Chapter LXXIV: Section 4: The United States shall guarantee to every State in (7)

A plea of former jeopardy must be upon a prosecution for the same identical offense.[33] The test of identity of offenses is whether the same evidence is required to sustain them; if not, the fact that both charges relate to one transaction does not make a single offense where two are defined by the statutes.[34] Where a person is convicted of a crime which includes several incidents, a second trial for one of those incidents puts him twice in jeopardy.[35] Congress may impose both criminal and civil sanctions with respect to the same act or omission,[36] and may separate a conspiracy to commit a substantive offense from the commission of the offense and affix to each a different penalty.[37] A conviction for the conspiracy may be had though the subsequent offense was not completed.[38] Separate convictions under different counts charging a monopolization and a conspiracy to monopolize trade, in an indictment under the Sherman Antitrust Act, do not amount to double jeopardy.[39] In United States _v._ National Association of Real Estate Boards,[40] the Court held that an acquittal in a criminal suit charging violation of the Sherman Act does not prevent the issuance of an injunction against future violations. It distinguished but did not overrule an early case which held that where an issue as to the existence of a fact or act had been tried in a criminal proceeding instituted by the United States, a judgment of acquittal, was conclusive in a subsequent proceeding _in rem_ involving the same matter.[41]

A civil action to recover taxes which were in fact penalties for violation of another statute was held to be punitive in character and barred by a prior conviction of the defendant for a criminal offense involving the same transaction.[42] In contrast, the additional income tax imposed when a fraudulent return is filed, was found to be a civil sanction designed to protect the revenue, which might be assessed after acquittal of the defendant for the same fraud.[43] A forfeiture proceeding for defrauding the Government of a tax on alcohol diverted to beverage uses is a proceeding _in rem_, rather than a punishment for a criminal offense, and may be prosecuted after a conviction of conspiracy to violate the statute imposing the tax.[44]

In an early case, the Court asserted that since robbery on the high seas is considered an offense within the criminal jurisdiction of all nations, the plea of _autre fois acquit_ would be good in any civilized State, though resting on a prosecution instituted in the courts of any other civilized State.[45] It has held, however, that where the same act is an offense against both the State and Federal Governments, its prosecution and punishment by both Governments is not double jeopardy.[46] A contumacious witness is not twice subjected to jeopardy for refusing to testify before a committee of the United States Senate, by being punished for contempt of the Senate and also indicted for a misdemeanor for such refusal.[47]

Self-Incrimination

SOURCE OF THE CLAUSE

"Nor shall be compelled in any criminal case to be a witness against himself." The source of this clause was the maxim that "no man is bound to accuse himself (_nemo tenetur prodere_--or _accusare seipsum_)," which was brought forward in England late in the sixteenth century in protest against the inquisitorial methods of the ecclesiastical courts. At that time the common law itself permitted accused defendants to be questioned. What the advocates of the maxim meant was merely that a person ought not to be put on trial and compelled to answer questions to his detriment unless he had first been properly accused, i.e., by the grand jury. But the idea once set going gained headway rapidly, especially after 1660, when it came to have attached to it most of its present-day corollaries.[48]

Under the clause a _witness_ in any proceeding whatsoever in which testimony is legally required may refuse to answer any question, his answer to which might be used against him in a future criminal proceeding, or which might uncover further evidence against him.[49] The witness must explicitly claim his constitutional immunity or he will be considered to have waived it;[50] but he is not the final judge of the validity of his claim.[51] The privilege exists solely for the protection of the witness himself, and may not be claimed for the benefit of third parties.[52] The clause does not impair the obligation of a witness to testify if a prosecution against him is barred by lapse of time, by statutory enactment, or by a pardon;[53] but the effect of a mere tender of pardon by the President remains uncertain.[54] A witness may not refuse to answer questions on the ground that he would thereby expose himself to prosecution by a state.[55] Conversely, the admission against a defendant in a federal court of testimony given by him in a state court under a statute of immunity is valid.[56] If an accused takes the stand in his own behalf, he must submit to cross-examination;[57] while if he does not, it is by no means certain that the trial judge in a federal court may not, without violation of the clause, draw the jury's attention to the fact.[58] Neither does the Amendment preclude the admission in evidence against an accused of a confession made while in the custody of officers, if the confession was made freely, voluntarily, and without compulsion or inducement of any sort.[59] But in McNabb _v._ United States the Court[60] reversed a conviction in a federal court, based on a confession obtained by questioning the defendants for prolonged periods in the absence of friends and counsel and without their being brought before a commissioner or judicial officer, as required by law. Without purporting to decide the constitutional issue, Justice Frankfurter's opinion urged the duty of the Court, in supervising the conduct of the lower federal courts, to establish and maintain "civilized standards of procedure and evidence."[61] An individual who has acquired income by illicit means is not excused from making out an income tax return because he might thereby expose himself to a criminal prosecution by the United States. "He could not draw a conjurer's circle around the whole matter," said Justice Holmes, "by his own declaration that to write any word upon the government blank would bring him into danger of the law."[62] But a witness called to testify before a federal grand jury as to his relations with the Communist Party cannot, in view of existing legislation touching the subject, be compelled to answer.[63]he clause does not require the exclusion of the body of an accused as evidence of his identity;[64] but the introduction into evidence against one who was being prosecuted by a State for illegal possession of morphine of two capsules which he had swallowed and had then been forced by the police to disgorge, was held to violate due process of law.[65]

A bankrupt is not deprived of his constitutional right not to testify against himself by an order requiring him to surrender his books to a duly authorized receiver.[66] He may not object to the use of his books and papers as incriminating evidence against him while they are in the custody of the bankruptcy court;[67] nor may he condition their delivery by requiring a guaranty that they will not be used as incriminating evidence.[68] The filing of schedules by a bankrupt does not waive his right to refuse to answer questions pertaining to them when to do so may incriminate him.[69] A disclosure, not amounting to an actual admission of guilt or of incriminating facts, does not deprive him of the privilege of stopping short in his testimony whenever it may fairly tend to incriminate him.[70] The rule against self-incrimination may be invoked by a bankrupt (in the absence of any statute affording him complete immunity) when being examined concerning his estate.[71]

The privilege of witnesses, being a purely personal one, may not be claimed by an agent or officer of a corporation either in its behalf or in his own behalf as regards books and papers of the corporation;[72] and the same rule holds in the case of the custodian of the records of a labor union;[73] nor does the Communist Party enjoy any immunity as to its books and records.[74] Finally, this Amendment, in connection with the interdiction of the Fourth Amendment against unreasonable searches and seizures, protects an individual from the compulsory production of private papers which would incriminate him.[75] The scope of this latter privilege was, however, greatly narrowed by the decision in Shapiro _v._ United States.[76] There, by a five-to-four majority, the Court held that the privilege against self incrimination does not extend to books and records which an individual is required to keep to evidence his compliance with lawful regulations. A conviction for violation of OPA regulations was affirmed, as against the contention that the prosecution was barred because the accused had been compelled over claim of constitutional immunity to produce records he was required to keep under applicable OPA orders. After construing the statutory immunity as inapplicable to the case, Chief Justice Vinson disposed of the constitutional objections by asserting that "the privilege which exists as to private papers cannot be maintained in relation to 'records required by law to be kept in order that there may be suitable information of transactions which are the appropriate subjects of governmental regulation and the enforcement of restrictions validly established.'"[77]

Due Process of Law

SOURCE AND EVOLUTION OF THE MEANING OF THE TERM

The phrase "due process of law" comes from chapter 3 of 28 Edw. III (1355), which reads: "No man of what state or condition he be, shall be put out of his lands or tenements nor taken, nor disinherited, nor put to death, without he be brought to answer by due process of law." This statute, in turn, harks back to the famous chapter 29 of Magna Carta (issue of 1225), where the King promises that "no free man (_nullus liber homo_) shall be taken or imprisoned or deprived of his freehold or his liberties or free customs, or outlawed or exiled, or in any manner destroyed, nor shall we come upon him or send against him, except by a legal judgment of his peers or by the law of the land (_per legem terrae_)." Coke in Part II of his Institutes, which was the source from which the founders of the American Constitutional System derived their understanding of the matter, equates the term "by law of the land" with "by due process of law," which he in turn defines as "by due process of the common law," that is "by the indictment or presentment of good and lawful men * * * or by writ original of the Common Law."[78] The significance of both terms was therefore purely procedural; the term "writ original of the common law" referring to the writs on which civil actions were brought into the King's courts; and this is the significance they clearly have in the State constitutions. In the earlier of such instruments the term "law of the land" was the form preferred, but following the adoption of Amendment V "due process of law" became the vogue with constitution draftsmen. Some State constitutions even today employ both terms. Whichever phraseology is used always occurs in close association with other safeguards of accused persons, just as does the clause here under discussion in Amendment V. As a limitation, therefore, on legislative power the due process clause originally operated simply to place certain procedures, and especially the grand jury-petit jury process, beyond its reach, but this did not remain its sole importance or its principal importance.[79]

Today the due process clause in Amendment V, in Amendment XIV, and in the State constitutions is important chiefly, not as consecrating certain procedures, but as limiting the substantive content of legislation. Thus one of the grounds on which Chief Justice Taney, in his opinion in the Dred Scott Case, stigmatized the Missouri Compromise as unconstitutional was that an act of Congress which deprived "a citizen of his liberty or property merely because he came himself or brought his property into a particular territory of the United States, and who had committed no offence against the laws, could hardly be dignified with the name of due process of law";[80] and sixty-six years later the Court held the District of Columbia Minimum Wage Act for women and minors to be void under the due process clause of Amendment V, not on account of any objection to the methods by which it was to be enforced but because of the content of the act--its substantive requirements.[81] And it is because of this extension of the term "due process of law" beyond the procedural field that the Court has been asked to pass upon literally hundreds of State enactments since about 1890 on the representation that they invaded the "liberty" or property rights of certain persons "unreasonably." In short, this development of the meaning of "due process of law" came in time to furnish one of the principal bases of judicial review, and indeed it still remains such so far as State legislation is concerned. _See_ pp. 971-974.

SCOPE OF GUARANTY

This clause is a restraint on Congress as well as on the executive and judicial powers of the National Government; it cannot be so construed as to leave Congress free to make any process it chooses "due process of law."[82] All persons within the territory of the United States are entitled to its protection, including corporations,[83] aliens,[84] and presumptively citizens seeking readmission to the United States.[85] It is effective in the District of Columbia[86] and in territories which are part of the United States,[87] but it does not apply of its own force to unincorporated territories.[88] Nor does it reach enemy alien belligerents tried by military tribunals outside the territorial jurisdiction of the United States.[89]

Procedural Due Process

GENERAL

The words "due process of law" do not necessarily imply a proceeding in a court of justice,[90] or a plenary suit and trial by jury in every case where personal or property rights are involved. "In all cases, that kind of procedure is due process of law which is suitable and proper to the nature of the case, and sanctioned by the established customs and usages of the courts."[91] Proceedings for contempt of court[92] or to disbar an attorney[93] may be determined by a court without a jury trial. For persons in the military or naval services of the United States,[94] trial by military tribunals is due process. This principle extends to persons who commit offenses while undergoing punishment inflicted by court martial; as military prisoners they are still subject to military law.[95]

CRIMINAL PROSECUTIONS

The due process clause supplements the specific procedural guaranties enumerated in the Sixth Amendment and in preceding clauses of the Fifth Amendment for the protection of persons accused of crime. The Court has relied upon this provision in holding that an accused shall plead, or be ordered to plead, or a plea of not guilty be entered for him before his trial proceeds;[96] and in ruling that if the accused is in custody he must be personally present at every stage of the trial where his substantial rights may be affected by the proceedings against him.[97] It is not within the power of the accused or his attorney to waive such right. Inasmuch as proceedings for criminal contempt do not constitute a criminal prosecution, it is immaterial if proceedings are held in the absence of the defendant; the requirement of due process of law is satisfied by suitable notice and opportunity to be heard.[98]

NOTICE AND HEARING

Due process of law signifies a right to be heard. A decree _pro confesso_ entered against a defendant after striking his answer from the files for contempt of court is void.[99] A man may, however, consent to be bound by a judgment in a case in which he has no right to participate.[100] Accordingly, due process of law was held not to be denied to a surety on an undertaking for the release of attached property when the undertaking required the parties to submit to the jurisdiction of the court and to agree to abide by the judgment in relation to the property attached.[101] Where, in a suit for specific performance of a contract, evidence admitted without objection at the trial established all the facts necessary for application of the formula specified by the contract, the appellate court which rejected the trial court's interpretation of the contract did not infringe the right to a hearing by entering judgment without remanding the case for a new trial.[102] After a State court, in proceedings designed _inter alia_ to invalidate certain releases, rendered judgment without a special finding on the exact point, a federal court did not deny due process in a subsequent proceeding by treating such judgment as conclusive on the validity of the releases.[103] Since proceedings in bankruptcy are in the nature of proceedings _in rem_, personal notice to creditors is not required; creditors are bound by the proceedings in distribution on notice by publication and mail.[104] Where a statute providing for a public improvement levied an assessment against abutting property it was held to be "conclusive alike of the question of the necessity of the work and of the benefits as against abutting property."[105] Notice to the property owner is not necessary to sustain the assessment. On the other hand, when the legislature submits these questions to a commission or other officers the inquiry becomes judicial and the property owner is entitled to notice or an opportunity to be heard. Notice by publication is sufficient.[106]

EVIDENCE AND PRESUMPTION IN JUDICIAL PROCEEDINGS

Error in the admission of evidence or the entry of an erroneous judgment after a full hearing does not constitute a denial of due process.[107] A statute authorizing cancellation of naturalization certificates for fraud and providing that the taking up of permanent residence abroad within five years after naturalization shall be _prima facie_ evidence of lack of intention to become a permanent resident of the United States at the time of applying for citizenship was found not to be so unreasonable as to deny due process of law.[108] Likewise, it was held reasonable for Congress to enact that a defendant who was discovered to be in possession of opium should be required to assume the burden of proving that he had not obtained it through illegal importation.[109] But a presumption that a firearm or ammunition in the possession of a person convicted of a crime of violence was transported or received in violation of law was held invalid because there was no rational connections between the facts proved and that presumed.[110]

ADMINISTRATIVE PROCEEDINGS

With respect to action taken by administrative agencies the Court has held that the demands of due process do not require a hearing at the initial stage, or at any particular point in the proceeding so long as a hearing is held before the final order becomes effective.[111] In Bowles _v._ Willingham,[112] it sustained orders fixing maximum rents issued without a hearing at any stage, saying "* * * where Congress has provided for judicial review after the regulations or orders have been made effective it has all that due process under the war emergency requires."[113] But where, after consideration of charges brought against an employer by a complaining union, the National Labor Relations Board undertook to void an agreement between an employer and another independent union, the latter was entitled to notice and an opportunity to participate in the proceedings.[114] Although a taxpayer must be afforded a fair opportunity for hearing in connection with the collection of taxes,[115] collection by distraint of personal property is lawful if the taxpayer is allowed a hearing thereafter.[116]

"A FAIR HEARING"

When the Constitution requires a hearing it requires a fair one, held before a tribunal which at least meets currently prevailing standards of impartiality.[117] An opportunity must be given not only to present evidence, but also to know the claims of the opposing party and to meet them. Those who are brought into contest with the Government in a quasi-judicial proceeding aimed at control of their activities are entitled to be fairly advised of what the Government proposes and to be heard upon the proposal before the final command is issued.[118] But a variance between the charges and findings will not invalidate administrative proceedings where the record shows that at no time during the hearing was there any misunderstanding as to the basis of the complaint.[119] The mere admission of evidence which would be inadmissible in judicial proceedings does not vitiate the order of an administrative agency.[120] A provision that such a body shall not be controlled by rules of evidence does not, however, justify orders without a foundation in evidence having rational probative force. Mere uncorroborated hearsay does not constitute the substantial evidence requisite to support the findings of the agency.[121] While the Court has recognized that in some circumstances a "fair hearing" implies a right to oral argument,[122] it refuses to lay down a general rule that would cover all cases.[123] It says: "Certainly the Constitution does not require oral argument in all cases where only insubstantial or frivolous questions of law, or indeed even substantial ones, are raised. Equally certainly it has left wide discretion to Congress in creating the procedures to be followed in both administrative and judicial proceedings, as well as in their conjunction."[124]

JUDICIAL REVIEW

To the extent that constitutional rights are involved, due process of law imports a judicial review of the action of administrative or executive officers. This proposition is undisputed so far as questions of law are concerned, but the extent to which the courts should and will go in reviewing determinations of fact has been a highly controversial issue. In St. Joseph Stock Yards Co. _v._ United States,[125] the Supreme Court held that upon review of an order of the Secretary of Agriculture establishing maximum rates for services rendered by a stock yard company, due process required that the Court exercise its independent judgment upon the facts to determine whether the rates were confiscatory.[126] Subsequent cases sustaining rate orders of the Federal Power Commission have not dealt explicitly with this point.[127] The Court has said simply that a person assailing such an order "carries the heavy burden of making a convincing showing that it is invalid because it is unjust and unreasonable in its consequences."[128]

There has been a division of opinion in the Supreme Court as to what extent, if at all, the proceedings before military tribunals should be reviewed by the courts for the purpose of determining compliance with the due process clause. In In re Yamashita[129] the majority denied a petition for certiorari and petitions for writs of _habeas corpus_ to review the conviction of a Japanese war criminal by a military commission sitting in the Philippine Islands. It held that since the military commission, in admitting evidence to which objection was made, had not violated any act of Congress, a treaty or a military command defining its authority, its ruling on evidence and on the mode of conducting the proceedings were not reviewable by the courts. Without dissent, the Supreme Court in Hiatt _v._ Brown[130] reversed the judgment of a lower court which had discharged a prisoner serving a sentence imposed by a court-martial, because of errors whereby the respondent had been deprived of due process of law. The Supreme Court held that the Court below had erred in extending its review, for the purpose of determining compliance with the due process clause, to such matters as the propositions of law set forth in the staff judge advocate's report, the sufficiency of the evidence to sustain respondent's conviction, the adequacy of the pre-trial investigation, and the competence of the law member and defense counsel. In summary, Justice Clark wrote: "In this case the court-martial had jurisdiction of the person accused and the offense charged, and acted within its lawful powers. The correction of any errors it may have committed is for the military authorities which are alone authorized to review its decision."[131] Again in Johnson _v._ Eisentrager[132] the Supreme Court overruled a lower court decision, which, in reliance upon the dissenting opinion in the Yamashita Case, had held that the due process clause required that the legality of the conviction of enemy alien belligerents by military tribunals should be tested by the writ of _habeas corpus_.

ALIENS

To aliens who have never been naturalized or acquired any domicile or residence in the United States, the decision of an executive or administrative officer, acting within powers expressly conferred by Congress, as to whether or not they shall be permitted to enter the country, is due process of law.[133] The complete authority of Congress in the matter of admission of aliens justifies delegation of power to executive officers to enforce the exclusion of aliens afflicted with contagious diseases by imposing upon the owner of the vessel bringing any such alien into the country, a money penalty, collectible before and as a condition of the grant of clearance.[134] If the person seeking admission claims American citizenship, the decision of the Secretary of Labor may be made final, but it must be made after a fair hearing, however summary, and must find adequate support in the evidence. A decision based upon a record from which relevant and probative evidence has been omitted is not a fair hearing.[135] Where the statute made the decision of an immigration inspector final unless an appeal was taken to the Secretary of the Treasury, a person who failed to take such an appeal did not, by an allegation of citizenship, acquire a right to a judicial hearing on _habeas corpus_.[136]

DEPORTATION

Deportation proceedings are not criminal prosecutions within the meaning of the Bill of Rights. The authority to deport is drawn from the power of Congress to regulate the entrance of aliens and impose conditions upon the performance of which their continued liberty to reside within the United States may be made to depend. Findings of fact reached by executive officers after a fair, though summary deportation hearing may be made conclusive.[137] In Wong Yang Sung _v._ McGrath,[138] however, the Court intimated that a hearing before a tribunal which did not meet the standards of impartiality embodied in the Administrative Procedure Act[139] might not satisfy the requirements of due process of law. To avoid such constitutional doubts, the Court construed the law to disqualify immigration inspectors as presiding officers in deportation proceedings. Except in time of war, deportation without a fair hearing or on charges unsupported by any evidence is a denial of due process which may be corrected on _habeas corpus_.[140] In contrast with the decision in United States _v._ Ju Toy[141] that a person seeking entrance to the United States was not entitled to a judicial hearing on his claim of citizenship, a person arrested and held for deportation is entitled to a day in court if he denies that he is an alien.[142] A closely divided Court has ruled that in time of war the deportation of an enemy alien may be ordered summarily by executive action; due process of law does not require the courts to determine the sufficiency of any hearing which is gratuitously afforded to the alien.[143]

Substantive Due Process

DISCRIMINATION

Almost all legislation involves some degree of classification whereby its operation is directed to particular categories of persons, things, or events; and it is partly in recognition of this fact that Amendment Fourteen forbids the States to deny to persons within their jurisdiction "equal protection of the laws." But this restriction does not rule out classifications that are "reasonable"; and the due process of law clause of Amendment Five is at least as tolerant of legislative classifications, which would have to be arbitrarily and unreasonably discriminatory to incur its condemnation.[144] In fact, it does not appear that the Court has up to this time ever held an act of Congress unconstitutional on this ground. Thus it has sustained a law imposing greater punishment for an offense involving rights and property of the United States than for a like offense involving the rights of property of a private person.[145] Likewise, a requirement that improved property in the District of Columbia be connected with the city sewage system, with different sanctions for residents and nonresidents was upheld over the argument that the classification was arbitrary.[146] The allowance to injured seamen of a choice between several measures of redress without any corresponding right in their employer was held not to deny due process of law.[147] Differences of treatment accorded marketing cooperatives in milk marketing orders issued by the Secretary of Agriculture[148] and the selection of a limited number of tobacco markets for compulsory grading of tobacco[149] have also been sustained. The priority of a federal tax lien against property passing at death, may, without offending the due process clause, be different from that which attaches to property transferred _inter vivos_ in contemplation of death.[150]

There are indications, however, that the Court may be prepared to go further than it has in the past in condemning discrimination as a denial of due process of law. Relying upon public policy and its supervisory authority over federal courts, it has reached results similar to those arrived at under the equal protection clause of the Fourteenth Amendment, in refusing to enforce restrictive covenants in the District of Columbia,[151] and in reversing a judgment of a Federal District Court because of the exclusion of day laborers from the jury panel;[152] and in Steele _v._ Louisville & N.R. Co.[153] the Railway Labor Act was construed to require a collective bargaining representative to act for the benefit of all members of the craft without discrimination on account of race. Chief Justice Stone indicated that any other construction would raise grave constitutional doubts,[154] while in a concurring opinion, Justice Murphy asserted unequivocally that the act would be inconsistent with the Fifth Amendment if the bargaining agent, acting under color of federal authority, were permitted to discriminate against any of the persons he was authorized to represent.[155]

DEPRIVATION OF LIBERTY

In consequence of the explicit assurances of individual liberty contained in other articles of the Bill of Rights, the clause in the Fifth Amendment forbidding the deprivation of "liberty" without due process of law has been invoked chiefly in resistance to measures alleged to abridge liberty of contract. The two leading cases which held legislation unconstitutional on this ground have, however, both been overturned in recent years. Adair _v._ United States,[156] which invalidated an act of Congress prohibiting any interstate carrier from threatening an employee with loss of employment if he joined a labor union, was overruled in substance by Phelps Dodge Corp. _v._ National Labor Relations Board.[157] Adkins _v._ Children's Hospital,[158] in which a minimum wage law for the District of Columbia was found to be an unwarranted abridgment of the liberty of contract, was expressly repudiated by West Coast Hotel Co. _v._ Parrish.[159] Numerous other statutes--antitrust laws,[160] acts limiting hours of labor,[161] prohibiting advance of wages to seamen,[162] making carriers liable for injuries suffered by employees irrespective of previous contractual arrangements,[163] requiring employers to bargain collectively with employees[164] and fixing prices of commodities[165] have been sustained against attack on this ground.

Interpreting statutes which made the guaranty of due process of law applicable to Hawaii and the Philippine Islands, the Court enjoined enforcement of an act of the Territory of Hawaii which prohibited maintenance of foreign-language schools except upon written permit and payment of a fee based upon attendance,[166] and held unconstitutional a Philippine statute which prohibited Chinese merchants from keeping any accounts in Chinese.[167]

DEPRIVATION OF PROPERTY

Retroactive Legislation Sustained

Federal regulation of future action, based upon rights previously acquired by the person regulated, is not prohibited by the Constitution. So long as the Constitution authorizes the subsequently enacted legislation, the fact that its provisions limit or interfere with previously acquired rights does not condemn it. Accordingly, rent regulations were sustained as applied to prevent execution of a judgment of eviction rendered by a State court before the enabling legislation was passed.[168] An order by an Area Rent Director reducing an unapproved rental and requiring the landlord to refund the excess previously collected, was held, with one dissenting vote, not to be the type of retroactivity which is condemned by law.[169] The retroactive effect of a new principle announced by a decision of an administrative tribunal has been likened to the effect of judicial decisions in cases of first impression. In Securities Comm'n. _v._ Chenery Corp.,[170] the Supreme Court sustained a decision of the Commission which refused to approve a plan of reorganization for a public utility holding company so long as the preferred stock purchased by the management was treated on a parity with other preferred stock even though the purchase of such stock, when made, did not conflict with any law or rule of the Commission. In the exercise of its comprehensive powers over revenue, finance and currency, Congress may make Treasury notes legal tender in payment of debts previously contracted[171] and may invalidate provisions in private contracts calling for payment in gold coin.[172] An award of additional compensation under the Longshoremen's and Harbor Workers' Compensation Act,[173] made pursuant to a private act of Congress passed after expiration of the period for review of the original award, directing the Commission to review the case and issue a new order, was held valid against the employer and insurer.[174] The application of a statute providing for tobacco marketing quotas, to a crop planted prior to its enactment, was held not to deprive the producers of property without due process of law since it operated, not upon production, but upon the marketing of the product after the act was passed.[175]

The validation by statute of a prior mortgage of personal property invalid because improperly recorded, did not deny due process of law to a judgment creditor seeking to levy an attachment on the mortgaged property.[176] Nor was property taken without due process of law by a statute of New Mexico territory, permitting disseisin of real property to ripen into title after ten years.[177] An order of the military governor of Porto Rico reducing the period during which the possession of real estate must continue, to permit an _ex parte_ conversion of an entry of possessory title into record ownership was construed to apply only where there still remained a reasonable opportunity for the true owners to contest the claim. The Court said that any other construction would permit a taking of property without due process of law.[178]

Rights created by statute are subject to qualification by Congress; benefits conferred gratuitously may be redistributed or withdrawn at any time.[179] Where Congress provided, in granting lands to a railroad, that such land could be resold only to actual settlers, at a price not exceeding $2.50 per acre, it could constitutionally, for breach of performance, resume title to the lands while assuring the railroad the equivalent of its interest.[180] An act making an appropriation for a private claim which restricted the attorney's fees payable therefrom to twenty per cent was valid although inconsistent with a prior contract with the claimant allowing a larger fee.[181] Statutory restrictions on compensation for services in connection with veterans' pensions or insurance have been upheld.[182] An increase in the penalty for production of wheat in excess of quota was not invalid as applied retroactively to wheat already planted, where Congress concurrently authorized a substantial increase in the amount of the loan which might be made to cooperating farmers upon stored "farm marketing excess wheat."[183]

Retroactive Legislation Disallowed

The due process clause has been successfully invoked to defeat retroactive invasion or destruction of property rights in a few cases. A revocation by the Secretary of the Interior of previous approval of plats and papers showing that a railroad was entitled to land under a grant was held void as an attempt to deprive the company of its property without due process of law.[184] The exception of the period of federal control from the time limit set by law upon claims against carriers for damages caused by misrouting of goods, was read as prospective only because the limitation was an integral part of the liability, not merely a matter of remedy, and would violate the Fifth Amendment if retroactive.[185] Rights against the United States arising out of contract are protected by the Fifth Amendment; hence a statute abrogating contracts of war risk insurance was held unconstitutional as applied to outstanding policies.[186]

Bankruptcy Legislation

The bankruptcy power of Congress is subject to the Fifth Amendment. A statute which authorized a court to stay proceedings for the foreclosure of a mortgage for five years, the debtor to remain in possession at a reasonable rental, with the option of purchasing the property at its appraised value at the end of the stay, was held unconstitutional because it deprived the creditor of substantial property rights acquired prior to the passage of the act.[187] A modified law, under which the stay was subject to termination by the Court, and which continued the right of the creditor to have the property sold to pay the debt was sustained.[188] Without violation of the due process clause, the sale of collateral under the terms of a contract may be enjoined, if such sale would hinder the preparation or consummation of a proposed railroad reorganization, provided the injunction does no more than delay the enforcement of the contract.[189] A provision that claims resulting from rejection of an unexpired lease should be treated as on a parity with provable debts, but limited to an amount equal to three years rent, was held not to amount to a taking of property without due process of law, since it provided a new and more certain remedy for a limited amount, in lieu of an existing remedy inefficient and uncertain in result.[190] A right of redemption allowed by State law upon foreclosure of a mortgage was unavailing to defeat a plan for reorganization of a debt or corporation where the trial court found that the claims of junior lienholders had no value.[191]

Right To Sue the Government

A right to sue the Government on a contract is a privilege, not a property right protected by the Constitution.[192] The right to sue for recovery of taxes paid may be conditioned upon an appeal to the Commissioner and his refusal to refund.[193] There was no denial of due process when Congress took away the right to sue for recovery of taxes, where the claim for recovery was without substantial equity, having arisen from the mistake of administrative officials in allowing the statute of limitations to run before collecting the tax.[194] The denial to taxpayers of the right to sue for refund of processing and floor taxes collected under a law subsequently held unconstitutional, and the substitution of a new administrative procedure for the recovery of such sums, was held valid.[195] Congress may cut off the right to recover taxes illegally collected by ratifying the imposition and collection thereof, where it could lawfully have authorized such exactions prior to their collection.[196]

CONGRESSIONAL POLICE MEASURES

Numerous regulations of a police nature, imposed under powers specifically granted to the Federal Government, have been sustained over objections based on the due process clause. Congress may require the owner of a vessel on which alien seamen suffering from specified diseases are brought into the country to bear the expense of caring for such persons.[197] It may prohibit the transportation in interstate commerce of filled milk,[198] or the importation of convict made goods into any State where their receipt, possession or sale is a violation of local law.[199] It may require employers to bargain collectively with representatives of their employees chosen in a manner prescribed by statute, to reinstate employees discharged in violation of law,[200] and to permit use of a company owned hall for union meetings.[201] It may enforce continuance of the relationship of employer and employee in the event of a strike as a consequence of, or in connection with, a current labor dispute.[202] The fact that property subject to rent control in time of war suffers a decrease in value does not make such restriction offensive to the due process clause.[203]

The Postal Service

In its complete control over the postal service Congress may exclude lottery advertisements or any other matter objectionable on grounds of public policy.[204] An order requiring return to the senders of all letters addressed to a concern engaged in a fraudulent enterprise, or to its officers as such was held reasonable and valid because an order limited to matter obviously connected with the enterprise would be a practical nullity.[205] Such an order may be issued by the Postmaster General "upon evidence satisfactory to him,"[206] but if issued under a "mistake of law" as to what facts may properly be deemed to constitute fraud, it will be enjoined by the courts.[207] A hearing upon revocation of second-class mailing privileges by an assistant Postmaster General upon notice, at which relator was heard and evidence received was due process.[208]

Congressional Regulation of Public Utilities

Inasmuch as Congress, in giving federal agencies jurisdiction over various public utilities, usually has prescribed standards substantially identical with those by which the Supreme Court has tested the validity of State action, the review of their orders seldom has turned on constitutional issues. In two cases, however, maximum rates for stockyard companies prescribed by the Secretary of Agriculture were sustained only after detailed consideration of numerous items excluded from the rate base or from operating expenses, apparently on the assumption that error with respect to any such item would render the rates confiscatory and void.[209] A few years later, in Federal Power Commission _v._ Hope Natural Gas Co.,[210] the Court adopted an entirely different approach. It took the position that the validity of the Commission's order depended upon whether the impact or total effect of the order is just and reasonable, rather than upon the method of computing the rate base. Rates which enable a company to operate successfully, to maintain its financial integrity, to attract capital, and to compensate its investors for the risks assumed cannot be condemned as unjust and unreasonable even though they might produce only a meager return in a rate base computed by the "present fair value" method.[211]

Orders prescribing the form and contents of accounts kept by public utility companies,[212] and statutes requiring a private carrier to furnish information for valuing its property to the Interstate Commerce Commission[213] have been sustained against the objection that they were arbitrary and invalid. An order of the Secretary of Commerce directed to a single common carrier by water requiring it to file a summary of its books and records pertaining to its rates was held not to violate the Fifth Amendment.[214]

Congressional Regulation of Railroads

Legislation or administrative orders pertaining to railroads have been challenged repeatedly under the due process clause but seldom with success. Orders of the Interstate Commerce Commission establishing through routes and joint rates have been sustained,[215] as has its division of joint rates to give a weaker group of carriers a greater share of such rates where the proportion allotted to the stronger group was adequate to avoid confiscation.[216] The recapture of one half of the earnings of railroads in excess of a fair net operating income, such recaptured earnings to be available as a revolving fund for loans to weaker roads, was held valid on the ground that any carrier earning an excess held it as trustee.[217] An order enjoining certain steam railroads from discriminating against an electric railroad by denying it reciprocal switching privileges did not violate the Fifth Amendment even though its practical effect was to admit the electric road to a part of the business being adequately handled by the steam roads.[218] Similarly, the fact that a rule concerning the allotment of coal cars operated to restrict the use of private cars did not amount to a taking of property.[219] Railroad companies were not denied due process of law by a statute forbidding them to transport in interstate commerce commodities which have been manufactured, mined or produced by them.[220] An order approving a lease of one railroad by another, upon condition that displaced employees of the lessor should receive partial compensation for the loss suffered by reason of the lease[221] is consonant with due process of law. A law prohibiting the issuance of free passes was held constitutional even as applied to abolish rights created by a prior agreement whereby the carrier bound itself to issue such passes annually for life, in settlement of a claim for personal injuries.[222]

Occasionally, however, regulatory action has been held invalid under the due process clause. An order issued by the Interstate Commerce Commission relieving short line railroads from the obligation to pay the usual fixed sum per day rental for cars used on foreign roads, for a space of two days was arbitrary and invalid.[223] A retirement act which made eligible for pensions all persons who had been in the service of any railroad within one year prior to the adoption of the law, counted past unconnected service of an employee toward the requirement for a pension without any contribution therefor, and treated all carriers as a single employer and pooled their assets, without regard to their individual obligations, was held unconstitutional.[224]

TAXATION

In laying taxes, the Federal Government is less narrowly restricted by the Fifth Amendment than are the States by the Fourteenth. It may tax property belonging to its citizens, even if such property is never situated within the jurisdiction of the United States,[225] or the income of a citizen resident abroad, which is derived from property located at his residence.[226] The difference is explained by the fact that the protection of the Federal Government follows the citizen wherever he goes, whereas the benefits of State government accrue only to persons and property within the State's borders. The Supreme Court has said that, in the absence of an equal protection clause, "a claim of unreasonable classification or inequality in the incidence or application of a tax raises no question under the Fifth Amendment, * * *"[227] It has sustained, over charges of unfair differentiation between persons, a graduated income tax;[228] a higher tax on oleomargarine than on butter;[229] an excise tax on "puts" but not on "calls";[230] a tax on the income of businesses operated by corporations but not on similar enterprises carried on by individuals;[231] an income tax on foreign corporations, based on their income from sources within the United States, while domestic corporations are taxed on income from all sources;[232] a tax on foreign-built but not upon domestic yachts;[233] a tax on employers of eight or more persons, with exemptions for agricultural labor and domestic service;[234] a gift tax law embodying a plan of graduations and exemptions under which donors of the same amount might be liable for different sums;[235] an Alaska statute imposing license taxes only on nonresident fisherman;[236] an act which taxed the manufacture of oil and fertilizer from herring at a higher rate than similar processing of other fish or fish offal;[237] an excess profits tax which defined "invested capital" with reference to the original cost of the property rather than to its present value;[238] and an undistributed profits tax in the computation of which special credits were allowed to certain taxpayers;[239] an estate tax upon the estate of a deceased spouse in respect of the moiety of the surviving spouse where the effect of the dissolution of the community is to enhance the value of the survivor's moiety.[240]

Retroactive Taxes

A gift tax cannot be imposed on gifts consummated before the taxing statute was adopted.[241] A conclusive presumption that gifts made within two years of death were made in contemplation of death was condemned as arbitrary and capricious even with respect to subsequent transfers.[242] A tax may be made retroactive for a short period to include profits made while it was in process of enactment. A special income tax on profits realized by the sale of silver, retroactive for 35 days, which was approximately the period during which the silver purchase bill was before Congress, was held valid.[243] An income tax law, made retroactive to the beginning of the calendar year in which it was adopted, was found constitutional as applied to the gain from the sale, shortly before its enactment, of property received as a gift during the year.[244] Retroactive assessment of penalties for fraud or negligence,[245] or of an additional tax on the income of a corporation used to avoid a surtax on its shareholders,[246] does not deprive the taxpayer of property without due process of law.

An additional excise tax imposed upon property still held for sale, after one excise tax had been paid by a previous owner, does not violate the due process clause.[247] A transfer tax measured in part by the value of property held jointly by a husband and wife, including that which comes to the joint tenancy as a gift from the decedent spouse, is valid,[248] as is the inclusion in the gross income of the settler of income accruing to a revocable trust during any period when he had power to revoke or modify it.[249]

GOVERNANCE OF THE INDIANS

The power of Congress in virtue of its wardship over Indians extends to a restriction on alienation of Indian lands even after a particular Indian has been granted citizenship.[250] But rights of tax exemption accruing to Indian allotments under an act of Congress, which have become vested, are protected by this amendment against repeal.[251] One who was duly enrolled as a member of the Chickasaw Nation acquired valuable rights which the Secretary of the Interior could not strike down without notice and hearing.[252] An act authorizing suit against allottees of Indian property as a class, for the value of services in securing the allotments, which provided for notice upon the governor of the tribe and designated the Attorney General to defend the suit, was consonant with due process.[253] Where the statute which created a tribal council for the Osage Indians, to be elected by the tribe, at the same time vested the Secretary of the Interior with discretion to remove a member without notice or hearing, there was no denial of due process of law since the right to elect was united in its creation with the right of removal.[254] A statute of the Choctaw Nation providing for the forfeiture and sale of buildings erected on their lands, was held to be unenforceable without giving the builder an opportunity to be heard.[255]

The National Eminent Domain Power

SCOPE OF POWER

Being an incident of sovereignty, the right of eminent domain requires no constitutional recognition. The requirement of just compensation is merely a limitation upon the exercise of a preexisting power[256] to which all private property is subject.[257] This prerogative of the National Government can neither be enlarged nor diminished by a State.[258] Whenever lands in a State are needed for a public purpose, Congress may authorize that they be taken, either by proceedings in the courts of the State, with its consent, or by proceedings in the courts of the United States, with or without any consent or concurrent act of the State.[259] The facts that land included in a federal reservoir project is owned by a State, or that its taking may impair the tax revenue of the State, that the reservoir will obliterate part of the State's boundary and interfere with the State's own project for water development and conservation, constitute no barrier to the condemnation of the land by the United States under its superior power of eminent domain.[260]

ALIEN PROPERTY

There is no constitutional prohibition against confiscation of enemy property.[261] Congress may authorize seizure and sequestration through executive channels of property believed to be enemy owned if adequate provision is made for return in case of mistake.[262] An alien friend is entitled to the protection of the Fifth Amendment against a taking of property for public use without just compensation.[263] The fact that property of our citizens may be confiscated in that alien's country does not subject the alien friend's property to confiscation here.[264]

PUBLIC USE

The extent to which private property shall be taken for public use rests wholly in the legislative discretion.[265] Whether the courts have power to review a determination of the lawmakers that a particular use is a public use was left in doubt by the decision in United States ex rel. T.V.A. _v._ Welch.[266] Speaking for the majority, Justice Black declared: "We think that it is the function of Congress to decide what type of taking is for a public use * * *"[267] In a concurring opinion in which Chief Justice Stone joined, Justice Reed took exception to that portion of the opinion, insisting that whether or not a taking is for a public purpose is a judicial question.[268] Justice Frankfurter interpreted the controlling opinion as recognizing the doctrine that "whether a taking is for a public purpose is not a question beyond judicial competence."[269] All agreed that the condemnation of property which had been isolated by the flooding of a highway, to avoid the expense of constructing a new highway, was a lawful public purpose. Previous cases have held that the preservation for memorial purposes of the line of battle at Gettysburg was a public use for which private property could be taken by condemnation;[270] that where establishment of a reservoir involved flooding part of a town, the United States might take nearby property for a new townsite and the fact that there might be some surplus lots to be sold did not deprive the transaction of its character as taking for public use.[271]

RIGHTS FOR WHICH COMPENSATION MUST BE MADE