The Constitution of the United States of America: Analysis and Interpretation Part 187

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 cla.s.sified 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 cla.s.ses of women, may be singled out for special treatment, in the exercise of the State's protective power, without violation of the Fourteenth Amendment. Cla.s.sification 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 unconst.i.tutional 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 s.e.xes, certainly in such matters as the regulation of the liquor traffic. * * * The Const.i.tution 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 Ant.i.trust 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 Ant.i.trust 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 Ant.i.trust 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 circ.u.mstances.[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 a.s.saults with intent to kill by life term convicts is not unconst.i.tutional 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 s.e.xual 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 const.i.tute 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 a.s.signed 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 const.i.tutional 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 princ.i.p.al 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 unconst.i.tutional. 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 a.s.sumed dominant importance.

For many years the Court hesitated to hold that party primaries were elections within the purview of the Const.i.tution. 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 Canva.s.sing 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 const.i.tutional 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 pet.i.tions 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 cla.s.sify litigation and adopt one type of procedure for one cla.s.s 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 cla.s.s 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 circ.u.mstances 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 doc.u.ments during the statutory period for appeal const.i.tutes 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 a.s.sociations.[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 cla.s.ses 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 pet.i.t 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 pet.i.t 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 cla.s.s of persons on any basis other than race or color is a still unsettled problem of const.i.tutional 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 a.s.sisting 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 a.s.serted that the New York statute authorizing "blue ribbon" juries "does not exclude, or authorize the clerk to exclude, any person or cla.s.s 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 const.i.tuted 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 a.s.sumed 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 const.i.tute a denial of due process. A verdict on the evidence, however, is all an accused can claim; he is not ent.i.tled 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 const.i.tutional 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 partic.i.p.ation 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 Const.i.tution 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 Const.i.tutional 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 const.i.tutional 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 const.i.tution of the State; subject, however, to the limitation that the Const.i.tution, 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 Const.i.tution and as never having been intended to be left within the exclusive control of the States.[1222]