[1042] Watson _v._ Maryland, 218 U.S. 173, 179 (1910).
[1043] Phelps _v._ Board of Education, 300 U.S. 319, 324 (1937).
[1044] Chicago Dock & Canal Co. _v._ Fraley, 228 U.S. 680, 687 (1913).
[1045] Davidson _v._ New Orleans, 96 U.S. 97, 106 (1878).
[1046] Fire Asso. of Philadelphia _v._ New York, 119 U.S. 110 (1886);
Santa Clara County _v._ Southern P.R. Co., 118 U.S. 394 (1886).
[1047] Bell's Gap R. Co. _v._ Pennsylvania, 134 U.S. 232, 237 (1890).
(Emphasis supplied.)
[1048] Louisville Gas & E. Co. _v._ Coleman, 277 U.S. 32, 37 (1928).
Classification for purposes of taxation has been held valid in the
following situations:
_Banks:_ a heavier tax on banks which make loans mainly from money of
depositors than on other financial institutions which make loans mainly
from money supplied otherwise than by deposits. First Nat. Bank _v._
Louisiana Tax Commission, 289 U.S. 60 (1933).
_Bank deposits:_ a tax of 50c per $100 on deposits in banks outside a
State in contrast with a rate of 10c per $100 on deposits in the State.
Madden _v._ Kentucky, 309 U.S. 83 (1940).
_Coal:_ a tax of 2-1/2 percent on anthracite but not on bituminous coal.
Heisler _v._ Thomas Colliery Co., 260 U.S. 245 (1922).
_Gasoline:_ a graduated severance tax on oils sold primarily for their
gasoline content, measured by resort to Baume gravity. Ohio Oil Co. _v._
Conway, 281 U.S. 146 (1930).
_Chain stores:_ a privilege tax graduated according to the number of
stores maintained, State Tax Comr's. _v._ Jackson, 283 U.S. 527 (1931);
Fox _v._ Standard Oil Co., 294 U.S. 87 (1935); a license tax based on
the number of stores both within and without the State, Great A. & P.
Tea Co. _v._ Grosjean, 301 U.S. 412 (1937).
_Electricity:_ municipal systems may be exempted, Puget Sound Power &
Light Co. _v._ Seattle, 291 U.S. 619 (1934); that portion of electricity
produced which is used for pumping water for irrigating lands may be
exempted, Utah Power & Light Co. _v._ Pfost, 286 U.S. 165 (1932).
_Insurance companies:_ license tax measured by gross receipts upon
domestic life insurance companies from which fraternal societies having
lodge organizations and insuring lives of members only are exempt, and
similar foreign corporations are subject to a fixed and comparatively
slight fee for the privilege of doing local business of the same kind.
Northwestern Mutual L. Ins. Co. _v._ Wisconsin, 247 U.S. 132 (1918).
_Oleomargarine:_ classified separately from butter. Magnano Co. _v._
Hamilton, 292 U.S. 40 (1934).
_Peddlers:_ classified separately from other vendors. Caskey Baking Co.
_v._ Virginia, 313 U.S. 117 (1941).
_Public utilities:_ a gross receipts tax at a higher rate for railroads
than for other public utilities, Ohio Tax Cases, 232 U.S. 576 (1914); a
gasoline storage tax which places a heavier burden upon railroads than
upon common carriers by bus, Nashville C. & St. L. Co. _v._ Wallace, 288
U.S. 249 (1933); a tax on railroads measured by gross earnings from
local operations, as applied to a railroad which received a larger net
income than others from the local activity of renting, and borrowing
cars, Illinois Central R. Co. _v._ Minnesota, 309 U.S. 157 (1940); a
gross receipts tax applicable only to public utilities, including
carriers, the proceeds of which are used for relieving the unemployed,
New York Rapid Transit Corp. _v._ New York, 303 U.S. 573 (1938).
_Wine:_ exemption of wine from grapes grown in the State while in the
hands of the producer. Cox _v._ Texas, 202 U.S. 446 (1906).
Laws imposing miscellaneous license fees have been upheld as follows:
_Cigarette dealers:_ taxing retailers and not wholesalers. Cook _v._
Marshall County, 196 U.S. 261 (1905).
_Commission merchants:_ requirements that dealers in farm products on
commission procure a license, Payne _v._ Kansas, 248 U.S. 112 (1918).
_Elevators and warehouses:_ license limited to certain elevators and
warehouses on right-of-way of railroad, Cargill Co. _v._ Minnesota, 180
U.S. 452 (1901); a license tax applicable only to commercial warehouses
where no other commercial warehousing facilities in township subject to
tax, Independent Warehouse Inc. _v._ Scheele, 331 U.S. 70 (1947).
_Laundries:_ exemption from license tax of steam laundries and women
engaged in the laundry business where not more than two women are
employed. Quong Wing _v._ Kirkendall, 223 U.S. 59 (1912).
_Merchants:_ exemption from license tax measured by amount of purchases,
of manufacturers within the State selling their own product. Armour &
Co. _v._ Virginia, 246 U.S. 1 (1918).
_Sugar refineries:_ exemption from license applicable to refiners of
sugar and molasses of planters and farmers grinding and refining their
own sugar and molasses. American Sugar Refining Co. _v._ Louisiana, 179
U.S. 89 (1900).
_Theaters:_ license graded according to price of admission. Metropolis
Theatre Co. _v._ Chicago, 228 U.S. 61 (1913).
_Wholesalers of oil:_ occupation tax on wholesalers in oil not
applicable to wholesalers in other products. Southwestern Oil Co. _v._
Texas, 217 U.S. 114 (1910).
[1049] Bell's Gap R. Co. _v._ Pennsylvania, 134 U.S. 232, 237 (1890).
[1050] Quong Wing _v._ Kirkendall, 223 U.S. 59, 62 (1912). _See also_
Hammond Packing Co. _v._ Montana, 233 U.S. 331 (1914).
[1051] Puget Sound Power & Light Co. _v._ Seattle, 291 U.S. 619, 625
(1934).
[1052] Colgate _v._ Harvey, 296 U.S. 404, 422 (1935).
[1053] Southern R. Co. _v._ Greene, 216 U.S. 400, 417 (1910); Quaker
City Cab Co. _v._ Pennsylvania, 277 U.S. 389, 400 (1928).
[1054] Keeney _v._ New York, 222 U.S. 525, 536 (1912); State Tax Comrs.
_v._ Jackson, 283 U.S. 527, 538 (1931).
[1055] Giozza _v._ Tiernan, 148 U.S. 657, 662 (1893).
[1056] Louisville Gas & E. Co. _v._ Coleman, 277 U.S. 32, 37 (1928).
_See also_ Bell's Gap R. Co. _v._ Pennsylvania, 134 U.S. 232, 237
(1890).
[1057] Stewart Dry Goods Co. _v._ Lewis, 294 U.S. 550 (1935). _See also_
Valentine _v._ Great A. & P. Tea Co., 299 U.S. 32 (1936).
[1058] Liggett Co. _v._ Lee, 288 U.S. 517 (1933).
[1059] Quaker City Cab Co. _v._ Pennsylvania, 277 U.S. 389 (1928).
[1060] State Tax Comrs. _v._ Jackson, 283 U.S. 527, 537 (1931).
[1061] Colgate _v._ Harvey, 296 U.S. 404, 422 (1935).
[1062] Darnell _v._ Indiana, 226 U.S. 390, 398 (1912); Farmers & M. Sav.
Bank _v._ Minnesota, 232 U.S. 516, 531 (1914).
[1063] Morf _v._ Bingaman, 298 U.S. 407, 413 (1936).
[1064] Baltic Min. Co. _v._ Massachusetts, 231 U.S. 68, 88 (1913). _See
also_ Cheney Bros. Co. _v._ Massachusetts, 246 U.S. 147, 157 (1918).
[1065] Fire Asso. of Philadelphia _v._ New York, 119 U.S. 110, 119
(1886).
[1066] Hanover F. Ins. Co. _v._ Harding, 272 U.S. 494, 511 (1926).
[1067] Southern R. Co. _v._ Greene, 216 U.S. 400, 418 (1910).
[1068] Concordia F. Ins. Co. _v._ Illinois, 292 U.S. 535 (1934).
[1069] Lincoln Nat. Life Ins. Co. _v._ Read, 325 U.S. 673 (1945).
[1070] Wheeling Steel Corp. _v._ Glander, 337 U.S. 562, 571, 572 (1949).
[1071] Royster Guano Co. _v._ Virginia, 253 U.S. 412 (1920).
[1072] Shaffer _v._ Carter, 252 U.S. 37, 56, 57 (1920); Travis _v._ Yale
& T. Mfg. Co., 252 U.S. 60, 75, 76 (1920).
[1073] Welch _v._ Henry, 305 U.S. 134 (1938).
[1074] Magoun _v._ Illinois Trust & Sav. Bank, 170 U.S. 283, 288, 300
(1898).
[1075] Billings _v._ Illinois, 188 U.S. 97 (1903).
[1076] Campbell _v._ California, 200 U.S. 87 (1906).
[1077] Salomon _v._ State Tax Commission, 278 U.S. 484 (1929).
[1078] Board of Education _v._ Illinois, 203 U.S. 553 (1906).
[1079] Maxwell _v._ Bugbee, 250 U.S. 525 (1919).
[1080] Continental Baking Co. _v._ Woodring, 286 U.S. 352 (1932).
[1081] Dixie Ohio Express Co. _v._ State Revenue Commission, 306 U.S.
72, 78 (1939).
[1082] Alward _v._ Johnson, 282 U.S. 509 (1931).
[1083] Bekins Van Lines _v._ Riley, 280 U.S. 80 (1929).
[1084] Morf _v._ Bingaman, 298 U.S. 407 (1936).
[1085] Clark _v._ Paul Gray, Inc., 306 U.S. 583 (1939).
[1086] Carley & Hamilton _v._ Snook, 281 U.S. 66 (1930).
[1087] Aero Mayflower Transit Co. _v._ Georgia Pub. Serv. Commission,
295 U.S. 285 (1935).
[1088] Breedlove _v._ Suttles, 302 U.S. 277 (1937).
[1089] Royster Guano Co. _v._ Virginia, 253 U.S. 412, 415 (1920).
[1090] Missouri _v._ Dockery, 191 U.S. 165 (1903).
[1091] Kentucky Union Co. _v._ Kentucky, 219 U.S. 140, 161 (1911).
[1092] Sunday Lake Iron Co. _v._ Wakefield Twp., 247 U.S. 350 (1918);
Raymond _v._ Chicago Union Traction Co., 207 U.S. 20, 35, 37 (1907).
[1093] Coulter _v._ Louisville & N.R. Co., 196 U.S. 599 (1905). _See
also_ Chicago, B. & Q.R. Co. _v._ Babcock, 204 U.S. 585 (1907).
[1094] Charleston Assn. _v._ Alderson, 324 U.S. 182 (1945). Nashville,
C. & St. L. Ry. _v._ Browning, 310 U.S. 362 (1940).
[1095] Sioux City Bridge Co. _v._ Dakota County, 260 U.S. 441, 446
(1923).
[1096] Hillsborough _v._ Cromwell, 326 U.S. 620, 623 (1946).
[1097] St. Louis-San Francisco R. Co. _v._ Middlekamp, 256 U.S. 226, 230
(1921).
[1098] Memphis & C.R. Co. _v._ Pace, 282 U.S. 241 (1931).
[1099] Kansas City Southern R. Co. _v._ Road Improv. Dist., 256 U.S. 658
(1921); Thomas _v._ Kansas City Southern R. Co., 261 U.S. 481 (1923).
[1100] Road Improv. Dist. _v._ Missouri P.R. Co., 274 U.S. 188 (1927).
[1101] Branson _v._ Bush, 251 U.S. 182 (1919).
[1102] Columbus & G.R. Co. _v._ Miller, 283 U.S. 96 (1931).
[1103] Buck _v._ Bell, 274 U.S. 200, 208 (1927).
[1104] Classifications under police regulations have been held valid in
the following situations:
_Advertising:_ discrimination between billboard and newspaper
advertising of cigarettes, Packer Corp. _v._ Utah, 285 U.S. 105 (1932);
prohibition of advertising signs on motor vehicles, except when used in
the usual business of the owner, and not used mainly for advertising,
Fifth Ave. Coach Co. _v._ New York, 221 U.S. 467 (1911); prohibition of
advertising on motor vehicles except notices or advertising of products
of the owner, Railway Express Inc. _v._ New York, 336 U.S. 106 (1949);
prohibition against sale of articles on which there is a representation
of the flag for advertising purposes, except newspapers, periodicals and
books; Halter _v._ Nebraska, 205 U.S. 34 (1907).
_Amusement:_ prohibition against keeping billiard halls for hire, except
in case of hotels having twenty-five or more rooms for use of regular
guests. Murphy _v._ California, 225 U.S. 623 (1912).
_Barber shops:_ a law forbidding Sunday labor except works of necessity
or charity, and specifically forbidding the keeping open of barber
shops. Petit _v._ Minnesota, 177 U.S. 164 (1900).
_Cattle:_ a classification of sheep, as distinguished from cattle, in a
regulation restricting the use of public lands for grazing. Bacon _v._
Walker, 204 U.S. 311 (1907). _See also_ Omaechevarria _v._ Idaho, 246
U.S. 343 (1918).
_Cotton gins:_ in a State where cotton gins are held to be public
utilities and their rates regulated, the granting of a license to a
cooperative association distributing profits ratably to members and
nonmembers does not deny other persons operating gins equal protection
when there is nothing in the laws to forbid them to distribute their net
earnings among their patrons. Corporations Commission _v._ Lowe, 281
U.S. 431 (1930).
_Fish processing:_ stricter regulation of reduction of fish to flour or
meal than of canning. Bayside Fish Flour Co. _v._ Gentry, 297 U.S. 422
(1936).
_Food:_ bread sold in loaves must be of prescribed standard sizes,
Schmidinger _v._ Chicago, 226 U.S. 578 (1913); food preservatives
containing boric acid may not be sold, Price _v._ Illinois, 238 U.S. 446
(1915); lard not sold in bulk must be put up in containers holding one,
three or five pounds or some whole multiple thereof, Armour & Co. _v._
North Dakota, 240 U.S. 510 (1916); milk industry may be placed in a
special class for regulation, New York ex rel. Lieberman _v._ Van De
Carr, 199 U.S. 552 (1905); vendors producing milk outside city may be
classified separately, Adams _v._ Milwaukee, 228 U.S. 572 (1913);
producing and nonproducing vendors may be distinguished in milk
regulations, St. John _v._ New York, 201 U.S. 633 (1906); different
minimum and maximum milk prices may be fixed for distributors and
storekeepers; Nebbia _v._ New York, 291 U.S. 502 (1934); price
differential may be granted for sellers of milk not having a well
advertised trade name, Borden's Farm Products Co. _v._ Ten Eyck, 297
U.S. 251 (1936); oleomargarine colored to resemble butter may be
prohibited, Capital City Dairy Co. _v._ Ohio ex rel. Attorney General,
183 U.S. 238 (1902); table syrups may be required to be so labelled and
disclose identity and proportion of ingredients, Corn Products Ref. Co.
_v._ Eddy, 249 U.S. 427 (1919).
_Geographical discriminations:_ legislation limited in application to a
particular geographical or political subdivision of a State, Ft. Smith
Light & Traction Co. _v._ Board of Improvement, 274 U.S. 387, 391
(1927); ordinance prohibiting a particular business in certain sections
of a municipality, Hadacheck _v._ Sebastian, 239 U.S. 394 (1915);
statute authorizing a municipal commission to limit the height of
buildings in commercial districts to 125 feet and in other districts to
80 to 100 feet, Welch _v._ Swasey, 214 U.S. 91 (1909); ordinance
prescribing limits in city outside of which no woman of lewd character
shall dwell, L'Hote _v._ New Orleans, 177 U.S. 587, 595 (1900).
_Hotels:_ requirement that keepers of hotels having over fifty guests
employ night watchmen. Miller _v._ Strahl, 239 U.S. 426 (1915).
_Insurance companies:_ regulation of fire insurance rates with exemption
for farmers mutuals, German Alliance Ins. Co. _v._ Lewis, 233 U.S. 389
(1914); different requirements imposed upon reciprocal insurance
associations than upon mutual companies, Hoopeston Canning Co. _v._
Cullen, 318 U.S. 313 (1943); prohibition against life insurance
companies or agents engaging in undertaking business, Daniel _v._ Family
Ins. Co., 336 U.S. 220 (1949).
_Intoxicating liquors:_ exception of druggists or manufacturers from
regulation. Ohio ex rel. Lloyd _v._ Dollison, 194 U.S. 445 (1904);
Eberle _v._ Michigan, 232 U.S. 700 (1914).
_Lodging houses:_ requirement that sprinkler systems be installed in
buildings of nonfireproof construction is valid as applied to such a
building which is safeguarded by a fire alarm system, constant watchman
service and other safety arrangements. Queenside Hills Realty Co. _v._
Saxl, 328 U.S. 80 (1946).
_Markets:_ prohibition against operation of private market within six
squares of public market. Natal _v._ Louisiana, 139 U.S. 621 (1891).
_Medicine:_ a uniform standard of professional attainment and conduct
for all physicians, Missouri ex rel. Hurwitz _v._ North, 271 U.S. 40
(1926); reasonable exemptions from medical registration law, Watson _v._
Maryland, 218 U.S. 173 (1910); exemption of persons who heal by prayer
from regulations applicable to drugless physicians, Crane _v._ Johnson,
242 U.S. 339 (1917); exclusion of osteopathic physicians from public
hospitals, Hayman _v._ Galveston, 273 U.S. 414 (1927); requirement that
persons who treat eyes without use of drugs be licensed as optometrists
with exception for persons treating eyes by the use of drugs, who are
regulated under a different statute, McNaughton _v._ Johnson, 242 U.S.
344 (1917); a prohibition against advertising by dentists, not
applicable to other professions, Semler _v._ Oregon State Dental
Examiners, 294 U.S. 608 (1935).
_Motor vehicles:_ guest passenger regulation applicable to automobiles
but not to other classes of vehicles, Silver _v._ Silver, 280 U.S. 117
(1929); exemption of vehicles from other States from registration
requirement, Storaasli _v._ Minnesota, 283 U.S. 57 (1931);
classification of driverless automobiles for hire as public vehicles,
which are required to procure a license and to carry liability
insurance, Hodge Drive-It-Yourself Co. _v._ Cincinnati, 284 U.S. 335
(1932); exemption from limitations on hours of labor for drivers of
motor vehicles of carriers of property for hire, of those not
principally engaged in transport of property for hire, and carriers
operating wholly in metropolitan areas, Welch Co. _v._ New Hampshire,
306 U.S. 79 (1939); exemption of busses and temporary movements of farm
implements and machinery and trucks making short hauls from common
carriers from limitations in net load and length of trucks, Sproles _v._
Binford, 286 U.S. 374 (1932); prohibition against operation of
uncertified carriers, Bradley _v._ Public Utilities Commission, 289 U.S.
92 (1933); exemption from regulations affecting carriers for hire, of
persons whose chief business is farming and dairying, but who
occasionally haul farm and dairy products for compensation, Hicklin _v._
Coney, 290 U.S. 169 (1933); exemption of private vehicles, street cars
and omnibuses from insurance requirements applicable to taxicabs,
Packard _v._ Banton, 264 U.S. 140 (1924).
_Peddlers and solicitors:_ a State may classify and regulate itinerant
vendors and peddlers, Emert _v._ Missouri, 156 U.S. 296 (1895); may
forbid the sale by them of drugs and medicines, Baccus _v._ Louisiana,
232 U.S. 334 (1914); prohibit drumming or soliciting on trains for
business for hotels, medical practitioners, etc., Williams _v._
Arkansas, 217 U.S. 79 (1910); or solicitation of employment to prosecute
or collect claims, McCloskey _v._ Tobin, 252 U.S. 107 (1920). And a
municipality may prohibit canvassers or peddlers from calling at private
residences unless requested or invited by the occupant to do so. Breard
_v._ Alexandria, 341 U.S. 622 (1951).
_Property destruction:_ destruction of cedar trees to protect apple
orchards from cedar rust. Miller _v._ Schoene, 276 U.S. 272 (1928).
_Railroads:_ forbid operation on a certain street, Richmond, F. & P.R.
Co. _v._ Richmond, 96 U.S. 521 (1878); require fences and cattle guards
and allowed recovery of multiple damages for failure to comply, Missouri
P.R. Co. _v._ Humes, 115 U.S. 512 (1885); Minneapolis & St. L.R. Co.
_v._ Beckwith, 129 U.S. 26 (1889); Minneapolis & St. L.R. Co. _v._
Emmons, 149 U.S. 364 (1893); charge them with entire expense of altering
a grade crossing, New York & N.E.R. Co. _v._ Bristol, 151 U.S. 556
(1894); makes them responsible for fire communicated by their engines,
St. Louis & S.F.R. Co. _v._ Mathews, 165 U.S. 1 (1897); requires cutting
of certain weeds, Missouri, K. & T.R. Co. _v._ May, 194 U.S. 267 (1904);
create a presumption against a railroad failing to give prescribed
warning signals, Atlantic Coast Line R. Co. _v._ Ford, 287 U.S. 502
(1933); require use of locomotive headlights of a specified form and
power, Atlantic Coast Line R. Co. _v._ Georgia, 234 U.S. 280 (1914);
make railroads liable for damage caused by operation of their
locomotives, unless they make it appear that their agents exercised all
ordinary and reasonable care and diligence, Seaboard Air Line R. Co.
_v._ Watson, 287 U.S. 86 (1932); require sprinkling of streets between
tracks to lay the dust, Pacific Gas & Electric Co. _v._ Police Court,
251 U.S. 22 (1919).
_Sales in bulk:_ requirement of notice of bulk sale applicable only to
retail dealers. Lemieux _v._ Young, 211 U.S. 489 (1909).
_Secret societies:_ regulations applied only to one class of oath-bound
associations, having a membership of 20 or more persons, where the class
regulated has a tendency to make the secrecy of its purpose and
membership a cloak for conduct inimical to the personal rights of others
and to the public welfare. New York ex rel. Bryant _v._ Zimmerman, 278
U.S. 63 (1928).
_Securities:_ a prohibition on the sale of capital stock on margin or
for future delivery which is not applicable to other objects of
speculation, e.g., cotton, grain. Otis _v._ Parker, 187 U.S. 606 (1903).
_Syndicalism:_ a criminal syndicalism statute does not deny equal
protection in penalizing those who advocate a resort to violent and
unlawful methods as a means of changing industrial and political
conditions while not penalizing those who advocate resort to such
methods for maintaining such conditions. Whitney _v._ California, 274
U.S. 357 (1927).
_Telegraph companies:_ a statute prohibiting stipulation against
liability for negligence in the delivery of interstate message, which
did not forbid express companies and other common carriers to limit
their liability by contract. Western Union Teleg. Co. _v._ Commercial
Milling Co., 218 U.S. 406 (1910).
[1105] Hartford Steam Boiler Inspection & Ins. Co. _v._ Harrison, 301
U.S. 459 (1937).
[1106] Smith _v._ Cahoon, 283 U.S. 553 (1931).
[1107] Mayflower Farms _v._ Ten Eyck, 297 U.S. 266 (1936).
[1108] Buck _v._ Bell, 274 U.S. 200 (1927).
[1109] Skinner _v._ Oklahoma, 316 U.S. 535 (1942).
[1110] Yick Wo _v._ Hopkins, 118 U.S. 356 (1886).
[1111] Fisher _v._ St. Louis, 194 U.S. 361 (1904).
[1112] Gorieb _v._ Fox, 274 U.S. 603 (1927).
[1113] Wilson _v._ Eureka City, 173 U.S. 32 (1899).
[1114] Gundling _v._ Chicago, 177 U.S. 183 (1900).
[1115] Kotch _v._ Pilot Comm'rs., 330 U.S. 552 (1947).
[1116] Yick Wo _v._ Hopkins, 118 U.S. 356 (1886). _Cf._ Hirabayashi _v._
United States, 320 U.S. 81 (1943), where the Court sustained the
relocation of American citizens of Japanese ancestry on the ground that
in this case the fact of origin might reasonably be deemed to have some
substantial relation to national security. It was careful to point out
however, that normally distinctions based on race or national origin are
invidious and hence void.
[1117] Ohio ex rel. Clarke _v._ Deckebach, 274 U.S. 392 (1927).
[1118] Patsone _v._ Pennsylvania, 232 U.S. 138 (1914).
[1119] Heim _v._ McCall, 239 U.S. 175 (1915); Crane _v._ New York, 239
U.S. 195 (1915).
[1120] Truax _v._ Raich, 239 U.S. 33 (1915).
[1121] Takahashi _v._ Fish & Game Comm'n., 334 U.S. 410 (1948).
[1122] Terrace _v._ Thompson, 263 U.S. 197 (1923).
[1123] 332 U.S. 633 (1948).
[1124] Ibid. 647, 650.
[1125] Holden _v._ Hardy, 169 U.S. 366 (1898).
[1126] Bunting _v._ Oregon, 243 U.S. 426 (1917).
[1127] Atkin _v._ Kansas, 191 U.S. 207 (1903).
[1128] Keokee Consol. Coke Co. _v._ Taylor, 234 U.S. 224 (1914); _see
also_ Knoxville Iron Co. _v._ Harbison, 183 U.S. 13 (1901).
[1129] McLean _v._ Arkansas, 211 U.S. 539 (1909).
[1130] Prudential Insurance Co. _v._ Cheek, 259 U.S. 530 (1922).
[1131] Chicago, R.I. & P.R. Co. _v._ Perry, 259 U.S. 548 (1922).
[1132] Mountain Timber Co. _v._ Washington, 243 U.S. 219 (1917).
[1133] New York C.R. Co. _v._ White, 243 U.S. 188 (1917); Middleton _v._
Texas Power & Light Co., 249 U.S. 152 (1919); Ward & Gow _v._ Krinsky,
259 U.S. 503 (1922).
[1134] Lincoln Federal Labor Union _v._ Northwestern Co., 335 U.S. 525
(1949).
[1135] Miller _v._ Wilson, 236 U.S. 373 (1915); Bosley _v._ McLaughlin,
236 U.S. 385 (1915).
[1136] Muller _v._ Oregon, 208 U.S. 412 (1908).
[1137] Dominion Hotel _v._ Arizona, 249 U.S. 265 (1919).
[1138] Radice _v._ New York, 264 U.S. 292 (1924).
[1139] West Coast Hotel Co. _v._ Parrish, 300 U.S. 379 (1937);
overruling Adkins _v._ Children's Hospital, 261 U.S. 525 (1923); and
Morehead _v._ Tipaldo, 298 U.S. 587 (1936).
[1140] Goesaert _v._ Cleary, 335 U.S. 464 (1948).
[1141] Ibid. 466.
[1142] Mallinckrodt Chemical Works _v._ Missouri ex rel. Jones, 238 U.S.
41 (1915).
[1143] International Harvester Co. _v._ Missouri ex rel. Atty. Gen., 234
U.S. 199 (1914).
[1144] Tigner _v._ Texas, 310 U.S. 141 (1940), overruling Connolly _v._
Union Sewer Pipe Co., 184 U.S. 540 (1902).
[1145] Standard Oil Co. _v._ Tennessee ex rel. Cates, 217 U.S. 413
(1910).
[1146] Carroll _v._ Greenwich Ins. Co., 199 U.S. 401 (1905).
[1147] Pacific States Box & Basket Co. _v._ White, 296 U.S. 176 (1935).
_See also_ Slaughter-House Cases, 16 Wall. 36 (1873); Nebbia _v._ New
York, 291 U.S. 502, 529 (1934).
[1148] Pace _v._ Alabama, 106 U.S. 583 (1883).
[1149] Collins _v._ Johnston, 237 U.S. 502, 510 (1915); Pennsylvania ex
rel. Sullivan _v._ Ashe, 302 U.S. 51 (1937).
[1150] McDonald _v._ Massachusetts, 180 U.S. 311 (1901). _See also_
Moore _v._ Missouri, 159 U.S. 673 (1895); Graham _v._ West Virginia, 224
U.S. 616 (1912).
[1151] Carlesi _v._ New York, 233 U.S. 51 (1914).
[1152] Ughbanks _v._ Armstrong, 208 U.S. 481 (1908).
[1153] Pennsylvania ex rel. Sullivan _v._ Ashe, 302 U.S. 51 (1937).
[1154] Finley _v._ California, 222 U.S. 28 (1911).
[1155] Minnesota _v._ Probate Court, 309 U.S. 270 (1940).
[1156] Pace _v._ Alabama, 106 U.S. 583 (1883).
[1157] Francis _v._ Resweber, 329 U.S. 459 (1947).
[1158] Skinner _v._ Oklahoma, 316 U.S. 535 (1942). _Cf._ Buck _v._ Bell,
274 U.S. 200 (1927). (Sterilization of defectives.)
[1159] Buchanan _v._ Warley, 245 U.S. 60 (1917).
[1160] Corrigan _v._ Buckley, 271 U.S. 323 (1926).
[1161] Shelley _v._ Kraemer, 334 U.S. 1 (1948). _Cf._ Hurd _v._ Hodge,
334 U.S. 24 (1948), where the Court held that a restrictive covenant was
unenforceable in the Federal Court of the District of Columbia for
reasons of public policy.
[1162] Plessy _v._ Ferguson, 163 U.S. 537 (1896). _Cf._ Morgan _v._
Virginia, 328 U.S. 373 (1946), where a State statute requiring
segregation of passengers on interstate journeys was held to be an
unlawful restriction on interstate commerce. _See also_ Hall _v._ De
Cuir, 95 U.S. 485 (1878), where a State law forbidding steamboats on the
Mississippi to segregate passengers according to race was held
unconstitutional under the commerce clause, and Bob-Lo Excursion Co.
_v._ Michigan, 333 U.S. 28 (1948), where a Michigan statute forbidding
discrimination was held valid as applied to an excursion boat operating
on the Detroit River; and Henderson _v._ United States, 339 U.S. 816
(1950), where segregation in a dining car operated by an interstate
railroad was held to violate a federal statute.
[1163] McCabe _v._ Atchison, T. & S.F.R. Co., 235 U.S. 151 (1914).
[1164] Cumming _v._ County Board of Education, 175 U.S. 528 (1899).
[1165] Gong Lum _v._ Rice, 275 U.S. 78 (1927).
[1166] 305 U.S. 337 (1938).
[1167] Sipuel _v._ Oklahoma, 332 U.S. 631 (1948).
[1168] Fisher _v._ Hurst, 333 U.S. 147 (1948).
[1169] 339 U.S. 629 (1950).
[1170] 339 U.S. 637 (1950).
The "Separate but Equal" Doctrine took its rise in Chief Justice Shaw's
opinion in Roberts _v._ City of Boston, 59 Mass. 198, 200 (1849), for an
excellent account of which _see_ the article by Leonard W. Levy and
Harlan B. Phillips in 56 American Historical Review, 510-518 (April,
1951). _See also_ Judge Danforth's opinion in Gallagher _v._ King, 93
N.Y. 438 (1883).
In a case in which Negro children brought a suit in the Federal District
Court for the Eastern District of South Carolina, to enjoin certain
school officials from making any distinctions based upon race or color
in providing educational facilities, the court found that statutes of
South Carolina which required separate schools for the two races did not
of themselves violate the Fourteenth Amendment, but ordered the school
officials to proceed at once to furnish equal educational facilities and
to report to the court within six months as to the action taken. On
appeal to the Supreme Court the case was remanded for further
proceedings in order that the Supreme Court may "have the benefit of the
views of the District Court upon the additional facts brought to the
attention of that court in the report which it ordered." Briggs _v._
Elliott, 342 U.S. 350, 351 (1952).
Recently, the Fourth United States Circuit Court of Appeals, sitting at
Richmond, ruled that Negroes must be admitted to the white University of
North Carolina Law School in terms which flatly rejected the thesis of
separate but equal facilities. "It is a definite handicap to the colored
student to confine his association in the Law School with people of his
own class," said the opinion of Judge Morris A. Soper.--McKissick _v._
Carmichael, 187 F. 2d 949, 952 (1951).
[1171] Guinn _v._ United States, 238 U.S. 347 (1915).
[1172] Williams _v._ Mississippi, 170 U.S. 213 (1898).
[1173] Giles _v._ Harris, 189 U.S. 475, 486 (1903).
[1174] Lane _v._ Wilson, 307 U.S. 268, 275 (1939).
[1175] _See_ p. 1141, _ante_.
[1176] Nixon _v._ Herndon, 273 U.S. 536 (1927).
[1177] Nixon _v._ Condon, 286 U.S. 73, 89 (1932).
[1178] Grovey _v._ Townsend, 295 U.S. 45 (1935).
[1179] United States _v._ Classic, 313 U.S. 299 (1941).
[1180] 321 U.S. 649 (1944).
[1181] Pope _v._ Williams, 193 U.S. 621 (1904).
[1182] 321 U.S. 1 (1944).
[1183] 328 U.S. 549, 566 (1946). Justice Black dissented on the ground
that the equal protection clause was violated.
[1184] 335 U.S. 281, 287, 288 (1948). Justice Douglas, with whom
Justices Black and Murphy concurred, dissented saying that the statute
lacked "the equality to which the exercise of political rights is
entitled under the Fourteenth Amendment."
[1185] South _v._ Peters, 339 U.S. 276 (1950).
[1186] Dohany _v._ Rogers, 281 U.S. 362, 369 (1930).
[1187] Hayes _v._ Missouri, 120 U.S. 68 (1887).
[1188] Hardware Dealers Mut. F. Ins. Co. _v._ Glidden Co., 284 U.S. 151
(1931).
[1189] Lindsley _v._ Natural Carbonic Gas Co., 220 U.S. 61, 81, 82
(1911); _see also_ Mobile, J. & K.C.R. Co. _v._ Turnipseed, 219 U.S. 35
(1910); Adams _v._ New York, 192 U.S. 585 (1904).
[1190] Cohen _v._ Beneficial Loan Corp., 337 U.S. 541, 552 (1949).
[1191] Bowman _v._ Lewis, 101 U.S. 22, 30 (1880). _See also_ Duncan _v._
Missouri, 152 U.S. 377 (1894); Ohio ex rel. Bryant _v._ Akron
Metropolitan Park Dist, 281 U.S. 74 (1930).
[1192] Mallett _v._ North Carolina, 181 U.S. 589 (1901); _see also_
Bowman _v._ Lewis, 101 U.S. 22, 30 (1880).
[1193] Truax _v._ Corrigan, 257 U.S. 312 (1921).
[1194] Cochran _v._ Kansas, 316 U.S. 255 (1942).
[1195] Bain Peanut Co. _v._ Pinson, 282 U.S. 499 (1931).
[1196] Consolidated Rendering Co. _v._ Vermont, 207 U.S. 541 (1908).
_See also_ Hammond Packing Co. _v._ Arkansas, 212 U.S. 322 (1909).
[1197] Power Mfg. Co. _v._ Saunders, 274 U.S. 490 (1927).
[1198] Kentucky Finance Corp. _v._ Paramount Auto Exch. Corp., 262 U.S.
544 (1923).
[1199] Fidelity Mut. Life Asso. _v._ Mettler, 185 U.S. 308, 325 (1902).
_See also_ Manhattan L. Ins. Co. _v._ Cohen, 234 U.S. 123 (1914).
[1200] Lowe _v._ Kansas, 163 U.S. 81 (1896).
[1201] Missouri, K. & T.R. Co. _v._ Cade, 233 U.S. 642 (1914); _see
also_ Missouri, K. & T.R. Co. _v._ Harris, 234 U.S. 412 (1914).
[1202] Missouri P.R. Co. _v._ Larabee, 234 U.S. 459 (1914).
[1203] Atchison, T. & S.F.R. Co. _v._ Matthews, 174 U.S. 96 (1899).
[1204] Gulf, C. & S.F.R. Co. _v._ Ellis, 165 U.S. 150 (1897). _See also_
Atchison, T. & S.F.R. Co. _v._ Vosburg, 238 U.S. 56 (1915).
[1205] 18 Stat. 336 (1875); 8 U.S.C. Sec. 44 (1946).
[1206] Cassell _v._ Texas, 339 U.S. 282 (1950); Hill _v._ Texas, 316
U.S. 400, 404 (1942); Smith _v._ Texas, 311 U.S. 128 (1940); Pierre _v._
Louisiana, 306 U.S. 354 (1939); Virginia _v._ Rives, 100 U.S. 313
(1880).
[1207] Virginia _v._ Rives, 100 U.S. 313, 322, 323 (1880).
[1208] Akins _v._ Texas, 325 U.S. 398, 403 (1945).
[1209] Patton _v._ Mississippi, 332 U.S. 463 (1947). _See also_ Shepherd
_v._ Florida, 341 U.S. 50 (1951).
[1210] Gibson _v._ Mississippi, 162 U.S. 565 (1896).
[1211] Rawlins _v._ Georgia, 201 U.S. 638 (1906).
[1212] 332 U.S. 261 (1947).
In an interesting footnote to his opinion, Justice Jackson asserted that
"it is unnecessary to decide whether the equal protection clause of the
Fourteenth Amendment might of its own force prohibit discrimination on
account of race in the selection of jurors, so that such discrimination
would violate the due process clause of the same Amendment." Ibid. 284.
Earlier cases dealing with racial discrimination have indicated that the
discrimination was forbidden by the equal protection clause as well as
by the Civil Rights Act of 1875. _See_ cases cited to the preceding
paragraph. [Transcriber's Note: Reference is to Section "Selection of
Jury", above.]
[1213] Ibid. 285.
[1214] Ibid. 270, 271.
[1215] Ibid. 291.
[1216] Ibid. 288, 289, 299, 300. Four Justices, speaking by Justice
Murphy dissented, saying: "The proof here is adequate enough to
demonstrate that this panel, like every discriminatorily selected 'blue
ribbon' panel, suffers from a constitutional infirmity. That infirmity
is the denial of equal protection to those who are tried by a jury drawn
from a 'blue ribbon' panel. Such a panel is narrower and different from
that used in forming juries to try the vast majority of other accused
persons. To the extent of that difference, therefore, the persons tried
by 'blue ribbon' juries receive unequal protection." "In addition, as
illustrated in this case, the distinction that is drawn in fact between
'blue ribbon' jurors and general jurors is often of such a character as
to destroy the representative nature of the 'blue ribbon' panel. There
is no constitutional right to a jury drawn from a group of uneducated
and unintelligent persons. Nor is there any right to a jury chosen
solely from those at the lower end of the economic and social scale. But
there is a constitutional right to a jury drawn from a group which
represents a cross-section of the community. And a cross-section of the
community includes persons with varying degrees of training and
intelligence and with varying economic and social positions. Under our
Constitution, the jury is not to be made the representative of the most
intelligent, the most wealthy or the most successful, nor of the least
intelligent, the least wealthy or the least successful. It is a
democratic institution, representative of all qualified classes of
people. * * * To the extent that a 'blue ribbon' panel fails to reflect
this democratic principle, it is constitutionally defective."
[1217] 112 U.S. 94, 102 (1884).
[1218] W.G. Rice, Esq., Jr., University of Wisconsin Law School, The
Position of the American Indian in the Law of the United States, 16
Journal of Comp. Leg. 78, 80 (1934).
[1219] 39 Op. Atty. Gen. 518, 519.
[1220] 46 Stat. 26; 55 Stat. 761; 2 U.S.C.A. Sec. 2a (a).
[1221] Cong. Rec., 77th Cong., 1st sess., vol. 87, p. 70, January 8,
1941.
[1222] McPherson _v._ Blacker, 146 U.S. 1 (1892); Ex parte Yarbrough,
110 U.S. 651, 663 (1884).
[1223] Saunders _v._ Wilkins, 152 F. (2d) 235 (1945); certiorari denied,
328 U.S. 870 (1946); rehearing denied, 329 U.S. 825 (1946).
[1224] Saunders _v._ Wilkins, 152 F. (2d) 235, 237-238, citing
Willoughby, Constitution, 2d ed., pp. 626, 627.
[1225] Legislation by Congress providing for removal was necessary to
give effect to the prohibition of section 3; and until removed in
pursuance of such legislation, the exercise of functions by persons in
office before promulgation of the Fourteenth Amendment was not unlawful.
(Griffin's Case, 11 Fed. Cas. No. 5815 (1869)). Nor were persons who had
taken part in the Civil War and had been pardoned therefor by the
President before the adoption of this Amendment precluded by this
section from again holding office under the United States. (18 Op. Atty.
Gen. 149 (1885)).
The phrase, "engaged in Rebellion" has been construed as implying a
voluntary effort to assist an insurrection and to bring it to a
successful termination; and accordingly as not embracing acts done under
compulsion of force or of a well grounded fear of bodily harm. Thus,
while the mere holding of a commission of justice of the peace under the
Confederate government was not viewed as involving, of itself,
"adherence or countenance to the Rebellion," action by such officer in
furnishing a substitute for himself to the Confederate Army amounted to
such participation in a Rebellion unless said action could be shown to
have resulted from fear of conscription and to have sprung, not from
repugnance to military service, but from want of sympathy with the
insurrectionary movement. (United States _v._ Powell, 27 Fed. Cas. No.
16,079 (1871)).
[1226] Perry _v._ United States, 294 U.S. 330, 354 (1935) in which the
Court concluded "that the Joint Resolution of June 5, 1933, insofar as
it attempted to override" the gold-clause obligation in a Fourth Liberty
Loan Gold Bond, "went beyond the congressional power."
_See also_ Branch _v._ Haas, 16 F. 53 (1883), citing Hanauer _v._
Woodruff, 15 Wall. 439 (1873) and Thorington _v._ Smith, 8 Wall. 1
(1869) in which it was held that inasmuch as bonds issued by the
Confederate States were rendered illegal by section four, a contract for
the sale and delivery before October 29, 1881 of 200 Confederate coupon
bonds at the rate of $1000 was void, and a suit for damages for failure
to deliver could not be maintained.
_See also_ The Pietro Campanella, 73 F. Supp. 18 (1947) which arose out
of a suit for the forfeiture, prior to our entry into World War II, of
Italian vessels in an American port and their subsequent requisition by
the Maritime Commission. The Attorney General, as successor to the Alien
Property Custodian, was declared to be entitled to the fund thereafter
determined to be due as compensation for the use and subsequent loss of
the vessels; and the order of the Alien Property Custodian vesting in
himself, for the United States, under authority of the Trading with the
Enemy Act and Executive Order, all rights of claimants in the vessels
and to the fund substituted therefor was held not to be a violation of
section four. An attorney for certain of the claimants, who had asserted
a personal right to a lien upon the fund for his services, had argued
that when the Government requisitioned ships under the applicable
statute providing for compensation, and at a time before this country
was at war with Italy, the United States entered into a binding
agreement with the owners for compensation and that this promise
constituted a valid obligation of the United States which could not be
repudiated without violating section four.
[1227] Civil Rights Cases, 109 U.S. 3, 13 (1883). _See also_ United
States _v._ Wheeler, 254 U.S. 281 (1920) on which it was held that the
United States is without power to punish infractions by individuals of
the right of citizen to reside peacefully in the several States, and to
have free ingress into and egress from such States. Authority to deal
with the forcible eviction by a mob of individuals across State
boundaries is exclusively within the power reserved by the Constitution
to the States.
[1228] Virginia _v._ Rives, 100 U.S. 313, 318 (1880); Strauder _v._ West
Virginia, 100 U.S. 303 (1880).
[1229] Ex parte Virginia, 100 U.S. 339, 344 (1880).
[1230] United States _v._ Harris, 106 U.S. 629 (1883). _See also_
Baldwin _v._ Franks, 120 U.S. 678, 685 (1887).
[1231] 325 U.S. 91 (1945).
[1232] 18 U.S.C.A. Sec. 242.
[1233] No "opinion of the Court" was given. In announcing the judgment
of the Court, Justice Douglas, who was joined by Chief Justice Stone and
Justices Black and Reed, declared that the trial judge had erred in not
charging the jury that the defendants must be found to have had the
specific intention of depriving their victim of his right to a fair
trial in accordance with due process of law, that this was the force of
the word, "willfully," in section 20, and that any other construction of
section 20 would be void for want of laying down an "ascertainable
standard of guilt." To avoid a stalemate on the Court, Justice Rutledge
concurred in the result; but, on the merits of the case, he would have
affirmed the conviction. Justice Murphy announced that he favored
affirming the conviction and therefore dissented. Justice Roberts, with
whom Justices Frankfurter and Jackson were associated, dissented for
reasons stated in the text.
[1234] 100 U.S. 339, 346 (1880).
[1235] 313 U.S. 299, 326 (1941).
[1236] 325 U.S. 91, 114-116 (1945). _But see_ Barney _v._ City of New
York, 193 U.S. 430, 438, 441 (1904).
[1237] Ibid. 106-107. The majority supporting this proposition was not
the same majority as the one which held that "State" action was
involved.
[1238] 341 U.S. 97 (1951).
[1239] Ibid. 103-104.
[1240] 342 U.S. 852.
[1241] Ibid. 853-854.
AMENDMENT 15
RIGHT OF CITIZENS TO VOTE
Page
Affirmative interpretation 1183
Negative application; the "Grandfather Clause" 1184
Application to party primaries 1185
Enforcement 1186
AMENDMENT 15.--RIGHT OF CITIZENS TO VOTE
Amendment 15
Section 1. The right of citizens of the United States to vote
shall not be denied or abridged by the United States or by any State on
account of race, color, or previous condition of servitude.
Section 2. The Congress shall have power to enforce this
article by appropriate legislation.
Affirmative Interpretation
In its initial appraisals of this amendment the Court appeared disposed
to emphasize only its purely negative aspects. "The Fifteenth
Amendment," it announced, did "not confer the right * * * [to vote] upon
any one," but merely "invested the citizens of the United States with a
new constitutional right which is * * * exemption from discrimination in
the exercise of the elective franchise on account of race, color, or
previous condition of servitude."[1] Within less than ten years,
however, in Ex parte Yarbrough,[2] the Court ventured to read into the
amendment an affirmative as well as a negative purpose. Conceding "that
this article" had originally been construed as giving "no affirmative
right to the colored man to vote," and as having been "designed
primarily to prevent discrimination against him," Justice Miller, in
behalf of his colleagues, disclosed their present ability "to see that
under some circumstances it may operate as the immediate source of a
right to vote. In all cases where the former slave-holding States had
not removed from their Constitutions the words 'white man' as a
qualification for voting, this provision did, in effect, confer on him
the right to vote, because, * * *, it annulled the discriminating word
_white_, and thus left him in the enjoyment of the same right as white
persons. And such would be the effect of any future constitutional
provision of a State which should give the right of voting exclusively
to white people, * * *"
Negative Application; the "Grandfather Clause"
The subsequent history of the Fifteenth Amendment has been largely a
record of belated judicial condemnation of various attempts by States to
disfranchise the Negro either overtly through statutory enactment, or
covertly through inequitable administration of their electoral laws or
by toleration of discriminatory membership practices of political
parties. Of several devices which have been voided, one of the first to
be held unconstitutional was the "grandfather clause." Without expressly
disfranchising the Negro, but with a view to facilitating the permanent
placement of white residents on the voting lists while continuing to
interpose severe obstacles upon Negroes seeking qualification as voters,
several States, beginning in 1895, enacted temporary laws whereby
persons who were voters, or descendants of voters on January 1, 1867,
could be registered notwithstanding their inability to meet any literacy
requirements. Unable because of the date to avail themselves of the same
exemption, Negroes were thus left exposed to disfranchisement on grounds
of illiteracy while whites no less illiterate were enabled to become
permanent voters. With the achievement of this intended result, most
States permitted their laws to lapse; but Oklahoma's grandfather clause
was enacted as a permanent amendment to the State constitution; and when
presented with an opportunity to pass on its validity, a unanimous Court
condemned the standard of voting thus established as recreating and
perpetuating "the very conditions which the [Fifteenth] Amendment was
intended to destroy."[3] Nor, when Oklahoma followed up this defeat with
a statute of 1916 which provided that all persons, except those who
voted in 1914, who were qualified to vote in 1916 but who failed to
register between April 30 and May 11, 1916 (sick persons and persons
absent had a second opportunity to register between May 11 and June 30,
1916) should be perpetually disfranchised, did the Court experience any
difficulty in holding the same to be repugnant to the amendment.[4] That
amendment, Justice Frankfurter declared, "nullifies sophisticated as
well as simple-minded modes of discrimination. It hits onerous
procedural requirements which effectively handicap exercise of the
franchise by the colored race although the abstract right to vote may
remain unrestricted as to race."[5] More precisely, the effect of this
statute, as discerned by the Court, was automatically to continue as
permanent voters, without their being obliged to register again, all
white persons who were on registry lists in 1914 by virtue of the
hitherto invalidated grandfather clause; whereas Negroes, prevented from
registering by that clause, were afforded only a twenty-day registration
opportunity to avoid permanent disfranchisement.
Application to Party Primaries
Indecision was displayed by the Court, however, when it was first called
upon to deal with the exclusion of Negroes from participation in primary
elections.[6] Prior to its becoming convinced that primary contests were
in fact elections,[7] the Court had relied upon the equal protection
clause to strike down a Texas White Primary Law[8] and a subsequent
Texas statute which contributed to a like exclusion by limiting voting
in primaries to members of State political parties as determined by the
central committees thereof.[9] When exclusion of Negroes was thereafter
perpetuated by political parties acting not in obedience to any
statutory command, this discrimination was for a time viewed as not
constituting State action and therefore not prohibited by either the
Fourteenth or the Fifteenth Amendments.[10] But this holding was
reversed nine years later when the Court, in Smith _v._ Allwright,[11]
declared that where the selection of candidates for public office is
entrusted by statute to political parties, a political party in making
its selection at a primary election is a State agency, and hence may not
under this amendment exclude Negroes from such elections.
At a very early date the Court held that literacy tests which are
drafted so as to apply alike to all applicants for the voting franchise
would be deemed to be fair on their face, and in the absence of proof of
discriminatory enforcement could not be viewed as denying the equal
protection of the laws guaranteed by the Fourteenth Amendment.[12] More
recently, the Boswell amendment to the constitution of Alabama, which
provided that only persons who understood and could explain the
Constitution of the United States to the reasonable satisfaction of
boards of registrars was found, both in its object as well as in the
manner of its administration, to be contrary to the Fifteenth
Amendment. The legislative history of the adoption of the Alabama
provision disclosed that "the ambiguity inherent in the phrase
'understand and explain' * * * was purposeful * * * and was intended as
a grant of arbitrary power in an attempt to obviate the consequences of"
Smith _v._ Allwright.[13]
Enforcement
Two major questions have presented themselves for decision as a
consequence of the exercise by Congress of its powers to enforce this
article, an amendment which the Court has acknowledged to be
self-executing.[14] These have pertained to the limitations which the
amendment imposes on the competency of Congress legislating thereunder
to punish racial discrimination founded upon more than a denial of
suffrage and to penalize such denials when perpetrated by private
individuals not acting under color of public authority. Rulings on both
these issues were made very early; and the Court thus far has manifested
no disposition to depart from them, although their compatibility with
more recent holdings may be doubtful. Thus, when the Enforcement Act of
1870,[15] which penalized State officers for refusing to receive the
vote of any qualified citizen, was employed to support a prosecution of
such officers for having prevented a qualified Negro from voting, the
Court held it to be in excess of the authority conferred upon
Congress.[16] The Fifteenth Amendment, Chief Justice Waite maintained,
did not confer "authority to impose penalties for every wrongful refusal
to receive * * * [a] vote * * *, [but] only when the wrongful refusal
* * * is because of race, color, or previous condition of servitude,
* * *" Voided for the like reason that this amendment "relates solely to
action 'by the United States or by any State,' and does not contemplate
wrongful individual acts" was another provision of the same act, which
authorized prosecution of private individuals for having prevented
citizens from voting at a Congressional election.[17]
Notes
[1] United States _v._ Reese, 92 U.S. 214, 217-218 (1876); United States
_v._ Cruikshank, 92 U.S. 542, 556 (1876).
[2] 110 U.S. 651, 665 (1884); citing Neal _v._ Delaware, 103 U.S. 370,
389 (1881). This affirmative view was later reiterated in Guinn _v._
United States, 238 U.S. 347, 363 (1915).
[3] Guinn _v._ United States, 238 U.S. 347, 360, 363-364 (1915).
[4] Lane _v._ Wilson, 307 U.S. 268 (1939).
[5] Ibid. 275.
[6] Cases involving this and related issues are also discussed under the
equal protection clause, p. 1163.
[7] United States _v._ Classic, 313 U.S. 299 (1941); Smith _v._
Allwright, 321 U.S. 649 (1944).
[8] Nixon _v._ Herndon, 273 U.S. 536 (1927).
[9] Nixon _v._ Condon, 286 U.S. 73, 89 (1932).
[10] Grovey _v._ Townsend, 295 U.S. 45, 55 (1935).
[11] 321 U.S. 649 (1944). Notwithstanding that the South Carolina
Legislature, after the decision in Smith _v._ Allwright, repealed all
statutory provisions regulating primary elections and political
organizations conducting them, a political party thus freed of control
is not to be regarded as a private club and for that reason exempt from
the constitutional prohibitions against racial discrimination contained
in the Fifteenth Amendment. Rice _v._ Elmore, 165 F. (2d) 387 (1947);
certiorari denied, 333 U.S. 875 (1948). _See also_ Brown _v._ Baskin, 78
F. Supp. 933, 940 (1948) which held violative of the Fifteenth Amendment
a requirement of a South Carolina political party, which excluded
Negroes from membership, that white as well as Negro qualified voters,
as a prerequisite for voting in its primary, take an oath that they will
support separation of the races.
[12] Williams _v._ Mississippi, 170 U.S. 213, 220 (1898).
[13] Davis _v._ Schnell, 81 F. Supp. 872, 878, 880 (1949); affirmed, 336
U.S. 933 (1949).
[14] United States _v._ Amsden, 6 F. 819 (1881).
[15] 16 Stat. 140.
[16] United States _v._. Reese, 92 U.S. 214, 218 (1876).
[17] James _v._ Bowman, 190 U.S. 127, 136 (1903) _See also_ Karem _v._
United States, 121 F. 250, 259 (1903).
AMENDMENT 16
INCOME TAX
Page
History and purpose of the amendment 1191
Meaning of income as distinguished from capital 1192
Corporate dividends: when taxable as income 1193
The "stock dividends case" 1193
Other corporate earnings or receipts: when taxable as income 1196
Gains in the form of real estate: when taxable as income 1197
Gains in the form of bequests: when taxable as income 1198
Diminution of loss: not income 1198
Dates applicable in computation of taxable gains 1199
Deductions: exemptions, etc. 1200
Illegal gains as income 1201
INCOME TAX
Amendment 16
The Congress shall have power to lay and collect taxes on incomes, from
whatever source derived, without apportionment among the several States,
and without regard to any census or enumeration.
History and Purpose of the Amendment
The ratification of this amendment was the direct consequence of the
decision in 1895[1] whereby the attempt of Congress the previous year to
tax incomes uniformly throughout the United States[2] was held by a
divided court to be unconstitutional. A tax on incomes derived from
property,[3] the Court declared, was a "direct tax" which Congress under
the terms of article I, section 2, clause 3, and section 9, clause 4,
could impose only by the rule of apportionment according to population;
although scarcely fifteen years prior the Justices had unanimously
sustained[4] the collection of a similar tax during the Civil War,[5]
the only other occasion preceding Amendment Sixteen in which Congress
had ventured to utilize this method of raising revenue.[6]
During the interim between the Pollock decision in 1895, and the
ratification of the Sixteenth Amendment in 1913, the Court gave evidence
of a greater awareness of the dangerous consequences to national
solvency which that holding threatened, and partially circumvented it,
either by taking refuge in redefinitions of "direct tax" or, and more
especially, by emphasizing, virtually to the exclusion of the former,
the history of excise taxation. Thus, in a series of cases, notably
Nicol v. Ames,[7] Knowlton _v._ Moore[8] and Patton _v._ Brady[9] the
Court held the following taxes to have been levied merely upon one of
the "incidents of ownership" and hence to be excises; a tax which
involved affixing revenue stamps to memoranda evidencing the sale of
merchandise on commodity exchanges, an inheritance tax, and a war
revenue tax upon tobacco on which the hitherto imposed excise tax had
already been paid and which was held by the manufacturer for resale.
Thanks to such endeavors the Court thus found it possible, in 1911,[10]
to sustain a corporate income tax as an excise "measured by income" on
the privilege of doing business in corporate form. The adoption of the
Sixteenth Amendment, however, put an end to speculation as to whether
the Court, unaided by constitutional amendment, would persist along
these lines of construction until it had reversed its holding in the
Pollock Case. Indeed, in its initial appraisal[11] of the amendment it
classified income taxes as being inherently "indirect." "The command of
the amendment that all income taxes shall not be subject to
apportionment by a consideration of the sources from which the taxed
income may be derived, forbids the application to such taxes of the rule
applied in the Pollock Case by which alone such taxes were removed from
the great class of excises, duties, and imposts subject to the rule of
uniformity and were placed under the other or direct class.[12] * * *
The Sixteenth Amendment conferred no new power of taxation but simply
prohibited the previous complete and plenary power of income taxation
possessed by Congress from the beginning from being taken out of the
category of indirect taxation to which it inherently belonged
* * *"[13]
Meaning of "Income" as Distinguished From Capital
Building upon definitions formulated in cases construing the Corporation
Tax Act of 1909,[14] the Court initially described income as the "gain
derived from capital, from labor, or from both combined," inclusive of
the "profit gained through a sale or conversion of capital assets";[15]
and in the following array of factual situations has subsequently
applied this definition to achieve results that have been productive of
extended controversy.
CORPORATE DIVIDENDS: WHEN TAXABLE AS INCOME
Rendered in conformity with the belief that all income "in the ordinary
sense of the word" became taxable under the Sixteenth Amendment, the
earliest decisions of the Court on the taxability of corporate dividends
occasioned little comment. Emphasizing that in all such cases the
stockholder is to be viewed as "a different entity from the
corporation," the Court in Lynch _v._ Hornby[16] held that a cash
dividend equal to 24% of the par value of outstanding stock and made
possible largely by the conversion into money of assets earned prior to
the adoption of the amendment, was income taxable to the stockholder for
the year in which he received it, notwithstanding that such an
extraordinary payment might appear "to be a mere realization in
possession of an inchoate and contingent interest * * * [of] the
stockholder * * * in a surplus of corporate assets previously existing."
In Peabody _v._ Eisner,[17] decided on the same day and deemed to have
been controlled by the preceding case, the Court ruled that a dividend
paid in the stock of another corporation, although representing earnings
that had accrued before ratification of the amendment, was also taxable
to the shareholder as income. The dividend was likened to a distribution
in specie.
THE "STOCK DIVIDENDS CASE"
Two years later the Court decided Eisner _v._ Macomber,[18] and the
controversy which that decision precipitated still endures. Departing
from the interpretation placed upon the Sixteenth Amendment in the
earlier cases; namely, that the purpose of the amendment was to correct
the "error" committed in the Pollock Case and to restore income taxation
to "the category of indirect taxation to which it inherently belonged,"
Justice Pitney, who delivered the opinion in the Eisner Case, indicated
that the sole purpose of the Sixteenth Amendment was merely to "remove
the necessity which otherwise might exist for an apportionment among the
States of taxes laid on income." He thereupon undertook to demonstrate
how what was not income, but an increment of capital when received,
could later be transmitted into income upon sale or conversion, and
could be taxed as such without the necessity of apportionment. In short,
the term "income" reacquired to some indefinite extent a restrictive
significance.
Specifically, the Justice held that a stock dividend was capital when
received by a stockholder of the issuing corporation and did not become
taxable without apportionment; that is, as "income," until sold or
converted, and then only to the extent that a gain was realized upon the
proportion of the original investment which such stock represented. "A
stock dividend," Justice Pitney maintained, "far from being a
realization of profits to the stockholder, * * * tends rather to
postpone such realization, in that the fund represented by the new stock
has been transferred from surplus to capital, and no longer is available
for actual distribution. * * * not only does a stock dividend really
take nothing from * * * the corporation and add nothing to that of the
shareholder, but * * * the antecedent accumulation of profits evidenced
thereby, while indicating that the shareholder is richer because of an
increase of his capital, at the same time shows [that] he has not
realized or received any income in" what is no more than a "bookkeeping
transaction." But conceding that a stock dividend represented a gain,
the Justice concluded that the only gain taxable as "income" under the
amendment was "a gain, a profit, something of exchangeable value
_proceeding from_ the property, _severed from_ the capital however
invested or employed, and _coming in_, being '_derived_,' that is,
_received_ or _drawn by_ the recipient [the taxpayer] for his _separate_
use, benefit, and disposal; * * *." Only the latter, in his opinion,
answered the description of income "derived" from property; whereas "a
gain accruing to capital, not a _growth_ or an _increment_ of value _in_
the investment" did not.[19]
Although steadfastly refusing to depart from the principle[20] which it
asserted in Eisner _v._ Macomber, the Court in subsequent decisions has,
however, slightly narrowed the application thereof. Thus, the
distribution, as a dividend, to stockholders of an existing corporation
of the stock of a new corporation to which the former corporation, under
a reorganization, had transferred all its assets, including a surplus of
accumulated profits, was treated as taxable income. The fact that a
comparison of the market value of the shares in the older corporation
immediately before, with the aggregate market value of those shares plus
the dividend shares immediately after, the dividend showed that the
stockholders experienced no increase in aggregate wealth was declared
not to be a proper test for determining whether taxable income had been
received by these stockholders.[21] On the other hand, no taxable income
was held to have been produced by the mere receipt by a stockholder of
rights to subscribe for shares in a new issue of capital stock, the
intrinsic value of which was assumed to be in excess of the issuing
price. The right to subscribe was declared to be analogous to a stock
dividend, and "only so much of the proceeds obtained upon the sale of
such rights as represents a realized profit over cost" to the
stockholders was deemed to be taxable income.[22] Similarly, on grounds
of consistency with Eisner _v._ Macomber, the Court has ruled that
inasmuch as they gave the stockholder an interest different from that
represented by his former holdings, a dividend in common stock to
holders of preferred stock,[23] or a dividend in preferred stock
accepted by a holder of common stock[24] was income taxable under the
Sixteenth Amendment.
OTHER CORPORATE EARNINGS OR RECEIPTS: WHEN TAXABLE AS INCOME
On at least two occasions the Court has rejected as untenable the
contention that a tax on undistributed corporate profits is essentially
a penalty rather than a tax or that it is a direct tax on capital and
hence is not exempt from the requirement of apportionment. Inasmuch as
the exaction was permissible as a tax, its validity was held not to be
impaired by its penal objective, namely, "to force corporations to
distribute earnings in order to create a basis for taxation against the
stockholders." As to the added contention that, because liability was
assessed upon a mere purpose to evade imposition of surtaxes against
stockholders, the tax was a direct tax on a state of mind, the Court
replied that while "the existence of the defined purpose was a condition
precedent to the imposition of the tax liability, * * * this * * * [did]
not prevent it from being a true income tax within the meaning of the
Sixteenth Amendment."[25] Subsequently, in Helvering _v._ Northwest
Steel Mills,[26] this appraisal of the constitutionality of the
undistributed profits tax was buttressed by the following observation:
"It is true that the surtax is imposed upon the annual income only if it
is not distributed, but this does not serve to make it anything other
than a true tax on income within the meaning of the Sixteenth Amendment.
Nor is it true, * * *, that because there might be an impairment of the
capital stock, the tax on the current annual profit would be the
equivalent of a tax upon capital. Whether there was an impairment of the
capital stock or not, the tax * * * was imposed on profits earned during
* * *--a tax year--and therefore on profits constituting income within
the meaning of the Sixteenth Amendment."[27] Likening a cooperative to a
corporation, federal courts have also declared to be taxable income the
net earnings of a farmers' cooperative, a portion of which was used to
pay dividends on capital stock without reference to patronage. The
argument that such earnings were in reality accumulated savings of its
patrons which the cooperative held as their bailee was rejected as
unsound for the reason that "while those who might be entitled to
patronage dividends have, * * *, an interest in such earnings, such
interest never ripens into an individual ownership * * * until and if a
patronage dividend be declared." Had such net earnings been apportioned
to all of the patrons during the year, "there might be * * * a more
serious question as to whether such earnings constituted 'income' [of
the cooperative] within the Amendment."[28] Similarly, the power of
Congress to tax the income of an unincorporated joint stock association
has been held to be unaffected by the fact that under State law the
association is not a legal entity and cannot hold title to property, or
by the fact that the shareholders are liable for its debts as
partners.[29]
Whether subsidies paid to corporations in money or in the form of grants
of land or other physical property constitute taxable income has also
concerned the Court. In Edwards _v._ Cuba Railroad Co.[30] it ruled that
subsidies of lands, equipment, and money paid by Cuba for the
construction of a railroad were not taxable income but were to be viewed
as having been received by the railroad as a reimbursement for capital
expenditures in completing such project. On the other hand, sums paid
out by the Federal Government to fulfil its guarantee of minimum
operating revenue to railroads during the six months following
relinquishment of their control by that government were found to be
taxable income. Such payments were distinguished from those excluded
from computation of income in the preceding case in that the former were
neither bonuses, nor gifts, nor subsidies; "that is, contributions to
capital."[31]
GAINS IN THE FORM OF REAL ESTATE; WHEN TAXABLE AS INCOME
When through forfeiture of a lease in 1933, a landlord became possessed
of a new building erected on his land by the outgoing tenant, the
resulting gain to the former was taxable to him in that year. Although
"economic gain is not always taxable as income, it is settled that the
realization of gain need not be in cash derived from the sale of an
asset. * * * The fact that the gain is a portion of the value of the
property received by the * * * [landlord] does not negative its
realization. * * * [Nor is it necessary] to recognition of taxable gain
that * * * [the landlord] should be able to sever the improvement
begetting the gain from his original capital." Hence, the taxpayer was
incorrect in contending that the amendment "does not permit the taxation
of such [a] gain without apportionment amongst the states."[32]
Consistently with this holding the Court has also ruled that when an
apartment house was acquired by bequest subject to an unassumed
mortgage, and several years thereafter was sold for a price slightly in
excess of the mortgage, the basis for determining the gain from that
sale was the difference between the selling price, undiminished by the
amount of the mortgage, and the value of the property at the time of the
acquisition, less deductions for depreciation during the years the
building was held by the taxpayer. The latter's contention that the
Revenue Act, as thus applied, taxed something which was not revenue was
declared to be unfounded.[33]
GAINS IN THE FORM OF BEQUESTS; WHEN TAXABLE AS INCOME
As against the argument of a donee that a gift of stock became a capital
asset when received and that therefore, when disposed of, no part of
that value could be treated as taxable income to said donee, the Court
has declared that it was within the power of Congress to require a donee
of stock, who sells it at a profit, to pay income tax on the difference
between the selling price and the value when the donor acquired it.[34]
Moreover, "the receipt in cash or property * * * not [being] the only
characteristic of realization of income to a taxpayer on the cash
receipts basis," it follows that one who is normally taxable only on the
receipt of interest payments cannot escape taxation thereon by giving
away his right to such income in advance of payment. When "the taxpayer
does not receive payment of income in money or property, realization may
occur when the last step is taken by which he obtains the fruition of
the economic gain which has already accrued to him." Hence an owner of
bonds, reporting on the cash receipts basis, who clipped interest
coupons therefrom before their due date and gave them to his son, was
held to have realized taxable income in the amount of said coupons,
notwithstanding that his son had collected them upon maturity later in
the year.[35]
DIMINUTION OF LOSS, NOT INCOME
Mere diminution of loss is neither gain, profit, nor income.
Accordingly, one who in 1913 borrowed a sum of money to be repaid in
German marks and who subsequently lost said money in a business
transaction cannot be taxed on the curtailment of debt effected by
using depreciated marks in 1921 to settle a liability of $798,144 for
$113,688, the "saving" having been exceeded by a loss on the entire
operation.[36]
DATES APPLICABLE IN COMPUTATION OF TAXABLE GAINS
With a frequency that for obvious reasons is progressively diminishing,
the Court has also been called upon to resolve questions as to whether
gains, realized after 1913, on transactions consummated prior to
ratification of the Sixteenth Amendment are taxable, and if so, how such
tax is to be determined. The Court's answer generally has been that if
the gain to the person whose income is under consideration became such
subsequently to the date at which the amendment went into effect;
namely, March 1, 1913, and is a real and not merely an apparent gain,
said gain is taxable. Thus, one who purchased stock in 1912 for $500
could not limit his taxable gain to the difference between $695, the
value of the stock on March 1, 1913 and $13,931, the price obtained on
the sale thereof in 1916; but was obliged to pay tax on the entire gain,
that is, the difference between the original purchase price and the
proceeds of the sale.[37] Conversely, one who acquired stock in 1912 for
$291,600 and who sold the same in 1916 for only $269,346, incurred a
loss and could not be taxed at all, notwithstanding the fact that on
March 1, 1913, his stock had depreciated to $148,635.[38] On the other
hand, although the difference between the amount of life insurance
premiums, paid as of 1908, and the amount distributed in 1919, when the
insured received the amount of his policy plus cash dividends
apportioned thereto since 1908, constituted a gain, that portion of the
latter which accrued between 1908 and 1913 was deemed to be an accretion
of capital and hence not taxable.[39]
DEDUCTIONS; EXEMPTIONS, ETC.
Notwithstanding the authorization contained in the Sixteenth Amendment
to tax income "from whatever source derived," Congress has been held not
to be precluded thereby from granting exemptions.[40] Thus, the fact
that "under the Revenue Acts of 1913, 1916, 1917, and 1918, stock fire
insurance companies were taxed * * * upon gains realized from the sale
* * * of property accruing subsequent to March 1, 1913," but were not so
taxed by the Revenue Acts of 1921, 1924, and 1926, did not prevent
Congress, under the terms of the Revenue Act of 1928, from taxing all
the gain attributable to increase in value after March 1, 1913 which
such a company realized from a sale of property in 1928. The
constitutional power of Congress to tax a gain being well established,
Congress, was declared competent to choose "the moment of its
realization and the amount realized"; and "its failure to impose a tax
upon the increase in value in the earlier years * * * [could not]
preclude it from taxing the gain in the year when realized * * *"[41]
Congress is equally well equipped with the "power to condition, limit,
or deny deductions from gross incomes in order to arrive at the net that
it chooses to tax."[42] Accordingly, even though the rental value of a
building used by its owner does not constitute income within the meaning
of the amendment,[43] Congress was competent to provide that an
insurance company shall not be entitled to deductions for depreciation,
maintenance, and property taxes on real estate owned and occupied by it
unless it includes in its computation of gross income the rental value
of the space thus used.[44]
ILLEGAL GAINS AS INCOME
In United States _v._ Sullivan[45] the Court held, in 1927, that gains
derived from illicit traffic in liquor were taxable income under the Act
of 1921.[46] Said Justice Holmes for the unanimous Court: "We see no
reason * * * why the fact that a business is unlawful should exempt it
from paying the taxes that if lawful it would have to pay."[47] But in
Commissioner _v._ Wilcox,[48] decided in 1946, Justice Murphy, speaking
for a majority of the Court, held that embezzled money was not taxable
income to the embezzler, although any gain he derived from the use of it
would be. Justice Burton dissented on the basis of the Sullivan Case. In
Rutkin _v._ United States,[49] decided in 1952, a sharply divided Court
cuts loose from the metaphysics of the Wilcox case and holds that
Congress has the power under Amendment XVI to tax as income monies
received by an extortioner.
Notes
[1] Pollock _v._ Farmers' Loan & Trust Co., 157 U.S. 429 (1895); 158
U.S. 601 (1895).
[2] 28 Stat. 509.
[3] The Court conceded that taxes on Incomes from "professions, trades,
employments, or vocations" levied by this act were excise taxes and
therefore valid. The entire statute, however, was voided on the ground
that Congress never intended to permit the entire "burden of the tax to
be borne by professions, trades, employments, or vocations" after real
estate and personal property had been exempted. 158 U.S. 601, 635
(1895).
[4] Springer _v._ United States, 102 U.S. 586 (1881).
[5] 13 Stat. 223 (1864).
[6] For an account of the Pollock decision _see_ pp. 319-320.
[7] 173 U.S. 509 (1899).
[8] 178 U.S. 41 (1900).
[9] 184 U.S. 608 (1902).
[10] Flint _v._ Stone Tracy Co., 220 U.S. 107 (1911).
[11] Brushaber _v._ Union P.R. Co., 240 U.S. 1 (1916); Stanton _v._
Baltic Min. Co., 240 U.S. 103 (1916); Tyee Realty Co. _v._ Anderson, 210
U.S. 115 (1916).
[12] Brushaber _v._ Union P.R. Co., 240 U.S. 1, 18-19 (1916).
[13] Stanton _v._ Baltic Min. Co., 240 U.S. 103, 112 (1916).
[14] Stratton's Independence _v._ Howbert, 231 U.S. 399 (1914); Doyle
_v._ Mitchell Bros. Co., 247 U.S. 179 (1918).
[15] Eisner _v._ Macomber, 252 U.S. 189 (1920); Bowers _v._
Kerbaugh-Empire Co., 271 U.S. 170 (1926).
[16] 247 U.S. 339, 344 (1918).--On the other hand, in Lynch _v._
Turrish, 247 U.S. 221 (1918), the single and final dividend distributed
upon liquidation of the entire assets of a corporation, although
equalling twice the par value of the capital stock, was declared to
represent only the intrinsic value of the latter earned prior to the
effective date of the amendment, and hence was not taxable as income to
the shareholder in the year in which actually received. Similarly, in
Southern P. Co. _v._ Lowe, 247 U.S. 330 (1918) dividends paid out of
surplus accumulated before the effective date of the amendment by a
railway company whose entire capital stock was owned by another railway
company and whose physical assets were leased to and used by the latter
was declared to be a nontaxable bookkeeping transaction between
virtually identical corporations.
[17] 247 U.S. 347 (1918).
[18] 252 U.S. 189, 206-208 (1920).
[19] Eisner _v._ Macomber, 252 U.S. 189, 207, 211-212 (1920). This
decision has been severely criticized, chiefly on the ground that gains
accruing to capital over a period of years are not income and are not
transformed into income by being dissevered from capital through sale or
conversion. Critics have also experienced difficulty in understanding
how a tax on income which has been severed from capital can continue to
be labeled a "direct" tax on the capital from which the severance has
thus been made. Finally, the contention has been made that in stressing
the separate identities of a corporation and its stockholders, the Court
overlooked the fact that when a surplus has been accumulated, the
stockholders are thereby enriched, and that a stock dividend may
therefore be appropriately viewed simply as a device whereby the
corporation reinvests money earned in their behalf. _See also_
Merchants' Loan & T. Co. _v._ Smietanka, 255 U.S. 509 (1921).
[20] Reconsideration was refused in Helvering _v._ Griffiths, 318 U.S.
371 (1943).
[21] United States _v._ Phellis, 257 U.S. 156 (1921); Rockefeller _v._
United States, 257 U.S. 176 (1921). _See also_ Cullinan _v._ Walker, 262
U.S. 134 (1923).
In Marr _v._ United States, 268 U.S. 536, 540-541 (1925) it was held
that the increased market value of stock issued by a new corporation in
exchange for stock of an older corporation, the assets of which it was
organized to absorb, was subject to taxation as income to the holder,
notwithstanding that the income represented profits of the older
corporation and that the capital remained invested in the same general
enterprise. Weiss _v._ Stearn, 265 U.S. 242 (1924), in which the
additional value in new securities was held not taxable, was likened to
Eisner _v._ Macomber, and distinguished from the aforementioned cases on
the ground of preservation of corporate identity. Although the "new
corporation had * * * been organized to take over the assets and
business of the old * * *, the corporate identity was deemed to have
been substantially maintained because the new corporation was organized
under the laws of the same State with presumably the same powers as the
old. There was also no change in the character of the securities
issued," with the result that "the proportional interest of the
stockholder after the distribution of the new securities was deemed to
be exactly the same."
[22] Miles _v._ Safe Deposit & Trust Co., 259 U.S. 247 (1922).
[23] Koshland _v._ Helvering, 298 U.S. 441 (1936)
[24] Helvering _v._ Gowran, 302 U.S. 238 (1937).
[25] Helvering _v._ National Grocery Co., 304 U.S. 282, 288-289 (1938).
In Helvering _v._ Mitchell, 303 U.S. 391 (1938) the defendant contended
the collection of 50% of any deficiency in addition to the deficiency
alleged to have resulted from a fraudulent intent to evade the income
tax amounted to the imposition of a criminal penalty. The Court,
however, described the additional sum as a civil and not a criminal
sanction, and one which could be constitutionally employed to safeguard
the Government against loss of revenue. In contrast, the exaction upheld
in Helvering _v._ National Grocery Co., though conceded to possess the
attributes of a civil sanction, was declared to be sustainable as a tax.
[26] 311 U.S. 46 (1940). _See also_ Crane-Johnson Co. _v._ Helvering,
311 U.S. 54 (1940).
[27] 311 U.S. 46, 53. Another provision of the Revenue Act, requiring
undistributed net income of a foreign personal holding company to be
included in the gross income of citizens or residents who are
shareholders in such company, was upheld as constitutional in Rodney
_v._ Hoey, 53 F. Supp. 604, 607-608 (1944).
[28] Farmers Union Co-op Co. _v._ Commissioner of Int. Rev., 90 F. (2d)
488, 491, 492 (1937).
[29] Burk-Waggoner Oil Asso. _v._ Hopkins, 269 U.S. 110 (1925).
[30] 268 U.S. 628 (1925).
[31] Texas & P. Ry. Co. _v._ United States, 286 U.S. 285, 289 (1932);
Continental Tie & Lumber Co. _v._ United States, 286 U.S. 290 (1932).
[32] Helvering _v._ Bruun, 309 U.S. 461, 468-469 (1940). _See also_
Hewitt Realty Co. _v._ Commissioner of Internal Revenue, 76 F. (2d) 880
(1935).
[33] Crane _v._ Commissioner, 331 U.S. 1, 15-16 (1947).
[34] The donor could not, "by mere gift, enable another to hold this
stock free from * * * the right of the sovereign to take part of any
increase in its value when separated through sale or conversion and
reduced to possession."--Taft _v._ Bowers, 278 U.S. 470, 482, 484
(1929).
[35] Helvering _v._ Horst, 311 U.S. 112, 115-116 (1940).
[36] Bowers _v._ Kerbaugh-Empire Co., 271 U.S. 170 (1926).
[37] Goodrich _v._ Edwards, 255 U.S. 527 (1921).
[38] Ibid. _See also_ Walsh _v._ Brewster, 255 U.S. 536 (1921).
[39] Lucas _v._ Alexander, 279 U.S. 573 (1929).
However, a litigant who, in 1915, reduced to judgment, a suit pending on
February 26, 1913 for an accounting under a patent infringement, was
unable to have treated as capital, and excluded from the taxable income
produced by such settlement, that portion of his claim which had accrued
prior to March 1, 1913. Income within the meaning of the amendment was
interpreted to be the fruit that is born of capital, not the potency of
fruition. All that the taxpayer possessed in 1913 was a contingent chose
in action which was inchoate, uncertain, and contested.--United States
_v._ Safety Car Heating & L. Co., 297 U.S. 88 (1936).
Similarly, purchasers of coal lands subject to mining leases executed
before adoption of the amendment could not successfully contend that
royalties received during 1920-1926 were payments for capital assets
sold before March 1, 1913, and hence not taxable. Such an exemption,
these purchasers argued, would have been in harmony with applicable
local law whereunder title to coal passes immediately to the lessee on
execution of such leases. To the Court, on the other hand, such leases
were not to be viewed "as a 'sale' of the mineral content of the soil"
inasmuch as minerals "may or may not be present in the leased premises
and may or may not be found [therein]. * * * If found, their abstraction
* * * is a time consuming operation and the payments made by the lessee
* * * do not normally become payable as the result of a single
transaction." The result for tax purposes would have been the same even
had the lease provided that title to the minerals would pass only "on
severance by the lessee."--Bankers Pocahontas Coal Co. _v._ Burnet, 287
U.S. 308 (1932); Burnet _v._ Harmel, 287 U.S. 103, 106-107, 111 (1932).
[40] Brushaber _v._ Union Pac. R. Co., 240 U.S. 1 (1916).
[41] MacLaughlin _v._ Alliance Ins. Co., 286 U.S. 244, 250 (1932).
[42] Helvering _v._ Independent L. Ins. Co., 292 U.S. 371, 381 (1934);
Helvering _v._ Winmill, 305 U.S. 79, 84 (1938).
[43] A tax on the rental value of property so occupied is a direct tax
on the land and must be apportioned.--Helvering _v._ Independent L. Ins.
Co., 292 U.S. 371, 378-379 (1934).
[44] 292 U.S. 381.--Expenditures incurred in the prosecution of work
under a contract for the purpose of earning profits are not capital
investments, the cost of which, if converted, must first be restored
from the proceeds before there is a capital gain taxable as income.
Accordingly, a dredging contractor, recovering a judgment for breach of
warranty of the character of the material to be dredged, must include
the amount thereof in the gross income of the year in which it was
received, rather than of the years during which the contract was
performed, even though it merely represents a return of expenditures
made in performing the contract and resulting in a loss. The gain or
profit subject to tax under the Sixteenth Amendment is the excess of
receipts over allowable deductions during the accounting period, without
regard to whether or not such excess represents a profit ascertained on
the basis of particular transactions of the taxpayer when they are
brought to a conclusion.--Burnet _v._ Sanford & B. Co., 282 U.S. 353
(1931).
[45] 274 U.S. 259 (1927).
[46] 42 Stat. 227, 250, 268.
[47] 274 at 263.
[48] 327 U.S. 404 (1946).
[49] 343 U.S. 130 (1952).
AMENDMENT 17
POPULAR ELECTION OF SENATORS
Page
Historical origin 1207
Right to vote for Senators 1208
POPULAR ELECTION OF SENATORS
Amendment 17
Clause 1. The Senate of the United States shall be composed of two
Senators from each State, elected by the people thereof, for six years;
and each Senator shall have one vote. The electors in each State shall
have the qualifications requisite for electors of the most numerous
branch of the State legislatures.
Clause 2. When vacancies happen in the representation of any State in
the Senate, the executive authority of such State shall issue writs of
election to fill such vacancies: _Provided_ That the legislature of any
State may empower the executive thereof to make temporary appointments
until the people fill the vacancies by election as the legislature may
direct.
Clause 3. This amendment shall not be so construed as to affect the
election or term of any Senator chosen before it becomes valid as part
of the Constitution.
Historical Origin
The ratification of this amendment was the outcome of increasing popular
dissatisfaction with the operation of the originally established method
of electing Senators. As the franchise became exercisable by greater
numbers of people, the belief became widespread that Senators ought to
be popularly elected in the same manner as Representatives. Acceptance
of this idea was fostered by the mounting accumulation of evidence of
the practical disadvantages and malpractices attendant upon legislative
selection, such as deadlocks within legislatures resulting in vacancies
remaining unfilled for substantial intervals, the influencing of
legislative selection by corrupt political organizations and special
interest groups through purchase of legislative seats, and the neglect
of duties by legislators as a consequence of protracted electoral
contests. Prior to ratification, however, many States had perfected
arrangements calculated to afford the voters more effective control
over the selection of Senators. State laws regulating direct primaries
were amended so as to enable voters participating in primaries to
designate their preference for one of several party candidates for a
senatorial seat: and nominations unofficially effected thereby were
transmitted to the legislature. Although their action rested upon no
stronger foundation than common understanding, the legislatures
generally elected the winning candidate of the majority, and, indeed, in
two States, candidates for legislative seats were required to promise to
support, without regard to party ties, the senatorial candidate polling
the most votes. As a result of such developments, at least 29 States by
1912, one year before ratification, were nominating Senators on a
popular basis; and, as a consequence, the constitutional discretion of
the legislatures had been reduced to little more than that retained by
presidential electors.
Right to Vote for Senators
Very shortly after ratification it was established that if a person
possessed the qualifications requisite for voting for a Senator, his
right to vote for such an officer was not derived merely from the
constitution and laws of the State in which they are chosen but has its
foundation in the Constitution of the United States.[1] Consistently
with this view, federal courts more recently have declared that when
local party authorities, acting pursuant to regulations prescribed by a
party's State executive committee, refused to permit a Negro, on account
of his race, to vote in a primary to select candidates for the office of
United States Senator, they deprived him of a right secured to him by
the Constitution and laws, in violation of this amendment.[2] An
Illinois statute, on the other hand, which required that a petition to
form, and to nominate candidates for, a new political party be signed by
at least 25,000 voters from at least 50 counties was held not to impair
any right under Amendment XVII, notwithstanding that 52% of the State's
voters were residents of one county, 87% were residents of 49 counties,
and only 13% resided in the 53 least populous counties.[3]
Notes
[1] United States _v._ Aczel, 219 F. 917 (1915), citing Ex parte
Yarbrough, 110 U.S. 651 (1884).
[2] Chapman _v._ King, 154 F. (2d) 460 (1946); certiorari denied, 327
U.S. 800 (1946).
[3] MacDougall _v._ Green, 335 U.S. 281 (1948).
AMENDMENT 18
PROHIBITION OF INTOXICATING LIQUORS
Page
Validity of adoption 1213
Enforcement 1213
Repeal 1213
PROHIBITION OF INTOXICATING LIQUORS
Amendment 18
Section 1. After one year from the ratification of this article
the manufacture, sale, or transportation of intoxicating liquors within,
the importation thereof into, or the exportation thereof from the United
States and all territory subject to the jurisdiction thereof for
beverage purposes is hereby prohibited.
Section 2. The Congress and the several States shall have
concurrent power to enforce this article by appropriate legislation.
Section 3. This article shall be inoperative unless it shall
have been ratified as an amendment to the Constitution by the
legislatures of the several States, as provided in the Constitution,
within seven years from the date of the submission hereof to the States
by the Congress.
Validity of Adoption
Cases relating to this question are presented and discussed under
article V.
Enforcement
Cases produced by enforcement and arising under Amendments Four and Five
are considered in the discussion appearing under the latter amendments.
Repeal
This amendment was repealed by the Twenty-first Amendment, and titles I
and II of the National Prohibition Act[1] were subsequently specifically
repealed by the act of August 27, 1935.[2] Federal prohibition laws
effective in various Districts and Territories were repealed as follows:
District of Columbia--April 5, 1933, and January 24, 1934;[3] Puerto
Rico and Virgin Islands--March 2, 1934;[4] Hawaii--March 26, 1934;[5]
and Panama Canal Zone--June 19, 1934.[6]
Taking judicial notice of the fact that ratification of the Twenty-first
Amendment was consummated on December 5, 1933, the Supreme Court held
that the National Prohibition Act, insofar as it rested upon a grant of
authority to Congress by Amendment XVIII thereupon became inoperative;
with the result that prosecutions for violations of the National
Prohibition Act, including proceedings on appeal, pending on, or begun
after, the date of repeal, had to be dismissed for want of jurisdiction.
Only final judgments of conviction rendered while the National
Prohibition Act was in force remained unaffected.[7] Likewise a heavy
"special excise tax," insofar as it could be construed as part of the
machinery for enforcing the Eighteenth Amendment, was deemed to have
become inapplicable automatically upon the latter's repeal.[8] However,
liability on a bond conditioned upon the return on the day of trial of a
vessel seized for illegal transportation of liquor was held not to have
been extinguished by repeal when the facts disclosed that the trial took
place in 1931 and had resulted in conviction of the crew. The liability
became complete upon occurrence of the breach of the express contractual
condition and a civil action for recovery was viewed as unaffected by
the loss of penal sanctions.[9]
Notes
[1] 41 Stat. 305.
[2] 49 Stat. 872.
[3] 48 Stat. 28, Sec. 12; 48 Stat. 319.
[4] 48 Stat. 361.
[5] 48 Stat. 467.
[6] 48 Stat. 1116.
[7] United States _v._ Chambers, 291 U.S. 217, 222-226 (1934). _See
also_ Ellerbee _v._ Aderhold, 5 F. Supp. 1022 (1934); United States ex
rel. Randall _v._ United States Marshal for Eastern Dist. of New York,
143 F. (2d) 830 (1944).--The Twenty-first Amendment containing "no
saving clause as to prosecutions for offenses theretofore committed,"
these holdings were rendered unavoidable by virtue of the
well-established principle that after "the expiration or repeal of a
law, no penalty can be enforced, nor punishment inflicted, for
violations of the law committed while it was in force * * *"--Yeaton
_v._ United States, 5 Cr. 281, 283 (1809), quoted in United States _v._
Chambers at pages 223-224.
[8] United States _v._ Constantine, 296 U.S. 287 (1935). The Court also
took the position that even if the statute embodying this "tax" had not
been "adopted to penalize [a] violations of the Amendment," but merely
to ordain a penalty for violations of State liquor laws, "it ceased to
be enforceable at the date of repeal"; for with the lapse of the unusual
enforcement powers contained in the Eighteenth Amendment, Congress could
not, without infringing upon powers reserved to the States by the Tenth
Amendment, "impose cumulative penalties above and beyond those specified
by State law for infractions of * * * [a] State's criminal code by its
own citizens." Justice Cardozo, with whom Justices Brandeis and Stone
were associated, dissented on the ground that, on its face, the statute
levying this "tax" was "an appropriate instrument of * * * fiscal policy
* * * Classification by Congress according to the nature of the calling
affected by a tax * * * does not cease to be permissible because the
line of division between callings to be favored and those to be reproved
corresponds with a division between innocence and criminality under the
statutes of a state."--Ibid. 294, 296, 297-298. In earlier cases it was
nevertheless recognized that Congress also may tax what it forbids and
that the basic tax on distilled spirits remained valid and enforceable
during as well as after the life of the amendment--_See_ United States
_v._ Yuginovich, 256 U.S. 450, 462 (1921); United States _v._ Stafoff,
260 U.S. 477 (1923); United States _v._ Rizzo, 297 U.S. 530 (1936).
[9] United States _v._ Mack, 295 U.S. 480 (1935).
AMENDMENT 19
EQUAL SUFFRAGE
Page
Origin of the amendment 1219
Validity of adoption 1219
Effect of amendment 1219
EQUAL SUFFRAGE
Amendment 19
Clause 1. The right of the citizens of the United States to vote shall
not be denied or abridged by the United States or by any State on
account of sex.
Clause 2. Congress shall have power to enforce this article by
appropriate legislation.
Origin of the Nineteenth Amendment
The adoption of this amendment is attributable in great measure to its
advocacy since 1869 by certain long term supporters of women suffrage
who had despaired of attaining their goal through modification of
individual State laws. Agitation in behalf of women suffrage was
recorded as early as the Jackson Administration, but the initial results
were meager. Beginning in 1838, Kentucky did authorize women to vote in
school elections, and its action was later copied by a number of other
States. Kansas in 1887 even granted women unlimited rights to vote in
municipal elections. Not until 1869, however, when Wyoming, as a
territory, accorded women suffrage on terms of equality with men and
continued to grant such privileges after its admission as a State in
1890, did these advocates register a notable victory. Progress
thereafter proved discouraging, only ten additional other States having
been added to the fold as of 1914; and as a consequence sponsors of
equal voting rights for women concentrated on obtaining ratification of
this amendment.
Validity of Adoption
Cases relating to this question are presented and discussed under
article V.
Effect of Amendment
Although owning that the Nineteenth Amendment "applies to men and women
alike and by its own force supersedes inconsistent measures, whether
federal or State," the Court was unable to concede that a Georgia
statute levying on inhabitants of the State a poll tax payment of which
is made a prerequisite for voting but exempting females who do not
register for voting, in any way abridged the right of male citizens to
vote on account of their sex. To accept the appellant's contention, the
Court urged, would make the Nineteenth Amendment a limitation on the
taxing power.[1]
Notes
[1] Breedlove _v._ Suttles, 302 U.S. 277, 283-284 (1937). Although other
interpretive decisions of federal courts are unavailable, many State
courts, taking their cue from pronouncements of the Supreme Court as to
the operative effect of the similarly phrased Fifteenth Amendment, have
proclaimed that the Nineteenth Amendment did not confer upon women the
right to vote but only prohibits discrimination against them in the
drafting and administration of laws relating to suffrage qualifications
and the conduct of elections. Like the Fifteenth Amendment, the
Nineteenth Amendment, according to these State tribunals, is
self-executing and by its own force and effect legally expunged the
word, "male," and the masculine pronoun from State constitutions and
laws defining voting qualifications and the right to vote to the end
that such provisions now apply to both sexes.--_See_ State _v._ Mittle,
120 S.C. 526 (1922); writ of error dismissed, 260 U.S. 705 (1922);
Graves _v._ Eubank, 205 Ala. 174 (1921); in re Cavellier, 159 Misc.
(N.Y.) 212; 287 N.Y.S. 739 (1936).
AMENDMENT 20
COMMENCEMENT OF THE TERMS OF THE PRESIDENT, VICE PRESIDENT, AND MEMBERS
OF CONGRESS, ETC.
Page
Extension of Presidential succession 1225
COMMENCEMENT OF THE TERMS OF THE PRESIDENT, VICE PRESIDENT, AND MEMBERS
OF CONGRESS, ETC.
Amendment 20
Section 1. The terms of the President and Vice President shall
end at noon on the 20th day of January, and the terms of Senators and
Representatives at noon on the 3d day of January, of the years in which
such terms would have ended if this article had not been ratified; and
the terms of their successors shall then begin.
Section 2. The Congress shall assemble at least once in every
year, and such meeting shall begin at noon on the 3d day of January,
unless they shall by law appoint a different day.
Section 3. If, at the time fixed for the beginning of the term
of the President, the President elect shall have died, the Vice
President elect shall become President. If a President shall not have
been chosen before the time fixed for the beginning of his term, or if
the President elect shall have failed to qualify, then the Vice
President elect shall act as President until a President shall have
qualified; and the Congress may by law provide for the case wherein
neither a President elect nor a Vice President elect shall have
qualified, declaring who shall then act as President, or the manner in
which one who is to act shall be selected, and such person shall act
accordingly until a President or Vice President shall have qualified.
Section 4. The Congress may by law provide for the case of the
death of any of the persons from whom the House of Representatives may
choose a President whenever the right of choice shall have devolved upon
them, and for the case of the death of any of the persons from whom the
Senate may choose a Vice President whenever the right of choice shall
have devolved upon them.
Section 5. Sections 1 and 2 shall take effect on the 15th day
of October following the ratification of this article.
Section 6. This article shall be inoperative unless it shall
have been ratified as an amendment to the Constitution by the
legislatures of three-fourths of the several States within seven years
from the date of its submission.
Extension of Presidential Succession
Pursuant to the authority conferred upon it by section 3 of this
amendment, Congress shaped the Presidential Succession Act of 1948[1] to
meet the situation which would arise from the failure of both President
elect and Vice President elect to qualify on or before the time fixed
for the beginning of the new Presidential term.
Notes
[1] 62 Stat. 672, 677; 3 U.S.C.A. 19; _See_ p. 388.
AMENDMENT 21
REPEAL OF EIGHTEENTH AMENDMENT
Page
Effect of repeal 1231
Scope of the regulatory power conferred upon the States 1231
Discrimination as between domestic and imported products 1231
Regulation of transportation and "through" shipments 1231
Regulation of imports destined for a federal area 1233
Effect on federal regulation 1233
REPEAL OF EIGHTEENTH AMENDMENT
Amendment 21
Section 1. The eighteenth article of amendment to the
Constitution of the United States is hereby repealed.
Section 2. The transportation or importation into any State,
Territory, or possession of the United States for delivery or use
therein of intoxicating liquors, in violation of the laws thereof, is
hereby prohibited.
Section 3. This article shall be inoperative unless it shall
have been ratified as an amendment to the Constitution by conventions in
the several States, as provided in the Constitution, within seven years
from the date of the submission hereof to the States by the Congress.
Effect of Repeal
The operative effect of section 1, repealing the Eighteenth Amendment,
is considered under the latter amendment.
Scope of the Regulatory Power Conferred Upon the States
DISCRIMINATION AS BETWEEN DOMESTIC AND IMPORTED PRODUCTS
In a series of interpretive decisions rendered shortly after
ratification of this amendment, the Court established the proposition
that States are competent to adopt legislation discriminating against
imported intoxicating liquors in favor of those of domestic origin and
that such discrimination offends neither the commerce clause of article
I nor the equal protection and due process clauses of the Fourteenth
Amendment. Thus, in State Board of Equalization _v._ Young's Market
Co.[1] a California statute was upheld which exacted a $500 annual
license fee for the privilege of importing beer from other States and a
$750 fee for the privilege of manufacturing beer; and in Mahoney _v._
Triner Corp.[2] a Minnesota statute was sustained which prohibited a
licensed manufacturer or wholesaler from importing any brand of
intoxicating liquor containing more than 25% of alcohol by volume and
ready for sale without further processing, unless such brand was
registered in the United States Patent Office. Also validated in
Indianapolis Brewing Co. _v._ Liquor Commission[3] and Finch & Co. _v._
McKittrick[4] were retaliation laws enacted by Michigan and Missouri,
respectively, by the terms of which sales in each of these States of
beer manufactured in a State already discriminating against beer
produced in Michigan or Missouri were rendered unlawful.
Conceding, in State Board of Equalization _v._ Young's Market Co.,[5]
that "prior to the Twenty-first Amendment it would obviously have been
unconstitutional to have imposed any fee for * * * the privilege of
importation * * * even if the State had exacted an equal fee for the
privilege of transporting domestic beer from its place of manufacture to
the [seller's] place of business," the Court proclaimed that this
amendment "abrogated the right to import free, so far as concerns
intoxicating liquors." Inasmuch as the States were viewed as having
acquired therefrom an unconditioned authority to prohibit totally the
importation of intoxicating beverages, it logically followed that any
discriminatory restriction falling short of total exclusion was equally
valid, notwithstanding the absence of any connection between such
restriction and public health, safety or morals. As to the contention
that the unequal treatment of imported beer would contravene the equal
protection clause, the Court succinctly observed that a "classification
recognized by the Twenty-first Amendment cannot be deemed forbidden by
the Fourteenth."[6]
REGULATION OF TRANSPORTATION AND "THROUGH" SHIPMENTS
Lately, however, when passing upon the constitutionality of legislation
regulating the carriage of liquor interstate, a majority of the Justices
have been disposed to by-pass the Twenty-first Amendment and to resolve
the issue exclusively in terms of the commerce clause and State police
power. This trend toward devaluation of the Twenty-first Amendment was
set in motion by Ziffrin, Inc. _v._ Reeves[7] wherein a Kentucky
statute, forbidding the transportation of intoxicating liquors by
carriers other than licensed common carriers, was enforced as to an
Indiana corporation, engaged in delivering liquor obtained from Kentucky
distillers to consignees in Illinois; but licensed only as a contract
carrier under the Federal Motor Carriers Act. After acknowledging that
"the Twenty-first Amendment sanctions the right of a State to legislate
concerning intoxicating liquors brought from without, unfettered by the
Commerce Clause,"[8] the Court then proceeded to found its ruling
largely upon decisions antedating the amendment which sustained similar
State regulations as a legitimate exercise of the police power not
unduly burdening interstate commerce. In the light of the cases
enumerated in the preceding paragraph, wherein the Twenty-first
Amendment was construed as according a plenary power to the States, such
extended emphasis on the police power and the commerce clause would seem
to have been unnecessary. Thereafter, a total eclipse of the
Twenty-first Amendment was recorded in Duckworth _v._ Arkansas[9] and
Carter _v._ Virginia[10] wherein, without even considering that
amendment, a majority of the Court upheld, as not contravening the
commerce clause, statutes regulating the transport through the State of
liquor cargoes originating and ending outside the regulating State's
boundaries.[11]
REGULATION OF IMPORTS DESTINED FOR A FEDERAL AREA
Intoxicating beverages brought into a State for ultimate delivery at a
National Park located therein but over which the United States retained
exclusive jurisdiction has been construed as not constituting
"transportation * * * into [a] State for delivery and use therein"
within the meaning of section 2 of this amendment. The importation
having had as its objective delivery and use in a federal area over
which the State retained no jurisdiction, the increased powers which the
latter acquired from the Twenty-first Amendment were declared to be
inapplicable. California therefore could not extend the importation
license and other regulatory requirements of its Alcoholic Beverage
Control Act to a retail liquor dealer doing business in the Park.[12]
Effect on Federal Regulation
The Twenty-first Amendment of itself did not, it was held, bar a
prosecution under the federal Sherman Antitrust Law of producers,
wholesalers, and retailers charged with conspiring to fix and maintain
retail prices of alcoholic beverages in Colorado.[13] In a concurring
opinion, supported by Justice Roberts, Justice Frankfurter took the
position that if the State of Colorado had in fact "* * * authorized the
transactions here complained of, the Sherman Law could not override such
exercise of state power. * * * [Since] the Sherman Law, * * *, can have
no greater potency than the Commerce Clause itself, it must equally
yield to state power drawn from the Twenty-first Amendment."[14] All
other efforts to invoke the Twenty-first Amendment as a limitation upon
the constitutional powers of the National Government, notably to
invalidate the imposition, pursuant to the war power, of federal price
controls on retail sales of liquors, have been equally abortive.[15]
Notes
[1] 299 U.S. 59 (1936).
[2] 304 U.S. 401 (1938).
[3] 305 U.S. 391 (1939).
[4] 305 U.S. 395 (1939).
[5] 299 U.S. 59, 62 (1936).
[6] Ibid 63-64. In the three decisions rendered subsequently, the Court
merely restated these conclusions. The contention that discriminatory
regulation of imported liquors violated the due process clause was
summarily rejected in Indianapolis Brewing Co. _v._ Liquor Commission,
305 U.S. 391, 394 (1939).
[7] 308 U.S. 132 (1939).
[8] Ibid. 138.
[9] 314 U.S. 390 (1941).
[10] 321 U.S. 131 (1944). _See also_ Cartlidge _v._ Rainey, 168 F. (2d)
841 (1948); certiorari denied, 335 U.S. 885 (1948).
[11] Arkansas required a permit for the transportation of liquor across
its territory, but granted the same upon application and payment of a
nominal fee. Virginia required carriers engaged in similar
through-shipments to use the most direct route, carry a bill of lading
describing that route, and post a $1000 bond conditioned on lawful
transportation; and also stipulated that the true consignee be named in
the bill of lading and be one having the legal right to receive the
shipment at destination.
[12] Collins _v._ Yosemite Park, 304 U.S. 518, 537-538 (1938).
[13] United States _v._ Frankfort Distilleries, Inc., 324 U.S. 293,
297-299 (1945).
[14] Ibid. 301-302.
[15] Jatros _v._ Bowles, 143 F. (2d) 453, 455 (1944); Barnett _v._
Bowles, 151 F. (2d) 77, 79 (1945), certiorari denied, 326 U.S. 766
(1945); Dowling Bros. Distilling Co. _v._ United States, 153 F. (2d)
353, 357 (1946), certiorari denied, (Gould et al. _v._ United States)
328 U.S. 848 (1946); rehearing denied, 329 U.S. 820 (1946).
AMENDMENT 22
PRESIDENTIAL TENURE
Section 1. No person shall be elected to the office of the
President more than twice, and no person who has held the office of
President, or acted as President, for more than two years of a term to
which some other person was elected President shall be elected to the
office of the President more than once. But this Article shall not apply
to any person holding the office of President when this Article was
proposed by Congress, and shall not prevent any person who may be
holding the office of President, or acting as President, during the term
within which this Article becomes operative from holding the office of
President or acting as President during the remainder of such term.
Section 2. This Article shall be inoperative unless it shall
have been ratified as an amendment to the Constitution by the
legislatures of three-fourths of the several States within seven years
from the date of its submission to the States by the Congress.
ACTS OF CONGRESS HELD UNCONSTITUTIONAL IN WHOLE OR IN PART BY THE
SUPREME COURT OF THE UNITED STATES
1. Act of September 24, 1789 (1 Stat. 81, sec. 13, in part).
Provision that "* * * [the Supreme Court] shall have power to issue
* * * writs of mandamus, in cases warranted by the principles and usages
of law, to any * * * persons holding office, under authority of the
United States" as applied to the issue of mandamus to the Secretary of
State requiring him to deliver to plaintiff a commission (duly signed by
the President) as justice of the peace in the District of Columbia,
_held_ an attempt to enlarge the original jurisdiction of the Supreme
Court, fixed by article III, section 2.
Marbury _v._ Madison, 1 Cr. 137 (February 24, 1803).
2. Act of February 20, 1812 (2 Stat. 677, ch. 22).
Provisions authorizing land officers to examine into "validity of claims
to land * * * which are derived from confirmations made * * * by the
governors of the Northwest * * * territory", _held_ not to authorize
annulment of title confirmed by Governor St. Clair in 1799, nor to
validate a subsequent sale and patent by the United States. (_See_ Fifth
Amendment.)
Reichert _v._ Felps, 6 Wallace 160 (March 16, 1868).
3. Act of March 6, 1820 (3 Stat. 548, sec. 8, proviso).
The Missouri Compromise, prohibiting slavery within the Louisiana
Territory north of 36 deg. 30', except Missouri, _held_ not warranted as a
regulation of Territory belonging to the United States under article IV,
section 3, clause 2 (and _see_ Fifth Amendment).
Dred Scott _v._ Sandford, 19 Howard 393 (March 6, 1857).
4. Act of February 25, 1862 (12 Stat. 345, sec. 1); July 11, 1862 (12
Stat. 532, sec. 1); March 3, 1863 (12 Stat. 711, sec. 3), each in part
only.
"Legal tender clauses", making noninterest-bearing United States notes
legal tender in payment of "all debts, public and private", so far as
applied to debts contracted before passage of the act, _held_ not within
express or implied powers of Congress under article I, section 8, and
inconsistent with article I, section 10, and Fifth Amendment.
Hepburn _v._ Griswold, 8 Wallace 603 (February 7, 1870);
overruled in Knox _v._ Lee (Legal Tender cases), 12 Wallace
457 (May 1, 1871).
5. Act of March 3, 1863 (12 Stat. 756, ch. 81, sec. 5).
"So much of the fifth section * * * as provides for the removal of a
judgment in a State court, and in which the cause was tried by a jury to
the circuit court of the United States for a retrial on the facts and
law, is not in pursuance of the Constitution, and is void" under the
Seventh Amendment.
The Justices _v._ Murray, 9 Wallace 274 (March 14, 1870).
6. Act of March 3, 1863 (12 Stat. 766, ch. 92, sec. 5).
Provision for an appeal from the Court of Claims to the Supreme
Court--there being, at the time, a further provision (sec. 14) requiring
an estimate by the Secretary of the Treasury before payment of final
judgments, _held_ to contravene the judicial finality intended by the
Constitution, article III.
Gordon _v._ United States, 2 Wallace 561 (March 10, 1865).
(Case was dismissed without opinion; the grounds upon which
this decision was made were stated in a posthumous opinion by
Chief Justice Taney printed in the appendix to volume 117 of
the U.S. Reports at p. 697.)
7. Act of June 30, 1864 (13 Stat. 311, ch. 174, sec. 13).
Provision that "any prize cause now pending in any circuit court shall,
on the application of all parties in interest * * * be transferred by
that court to the Supreme Court * * *", as applied in a case where no
action had been taken in the Circuit Court on the appeal from the
District Court, _held_ to propose an appeal procedure not within article
III, section 2.
The "Alicia", 7 Wallace 571 (January 25, 1869).
8. Act of January 24, 1865 (13 Stat. 424, ch. 20).