treigle _v._ Acme Homestead Asso., 297 U.S. 189, 197 (1933);

Liggett (Louis K.) Co. _v._ Baldridge, 278 U.S. 105, 111-112 (1928).

[108] Pennsylvania Coal Co. _v._ Mahon, 260 U.S. 393 (1922). _See also_

Welch _v._ Swasey, 214 U.S. 91, 107 (1909).

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

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

[111] New Orleans Public Service Co. _v._ New Orleans, 281 U.S. 682, 687

(1930).

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

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

[114] Jacobson _v._ Massachusetts, 197 U.S. 11 (1905); Zucht _v._ King,

260 U.S. 174 (1922).

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

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

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

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

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

[120] Ibid. 534. Even this statement was a dictum. Inasmuch as only

corporations and no parents were party litigants, the Court in fact

disposed of the case on the ground that the corporations were being

deprived of their "property" without due process of law.

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

[122] Hamilton _v._ University of California, 293 U.S. 245, 262 (1934).

_See also_ p. 768.

[123] 16 Wall. 36 (1873).

[124] 165 U.S. 578, 589.--Herein liberty of contract was defined as

follows: "The liberty mentioned in that [Fourteenth] Amendment means not

only the right of the citizen to be free from the mere physical

restraint of his person, as by incarceration, but the term is deemed to

embrace the right of the citizen to be free in the enjoyment of all his

faculties; to be free to use them in all lawful ways; to live and work

where he will; to earn his livelihood by any lawful calling; to pursue

any livelihood or avocation, and for that purpose to enter into all

contracts which may be proper, necessary and essential to his carrying

out to a successful conclusion the purposes above mentioned."

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

[126] Chicago, B. & Q.R. Co. _v._ McGuire, 219 U.S. 549, 567, 570

(1911); Wolff Packing Co. _v._ Court of Industrial Relations, 262 U.S.

522, 534 (1923).

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

[128] Miller _v._ Wilson, 236 U.S. 373 (1915); Bosley _v._ McLaughlin,

236 U.S. 385 (1915). _See also_ Muller _v._ Oregon, 208 U.S. 412 (1908);

Riley _v._ Massachusetts, 232 U.S. 671 (1914); Hawley _v._ Walker, 232

U.S. 718 (1914).

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

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

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

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

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

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

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

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

[137] Knoxville Iron Co. _v._ Harbison, 183 U.S. 13 (1901); Dayton Coal

& I. Co. _v._ Barton, 183 U.S. 23 (1901); Keokee Consol. Coke Co. _v._

Taylor, 234 U.S. 224 (1914).

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

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

[140] Rail & River Coal Co. _v._ Yaple, 236 U.S. 338 (1915). _See also_

McClean _v._ Arkansas, 211 U.S. 539 (1909).

[141] West Coast Hotel Co. _v._ Parrish, 300 U.S. 379 (1937), overruling

Adkins _v._ Children's Hospital, 261 U.S. 255 (1923) (a Fifth Amendment

case); Morehead _v._ New York ex rel. Tipaldo, 298 U.S. 587 (1936).

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

[143] Ibid., 424-425.

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

[145] Arizona Copper Co. _v._ Hammer (Arizona Employers' Liability

Cases), 250 U.S. 400, 419-420 (1919).

[146] In determining what occupations may be brought under the

designation of "hazardous," the legislature may carry the idea to the

"vanishing point."--Ward & Gow _v._ Krinsky, 259 U.S. 503, 520 (1922).

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

_v._ Washington, 243 U.S. 219 (1917).

[148] Arizona Copper Co. _v._ Hammer (Arizona Employers' Liability

Cases), 250 U.S. 400, 419-420 (1919).

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

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

[151] Alaska Packers Asso. _v._ Industrial Commission, 294 U.S. 532

(1935).

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

[153] Booth Fisheries Co. _v._ Industrial Commission, 271 U.S. 208

(1920).

[154] Staten Island R.T.R. Co. _v._ Phoenix Indemnity Co., 281 U.S. 98

(1930).

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

Co. _v._ Shuler, 265 U.S. 379 (1924).

[156] New York C.R. Co. _v._ Bianc, 250 U.S. 596 (1919).--Attorneys are

not deprived of property or their liberty of contract by restriction

imposed by the State on the fees which they may charge in cases arising

under the workmen's compensation law.--Yeiser _v._ Dysart, 267 U.S. 540

(1925).

[157] Justice Black in Lincoln Union _v._ Northwestern Co., 335 U.S.

525, 535 (1949). _See also_ pp. 141, 977-979, 985.

In his concurring opinion, contained in the companion case of American

Federation of Labor _v._ American Sash Co., 335 U.S. 538, 543-544

(1949), Justice Frankfurter summarized as follows the now obsolete

doctrines employed by the Court to strike down State laws fostering

unionization. "* * * unionization encountered the shibboleths of a

premachine age and these were reflected in juridical assumptions that

survived the facts on which they were based. Adam Smith was treated as

though his generalizations had been imparted to him on Sinai and not as

a thinker who addressed himself to the elimination of restrictions which

had become fetters upon initiative and enterprise in his day. Basic

human rights expressed by the constitutional conception of 'liberty'

were equated with theories of _laissez faire_. The result was that

economic views of confined validity were treated by lawyers and judges

as though the Framers had enshrined them in the Constitution. * * * The

attitude which regarded any legislative encroachment upon the existing

economic order as infected with unconstitutionality led to disrespect

for legislative attempts to strengthen the wage-earners' bargaining

power. With that attitude as a premise, Adair _v._ United States, 208

U.S. 161 (1908), and Coppage _v._ Kansas, 236 U.S. 1 (1915), followed

logically enough; not even Truax _v._ Corrigan, 257 U.S. 312 (1921),

could be considered unexpected."

On grounds of unconstitutional impairment of freedom of contract, or

more particularly, of the unrestricted right of the employer to hire and

fire, a federal and a State statute attempting to outlaw "yellow dog"

contracts whereby, as a condition of obtaining employment, a worker had

to agree not to join or to remain a member of a union, were voided in

Adair _v._ United States and Coppage _v._ Kansas, respectively. In Truax

_v._ Corrigan, a majority of the Court held that an Arizona statute

which operated, in effect, to make remediless [by forbidding the use of

injunction] injury to an employer's business by striking employees and

others, through concerted action in picketing, displaying banners

advertising the strike, denouncing the employer as unfair to union

labor, appealing to customers to withdraw their patronage, and

circulating handbills containing abusive and libelous charges against

employers, employees, and patrons, and intimidations of injury to future

patrons, deprives the owner of the business and the premises of his

property without due process of law.

In Wolff Packing Co. _v._ Industrial Court, 262 U.S. 522 (1923); 267

U.S. 552 (1925) and in Dorchy _v._ Kansas, 264 U.S. 286 (1924), the

Court had also ruled that a statute compelling employers and employees

to submit their controversies over wages and hours of labor to State

arbitration was unconstitutional as part of a system compelling

employers and employees to continue in business on terms not of their

own making.

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

[159] Prudential Ins. Co. _v._ Cheek, 259 U.S. 530 (1922). In

conjunction with its approval of this statute, the Court also sanctioned

judicial enforcement by a State court of a local rule of policy which

rendered illegal an agreement of several insurance companies having a

monopoly of a line of business in a city that none would employ within

two years any man who had been discharged from, or left, the service of

any of the others.

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

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

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

[163] _See_ p. 1141.

[164] Cases disposing of the contention that restraints on picketing

amount to a denial of freedom of speech and constitute therefore a

deprivation of liberty without due process of law have been set forth

under Amendment I.

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

[166] Ibid. 94. Justice Frankfurter, concurring, declared that "the

insistence by individuals on their private prejudices * * *, in

relations like those now before us, ought not to have a higher

constitutional sanction than the determination of a State to extend the

area of nondiscrimination beyond that which the Constitution itself

exacts." Ibid. 98.

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

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

[169] 335 U.S. 525, 534, 537. In a lengthy opinion, in which he

registered his concurrence with both decisions, Justice Frankfurter set

forth extensive statistical data calculated to prove that labor unions

not only were possessed of considerable economic power but by virtue of

such power were no longer dependent on the closed shop for survival. He

would therefore leave to the legislatures the determination "whether it

is preferable in the public interest that trade unions should be

subjected to State intervention or left to the free play of social

forces, whether experience has disclosed 'union unfair labor practices,'

and, if so, whether legislative correction is more appropriate than

self-discipline and pressure of public opinion--* * *." 335 U.S. 538,

549-550.

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

[171] Ibid. 253.

[172] 336 U.S. 490 (1949). Other recent cases regulating picketing are

treated under Amendment I, _see_ p. 781.

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

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

[175] Wolff Packing Co. _v._ Court of Industrial Relations, 262 U.S.

522, 535-536 (1923).

[176] Munn _v._ Illinois, 94 U.S. 113 (1877); Budd _v._ New York, 143

U.S. 517, 546 (1802); Brass _v._ North Dakota ex rel. Stoeser, 153 U.S.

391 (1894).

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

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

[179] German Alliance Ins. Co. _v._ Lewis, 233 U.S. 389 (1914); Aetna

Ins. Co. _v._ Hyde, 275 U.S. 440 (1928).

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

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

[182] Tyson & Bros.--United Theatre Ticket Offices _v._ Banton, 273 U.S.

418 (1927).

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

[184] Nebbia _v._ New York, 291 U.S. 502, 531-532, 535-537, 539 (1934).

In reaching this conclusion the Court might be said to have elevated to

the status of prevailing doctrine the views advanced in previous

decisions by dissenting Justices. Thus, Justice Stone, dissenting in

Ribnik _v._ McBride, 277 U.S. 350, 350-360 (1928) had declared: "Price

regulation is within the State's power whenever any combination of

circumstances seriously curtails the regulative force of competition so

that buyers or sellers are placed at such a disadvantage in the

bargaining struggle that a legislature might reasonably anticipate

serious consequences to the community as a whole." In his dissenting

opinion in New State Ice Co. _v._ Liebmann, 285 U.S. 202, 302-303

(1932), Justice Brandeis had also observed that: "The notion of a

distinct category of business 'affected with a public interest'

employing property 'devoted to a public use' rests upon historical

error. In my opinion the true principle is that the State's power

extends to every regulation of any business reasonably required and

appropriate for the public protection. I find in the due process clause

no other limitation upon the character or the scope of regulation

permissible."

[185] Justice McReynolds, speaking for the dissenting Justices, labelled

the controls imposed by the challenged statute as a "fanciful scheme to

protect the farmer against undue exactions by prescribing the price at

which milk disposed of by him at will may be resold." Intimating that

the New York statute was as efficacious as a safety regulation which

required "householders to pour oil on their roofs as a means of curbing

the spread of a neighborhood fire," Justice McReynolds insisted that

"this Court must have regard to the wisdom of the enactment," and must

determine "whether the means proposed have reasonable relation to

something within legislative power."--291 U.S. 502, 556, 558 (1934).

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

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

[188] 94 U.S. 113 (1877). _See also_ Peik _v._ Chicago & N.W.R. Co., 94

U.S. 164 (1877).

[189] Rate-making is deemed to be one species of price fixing. Power

Comm'n _v._ Pipeline Co., 315 U.S. 575, 603 (1942).

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

[191] 96 U.S. 97 (1878). _See also_ Chicago, B. & Q.R. Co. _v._ Chicago,

166 U.S. 226 (1897).

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

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

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

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

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

[197] Ibid 397. Insofar as judicial intervention resulting in the

invalidation of legislatively imposed rates has involved carriers, it

should be noted that the successful complainant invariably has been the

carrier, not the shipper.

[198] 169 U.S. 466 (1898).--Of course the validity of rates prescribed

by a State for services wholly within its limits, must be determined

wholly without reference to the interstate business done by a public

utility. Domestic business should not be made to bear the losses on

interstate business, and vice versa. Thus a State has no power to

require the hauling of logs at a loss or at rates that are unreasonable,

even if a railroad receives adequate revenues from the intrastate long

haul and the interstate lumber haul taken together. On the other hand,

in determining whether intrastate passenger railway rates are

confiscatory, all parts of the system within the State (including

sleeping, parlor, and dining cars) should be embraced in the

computation; and the unremunerative parts should not be excluded because

built primarily for interstate traffic or not required to supply local

transportation needs.--_See:_ Minnesota Rate Cases (Simpson _v._

Shepard), 230 U.S. 352, 434-435 (1913); Chicago, M. & St. P.R. Co. _v._

Public Utilities Commission, 274 U.S. 344 (1927); Groesbeck _v._ Duluth,

S.S. & A.R. Co., 250 U.S. 607 (1919). The maxim that a legislature

cannot delegate legislative power is qualified to permit creation of

administrative boards to apply to the myriad details of rate schedules

the regulatory police power of the State. To prevent the conferring upon

an administrative agency of authority to fix rates for public service

from being a mere delegation of legislative power, and therefore void,

the legislature must enjoin upon it a certain course of procedure and

certain rules of decision in the performance of its functions, with

which the agency must substantially comply to validate its action.

Wichita Railroad & L. Co. _v._ Public Utilities Commission, 260 U.S. 48

(1922).

[199] Reagan _v._ Farmers' Loan & Trust Company, 154 U.S. 362, 397

(1894).

[200] Interstate Commerce Commission _v._ Illinois C.R. Co., 215 U.S.

452, 470 (1910).

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

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

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

(1913).

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

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

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

[207] 174 U.S. 739, 750, 754 (1899). _See also_ Minnesota Rate Cases

(Simpson _v._ Shepard), 230 U.S. 352, 433 (1913).

[208] San Diego Land & Town Co. _v._ Jasper, 189 U.S. 439, 441, 442

(1903). _See also_ Van Dyke _v._ Geary, 244 U.S. 39 (1917); Georgia Ry.

_v._ R.R. Comm., 262 U.S. 625, 634 (1923).

[209] For its current position, _see_ Crowell _v._ Benson, 285 U.S. 22

(1932).

[210] 222 U.S. 541, 547-548 (1912). _See also_ Interstate Comm. Comm.

_v._ Illinois C.R., 215 U.S. 452, 470 (1910).

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

[212] Ibid. 289. In injunctive proceedings, evidence is freshly

introduced whereas in the cases received on appeal from State courts,

the evidence is found within the record.

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

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

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

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

[217] 320 U.S. 591, 602.--Although this and the previously cited

decision arose out of controversies involving the Natural Gas Act of

1938 (52 Stat. 821), the principles laid down therein are believed to be

applicable to the review of rate orders of State commissions, except

insofar as the latter operate in obedience to laws containing unique

standards or procedures.

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

[219] In Federal Power Commission _v._ Nat. Gas Pipeline Co., 315 U.S.

575, 599, Justices Black, Douglas, and Murphy, in a concurring opinion,

proposed to travel the road all the way back to Munn _v._ Illinois, and

deprive courts of the power to void rates simply because they deem the

latter to be unreasonable. In a concurring opinion, written earlier in

1939 in Driscoll _v._ Edison Co., 307 U.S. 104, 122, Justice Frankfurter

temporarily adopted a similar position; for therein he declared that

"the only relevant function of law * * * [in rate controversies] is to

secure observance of those procedural safeguards in the exercise of

legislative powers, which are the historic foundations of due process."

However, in his dissent in the Hope Gas Case (320 U.S. 591, 625), he

disassociated himself from this proposal, and asserted that "it was

decided [more than fifty years ago] that the final say under the

Constitution lies with the judiciary."

[220] Federal Power Commission _v._ Hope Gas Co., 320 U.S. 591, 602

(1944).

[221] Federal Power Comm. _v._ Hope Gas Co., 320 U.S. 591, 603 (1944),

citing Chicago & Grand Trunk Ry. Co. _v._ Wellman, 143 U.S. 339, 345-346

(1892); Missouri ex rel. Southwestern Bell Teleph. Co. _v._ Public

Service Commission, 262 U.S. 276, 291 (1923).

[222] For this reason there is presented below a survey of the formulas,

utilization of which was hitherto deemed essential if due process

requirements were to be satisfied.

(1) Fair Value.--On the premise that a utility is entitled to demand a

rate schedule that will yield a "fair return upon the value" of the

property which it employs for public convenience, the Court in 1898, in

Smyth _v._ Ames (169 U.S. 466, 546-547), held that determination of such

value necessitated consideration of at least such factors as "the

original cost of construction, the amount expended in permanent

improvements, the amount and market value of * * * [the utility's] bonds

and stock, the present as compared with the original cost of

construction, [replacement cost], the probable earning capacity of the

property under particular rates prescribed by statute, and the sum

required to meet operating expenses."

(2) Reproduction Cost.--Prior to the demise in 1944 of the Smyth _v._

Ames fair value formula, two of the components thereof were accorded

special emphasis, with the second quickly surpassing the first in terms

of the measure of importance attributed to it. These were: (1) the

actual cost of the property ("the original cost of construction together

with the amount expended in permanent improvements") and (2)

reproduction cost ("the present as compared with the original cost of

construction"). If prices did not fluctuate through the years, the

controversy which arose over the application of reproduction cost in

preference to original cost would have been reduced to a war of words;

for results obtained by reliance upon either would have been identical.

The instability in the price structure, however, presented the courts

with a dilemma. If rate-making is attempted at a time of declining

prices, valuation on the basis of present or reproduction cost will

advantage the consumer or user, and disadvantage the utility. On the

other hand, if the original cost of construction is employed, the

benefits are redistributed, with the consumer becoming the loser.

Similarly, when rates are fixed at a time of rising prices, reliance

upon reproduction cost to the exclusion of original cost will produce

results satisfactory to the utility and undesirable to the public, and

vice versa.

Notwithstanding the admonition of Smyth _v._ Ames that original cost, no

less than reproduction cost, was to be considered in determining value,

the Court, in the years which intervened between 1898 and 1944, wavered

only slightly in its preference for the reproduction cost formula, and

moderated its application thereof only in part whenever periods of

rising or sustained high prices appeared to require such deviation in

behalf of consumer interests. As examples of the varied application by

the Court of the reproduction cost formula, the following cases are

significant: San Diego Land and Town Co. _v._ National City, 174 U.S.

739, 757 (1899); San Diego Land & Town Co. _v._ Jasper, 189 U.S. 439,

443 (1903); Willcox _v._ Consolidated Gas Co., 212 U.S. 19, 52 (1909);

Minnesota Rate Cases, 230 U.S. 352 (1913); Galveston Electric Co. _v._

Galveston, 258 U.S. 388, 392 (1922); Missouri ex rel. Southwestern Bell

Teleph. Co. _v._ Public Service Commission, 262 U.S. 276 (1923);

Bluefield Waterworks & Improv. Co. _v._ Pub. Serv. Comm., 262 U.S. 679

(1923); Georgia R. & Power Co. _v._ Railroad Comm., 262 U.S. 625, 630

(1923); McCardle _v._ Indianapolis Water Co., 272 U.S. 400 (1926); St.

Louis & O'Fallon Ry. _v._ United States, 279 U.S. 461 (1929).

(3) Prudent Investment (versus Reproduction Cost).--This method of

valuation, which was championed by Justice Brandeis in a separate

opinion filed in Southwestern Bell Teleph. Co. _v._ Pub. Serv. Comm.

(262 U.S. 276, 291-292, 302, 306-307 (1923)), was defined by him as

follows: "The compensation which the Constitution guarantees an

opportunity to earn is the reasonable cost of conducting the business.

Cost includes not only operating expenses, but also capital charges.

Capital charges cover the allowance, by way of interest, for the use of

the capital, * * *; the allowance for the risk incurred; and enough more

to attract capital. * * * Where the financing has been proper, the cost

to the utility of the capital, required to construct, equip and operate

its plant, should measure the rate of return which the Constitution

guarantees opportunity to earn." Advantages to be derived from "adoption

of the amount prudently invested as the rate base and the amount of the

capital charge as the measure of the rate of return" would, according to

Justice Brandeis, be nothing less than the attainment of a "basis for

decision which is certain and stable. The rate base would be ascertained

as a fact, not determined as a matter of opinion. It would not fluctuate

with the market price of labor, or materials, or money. * * *"

As a method of valuation, the prudent investment theory was not accorded

any acceptance until the depression of the 1930's. The sharp decline in

prices which occurred during this period doubtless contributed to the

loss of affection for reproduction cost; and in Los Angeles Gas Co. _v._

R.R. Comm'n., 289 U.S. 287 (1933) and R.R. Comm'n. _v._ Pacific Gas Co.,

302 U.S. 388, 399, 405 (1938) the Court upheld respectively a valuation

from which reproduction cost had been excluded and another in which

historical cost served as the rate base. Later, in 1942, when in Power

Comm'n. _v._ Nat. Gas Pipeline Co., 315 U.S. 575, the Court further

emphasized its abandonment of the reproduction cost factor, there

developed momentarily the prospect that prudent investment might be

substituted. This possibility was quickly negatived, however, by the

Hope Gas Case (320 U.S. 591 (1944)) which dispensed with the necessity

of relying upon any formula for the purpose of fixing valid rates.

(4) Depreciation.--No less indispensable to the determination of the

fair value mentioned in Smyth _v._ Ames was the amount of depreciation

to be allowed as a deduction from the measure of cost employed, whether

the latter be actual cost, reproduction cost, or any other form of cost

determination. Although not mentioned in Smyth _v._ Ames, the Court gave

this item consideration in Knoxville _v._ Knoxville Water Co., 212 U.S.

1, 9-10 (1909); but notwithstanding its early recognition as an

allowable item of deduction in determining value, depreciation continued

to be the subject of controversy arising out of the difficulty of

ascertaining it and of computing annual allowances to cover the same.

Indicative of such controversy has been the disagreement as to whether

annual allowances granted shall be in such amount as will permit the

replacement of equipment at current costs; i.e., present value, or at

original cost. In the Hope Gas Case, 320 U.S. 591, 606 (1944), the Court

reversed United R. & Electric Co. _v._ West, 280 U.S. 234, 253-254

(1930), insofar as the latter holding rejected original cost as the

basis of annual depreciation allowances.

(5) Going Concern Value and Good Will.--Whether or not intangibles were

to be included in valuation was not passed upon in Smyth _v._ Ames; but

shortly thereafter, in Des Moines Gas Co. _v._ Des Moines, 238 U.S. 153,

165 (1915), the Court declared it to be self-evident "that there is an

element of value in an assembled and established plant, doing business

and earning money, over one not thus advanced, * * * [and that] this

element of value is a property right, and should be considered in

determining the value of the property, upon which the owner has a right

to make a fair return * * *." Generally described as going concern

value, this element has never been precisely defined by the Court, and

the latter has accordingly been plagued by the difficulty of determining

its worth. In its latest pronouncement on the subject, uttered in Power

Comm'n. _v._ Nat. Gas Pipeline Co., 315 U.S. 575, 589 (1942), the Court

denied that there is any "constitutional requirement that going concern

value, even when it is an appropriate element to be included in a rate

base, must be separately stated and appraised as such * * * valuations

for rate purposes of a business assembled as a whole * * * [have often

been] sustained without separate appraisal of the going concern element.

* * * When that has been done, the burden rests on the regulated company

to show that this item has neither been adequately covered in the rate

base nor recouped from prior earnings of the business." Franchise value

and good will, on the other hand, have been consistently excluded from

valuation; the latter presumably because a utility invariably enjoys a

monopoly and consumers have no choice in the matter of patronizing it.

The latter proposition has been developed in the following cases:

Willcox _v._ Consolidated Gas Co., 212 U.S. 19 (1909); Des Moines Gas

Co. _v._ Des Moines, 238 U.S. 153, 163-164 (1915); Galveston Electric

Co. _v._ Galveston, 258 U.S. 388 (1922); Los Angeles Gas & E. Corp. _v._

Railroad Commission, 289 U.S. 287, 313 (1933).

(6) Salvage Value.--It is not constitutional error to disregard

theoretical reproduction cost for a plant which "no responsible person

would think of reproducing." Accordingly, where, due to adverse

conditions, a street-surface railroad has lost all value except for

scrap or salvage, it was permissible for a commission, as the Court held

in Market St. R. Co. _v._ Comm'n., 324 U.S. 548, 562, 564 (1945), to use

as a rate base the price at which the utility offered to sell its

property to a citizen. Moreover, the Commission's order was not invalid

even though under the prescribed rate the utility would operate at a

loss; for the due process cannot be invoked to protect a public utility

against business hazards, such as the loss of, or failure to obtain,

patronage. On the other hand, in the case of a water company whose

franchise has expired (Denver _v._ Denver Union Water Co., 246 U.S. 178

(1918)), but where there is no other source of supply, its plant should

be valued as actually in use rather than at what the property would

bring for some other use in case the city should build its own plant.

(7) Past Losses And Gains.--"The Constitution [does not] require that

the losses of * * * [a] business in one year shall be restored from

future earnings by the device of capitalizing the losses and adding them

to the rate base on which a fair return and depreciation allowance is to

be earned." Power Comm'n. _v._ Nat. Gas Pipeline Co., 315 U.S. 575, 590

(1942). Nor can past losses be used to enhance the value of the property

to support a claim that rates for the future are confiscatory (Galveston

Electric Co. _v._ Galveston, 258 U.S. 388 (1922)), any more than profits

of the past can be used to sustain confiscatory rates for the future

(Newton _v._ Consolidated Gas Co., 258 U.S. 165, 175 (1922); Public

Utility Commissioners _v._ New York Teleg. Co., 271 U.S. 23, 31-32

(1926)).

[223] Atlantic Coast Line R. Co. _v._ North Carolina Corp. Commission,

206 U.S. 1, 19 (1907), citing Chicago, B.& Q.R. Co. _v._ Iowa, 94 U.S.

155 (1877). _See also_ Prentis _v._ Atlantic Coast Line Co., 211 U.S.

210 (1908); Denver & R.G.R. Co. _v._ Denver, 250 U.S. 241 (1919).

[224] Chicago & G.T.R. Co. _v._ Wellman, 143 U.S. 339, 344 (1892);

Mississippi R. Commission _v._ Mobile & O.R. Co., 244 U.S. 388, 391

(1917). _See also_ Missouri P.R. Co. _v._ Nebraska, 217 U.S. 196 (1910);

Nashville, C. & St. L.R. Co. _v._ Walters, 294 U.S. 405, 415 (1935).

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

[226] Detroit United Railway Co. _v._ Detroit, 255 U.S. 171 (1921). _See

also_ Denver _v._ New York Trust Co., 229 U.S. 123 (1913).

[227] Los Angeles _v._ Los Angeles Gas & Electric Corp., 251 U.S. 32

(1919).

[228] Newburyport Water Co. _v._ Newburyport, 193 U.S. 561 (1904). _See

also_ Skaneateles Waterworks Co. _v._ Skaneateles, 184 U.S. 354 (1902);

Helena Waterworks Co. _v._ Helena, 195 U.S. 383 (1904); Madera

Waterworks _v._ Madera, 228 U.S. 454 (1913).

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

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

[231] Atlantic Coast Line R. Co. _v._ Goldsboro, 232 U.S. 548, 558

(1914). _See also_ Chicago, B. & Q.R. Co. _v._ Chicago, 166 U.S. 226,

255 (1897); Chicago, B. & Q.R. Co. _v._ Illinois ex rel. Grimwood, 200

U.S. 561, 591-592 (1906); New Orleans Public Service, Inc. _v._ New

Orleans, 281 U.S. 682 (1930).

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

[233] Panhandle Eastern Pipe Line Co. _v._ State Highway Commission, 294

U.S. 613 (1935).

[234] New Orleans Gas Light Co. _v._ Drainage Commission, 197 U.S. 453

(1905).

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

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

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

[238] Chicago, B. & Q.R. Co. _v._ Illinois ex rel. Grimwood, 200 U.S.

561 (1906); Chicago & A.R. Co. _v._ Tranbarger, 238 U.S. 67 (1915); Lake

Shore & M.S.R. Co. _v._ Clough, 242 U.S. 375 (1917).

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

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

[241] Nashville, C. & St. L.R. Co. _v._ Walters, 294 U.S. 405 (1935).

_See also_ Lehigh Valley R. Co. _v._ Public Utility Comrs., 278 U.S. 24

(1928).

[242] United Fuel Gas Co. _v._ Railroad Commission, 278 U.S. 300,

308-309 (1929). _See also_ New York ex rel. Woodhaven Gas Light Co. _v._

Public Service Commission, 269 U.S. 244 (1925); New York ex rel. New

York & O. Gas Co. _v._ McCall, 245 U.S. 345 (1917).

[243] Missouri P.R. Co. _v._ Kansas ex rel. Taylor, 216 U.S. 262 (1910);

Chesapeake & O.R. Co. _v._ Public Service Commission, 242 U.S. 603

(1917); Ft. Smith Light & Traction Co. _v._ Bourland, 267 U.S. 330

(1925).

[244] Chesapeake & O.R. Co. _v._ Public Service Commission, 242 U.S.

603, 607 (1917); Brooks-Scanlon Co. _v._ Railroad Commission, 251 U.S.

396 (1920); Railroad Commission _v._ Eastern Texas R. Co., 264 U.S. 79

(1924); Broad River Power Co. _v._ South Carolina ex rel. Daniel, 281

U.S. 537 (1930).

[245] Atchison, T. & S.F.R. Co. _v._ Railroad Commission, 283 U.S. 380,

394-395 (1931).

[246] Minneapolis & St. L.R. Co. _v._ Minnesota ex rel. Railroad & W.

Commission, 193 U.S. 53 (1904).

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

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

[249] Chesapeake & O.R. Co. _v._ Public Service Commission, 242 U.S. 603

(1917).

[250] Lake Erie & W.R. Co. _v._ State Public Utilities Commission ex

rel. Cameron, 249 U.S. 422 (1919); Western & A.R. Co. _v._ Georgia

Public Service Commission, 267 U.S. 493 (1925).

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

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

[253] Chesapeake & O.R. Co. _v._ Public Service Commission, 242 U.S.

603, 607 (1917).

[254] Great Northern R. Co. _v._ Minnesota ex rel. Railroad & Warehouse

Commission, 238 U.S. 340 (1915); Great Northern R. Co. _v._ Cahill, 253

U.S. 71 (1920).

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

[256] Washington ex rel. Oregon R. & N. Co. _v._ Fairchild, 224 U.S.

510, 528-529 (1912). _See also_ Michigan C.R. Co. _v._ Michigan Railroad

Commission, 236 U.S. 615 (1915); Seaboard Air Line R. Co. _v._ Railroad

Commission, 240 U.S. 324, 327 (1916).

[257] Louisville & N.R. Co. _v._ Central Stockyards Co., 212 U.S. 132

(1909).

[258] Michigan C.R. Co. _v._ Michigan Railroad Commission, 236 U.S. 615

(1915).

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

[260] Chicago, M. & St. P.R. Co. _v._ Minneapolis C. & C. Asso., 247

U.S. 490 (1918). Nor are railroads denied due process when they are

forbidden to exact a greater charge for a shorter distance than for a

longer distance. Louisville & N.R. Co. _v._ Kentucky, 183 U.S. 503, 512

(1902); Missouri P.R. Co. _v._ McGrew Coal Co., 244 U.S. 191 (1917).

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

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

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

[264] Great Northern R. Co. _v._ Minnesota ex rel. Clara City, 246 U.S.

434 (1918).

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

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

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

[268] Chicago, R.I. & P.R. Co. _v._ Arkansas, 219 U.S. 453 (1911); St.

Louis, I.M. & S.R. Co. _v._ Arkansas, 240 U.S. 518 (1916); Missouri P.R.

Co. _v._ Norwood, 283 U.S. 249 (1931).

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

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

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

[272] Chicago & N.W.R. Co. _v._ Nye Schneider Fowler Co., 260 U.S. 35

(1922). _See also_ Yazoo & M.V.R. Co. _v._ Jackson Vinegar Co., 226 U.S.

217 (1912); _Cf._ Adams Express Co. _v._ Croninger, 226 U.S. 491 (1913).

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

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

[275] Chicago & N.W.R. Co. _v._ Nye Schneider Fowler Co., 260 U.S. 35

(1922).

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

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

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

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

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

[281] Missouri P.R. Co. _v._ Humes, 115 U.S. 512 (1885); Minneapolis &

St. L.R. Co. _v._ Beckwith, 129 U.S. 26 (1889).

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

[283] Southwestern Teleg. & Teleph. Co. _v._ Danaher, 238 U.S. 482

(1915).

[284] New Orleans Debenture Redemption Co. _v._ Louisiana, 180 U.S. 320

(1901).

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

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

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

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

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

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

[291] Smiley _v._ Kansas, 196 U.S. 447 (1905). _See_ Waters-Pierce Oil

Co. _v._ Texas, 212 U.S. 86 (1909); National Cotton Oil Co. _v._ Texas,

197 U.S. 115 (1905), also upholding antitrust laws.

[292] International Harvester Co. _v._ Missouri, 234 U.S. 199 (1914).

_See also_ American Seeding Machine Co. _v._ Kentucky, 236 U.S. 660

(1915).

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

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

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

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

[297] Old Dearborn Distributing Co. _v._ Seagram-Distillers Corp., 299

U.S. 183 (1936); The Pep Boys _v._ Pyroil Sales Co., 299 U.S. 198

(1936).

[298] Schmidinger _v._ Chicago, 226 U.S. 578, 588 (1913), citing McLean

_v._ Arkansas, 211 U.S. 539, 550 (1909).

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

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

[301] Lemieux _v._ Young, 211 U.S. 489 (1909); Kidd, D. & P. Co. _v._

Musselman Grocer Co., 217 U.S. 461 (1910).

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

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

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

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

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

[307] Heath & M. Mfg. Co. _v._ Worst, 207 U.S. 338 (1907); Corn Products

Ref. Co. _v._ Eddy, 249 U.S. 427 (1919); National Fertilizer Asso. _v._

Bradley, 301 U.S. 178 (1937).

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

[309] Hall _v._ Geiger-Jones Co., 242 U.S. 539 (1917); Caldwell _v._

Sioux Falls Stock Yards Co., 242 U.S. 559 (1917); Merrick _v._ Halsey &

Co., 242 U.S. 568 (1917).

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

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

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

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

[314] Rast _v._ Van Deman & L. Co., 240 U.S. 342 (1916); Tanner _v._

Little, 240 U.S. 369 (1916); Pitney _v._ Washington, 240 U.S. 387

(1916).

[315] Noble State Bank _v._ Haskell, 219 U.S. 104 (1911); Shallenberger

_v._ First State Bank, 219 U.S. 114 (1911); Assaria State Bank _v._

Dolley, 219 U.S. 121 (1911); Abie State Bank _v._ Bryan, 282 U.S. 765

(1931).

[316] Provident Inst. for Savings _v._ Malone, 221 U.S. 660 (1911);

Anderson National Bank _v._ Luckett, 321 U.S. 233 (1944).

When a bank conservator appointed pursuant to a new statute has all the

functions of a receiver under the old law, one of which is the

enforcement on behalf of depositors of stockholders' liability, which

liability the conservator can enforce as cheaply as could a receiver

appointed under the pre-existing statute, it cannot be said that the new

statute, in suspending the right of a depositor to have a receiver

appointed, arbitrarily deprives a depositor of his remedy or destroys

his property without due process of law. The depositor has no property

right in any particularly form of remedy.--Gibbes _v._ Zimmerman, 290

U.S. 326 (1933).

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

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

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

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

[321] La Tourette _v._ McMaster, 248 U.S. 465 (1919); Stipcich _v._

Metropolitan L. Ins. Co., 277 U.S. 311, 320 (1928).

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

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

[324] Nutting _v._ Massachusetts, 185 U.S. 553, 556 (1902),

distinguishing Allgeyer _v._ Louisiana, 165 U.S. 578 (1897). _See also_

Hooper _v._ California, 155 U.S. 648 (1895).

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

[326] Osborn _v._ Ozlin, 310 U.S. 53, 68-69 (1940). Dissenting from the

conclusion, Justice Roberts declared that the plain effect of the

Virginia law is to compel a nonresident to pay a Virginia resident for

services which the latter does not in fact render.

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

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

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

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

[331] Hartford Acci. & Indem. Co. _v._ Nelson (N.O.) Mfg. Co., 291 U.S.

352 (1934).

[332] Merchants Mut. Auto Liability Ins. Co. _v._ Smart, 267 U.S. 126

(1925).

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

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

[335] German Alliance Ins. Co. _v._ Hale, 219 U.S. 307 (1911). _See

also_ Carroll _v._ Greenwich Ins. Co., 199 U.S. 401 (1905).

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

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

[338] Whitfield ex rel. Hadley _v._ Aetna L. Ins. Co., 205 U.S. 489

(1907).

[339] Polk _v._ Mutual Reserve Fund Life Association, 207 U.S. 310

(1907).

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

[341] Brazee _v._ Michigan, 241 U.S. 340 (1916).--With four Justices

dissenting, the Court, in Adams _v._ Tanner, 244 U.S. 590 (1917),

"struck down a State law absolutely prohibiting maintenance of private

employment agencies." Commenting on the "constitutional philosophy"

thereof in Lincoln Union _v._ Northwestern Co., 335 U.S. 525, 535

(1949), Justice Black stated that Olsen _v._ Nebraska, 313 U.S. 236

(1941), (_see_ p. 997) "clearly undermined Adams _v._ Tanner."

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

[343] McNaughton _v._ Johnson, 242 U.S. 344, 349 (1917). _See also_ Dent

_v._ West Virginia, 129 U.S. 114 (1889); Hawker _v._ New York, 170 U.S.

189 (1898); Reetz _v._ Michigan, 188 U.S. 505 (1903); Watson _v._

Maryland, 218 U.S. 173 (1910).

[344] Collins _v._ Texas, 223 U.S. 288 (1912); Hayman _v._ Galveston,

273 U.S. 414 (1927).

[345] Semler _v._ Oregon State Dental Examiners, 294 U.S. 608, 611

(1935). _See also_ Douglas _v._ Noble, 261 U.S. 165 (1923); Graves _v._

Minnesota, 272 U.S. 425, 427 (1926).

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

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

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

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

[350] Cargill (W.W.) Co. _v._ Minnesota ex rel. Railroad & W.

Commission, 180 U.S. 452 (1901).

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

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

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

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