United States v. Provident Tr. Co., 291 U.S. 272 (1934)
Case details
Bluebook Citation
United States v. Provident Tr. Co., 291 U.S. 272 (1934)
Full caption
UNITED STATES v. PROVIDENT TRUST CO., ADMINISTRATOR.
Country
United States
Jurisdiction
Federal
Court
Supreme Court of the United States
Decided
Feb. 5, 1934
UNITED STATES v. PROVIDENT TRUST CO., ADMINISTRATOR.
CERTIORARI TO THE COURT OF CLAIMS.
No. 224. Argued January 11, 12, 1934.—Decided February 5, 1934.
1. In determining the value of a devise to charities of a remainder contingent upon the death without issue of a female life tenant in order that such value may be deducted from gross income in computing the federal estate tax, it is permissible to prove that before the death of the testator the life tenant became incapable of having issue, as the result of a surgical operation by which her procreative organs were removed. P. 281.
2. The ancient rule that a woman is conclusively presumed to be capable of bearing children as long as she lives, was, like other irrebuttable presumptions, a rule of expediency or policy, based upon the belief that to permit proof of the facts would result in injuries of greater consequence than the predominance of truth over error in the cases to which it applied. P. 281.
3. Applicability of this presumption remains a proper subject of judicial inquiry in the light of modern knowledge and experience. Pp. 282, 285.
4. Application of a conclusive presumption of possibility of issue in the present case would be subversive of the policy of the estate tax statute to encourage bequests to charitable organizations. P. 286. 77 Ct. Cis. 37; 2 F.Supp. 472, affirmed.
Certiorari, 290 U.S. 614, to review a judgment allowing a claim for overpayment of federal estate tax.
272 Argument for the United States.
Solicitor General Biggs, with whom Assistant Attorney General Wideman and Mr. Paul A. Sweeney were on the brief, for the United States.
The amount subject to tax is to be ascertained as of the date of the decedent’s death. Ithaca Trust Co. v. United States, 279 U.S. 151. No deduction will be allowed for a charitable bequest dependent upon a condition unfulfilled at that date. Humes v. United States, 276 U.S. 487; Regulations 37, Art. 56.
By the overwhelming weight of authority in the United States, evidence is not admissible to show that a woman, after reaching adult age, is incapable of bearing children. Whether the courts use the words 11 conclusive presumption of law,” 11 presumption of law,” or some other expression, the result is the same, the rule being one of substantive law rather than one governing the burden of proof or the duty of going forward with evidence.
The following cases involved the rule against perpetuities, holding that remoteness could not be avoided by allegation, agreement or proof that a woman was, by reason of age, incapable of bearing children: White v. Allen, 76 Conn. 185; Taylor v. Crosson, 11 Del. Ch. 145; Reasoner v. Herman, 191 Ind. 642; Beall v. Wilson, 146 Ky. 646; Brown v. Columbia Finance & Trust Co., 123 Ky. 775; Tyler v. Fidelity & Columbia Trust Co., 158 Ky. 280; U. S. Fidelity & G. Co. v. Douglas’ Trustee, 134 Ky. 374; Lovering v. Lovering, 129 Mass. 97; Gettins v. Grand Rapids Trust Co., 249 Mich. 238; Rozell v. Rozell, 217 Mich. 324; Loud v. St. Louis Union Trust Co., 298 Mo. 148; Graves v. Graves, 94 N.J.Eq. 268; Stout v. Stout, 44 N.J.Eq. 479.
The following involved determination of title and the right to distribution or partition under wills and deeds. Presumption in favor of child-bearing capacity held conclusive: Bowen v. Frank, 179 Ark. 1004; Williams v. Frierson, 150 Ga. 797; Dustin v. Brown, 297 Ill.
46305°—34----- 18
Argument for the United States. 291 U.S.
499; Hill v. Sangamon Loan & Trust Co., 295 Ill. 619; Hill v. Spencer, 196 Ill. 65; Burrell v. Jean, 196 Ind. 187; Futrell v. Futrell’s Executor, 224 Ky. 814; Rand n. Smith, 153 Ky. 516; Williams v. Armiger & Bro., 129 Md. 222; Riley v. Riley, 92 N.J.Eq. 465; Gowen’s Appeal, 106 Pa. 288; In re Sterrett’s Estate, 300 Pa. 116; Bigley n. Watson, 98 Tenn. 353; Frank v. Frank, 153 Tenn. 215; Jordan v. Jordan, 145 Tenn. 378.
The presumption was regarded as conclusive, except as otherwise noted, in the following cases involving the termination of trusts: Fletcher v. Los Angeles T. & S. Bank, 182 Cal. 177; DuPont v. DuPont, 159 Atl. 841; Byers v. Beddow, 106 Fla. 166; In re Dougan, 139 Ga. 351; Allen v. Allen’s Trustee, 141 Ky. 689; Bailey’s Trustee v. Bailey, 30 Ky.L.Rep. 127; May v. Hardinsburg Bank & T. Co., 150 Ky. 136; Quigley’s Trustee v. Quigley, 161 Ky. 85; In re Ricard’s Estate, 97 Md. 608; Towle v. Delano, 144 Mass. 95; Application of Smith, 94 N.J.Eq. 1; Bowlin v. R.I. Hospital Trust Co., 31 R.I. 289; Bearden v. White, 42 S.W. 476; Garner v. Dowling, 58 Tenn. 48; Read v. Fite, 8 Humph. 328; Reeves v. Simpson, 182 S.W. 68; Carney v. Kain, 40 W.Va. 758.
In the following cases it has been held that the presumption in favor of issue made it impossible for a vendor to convey clear title, and specific performance was denied: Weberpals v. Jenny, 300 Ill. 145; Aulick v. Summers, 186 Ky. 810; Azarch v. Smith, 222 Ky. 566; Brown v. Owsley, 198 Ky. 344; Rozier v. Graham, 146 Mo. 352; Shuford v. Brady, 169 N.C. 224; List n. Rodney, 83 Pa. 483.
The following involved suits under Acts providing for sale of land under special circumstances: In re Apgar, 37 N.J.Eq. 501, reversed on other grounds, sub nom. Apgar v. Apgar, 38 N.J.Eq. 549; In re Clement, bl Atl. 724; Westhafer v. Koons, 144 Pa. 26.
272 Argument for the United States.
In the following cases the presumption was discussed in connection with the determination of the intent of a testator: Ansonia Nat. Bank v. Kunkel, 105 Conn. 744; Oleson v. Somogyi, 93 N.J.Eq. 506; Flora v. Anderson, 67 Fed. 182.
See also 48 L.R.A. (N.S.) 865; 67 A.L.R. 538; 23 Col.L. Rev. 50.
In England the same rule has been strictly enforced in cases involving the rule against perpetuities (Jee v. Audley, 1 Cox Ch. Cas. 324; Griffiths v. Deloitte, [1926] Ch. 56), but in distributing estates the courts have been more liberal when the proof of incapacity seemed persuasive and distribution would deprive no living person of a possible interest. In re White, [1901] 1 Ch. 570; Carr v. Carr, 106 L.T.Rep. 753. Cf. Perkin v. Bland, 122 L.T.Rep. 181.
With relatively few exceptions, the courts have regarded the principle as so firmly established that departures from precedent should be prohibited, if only for the sake of certainty and uniformity. See In re Dougan, 139 Ga. 351, 355.
The cases holding that evidence can be admitted to show that a woman is in fact incapable of having issue are few. Johnson v. Beauchamp, 5 Dana 70, has not been followed in Kentucky. See May n. Bank of Hardinsburg, 150 Ky. 136. Male n . Williams, 48 N.J.Eq. 33; Riley v. Riley, 92 N.J.Eq. 465; Gowen’s Appeal, 106 Pa. 288; List v. Rodney, 83 Pa. 483; Sterrett’s Estate, 300 Pa. 116; Miller v. Macomb, 26 Wend. 229; Bacot v. Fessenden, 130 App. Div. 819; and Whitney v. Groo, 40 App.D.C. 496, were cases involving specific performance of contracts for the sale of real estate. It can be inferred in all of them that the courts concluded that the possibil-
Argument for the United States. 291 U.S.
ity of issue being bom to a woman long past the age for child-bearing was too remote to render unmarketable the title offered by the vendor.
There are two cases in which the capacity of a woman to bear children has arisen in connection with tax matters—Farrington v. Commissioner, 30 F. (2d) 915, cert, den., 279 U.S. 873; and Guaranty Trust Co. n. Commissioner, 27 B.T.A. 550, now pending on appeal to the Circuit Court of Appeals for the Second Circuit. Both involved the federal estate tax, and in both the presumption of capacity was held to be conclusive and irrebuttable. See also Pennsylvania Co. v. Brown, E.D.Penna., decided July 18, 1933, reported in Prentice-Hall Federal Tax Service, 1933, Vol. 1A, par. 1761.
The reasons usually given for excluding evidence of the incapacity of a woman to bear children are: (1) that the age at which ability to procreate ceases can not be ascertained with any degree of certainty; (2) that the subject is one of such delicacy that it should not be investigated in judicial proceedings; (3) that consideration of such evidence might encourage the performance of surgical operations to prevent birth of issue; and (4) that the prevailing rule tends to eliminate confusion in titles to property. See HUI n. Sangamon Loan & Trust Co., 295 Ill. 619, 621-622.
It happens that the great majority of the cases wherein the presumption has been held conclusive involved only old age or the physiological changes incident thereto, but the rule makes no distinction between incapacity due to age and incapacity due to artificial causes. In two cases testimony has been offered to show that the capacity to bear children had been terminated by medical treatment. Both involved the same surgical operation as was proved here (hysterectomy), and in both the evidence was held inadmissible. Byers v. Beddow, 106 Fla. 166; Guaranty Trust Co. v. Commissioner, 27 B.T.A. 550.
272 Argument for Respondent.
Courts may well be reluctant to permit inquiry into matters so steeped in uncertainty as the efficacy of the various methods used to destroy child-bearing capacity.
The rule which has survived for many years should not be discarded upon a showing of hardship in individual cases.
Mr. Joseph Carson, with whom Mr. George M. Morris was on the brief, for respondent.
Modem medical knowledge and scientific certainty have made the rule contended for by the United States obsolete and inapplicable in this case.
No legal writer before Littleton refers to the rule. Littleton’s Tenures (1592 ed.), fol. 8; Coke on Littleton, 28; 2 Blackstone’s Commentaries, 125. The comments of these writers are made in connection with estates tail for the purpose of showing that a fee tail general can not become a fee tail with possibility of issue extinct and that a fee tail special arises only upon the death of one of the spouses. They appear to be the product of logicians in tenure and have an extremely remote, if any, connection with a federal estate tax dispute arising under modern American statutes. Cf. United States v. Provident Trust Co., 281 U.S. 497.
In the then state of medicine and surgery, it was impossible to determine as a fact that either the male or female was incapable of procreation,—hence the rule.
The modernity of medical knowledge is emphasized by the fact that of all the cases cited involving incapacity of a woman to bear children, it appears that only three involved surgical operations. Byers v. Beddow, 106 Fla. 166; Guaranty Trust Co. v. Commissioner, 27 B.T.A. 550; and the present case. The absence of such cases makes it evident that the chief practical difficulty in the cases which have heretofore come before the courts has been the inconclusiveness of the evidence offered.
Argument for Respondent. 291 U.S.
That the rule has rested on ignorance and uncertainty and not on knowledge, will best be demonstrated by reading the cases cited by petitioner. In every case the character of the evidence tending to show incapacity appears to have been considered, and the judgments of the courts will be seen in large measure to have been formed from the facts appearing in the evidence offered. Uncertain as to the impossibility of issue from the evidence presented, the courts have fallen back on the ancient formula as a safer guide. See Hill v. Sangamon Loan & Trust Co., 295 Ill. 619; Bowlin v. R.I. Hospital Trust Co., 31 R.I. 289.
Nevertheless courts in the United States have frequently recognized incapacity to bear children where the evidence was less conclusive than here. Whitney v. Groo, 40 App.D.C. 496; Johnson v. Beauchamp, 5 Dana 70; Male v. Williams, 48 N.J.Eq. 33; Gowen’s Appeal, 106 Pa. 288; Bacot v. Fessenden, 130 App. Div. 819; Ansonia National Bank v. Kunkel, 105 Conn. 744. See also Apgar v. Apgar, 38 N.J.Eq. 549; In re Staheli, 78 N.J.Eq. 74, 77. And the British courts have, except where the property interests of living persons would be adversely affected, regularly admitted such evidence. Mackenzie v. King, 17 L.J. Ch. N.S. 488 (1848); In re White, 1 Ch. 570 (1901); Leng v. Hodges, Jac. 585 (1822); Edwards V. Tuck, 3 De G. M. & G. 39 (1853); Brown v. Pringle, 4 Hare 124 (1845); Haynes v. Haynes, 35 L.J. Ch. 303 (1866). Moreover, in the field of law pertaining to dam- . ages for personal injury, it appears to be the universal rule that evidence will be received to show that the injury destroyed the power to have issue. This Court has in fact so held. Denver de R. G. Ry. v. Harris, 122 U.S. 597. See also Normile v. Wheeling T. Co., 57 W.Va. 132; Sedgwick on Damages, 9th ed., vol. 1, § 41a; Partridge v. Boston & M. R. Co., 184 Fed. 211; Alabama G. S. R. Co. v. Hill, 93 Ala. 514.
Petitioner relies upon a presumption, the product of the artificial reasoning necessary to round out an intricate medieval concept. With the appearance of modem abdominal surgery the ancient presumption has become a demonstrable fiction—a bar to the truth—to be continued only if overwhelmingly desirable in the public interest. No such desirability exists here.
None of the reasons underlying the frequent refusal of the courts to hold that a woman is incapable of bearing children are applicable here.
Without the evidence as to incapacity the true value of the estate for tax purposes can not be computed.
The wisdom, as a matter of public policy, of admitting evidence concerning the impossibility of issue, is not involved where the question to which the evidence goes is one of valuation by a party (the Government) not directly concerned with anything more than the size of the testator’s estate under the statute. It was the province of the court to pass upon the weight of all evidence pertinent to value.
It is the purpose of the statute to encourage charitable bequests {Edwards v. Slocum, 264 U.S. 61), and to require no more certainty in the evidence of value than is generally found in “ human affairs ” {Ithaca Trust Co. v. United States, 279 U.S. 151).
Mr. Justice Sutherland delivered the opinion of the Court.
The Provident Trust Company is the administrator, with will annexed, of the estate of the deceased, who died in 1921, leaving a will thereafter duly admitted to probate. Subsequent to the filing of the federal estate tax return, the Commissioner of Internal Revenue imposed an additional estate tax, amounting with interest to something over $21,000. The trust company paid the amount and filed a claim for refund of $18,404.05, on the ground p. 280that under the provisions of the will the value of the residuary estate, less the value of the life estate of the daughter of deceased, should have been but was not allowed as a deduction from the gross estate. The commissioner rejected the claim and this action was brought.
The will, after making certain bequests, devised the remainder of the estate to the trust company, in trust to pay the income thereof to deceased’s daughter during her natural life, and upon her death to her lawful issue; and further provided that upon the death of the daughter without issue, the testator’s residuary estate should be distributed among designated charitable institutions and societies—all belonging to that class of organizations, bequests to which are deductible from the gross estate under the provisions of § 403 (a) (3) of the Revenue Act of 1918, c. 18, 40 Stat. 1057, 1098. At the time of deceased’s death, the daughter was fifty years of age. She had been in poor health and under a physician’s care; and on February 9, 1914, upon medical advice, an operation was performed removing her uterus, Fallopian tubes, and both ovaries. The court below specifically found—“The operation and removal of the organs were necessary to prevent further impairment of her health. After the operation she could not have become pregnant nor could she have given birth to a child. She died on March 12, 1927, unmarried, and without ever having given birth to a child.” Following her death, a state orphans’ court awarded the residue of the estate, subject to payment of transfer or inheritance taxes which might be due, to the charitable organizations named in the will.
Upon the foregoing facts, the court below held that respondent was entitled to recover, and accordingly awarded judgment in the sum of $17,204.66. 77 Ct. Cis. 37; 2 F.Supp. 472.
Section 403 (a) (3), supra, so far as it is pertinent here, provides that for the purpose of determining the value of the net estate to be taxed there shall be deducted from the value of the gross estate—“ (3) The amount of all bequests, ... to or for the use of any corporation organized and operated exclusively for religious, charitable, scientific, literary, or educational purposes, . . . Article 53, Treasury Regulations 37, declares that the amount of the deduction in such case is the value at the date of decedent’s death of the remainder interest in the money or property which is devised or bequeathed to charity. Compare Ithaca Trust Co. v. United States, 279 U.S. 151. It follows that in making a deduction for that interest, the value thereof must be determined from data available at the time of the death of decedent. Compare Humes v. United States, 276 U.S. 487, 494.
The government contended in the court below, as it contends here, that, in view of the restriction in respect of issue contained in the will, the value could not be thus determined, since the law, without regard to the fact, conclusively presumes that a woman is capable of bearing children as long as she lives; and that this presumption controls where the organs of reproduction have been completely removed and inability to bear children admits of no valid dispute, no less than where the question turns upon the circumstance of age alone, or upon conflicting evidence or medical opinions. The lower court held otherwise for the reason that the facts established, as of the date of decedent’s death, forbade any other conclusion than that the daughter was incapable of bearing children, and a presumption to the contrary could not be indulged.
The rule in respect of irrebuttable presumptions rests upon grounds of expediency or policy so compelling in character as to override the generally fundamental p. 282requirement of our system of law that questions of fact must be resolved according to the proof. Mr. Best, writing more than ninety years ago when the force of the rule was more strictly regarded than it has come to be since, said that modern courts of justice (that is to say, the courts of that day) were slow to recognize presumptions as irrebuttable, and were disposed to restrict rather than extend the number.
“ Many presumptions,” he says, “ which, in earlier times, were deemed absolute and irrebuttable, have, by the opinion of later judges, acting on more enlarged experience, either been ranged among praesumptiones juris tantum, or considered as presumptions of fact, to be made at the discretion of a jury. . . . By an arbitrary rule, to preclude a party from adducing evidence which, if received, would compel a decision in his favour, is an act which can only be justified by the clearest expediency and soundest policy; and it must be confessed that there are several presumptions still retained in this class which never ought to have found their way into it, and which, it is to be feared, often operate seriously to the defeat of justice.” Best, Presumptions of Law and Fact (London, 1844), § 18.
Certainly the world has gained in experience since that was written; and the binding effect, in respect of particular situations, of the ancient rule precluding proof of facts to the end of avoiding supposed injurious results thought to be of greater consequence than the predominance of truth over error, still remains a proper subject of judicial inquiry to be made and resolved in the light of such further experience and knowledge. Compare Funk v. United States, 2Q0 U.S. 371.
The foregoing observations are peculiarly apposite to the phase of the subject now under review; for, as suggested by counsel for respondent, the presumption here p. 283involved had its origin at a time when medical knowledge was meager, and many centuries before the discovery of anaesthetics and, consequently, before surgical operations of the kind here involved became practicable. It was not until a comparatively recent period, therefore, that the effect of such an operation was disclosed to observation, and the incontrovertible fact recognized that a woman subjected thereto was permanently incapable of bearing children.
The government argues that the rule is one of substantive law and evidence to overcome it is inadmissible. Whether in particular instances so-called irrebuttable presumptions are, in a more accurate sense, rules of substantive law rather than true presumptions, is a matter in respect of which a good deal has been said by modem commentators on the law of evidence. 2 Chamberlayne on Evidence, §§ 1086, 1087, 1159, et seq.; 5 Wigmore on Evidence, 2d ed., § 2492. Compare Heiner n. Donnan, 285 U.S. 312, 328-329; 2 Thayer, Evidence, 351-352, 540-541, 545-546. But it is unnecessary to consider that interesting distinction, since, as will appear, the presumption in question in this instance must be dealt with as open to rebuttal and, therefore, in any aspect of the matter, as a true presumption.
The presumption generally has been held to be conclusive when the element of age alone is involved, albeit Lord Coke’s view that the law seeth no impossibility of issue, even though both husband and wife be an hundred years old (Coke on Littleton, 551; 2 Blackstone Commentaries 125), if now asserted for the first time, might well be put aside as a rhetorical extravagance. But the presumption, even where age alone is involved, has not been universally upheld as conclusive or applied under all circumstances. It has been followed to a greater extent in this country than in England, though even here p. 284exceptional cases are to be found;1 and in England such cases are very numerous.2 It does not seem necessary to review the decisions in either jurisdiction. It is enough to say that the English courts have treated the rule as possessing a considerable degree of flexibility and have refused to give it a conclusive effect in a large number of cases; while the American courts, adhering to a more rigid view, have applied the rule more generally. See extended note, 67 A.L.R. 538, et seq., where the decisions are classified and digested. Few cases have arisen where elements other than, or in addition to, that of age were, present, and the conclusive character of the rule in such cases is by no means established. Thus in HUI v. Spencer, 196 Ill. 65, 70; 63 N.E. 614, the Supreme Court of Illinois held meaningless an allegation that a woman was past the age of childbearing, but was careful to add, “ unless more than a mere matter of age is stated in the bill.” See Denver & R. G. Ry. v. Harris, supra, note 1. And speaking generally this court has said, Lincoln v. French, 105 U.S. 614, 616-617—“ But all presumptions as to matters of fact, capable of ocular or tangible proof, such as the execution of a deed, are in their nature disputable. No conclusive character attaches to them. They may always be rebutted and overthrown.”
The basis for the interposition of an irrebuttable presumption is embodied in the general statement of Mr.
1
Male v. Williams, 48 N.J.Eq. 33, 36; 21 Atl. 854; Ansonia National Bank v. Kunkel, 105 Conn. 744, 753; 136 Atl. 588; Moore’s Executor v. Beauchamp, 5 Dana (Ky.) 70, 72; Bacot’s Case, MS. (N.J.), cited in note to Apgar’s Case, 37 N.J.Eq. 502; Apgar v. Apgar, 38 N.J.Eq. 549, 552; Carney v. Kain, 40 W.Va. 758, 811; 23 S.E. 650. And in Denver & R. G. Ry. v. Harris, 122 U.S. 597, 608, a personal injury case, this court sustained without question the admission of evidence that the injured person had been rendered impotent as a result of the physical injury.
2
See note to Apgar’s Case, supra, note 1.
Wigmore, quoted by the court below, that evidence of certain kinds of facts is excluded “because its admission would injure some other cause more than it would help the cause of truth, and because the avoidance of that injury is considered of more consequence than the possible harm to the cause of truth.” 1 Wigmore on Evidence, 2d ed., § 11. Relating this obviously correct view to the presumption here invoked, not only do we perceive no grounds of expediency or policy that call for its hard and fast application to a particular physical condition, when ignorance has been supplanted by knowledge so as to put beyond the range of doubt the destructive effect of that condition upon the capacity for childbearing, but we conclude affirmatively that the policy of the statute under review as applied to the case in hand is quite to the contrary.
The important point to be emphasized is that the question arises with respect to a surgical operation, the inevitably destructive effect of which upon the power of procreation is established by tangible and irrefutable proof. Moreover, the case does not involve the rule against perpetuities, the devolution of property, the rights or title of living persons in or to property, or any other situation such as constituted the background of practically all the decisions which have sustained the conclusiveness of the presumption. We have for consideration simply a statutory provision exempting from a prescribed tax the value of all bequests, etc., made to or for the use of charitable organizations and those which are akin, plainly evincing a legislative policy to encourage such bequests. Edwards v. Slocum, 264 U.S. 61, 63. And, in that view, we well may assume that Congress could not have meant to leave its aim to be diverted by a purely arbitrary presumption, which, whether applicable or not to sustain another or different policy, would deny the p. 286truth and subvert the policy of this particular legislation. Compare Humes v. United States, supra, at p. 494.
The sole question to be considered is—What is the value of the interest to be saved from the tax? That is a practical question, not concluded by the presumption invoked but to be determined by ascertaining in terms of money what the property constituting that interest would bring in the market, subject to such uncertainty as ordinarily attaches to such an inquiry. See Ithaca Trust Co. v. United States, supra. Thus stated, the birth of a child to the daughter of the deceased after his death was so plainly impossible that, as a practical matter, the hazard disappears from the problem. Certainly, in the light of our present accurate knowledge in respect of the subject, if the interest had been offered for sale in the open market during the daughter’s lifetime, a suggestion of the possibility of such an event would have been ignored by every intelligent bidder as utterly destitute of reason.
The judgment of the court below is
Affirmed.
ALABAMA v. ARIZONA et al.
No. —, original. Argued January 9, 1934.—Decided February 5, 1934.
1. A bill by a State seeking to enjoin five other States from enforcing their statutes against open market sale of products of prison labor, upon the ground that such statutes, and an Act of Congress purporting to divest such products of their interstate character, operate unconstitutionally to deprive the complainant of its interstate markets for goods produced in its prison farms and factories,—held multifarious. Bitterman v. Louisville & 'N. R. Co., 207 U.S. 205. P. 290. 2. This Court may not be called on to give advisory opinions or to pronounce declaratory judgments. P. 291. 3. Application by a State for leave to file a bill to enjoin other States from enforcing their laws will not be granted unless the facts alleged p. 287286 Counsel for Parties.
are clearly sufficient to call for a decree in its favor and the threatened injury is clearly shown to be serious and imminent. P. 291. 4. In the absence of specific showing to the contrary, it will be presumed that no State will attempt to enforce an unconstitutional enactment to the detriment of another. P. 292. 5. In a suit by a State to prevent other States from enforcing their statutes, the burden upon the plaintiff to establish fully and clearly all essential elements of its case is greater than that generally required to be borne by one seeking an injunction in a suit between private parties. P. 292. Leave to file denied.
Application by the State of Alabama for leave to file a bill for an injunction against five other States.
Mr. Wm. Logan Martin, with whom Mr. Thomas E. Knight, Attorney General of Alabama, and Mr. Perry W. Turner were on the brief, for plaintiff.
Mr. Wm. A. Schnader, Attorney General of Pennsylvania, and Mr. Raymond T. Nagle, Attorney General of Montana, argued the cause for the defendant States, and briefs were filed as follows: by Mr. Arthur T. LaPrade, for Arizona; Messrs. U. S. Webb and W. R. Augustine, for California; Messrs. Paul P. Prosser, Norris C. Bakke, and Allen Moore, for Colorado; Mr. Bert H. Miller, for Idaho; Messrs. Philip Lutz, Jr., and Joseph W. Hutchinson, for Indiana; Messrs. Edward L. O’Connor, Walter F. Maley, and J. M. Parsons, for Iowa; Messrs. Bailey P. Wootton and & H. Brown, for Kentucky; Mr. Harry H. Peterson, for Minnesota; Messrs. Raymond T. Nagle and Jeremiah J. Lynch, for Montana; Messrs. William A. Stevens and Duane E. Minard, for New Jersey; Messrs. John J. Bennett, Jr., and Henry Epstein, for New York; Messrs. Dennis G. Brummitt and A. A. F. Seawell, for North Carolina; Messrs. John W. Bricker, W. Dale Dunijon, and Perry L. Graham, for Ohio; Mr. I. H. Van Winkle, for Oregon; Mr. Wm. A. Schnader, for Pennsylvania; p. 288Messrs. G. W. Hamilton, John W. Hanna, and E. P. Donnelly, for Washington; and Messrs. James E. Finnegan and J. E. Messerschmidt, for Wisconsin.
Mr. Justice Butler delivered the opinion of the Court.
For the purpose of invoking original jurisdiction as “ to Controversies between two or more States ” (Const., Art. Ill, § 2) Alabama lodged with the clerk and applied for leave to file a complaint against 19 States praying that the court adjudge invalid, because in violation of the commerce clause of the Federal Constitution, statutes by them respectively enacted to regulate or prohibit sales of articles produced by convict labor and an Act of Congress approved January 19, 1929, 45 Stat. 1084, effective January 19, 1934, to divest in certain cases such products of their interstate character. Responding to our orders to show cause why leave should not be granted, 17 of the States submitted returns suggesting that the complaint is multifarious and fails to allege facts sufficient to entitle Alabama to any relief. At the hearing upon the questions so raised, counsel for Alabama obtained leave to, and on a later day did, submit an amendment eliminating 14 States including those that merely regulate and some that prohibit sales of convict-made goods, leaving only Arizona, Idaho, Montana, New York and Pennsylvania.
Each of the assailed state statutes, while not in all respects the same as the others, forbids the sale upon the open market of any goods produced wholly or in part by convicts of other States and prescribes penalties for violation. The Act of Congress declares that, with exceptions which need not be specified here, goods produced by convict labor and transported into any State shall be subject to the laws of that State to the same extent and in the same manner as if there produced.
The substance of the complaint follows. Alabama’s prison population averages about 5,500 and in connection with its prisons it has agricultural lands, cotton mills and a shirt factory. About 1,050 inmates do farm work for the production of cotton and potatoes, and about 1,250 operate spindles and make shirts. In 1927 the State entered into a contract with a manufacturing company pursuant to which it sold the latter cotton goods made in its mills and, for hire at the rate of 75 cents per dozen shirts made, furnished convict labor to be employed in the prison factory. The contract expired March 31, 1933, and, the company having declined to renew or extend it, the parties agreed that during the ensuing quarter the State would sell the company prison-made goods for 5 cents a yard and furnish the convict labor for 54 cents per dozen shirts.
While the contract was in force the company sold some of the convict-made products in each of the 19 States originally named as defendants. In round figures, sales amounted annually to $347,000, of which it received for the goods sold in Arizona $1,000, Idaho $10,000, Montana $10,000, New York $30,000, Pennsylvania $25,000. For the material and labor furnished by it Alabama received the equivalent of 30 per cent, of the amounts for which the company sold the goods. Because of the Act of Congress and state statutes in question Alabama is unable to make any “ firm agreement ” for the sale of its prison-made cotton goods or for the employment of its convicts. In the second quarter of 1933 it received for labor $11,500 less than was paid it in the preceding quarter. The lower rate of compensation will continue during the rest of 1933. And enforcement of the statutes in question will prevent Alabama from selling in defendant States potatoes produced by the labor of its convicts.
Alabama’s investment in the cotton mills and shirt factory exceeds $300)000 and will be valueless as a result of
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its inability to find an employer for its convict labor and a market for its prison-made goods. The cost of maintaining unemployed convicts will be about $550,000 annually. Without employment convicts cannot be treated appropriately for their rehabilitation and the promotion of the good order and welfare of the State. The very existence of the assailed enactments is sufficient to bring about the unemployment which will continue unless their enforcement is enjoined.
If Alabama is compelled to provide other employment, it will have to expend about $1,000,000 for the construction of plants for the manufacture of things to be used by the inmates of its eleemosynary institutions and in and about other state activities. As presently employed its prisoners are divided into night and day shifts so as to avoid overcrowding of the prisons. And, if the State does not provide other industrial activities it will have to expend about $100,000 for additional space to house its convicts.
1. There is no test or rule of general application by which to determine whether a complaint in equity is multifarious. That question is to be decided by the court in the exercise of sound discretion having regard to the facts alleged, circumstances disclosed and the character of the relief sought. Oliver v. Piatt, 3 How. 333, 411. Nelson v. Hill, 5 How. 127, 132. Shields v. Thomas, 18 How. 253, 259. Fitch v. Creighton, 24 How. 159, 163-164. Brown v. Guarantee Trust Co., 128 U.S. 403, 410. Unless necessary for the prompt, convenient and effective administration of justice, a suit by one State against several States to set aside a statute of each is properly to be regarded as multifarious. There has been suggested no reason to sustain Alabama’s complaint, as it stood before amendment, against the objection of misjoinder of parties defendant and of causes of action. Cf. Hale v. Allinson, 188 U.S. 56, 74.
The amendment of the bill serves merely to obviate objections that are based on dissimilarity of the state enactments. It is not shown that the joinder of five States is necessary to avoid a multiplicity of suits or that it will substantially serve the convenience of Alabama or of the court. Alabama does not claim concert of action on the part of the defendants or that they are jointly liable in respect of any matter referred to in the bill. The enforcement of the statutes attacked would prohibit the sale of Alabama’s prison products in the five States named. If one is repugnant to the commerce clause, all transgress. Alabama cities Bitterman v. Louisville Nashville R. Co., 207 U.S. 205. Considerations of convenience that in suits between private parties reasonably may justify exercise of discretion in support of such joinders have no bearing in a case such as this. If, in a suit brought by Alabama against one of these States, this court should hold the assailed statute invalid and enjoin its enforcement, the decision would be authoritative and controlling as a precedent in all courts, state and federal. Presumably no other State would attempt on similar facts to enforce a like measure, and Alabama would have no occasion to invoke our jurisdiction further. The amended bill is multifarious.
2. This court may not be called on to give advisory opinions or to pronounce declaratory judgments. Muskrat v. United States, 219 U.S. 346. Willing v. Chicago Auditorium Assn., 277 U.S. 274, 288, and cases cited. Nashville, C. & St. L. Ry. v. Wallace, 288 U.S. 249, 261-262. Its jurisdiction in respect of controversies between States will not be exerted in the absence of absolute necessity. Louisiana v. Texas, 176 U.S. 1, 15. A State asking leave to sue another to prevent the enforcement of laws must allege, in the complaint offered for filing, facts that are clearly sufficient to call for a decree in its favor. p. 292Our decisions definitely establish that not every matter of sufficient moment to warrant resort to equity by one person against another would justify an interference by this court with the action of a State. Missouri v. Illinois, 200 U.S. 496, 520-521. New York v. New Jersey, 256 U.S. 296, 309. North Dakota v. Minnesota, 263 U.S. 365, 374. Leave will not be granted unless the threatened injury is clearly shown to be of serious magnitude and imminent. Missouri v. Illinois, supra, 521. In the absence of specific showing to the contrary, it will be presumed that no State will attempt to enforce an unconstitutional enactment to the detriment of another. Cf. Ex parte La Prade, 289 U.S. 444, 458. The burden upon the plaintiff State fully and clearly to establish all essential elements of its case is greater than that generally required to be borne by one seeking an injunction in a suit between private parties. Connecticut v. Massachusetts, 282 U.S. 660, 669.
Plainly the amended bill does not meet the requirements that reasonably should be imposed upon the applicant, It fails to show that Alabama has any agreement with any defendant or that there is any direct issue between them or that the validity of the statutes in question and Alabama’s assertion of right may not, or indeed will not, speedily and conveniently be tested by the contracting company, that apparently is directly concerned, or by a seller of such goods. Cf. Louisiana v. Texas, supra, 18, 22. There is no allegation that an adequate market for the goods in question may not be found outside the five States named. The facts alleged are not sufficient to warrant a finding that the enforcement of the statutes of any defendant would cause Alabama to suffer great loss or any serious injury. If filed, the bill would have to be dismissed for want of equity. Florida v. Mellon, 273 U.S. 12.
Leave denied.
Mr. Justice Stone concurs in the result.