Garner v. Bd. of Pub. Works, 341 U.S. 716 (1951)
Case details
Citation
341 U.S. 716
Full caption
GARNER ET AL. v. BOARD OF PUBLIC WORKS OF LOS ANGELES ET AL.
Country
United States
Jurisdiction
Federal
Court
Supreme Court of the United States
Decided
June 4, 1951
Opinion
Per curiam
Dissent
Douglas (Justice)
GARNER ET AL. v. BOARD OF PUBLIC WORKS OF
LOS ANGELES ET AL.
CERTIORARI TO THE DISTRICT COURT OF APPEAL OF CALIFORNIA, SECOND APPELLATE DISTRICT.
No. 453. Argued April 25, 1951.-Decided June 4, 1951.
1
The Federal Constitution does not forbid a municipality to require its employees to execute affidavits disclosing whether or not they are or ever have been members of the Communist Party or the Communist Political Association. P. 720.
2
In 1941, the California Legislature amended the Charter of the City of Los Angeles so as to provide, in substance, that no person shall hold or retain or be eligible for any public office or employment in the service of the City ( 1) who advises, advocates or teaches the overthrow by force or violence of the State or Federal Government or belongs to an organization which does so, or (2) who, within the five years prior to the effective date, had so advised, advocated or taught or had belonged to an organization which did so. In 1948, the City passed an ordinance requiring each of its officers and employees to take an oath that he has not within the five years preceding the effective date of the ordinance, does. not now, and will not while in the service of the City, advise, advocate or teach the overthrow by force, violence or other unlawful means, of the State or Federal Government or belong to an organization which does so or has done so within such five-year period. Held: The ordinance is not a bill of attainder or ex post facto law, nor, as here construed, does it violate the Due Process Clause of the Fourteenth Amendment. Pp. 720-724. (a) The Charter amendment is valid under the Federal Constitution to the extent that it bars from the City's public service persons who, since its adoption in 1941, advise, advocate or teach the violent overthrow of the Government or who are or become affiliated with any group doing so, since the provisions thus operating prospectively are a reasonable regulation to protect the municipal service. The question of its validity insofar as it purported to apply retrospectively for a five-year period prior to its effective date is not here involved. Pp. 720-721. (b) The ordinance clearly is not ex post facto, since the activity covered by the oath had been proscribed by the Charter in the same terms, for the same purpose, and to the same effect over ..........
seven years before, and two years prior to the period covered by the oath. P. 721.
(c) The ordinance is not a bill of attainder, since no punishment is imposed by a general regulation which merely provides standards of qualification and eligibility for public employment. Lovett v. United States, 328 U. S. 303, distinguished. Pp. 722-723.
( d) It is assumed here that the oath will not be construed as affecting adversely persons who during their affiliation with a proscribed organization were innocent of its purpose, or those who severed their relations with any such organization when its character became apparent, or those who were affiliated with organizations which were not engaged in proscribed activities at the time of their affiliation; and that, if this interpretation of the oath is correct, the City will give those petitioners who heretofore refused to take the oath an opportunity to take it as interpreted and resume their employment. As thus construed, the requirement of the oath does not violate the Due Process Clause of the Fourteenth Amendment. Pp. 723-724.
98 Cal. App. 2d 493, 220 P. 2d 958, affirmed.
In a suit by discharged employees of a city for reinstatement and unpaid salaries, the state court denied relief. 98 Cal. App. 2d 493, 220 P. 2d 958. This Court granted certiorari. 340 U. S. 941. Affirmed, p. 724.
Charles J. Katz and Samuel Rosenwein argued the cause for petitioners. With them on the brief was John T. McTernan.
Alan G. Campbell argued the cause for respondents. With him on the brief were Ray L. Chesebro, Bourke Jones and A. L. Lawson.
A. L. Wirin, Fred Okrand, Loren Miller and Clore Warne filed a brief for the American Civil Liberties Union, as amicus curiae, urging reversal.
MR. JusTICE CLARK delivered the opinion of the Court. In 1941 the California Legislature amended the Charter of the City of Los Angeles to provide in part as follows:
". . . no person shall hold or retain or be eligible for any public office or employment in the service p. 718of the City of Los Angeles, in any office or department thereof, either elective or appointive, who has within five (5) years prior to the effective date of this section advised, advocated or taught, or who may, after this section becomes effective [April 28, 1941], advise, advocate or teach, or who is now or has been within five ( 5) years prior to the effective date of this section, or who may, after this section becomes effective, become a member of or affiliated with any group, society, association, organization or party which advises, advocates or teaches, or has, within said period of five ( 5) years, advised, advocated or taught the overthrow by force or violence of the government of the United States of America or of the State of California.
"In so far as this section may be held by any court of competent jurisdiction not to be self-executing, the City Council is hereby given power and authority to adopt appropriate legislation for the purpose of effectuating the objects hereof." Cal. Stat. 1941, C. 67.
Pursuant to the authority thus conferred, the City of Los Angeles in 1948 passed Ordinance No. 94,004, requiring every person who held an office or position in the service of the city to take an oath prior to January 6, 1949. In relevant part the oath was as follows:
"I further swear ( or affirm) that I do not advise, advocate or teach, and have not within the period beginning five (5) years prior to the effective date of the ordinance requiring the making of this oath or affirmation, advised, advocated or taught, the overthrow by force, violence or other unlawful means, of the Government of the United States of America or of the State of California and that I am not now and have not, within said period, been or become a mem- p. 719her of or affiliated with any group, society, association, organization or party which advises, advocates or teaches, or has, within said period, advised, advocated or taught, the overthrow by force, violence or other unlawful means of the Government of the United States of America, or of the State of California. I further swear ( or affirm) that I will not, while I am in the service of the City of Los Angeles, advise, advocate or teach, or be or become a member of or affiliated with any group, association, society, organization or party which advises, advocates or teaches, or has within said period, advised, advocated or taught, the overthrow by force, violence or other unlawful means, of the Government of the United States of America or of the State of California .... " The ordinance also required every employee to execute an affidavit "stating whether or not he is or ever was a member of the Communist Party of the United States of America or of the Communist Political Association, and if he is or was such a member, stating the dates when he became, and the periods during which he was, such a member ...."
On the final date for filing of the oath and affidavit petitioners were civil service employees of the City of Los Angeles. Petitioners Pacifico and Schwartz took the oath but refused to execute the affidavit. The remaining fifteen petitioners refused to do either. All were discharged for such cause, after administrative hearing, as of January 6, 1949. In this action they sue for reinstatement and unpaid salaries. The District Court of Appeal denied relief. 98 Cal. App. 2d 493, 220 P. 2d 958 (1950). We granted certiorari, 340 U.S. 941 (1951).
Petitioners attack the ordinance as violative of the provision of Art. I, § 10 of the Federal Constitution that "No State shall ... pass any Bill of Attainder, [or] ex post facto Law .... " They also contend that the ordinance p. 720deprives them of freedom of speech and assembly and of the right to petition for redress of grievances.
Petitioners have assumed that the oath and affidavit provisions of the ordinance present similar constitutional considerations and stand or fall together. We think, however, that separate disposition is indicated.
1. The affidavit raises the issue whether the City of Los Angeles is constitutionally forbidden to require that its employees disclose their past or present membership in the Communist Party or the Communist Political Association. Not before us is the question whether the city may determine that an employee's disclosure of such political affiliation justifies his discharge.
We think that a municipal employer is not disabled because it is an agency of the State from inquiring of its employees as to matters that may prove relevant to their fitness and suitability for the public service. Past conduct may well relate to present fitness; past loyalty may have a reasonable relationship to present and future trust. Both are commonly inquired in to in determining fitness for both high and low positions in private industry and are not less relevant in public employment. The affidavit requirement is valid.
2. In our view the validity of the oath turns upon the nature of the Charter amendment (1941) and the relation of the ordinance (1948) to this amendment. Immaterial here is any opinion we might have as to the Charter provision insofar as it purported to apply retrospectively for a five-year period prior to its effective date. We assume that under the Federal Constitution the Charter amendment is valid to the extent that it bars from the city's public service persons who, subsequent to its adoption in 1941, advise, advocate, or teach the violent overthrow of the Government or who are or become affiliated with any group doing so. The provisions operating thus prospectively were a reasonable regulation p. 721to protect the municipal service by establishing an employment qualification of loyalty to the State and the United States. Cf. Gerende v. Board of Supervisors of Elections, 341 U. S. 56 (1951). Likewise, as a regulation of political activity of municipal employees, the amendment was reasonably designed to protect the in tegri ty and competency of the service. This Court has held that Congress may reasonably restrict the political activity of federal civil service employees for such a purpose, United Public Workers v. Mitchell, 330 U.S. 75, 102-103 (1947), and a State is not without power to do as much.
The Charter amendment defined standards of eligibility for employees and specifically denied city employment to those persons who thereafter should not comply with these standards. While the amendment deprived no one of employment with or without trial, yet from its effective date it terminated any privilege to work for the city in the case of persons who thereafter engaged in the activity proscribed.
The ordinance provided for administrative implementation of the provisions of the Charter amendment. The oath imposed by the ordinance proscribed to employees activity which had been denied them in identical terms and with identical sanctions in the Charter provision effective in 19'41. The five-year period provided by the oath extended back only to 1943.
The ordinance would be ex post facto if it imposed punishment for past conduct lawful at the time it was engaged in. Passing for the moment the question whether separation of petitioners from their employment must be considered as punishment, the ordinance clearly is not ex post facto. The activity covered by the oath had been proscribed by the Charter in the same terms, for the same purpose, and to the same effect over seven years before, and two years prior to the period embraced in the oath. Not the law but the fact was posterior.
Bills of attainder are "legislative acts that apply either to named individuals or to easily ascertainable members of a group in such a way as to inflict punishment on them without a judicial trial .... " United States v. Lovett, 328 U. S. 303, 315 (1946). Punishment is a prerequisite·. See concurring opinion in Lovett, supra, at 318, 324. Whether legislative action curtailing a privilege previously enjoyed amounts to punishment depends upon "the circumstances attending and the causes of the deprivation." Cummings v. Missouri, 4 Wall. 277, 320 (1867). We are unable to conclude that punishment is imposed by a general regulation which merely provides standards of qualification and eligibility for employment.
Cummings v. Missouri, 4 Wall. 277 ( 1867), and Ex parte Garland, 4 Wall. 333 ( 1867), the leading cases in this Court applying the federal constitutional prohibitions against bills of attainder, recognized that the guarantees against such legislation were not intended to preclude legislative definition of standards of qualification for public or professional employment. Carefully distinguishing an instance of legislative "infliction of punishment" from the exercise of "the power of Congress to prescribe qualifications," the Court said in Garland's case: "The legislature may undoubtedly prescribe qualifications for the office, to which he must conform, as it may, where it has exclusive jurisdiction, prescribe qualifications for the pursuit of any of the ordinary avocations of life." 4 Wall. at 379-380. See also, Cummings v. Missouri, supra, at 318-319. This doctrine was reaffirmed in Dent v. West Virginia, 129 U.S. 114 (1889), in which Mr. Justice Field, who had written the Cummings and Garland opinions, wrote for a unanimous Court upholding a statute elevating standards of qualification to practice medicine. And in Hawker v. New York, 170 U. S. 189 (1898), the Court upheld a statute forbidding p. 723the practice of medicine by any person who had been convicted of a felony. Both Dent and Hawker distinguished the Cummings and Garland cases as inapplicable when the legislature establishes reasonable qualifications for a vocational pursuit with the necessary effect of disqualifying some persons presently engaged in it.
Petitioners rely heavily upon United States v. Lovett, 328 U.S. 303 (1946), in which a legislative act effectively separating certain public servants from their positions was held to be a bill of attainder. Unlike the provisions of the Charter and ordinance under which petitioners were removed, the statute in the Lovett case did not declare general and prospectively operative standards of qualification and eligibility for public employment. Rather, by its terms it prohibited any further payment of compensation to named individual employees. Under these circumstances, viewed against the legislative background, the statute was held to have imposed penalties without judicial trial.
Nor are we impressed by the contention that the oath denies due process because its negation is not limited to affiliations with organizations known to the employee to be in the proscribed class. We have no reason to suppose that the oath is or will be construed by the City of Los Angeles or by California courts as affecting adversely those persons who during their affiliation with a proscribed organization were innocent of its purpose, or those who severed their relations with any such organization when its character became apparent, or those who were affiliated with organizations which at one time or another during the period covered by the ordinance were engaged in proscribed activity but not at the time of affiant's affiliation.* p. 724We assume that scienter is implicit in each clause of the oath. As the city has done nothing to negative this interpretation, we take for granted that the ordinance will be so read to avoid raising difficult constitutional problems which any other application would present. Fox v. Washington, 236 U. S. 273, 277 (1915). It appears from correspondence of record between the city and petitioners that although the city welcomed inquiry as to its construction of the oath, the interpretation upon which we have proceeded may not have been explicitly called to the attention of petitioners before their refusal. We assume that, if our interpretation of the oath is correct, the City of Los Angeles will give those petitioners who heretofore refused to take the oath an opportunity to take it as interpreted and resume their employment.
*
In interpreting local legislation proscribing affiliation with defective organizations, the Supreme Court of California has gone beyond the literal text of a statute so as to require knowledge of the character of the organization, as of the time of affiliation, by the person whose affiliation is in question. In People v. Steelik, 187 Cal. 361, 203 P. 78 (1921), the Court upheld a conviction under the Criminal Syndicalism Act of 1919 which made one guilty of a felony who "is" a member of any one of a certain class of proscribed organizations. The indictment in relevant part alleged that defendants "are and each of them is" a member of a proscribed organization. The court interpreted the statute as defining and the indictment as charging "the offense of criminal syndicalism in that he knowingly belonged" to a proscribed organization. (Emphasis added.) 187 Cal. at 376,
The judgment as to Pacifico and Schwartz is affirmed. The judgment as to the remaining petitioners is affirmed on the basis of the interpretation of the ordinance which we have felt justified in assuming.
Affirmed.
MR. JusTICE FRANKFURTER, concurring m part and dissenting in part.
The Constitution does not guarantee public employment. City, State and Nation are not confined to making provisions appropriate for securing competent professional discharge of the functions pertaining to diverse p. 725governmental jobs. They may also assure themselves of fl.deli ty to the very presuppositions of our scheme of government on the part of those who seek to serve it. No unit of government can be denied the right to keep out of its employ those who seek to overthrow the government by force or violence, or are knowingly members of an organization engaged in such endeavor. See Gerende v. Board of Supervisors of Elections, 341 U. S. 56.
203
P. at 84.
But it does not at all follow that because the Constitution does not guarantee a right to public employment, a city or a State may resort to any scheme for keeping people out of such employment. Law cannot reach every discrimination in practice. But doubtless unreasonable discriminations, if avowed in formal law, would not survive constitutional challenge. Surely, a government could not exclude from public employment members of a minority group merely because they are odious to the majority, nor restrict such employment, say, to native-born citizens. To describe public employment as a privilege does not meet the problem.
This line of reasoning gives the direction, I believe, for dealing with the issues before us. A municipality like Los Angeles ought to be allowed adequate scope in seeking to elicit information about its employees and from them. It would give to the Due Process Clause an unwarranted power of intrusion into local affairs to hold that a city may not require its employees to disclose whether they have been members of the Communist Party or the Communist Political Association. In the context of our time, such membership is sufficiently relevant to effective and dependable government, and to the confidence of the electorate in its government. I think the precise Madison would have been surprised even to hear it suggested that the requirement of this affidavit was an "Attainder" under Art. I, § 10, of the Constitution. For reasons outlined in the concurring opinion in United p. 726States v. Lovett, 328 U. S. 303, 318, I cannot so regard it. This kind of inquiry into political affiliation may in the long run do more harm than good. But the two employees who were dismissed solely because they refused to file an affidavit stating whether or when they had been members of the Communist Party or the Communist Political Association cannot successfully appeal to the Constitution of the United States.
A very different issue is presented by the fifteen employees who were discharged because they refused to take this oath:
"I ... do solemnly swear ( or affirm) ... that I ... have not, within said period [from December 6, 1943], been or become a member of or affiliated with any group, society, association, organization or party which advises, advocates or teaches, or has, within said period, advised, advocated or taught, the overthrow by force, violence or other unlawful means of the Government of the United States of America, or of the State of California."
The validity of an oath must be judged on the assumption that it will be taken conscientiously. This ordinance does not ask the employee to swear that he "knowingly" or "to the best of his knowledge" had no proscribed affiliation. Certainty is implied in the disavowal exacted. The oath thus excludes from city employment all persons who are not certain that every organization to which they belonged or with which they were affiliated ( with all the uncertainties of the meaning of "affiliated") at any time since 1943 has not since that date advocated the overthrow by "unlawful means" of the Government of the United States or of the State of California.
The vice in this oath is that it is not limited to affiliation with organizations known at the time to have advocated overthrow of government. We have here a very different p. 727situation from that recently before us in Gerende v. Board of Supervisors, 341 U.S. 56. There the Attorney General of Maryland assured this Court that he would advise the appropriate authorities to accept as the oath required by State law from a candidate for office, an affirmation that he is not engaged in the attempt to overthrow the Government by force or violence and that he is not knowingly a member of an organization engaged in such an attempt. The Attorney General did not give this assurance as a matter of personal relaxation of a legal requirement. He was able to give it on the basis of the interpretation that the Court of Appeals of Maryland, the highest court of that State, had placed upon the legislation. No such assurance was remotely suggested on behalf of Los Angeles. Naturally not. Nothing in the decisions under review would warrant such restricted interpretation of the assailed ordinance.* To find scienter implied in a criminal statute is the obvious way of reading such a statute, for guilty knowledge is the normal ingredient of criminal responsibility. The ordinance before us exacts an oath as a condition of employment; it does not define a crime. It is certainly not open to this Court to rewrite the oath required by Los Angeles of its employees, after the oath as written has been sustained by the California courts.
If this ordinance is sustained, sanction is given to like oaths for every governmental unit in the United States. Not only does the oath make an irrational demand. It is p. 728bound to operate as a real deterrent to people contemplating even innocent associations. How can anyone be sure that an organization with which he affiliates will not at some time in the future be found by a State or National official to advocate overthrow of government by "unlawful means"? All but the hardiest may well hesitate to join organizations if they know that by such a proscription they will be permanently disqualified from public employment. These are considerations that cut deep into the traditions of our people. Gregariousness and friendliness are among the most characteristic of American attitudes. Throughout our history they have been manifested in "joining." See Arthur M. Schlesinger, Sr., Biography of a Nation of Joiners, published in 50 American Historical Review 1, reprinted in Schlesinger, Paths to the Present, 23.
*
Nothing in the decision or opinion of the Supreme Court of California in People v. Steelik, 187 Cal. 361, 203 P. 78, indicates that the courts of California would at their own instance read into the Los Angeles oath a limitation which is not there expressed. In the Steelik case the court was considering a statute which provided that "Any person who ... [o]rganizes or assists in organizing, or is or knowingly becomes a member of, any organization" teaching criminal syndicalism is guilty of a felony. Cal. Stat. 1919, c. 188, § 2. The court held only that the word "knowingly" qualified the word "is" in addition to the word "becomes." 940226 0-51-51
Giving full scope to the selective processes open to our municipalities and States in securing competent and reliable functionaries free from allegiance to any alien political authority, I do not think that it is consonant with the Due Process Clause for men to be asked, on pain of giving up public employment, to swear to something they cannot be expected to know. Such a demand is at war with individual integrity; it can no more be justified than the inquiry into belief which MR. JusTICE BLACK, MR. JusTICE JACKSON and I deemed invalid in American Communications Assn. v. Douds, 339 U.S. 382.
The needs of security do not require such curbs on what may well be innocuous feelings and associations. Such curbs are indeed self-defeating. They are not merely unjustifiable restraints on individuals. They are not merely productive of an atmosphere of repression uncongenial to the spiritual vitality of a democratic society. The inhibitions which they engender are hostile to the best conditions for securing a high-minded and high-spirited public service.
It is not for us to write the oath that Los Angeles may exact. And so as to the fifteen employees I think the case should go back to the State court, with instructions that these petitioners be reinstated unless they refuse to take an oath or affirmation within the scope indicated in this opinion.
MR. JusTICE BURTON, dissenting in part and concurring in part.
I.
I cannot agree that under our decisions the oath is valid. United States v. Lovett, 328 U. S. 303; Ex parte Garland, 4 Wall. 333; Cummings v. Missouri, 4 Wall. 277. The oath is so framed as to operate retrospectively as a perpetual bar to those employees who held certain views at any time since a date five years preceding the effective date of the ordinance. It leaves no room for a change of heart. It calls for more than a profession of present loyalty or promise of future attachment. It is not limited in retrospect to any period measured by reasonable relation to the present. In time this ordinance will amount to the requirement of an oath that the affiant has never done any of the proscribed acts. Cf. Gerende v. Board of Supervisors, 341 U.S. 56; American Communications Assn. v. Douds, 339 U. S. 382, 413-414.
The oath is not saved by the fact that it reaches back only to December 6, 1943, and that city employees have been forbidden since April 28, 1941, under § 432 of the Los Angeles Charter, to advise, teach or advocate the violent overthrow of the Government. See the Lovett, Garland and Cummings cases, supra.
II.
I agree with the Court that the judgment should be affirmed as to petitioners Pacifico and Schwartz. They
BLACK, .J., dissenting. 341 u. s.
executed the oath but refused to sign an affidavit calling for information as to their past or present membership in the Communist Party or the Communist Political Association. Such refusal does not now present the question of whether the Constitution permits the City to discharge them from municipal employment on the basis of information in their affidavits. We have before us only the question of whether municipal employees may be required to give to their employer factual information which is relevant to a determination of their present loyalty and suitability for public service. Such loyalty and suitability is no less material in candidates for appointment as municipal employees than in candidates for elective office, Gerende v. Board of Supervisors, supra, or union officers, American Communications Assn. v. Douds, supra.
MR. JusTICE BLACK, dissenting.
I agree with the dissenting opinion of MR. JusTICE DouGLAS but wish to emphasize two objections to the opinion of the Court:
1. Our per curiam opinion in Gerende v. Board of Supervisors, 341 U. S. 56, in no way stands for the principle for which the Court cites it today. In Gerende, we upheld a Maryland law that had been interpreted by the highest court of that state to require only an oath that a candidate "is not a person who is engaged 'in one way or another in the attempt to overthrow the government by force or violence,' and that he is not knowingly a member of an organization engaged in such an attempt." The oath and affidavit in the present case are obviously not so limited.
2. The opinion of the Court creates considerable doubt as to the continued vitality of three of our past decisions: Cummings v. Missouri, 4 Wall. 277; Ex parte Garland, 4 Wall. 333; United States v. Lovett, 328 U.S. 303. To p. 731716 DouGLAS, J., dissenting.
this extent it weakens one more of the Constitution's great guarantees of individual liberty. See, e. g., Dennis v. United States, ante, p. 494, and Breard v. Alexandria, ante, p. 622, decided this day.
MR. JUSTICE DOUGLAS, with whom MR. JusTICE BLACK joins, dissenting.
Petitioners are citizens of the United States and civil service employees of the City of Los Angeles. In 1948 the City of Los Angeles passed Ordinance No. 94,004 which requires each of its employees to subscribe to an oath of loyalty which included, inter alia, an affirmation that he does not advise, advocate, or teach, and has not within the five years prior to the effective date of the ordinance "advised, advocated or taught, the overthrow by force, violence or other unlawful means, of the Government of the United States of America or of the State of California," and that he is not and has not within that period been "a member of or affiliated with any group, society, association, organization or party which advises, advocates or teaches, or has, within said period, advised, advocated or taught, the overthrow by force, violence or other unlawful means of the Government of the United States of America, or of the State of California."
The ordinance also requires each employee to execute an affidavit stating "whether or not he is or ever was a member of the Communist Party of the United States of America or of the Communist Political Association, and if he is or was such a member, stating the dates when he became, and the periods during which he was, such a member."
The ordinance was passed to effectuate the provisions of § 432 of the Charter of Los Angeles (Cal. Stat. 1941, c. 67, p. 3409) which provides, inter alia, that no person who has within five years prior to the adoption of § 432 ad-
DouGLAs, J., dissenting. 341 U.S.
vised, advocated or taught the overthrow by force or violence of the government of the United States or of California, or who during that time has been a member of or affiliated with any group or party which has advised, advocated, or taught that doctrine, shall hold or retain or be eligible for any employment in the service of the city. Thus the ordinance and § 432 of the Charter read together make plain that prior advocacy or membership is without more a disqualification for employment. Both the oath and the affidavit are methods for enforcement of that policy.
Fifteen of the petitioners refused to sign either the oath or the affidavit. Two took the oath but refused to sign the affidavit. All seventeen were discharged-the sole ground being their refusal to sign the affidavit or to sign and to take the oath, as the case may be. They had an administrative review, which afforded them no relief. This suit was thereupon instituted in the California court, claiming reinstatement and unpaid salaries. Relief was denied by the District Court of Appeal, 98 Cal. App. 2d 493, 220 P. 2d 958; and a hearing was denied by the Supreme Court, three justices dissenting. The case is here on certiorari.
The case is governed by Cummings v. Missouri, 4 Wall. 277, and Ex parte Garland, 4 Wall. 333, which struck down test oaths adopted at the close of the Civil War. The Cummings case involved provisions of the Missouri Constitution requiring public officials and certain classes of professional people, including clergymen, to take an oath that, inter alia, they had never been "in armed hostility" to the United States; that they had never "by act or word" manifested their "adherence to the cause" of enemies of the country or their "desire" for the triumph of its enemies; that they had never "knowingly and willingly harbored, aided, or countenanced" an enemy; that they p. 733had never been a "member of, or connected with, any order, society, or organization inimical to the government of the United States" or engaged "in guerilla warfare" against its inhabitants; that they had never left Missouri "for the purpose of a voiding enrolment for or draft into the military service of the United States" or become enrolled as a southern sympathizer.
The Garland case involved certain Acts of Congress requiring public officials and attorneys practicing before the federal courts to take an oath that they had "voluntarily given no aid, countenance, counsel, or encouragement to persons engaged in armed hostility" against the United States and that they had "neither sought nor accepted, nor attempted to exercise the functions of any office whatever, under any authority or pretended authority in hostility to the United States." The Court amended its rules of admission to require this oath.
Cummings, a Catholic priest, was indicted and convicted for teaching and preaching without having first taken the oath.
Garland, a member of the Bar of the Court, had served in the Confederate Government, for which he had received a pardon from the President conditioned on his taking the customary oath of loyalty. He applied for permission to practice before the Court without taking the new oath.
Article I, § 10 of the Constitution forbids any state to "pass any Bill of Attainder" or any "ex post facto Law." Article I, § 9 curtails the power of Congress by providing that "No Bill of Attainder or ex post facto Law shall be passed." The Court ruled that the test oaths in the Cummings and Garland cases were bills of attainder and ex post facto laws within the meaning of the Constitution. "A bill of attainder," wrote Mr. Justice Field for the Court, "is a legislative act which inflicts punishment
DouaLAs, J., dissenting. 341 U.S.
without a judicial trial."1 Cummings v. Missouri, supra, p. 323; and see United States v. Lovett, 328 U.S. 303, 317, 318. The Court held that deprivation of the right to follow one's profession is punishment. A bill of attainder, though generally directed against named individuals, may be directed against a whole class. Bills of attainder usually declared the guilt; here they assumed the guilt and adjudged the punishment conditionally, i. e., they deprived the parties of their right to preach and to practice law unless the presumption were removed by the expurgatory oath. That was held to be as much a bill of p. 735716 DouGLAs, .J., dissenting.
1
Mr. Justice Field continued: "If the punishment be less than death, the act is termed a bill of pains and penalties. Within the meaning of the Constitution, bills of attainder include bills of pains and penalties. In these cases the legislative body, in addition to its legitimate functions, exercises the powers and office of judge; it assumes, in the language of the text-books, judicial magistracy; it pronounces upon the guilt of the party, without any of the forms or safeguards of trial; it determines the sufficiency of the proofs produced, whether conformable to the rules of evidence or otherwise; and it fixes the degree of punishment in accordance with its own notions of the enormity of the offence." 4 Wall. p. 323. In addition to the history of bills of attainder in England, the draftsmen of the Constitution had before them recent examples of such legislation by the Revolutionary governments of the states. Legislative action against persons of known or suspected Loyalist sympathies included outright attaint of treason or subversion (e. g., Georgia, Act of March 1, 1778; Pennsylvania Laws 1778, c. 49; New York Laws 1779, Third Session, c. 25); proscription and banishment (e. g., Massachusetts, Act of Sept. 1778, Charters and Gen. Laws, c. 48; New Hampshire Laws 1778, Fourth Session, c. 9); confiscation (e.g., Delaware Laws 1778, c. 29b; New Jersey, Act of Dec. 11, 1778, Laws, p. 40); as well as numerous test oaths involving, among other penalties, disqualification from holding office or practicing certain professions. See laws collected in Van Tyne, The Loyalists in the American Revolution, App. B, C; and generally, Thompson, Anti-Loyalist Legislation During the American Revolution, 3 Ill. L. Rev. 81, 147.
attainder as if the guilt had been irrevocably pronounced. The laws were also held to be ex post facto since they imposed a penalty for an act not so punishable at the time it was committed.
There are, of course, differences between the present case and the Cummings and Garland cases. Those condemned by the Los Angeles ordinance are municipal employees; those condemned in the others were professional people. Here the past conduct for which punishment is exacted is single-advocacy within the past five years of the overthrow of the Government by force and violence. In the other cases the acts for which Cummings and Garland stood condemned covered a wider range and involved some conduct which might be vague and uncertain. But those differences, seized on here in hostility to the constitutional provisions, are wholly irrelevant. Deprivation of a man's means of livelihood by reason of past conduct, not subject to this penalty when committed, is punishment whether he is a professional man, a day laborer who works for private industry, or a government employee. The deprivation is nonetheless unconstitutional whether it be for one single past act or a series of past acts. The degree of particularity with which the past act is defined is not the criterion. We are not dealing here with the problem of vagueness in criminal statutes. No amount of certainty would have cured the laws in the Cummings and Garland cases. They were stricken down because of the mode in which punishment was inflicted.
Petitioners were disqualified from office not for what they are today, not because of any program they currently espouse ( cf. Gerende v. Board of Supervisors, 341 U. S. 56), not because of standards related to fitness for the office (cf. Dent v. West Virginia, 129 U.S. 114; Hawker v. New York, 170 U. S. 189), but for what they once
DouGLAS, J., dissenting. 341 u. s.
advocated. They are deprived of their livelihood by legislative act, not by judicial processes. We put the case in the aspect most invidious to petitioners. Whether they actually advocated the violent overthrow of Government does not appear. But here, as in the Cummings case, the vice is in the presumption of guilt which can only be removed by the expurgatory oath. That punishment, albeit conditional, violates here as it did in the Cummings case the constitutional prohibition against bills of attainder. Whether the ordinance also amounts to an ex post facto law is a question we do not reach.
LAND ET AL. v. DOLLAR ET AL.*
Decided June 4, 1951.
In these related proceedings, this Court ( 1) grants certiorari in Nos. 697 and 702; (2) denies a motion to vacate an order staying the Court of Appeals' contempt order; (3) continues on the docket a motion for reconsideration of the denial of certiorari in No. 353; and (4) rejects the suggestion that the Court defer adjournment and hear argument within a matter of weeks. Pp. 737-740.
Attorney General McGrath and Solicitor General Perlman for Land et al.
Arthur B. Dunne for petitioner in No. 702.
Herman Phleger, Gregory A. Harrison, Moses Lasky, Edmund L. Jones and Howard Boyd for Dollar et al.
PER CuRIAM. ( 1) Nos. 697 and 702 are before the Court on petitions for certiorari to review, first, an order of the District Court for the District of Columbia requiring that Charles Sawyer endorse certain stock certificates as "United States Maritime Commission, by Charles Sawyer, Secretary of Commerce," and, second, a Restraining Order issued by the Court of Appeals for the District of Columbia Circuit enjoining named petitioners from:
"proposing, seeking or advocating any step in any proceeding, whether in said suit entitled United States v. R. Stanley Dollar, et al., or in any other p. 738proceeding, inconsistent with strict compliance with and obedience to the orders heretofore entered by this Court in this cause.
*
No. 353, Land et al. v. Dollar et al., on motion for leave to file a motion for reconsideration of denial of certiorari; No. 697, Land et al. v. Dollar et al., and No. 702, In re Killion, on petitions for writs of certiorari to the United States Court of Appeals for the District of Columbia Circuit; No. -, Sawyer et al. v. Dollar et al., and No. -, In re Killion, on motion to vacate stay of contempt order.
"AND IT IS FURTHER ORDERED that said persons are and each of them is enjoined and restrained until further order of this Court from complying with, taking advantage of, or utilizing, or seeking to comply with, utilize or take advantage of said temporary injunction issued by the United States District Court for the Northern District of California, Southern Division, in said cause entitled United States v. R. Stanley Dollar, et al., or any order of similar tenor which may hereafter be entered by said court or any other court." The two orders are before the Court for the first time in Nos. 697 and 702. Certiorari is granted in these cases.
(2) Subsequent to the issuance of the above Restraining Order, the Court of Appeals for the District of Columbia Circuit found named petitioners to be in civil contempt of its prior decrees by reason of, inter alia, their activities in connection with obtaining the temporary injunction on behalf of the United States in its suit in the Northern District of California, referred to in the Restraining Order. The order of contempt has been stayed pending disposition of Nos. 697 and 702 as well as the forthcoming petitions for certiorari directed to the contempt order. Motion of respondents to vacate the stay is denied.
(3) No action is taken at this time on petitioners' motion for leave to file a motion for reconsideration of our denial of certiorari in No. 353. The motion is continued on the docket so that there may be no question as to this Court's control over No. 353 for whatever action may be deemed appropriate.
( 4) It has been suggested that this Court delay the normal ending of the October Term, 1950, and hear argument within a matter of weeks. No motion for advancement has been filed.
We agree that expeditious disposition of the important issues in this lengthy proceeding is highly desirable. But our desire for expedition must be weighed against the danger to orderly presentation of important issues inherent in hasty briefing and argument. And this is particularly so when it is suggested that we hear argument not only in Nos. 697 and 702 now before us, but also in the cases to come to us from the order of civil contempt in which petitions for certiorari are to be filed.
There is a further consideration militating against premature disposition of the issues presented. There is now pending in the United States District Court for the Northern District of California an action brought by the United States for adjudication of its claim of title in the same shares of stock as those involved in the instant cases. We have heretofore held that judgments entered in the instant cases would not be res judicata against the United States. Land v. Dollar, 330 U. S. 731, 736, 737, 739 (1947). Appeals have been taken from the temporary injunction issued in that suit on behalf of the United States and with which much of the present phase of this litigation is concerned. We are advised that on May 31, 1951, the Court of Appeals for the Ninth Circuit heard argument on a motion to stay the temporary injunction pending appeal from the order granting the temporary injunction and has taken that motion under advisement. On June 1, 1951, the District Court for the Northern District of California began its hearing on defendants' (respondents in this Court) motion to dismiss the complaint and for summary judgment.
Memorandum of FRANKFURTER, J. 341 U.S.
For the foregoing reasons, we do not accept the suggestion that hearing argument in a matter of weeks is compatible with the orderly administration of justice.
MR. JUSTICE BLACK and MR. JUSTICE CLARK took no part in the consideration or decision of these applications.
MR. JUSTICE FRANKFURTER does not join in this opinion.
Separate memorandum of MR. JUSTICE FRANKFURTER.
It is not practicable, as a rule, for reasons indicated in my memorandum in Maryland v. Baltimore Radio Show, 338 U. S. 912, to set forth the considerations that move the Court in granting or denying a petition for certiorari. And since an unexplained announcement of an individual vote on such action is too often apt to be equivocal, it has been my unbroken practice not to note my vote on the disposition of such petitions. However, the petition now before the Court is the latest stage in a long process. In different phases it has been here three times. Because our action may be misleading, unless viewed in its setting, a plain narrative of the course of this litigation in its bearing on this petition is, I believe, desirable.
1. What is ultimately in issue is the ownership of the Dollar Steamship Lines. As a result of transactions between the Lines and the United States Maritime Commission, which we need not here relate, 92% of the stock of the corporation was in 1945 listed in the name of the Maritime Commission and voted by the members of that body. On November 6 of that year, the former Dollar stockholders (hereafter called the Dollars) brought suit against the members of the Commission, alleging that the stock was unlawfully withheld and demanding its return. The action was brought in the District Court for the District of Columbia, and for four and one-half p. 741years wound its way through the Court of Appeals to this Court, back to the District Court, and once again to the Court of Appeals. 81 U. S. App. D. C. 28, 154 F. 2d 307; 330 U. S. 731; 82 F. Supp. 919; 87 U. S. App. D. C. 214, 184 F. 2d 245. At every stage, the Commissioners were represented by attorneys from the Department of Justice, who asserted as ground for dismissal that the action was a suit against the United States to which consent had not been given. Our decision, 330 U. S. 731, held that, if the allegations of the complaint were true, the action was not against the United States, but rather against the Commissioners in their individual capacities. The District Court decided on the merits that the facts were not as they had been alleged. 82 F. Supp. 919. But on July 17, 1950, the Court of Appeals reversed. It held that the stock of the corporation was unlawfully withheld by the members of the Commission, and that, since title to it had never vested in the United States, the suit was not against the sovereign. 87 U.S. App. D. C. 214, 184 F. 2d 245. We refused to review this decision. 340 U. S. 884. Later, we refused to reconsider our refusal. 340 U. S. 948.
2. The upshot of the litigation at this point was that the Dollars had obtained a final judgment that the members of the United States Maritime Commission were unlawfully withholding the stock of the corporation, and that, as against the Commissioners, the Dollars were entitled to it. To carry out the judgment, the District Court entered an order on mandate on December 11, 1950. That order stated in part that
"title to the shares in question is in the plaintiffs [Dollars], since they were never legally divested of the same, and the asserted title of all others arising out of the same transaction to the contrary [is] null and void ...." 97 F. Supp. 59.
...J
Memorandum of FRANKFURTER, .J. ;341 U.S.
3. The members of the Maritime Commission took an appeal from this order. They urged that it was too broad, in that it purported to bind, not only the individual members of the Commission, but also the United States. The Court of Appeals remanded the cause with instructions to enter a narrower order, the terms of which it prescribed. The substance of those terms is as follows:
" [ P] lain tiffs [Dollars] are entitled to possession of the shares as against defendants, and the defend-an ts are ordered and directed to deliver forthwith to the plain tiffs the said shares. The possession to which plaintiffs are entitled is an effective possession of the shares. In so far as such right requires action on the part of defendants in addition to physical delivery of the certificates, such action is hereby directed to be taken. Plaintiffs are entitled under this judgment to all rights belonging to possessors of the shares." 88 U. S. App. D. C. -, -, 188 F. 2d 629, 631.
In further explanation of its order the Court stated: "The District Court is directed to enforce obedience to its order, as herein modified, whether effective process is against the present named defendants or is against another official, or other officials, against whom the order might be lawfully enforced if he or they were a party or parties to the suit.
"If the Secretary of Commerce now has custody or possession of the shares, he obviously acquired such custody or possession since the beginning of this action, indeed since the order of June 11, 1947 [prohibiting transfer of the stock pendente lite]. Obedience to the order about to be entered pursuant to this opinion is, therefore, enforceable against him, and he is liable under Rule 71, supra, to the same p. 743737 Memorandum of FRANKFURTER, .J.
process for enforcing obedience to that order as if he were a party." 88 U. S. App. D. C. -, -, 188 F. 2d 629, 632.
4. We were asked to grant certiorari to review this order for enforcement. On March 12, 1951, we refused. 340 U. S. 948. It was at this point that we refused to reconsider our refusal to review the decision on the merits.
5. Accordingly, the case went back to the District Court. That court entered two orders on March 16. The first was in the terms prescribed by the Court of Appeals. The second was designed to enforce the judgment against the Secretary of Commerce, who, under a Presidential Reorganization Plan, had succeeded the Maritime Commission as custodian of the stock shortly before the Court of Appeals entered its decision on the merits. This order directed the Secretary to endorse the stock certificates in his possession in blank, by writing on them the words, "United States Maritime Commission, by Charles Sawyer, Secretary of Commerce." It required further that he deliver the stock to a representative of the Dollars, and that he instruct the corporation to make the transfers of record. In the event that the Secretary failed to endorse the stock before delivery or to issue the instructions prior to March 17, the Clerk of the District Court was directed to perform these acts in his place. 97 F. Supp. 60.
6. Meanwhile, a new proceeding got under way. On March 12, the day we denied certiorari to the decision of the Court of Appeals modifying the order on mandate, the Government filed a complaint in the District Court for the Northern District of California, Southern Division. In this action, the United States was named as plaintiff, and sought relief by injunction, declaratory judgment, and damages against the Dollar shareholders, the corporation, and the transfer agents responsible for the stock. The claim urged was substantially the same as that which Government counsel for members of the Maritime Com-
940226 0-51--52
Memorandum of FRANKFURTER, J. 341 u. s.
mission had unsuccessfully advanced in the litigation in the District of Columbia which culminated in the judgment against the individual defendants.
7. On March 19, the Government moved for a preliminary injunction in this California litigation. It requested that the Dollars be restrained from "exercising or attempting to exercise any rights or privileges as the owners" of the stock, from making demands upon the corporation that new certificates be issued in their name, and from transferring the stock certificates in their possession. The Government supported its motion by an affidavit of the present Chairman of the Federal Maritime Board. On the basis of a report of the Maritime Commission to the Congress on April 10, 1939, which referred to the Dollar management as "shockingly incompetent" and charged it with drawing excessive salaries from the corporation and with "[f]ailure to maintain adequate service from the West Coast t-0 the Orient," the Chairman stated that "[s] hould inefficient management replace the existing management" of the corporation, "grave danger exists that this important unit of the American Merchant Marine may deteriorate as it did before when under the control of plaintiffs in the case of R. Stanley Dollar et al. v. Emory S. Land et al." On April 6 the District Judge announced that he would issue a temporary restraining order. See 97 F. Supp. 50.
8. That order, dated April 11, is in pertinent part as follows:
"Now, therefore, it is hereby ordered by this Court that, in order to preserve the status quo pending the determination by this Court as to whether plaintiff on the one hand, or the [Dollars] ... on the other hand, are the lawful owners of said stock, the [Dollars] ... be and they hereby are, enjoined pending the entry official judgment in this action, from p. 745exercising or attempting to exercise any rights or privileges as owners of stock certificates ... , and from making any demands upon [the corporation or its agents] ... that new certificates representing said shares of stock ... be issued to [ the Dollars] ... , or that said [Dollars] be registered as the owners of the shares of stock represented by said certificates . . . , and from pledging, selling, transferring, or otherwise disposing of said stock certificates and the shares of stock represented thereby, and
"It is further ordered by this Court that [ the corporation and its agents] ... be, and they hereby are, restrained, pending the entry of final judgment in this action, from issuing any new certificates of stock of [ the corporation] representing said shares to [ the Dollars] . . . , from registering or recording [ the Dollars] . . . as owners of any of the shares of stock . . . , and from in any way recognizing said [Dollars] ... , as the lawful owners of said shares of stock or said certificates."
9. While these proceedings were taking place in California, appeals were taken to the Court of Appeals for the District of Columbia Circuit from the two orders entered by the District Court for the District of Columbia on March 16. The Secretary of Commerce and the members of the Maritime Commission urged as grounds for reversal that the lower court had misconstrued the mandate of the Court of Appeals, and had jeopardized the United States' claim of title by giving the Dollars power to transfer the stock to a bona fide purchaser for value. They did not assert as grounds for reversing the orders that the Dollars were likely so to mismanage the corpora ti on that assets to which the United States might ultimately be entitled would be wasted. On April 4 the
_j
Memorandum of FRANKFURTER, J. 341 u. s.
Court dismissed the appeals, without opinion. At the same time it took under advisement a motion to impose sanctions on the representatives of the Government.
10. The Court of Appeals acted on the motion to impose sanctions by orders dated April 10, for reasons indicated in a statement read in open court on April 6 and an opinion filed on April 11, 1951. 88 U. S. App. D. C. -, 190 F. 2d 366.
(a) It issued an order requiring the Secretary of Commerce, the Solicitor General, and other officials of the Department of Justice and of the corporation to show cause why they should not be held in contempt for disobedience to the orders of the courts of the District of Columbia. It based this order in part on allegations that the respondents "refused to endorse the certificates and refused to instruct the transfer agent to transfer the shares" as directed by the Court. Instead, respondents "executed proxies in their own names after the decree of this court was known to them," and "warned, in writing, the transfer agent of the corporation not to transfer the shares of stock." In part, the order was based on the allegation that respondents "sought and obtained from the District Court in Northern California an injunction against the Dollar interests, restraining them from attempting to secure compliance with the decree of this court." 88 U. S. App. D. C. at -, 190 F. 2d at 374. The proceedings to which this order has led are not before us on this petition.
(b) The Court of Appeals issued a restraining order also directed to the Secretary of Commerce, the Solicitor General, and officers of the Department of Justice and the corporation. It recited that these respondents "caused to be instituted" the California suit, and that "in said action said respondents have sought in the name of the United States relief which is contrary to, inconsistent p. 747with, and in nullification of this Court's decisions and orders" in the case. It stated at the hearing on the order that it was not deciding "whether the United States might seek ancillary injunctive relief in any other respect; that is, in any respect save only the defeat and nullification of a judgment already finally entered by a court of competent jurisdiction." It ordered that the respondents, their agents, attorneys, and all persons in active concert with any of them
"be and they hereby are enjoined and restrained until further order of this Court from proposing, seeking or advocating any step in any proceeding, whether in said suit entitled United States v. R. Stanley Dollar, et al., or in any other proceeding, inconsistent with strict compliance with and obedience to the orders heretofore entered by this Court in this cause.
"AND IT IS FURTHER ORDERED that said persons are and each of them is enjoined and restrained until further order of this Court from complying with, taking advantage of, or utilizing, or seeking to comply with, utilize or take advantage of said temporary injunction issued by the United States District Court for the Northern District of California, Southern Division, in said cause entitled United States v. R. Stanley Dollar, et al., or any order of similar tenor which may hereafter be entered by said court or any other court."
We have before us for review on this petition (1) the order of the Court of Appeals for the District of Columbia Circuit dismissing appeals from the orders entered by the District Court on March 16 directing that the stock be delivered to the Dollars; (2) the restraining order issued by the Court of Appeals for the District of Columbia Circuit on April 10.
Three other matters concerning this litigation are also now before the Court. They are referred to in a per curiam opinion. This memorandum does not address itself to them.
By MR. JUSTICE JACKSON. Respondents ask the full Court to vacate a stay of proceedings granted by THE CHIEF JUSTICE. I regret that I cannot acquiesce in summary disposition of the motion, for I think the circumstances require the Court to set it down for prompt argument and act only after hearing both sides.
This Court examined the decision of the Court of Appeals that the Dollar interests were entitled to the stock in question and decided that it did not merit further review. 87 U. S. App. D. C. 214, 184 F. 2d 245. Certiorari denied, 340 U. S. 884. The courts below properly understood that we then regarded that litigation as ended and the District Court entered its mandate. When complete compliance was withheld, the mandate was modified to order officials to deliver up "effective possession" of the stock. Certiorari was sought from this enforcement order and we were also again asked to review the merits. We denied both. 340 U. S. 948. To date, "effective possession" has not been delivered.
We may have been right or we may have been wrong in these repeated denials of review. But what the Court of Appeals has now done is try to effectuate a judgment that we, by refusal to review, in effect have confirmed.
Denial by the full Court of this motion fixes it as the Court's policy to suspend enforcement indefinitely, certainly so long as any phase of this matter is pending here. Successive stays will issue as of course until we decide this and perhaps also the case recently commenced in California. No one knows for how long this will p. 749continue. My prediction would be in terms of years rather than months.
Certainly both the appearance and substance of justice require that the parties be heard before the Court denies respondents, for an indefinite period, the benefits of the judgment they have won. We should not overlook the fact that management of this shipping concern is kept out of the hands of those whom years of litigation have adjudged to be its owners, and no protection by bond, condition of the order, or otherwise is provided for them during such time as it is kept in the hands adjudged to have it illegally.
This Court, now asked to vacate the stay order, denies the motion without hearing either of the parties. This matter has become one of considerable delicacy and I should not, in effect, approve an indefinite stay of proceedings without hearing all the argument and information that either party can offer. I do not think denial without hearing is prudent judicial action. No legitimate interest could suffer from a hearing and we would surely be better informed as a result of it.
Even if the parties themselves are not strictly entitled to or do not want to argue this motion, I should require them to do so, for hearings are more important here for the benefit of the Court, as a protection against unwise decision, than for benefit of the parties. It is the Court that is now on trial. When the shoe of contempt was on the other foot, we strongly supported the Government's demand for complete submission to court decrees, even before they were sustained by this Court and though their validity was reasonably in doubt. On this basis a heavy fine was levied against the United Mine Workers. United States v. United Mine Workers, 330 U. S. 258. See also McComb v. Jacksonville Paper Co., 336 U.S. 187.
The spectacle of this Court stalling the enforcement efforts of lower courts while there is outstanding a p. 750judgment that some of the Nation's high officials are guilty of contempt of court is not wholesome. The evil influence of such an example will be increased by delay. This Court should exercise utmost care lest it appear to be indifferent to a claim of official disobedience.
Moreover, we owe something in this matter to the Court of Appeals. That court held several hearings, considered every phase of this case in careful and exhaustive opinions, and made detailed findings of fact. It embarked on this effort at enforcement only after this Court had refused to review the basic orders. They were clearly justified in believing that we expected the order to be enforced. Surely we do not want to confirm Mr. Dooley's observation to the effect that an appeal is an occasion for one court to show its contempt for another.
Being outvoted as to the stay, however, I think it is owing to the Court itself, to the courts below, and to both litigants, to hear and decide the controversial orders without delay. Any denial of this motion or continuance of the stay should be conditioned upon a shortening of the time of all parties and an argument of the cases on the merits within two weeks, deferring the Court's adjournment until the controversy is finally cleared up. If the Court of Appeals is wrong, we should promptly vindicate the officials involved. If that court is right, we should not waver in upholding its hand.
I withhold my assent from the per curiam opinion of today.