AMENDMENT 14 (continued 5)

"Equal Protection of the Laws"

Equal protection of the laws means the protection of equal laws.[1026] It forbids all invidious discrimination but does not require identical treatment for all persons without recognition of differences in relevant circumstances. It requires "that equal protection and security should be given to all under like circumstances in the enjoyment of their personal and civil rights; that all persons should be equally entitled to pursue their happiness and acquire and enjoy property; that they should have like access to the courts of the country for the protection of their persons and property, the prevention and redress of wrongs, and the enforcement of contracts; that no impediment should be interposed to the pursuits of anyone except as applied to the same pursuits by others under like circumstances; that no greater burdens should be laid upon one than are laid upon others in the same calling and condition, and that in the administration of criminal justice no different or higher punishment should be imposed upon one than such as is prescribed to all for like offenses."[1027] The Amendment was not "designed to interfere with the power of the State, sometimes termed its 'police power,' to prescribe regulations to promote the health, peace, morals, education, and good order of the people, and to legislate so as to increase the industries of the State, develop its resources, and add to its wealth and prosperity * * * Regulations for these purposes may press with more or less weight upon one than upon another, but they are designed, not to impose unequal or unnecessary restrictions upon anyone, but to promote, with as little individual inconvenience as possible, the general good. Though, in many respects, necessarily special in their character they do not furnish just ground of complaint if they operate alike upon all persons and property under the same circumstances and conditions."[1028] The due process and equal protection clauses overlap but the spheres of protection they offer are not coterminous. The due process clause "tends to secure equality of law in the sense that it makes a required minimum of protection for everyone's right of life, liberty, and property, which the Congress or the legislature may not withhold. * * * The guaranty [of equal protection] was aimed at undue favor and individual or class privilege, on the other hand, and at hostile discrimination or the oppression of inequality, on the other."[1029]

Legislative Classifications

Although the equal protection clause requires laws of like application to all similarly situated, the legislature is allowed wide discretion in the selection of classes.[1030] Classification will not render a State police statute unconstitutional so long as it has a reasonable basis;[1031] its validity does not depend on scientific or marked differences in things or persons or in their relations. It suffices if it is practical.[1032] While a State legislature may not arbitrarily select certain individuals for the operation of its statutes, a selection is obnoxious to the equal protection clause only if it is clearly and actually arbitrary and not merely possibly so.[1033] A substantial difference, in point of harmful results, between two methods of operation, justifies a classification and the burden is on the attacking party to prove it unreasonable.[1034] There is a strong presumption that discriminations in State legislation are based on adequate grounds.[1035] Every state of facts sufficient to sustain a classification which can reasonably be conceived of as having existed when the law was adopted will be assumed.[1036]

There is no doctrinaire requirement that legislation should be couched in all-embracing terms.[1037] A police statute may be confined to the occasion for its existence.[1038] The equal protection clause does not mean that all occupations that are called by the same name must be treated in the same way.[1039] The legislature is free to recognize degrees of harm; a law which hits the evil where it is most felt will not be overthrown because there are other instances to which it might have been applied.[1040] The State may do what it can to prevent what is deemed an evil and stop short of those cases in which the harm to the few concerned is thought less important than the harm to the public that would ensue if the rules laid down were made mathematically exact.[1041] Exceptions of specified classes will not render the law unconstitutional unless there is no fair reason for the law that would not equally require its extension to the excepted classes.[1042] Incidental individual inequality does not violate the Fourteenth Amendment.[1043] One who is not discriminated against cannot attack a statute because it does not go further; and if what it commands of one it commands of all others in the same class, that person cannot complain of matter which the statute does not cover.[1044]

TAXATION

At the outset, the Court did not regard the equal protection clause as having any bearing on taxation.[1045] Before long, however, it took jurisdiction of cases assailing specific tax laws under this provision.[1046] In 1890 it conceded cautiously that "clear and hostile discriminations against particular persons and classes, especially such as are of an unusual character, unknown to the practice of our governments, might be obnoxious to the constitutional prohibition."[1047] In succeeding years the clause has been invoked but sparingly to invalidate State levies. In the field of property taxation, inequality has been condemned only in two classes of cases: (1) intentional discrimination in assessments; and (2) discrimination against foreign corporations. In addition, there are a handful of cases invalidating, because of inequality, State laws imposing income, gross receipts, sales and license taxes.

Classifications for the Purpose of Taxation

The power of the State to classify for purposes of taxation is "of wide range and flexibility."[1048] The Constitution does not prevent it "from adjusting its system of taxation in all proper and reasonable ways. It may, if it chooses, exempt certain classes of property from any taxation at all, such as churches, libraries, and the property of charitable institutions. It may impose different specific taxes upon different trades and professions, and may vary the rates of excise upon various products; it may tax real estate and personal property in a different manner; it may tax visible property only, and not tax securities for payment of money; it may allow deductions for indebtedness, or not allow them. All such regulations, and those of like character, so long as they proceed within reasonable limits and general usage, are within the discretion of the State Legislature, * * *"[1049] A State may adjust its taxing system in such a way as to favor certain industries or forms of industry,[1050] and may tax different types of taxpayers differently, despite the fact that they compete.[1051] It does not follow that because "some degree of inequality from the nature of things must be permitted, gross inequality must also be allowed."[1052] Classification may not be arbitrary; it must be based on a real and substantial difference,[1053] but the difference need not be great or conspicuous;[1054] but there must be no discrimination in favor of one as against another of the same class.[1055] Also, discriminations of an unusual character are scrutinized with especial care.[1056] A gross sales tax graduated at increasing rates with the volume of sales,[1057] a heavier license tax on each unit in a chain of stores where the owner has stores located in more than one county,[1058] and a gross receipts tax levied on corporations operating taxicabs, but not on individuals,[1059] have been held to be repugnant to the equal protection clause. But it is not the function of the Court to consider the propriety or justness of the tax, to seek for the motives and criticize the public policy which prompted the adoption of the statute.[1060] If the evident intent and general operation of the tax legislation is to adjust the burden with a fair and reasonable degree of equality, the constitutional requirement is satisfied.[1061] One not within the class claimed to be discriminated against cannot raise the question of constitutionality of a statute on the ground that it denies equal protection of the law.[1062] If a tax applies to a class which may be separately taxed, those within the class may not complain because the class might have been more aptly defined, nor because others, not of the class, are taxed improperly.[1063]

Foreign Corporations

The equal protection clause does not require identical taxes upon all foreign and domestic corporations in every case.[1064] In 1886, a Pennsylvania corporation previously licensed to do business in New York challenged an increased annual license tax imposed by that State in retaliation for a like tax levied by Pennsylvania against New York corporations. This tax was held valid on the ground that the State, having power to exclude entirely, could change the conditions of admission for the future, and could demand the payment of a new or further tax, as a license fee.[1065] Later cases whittled down this rule considerably. The Court decided that "after its admission, the foreign corporation stands equal and is to be classified with domestic corporations of the same kind,"[1066] and that where it has acquired property of a fixed and permanent nature in a State, it cannot be subjected to a more onerous tax for the privilege of doing business than domestic corporations.[1067] A State statute taxing foreign corporations writing fire, marine, inland navigation and casualty insurance on net receipts, including receipts from casualty business was held invalid under the equal protection clause where foreign companies writing only casualty insurance were not subject to a similar tax.[1068] Recently, the doctrine of Fire Asso. of Philadelphia v. New York was revived to sustain an increased tax on gross premiums which was exacted as an annual license fee from foreign but not from domestic corporations.[1069] Even though the right of a foreign corporation to do business in a State rests on a license, yet the equal protection clause is held to insure it equality of treatment, at least so far as ad valorem taxation is concerned.[1070]

Income Taxes

A State law which taxes the entire income, including that derived without the State, of domestic corporations which do business in the State, while exempting entirely the income received outside the State by domestic corporations which do no local business, is arbitrary and invalid.[1071] In taxing the income of a nonresident, there is no denial of equal protection in limiting the deduction of losses to those sustained within the State, although residents are permitted to deduct all losses, wherever incurred.[1072] A retroactive statute imposing a graduated tax at rates different from those in the general income tax law, on dividends received in a prior year which were deductible from gross income under the law in effect when they were received, is not obnoxious to the equal protection clause.[1073]

Inheritance Taxes

In inheritance taxation, there is no denial of equal protection in prescribing different treatment for lineal relations, collateral kindred and strangers of the blood, or in increasing the proportionate burden of the tax progressively as the amount of the benefit increases.[1074] A tax on life estates where the remainder passes to lineal heirs is valid despite the exemption of life estates where the remainder passes to collateral heirs;[1075] there is no arbitrary classification in taxing the transmission of property to a brother or sister, while exempting that to a son-in-law or a daughter-in-law.[1076] Vested and contingent remainders may be treated differently.[1077] The exemption of property bequeathed to charitable or educational institutions may be limited to those within the State.[1078] In computing the tax collectible from a nonresident decedent's property within the State, a State may apply the pertinent rates to the whole estate wherever located, and take that proportion thereof which the property within the State bears to the total; the fact that a greater tax may result than would be assessed on an equal amount of property if owned by a resident,[1079] does not invalidate the result.

Motor Vehicle Taxes

In demanding compensation for the use of highways, a State may exempt certain types of vehicles, according to the purpose for which they are used, from a mileage tax on carriers.[1080] A State maintenance tax act, which taxes vehicle property carriers for hire at greater rates than similar vehicles carrying property not for hire is reasonable, since the use of roads by one hauling not for hire generally is limited to transportation of his own property as an incident to his occupation and is substantially less than that of one engaged in business as a common carrier.[1081] A property tax on motor vehicles used in operating a stage line that makes constant and unusual use of the highways may be measured by gross receipts and be assessed at a higher rate than taxes on property not so employed.[1082] Common motor carriers of freight operating over regular routes between fixed termini may be taxed at higher rates than other carriers, common and private.[1083] A fee for the privilege of transporting motor vehicles on their own wheels over the highways of the State for purpose of sale, does not violate the equal protection clause as applied to cars moving in caravans.[1084] The exemption from a tax for a permit to bring cars into the State in caravans of cars moved for sale between zones in the State is not an unconstitutional discrimination where it appears that the traffic subject to the tax places a much more serious burden on the highways than that which is exempt.[1085] The exemption of small vehicles from graduated registration fees on carriers for hire,[1086] and of persons whose vehicles haul passengers and farm products between points not having railroad facilities or hauling farm and dairy products for a producer from a vehicle license tax on private motor carriers, has been upheld.[1087]

Poll Taxes

A poll tax statute exempting women, the aged and minors, does not make an arbitrary classification[1088].

Property Taxes

The State's latitude of discretion is notably wide in the classification of property for purposes of taxation and the granting of partial or total exemption on the grounds of policy,[1089] whether the exemption results from the terms of the statute or the conduct of a State official under it.[1090] A provision for the forfeiture of land for nonpayment of taxes is not invalid because the conditions to which it applies exist only in a part of the State.[1091] Intentional and systematic undervaluation by State officials of other taxable property in the same class contravenes the constitutional right of one taxed upon the full value of his property;[1092] but mere errors in judgment resulting in unequal overvaluation or undervaluation, not intentional or systematic, will not support a claim of discrimination.[1093] Differences in the basis of assessment are not invalid where the person or property affected might properly be placed in a separate class for purposes of taxation.[1094] An owner aggrieved by discrimination is entitled to have his assessment reduced to the common level.[1095] Equal protection is denied if a State does not itself remove the discrimination; it cannot impose upon the person against whom the discrimination is directed the burden of seeking an upward revision of the assessment of other members of the class.[1096] A corporation whose valuations were accepted by the assessing commission cannot complain that it was taxed disproportionately, as compared with others, if the commission did not act fraudulently.[1097]

Special Assessment

A special assessment is not discriminatory because apportioned on an ad valorem basis, nor does its validity depend upon the receipt of some special benefit as distinguished from the general benefit to the community.[1098] Railroad property may not be burdened for local improvements upon a basis so wholly different from that used for ascertaining the contribution demanded of individual owners as necessarily to produce manifest inequality.[1099] A special highway assessment against railroads based on real property, rolling stock and other personal property is unjustly discriminatory when other assessments for the same improvement are based on real property alone.[1100] A law requiring the franchise of a railroad to be considered in valuing its property for apportionment of a special assessment, is not invalid where the franchises were not added as a separate personal property value to the assessment of the real property.[1101] In taxing railroads within a levee district on a mileage basis, it is not necessarily arbitrary to fix a lower rate per mile for those having less than 25 miles of main line within the district than for those having more.[1102]

POLICE POWER

Classification

Justice Holmes once called the equal protection clause the "usual last refuge of constitutional arguments."[1103] When State action is attacked under the due process clause, the assailant usually charges also that he is denied the equal protection of the laws. Except where discrimination on the basis of race or nationality is shown, few police regulations have been found unconstitutional on this ground.[1104] The Court has condemned a statute which forbade stock insurance companies to act through agents who were their salaried employees, but permitted mutual companies to operate in this manner.[1105] A law which required private motor vehicle carriers to obtain certificates of convenience and necessity and to furnish security for the protection of the public was held invalid by reason of the exemption of carriers of fish, farm and dairy products.[1106] Discrimination among milk dealers without well advertised trade names, giving those who entered business before a specified date the benefit of a price differential denied to those who commenced operations thereafter, is arbitrary and unlawful.[1107] A statute providing for the sterilization of defectives in State institutions was sustained;[1108] but a similar act applicable to triple offenders was held void.[1109]

Administrative Discretion

A municipal ordinance which vests in supervisory authorities a naked and arbitrary power to grant or withhold consent to the operation of laundries in wooden buildings, without consideration of the circumstances of individual cases, constitutes a denial of equal protection of the law when consent is withheld from certain persons solely on the basis of nationality.[1110] But a city council may reserve to itself the power to make exceptions from a ban on the operation of a dairy within the city,[1111] or from building line restrictions.[1112] Written permission of the mayor or president of the city council may be required before any person shall move a building on a street.[1113] The Mayor may be empowered to determine whether an applicant has a good character and reputation and is a suitable person to receive a license for the sale of cigarettes.[1114] In a recent case[1115] the Court held that the unfettered discretion of officer river pilots to select their apprentices, which was almost invariably exercised in favor of their relatives and friends, was not a denial of equal protection to persons not selected despite the fact that such apprenticeship was requisite for appointment as a pilot.

Alien Laws

The Fourteenth Amendment prohibits purely arbitrary discrimination against aliens.[1116] Where alien race and allegiance bear a reasonable relation to a legitimate object of legislation, it may be made the basis of classification. Thus, legislation has been upheld under which aliens were forbidden to conduct pool rooms[1117] or to take game or possess shotguns.[1118] A discrimination between citizens and aliens in the matter of employment on public works is not unconstitutional.[1119] A State cannot, however, deny to aliens the right to earn a living in ordinary occupations. Consequently, a statute requiring that employers of more than five workers employ not less than eighty percent qualified electors or natural born citizens denies equal protection of the law.[1120] Likewise a State law forbidding the issuance of commercial fishing licenses to aliens ineligible for citizenship has been held void.[1121] State laws forbidding aliens to own real estate, have been upheld in the past.[1122] A less sympathetic attitude toward such legislation was indicated in Oyama v. California, in 1948.[1123] There the State of California sought to escheat land owned by an American-born son of a Japanese father under a provision of its Alien Land Law which made payment by an alien of the consideration for a transfer of land to a third person prima facie evidence of intent to evade the statute. The Court held that the burden of proof imposed upon the son, an American citizen, by reason of his parent's country of origin, was an unlawful discrimination, but it did not pass upon the constitutionality of the Alien Land Law itself. In concurring opinions four Justices took the position that the law was incompatible with the Fourteenth Amendment.[1124]

Labor Relations

Objections to labor legislation on the ground that the limitation of particular regulations to specified industries was obnoxious to the equal protection clause, have been consistently overruled. Statutes limiting hours of labor for employees in mines, smelters,[1125] mills, factories,[1126] or on public works[1127] have been sustained. So also was a statute forbidding persons engaged in mining and manufacturing to issue orders for payment of labor unless redeemable at face value in cash.[1128] The exemption of mines employing less than ten persons from a law pertaining to measurement of coal to determine a miner's wages is not unreasonable.[1129] All corporations,[1130] or public service corporations,[1131] may be required to issue to employees who leave their service letters stating the nature of the service and the cause of leaving even though other employers are not.

Industries may be classified in a workmen's compensation act according to the respective hazards of each;[1132] the exemption of farm laborers and domestic servants does not render such an act invalid.[1133] A statute providing that no person shall be denied opportunity for employment because he is not a member of a union does not offend the equal protection clause.[1134]

Women, or particular classes of women, may be singled out for special treatment, in the exercise of the State's protective power, without violation of the Fourteenth Amendment. Classification may be based on differences either in their physical characteristics or in the social conditions which surround their employment. Restrictions on conditions of employment in particular occupations are not invalid because the law might have been made broader.[1135] One of the earliest pieces of social legislation to be sustained was a ten-hour law for women employed in laundries.[1136] A law limiting hours of labor for women in hotels is not rendered unconstitutional by reason of the exemption of certain railroad restaurants.[1137] Night work by women in restaurants may be prohibited.[1138] Reversing earlier decisions, the Supreme Court upheld a minimum wage law for women in 1937, saying that their unequal bargaining position justified a law applicable only to them.[1139]

Women may be forbidden to engage in an occupation where their employment may create special moral and social problems. A State statute forbidding women to act as bartenders, but making an exception in favor of wives and daughters of the male owners of liquor establishments was sustained over the objection, which three Justices found persuasive, that the act denied the equal protection of the law to female owners of such establishments.[1140] Said Justice Frankfurter for the majority: "The fact that women may now have achieved the virtues that men have long claimed as their prerogatives and now indulge in vices that men have long practiced, does not preclude the States from drawing a sharp line between the sexes, certainly in such matters as the regulation of the liquor traffic. * * * The Constitution does not require legislatures to reflect sociological insight, or shifting social standards, any more than it requires them to keep abreast of the latest scientific standards."[1141]

Monopolies

On the principle that the law may hit the evil where it is most felt, State Antitrust Laws applicable to corporations but not to individuals,[1142] or to vendors of commodities but not to vendors of labor,[1143] have been upheld. Contrary to its earlier view, the Court now holds that an Antitrust Act which exempts agricultural products in the hands of the producer is valid.[1144] Diversity with respect to penalties also has been sustained. Corporations violating the law may be proceeded against by bill in equity, while individuals are indicted and tried.[1145] A provision, superimposed upon the general Antitrust Law, for revocation of the licenses of fire insurance companies which enter into illegal combinations, does not violate the equal protection clause.[1146] A grant of monopoly privileges, if otherwise an appropriate exercise of the police power, is immune to attack under that clause.[1147]

Punishment for Crime

Equality of protection under the law implies that in the administration of criminal justice no person shall be subject to any greater or different punishment than another in similar circumstances.[1148] Comparative gravity of criminal offenses is a matter for the State to determine, and the fact that some offenses are punished with less severity than others does not deny equal protection.[1149] Heavier penalties may be imposed upon habitual criminals for like offenses,[1150] even after a pardon for an earlier offense,[1151] and such persons may be made ineligible for parole.[1152] A State law doubling the sentence on prisoners attempting to escape does not deny equal protection in subjecting prisoners who attempt to escape together to different sentences depending on their original sentences.[1153] Infliction of the death penalty for assaults with intent to kill by life term convicts is not unconstitutional because not applicable to convicts serving lesser terms.[1154] The Fourteenth Amendment does not preclude the commitment of persons who, by an habitual course of misconduct, have evidenced utter lack of power to control sexual impulses, and are likely to inflict injury.[1155] A statute prohibiting a white person and a Negro from living together in adultery or fornication is not invalid because it prescribes penalties more severe than those to which the parties would be subject were they both of the same race.[1156] The equal protection clause does not prevent the execution of a prisoner after the accidental failure of the first attempt.[1157] It does, however, render invalid a statute requiring sterilization of persons convicted of various offenses, including larceny by fraud, but exempting embezzlers.[1158]

Segregation

Laws designed to segregate persons of different races in the location of their homes, in the public schools and on public conveyances have been a prolific source of litigation under the equal protection clause. An ordinance intended to segregate the homes of white and colored races is invalid.[1159] Private covenants forbidding the transfer of real property to persons of a certain race or color have been held lawful,[1160] but the enforcement of such agreements by a State through its courts would constitute a denial of equal protection of the laws.[1161] A statute providing for separate but equal accommodations on railroads for white and colored persons has been held not to deny equal protection of the law,[1162] but a separate coach law which permits carriers to provide sleeping and dining cars only for white persons, is invalid notwithstanding recognition by the legislature that there would be little demand for them by colored persons.[1163] Fifty years ago the action of a local board of education in suspending temporarily for economic reasons a high school for colored children was held not to be a sufficient reason for restraining the board from maintaining an existing high school for white children, when the evidence did not indicate that the board had proceeded in bad faith or had acted in hostility to the colored race.[1164] A child of Chinese ancestry, who is a citizen of the United States, is not denied equal protection of law by being assigned to a public school provided for colored children, when equal facilities for education are offered to both races.[1165]

Although the principle that separate but equal facilities satisfy constitutional requirements has not been reversed, the Court in recent years has been inclined to review more critically the facts of cases brought before it to ascertain whether equality has, in fact, been offered. In Missouri v. Canada[1166] it held that the State was denying equal protection of the law in failing to provide a legal education within the State for Negroes comparable to that afforded white students. Pursuant to a policy of segregating Negro and white students, the State had established a law school at the State university for white applicants. In lieu of setting up one at its Negro university, it authorized the curators thereof to establish such a school whenever in their opinion it should be necessary and practicable to do so, and pending such development, to arrange and pay for the legal education of the State's Negroes at schools in other States. This was found insufficient; the obligation of the State to afford the protection of equal law can be performed only where its laws operate, that is to say, within its own jurisdiction. It is there that equality of rights must be maintained. In a later case the Court held that the State of Oklahoma was obliged to provide legal education for a qualified Negro applicant as soon as it did for applicants of any other group.[1167] To comply with this mandate a State court entered an order requiring in the alternative the admission of a Negro to the state-maintained law school or non-enrollment of any other applicant until a separate school with equal educational facilities should be provided for Negroes. Over the objection of two Justices the Supreme Court held this order did not depart from its mandate.[1168] After a close examination of the facts, the Court concluded, in Sweatt v. Painter,[1169] that the legal education offered in a separate law school for Negroes was inferior to that afforded by the University of Texas Law School and hence that the equal protection clause required that a qualified applicant be admitted to the latter. In McLaurin v. Oklahoma State Regents[1170] the Court held that enforced segregation of a Negro student admitted to a State university was invalid because it handicapped him in the pursuit of effective graduate instruction.

POLITICAL RIGHTS

In conjunction with the Fifteenth Amendment the equal protection clause has played an important role in cases involving various expedients devised to deprive Negro citizens of the right of suffrage. Attempts have also been made, but thus far without success, to invoke this clause against other forms of political inequality. The principal devices employed to prevent voting by Negroes have been grandfather clauses, educational qualifications, registration requirements and restrictions on membership in a political party. Grandfather clauses exempting persons qualified as electors before 1866 and their descendants from requirements applicable to other voters, were held to violate the Fifteenth Amendment.[1171] Educational qualifications which did not on their face discriminate between white and Negro voters were sustained in the absence of a showing that their actual administration was evil.[1172] In 1903 in a suit charging that the registration procedure prescribed by statute was fraudulently designed to prevent Negroes from voting, the Court, in an opinion written by Justice Holmes, refused to order the registration of an allegedly qualified Negro, on the whimsical ground that to do so would make the Court a party to the fraudulent plan.[1173] The opinion was careful to state that "we are not prepared to say that an action at law could not be maintained on the facts alleged in the bill." Such an action was brought some years later in Oklahoma under a registration law enacted after its "grandfather" statute had been held unconstitutional. Registration was not necessary for persons who had voted at the previous election under the invalid statute. Other persons were required to register during a twelve day period or be forever disfranchised. A colored citizen who was refused the right to vote in 1934 because of failure to register during the prescribed period in 1916, was held to have a cause of action for damages against the election officials under the Civil Rights Act of 1871. In the opinion of the Court reversing a judgment for the defendants, Justice Frankfurter said:[1174] "The Amendment nullifies sophisticated as well as simple minded modes of discrimination. It hits onerous procedural requirements which effectively handicap exercise of the franchise by the colored race although the abstract right to vote may remain unrestricted as to race."

As the selection of candidates by primary elections became general, the denial of the right to vote in the primary assumed dominant importance. For many years the Court hesitated to hold that party primaries were elections within the purview of the Constitution. During that period the equal protection clause was relied upon to invalidate discrimination against Negroes. Under the clause, it is necessary to find that inequality is perpetrated by the State.[1175] The Court had no difficulty in holding that a State statute which forbade voting by Negroes in a party primary was obnoxious to the Fourteenth Amendment.[1176] The same conclusion was reached with respect to exclusion by action of a party executive committee pursuant to authority conferred by statute.[1177] But at first it refused to extend this rule to a restriction on membership imposed without statutory authority by the State convention of a party.[1178] The latter case was soon overruled; having, in the meanwhile, decided that a primary is an integral part of the electoral machinery,[1179] the Court ruled in Smith v. Allwright,[1180] that a restriction on party membership imposed by a State convention was invalid under the Fifteenth Amendment, where such membership was a prerequisite for voting in the primary.

Failure has attended the few attempts which have been made to strike down other alleged discriminations in election laws or in their administration. Nearly fifty years ago the Court rejected a claim that an act forbidding the registration of a voter until one year after his intent to become a legal voter shall have been recorded was a denial of equal protection.[1181] In Snowden v. Hughes,[1182] it held that an alleged erroneous refusal of a State Primary Canvassing Board to certify a person as a successful candidate in a party primary was not, in the absence of a showing of purposeful discrimination, a denial of a constitutional right which would justify a suit for damages against members of the Board. Three recent attacks on inequalities in the effective voting power of persons residing in different geographical areas were likewise unsuccessful. The Court refused, in Colegrove v. Green,[1183] to interfere to prevent the election of Representatives in Congress by districts in Illinois, because of unequal apportionment. Two years later, in MacDougall v. Green[1184] it held that a State law requiring candidates of a new political party to obtain a minimum number of signatures on their nominating petitions in each of 50 counties did not withhold equal justice from the overwhelming majority of the voters who resided in the 49 most populous counties. Over the dissent of Justices Black and Douglas it affirmed the action of a federal district court in dismissing a complaint challenging the validity of Georgia's county unit election system, under which the votes of residents of the most populous county have on the average but one-tenth the weight of those in other counties.[1185]

PROCEDURE

General Doctrine

The equal protection clause does not exact uniformity of procedure. State legislatures may classify litigation and adopt one type of procedure for one class and a different type for another. The procedure followed in condemnation suits brought by a State need not be the same as in a suit started by a private corporation.[1186] Procedural rules may vary in different geographic subdivisions of the State; the State may be given a larger number of peremptory challenges to jurors in capital cases in cities having more than 100,000 inhabitants than in other areas.[1187] A State may require that disputes on the amount of loss under fire insurance policies be submitted to arbitration.[1188] It may prescribe the evidence which shall be received and the effect which shall be given it; proof of one fact, or of several facts taken collectively, may be made prima facie evidence of another fact, so long as it is not a mere arbitrary mandate and does not discriminate invidiously between different persons in substantially the same situations.[1189] A plaintiff in a stockholder's derivative suit may be required to give security if he does not own a specified amount of stock; the size of his financial interest may reasonably be considered as some measure of his good faith and responsibility in bringing the suit.[1190]

Access to Courts

The legislature may provide for diversity in the jurisdiction of its several courts, both as to subject matter and finality of decision, if all persons within the territorial limits of the respective jurisdiction have an equal right in like cases to resort to them for redress.[1191] There is no denial of equal protection of the law by reason of the fact that in one district the State is allowed an appeal and in another district it is not.[1192] The legislative discretion to grant or withhold equitable relief in any class of cases must, under the equal protection clause, be so exercised as not to grant equitable relief to one, and to deny it to another under like circumstances and in the same territorial jurisdiction. A State law forbidding injunctions in labor disputes is invalid where injunctive relief is available in other similar controversies.[1193] The action of prison officials in suppressing a prisoner's appeal documents during the statutory period for appeal constitutes a denial of equal protection by refusing him privileges of appeal that were available to others.[1194]

Corporations

A statute permitting suits against domestic corporations to be brought in any county in which the cause of action arose, is not void as denying equal protection.[1195] Neither is a statute applicable only to corporations requiring the production of books and papers upon notice, with punishment for contempt upon neglect or refusal to comply.[1196] Where, however, actions against domestic corporations may be brought only in counties where they may have places of business or where a chief officer resides, a statute authorizing action against a foreign corporation in any county is discriminatory and invalid.[1197] So also is a statute, applicable only to foreign corporations, which requires the corporation, as a condition precedent to maintenance of an action, to send its officer into the State, with papers and books bearing on the matter in controversy, for examination before trial, where nonresident individuals, as well as individuals and corporations within the State, were subject to less onerous requirements.[1198]

Expenses of Litigation

A statute which directs that life and health insurance companies who default in payments of their policies shall pay 12 per cent damages, together with reasonable attorney's fees, does not deny the equal protection of the law in failing to impose the same conditions on fire, marine, and inland insurance companies, and on mutual benefit and relief associations.[1199] Costs may be allowed to a person who has been subjected to malicious prosecution, with provision for commitment of the prosecutor until paid.[1200] Statutes providing for recovery of reasonable attorney's fees in action on small claims against all classes of defendants, individual and corporate,[1201] in mandamus proceedings,[1202] or in actions against railroads for damages caused by fires[1203] have been upheld. But a statute, applicable only to railway corporations, providing for recovery of attorney's fees and costs in actions for certain small claims was found to be repugnant to the equal protection clause.[1204]

Selection of Jury

Exercising the authority conferred by section 5 of the Fourteenth Amendment, Congress has expressly forbidden the exclusion of any citizen from service as a grand or petit juror in any federal or State court, on the ground of race or color.[1205] Jury commissioners are under the duty "not to pursue a course of conduct in the administration of their office which would operate to discriminate in the selection of jurors on racial grounds."[1206] An accused does not, however, have a legal right to a jury composed in whole or in part of members of his own race.[1207] Mere inequality in the numbers of persons selected from different races is not conclusive; discrimination is unlawful only if it is purposeful and systematic.[1208] But where it appeared that no Negro had served on a grand or petit jury for thirty years in a county in which 35 per cent of the adult population was colored, the inference of systematic exclusion was not repelled by a showing that few Negroes fulfilled the requirement that a juror must be a qualified elector.[1209]

To what extent, if at all, the equal protection clause prevents the exclusion from jury service of any class of persons on any basis other than race or color is a still unsettled problem of constitutional interpretation. The selection of jurors may be confined to males, to citizens, to qualified electors, to persons within certain ages, or to persons having prescribed educational qualifications.[1210] Certain occupational groups, such as lawyers, preachers, ministers, doctors, dentists, and engineers and firemen of railroad trains may be excluded from jury service.[1211] An issue of even greater consequence is raised by differentiation in the qualifications of persons selected to try different kinds of cases. This was the question on which the Supreme Court divided five to four in Fay v. New York[1212] where it upheld a conviction by a "blue ribbon" jury. In that case defendants, officials of certain labor unions, were convicted of extortion, by collecting large sums from contractors for assisting them in avoiding labor troubles. From a "blue ribbon" jury certain categories of persons qualified for ordinary jury duty are excluded; and on this ground defendants claimed that in being tried by such a jury they had been denied "equal protection of the law" and deprived of "due process of law," but especially the former, alleging that such juries had a higher record of conviction than ordinary juries and that their sympathies were "conservative." The Court, speaking by Justice Jackson, answered that "a state is not required to try all offenses to the same forum," but conceded that "a discretion, even if vested in the court, to shunt a defendant before a jury so chosen as greatly to lessen his chances while others accused of a like offense are tried by a jury so drawn as to be more favorable to them, would hardly be 'equal protection of the laws.'"[1213] However, he asserted that the New York statute authorizing "blue ribbon" juries "does not exclude, or authorize the clerk to exclude, any person or class because of race, creed, color or occupation. It imposes no qualification of an economic nature beyond that imposed by the concededly valid general panel statute. Each of the grounds of elimination is reasonably and closely related to the juror's suitability for the kind of service the special panel requires or to his fitness to judge the kind of cases for which it is most frequently utilized. Not all of the grounds of elimination would appear relevant to the issues of the present case. But we know of no right of defendants to have a specially constituted panel which would include all persons who might be fitted to hear their particular and unique case."[1214] He held further that defendants had failed to shoulder the necessary burden of proof in support of their allegations of discrimination, and added: "At most, the proof shows lack of proportional representation and there is an utter deficiency of proof that this was the result of a purpose to discriminate against this group as such. The uncontradicted evidence is that no person was excluded because of his occupation or economic status. All were subjected to the same tests of intelligence, citizenship and understanding of English. The state's right to apply these tests is not open to doubt even though they disqualify, especially in the conditions that prevail in New York, a disproportionate number of manual workers. A fair application of literacy, intelligence and other tests would hardly act with proportional equality on all levels of life. The most that the evidence does is to raise, rather than answer, the question whether there was an unlawful disproportionate representation of lower income groups on the special jury."[1215] Then, as to the due process clause, he pointed out that the jury had had a long and varied history in the course of which it has assumed many forms, and that for that matter the Court "* * * has construed it to be inherent in the independent concept of due process that condemnation shall be rendered only after a trial, in which the hearing is a real one, not a sham or pretense. * * * Trial must be held before a tribunal not biased by interest in the event. * * * Undoubtedly a system of exclusions could be so manipulated as to call a jury before which defendants would have so little chance of a decision on the evidence that it would constitute a denial of due process. A verdict on the evidence, however, is all an accused can claim; he is not entitled to a set-up that will give a chance of escape after he is properly proven guilty. Society also has a right to a fair trial. The defendant's right is a neutral jury. He has no constitutional right to friends on the jury."[1216]

APPORTIONMENT OF REPRESENTATION

Section 2. Representatives shall be apportioned among the several States according to their respective numbers, counting the whole number of persons in each State, excluding Indians not taxed. But when the right to vote at any election for the choice of electors for President and Vice President of the United States, Representatives in Congress, the Executive and Judicial officers of a State, or the members of the Legislature thereof, is denied to any of the male inhabitants of such State, being twenty-one years of age, and citizens of the United States, or in any way abridged, except for participation in rebellion, or other crime, the basis of representation therein shall be reduced in the proportion which the number of such male citizens shall bear to the whole number of male citizens twenty-one years of age in such State.

In General

The effect of this section in relation to Negroes was indicated in Elk v. Wilkins.[1217] "Slavery having been abolished, and the persons formerly held as slaves made citizens, this clause fixing the apportionment of representatives has abrogated so much of * * * [Article I, § 2, cl. 3] of the * * * original Constitution as counted only three-fifths of such persons."

"Indians Not Taxed"

Although one authority on the legal status of the American Indian observed that this "* * * phrase [was] never * * * more explicitly defined, but probably * * * [meant] * * * Indians resident on reservations, that is, on land not taxed by the States,"[1218] the United States Attorney General, in 1940, commented as follows upon the difficulty of arriving at any satisfactory construction of these words: "Whether the phrase 'Indians not taxed' refers (1) to Indians not actually paying taxes or only to those who are not subject to taxation and (2) to Indians not taxed or subject to taxation by any taxing authority or only to those not taxed or subject to taxation by the States in which they reside * * * [presents] questions * * * [which have] been discussed in a number of court decisions but the issue has never been squarely raised in any of the decided cases. Some of the cases and some statements appearing in the debates in the Constitutional Convention lend support to the view that since all Indians are now subject to the Federal income-tax laws [Superintendent v. Commissioner, 295 U.S. 418 (1935)] there are no longer any Indians not taxed within the meaning of the constitutional phrase. On the other hand, other decided cases and other statements appearing in the debates in the Convention equally support the contrary view. * * *, the answer to * * * [these questions] is not free from doubt."[1219]

As to the latest construction which Congress has given to this phrase in apportioning seats in the House of Representatives, it is pertinent to note that the Apportionment Act of 1929, at last amended in 1941,[1220] excludes "Indians not taxed" from the computation of the total population of each State. However, in reliance on the above-mentioned decision that all Indians are now subject to federal income taxation, the Director of the Census included all Indians in the 1940 tabulation of total population in each State, and Congress took no action to alter the effects which such inclusion had upon the number of seats distributed to the several States.[1221]

Right to Vote

The right to vote intended to be protected refers to the right to vote as established by the laws and constitution of the State; subject, however, to the limitation that the Constitution, in article I, section 2, adopts as qualifications for voting for members of Congress those qualifications established by the States for voting for the most numerous branch of their legislatures.

To the latter extent the right to vote for members of Congress has been declared to be fundamentally based upon the Constitution and as never having been intended to be left within the exclusive control of the States.[1222]

Reduction of State's Representation

"Questions relating to the apportionment of representatives among the several States are political in their nature and reside exclusively within the determination of Congress * * *" Consequently, a United States District Court was obliged to dismiss an action for damages against the Virginia Secretary of State for the latter's refusal to certify the plaintiff as candidate for the office of Congressman at large, inasmuch as the plaintiff's case rested on the theory that the apportionment act of Congress and the Redistricting Act of Virginia, by failing to take into account the disenfranchisement of 60% of the voters occasioned by the poll tax, were both invalid, and that Virginia accordingly was entitled to only four instead of nine Congressmen, which four were to be elected at large.[1223] "It is well known that the elective franchise has been limited or denied to citizens in various States of the union in past years, but no serious attempt has been made by Congress to enforce the mandate of the second section of the Fourteenth Amendment, and it is noteworthy that there are no instances in which the courts have attempted to revise the apportionment of Representatives by Congress."[1224]

DISQUALIFICATION OF OFFICERS

Section 3. No Person shall be a Senator or Representative in Congress, or elector of President and Vice President, or hold any office, civil or military, under the United States, or under any State, who, having previously taken an oath, as a member of Congress, or as an officer of the United States, or as a member of any State legislature, or as an executive or judicial officer of any State, to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof. But Congress may by a vote of two-thirds of each House, remove such disability.

In General

The right to remove disabilities imposed by this section was exercised by Congress at different times on behalf of enumerated individuals—notably by act of December 14, 1869 (16 Stat. 607). In 1872, the disabilities were removed, by a blanket act, from all persons "except Senators and Representatives of the Thirty-sixth and Thirty-seventh Congresses, officers in the judicial military, and naval service of the United States, heads of departments, and foreign ministers of the United States" (17 Stat. 142). Twenty-six years later, on June 6, 1898 (30 Stat. 432), Congress enacted briefly that "the disability imposed by section 3 * * * incurred heretofore [prior to June 6, 1898], is hereby removed."[1225]

PUBLIC DEBT, ETC.

Section 4. The validity of the public debt of the United States, authorized by law, including debts incurred for payment of pensions and bounties for services in suppressing insurrection or rebellion, shall not be questioned. But neither the United States nor any State shall assume or pay any debt or obligation incurred in aid of insurrection or rebellion against the United States, or any claim for the loss or emancipation of any slave; but all such debts, obligations and claims shall be held illegal and void.

Although section four "was undoubtedly inspired by the desire to put beyond question the obligations of the Government issued during the Civil War, its language indicates a broader connotation. * * * 'the validity of the public debt' * * * [embraces] whatever concerns the integrity of the public obligations," and applies to government bonds issued after as well as before adoption of the Amendment.[1226]

ENFORCEMENT

Section 5. The Congress shall have power to enforce, by appropriate legislation, the provisions of this article.

Scope of the Provision

"* * * until some State law has been passed, or some State action through its officers or agents has been taken, adverse to the rights of citizens sought to be protected by the Fourteenth Amendment, no legislation of the United States under said amendment, nor any proceeding under such legislation, can be called into activity: * * * The legislation which Congress is authorized to adopt in this behalf is not general legislation upon the rights of the citizen, but corrective legislation, that is, such as may be necessary and proper for counteracting such laws as the States may adopt or enforce, and which, by the amendment, they are prohibited from making or enforcing, or such acts and proceedings as the States may commit or take, and which, by the amendment, they are prohibited from committing or taking."[1227]

Conversely, Congress may enforce the provisions of the amendment whenever they are disregarded by either the legislative, the executive, or the judicial department of the State. The mode of the enforcement is left to its discretion. It may secure the right, that is, enforce its recognition, by removing the case from a State court, in which it is denied, into a federal court where it will be acknowledged.[1228] Similarly, Congress may provide that "no citizen, possessing all other qualifications which are or may be prescribed by law shall be disqualified for service as grand or petit juror in any court of the United States, or of any State, on account of race, color, or previous condition of servitude; and any officer or other person charged with any duty in the selection or summoning of jurors who shall exclude or fail to summon any citizen for the cause aforesaid shall, on conviction thereof, be deemed guilty of a misdemeanor, * * *"[1229] However, the Supreme Court declined to sustain Congress when, under the guise of enforcing the Fourteenth Amendment by appropriate legislation, it enacted a statute which was not limited to take effect only in case a State should abridge the privileges of United States citizens, but applied no matter how well the State might have performed its duty, and would subject to punishment private individuals who conspired to deprive anyone of the equal protection of the laws.[1230]

Whether its powers of enforcement enable Congress constitutionally to punish State officers who abuse their authority and act in violation of their State's laws is a question on which the Justices only recently have divided. Five Justices ruled in Screws v. United States[1231] that section 20 of the Criminal Code[1232] which provides "whoever, under the color of any law, statute, ordinance, * * *, willfully subjects, * * *, any inhabitant of any State, * * * to the deprivation of any rights, * * * protected by the Constitution and laws of the United States, * * *" could be the basis of a prosecution of Screws, a Georgia sheriff, and others, on charges of having, in the course of arresting a Negro, brutally beaten him to death and deprive him of "the right not to be deprived of life without due process of law."[1233] Holding that, "abuse of State power" does not create "immunity to federal power" these five Justices concluded that Ex parte Virginia[1234] and United States v. Classic[1235] had rejected for all time the defense that action by state officers in excess of their powers did not constitute state action "under color of law" and therefore was punishable, if at all, only as a crime against the State.[1236] The conviction of Screws was, however, reversed on the ground that the jury should have been instructed to say whether the accused had had the "specific intent" to deprive their victim of his constitutional rights, since in the absence of such a finding § 20 failed for indefiniteness.[1237] But this construction of the word "willfully" appears subsequently to have been abandoned, or at least considerably watered down. In Williams v. United States,[1238] decided in April 1951, the Court ruled, by a bare majority, that a conviction under § 20 was not subject to objection on the ground of the vagueness of the statute where the indictment made it clear that the constitutional right violated by the defendant was immunity from the use of force and violence to obtain a confession, and this meaning was also made clear by the trial judge's charge to the jury.[1239] To the same effect is the later case of Koehler v. United States[1240] in which the Court denied certiorari in a case closely resembling that of Screws, although the trial judge, while charging the jury that it must find specific intent, nevertheless went on to say:"'The color of the act determines the complexion of the intent. The intent to injure or defraud is presumed when the unlawful act, which results in loss or injury, is proved to have been knowingly committed. It is a well settled rule, which the law applies to both criminal and civil cases, that the intent is presumed and inferred from the result of the action.'"[1241]

Notes