307 U.S. 496 | SCOTUS | 1939
Concurrence Opinion
concurred:
We granted certiorari as the case presents important questions in respect of the asserted privilege and immunity of citizens of the United States to advocate action pursuant to a federal statute, by distribution of printed matter ,and oral discussion in peaceable assembly; and the jurisdiction of federal courts of suits to restrain the abridgment of - such privilege and immunity.
The respondents, individual citizens’ unincorporated labor organizations composed of such citizens, and a mem
The bill alleges that acting under a city ordinance forbidding the leasing of any hall, without a permit from the Chief of Police, for a public meeting at which a speaker shall advocate obstruction of the Government of the United States or a State, or a change of government by other than lawful means, the petitioners, and their subordinates, have denied respondents the right to hold lawful meetings in Jersey City on the ground that they are Communists or Communist organizations; that pursuant to an unlawful plan, the petitioners have caused the eviction from the municipality of persons they considered undesirable because of their labor organization activities, and have announced that they will continue so to do. It further alleges that acting under an ordinance which forbids any person to “distribute or cause to be distributed or strewn about any street or public place any newspapers, paper, periodical, book, magazine, circular, card or pamphlet,” the petitioners have discriminated against.the respondents by prohibiting and interfering with distribution of leaflets and pamphlets by the respondents while permitting others to distribute similar printed matter, that pursuant to a plan and conspiracy to deny the respondents their Constitutional rights as citizens of the United States, the petitioners have caused respondents, and those acting with them, to be arrested for distributing printed matter in the streets, and have caused them, and their associates, to be carried beyond the limits of the city or to remote places therein, and have compelled them to board ferry boats destined for New York; have, with violence and force, interfered with the distribution of pamphlets discussing the rights of citizens
The bill charges that the suit is to redress “the deprivation, under color of state law, statute and ordinance, of rights privileges and immunities secured by the Cbnsti-tution of the United States and of rights secured by laws of the United States providing for equal rights of citizens of the United States . . .” It charges that the petitioners’ conduct “is in violation of their [respondents] rights and privileges as guaranteed by the Constitution of the United States.” It alleges that the petitioners’ conduct has been “in pursuance of an unlawful conspiracy ... to injure oppress threaten and intimidate citizens of the United States, including the individual plaintiffs herein, ... in the free exercise and enjoyment of the rights and privileges secured to them by the Constitution and laws of the United States. ...”
The bill charges that the ordinances are unconstitutional and void, or are being enforced against respondents in an unconstitutional and discriminatory way; and that the petitioners, as officials of the city, purporting to act under the ordinances, have deprived respondents of the privileges of free speech and peaceable assembly secured to them, as citizens of the United States, by the Fourteenth Amendment. It prays an injunction against continuance of petitioners’ conduct.
The answer denies generally, or qualifies, the allegations of the bill but does not deny that the individual respondents are citizens of the United States; denies that the amount in controversy “as to each plaintiff and against each defendant” exceeds $3,000, exclusive of interest and costs; and alleges that the supposed grounds of federal jurisdiction are frivolous, no facts being alleged sufficient to show that any substantial federal question is involved.
After trial upon the merits the District Court entered findings of fact and conclusions of law and a decree in favor of respondents.
The court further found that the petitioners, as officials, acting in reliance on the ordinance dealing with the subject, have adopted and enforced a deliberate policy of preventing the respondents, and their associates, from distributing circulars, leaflets, or handbills in Jersey City; that this has been done by policemen acting forcibly and violently; that the petitioners propose to continue to enforce the policy of such prevention; that the circulars and handbills, distribution of which has been prevented, were not offensive to public morals, and did not advocate unlawful conduct, but were germane to the purposes alleged in the bill, and that their distribution was being carried out in a way consistent with public order and without molestation of individuals or misuse or littering of the streets. Similar findings were made with respect to the prevention of the distribution, of placards.
The findings are that the petitioners, as officials, have adopted and enforced a deliberate policy of forbidding the respondents and their assoqiates from communicating their views respecting the National Labor Relations Act to the citizens of Jersey City by holding meetings or assemblies in the open air and at public places; that there is no competent proof that the proposed speakers have ever spoken at an assembly where a breach of the peace occurred or at which any utterances were made which violated the canons of proper discussion or gave occasion for disorder consequent upon what was said; that there is no competent proof that the parks of Jersey City are dedicated to any general purpose other than the recreation of the public and that there is competent proof that the
The court found that the rights of the respondents, and each of them, interfered with and frustrated by the petitioners, had a value, as to each respondent, in excess of $3,000, exclusive of interest and costs; that the petitioners’ enforcement of their policy against the respondents caused the latter irreparable damage; that the respondents have been threatened with manifold and repeated persecution, and manifold and repeated invasions of their rights; and that they have done nothing to disentitle them to equitable relief.
The court concluded that it had jurisdiction under § 24 (1) (12) and (14) of the Judicial Code;
The Circuit Court of Appeals concurred in the findings of fact; held the District Court had jurisdiction under § 24 (1) and (14) of the Judicial Code; modified the decree in respect of one of its provisions, and, as modified, affirmed it.
By their specifications of error, the petitioners limit the issues in this court to three matters. They contend that the court below erred in holding that the District Court had jurisdiction over all or some of the causes of action stated in the bill. Secondly, they assert that the court erred in holding that the street meeting ordinance is unconstitutional on its face, and that it has been un
First. Every question arising under the Constitution may, if properly raised in a state court, come ultimately to this court for decision. Until 1875,
Section 24 of the Judicial Code confers original jurisdiction upon District Courts of the United States. Subsection (1) gives jurisdiction of “suits of a civil nature, at common law or in equity, . . . where the matter in controversy exceeds, exclusive of interest and costs, the sum or value of $3,000” and “arises under the Constitution or laws of the United States.”
The wrongs of which respondents complain are tor-tious invasions of alleged civil rights by persons acting under color of state authority. It is true that if the various plaintiffs had brought actions at law for the redress of such wrongs the amount necessary to jurisdiction under § 24 (1) would have been determined by the sum claimed in good faith.
Section 24 (14) grants jurisdiction of suits “at law or in equity authorized by law to be brought by any person to redress the deprivation, under color of any law,.statute, ordinance, regulation, custom, or usage, of any State, of any right, privilege, or immunity, secured by the Constitution of the United. States, or of any right secured by any law of the United States providing for equal rights of citizens of the United States, or of all persons within the jurisdiction of the United States.”
The petitioners insist that the rights of which the respondents say they have been deprived are not within those described in subsection (14). The courts below have held that citizens of the United States possess such rights by virtue of their citizenship; that the Fourteenth Amendment secures these rights against invasion by a State, and authorizes legislation by Congress to enforce the Amendment.
After the adoption of the Thirteenth Amendment, a bill, which became the first Civil Rights Act.
By reason of doubts as to the power to enact the legislation, hnd because the policy thereby evidenced might be reversed by a subsequent Congress, there was intro
The first sentence of the Amendment settled the old controversy as to citizenship by providing that “All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside.” Thenceforward citizenship of the United States became primary and citizenship of a State secondary.
The first section of the Amendment further provides: “No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; ...” .
The second Civil Rights Act
A third Civil.Rights Act, adopted April 20, 1871,
At one time it was thought that this section recognized a group of rights which, according to the jurisprudence of the day, were classed as “natural rights”; and that the purpose of the section was to create rights of citizens of the United States by guaranteeing the citizens of every State the recognition of this .group of rights by every other State. Such was the view of Justice Washington.
While this description of the civil rights of the citizens of the States has been quoted with approval,
Although it has been held that the Fourteenth Amend-' ment created no rights in citizens of the United States, but merely secured existing rights against state abridgment,
In United States v. Cruikshank, 92 U. S. 542, 552-553, the court said:
“The right of the people peaceably to assemble • for the purpose of petitioning Congress for a redress of grievances, or for any thing else connected with the powers or the duties of the national government, is an attribute of nationál citizenship, and, as such, under the protection of, and guaranteed by, the United States. The very idea of a government; republican in form, implies a right on the part of its citizens to meet peaceably for consultation in respect to public affairs and to petition for a redress of grievances. If it had been alleged in these counts that the object of the defendants was to prevent a meeting for such a purpose, the case would have been within the statute, and within the scope of the sovereignty of the United States.”
No expression of a contrary view has ever been voiced by this court.
The National Labor Relations Act declares the policy of the United States to be to remove obstructions to commerce by encouraging collective bargaining, protecting full freedom of association and self-organization of workers, and, through their representatives, negotiating as to conditions of employment.
Citizenship of the United States would be little better than a name if it did not carry with it the right to discuss national legislation and the benefits, advantages, and opportunities to accrue to citizens therefrom. All of the respondents’ proscribed activities had this single end and aim. The District Court had jurisdiction under § 24 (14).
Second. What has been said demonstrates that, in the light of the facts found, privileges and immunities of the individual respondents as citizens of the United States, were infringed by the petitioners, by virtue of their official positions, under color of ordinances of Jersey City, unless, as petitioners contend, the city’s ownership of streets and parks is as absolute as one’s ownership of his home, with consequent power altogether to exclude citizens from the use thereof, or unless, though the city holds the streets in trust for public use, the absolute denial of their use to the respondents is a valid exercise of the police power.
The findings of fact negative the latter assumption. In support of the former the petitioners rely upon Davis v. Massachusetts, 167 U. S. 43. There it appeared that, pursuant to enabling legislation, the city of Boston adopted an ordinance prohibiting anyone from speaking, discharging fire arms, selling goods, or maintaining any booth for public amusement on any of the public grounds of the city except under a permit from the Mayor. Davis spoke on Boston Common without a permit and without applying to the Mayor for one. He was charged with a violation of the ordinance and moved to quash the complaint, inter alia, on the ground that the ordinance abridged his privileges and immunities as a citizen of the United States and denied him due process of law because it was arbitrary and unreasonable. His contentions were overruled and he was convicted. The judgment was
The decision seems to be grounded on the holding of the state court that the Common “was absolutely under the control of the legislature,” and that it was thus “conclusively determined there was no right in the plaintiff in error to use the common except in such mode and subject to such regulations as the legislature in its wisdom may have deemed proper to prescribe.” The Court added that the Fourteenth Amendment did not destroy the power of the States to enact police regulations as to a subject within their control or enable citizens to use public property in defiance of the constitution and laws of the State.
The ordinance there in question apparently had a different purpose from that of the one here challenged, for it was not directed solely at the exercise of the right of speech and assembly, but was addressed as well to other activities, not in the nature of civil rights, which doubtless might be régulated or prohibited as respects their enjoyment-in parks. In the instant case the ordinance deals only with the exercise of. the right of assembly for the purpose of communicating views entertained by speakers, and is not a general measure to promote the public convenience in the use of the streets or parks.
We have no- occasion to determine whether,, on the facts disclosed, the Davis case was rightly decided, but we cannot agree that it rules the instant case. Wherever the title of streets and parks may rest, they have immemorially been held in trust for the use of the public and, time out of mind, have been used for purposes of assembly, communicating thoughts between citizens, and discussing public questions. Such use of the streets and public places has, from ancient times, been a part of the privileges, 'immunities, rights, and liberties of citizens. The privilege of a citizen of the United States to use the
We think the court below was right in holding the ordinance quoted in Note 1 void upon its face.
The bill recited that policemen, acting under petitioners’ instructions, had searched various persons, in-eluding the respondents, and had seized innocent circulars and pamphlets without warrant of probable cause. It prayed injunctive relief against repetition of this conduct. The District Court made no findings of fact concerning such searches and seizures and granted no relief with respect to them. The Circuit Court of Appeals did not enlarge the terms of the decree but found that unreasonable searches and seizures had occurred and that the prohibitions of the Fourth Amendment had been taken over by the Fourteenth so as to protect citizens of the United States against such action.
Third. It remains to consider the objections to the' decree. Section A deals with liberty of the person and prohibits the petitioners from excluding or removing the respondents or persons acting with them from Jersey City, exercising personal restraint over them without warrant or confining them without lawful arrest and production of them for prompt judicial hearing, saving lawful search and seizure; or interfering with their free access» to the streets, parks, or public places of the city. The argument is that this section of the decree is so vague in its terms as to' be impractical of enforcement or obedience. We agree with the court below that the objection is not well founded. '
■ Section B deals with liberty of the mind. Paragraph 1 enjoins the petitioners from interfering with the right of, the respondents, their agents and those acting with them, to communicate their views as individuals to others on the streets in an orderly and peaceable manner. It reserves to the petitioners full liberty to enforce law and order by lawful search and seizure or by arrest and production before a judicial officer. We think this paragraph unassailable.
Paragraph 4 has to do with public meetings. Although the court below held the ordinance void, the decree enjoins the petitioners as to the manner in which they shall administer it. There is an- initial command that the petitioners shall not place “any previous restraint” upon the respondents in respect of holding meetings, provided they apply for “a permit as required by the ordinance. This is followed by an enumeration of the conditions under which a permit may be granted or denied. We think this is wrong. As the ordinance is void, the respondents are entitled to a decree so declaring and an injunction against its enforcement by the petitioners. They are free to hold meetings without a permit and without regard to the terms of the void ordinance. The courts cannot rewrite the ordinance, as the decree, in effect, does.
The bill should be dismissed as to all save the individual plantiffs, and § B, paragraphs 2, 3 and 4 of the decree should be modified as indicated. In other respects the decree should be affirmed.
I do not doubt that the decree below, modified as has been proposed, is rightly affirmed, but I am unable to follow the path by which some of my brethren have attained that end, and I think the matter is of sufficient importance to merit discussion in some detail.
As will presently appear, the right to maintain a suit in equity to restrain state officers, acting under a state, law, from infringing the rights of freedom of speech and of assembly guaranteed - by the due process clause, is given by Act of Congress to every person within the jurisdiction of the United States whether a citizen or not, and such a suit may be maintained in the district court without .allegation or proof that the jurisdictional amount required by § 24 (1) of the Judicial Code is involved. Hence there is no occasion, for jurisdictional purposes or any other, to consider whether freedom of speech and of assembly are immunities secured by the privileges and immunities clause of the Fourteenth Amendment to citizens of the United States, or to revive the contention,
The respondents in their bill of complaint specifically named and quoted Article IV, § 2, now conceded to be inapplicable, and the due process and equal protection clauses of the Fourteenth Amendment as the provisions of the Constitution which secure to them the rights of free speech and assembly. They omitted the privileges and immunities clause of the Fourteenth Amendment from their quotation. They made no specific allegation that any of those whose freedom had been interfered with by petitioners was a citizen of the United States. The general allegation that the acts of petitioners complained of violate the rights of “citizens of the United States, in-
Both courts below found, and the evidence supports the findings, that the purpose of respondents, other than the Civil Liberties Union, in holding meetings in Jersey City, was to organize labor unions in various industries in order to secure to workers the benefits of collective bargaining with respect to betterment of wages, hours of work and other terms and conditions of employment. Whether the proposed unions were to be organized in industries which might be subject to the National Labor Relations Act or to the jurisdiction of the National Labor Relations Board does not appear. Neither court below has made any finding that the meetings were called to discuss, or that they ever did in fact discuss, the National Labor Relations Act. The findings do not support the conclusion that the proposed meetings involved any such relationship between the national government and respondents or any of them, assuming they are citizens of the. United States, as to show that the asserted right or privilege was that of a citizen of the United States, and I cannot say that an adequate basis has been laid for supporting a theory — which respondents themselves evidently did not entertain-^that any of their privileges as citizens of the United States, guaranteed by the Fourteenth Amendment, were abridged, as distinguished from the privileges guaranteed to all persons by the due process clause. True, the findings refer to the suppression by petitioners of exhibits, one of which turns out to be a handbill advising workers they have the legal right, under
No more grave and important issue can be brought to this Court than that of freedom of speech and assembly, which the due process clause guarantees to all persons regardless of their citizenship, but which the privileges and immunities clause secures only to citizens, and then only to the limited extent that their relationship to the national government is affected. I am unable to rest decision here on the assertion, which I think the-record fails to support, that respondents must depend upon their limited privileges as citizens of the United States in order to sustain their cause, of upon so palpable an avoidance
If it be the part of wisdom to avoid unnecessary decision of constitutional questions, it would seem to be equally so to avoid the unnecessary creation of novel constitutional doctrine, inadequately supported by the record, in order to attain an end easily and certainly reached by following the beaten paths of constitutional decision.
The right to maintain the present suit is conferred upon the individual respondents by the due process clause and Acts of Congress, regardless of their citizenship and of the amount in controversy. Section 1 of the Civil Rights Act of April 20,1871,17 Stat. 13, provided that “any person who, under color of any law, statute, ordinance . . . of any State, shall subject, or cause to be subjected, any person within the jurisdiction of the United States to the deprivation of any rights, privileges, or immunities secured by the Constitution of the United States, shall ... be liable to the party injured in any action at law, suit in equity, or other proper proceeding for redress.” And it directed that such proceedings should be prosecuted in the several district or circuit'courts of the United States. The> right of action given by this section was later specifically limited to “any citizen of thevUnited States or other person within the jurisdiction thereof,” and was
Following the decision of the Slaughter-House Cases and before the later expansion by judicial decision of the content of the due process and equal protection clauses, there was little scope for the operation of this statute under the Fourteenth Amendment. The observation of the Court in United States v. Cruikshank, 92 U. S. 542, 551, that the right of assembly was not secured against state action by the Constitution, must be attributed to the decision in the Slaughter-House Cases that only privileges and immunities peculiar to United States citizenship were secured by the privileges and immunities clause, and to the, further fact that at that time it had not been decided that the right was one protected by the due process clause. The argument that the phrase in the,statute “secured by the Constitution” refers to rights “created,” rathervthan “protected” by it, is not persuasive. . The preamble of the Constitution, proclaiming the establishment of the Constitution in order to “secure the
Since freedom of speech and freedom of assembly are rights secured to persons by the due process clause, all of the individual respondents are plainly authorized by § 1 of the Civil Rights Act of 1871 to maintain'the present suit in equity to restrain infringement of their rights. As to the American Civil Liberties Union, which is a corporation, it cannot be said to be deprived of the civil rights, of freedom of speech and of assembly, for the liberty guaranteed by the due process clause is the liberty of natural, not artificial, persons. Northwestern Life Ins. Co. v. Riggs, 203 U. S. 243, 255; Western Turf Assn. v. Greenberg, 204 U. S. 359, 363.
The question remains whether there was jurisdiction in the district court to entertain the suit although the matter in controversy cannot be shown to exceed $3,000 in value because the asserted rights, freedom of speech and freedom of assembly, are of such a nature as not to be susceptible of valuation in money. The question is the same whether the right or privilege asserted is secured by the privileges and immunities clause or any other. When the Civil Rights Act of .1871 directed that suits for violation of § 1 of that Act should be prosecuted
Meanwhile, the provisions conferring jurisdiction on district and circuit courts over suits brought under § 1 of the Civil Rights Act of 1871 were continued as R. S. §§ 563 and 629, and how appear as § 24 (14) of the Judicial Code, 28 U. S. C. § 41 (14). The Act of March 3, 1911, 36 Stat. 1087, 1091, amended § 24 (1) of the Judicial Code so as to direct that “The foregoing provision as to the sum or value of the matter in controversy shall not be construed to apply to any of the cases mentioned in the succeeding paragraphs of this section.”
Since all of the suits thus authorized are suits arising under a statute of the United States to redress deprivation of rights, privileges and immunities secured by the Constitution, all are literally suits “arising under the Constitution or laws of the United States.” ' But it does not follow that in every such suit the plaintiff is required by § 24 (1) of the Judicial Code to allege and prove that the constitutional immunity which he seeks to vindicate has a value in excess of $3,000. There are many rights and immunities secured by the Constitution, of which freedom of speech and. assembly are conspicuous examples, which are not capable of money valuation, and in many instances, like the present, no suit in equity could be maintained for their protection if proof of the jurisdictional amount were prerequisite. We can hardly suppose that Congress, having in the broad terms of the Civil Rights Act of 1871 vested in all persons within the jurisdiction of the United States a right of action in equity for the deprivation of constitutional immunities, cognizable only in the federal courts, intended by the Act of 1875 to destroy those rights of action by withholding from the courts of the United States jurisdiction to entertain them.
That such was not the purpose of the Act of 1875 in extending the jurisdiction of federal courts to causes of action arising under the Constitution or laws of the United States involving a specified jurisdictional amount, is evident from the continuance upon tjie statute books of
The practical construction which has been given by this Court to the two jurisdictional provisions establishes that the jurisdiction conferred by § 24 (14) has been preserved to the extent indicated. In Holt v. Indiana Mfg. Co., 176 U. S. 68, suit was brought to restrain alleged unconstitutional taxation of patent rights. The Court held that the suit was one arising under the Constitution or laws of the United States within the meaning of § 24 (1) of the Judicial Code and that the United States Circuit Court
The conclusion seems inescapable that the right conferred by the Act of 1871 to maintain a suit' in equity in the federal courts to protect the suitor against a deprivation of rights or immunities secured by the Constitution,, has been .preserved, and that whenever the right or immunity is one of personal liberty, not dependent for its existence upon the infringement of property rights, there
“Tbe Board of Commissioners of Jersey City Do Ordain:
“1. From and after the passage of this ordinance, no public parades or public assembly in or upon the public streets, highways, public parks or public buildings of Jersey City shall take place or be conducted until a permit shall be obtained from the Director of Public Safety.
“2. The Director of Public Safety is hereby authorized and empowered to grant permits for parades and public assembly, upon application made to him at least three days prior to the proposed parade or public assembly. .
“3. The Director of Public Safety is hereby authorized to refuse to issue 'said permit'when, after investigation of all of the facts and circumstances pertinent to said application, he believes it to be proper to refuse the issuance thereof; provided, however, that said permit shall only be refused for the purpose of preventing riots, disturbances or disorderly assemblage.
“4. Any person or persons violating any of the provisions of this ordinance shall upon conviction before a police magistrate of the City of Jersey City be punished by a fine not exceeding two hundred dollars or imprisonment in the Hudson County jail for a period not exceeding ninety days or both.”
28 U. S. C. § 41 (1), (12) and (14).
8 U.S. C. §§ 43 and 47 (3), 18 U. S. C. § 51.
Hague v. Committee for Industrial Organization, 101 P. 2d 774.
See Act of March 3, 1875, c. 137, 18 Stat. 470.
Wiley v. Sinkler, 179 U. S. 58; Swafford v. Templeton, 185 U. S. 487. Compare St. Paid Mercury Indemnity Co. v. Red Cab Co., 303 U. S. 283, 288.
McNutt v. General Motors Acceptance Corp., 298 U. S. 178; compare KVOS, Inc. v. Associated Press, 299 U. S. 269.
Wheless v. St. Louis, 180 U. S. 379; Pinel v. Pinel, 240 U. S. 594, 596; Scott v. Frazier, 253 U. S. 243.
The section is derived from R. S. 563, § 12, which, in turn, originated in § 3 of the Civil Rights Act of April 9, 1866, 14 Stat. 27, as reenacted by § 18 of the Civil Rights Act of May 31, 1870, 16 Stat. 144, and referred to in § 1 of the Civil Rights Act of April 20, 1871, 17 Stat. 13.
See Art. I, §§ 2 and 3; Art. II, § 1.
See Scott v. Sandford, 19 How. 393.
Act of April 9, 1866, c. 31, 14 Stat. 27.
Selective Draft Cases, 245 U. S. 366, 389.
May 31, 1870, 16 Stat. 140. The act was amended by an Act of February 28, 1871, 16 Stat. 433.
17 Stat. 13, § 1.
Corfield v. Coryell, 4 Wash. C. C. 371; 6 Fed. Cas. No. 3230.
The Slaughter-House Cases, 16 Wall. 36, 76; Maxwell v. Dow, 176 U. S. 581, 588, 591; Canadian Northern Ry. Co. v. Eggen, 252 U. S. 553, 560.
Downham v. Alexandria, 10 Wall. 173; Chambers v. Baltimore & Ohio R. Co., 207 U. S. 142; La Tourette v. McMaster, 248 U. S. 465. Chalker v. Birmingham & N. W. Ry. Co., 249 U. S. 522;
As to what constitutes state action within the meaning of the amendment, see Virginia v. Rives, 100 U S. 313; Ex parte Virginia, 100 U. S. 339, 347; Home Tel. Co. v. Los Angeles, 227 U. S. 278; Mooney v. Holohan, 294 U. S. 103, 112; Lovell v. Griffin, 303 U. S. 444, 450.
The Slaughter-House Cases, 16 Wall. 36, 77; Minor v. Happersett, 21 Wall. 162; Ex parte Virginia, 100 U. S. 339; In re Kemmler, 136 U. S. 436, 448.
Orient Insurance Co. v. Daggs, 172 U. S. 557; Holt v. Indiana Manufacturing Co., 176 U. S. 68; Western Turf Assn. v. Greenberg, 204 U. S. 359; Selover, Bates & Co. v. Walsh, 226 U. S. 112.
Lovell v. Griffin, supra. See the construction of the ordinance by the Supreme Court of New Jersey in Thomas v. Casey, 121 N. J. L. 185: 1 A. 2d 866.
The privilege or -immunity asserted in the Slaughter-House Cases was the freedom to pursue a common business or calling, alleged to have been infringed by a state monopoly statute. It should not be forgotten that the Court, in deciding the case, did not deny the contention of the dissenting justices that the asserted freedom was in fact infringed by the state law. It rested its decision rather on the; ground that the immunity claimed was not one belonging' to. persons by virtue of their citizenship. “It is quite clear,” the Court declared (p. 74), “that there is a citizenship of the United States, and a citizenship of a State, which are distinct from each other, and which depend on different characteristics in the individual.” And it held that the protection of the privileges and immunities clause did not extend to those “fundamental” rights attached to state citizenship which are peculiarly the creation and concern of state governments and which Mr. Justice Washington, in Corfield v. Coryell, 4 Wash. C. C. 371, 6 Fed. Cas. No. 3230, mistakenly thought to be guaranteed by Article IV, § 2 of the Constitution. The privileges and immunities of citizens of the United States, it was pointed out, are confined to that limited class of interests growing out of the relationship between the citizen and the national government created by the Constitution and federal laws. Slaughter-House Cases, 16 Wall. 36, 79; see Twining v. New Jersey, 211 U. S. 78, 97, 98.
That limitation upon the operation of the privileges and immunities clause has not been.relaxed by any later decisions of this Court. In re Kemmler, 136 U. S. 436, 448; McPherson v. Blacker, 146 U. S. 1, 38; Giozza v. Tiernan, 148 U. S. 657, 661; Duncan v. Missouri, 152 U. S. 377, 382. Upon that ground appeals to this Court to extend thé clause beyond the- limitation have uniformly been rejected, and even those basic privileges and immunities secured against. federal infringement by the first eight amendments have uniformly been held not to be protected from state action by the privileges and immunities clause. Walker v. Sauvinet, 92 U. S. 90; Hurtado v. California, 110 U. S. 516; Presser v. Illinois, 116 U. S. 252; O’Neill v. Vermont, 144 U. S. 323; Maxwell v. Dow, 176
The reason for this narrow construction of the clause and the consistently exhibited reluctance of this Court to enlarge its scope has been well understood since the decision of the Slaughter-House Cases. If its restraint upon state action were to be extended' more than is needful to protect' relationships between the citizen and the national government, - and if it were to be deemed to extend to those fundamental rights of person and property attached to citizenship by the common law and enactments of the states when the Amendment was adopted, such as were described in Corfield v. Coryell, supra, it would enlarge Congressional ’ and judicial control of state action and multiply restrictions upon it whose nature, though difficult to anticipate with precision, would be of sufficient gravity to cause serious apprehension for the rightful independence of local government. That was the issue fought out in, the SlaughterHouse Cases, with the decision against enlargement.
Of the fifty or more cases which have been brought to this Court since the adoption of the Fourteenth Amendment in which state statutes have been assailed as violating the privileges and immunities clause, in only a single case was a statute held to infringe a privilege or immunity peculiar to citizenship of the United States. In that one, Colgate v. Harvey, 296 U. S. 404, it was thought necessary to support the decision by pointing to the specific reference in the Slaughter-House Cases, supra, 79, to the right to pass freely from state to state, sustained as a right of national citizenship in Crandall v. Nevada, 6 Wall. 35, before the adoption of the Amendment.
The cases will be found collected in Footnote 2 of the dissenting opinion in Colgate v. Harvey, 296 U. S. 404, 445. To these' should be added Holden v. Hardy, 169 U. S. 366; Ferry v. Spokane, P. & S. R. Co., 258 U. S. 314; New York ex rel. Bryant v. Zimmerman, 278 U. S. 63; Whitfield v. Ohio, 297 U. S. 431; Breedlove v. Suttles, 302 U. S. 277; Palko v. Connecticut, 302 U. S. 319.
This provision made no change in existing law but was inserted for the purpose of removing all doubt upon the point. See H. R. Rep. No. 783, Part 1, 61st Cong., 2d Sess., p. 15; Sen. Rep. No. 388, Part 1, 61st Cong., 2d Sess., p. 11. Cf. Miller-Magee Co. v. Carpenter, 34 F. 433; Ames v. Hager, 36 F. 129.
Dissenting Opinion
dissenting:
I am of opinion that the decree of the Circuit Court of Appeals should be reversed" and the cause remanded to the District Court with instructions to dismiss the bill. In the circumstances disclosed, I conclude that the District Court should have refused to interfere by injunction with the essential rights of the municipality to control its own parks and streets. Wise management of such intimate local affairs, generally at -least, is beyond the competency of federal courts, and essays in -that direction should be avoided.
Lead Opinion
By leave of Court, the Committee on the Bill of Rights of the American Bar Association, filed a brief, as amid curiae, discussing the right of assembly. See p. 678.
The judgment of the eoúrt in this case is that the decree is modified and as modified affirmed. Mr. Justice Eéankfurter and Mr. Justice Douglas took no part in the consideration or decision of the case. Mr. Justice Roberts has an opinion in which Mr. Justice Black concurs, and Mr. Justice Stone an opinion in which Mr. Justice Reed concurs. The Chief Justice concurs in an opinion. Mr. Justice McReynolds and Mr. Justice Butler dissent for reasons stated in opinions by-them respectively.
Concurrence Opinion
concurring:
With respect to the merits I agree with the opinion of Mr. Justice Roberts and in the affirmance of the judgment as modified. With respect to the point ,as to jurisdiction I agree with what is said in the opinion of Mr. Justice Roberts as to the right to discuss the National Labor Relations Act being a privilege of a citizen of the United States, but I am not satisfied that the record adequately supports the resting of jurisdiction upon that ground. As to that matter, I concur in the opinion of Mr. Justice Stone.
Dissenting Opinion
dissenting:
I am of opinion that the challenged ordinance is not void on its face; that in principle it does not differ from the Boston ordinance, as applied and upheld by this Court, speaking through Mr. Justice White, in Davis v. Massachusetts, 167 U. S. 43, affirming the Supreme Judicial Court of Massachusetts, speaking through Mr. Justice Holmes, in Commonwealth v. Davis, 162 Mass. 510; 39 N. E. 113, and that the decree of the Circuit Court of Appeals should be reversed.
