U.S. Supreme Court United States v. Harris, 106
U.S. 629 (1883) United States v.
Harris Decided January 22,
1883 106
U.S. 629 ON CERTIFICATE OF DIVISION BETWEEN
JUDGES OF CIRCUIT COURT OF UNITED STATES FOR THE WESTERN
DISTRICT OF TENNESSEE Syllabus 1. The omission to state, in the certificate of division of
opinion between the judges of the circuit court in a criminal
proceeding, that the point of difference is certified "upon the
request of either party or their counsel," is not fatal to the
jurisdiction of this Court where such request can be fairly
inferred.

															2. Section 5519 of the Revised Statutes ( post, p. 106 U. S. 632 )
is unconstitutional.

															At the November Term, 1876, of the Circuit Court of the United
States for the Western District of Tennessee, an indictment, based
on sec. 5519 of the Revised Statutes, was returned by the grand
jury against one R. G. Harris and nineteen others. The indictment
contained four counts. The first count charged as follows:

															"That R. G. Harris [and nineteen others, naming them], yeomen,
of the County of Crockett, in the State of Tennessee, and all late
of the county and district aforesaid, on, to-wit, the fourteenth
day of August, in the year of our Lord one thousand eight hundred
and seventy-six, in the County of Crockett, in said state and
district, and within the jurisdiction of this Court, unlawfully,
with force and arms, did conspire together with certain other
persons whose names are to the grand jurors aforesaid unknown, then
and there, for the purpose of Page 106 U. S. 630 depriving Robert R. Smith, William J. Overton, George W. Wells,
Jr., and P. M. Wells, then and there being citizens of the United
States and of said state, of the equal protection of the laws, in
this, to-wit, that therefore, to-wit, on the day and year
aforesaid, in said county, the said Robert R. Smith, William J.
Overton, George W. Wells, Jr., and P. M. Wells, having been charged
with the commission of certain criminal offenses, the nature of
which said criminal offenses being to the grand jurors aforesaid
unknown, and having upon such charges then and there been duly
arrested by the lawful and constituted authorities of said state,
to-wit, by one William A. Tucker, the said William A. Tucker then
and there being a deputy sheriff of said county, and then and there
acting as such, and having been so arrested as aforesaid, and being
then and there so under arrest and in the custody of said deputy
sheriff as aforesaid, they, the said Robert R. Smith, William J.
Overton, George W. Wells, Jr., and P. M. Wells, were there and then
by the laws of said state entitled to the due and equal protection
of the laws thereof, and were then and there entitled under the
said laws to have their persons protected from violence when so
then and there under arrest as aforesaid. And the grand jurors
aforesaid, upon their oaths aforesaid, do further present that the
said R. G. Harris, (and 19 others, naming them) with certain other
persons whose names are to the said grand jurors unknown, did then
and there, with force and arms, unlawfully conspire together as
aforesaid then and there for the purpose of depriving them, the
said Robert R. Smith, William J. Overton, George W. Wells, Jr., and
P. M. Wells, of their rights to the due and equal protection of the
laws of said state, and of their rights to be protected in their
persons from violence while so then and there under arrest as
aforesaid, and while so then and there in the custody of the said
deputy sheriff, and did then and there deprive them, the said
Robert R. Smith, William J. Overton, George W. Wells, Jr., and P.
M. Wells, of such rights and protection, and of the due and equal
protection of the laws of the said state, by then and there, while
so under arrest as aforesaid, and while so then and there in the
custody of the said deputy sheriff as aforesaid, beating, bruising,
wounding, Page 106 U. S. 631 and otherwise ill treating them, the said Robert R. Smith,
William J. Overton, George W. Wells, Jr., and P. M. Wells, contrary
to the form of the statute in such case made and provided, and
against the peace and dignity of the United States."

															The second count charged that the defendants, with force and
arms, unlawfully did conspire together for the purpose of
preventing and hindering the constituted authorities of the State
of Tennessee, to-wit, the said William A. Tucker, deputy sheriff of
said county, from giving and securing to the said Robert R. Smith
and others, naming them, the due and equal protection of the laws
of said state, in this, to-wit, that at and before the entering
into said conspiracy, the said Robert R. Smith and others, naming
them, were held in the custody of said deputy sheriff by virtue of
certain warrants duly issued against them, to answer certain
criminal charges, and it thereby became and was the duty of said
deputy sheriff to safely keep in his custody the said Robert R.
Smith and others while so under arrest, and then and there give and
secure to them the equal protection of the laws of the State of
Tennessee, and that the defendants did then and there conspire
together for the purpose of preventing and hindering the said
deputy sheriff from then and there safely keeping, while under
arrest and in his custody, the said Robert R. Smith and others, and
giving and securing to them the equal protection of the laws of
said state.

															The third count was identical with the second, except that the
conspiracy was charged to have been for the purpose of hindering
and preventing said William A. Tucker, deputy sheriff, from giving
and securing to Robert R. Smith alone the due and equal protection
of the laws of the state.

															The fourth count charged that the defendants did conspire
together for the purpose of depriving said P. M. Wells, who was
then and there a citizen of the United States and the State of
Tennessee, of the equal protection of the laws, in this, to-wit,
said Wells having been charged with an offense against the laws of
said state, was duly arrested by said Tucker, deputy sheriff, and
so being under arrest was entitled to the due and equal protection
of said laws, and to have his Page 106 U. S. 632 person protected from violence while so under arrest, and the
said defendants did then and there unlawfully conspire together for
the purpose of depriving said Wells of his right to the equal
protection of the laws, and of his right to be protected in person
from violence while so under arrest, and

															"did then and there deprive him of such rights and protection,
and of the due and equal protection of the laws of the State of
Tennessee, by then and there, and while he, the said P. M. Wells,
was so then and there under arrest as aforesaid, unlawfully
beating, bruising, wounding, and killing him, the said P. M. Wells,
contrary to the form of the statute in such case made and
provided,"

															&c.

															The defendants demurred to the indictment on several grounds,
among them the following:

															"1. Because the offenses created by section 5519 of the Revised
Statutes of the United States, and upon which section the aforesaid
four counts are based, are not constitutionally within the
jurisdiction of the courts of the United States, and because the
matters and things therein referred to are judicially cognizable by
state tribunals only, and legislative action thereon is among the
rights reserved to the several states and inhibited to Congress by
the Constitution of the United States,"

															and

															"2. Because the said section 5519 of the Revised Statutes of the
United States, insofar as it creates Page 106 U. S. 633 offenses and imposes penalties, is in violation of the
Constitution of the United States and an infringement of the rights
of the several states and the people thereof."

															The case was heard in the circuit court on the demurrer to the
indictment, and, as the record states:

															"Came the district attorney on behalf of the United States, and
came also the defendants indicted herein, by their attorneys, when
this case came on to be heard before the Hon. John Baxter, Circuit
Judge, and the Hon. Connally F. Trigg, District Judge, presiding,
on the demurrer of the said defendants, filed herein on the fifth
day of February, A.D. 1878, to the indictment herein, and the said
judges being divided in opinion on the point of the
constitutionality of the section of the Revised Statutes of the
United States on which the said indictment is based, being section
No. 5519 thereof, . . . after argument, hereby direct the said
point . . . to be certified to the Supreme Court of the United
States for its decision thereon, and the same is accordingly
ordered. And it is further ordered by the court that this case be
continued until the decision of said Supreme Court in the
premises."

															Section 651 of the Revised Statutes, which authorizes
certificates of division of opinion, declares:

															"Whenever any question occurs on the trial or hearing of any
criminal proceeding before a circuit court upon which the judges
are divided in opinion, the point upon which they disagree shall,
during the same term, upon the request of either party or their
counsel, be stated under the direction of the judges, and certified
under the seal of the court to the Supreme Court at their next
session, but nothing herein contained shall prevent the cause from
proceeding if, in the opinion of the court, further proceedings can
be had with out prejudice to the merits."

															MR. JUSTICE WOODS delivered the opinion of the Court, and, after
making the foregoing statement, proceeded as follows:

															The certificate of division of opinion in this case does not Page 106 U. S. 634 expressly state that the point of difference between the judges
was certified "upon the request of either party or their counsel."
Neither party challenges the jurisdiction of this Court, but it has
occurred to us as a question, and we have considered it, whether
this omission in the certificate is fatal to our jurisdiction, and
we have reached the conclusion that it is not.

															It fairly appears from the certificate that the point upon which
the judges differed in opinion was stated, under their direction,
in the presence of the counsel of both parties, without objection
from either, and it is expressly stated that the cause was
continued until the decision of this Court upon the point of
difference between the judges could be rendered. Had no certificate
of division of opinion been made, the result must have been a
judgment against the indictment, although the difference of opinion
arose upon the demurrer of defendant, for no judgment could have
been given against the defendant upon the indictment if the judges
were not agreed as to the constitutionality of the law upon which
it was based. Hence it became the duty of the prosecuting officer,
and the interest of the government which he represented, to request
a certificate of division of opinion for the determination of the
question by this Court. The case is brought to this Court by the
counsel for the United States upon the point stated in the
certificate; the case is suspended until our decision upon the
point certified is made, and he asks us to decide the question upon
which the judges of the circuit court differed. These
circumstances, all of which appear of record, considered in
connection with the fact that the court made the certificate, raise
the legal presumption that a request for the certificate was duly
preferred. The record evidence of the fact of the request by
counsel for the United States is incontrovertible.

															It is suggested that under section 649 of the Revised Statutes,
which provides that a jury may be waived "whenever the parties or
their attorneys of record file with the clerk a stipulation in
writing waiving a jury," this Court has decided that the fact that
the stipulation was in writing and filed with the clerk must appear
of record in order to entitle the party to the review of the
rulings of the court in the progress of the trial Page 106 U. S. 635 provided by sec. 700, and therefore that in the present case,
the record should distinctly show the request. But § 649 expressly
requires that the waiver of the jury shall be in writing and shall
be filed with the clerk. The section which provides for a
certificate of division of opinion makes no such requirement in
relation to the request for a certificate.

															In one case, the jurisdictional fact is the filing of a certain
paper writing with the clerk; in the other, the making of a
request, which may be oral, to the court. In either case, when the
jurisdictional fact fairly appears by the record, our jurisdiction
attaches. So in this case, if the request may be fairly inferred
from such circumstances as we have mentioned, that is all that is
necessary to satisfy the statute. In Supervisors v.
Kennicott, 103 U. S. 554 ,
this Court held that when a stipulation in writing was filed with
the clerk, by which it was provided that the case might be
submitted to the court on an agreed statement of facts, but which
contained no express waiver of a jury, yet this amounted to a
waiver sufficient to meet the requirements of section 649. And
though the right of trial by jury is a constitutional one, yet this
Court has declared that when it simply appeared by the record that
a party was present by counsel and had gone to trial before the
court without objection or exception, a waiver of his right to a
jury trial would be presumed, and he would be held in this Court to
the legal consequences of such waiver. Kearney v.
Case , 12 Wall. 275.

															We are therefore of opinion that the request by counsel of the
United States for a certificate of division is sufficiently shown
by the record in this case, and that our jurisdiction is clear.

															We pass to the consideration of the merits of the case. Proper
respect for a coordinate branch of the government requires the
courts of the United States to give effect to the presumption that
Congress will pass no act not within its constitutional power. This
presumption should prevail unless the lack of constitutional
authority to pass an act in question is clearly demonstrated. While
conceding this, it must nevertheless be stated that the government
of the United States is one of delegated, limited, and enumerated
powers. Martin Page 106 U. S. 636 v. Hunter, 1 Wheat. 304; McCulloch
v. Maryland , 4 Wheat. 316; Gibbons v.
Ogden , 9 Wheat. 1. Therefore every valid act of
Congress must find in the Constitution some warrant for its
passage. This is apparent by reference to the following provisions
of the Constitution: section 1 of the first article declares that
all legislative powers granted by the Constitution shall be vested
in the Congress of the United States. Section 8 of the same article
enumerates the powers granted to the Congress and concludes the
enumeration with a grant of power

															"to make all laws which shall be necessary and proper to carry
into execution the foregoing powers and all other powers vested by
the Constitution in the government of the United States, or in any
department or officer thereof."

															Article X of the amendments to the Constitution declares
that

															"The powers not delegated to the United States by the
Constitution nor prohibited by it to the states are reserved to the
states respectively or to the people."

															Mr. Justice Story, in his Commentaries on the Constitution,
says:

															"Whenever, therefore, a question arises concerning the
constitutionality of a particular power, the first question is
whether the power be expressed in the Constitution. If it be, the
question is decided. If it be not expressed, the next inquiry must
be whether it is properly an incident to an express power and
necessary to its execution. If it be, then it may be exercised by
Congress. If not, Congress cannot exercise it."

															Sec. 1243, referring to Virginia Reports and Resolutions,
January, 1800, pp. 33-34; President Monroe's Exposition and Message
of May 4, 1822, p. 47; 1 Tuck.Black.Com.App. 287-288; 5 Marshall's
Wash.App. note 3; 1 Hamilton's Works 117, 121.

															The demurrer filed to the indictment in this case questions the
power of Congress to pass the law under which the indictment was
found. It is therefore necessary to search the Constitution to
ascertain whether or not the power is conferred.

															There are only four paragraphs in the Constitution which can in
the remotest degree have any reference to the question in hand.
These are Section 2 of Article IV of the original Constitution and
the Thirteenth, Fourteenth, and Fifteenth Page 106 U. S. 637 Amendments. It will be convenient to consider these in the
inverse of the order stated.

															It is clear that the Fifteenth amendment can have no
application. That amendment, as was said by this Court in the case
of United States v. Reese, 92 U. S.
214 ,

															"relates to the right of citizens of the United States to vote.
It does not confer the right of suffrage on anyone. It merely
invests citizens of the United States with the constitutional right
of exemption from discrimination in the enjoyment of the elective
franchise on account of race, color, or previous condition of
servitude." See also United States v. Cruikshank, 92 U. S.
542 . Section 5519 of the Revised Statutes has no
reference to this right. The right guaranteed by the Fifteenth
Amendment is protected by other legislation of Congress, namely by
sections 4 and 5 of the Act of May 31, 1870, c. 114, and now
embodied in sections 5506 and 5507, Revised Statutes.

															Section 5519, according to the theory of the prosecution and as
appears by its terms, was framed to protect from invasion by
private persons the equal privileges and immunities under the laws
of all persons and classes of persons. It requires no argument to
show that such a law cannot be founded on a clause of the
Constitution whose sole object is to protect from denial or
abridgment by the United States or states on account of race,
color, or previous condition of servitude the right of citizens of
the United States to vote.

															It is however strenuously insisted that the legislation under
consideration finds its warrant in the first and fifth sections of
the Fourteenth Amendment. The first section declares

															"All persons born or naturalized in the United States and
subject to the jurisdiction thereof are citizens of the United
States and of the state wherein they reside. No state shall make or
enforce any law which shall abridge the privileges or immunities of
citizens of the United States, nor shall any state deprive any
person of life, liberty, or property without due process of law,
nor deny to any person within its jurisdiction the equal protection
of the laws."

															The fifth section declares "The Congress shall have power to
enforce by appropriate legislation the provisions of this
amendment." Page 106 U. S. 638 It is perfectly clear from the language of the first section
that its purpose also was to place a restraint upon the action of
the states. In the Slaughterhouse
Cases , 16 Wall. 36, it was held by the majority of
the Court, speaking through MR. JUSTICE MILLER, that the object of
the second clause of the first section of the Fourteenth Amendment
was to protect from the hostile legislation of the states the
privileges and immunities of citizens of the United States, and
this was conceded by MR. JUSTICE FIELD, who expressed the views of
the dissenting Justices in that case. In the same case the Court,
referring to the Fourteenth Amendment, said that

															"if the states do not conform their laws to its requirements,
then by the fifth section of the article of amendment Congress was
authorized to enforce it by suitable legislation."

															The purpose and effect of the two sections of the Fourteenth
Amendment above quoted were clearly defined by MR. JUSTICE BRADLEY
in the case of United States v. Cruikshank, 1 Woods 316,
as follows:

															"It is a guarantee of protection against the acts of the state
government itself. It is a guarantee against the exertion of
arbitrary and tyrannical power on the part of the government and
legislature of the state, not a guarantee against the commission of
individual offenses, and the power of Congress, whether express or
implied, to legislate for the enforcement of such a guarantee does
not extend to the passage of laws for the suppression of crime
within the states. The enforcement of the guarantee does not
require or authorize Congress to perform 'the duty that the
guarantee itself supposes it to be the duty of the state to
perform, and which it requires the state to perform.'"

															When the case of United States v. Cruikshank came to
this Court, the same view was taken here. The Chief Justice,
delivering the opinion of the Court in that case, said:

															"The Fourteenth Amendment prohibits a state from depriving any
person of life, liberty, or property without due process of law or
from denying to any person the equal protection of the laws, but
this provision does not add anything to the rights of one citizen
as against another. It simply furnishes an additional guarantee
against any encroachment by the states upon the fundamental rights
which belong to every citizen as a Page 106 U. S. 639 member of society. The duty of protecting all its citizens in
the enjoyment of an equality of rights was originally assumed by
the states, and it remains there. The only obligation resting upon
the United States is to see that the states do not deny the right.
This the amendment guarantees, and no more. The power of the
national government is limited to this guarantee."

															92 U.S. 92 U. S. 542 .

															So, in Virginia v. Rives, 100 U.
S. 313 , it was declared by this Court, speaking through
Mr. Justice Strong, that "these provisions of the Fourteenth
Amendment have reference to state action exclusively, and not to
any action of private individuals."

															These authorities show conclusively that the legislation under
consideration finds no warrant for its enactment in the Fourteenth
Amendment.

															The language of the amendment does not leave this subject in
doubt. When the state has been guilty of no violation of its
provisions; when it has not made or enforced any law abridging the
privileges or immunities of citizens of the United States; when no
one of its departments has deprived any person of life, liberty, or
property without due process of law, or denied to any person within
its jurisdiction the equal protection of the laws; when, on the
contrary, the laws of the state, as enacted by its legislative and
construed by its judicial and administered by its executive
departments recognize and protect the rights of all persons, the
amendment imposes no duty and confers no power upon Congress.

															Section 5519 of the Revised Statutes is not limited to take
effect only in case the state shall abridge the privileges or
immunities of citizens of the United States or deprive any person
of life, liberty, or property without due process of law or deny to
any person the equal protection of the laws. It applies no matter
how well the state may have performed its duty. Under it, private
persons are liable to punishment for conspiring to deprive anyone
of the equal protection of the laws enacted by the state.

															In the indictment in this case, for instance, which would be a
good indictment under the law if the law itself were valid, there
is no intimation that the State of Tennessee has passed Page 106 U. S. 640 any law or done any act forbidden by the Fourteenth Amendment.
On the contrary, the gravamen of the charge against the accused is
that they conspired to deprive certain citizens of the United
States and of the State of Tennessee of the equal protection
accorded them by the laws of Tennessee.

															As, therefore, the section of the law under consideration is
directed exclusively against the action of private persons, without
reference to the laws of the states or their administration by the
officers of the state, we are clear in the opinion that it is not
warranted by any clause in the Fourteenth Amendment to the
Constitution.

															We are next to consider whether the Thirteenth Amendment to the
Constitution furnishes authority for the enactment of the law under
review. This amendment declares that

															"Neither slavery nor involuntary servitude, except as a
punishment of crime whereof the party shall have been duly
convicted, shall exist within the United States or any place
subject to their jurisdiction. . . . Congress shall have power to
enforce this article by appropriate legislation."

															It is clear that this amendment, besides abolishing forever
slavery and involuntary servitude within the United States, gives
power to Congress to protect all persons within the jurisdiction of
the United States from being in any way subjected to slavery or
involuntary servitude except as a punishment for crime, and in the
enjoyment of that freedom which it was the object of the amendment
to secure. Mr. Justice Swayne, in United States v. Rhodes, 1 Abb. (U.S.) 28; MR. JUSTICE BRADLEY, in United States v.
Cruikshank, 1 Woods 308.

															Congress has, by virtue of this amendment, declared in sec. 1 of
the Act of April 9, 1866, c. 31, that all persons within the
jurisdiction of the United States shall have the same right in
every state and territory to make and enforce contracts, to sue, be
parties, give evidence, and to the full and equal benefit of all
laws and proceedings for the security of persons and property as is
enjoyed by white citizens, and shall be subject to like punishment,
pains, penalties, taxes, licenses, and exactions of every kind, and
to none other.

															But the question with which we have to deal is does the Page 106 U. S. 641 Thirteenth Amendment warrant the enactment of sec. 5519 of the
Revised Statutes. We are of opinion that it does not. Our
conclusion is based on the fact that the provisions of that section
are broader than the Thirteenth Amendment would justify. Under that
section, it would be an offense for two or more white persons to
conspire, etc., for the purpose of depriving another white person
of the equal protection of the laws. It would be an offense for two
or more colored persons, enfranchised slaves, to conspire with the
same purpose against a white citizen or against another colored
citizen who had never been a slave. Even if the amendment is held
to be directed against the action of private individuals as well as
against the action of the states and United States, the law under
consideration covers cases both within and without the provisions
of the amendment. It covers any conspiracy between two free white
men against another free white man to deprive the latter of any
right accorded him by the laws of the state or of the United
States. A law under which two or more free white private citizens
could be punished for conspiring or going in disguise for the
purpose of depriving another free white citizen of a right accorded
by the law of the state to all classes of persons -- as, for
instance, the right to make a contract, bring a suit, or give
evidence -- clearly cannot be authorized by the amendment which
simply prohibits slavery and involuntary servitude.

															Those provisions of the law, which are broader than is warranted
by the article of the Constitution by which they are supposed to be
authorized, cannot be sustained.

															Upon this question, the case of United States v. Reese, 92 U. S. 214 , is in
point. In that case, this Court had under consideration the
constitutionality of the third and fourth sections of the Act of
May 31, 1870, c. 114, and now constituting sections 2007, 2008, and
5506 of the Revised Statutes. The third section of the act made it
an offense for any judge, inspector, or other officer of election
whose duty it was, under the circumstances therein stated, to
receive and count the vote of any citizen to wrongfully refuse to
receive and count the same, and the fourth section made it an
offense for any person by force, bribery, or other unlawful means
to hinder or delay any Page 106 U. S. 642 citizen from doing any act required to be done to qualify him to
vote.

															The indictment in the case charged two inspectors of a municipal
election in the State of Kentucky with refusing to receive and
count at such election the vote of William Garner, a citizen of the
United States of African descent. It was contended by the
defendants that it was not within the constitutional power of
Congress to pass the section upon which the indictment was based.
The attempt was made by the counsel for the United States to
sustain the law as warranted by the Fifteenth Amendment to the
Constitution of the United States. But this Court held it not to be
appropriate legislation under that amendment. The ground of the
decision was that the sections referred to were broad enough not
only to punish those who hindered and delayed the enfranchised
colored citizen from voting on account of his race, color, or
previous condition of servitude, but also those who hindered or
delayed the free white citizen. The Court, speaking by the Chief
Justice, said:

															"It would certainly be dangerous if the legislature could set a
net large enough to catch all possible offenders, and leave it to
the courts to step inside and say who could be rightfully detained
and who should be set at large. This would to some extent
substitute the judicial for the legislative department of the
government. The courts enforce the legislative will when
ascertained, if within the constitutional grant of power. But if
Congress steps outside of its constitutional limitation and
attempts that which is beyond its reach, the courts are authorized
to, and, when called upon, must, annul its encroachment upon the
reserved rights of the states and the people."

															And the Court declared that it could not limit the statute so as
to bring it within the constitutional power of Congress, and
concluded:

															"We must therefore decide that Congress has not as yet provided
by appropriate legislation for the punishment of the offenses
charged in the indictment."

															This decision is in point, and, applying the principle
established by it, it is clear that the legislation now under
consideration cannot be sustained by reference to the Thirteenth
Amendment to the Constitution.

															There is another view which strengthens this conclusion. If Page 106 U. S. 643 Congress has constitutional authority under the Thirteenth
Amendment to punish conspiracy between two persons to do an
unlawful act, it can punish the act itself, whether done by one or
more persons. A private person cannot make constitutions or laws,
nor can he with authority construe them, nor can he administer or
execute them. The only way, therefore, in which one private person
can deprive another of the equal protection of the laws is by the
commission of some offense against the laws which protect the
rights of persons, as by theft, burglary, arson, libel, assault, or
murder. If, therefore, we hold that section 5519 is warranted by
the Thirteenth Amendment, we should by virtue of that amendment,
accord to Congress the power to punish every crime by which the
right of any person to life, property, or reputation is invaded.
Thus, under a provision of the Constitution which simply abolished
slavery and involuntary servitude, we should, with few exceptions,
invest Congress with power over the whole catalogue of crimes. A
construction of the amendment which leads to such a result is
clearly unsound.

															There is only other clause in the Constitution of the United
States which can in any degree be supposed to sustain the section
under consideration -- namely the second section of Article IV,
which declares that

															"The citizens of each state shall be entitled to all the
privileges and immunities of citizens of the several states."

															But this section, like the Fourteenth Amendment, is directed
against state action. Its object is to place the citizens of each
state upon the same footing with citizens of other states, and
inhibit discriminative legislation against them by other states. Paul v.
Virginia , 8 Wall. 168.

															Referring to the same provision of the Constitution, this Court
said in the Slaughterhouse Cases, ubi supra, that it

															"did not create those rights which it called privileges and
immunities of citizens of the states. It threw around them in that
clause no security for the citizen of the state in which they were
claimed or exercised. Nor did it profess to control the power of
the state governments over its own citizens. Its sole purpose was
to declare to the several states that whatever those rights, as you
grant or establish them to your Page 106 U. S. 644 own citizens, or as you limit or qualify or impose restrictions
on their exercise, the same, neither more nor less, shall be the
measure of the rights of citizens of other states within your
jurisdiction."

															It was never supposed that the section under consideration
conferred on Congress the power to enact a law which would punish a
private citizen for an invasion of the rights of his fellow citizen
conferred by the State of which they were both residents on all its
citizens alike.

															We have therefore been unable to find any constitutional
authority for the enactment of section 5519 of the Revised
Statutes. The decisions of this Court above referred to leave no
constitutional ground for the act to stand on.

															The point in reference to which the judges of the circuit court
were divided in opinion must therefore be decided against the constitutionality of the law.


U.S. Supreme Court NLRB v. Hearst Publications, Inc., 322
U.S. 111 (1944) Labor Board v. Hearst Publications,
Inc. No. 336 Argued February 8, 9,
1944 Decided April 24, 1944 322
U.S. 111 ast|>* 322
U.S. 111 CERTIORARI TO THE CIRCUIT COURT OF
APPEALS FOR THE NINTH CIRCUIT Syllabus 1. The meaning of the term "employee" in the National Labor
Relations Act is to be determined not exclusively by reference to
common law standards, local law, or legal classifications made for
other purposes, but with regard also to the history, context and
purposes Page 322 U. S. 112 of the Act and to the economic facts of the particular
relationship. Pp. 322 U. S. 120 , 322 U. S.
129 .

															2. The determination of the National Labor Relations Board that,
in the circumstances of the case, a person is an "employee" under
the National Labor Relations Act, may not be set aside on review if
it has warrant in the record and a reasonable basis in law. P. 322 U. S.
130 .

															3. The conclusion of the National Labor Relations Board that
"newsboys" distributing respondents' papers on the streets of the
city were employees under the National Labor Relations Act is
supported by the findings and the evidence, and has ample basis in
the law. P. 322 U. S.
131 .

															The Board found that the "newsboys" work continuously and
regularly, rely upon their earnings for the support of themselves
and their families, and have their total wages influenced in large
measure by the publishers (respondents), who dictate their buying
and selling prices, fix their markets and control their supply of
papers; that their hours of work and their efforts on the job are
supervised and to some extent prescribed by the publishers or the
publishers' agents; and that a substantial part of their sales
equipment and advertising materials is furnished by the publishers
with the intention that it be used for the publishers' benefit.

															4. The Board's designation of the collective bargaining units in
this case -- (1) full-time newsboys and "checkmen," engaged to sell
papers within the city, and excluding bootjackers, temporary,
casual, and part-time newsboys; and (2) newsboys selling at
established spots in the city, four or more hours per day, five or
more days per week, except temporary newsboys -- was within its
discretion, and is sustained. P. 322 U. S.
132 .

															(a) That the Board's selection of the collective bargaining
units emphasizes difference in tenure, rather than in function was,
on the record in this case, not an abuse of discretion. P. 322 U. S.
133 .

															(b) The Board's exclusion of suburban newsboys from the
collective bargaining units, on the ground that they were not
organized by the union, was, on the record in this case, not an
abuse of discretion. P. 322 U. S.
133 . Page 322 U. S. 113 136 F.2d 608 reversed.

															Certiorari, 320 U.S. 728, to review decrees denying enforcement
of orders of the National Labor Relations Board (39 N.L.R.B.
1245,1256) and setting aside the orders.

															MR. JUSTICE RUTLEDGE delivered the opinion of the Court.

															These cases arise from the refusal of respondents, publishers of
four Los Angeles daily newspapers, to bargain collectively with a
union representing newsboys who distribute their papers on the
streets of that city. Respondents' contention that they were not
required to bargain because the newsboys are not their "employees"
within the meaning of that term in the National Labor Relations
Act, 49 Stat. 450, 29 U.S.C. § 152, [ Footnote 1 ] presents the important question which we
granted certiorari [ Footnote 2 ]
to resolve. Page 322 U. S. 114 The proceedings before the National Labor Relations Board were
begun with the filing of four petitions for investigation and
certification [ Footnote 3 ] by
Los Angeles Newsboys Local Industrial Union No. 75. Hearings were
held in a consolidated proceeding, [ Footnote 4 ] after which the Board made findings of fact
and concluded that the regular full-time newsboys selling each
paper were employees within the Act and that questions affecting
commerce concerning the representation of employees had arisen. It
designated appropriate units and ordered elections. 28 N.L.R.B.
1006. [ Footnote 5 ] At these,
the union was selected as their representative by majorities of the
eligible newsboys. After the union was appropriately certified. 33
N.L.R.B. 941, 36 N.L.R.B. 285, the respondents refused to bargain
with it. Thereupon, proceedings under Section 10, 49 Stat. 453-455,
29 U.S.C. § 160, were instituted, a hearing [ Footnote 6 ] was held, and respondents were found
to have violated Section 8(1) and (5) of the Act, 49 Stat. 452,
453, 29 U.S.C. § 158(1), (5). They were ordered to cease and desist
from such violations and to bargain collectively with the union
upon request. 39 N.L.R.B. 1245, 1256.

															Upon respondents' petitions for review and the Board's petitions
for enforcement, the Circuit Court of Appeals, one judge
dissenting, set aside the Board's orders. Rejecting Page 322 U. S. 115 the Board's analysis, the court independently examined the
question whether the newsboys are employees within the Act, decided
that the statute imports common law standards to determine that
question, and held the newsboys are not employees. 136 F.2d
608.

															The findings of the Board disclose that the Los Angeles Times
and the Los Angeles Examiner, published daily and Sunday, [ Footnote 7 ] are morning papers. Each
publishes several editions which are distributed on the streets
during the evening before their dateline, between about 6:00 or
6:30 p.m. and 1:00 a.m., and other editions distributed during the
following morning until about 10:00 o'clock. The Los Angeles
Evening Herald and Express, published every day but Sunday, is an
evening paper, which has six editions on the presses between 9:00
a.m. and 5:30 p.m. [ Footnote 8 ]
The News, also published every day but Sunday, is a twenty-four
hour paper with ten editions. [ Footnote 9 ]

															The papers are distributed to the ultimate consumer through a
variety of channels, including independent dealers and newsstands
often attached to drug, grocery or confectionery stores, carriers
who make home deliveries, and newsboys who sell on the streets of
the city and its suburbs. Only the last of these are involved in
this case.

															The newsboys work under varying terms and conditions. They may
be "bootjackers," selling to the general public at places other
than established corners, or they may sell Page 322 U. S. 116 at fixed "spots." They may sell only casually or part-time, or
full-time; and they may be employed regularly and continuously or
only temporarily. The units which the Board determined to be
appropriate are composed of those who sell full-time at established
spots. Those vendors, misnamed boys, are generally mature men,
dependent upon the proceeds of their sales for their sustenance,
and frequently supporters of families. Working thus as news vendors
on a regular basis often for a number of years, they form a stable
group with relatively little turnover, in contrast to schoolboys
and others who sell as bootjackers, temporary and casual
distributors.

															Over-all circulation and distribution of the papers are under
the general supervision of circulation managers. But, for purposes
of street distribution, each paper has divided metropolitan Los
Angeles into geographic districts. Each district is under the
direct and close supervision of a district manager. His function in
the mechanics of distribution is to supply the newsboys in his
district with papers which he obtains from the publisher and to
turn over to the publisher the receipts which he collects from
their sales, either directly or with the assistance of "checkmen"
or "main spot" boys. [ Footnote
10 ] The latter, stationed at the important corners or "spots"
in the district, are newsboys who, among other things, receive
delivery of the papers, redistribute them to other newsboys
stationed at less important corners, and collect receipts from
their sales. [ Footnote 11 ]
For that service, which occupies a minor portion Page 322 U. S. 117 of their working day, the checkmen receive a small salary from
the publisher. [ Footnote 12 ]
The bulk of their day, however, they spend in hawking papers at
their "spots" like other full-time newsboys. A large part of the
appropriate units selected by the Board for the News and the Herald
are checkmen who, in that capacity, clearly are employees of those
papers.

															The newsboys' compensation consists in the difference between
the prices at which they sell the papers and the prices they pay
for them. The former are fixed by the publishers, and the latter
are fixed either by the publishers or, in the case of the News, by
the district manager. [ Footnote
13 ] In practice, the newsboys receive their papers on credit.
They pay for those sold either sometime during or after the close
of their selling day, returning for credit all unsold papers.
[ Footnote 14 ] Lost or
otherwise unreturned papers, however, must be paid for as though
sold. Not only is the "profit" per paper thus effectively fixed by
the publisher, but substantial control of the newsboys' total "take
home" can be effected through the ability to designate their sales
areas and the power to determine the number of papers allocated to
each. While, as a practical matter, this power is not exercised
fully, the newsboys' "right" to decide how many papers they will
take is also not absolute. In practice, the Board found, they
cannot determine the size of their established order without the
cooperation of the district manager. And often the number of papers
they must take is determined unilaterally by the district
managers.

															In addition to effectively fixing the compensation, respondents
in a variety of ways prescribe, if not the Page 322 U. S. 118 minutiae of daily activities, at least the broad terms and
conditions of work. This is accomplished largely through the
supervisory efforts of the district managers, who serve as the
nexus between the publishers and the newsboys. [ Footnote 15 ] The district managers assign
"spots" or corners to which the newsboys are expected to confine
their selling activities. [ Footnote 16 ] Transfers from one "spot" to another may be
ordered by the district manager for reasons of discipline or
efficiency or other cause. Transportation to the spots from the
newspaper building is offered by each of respondents. Hours of work
on the spots are determined not simply by the impersonal pressures
of the market, but to a real extent by explicit instructions from
the district managers. Adherence to the prescribed hours is
observed closely by the district managers or other supervisory
agents of the publishers. Sanctions, varying in severity Page 322 U. S. 119 from reprimand to dismissal, are visited on the tardy and the
delinquent. By similar supervisory controls, minimum standards of
diligence and good conduct while at work are sought to be enforced.
However wide may be the latitude for individual initiative beyond
those standards, district managers' instructions in what the
publishers apparently regard as helpful sales technique are
expected to be followed. Such varied items as the manner of
displaying the paper, of emphasizing current features and
headlines, and of placing advertising placards, or the advantages
of soliciting customers at specific stores or in the traffic lanes
are among the subjects of this instruction. Moreover, newsboys are
furnished with sales equipment, such as racks, boxes and change
aprons, and advertising placards by the publishers. In this pattern
of employment, the Board found that the newsboys are an integral
part of the publishers' distribution system and circulation
organization. And the record discloses that the newsboys and
checkmen feel they are employees of the papers, and respondents'
supervisory employees, if not respondents themselves, regard them
as such.

															In addition to questioning the sufficiency of the evidence to
sustain these findings, respondents point to a number of other
attributes characterizing their relationship with the newsboys,
[ Footnote 17 ] and urge that,
on the entire Page 322 U. S. 120 record, the latter cannot be considered their employees. They
base this conclusion on the argument that, by common law standards,
the extent of their control and direction of the newsboys' working
activities creates no more than an "independent contractor"
relationship, and that common law standards determine the
"employee" relationship under the Act. They further urge that the
Board's selection of a collective bargaining unit is neither
appropriate nor supported by substantial evidence. [ Footnote 18 ] I The principal question is whether the newsboys are "employees."
Because Congress did not explicitly define the term, respondents
say its meaning must be determined by reference to common law
standards. In their view, "common law standards" are those the
courts have applied in distinguishing between "employees" and
"independent contractors" when working out various problems
unrelated to the Wagner Act's purposes and provisions.

															The argument assumes that there is some simple, uniform and
easily applicable test which the courts have used, in dealing with
such problems, to determine whether persons doing work for others
fall in one class or the other. Unfortunately this is not true.
Only by a long and tortuous history was the simple formulation
worked out which has been stated most frequently as "the test" for
deciding whether one who hires another is responsible in tort for
his wrongdoing. [ Footnote
19 ] But this formula has been by no means Page 322 U. S. 121 exclusively controlling in the solution of other problems. And
its simplicity has been illusory because it is more largely
simplicity of formulation than of application. Few problems in the
law have given greater variety of application and conflict in
results than the cases arising in the borderland between what is
clearly an employer-employee relationship and what is clearly one
of independent entrepreneurial dealing. [ Footnote 20 ] This is true within the limited field of
determining vicarious liability in tort. It becomes more so when
the field is expanded to include all of the possible applications
of the distinction.

															It is hardly necessary to stress particular instances of these
variations or to emphasize that they have arisen principally,
first, in the struggle of the courts to work out common law
liabilities where the legislature has given no guides for judgment,
[ Footnote 21 ] more recently
also under statutes which have posed the same problem for solution
in the light of the enactment's particular terms and purposes.
[ Footnote 22 ] Page 322 U. S. 122 It is enough to point out that, with reference to an identical
problem, results may be contrary over a very considerable region of
doubt in applying the distinction, depending upon the state or
jurisdiction where the determination is made; [ Footnote 23 ] and that, within a single
jurisdiction, a person who, for instance, is held to be an
"independent contractor" for the purpose of imposing vicarious
liability in tort may be an "employee" for the purposes of
particular legislation, such as unemployment compensation. See,
e.g., Globe Grain & Milling Co. v. Industrial Comm'n, 98
Utah 36, 91 P.2d 512. In short, the assumed simplicity and
uniformity, resulting from application of "common law standards,"
does not exist.

															Mere reference to these possible variations as characterizing
the application of the Wagner Act in the treatment of persons
identically situated in the facts surrounding their employment and
in the influences tending to disrupt it would be enough to require
pause before accepting a thesis which would introduce them into its
administration. This would be true even if the statute itself had
indicated less clearly than it does the intent they should not
apply.

															Two possible consequences could follow. One would be to refer
the decision of who are employees to local state law. The
alternative would be to make it turn on a sort of pervading general
essence distilled from state law. Congress obviously did not intend
the former result. It Page 322 U. S. 123 would introduce variations into the statute's operation as wide
as the differences the forty-eight states and other local
jurisdictions make in applying the distinction for wholly different
purposes. Persons who might be "employees" in one state would be
"independent contractors" in another. They would be within or
without the statute's protection depending not on whether their
situation falls factually within the ambit Congress had in mind,
but upon the accidents of the location of their work and the
attitude of the particular local jurisdiction in casting doubtful
cases one way or the other. Persons working across state lines
might fall in one class or the other, possibly both, depending on
whether the Board and the courts would be required to give effect
to the law of one state or of the adjoining one, or to that of each
in relation to the portion of the work done within its borders.

															Both the terms and the purposes of the statute, as well as the
legislative history, show that Congress had in mind no such
patchwork plan for securing freedom of employees' organization and
of collective bargaining. The Wagner Act is federal legislation,
administered by a national agency, intended to solve a national
problem on a national scale. Cf. e.g., Sen.Rep. No. 573,
74th Cong., 1st Sess. 2-4. It is an Act, therefore, in reference to
which it is not only proper, but necessary for us to assume, "in
the absence of a plain indication to the contrary, that Congress .
. . is not making the application of the federal act dependent on
state law." Jerome v. United States, 318 U.
S. 101 , 318 U. S. 104 .
Nothing in the statute's background, history, terms or purposes
indicates its scope is to be limited by such varying local
conceptions, either statutory or judicial, or that it is to be
administered in accordance with whatever different standards the
respective states may see fit to adopt for the disposition of
unrelated, local problems. Consequently, so far as the meaning of
"employee" in this statute is concerned, "the federal law must
prevail no matter what name is given to the interest or Page 322 U. S. 124 right by state law." Morgan v. Commissioner, 309 U. S. 78 , 309 U. S. 81 ; cf. Labor Board v. Blount, 131 F.2d 585 (C.C.A.). II Whether, given the intended national uniformity, the term
"employee" includes such workers as these newsboys must be answered
primarily from the history, terms and purposes of the legislation.
The word "is not treated by Congress as a word of art having a
definite meaning. . . ." Rather "it takes color from its
surroundings . . . [in] the statute where it appears," United
States v. American Trucking Assns., Inc., 310 U.
S. 534 , 310 U. S. 545 ,
and derives meaning from the context of that statute, which "must
be read in the light of the mischief to be corrected and the end to
be attained." South Chicago Coal & Dock Co. v.
Bassett, 309 U. S. 251 , 309 U. S. 259 ; cf. New Negro Alliance v. Sanitary Grocery Co., 303 U. S. 552 ; Drivers' Union v. Lake Valley Farm Products, Inc., 311 U. S. 91 .

															Congress, on the one hand, was not thinking solely of the
immediate technical relation of employer and employee. It had in
mind at least some other persons than those standing in the
proximate legal relation of employee to the particular employer
involved in the labor dispute. [ Footnote 24 ] It cannot be taken, however, that the
purpose was to include all other persons who may perform service
for another, or was to ignore entirely legal classifications made
for other purposes. Congress had in mind a wider field than the
narrow technical legal relation of "master and servant," as the
common law had worked this out in all its variations, and at the
same time a narrower one than the entire area of rendering service
to others. The question comes down, therefore, to how much was
included of the intermediate Page 322 U. S. 125 region between what is clearly and unequivocally "employment,"
by any appropriate test, and what is as clearly entrepreneurial
enterprise, and not employment.

															It will not do, for deciding this question as one of uniform
national application, to import wholesale the traditional common
law conceptions or some distilled essence of their local variations
as exclusively controlling limitations upon the scope of the
statute's effectiveness. To do this would be merely to select some
of the local, hairline variations for nationwide application, and
thus to reject others for coverage under the Act. That result
hardly would be consistent with the statute's broad terms and
purposes.

															Congress was not seeking to solve the nationally harassing
problems with which the statute deals by solutions only partially
effective. It rather sought to find a broad solution, one that
would bring industrial peace by substituting, so far as its power
could reach, the rights of workers to self-organization and
collective bargaining for the industrial strife which prevails
where these rights are not effectively established. Yet only
partial solutions would be provided if large segments of workers
about whose technical legal position such local differences exist
should be wholly excluded from coverage by reason of such
differences. Yet that result could not be avoided if choice must be
made among them and controlled by them in deciding who are
"employees" within the Act's meaning. Enmeshed in such
distinctions, the administration of the statute soon might become
encumbered by the same sort of technical legal refinement as has
characterized the long evolution of the employee-independent
contractor dichotomy in the courts for other purposes. The
consequences would be ultimately to defeat, in part at least, the
achievement of the statute's objectives. Congress no more intended
to Page 322 U. S. 126 import this mass of technicality as a controlling "standard" for
uniform national application than to refer decision of the question
outright to the local law.

															The Act, as its first section states, was designed to avert the
"substantial obstructions to the free flow of commerce" which
result from "strikes and other forms of industrial strife or
unrest" by eliminating the causes of that unrest. It is premised on
explicit findings that strikes and industrial strife themselves
result in large measure from the refusal of employers to bargain
collectively and the inability of individual workers to bargain
successfully for improvements in their "wages, hours, or other
working conditions" with employers who are "organized in the
corporate or other forms of ownership association." Hence the
avowed and interrelated purposes of the Act are to encourage
collective bargaining and to remedy the individual worker's
inequality of bargaining power by

															"protecting the exercise . . . of full freedom of association,
self-organization, and designation of representatives of their own
choosing, for the purpose of negotiating the terms and conditions
of their employment or other mutual aid or protection."

															49 Stat. 449, 450, 29 U.S.C. § 151.

															The mischief at which the Act is aimed and the remedies it
offers are not confined exclusively to "employees" within the
traditional legal distinctions separating them from "independent
contractors." Myriad forms of service relationship, with infinite
and subtle variations in the terms of employment, blanket the
nation's economy. Some are within this Act, others beyond its
coverage. Large numbers will fall clearly on one side or on the
other, by whatever test may be applied. But intermediate there will
be many the incidents of whose employment partake in part of the
one group, in part of the other, in varying proportions of weight.
And consequently the legal pendulum, for purposes of applying the
statute, may swing one way Page 322 U. S. 127 or the other, depending upon the weight of this balance and its
relation to the special purpose at hand.

															Unless the common law tests are to be imported and made
exclusively controlling, without regard to the statute's purposes,
it cannot be irrelevant that the particular workers in these cases
are subject, as a matter of economic fact, to the evils the statute
was designed to eradicate and that the remedies it affords are
appropriate for preventing them or curing their harmful effects in
the special situation. Interruption of commerce through strikes and
unrest may stem as well from labor disputes between some who, for
other purposes, are technically "independent contractors" and their
employers as from disputes between persons who, for those purposes,
are "employees" and their employers. Cf. Drivers' Union v. Lake
Valley Co., 311 U. S. 91 .
Inequality of bargaining power in controversies over wages, hours
and working conditions may as well characterize the status of the
one group as of the other. The former, when acting alone, may be as
"helpless in dealing with an employer," as "dependent . . . on his
daily wage" and as "unable to leave the employ and to resist
arbitrary and unfair treatment" as the latter. For each, "union . .
. [may be] essential to give . . . opportunity to deal on equality
with their employer." [ Footnote
25 ] And for each, collective bargaining may be appropriate and
effective for the "friendly adjustment of industrial disputes
arising out of differences as to wages, hours, or other working
conditions." [ Footnote 26 ]
49 Stat. 449. In Page 322 U. S. 128 short, when the particular situation of employment combines
these characteristics, so that the economic facts of the relation
make it more nearly one of employment than of independent business
enterprise with respect to the ends sought to be accomplished by
the legislation, those characteristics may outweigh technical legal
classification for purposes unrelated to the statute's objectives
and bring the relation within its protections.

															To eliminate the causes of labor disputes and industrial strife,
Congress thought it necessary to create a balance of forces in
certain types of economic relationships. These do not embrace
simply employment associations in which controversies could be
limited to disputes over proper "physical conduct in the
performance of the service." [ Footnote 27 ] On the contrary, Congress recognized those
economic relationships cannot be fitted neatly into the containers
designated "employee" and "employer" which an earlier law had
shaped for different purposes. Its Reports on the bill disclose
clearly the understanding that "employers and employees not in
proximate relationship may be drawn into common controversies by
economic forces," [ Footnote
28 ] and that the very disputes sought to be avoided might
involve Page 322 U. S. 129 "employees [who] are at times brought into an economic
relationship with employers who are not their employers." [ Footnote 29 ] In this light, the
broad language of the Act's definitions, which in terms reject
conventional limitations on such conceptions as "employee,"
"employer," and "labor dispute," [ Footnote 30 ] leaves no doubt that its applicability is to
be determined broadly, in doubtful situations, by underlying
economic facts, rather than technically and exclusively by
previously established legal classifications. Cf. Labor Board
v. Blount, supra. Hence, "technical concepts pertinent to an employer's legal
responsibility to third persons for the acts of his servants" have
been rejected in various applications of this Act both here
( International Association of Machinists v. Labor Board, 311 U. S. 72 , 311 U. S. 80 -81; H. J. Heinz Co. v. Labor Board, 311 U.
S. 514 , 311 U. S.
520 -521) [ Footnote
31 ] and in other federal courts ( Labor Board v. Condenser
Corp., 128 F.2d 67; North Whittier Heights Citrus Ass'n v.
Labor Board, 109 F.2d 76, 82; Labor Board v. Blount,
supra ). There is no good reason for invoking them to restrict
the scope of the term "employee" sought to be done in this case.
That term, like other provisions, must be understood with reference
to the purpose of the Act and the facts involved in the economic
relationship. [ Footnote 32 ]
"Where all the conditions of the relation require protection,
protection ought to be given." [ Footnote 33 ] Page 322 U. S. 130 It is not necessary in this case to make a completely definitive
limitation around the term "employee." That task has been assigned
primarily to the agency created by Congress to administer the Act.
Determination of "where all the conditions of the relation require
protection" involves inquiries for the Board charged with this
duty. Everyday experience in the administration of the statute
gives it familiarity with the circumstances and backgrounds of
employment relationships in various industries, with the abilities
and needs of the workers for self-organization and collective
action, and with the adaptability of collective bargaining for the
peaceful settlement of their disputes with their employers. The
experience thus acquired must be brought frequently to bear on the
question who is an employee under the Act. Resolving that question,
like determining whether unfair labor practices have been
committed, "belongs to the usual administrative routine" of the
Board. [ Footnote 34 ] Gray v. Powell, 314 U. S. 402 , 314 U. S. 411 . Cf. Labor Board v. Standard Oil Co., 138 F.2d 885, 887,
888.

															In making that body's determinations as to the facts in these
matters conclusive, if supported by evidence, Congress entrusted to
it primarily the decision whether the evidence establishes the
material facts. Hence, in reviewing the Board's ultimate
conclusions, it is not the court's function to substitute its own
inferences of fact for the Board's when the latter have support in
the record. Labor Board v. Nevada Consolidated Copper
Corp., 316 U. S. 105 ; cf. Walker v. Altmeyer, 137 F.2d 531. Undoubtedly
questions of statutory interpretation, especially when arising in
the first instance in judicial proceedings, are for Page 322 U. S. 131 the courts to resolve, giving appropriate weight to the judgment
of those whose special duty is to administer the questioned
statute. Norwegian Nitrogen Products Co. v. United States, 288 U. S. 294 ; United States v. American Trucking Associations, Inc., 310 U. S. 534 . But
where the question is one of specific application of a broad
statutory term in a proceeding in which the agency administering
the statute must determine it initially, the reviewing court's
function is limited. Like the commissioner's determination under
the Longshoremen's & Harbor Workers' Act, [ Footnote 35 ] that a man is not a "member of a
crew" ( South Chicago Coal & Dock Co. v. Bassett, 309 U. S. 251 ) or
that he was injured "in the course of his employment" ( Parker
v. Motor Boat Sales, Inc., 314 U. S. 244 ) and
the Federal Communications Commission's determination [ Footnote 36 ] that one company is
under the "control" of another ( Rochester Telephone Corp. v.
United States, 307 U. S. 125 ),
the Board's determination that specified persons are "employees"
under this Act is to be accepted if it has "warrant in the record"
and a reasonable basis in law.

															In this case, the Board found that the designated newsboys work
continuously and regularly, rely upon their earnings for the
support of themselves and their families, and have their total
wages influenced in large measure by the publishers who dictate
their buying and selling prices, fix their markets, and control
their supply of papers. Their hours of work and their efforts on
the job are supervised and to some extent prescribed by the
publishers or their agents. Much of their sales equipment and
advertising materials is furnished by the publishers with the
intention that it be used for the publisher's benefit. Stating
that

															"the primary consideration in the determination of the
applicability of the statutory definition is whether Page 322 U. S. 132 effectuation of the declared policy and purposes of the Act
comprehends securing to the individual the rights guaranteed and
protection afforded by the Act,"

															the Board concluded that the newsboys are employees. The record
sustains the Board's findings, and there is ample basis in the law
for its conclusion. III The Board's selection of the collective bargaining units also
must be upheld. The units chosen for the News and the Herald
consist of all full-time [ Footnote 37 ] newsboys and checkmen engaged to sell the
papers in Los Angeles. Bootjackers, temporary, casual and part-time
[ Footnote 38 ] newsboys are
excluded. The units designated for the Times and the Examiner
consist of newsboys selling at established spots [ Footnote 39 ] in Los Angeles [ Footnote 40 ] four or more hours per day
five or more days per week, except temporary newsboys. [ Footnote 41 ]

															The Board predicated its designations in part upon the finding
that the units included, in general, men who were responsible
workers, continuously and regularly employed as vendors, and
dependent upon their sales for their livelihood, Page 322 U. S. 133 while schoolboys and transient or casual workers were excluded.
The discretion which Congress vested in the Board to determine an
appropriate unit is hardly overstepped by the choice of a unit
based on a distinction so clearly consistent with the need for
responsible bargaining. That the Board's selection emphasizes
difference in tenure, rather than function, is, on this record
certainly, no abuse of discretion.

															Nor is there substance in the objection that the Board's
designations on the one hand fail to embrace all workers who in
fact come within the responsible or stable full-time category
generically stated, and, on the other hand, fail to exclude all who
in fact come within the schoolboy or more volatile part-time
category. The record does not suggest that the units designated, at
least so far as Los Angeles newsboys are concerned, do not
substantially effectuate the Board's theory or embrace a large
portion of those who would make up a stable bargaining group based
on responsible tenure and full-time work. In these matters, the
Board cannot be held to mathematical precision. If it chooses to
couch its orders in terms which for good reasons it regards
effective to accomplish its stated ends, peripheral or hypothetical
deviations will not defeat an otherwise appropriate order.

															Another objection urged by the Times, the Herald, and the
Examiner is to the Board's exclusion of suburban newsboys [ Footnote 42 ] from the units on the
ground they were not organized by the union. The Board found that,
although all vendors in metropolitan Los Angeles were eligible for
membership, the union had not been extended to the suburban groups
generally, and that no other labor organization was seeking to
represent respondents' employees. There is no suggestion either
that the union deliberately Page 322 U. S. 134 excluded suburban newsboys who sought admission or that suburban
newsboys have displayed any interest in collective bargaining or
self-organization.

															Wide variations in the forms of employee self-organization and
the complexities of modern industrial organization make difficult
the use of inflexible rules as the test of an appropriate unit.
Congress was informed of the need for flexibility in shaping the
unit to the particular case, [ Footnote 43 ] and accordingly gave the Board wide
discretion in the matter. Its choice of a unit is limited
specifically only by the requirement that it be an "employer unit,
craft unit, plant unit, or subdivision thereof," and that the
selection be made so as

															"to insure to employees the full benefit of their right to
self-organization and to collective bargaining, and otherwise to
effectuate the policies of this Act." Pittsburgh Plate Glass Co. v. Labor Board, 313 U.
S. 146 . The flexibility which Congress thus permitted
has characterized the Board's administration of the section, and
has led it to resort to a wide variety of factors in case-to-case
determination of the appropriate unit. [ Footnote 44 ] Among the considerations to which it has
given weight is the extent of organization of the union requesting
certification or collective bargaining. This is done on the
expressed theory that it is desirable in the determination of an
appropriate unit to render collective bargaining of the company's
employees an immediate possibility. [ Footnote 45 ] No Page 322 U. S. 135 plausible reason is suggested for withholding the benefits of
the Act from those here seeking it until a group of geographically
separated employees becomes interested in collective bargaining. In
the circumstances disclosed by this record, we cannot say the
Board's conclusions are lacking in a "rational basis."

															The judgment are reversed, and the causes are remanded for
further proceedings not inconsistent with this opinion. Reversed. MR. JUSTICE REED concurs in the result. He is of the opinion
that the test of coverage for employees is that announced by the
Board in the matter of Stockholders Publishing Company, Inc., and
Los Angeles Newsboys Local Industrial Union No. 75, C.I.O., and
other similar cases, decided January 9, 1941, 28 N.L.R.B. 1006,
1022, 1023.

															* Together with No. 337, Labor Board v. Stockholders
Publishing Co., Inc., No. 338, Labor Board v. Hearst
Publications, Inc., and No. 339, Labor Board v.
Times-Mirror Co., also on writs of certiorari to the Circuit
Court of Appeals for the Ninth Circuit.

															[ Footnote 1 ]

															Section 2(3) of the Act provides that

															"The term 'employee' shall include any employee, and shall not
be limited to the employees of a particular employer, unless the
Act explicitly states otherwise, and shall include any individual
whose work has ceased as a consequence of, or in connection with,
any current labor dispute or because of any unfair labor practice,
and who has not obtained any other regular and substantially
equivalent employment, but shall not include any individual
employed as an agricultural laborer, or in the domestic service of
any family or person at his home, or any individual employed by his
parent or spouse."

															[ Footnote 2 ]

															320 U.S. 728.

															[ Footnote 3 ]

															Pursuant to Section 9(b) and (c) of the Act, 49 Stat. 453, 29
U.S.C. § 159(b) and (c).

															[ Footnote 4 ]

															Although it treated the four representation petitions in one
consolidated proceeding and disposed of them in one opinion, the
Board did not consider evidence with respect to one publisher as
applicable to any of the others.

															[ Footnote 5 ]

															Subsequently, those orders were amended in various details. 29
N.L.R.B. 94, 95; 30 N.L.R.B. 696, 697; 31 N.L.R.B. 697.

															[ Footnote 6 ]

															The record in the representation proceeding was, in effect,
incorporated in the complaint proceeding.

															[ Footnote 7 ]

															The Times' daily circulation is about 220,000 and its Sunday
circulation is about 368,000. The Examiner's daily circulation is
about 214,000 and its Sunday circulation is about 566,000.

															[ Footnote 8 ]

															The Herald has a circulation of about 243,000. Both it and the
Examiner are owned by Hearst Publications, Inc.

															[ Footnote 9 ]

															The News has a circulation of about 195,000. Its first three and
seventh editions are consigned for the most part to route delivery
or suburban dealers. Its fourth edition, which goes to press at
2:45 a.m., is sold in the city during the mornings. The remaining
editions, which go to press at regular intervals between 9:50 a.m
and 5:00 p.m., are sold in the city during the afternoons.

															[ Footnote 10 ]

															The Examiner, The Herald, and The News all employ "main spot"
boys or checkmen; the Times does not.

															[ Footnote 11 ]

															The Times district managers deliver the papers directly to the
newsboys and collect directly from them. On the other papers,
district managers may deliver bundles of papers to the checkmen or
directly to the newsboys themselves. The Times customarily
transports its newsboys to their "spots" from the Times building,
where they first report and pick up their papers. The other
respondents offer similar transportation to those of their newsboys
who desire it.

															[ Footnote 12 ]

															In the case of the Examiner, these "main spot" boys, although
performing services similar to those of checkmen, are less closely
knit to the publisher, and sometimes receive no compensation for
their services.

															[ Footnote 13 ] See infra, note
15 [ Footnote 14 ]

															Newsboys selling the Herald in one residential area do not
receive credit for all unsold papers.

															[ Footnote 15 ]

															Admittedly the Times, Examiner, and Herald district managers are
employees of their respective papers. While the News urged
earnestly that its managers are not its employees, the Board found
otherwise. They do not operate on a formal salary basis, but they
receive guaranteed minimum payments which the Board found are "no
more than a fixed salary bearing another label." And while they,
rather than the publisher, fix the price of the paper to the
newsboy, the Board found, on substantial evidence, that they
function for the News in specified districts, distribute racks,
aprons, advertising placards from the News to the newsboys, give
instructions as to their use, supervise the redistributing
activities of the checkmen (themselves clearly employees of the
News), and hand out News checks to the checkmen for their services.
On this and other evidence suggesting that however different may be
their formal arrangements, News district managers bear
substantially the same relation to the publisher on one hand and
the newsboys on the other as do the other district managers, the
Board concluded that they were employees of the paper.

															[ Footnote 16 ]

															Although from time to time these "spots" are bought and sold
among the vendors themselves, without objection by district
managers and publishers, this in no way negates the need for the
district managers' implicit approval of a spotholder or their
authority to remove vendors from their "spots" for reasons of
discipline or efficiency.

															[ Footnote 17 ] E.g., that there is either no evidence in the record to
show, or the record explicitly negatives, that respondents carry
the newsboys on their payrolls, pay "salaries" to them, keep
records of their sales or locations, or register them as
"employees" with the Social Security Board, or that the newsboys
are covered by workmen's compensation insurance of the California
Compensation Act. Furthermore, it is urged the record shows that
the newsboys all sell newspapers, periodicals and other items not
furnished to them by their respective publishers, assume the risk
for papers lost, stolen or destroyed, purchase and sell their
"spots," hire assistants and relief men and make arrangements among
themselves for the sale of competing or left-over papers.

															[ Footnote 18 ]

															They have abandoned here the contention, made in the circuit
court, that the Act does not reach their controversies with the
newsboys because they do not affect commerce.

															[ Footnote 19 ]

															The so-called "control test" with which common law judges have
wrestled to secure precise and ready applications did not escape
the difficulties encountered in borderland cases by its
reformulation in the Restatement of the Law of Agency § 220. That,
even at the common law, the control test and the complex of
incidents evolved in applying it to distinguish an "employee" from
an "independent contractor," for purposes of vicarious liability in
tort, did not necessarily have the same significance in other
contexts, compare Lumley v. Guy [1853] El. & Bl. 216, and see also the cases collected in 21 A.L.R. 1229 et
seq.; 23 A.L.R. 984 et seq. [ Footnote 20 ] See, e.g., Stevens, The Test of the Employment Relation
(1939) 38 Mich.L.Rev. 188; Steffen, Independent Contractor and the
Good Life (1935) 2 U. of Chi.L.Rev. 501; Leidy, Salesmen as
Independent Contractors (1938) 28 Mich.L.Rev. 365; N.Y. Law
Revision Commission Report, 1939 (1939) Legislative Document No.
65(K).

															[ Footnote 21 ]

															[ Footnote 22 ]

															[ Footnote 23 ] Compare Stockwell v. Morris, 46 Wyo, 1, 22 P.2d 189 , with Auer v. Sinclair Refining Co., 103 N.J.L. 372, 137 A.
555; Schomp v. Fuller Brush Co., 124 N.J.L. 487, 12 A.2d
702; In re Schomp, 126 N.J.L. 368, 19 A.2d 780, with
Fuller Brush Co. v. Industrial Comm., 99 Utah 97, 104 P.2d
201; Stover Bedding Co. v. Industrial Comm'n, 99 Utah 423,
107 P.2d 1027, 134 P.2d 1006, with Maltz v. Jackoway-Katz Cap
Co., 336 Mo. 1000, 82 S.W.2d 909.

															[ Footnote 24 ]

															[ Footnote 25 ] American Steel Foundries Co. v. Tri-City Council, 257 U. S. 184 , 257 U. S. 209 ,
cited in H.R.Rep. No. 1147, 74th Cong., 1st Sess., 10; cf.
Bakery & Pastry Drivers v. Wohl, 315 U.
S. 769 .

															[ Footnote 26 ]

															The practice of self-organization and collective bargaining to
resolve labor disputes has for some time been common among such
varied types of "independent contractors" as musicians (How
Collective Bargaining Works (20th Century Fund, 1942) 848-866;
Proceedings of the 47th Annual Convention of the American
Federation of Musicians (1942)), actors ( see e.g. Collective Bargaining by Actors (1926) Bureau of Labor Statistics,
Bulletin No. 402; Harding, The Revolt of the Actors (1929); Ross,
Stars and Strikes (1941)), and writers ( see, e.g., Rosten,
Hollywood (1941); Ross, Stars and Strikes (1941) 48-63), and such
atypical "employees" as insurance agents, artists, architects and
engineers ( see, e.g., Proceedings of the 2d Convention of
the UOPWA, C.I.O. (1938); Proceedings of the 3d Convention of the
UOPWA, C.I.O. (1940); Handbook of American Trade Unions (1936);
Bureau of Labor Statistics, Bull. No. 618, 291-293; Constitution
and By-Laws of the IFTEAD of the A.F.L., 1942.)

															[ Footnote 27 ]

															Control of "physical conduct in the performance of the service"
is the traditional test of the "employee relationship" at common
law. Cf., e.g., Restatement of the Law of Agency §
220(1).

															[ Footnote 28 ]

															Sen.Rep. No. 573, 74th Cong., 1st Sess. 7.

															[ Footnote 29 ]

															Sen.Rep. No. 573, 74th Cong., 1st Sess. 6.

															[ Footnote 30 ] Cf. Phelps Dodge Corp. v. Labor Board, 313 U.
S. 177 ; and compare Drivers' Union v. Lake Valley
Co., 311 U. S. 91 , with Sen.Rep. No. 573, 74th Cong., 1st Sess. 7.

															[ Footnote 31 ] Compare Labor Board v. Waterman S.S. Corp., 309 U. S. 206 ; Phelps Dodge Corp. v. Labor Board, 313 U.
S. 177 .

															[ Footnote 32 ] Cf. South Chicago Coal & Dock Co. v. Bassett, 309 U. S. 251 ; Lehigh Valley Coal Co. v. Yensavage, 218 F. 547, 552
(C.C.A.)

															[ Footnote 33 ] Lehigh Valley Coal Co. v. Yensavage, 218 F. 547,
552.

															[ Footnote 34 ] E.g., Matter of Metro-Goldwyn-Mayer Studios, 7 N.L.R.B.
662, 686-690; Matter of KMOX Broadcasting Station, 10
N.L.R.B. 479; Matter of Interstate Granite Corp., 11
N.L.R.B. 1046; Matter of Sun Life Ins. Co., 15 N.L.R.B.
817; Matter of Kelly Co., 34 N.L.R.B. 325; Matter of
John Yasek, 37 N.L.R.B. 156.

															[ Footnote 35 ]

															44 Stat. 1424, 33 U.S.C. § 901 et seq. [ Footnote 36 ]

															Under § 2(b) of the Communications Act of 1934, 48 Stat. 1064,
1065, 47 U.S.C. § 152(b).

															[ Footnote 37 ]

															Full-time newsboys for the Herald includes those who regularly
sell to the public five or more editions five or more days per
week. Full-time newsboys for the News includes those who regularly
sell to the general public the fifth, sixth, eighth, ninth and
tenth, or the sixth, eighth, ninth and tenth editions five or more
days per week, or the fourth and earlier editions for at least four
hours daily between 4:00 a.m. and 10:00 a.m. five days per
week.

															[ Footnote 38 ]

															Part-time newsboys for the Herald means those selling less than
five editions daily or for less than five days per week.

															[ Footnote 39 ]

															Established spots are corners at which newsboys sold those
papers for at least five or more days per week during at least six
consecutive months.

															[ Footnote 40 ]

															Glendale is included in the Times unit.

															[ Footnote 41 ]

															Temporary newsboys are those selling for less than thirty-one
consecutive days.

															[ Footnote 42 ]

															Except newsboys selling the Times in Glendale.

															[ Footnote 43 ]

															Hearings before Committee on Education and Labor on S. 1958,
74th Cong., 1st Sess. 83.

															[ Footnote 44 ] E.g., see First Annual Report of the National Labor
Relations Board 112-120; Second Annual Report of the National Labor
Relations Board 122-140; Third Annual Report of the National Labor
Relations Board 156-197; Fourth Annual Report of the National Labor
Relations Board 82-97; Fifth Annual Report of the National Labor
Relations Board 63-72; Sixth Annual Report of the National Labor
Relations Board 63-71.

															[ Footnote 45 ]

															Matter of Gulf Oil Corp., 4 N.L.R.B. 133.

															MR. JUSTICE ROBERTS.

															I think the judgment of the Circuit Court of Appeals should be
affirmed. The opinion of that court reported in 136 F.2d 608, seems
to me adequately to state the controlling facts and correctly to
deal with the question of law presented for decision. I should not
add anything were it not for certain arguments presented here and
apparently accepted by the court.

															I think it plain that newsboys are not "employees" of the
respondents within the meaning and intent of the National Labor
Relations Act. When Congress, in § 2(3), said: "The term "employee"
shall include any employee, . . ." it stated as clearly as language
could do it that the provisions of the Act were to extend to those
who, as a result of decades of tradition which had become part of
the common understanding of our people, bear the named
relationship. Clearly also, Congress did not delegate Page 322 U. S. 136 to the National Labor Relations Board the function of defining
the relationship of employment so as to promote what the Board
understood to be the underlying purpose of the statute. The
question who is an employee, so as to make the statute applicable
to him, is a question of the meaning of the Act, and therefore is a
judicial, and not an administrative, question.

															I do not think that the court below suggested that the federal
courts sitting in the various states must determine whether a given
person is an employee by application of either the local statutes
or local state decisions. Quite the contrary. As a result of common
law development, many prescriptions of federal statutes take on
meaning which is uniformly ascribed to them by the federal courts,
irrespective of local variance. Funk v. United States, 290 U. S. 371 .
This court has repeatedly resorted to just such considerations in
defining the very term "employee" as used in other federal
statutes, as the opinion of the court below shows. There is a
general and prevailing rule throughout the Union as to the indicia
of employment and the criteria of one's status as employee.
Unquestionably it was to this common, general, and prevailing
understanding that Congress referred in the statute and, according
to that understanding, the facts stated in the opinion below, and
in that of this court, in my judgment, demonstrate that the
newsboys were not employees of the newspapers.

															It is urged that the Act uses the term in some loose and unusual
sense such as justifies the Board's decision because Congress added
to the definition of employee above quoted these further words:
"and shall not be limited to the employees of a particular
employer, unless the Act explicitly states otherwise. . . ." The
suggestion seems to be that Congress intended that the term
employee should mean those who were not in fact employees, but
it Page 322 U. S. 137 is perfectly evident not only from the provisions of the Act as
a whole, but from the Senate Committee's Report, that this phrase
was added to prevent any misconception of the provisions whereby
employees were to be allowed freely to combine and to be
represented in collective bargaining by the representatives of
their union. Congress intended to make it clear that employee
organizations did not have to be organizations of the employees of
any single employer. But that qualifying phrase means no more than
this, and was never intended to permit the Board to designate as
employees those who, in traditional understanding, have no such
status.


Bi-Metallic Investment Co. v. State Board of Equalization of Colorado

U.S. Supreme Court Bi-Metallic Investment Co. v. State
Board of Equalization, 239
U.S. 441 (1915) Bi-Metallic Investment Company
v. State Board of Equalization of
Colorado No. 116 Argued December 7, 8, 1915.-Decided
December 20, 1915 239
U.S. 441 ERROR TO THE SUPREME
COURT OF THE STATE OF
COLORADO Syllabus The allowance of equitable relief is a question of state policy,
and if the state court treated the merits of a suit in which
equitable relief is sought as legitimately before it, this Court
will not attempt to determine whether it might or might not have
thrown out the suit upon the preliminary ground.

															Where a rule of conduct applies to more than a few people, it is
impracticable that every one should have a direct voice in its
adoption; nor does the federal Constitution require all public acts
to be done in town meeting or in an assembly of the whole.

															There must be a limit to individual argument in regard to
matters affecting communities if government is to go on. Page 239 U. S. 442 An order of the State Board of Equalization of Colorado
increasing the valuation of all taxable property in the City of
Denver forty percent, which was sustained by the supreme court of
that state, held not to be in violation of the due process
provision of the Fourteenth Amendment because no opportunity was
given to the taxpayers or assessing officers of Denver to be heard
before the order was made.

															56 Colo. 343 affirmed.

															The facts, which involve the constitutionality under the due
provision of the Fourteenth Amendment of an order of the Tax Boards
of Colorado, increasing proportionately the valuation of all
property in the City of Denver, are stated in the opinion.

															MR. JUSTICE HOLMES delivered the opinion of the Court.

															This is a suit to enjoin the State Board of Equalization and the
Colorado Tax Commission from putting in force, and the defendant
Pitcher, as Assessor of Denver, from obeying, an order of the
boards, increasing the valuation of all taxable property in Denver
forty percent. The order Page 239 U. S. 444 was sustained and the suit directed to be dismissed by the
supreme court of the state. 56 Colo. 512. See 56 Colo.
343. The plaintiff is the owner of real estate in Denver, and
brings the case here on the ground that it was given no opportunity
to be heard, and that therefore its property will be taken without
due process of law, contrary to the Fourteenth Amendment of the
Constitution of the United States. That is the only question with
which we have to deal. There are suggestions on the one side that
the construction of the state constitution and laws was an
unwarranted surprise, and on the other that the decision might have
been placed, although it was not, on the ground that there was an
adequate remedy at law. With these suggestions we have nothing to
do. They are matters purely of state law. The answer to the former
needs no amplification; that to the latter is that the allowance of
equitable relief is a question of state policy, and that, as the
supreme court of the state treated the merits as legitimately
before it, we are not to speculate whether it might or might not
have thrown out the suit upon the preliminary ground.

															For the purposes of decision, we assume that the constitutional
question is presented in the baldest way -- that neither the
plaintiff nor the assessor of Denver, who presents a brief on the
plaintiff's side, nor any representative of the city and county,
was given an opportunity to be heard, other than such as they may
have had by reason of the fact that the time of meeting of the
boards is fixed by law. On this assumption, it is obvious that
injustice may be suffered if some property in the county already
has been valued at its full worth. But if certain property has been
valued at a rate different from that generally prevailing in the
county, the owner has had his opportunity to protest and appeal as
usual in our system of taxation, Hagar v. Reclamation
District, 111 U. S. 701 , 111 U. S.
709 -710, so that it must be assumed that the
property Page 239 U. S. 445 owners in the county all stand alike. The question, then, is
whether all individuals have a constitutional right to be heard
before a matter can be decided in which all are equally concerned
-- here, for instance, before a superior board decides that the
local taxing officers have adopted a system of undervaluation
throughout a county, as notoriously often has been the case. The
answer of this Court in the State Railroad Tax Cases, 92 U. S. 575 , at
least, as to any further notice, was that it was hard to believe
that the proposition was seriously made.

															Where a rule of conduct applies to more than a few people, it is
impracticable that everyone should have a direct voice in its
adoption. The Constitution does not require all public acts to be
done in town meeting or an assembly of the whole. General statutes
within the state power are passed that affect the person or
property of individuals, sometimes to the point of ruin, without
giving them a chance to be heard. Their rights are protected in the
only way that they can be in a complex society -- by their power,
immediate or remote, over those who make the rule. If the result in
this case had been reached, as it might have been, by the state's
doubling the rate of taxation, no one would suggest that the
Fourteenth Amendment was violated unless every person affected had
been allowed an opportunity to raise his voice against it before
the body entrusted by the state constitution with the power. In
considering this case in this Court we must assume that the proper
state machinery has been used, and the question is whether, if the
state constitution had declared that Denver had been undervalued as
compared with the rest of the state, and had decreed that, for the
current year, the valuation should be forty percent higher, the
objection now urged could prevail. It appears to us that to put the
question is to answer it. There must be a limit to individual
argument in such matters if government is to go on. In Londoner
v. Denver, 210 U. S. 373 , Page 239 U. S. 446 210 U. S. 385 ,
a local board had to determine "whether, in what amount, and upon
whom" a tax for paving a street should be levied for special
benefits. A relatively small number of persons was concerned, who
were exceptionally affected, in each case upon individual grounds,
and it was held that they had a right to a hearing. But that
decision is far from reaching a general determination dealing only
with the principle upon which all the assessments in a county had
been laid. Judgment affirmed.