[1041] Dominion Hotel _v._ Arizona, 249 U.S. 265, 268 (1919).

[1042] Watson _v._ Maryland, 218 U.S. 173, 179 (1910).

[1043] Phelps _v._ Board of Education, 300 U.S. 319, 324 (1937).

[1044] Chicago Dock & Canal Co. _v._ Fraley, 228 U.S. 680, 687 (1913).

[1045] Davidson _v._ New Orleans, 96 U.S. 97, 106 (1878).

[1046] Fire Asso. of Philadelphia _v._ New York, 119 U.S. 110 (1886);

Santa Clara County _v._ Southern P.R. Co., 118 U.S. 394 (1886).

[1047] Bell's Gap R. Co. _v._ Pennsylvania, 134 U.S. 232, 237 (1890).

(Emphasis supplied.)

[1048] Louisville Gas & E. Co. _v._ Coleman, 277 U.S. 32, 37 (1928).

Classification for purposes of taxation has been held valid in the

following situations:

_Banks:_ a heavier tax on banks which make loans mainly from money of

depositors than on other financial institutions which make loans mainly

from money supplied otherwise than by deposits. First Nat. Bank _v._

Louisiana Tax Commission, 289 U.S. 60 (1933).

_Bank deposits:_ a tax of 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).

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