[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).
[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. § 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.
[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. § 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. § 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
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
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]
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]
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).
[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
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
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, § 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
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
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