Chapter LXXV: Section 4: The United States shall guarantee to every State in (8)

The franchise of a private corporation is property which cannot be taken for public use without compensation. Upon condemnation of a lock and dam belonging to a navigation company, the Government was required to pay for the franchise to take tolls as well as for the tangible property.[272] Letters patent for a new invention or discovery in the arts confer upon the patentee an exclusive property for which compensation must be made when the Government uses the patent.[273] The frustration of a private contract by the requisitioning of the entire output of a steel manufacturer is not a taking for which compensation is required.[274] Where, however, the Government requisitioned from a power company all of the electric power which could be produced by use of the water diverted through its intake canal, thereby cutting off the supply of a lessee which had a right, amounting to a corporeal hereditament under State law, to draw a portion of that water, the latter was awarded compensation for the rights taken.[275] An order requiring the removal or alteration of a bridge over a navigable river, to abate the obstruction to navigation, is not a taking of property within the meaning of the Constitution.[276] The exclusion, from the amount to be paid to the owners of condemned property, of the value of improvements made by the Government under a lease, was held constitutional.[277] An undertaking to reduce the menace from flood damages which was inevitable but for the Government's work does not constitute the Government a taker of all lands not fully protected; the Government does not owe compensation under the Fifth Amendment to every landowner whom it fails to or cannot protect.[278]

When Property is Taken

According to the Legal Tender Cases,[279] the requirement of just compensation for property taken for public use refers only to direct appropriation and not to consequential injuries resulting from the exercise of lawful power. This formula leaves open the question as to whether injuries are "consequential" merely. Recent doctrine embodies a more definite test. In United States _v._ Dickinson,[280] the Supreme Court held that property is "taken" within the meaning of the Constitution "when inroads are made upon the owner's use of it to an extent that, as between private parties, a servitude has been acquired either by an agreement or in course of time."[281] Where the noise and glaring lights of planes landing at or leaving an airport leased to the United States, flying below the navigable air space as defined by Congress, interfere with the normal use of a neighboring farm as a chicken farm, there is such a taking as to give the owner a constitutional right to compensation.[282] That the Government had imposed a servitude on land adjoining its fort so as to constitute a taking within the law of eminent domain may be found from the facts that it had repeatedly fired the guns of the fort across the land and had established a fire control service there.[283] A corporation chartered by Congress to construct a tunnel and operate railway trains therein was held liable for damages in the suit by an individual whose property was so injured by smoke and gas forced from the tunnel as to amount to a taking of private property.[284]

Navigable Waters

Riparian ownership is subject to the power of Congress to regulate commerce. When damage results consequentially from an improvement of a navigable river, it is not a taking of property, but merely the exercise of a servitude to which the property is always subject.[285] What constitutes a navigable river within the purview of the commerce clause often involves sharply disputed issues of fact and of law. In the leading case of The Daniel Ball[286] the Court laid down the rule that: "Those rivers must be regarded as public navigable rivers in law which are navigable in fact. And they are navigable in fact when they are used, or are susceptible of being used, as highways for commerce, over which trade and travel are or may be conducted in the customary modes of trade and travel on water."[287] In 1940, over the dissent of two Justices, the Court held that the phrase "natural and ordinary condition" refers to volume of water, the gradients and the regularity of the flow. It further held that in determining the navigable character of a river it is proper to consider "the feasibility of interstate use after reasonable improvements which might be made."[288] A few months later it decided unanimously that Congress may exercise the power of eminent domain in connection with the construction of a dam and reservoir on the nonnavigable stretches of a river in order to preserve or promote commerce on the navigable portions.[289]

The Government does not have to compensate a riparian owner for cutting off his access to navigable waters by changing the course of the stream in order to improve navigation.[290] Where submerged land under navigable waters of a bay are planted with oysters, the action of the Government in dredging a channel across the bay in such a way as to destroy the oyster bed is not a "taking" of property in the constitutional sense.[291] The determination by Congress that the whole flow of a stream should be devoted to navigation does not take any private property rights of a water power company which holds a revocable permit to erect dams and dykes for the purpose of controlling the current and using the power for commercial purposes.[292] The interest of a riparian owner in keeping the level of a navigable stream low enough to maintain a power head for his use was not one for which he was entitled to be compensated when the Government raised the level by erecting a dam to improve navigation.[293] Inasmuch as a riparian owner has no private property in the flow of the stream, a license to maintain a hydroelectric dam, may, without offending the Fifth Amendment, contain a provision giving the United States an option to acquire the property at a value assumed to be less than its fair value at the time of taking.[294]

Where the Government erects dams and other obstructions across a river, causing an overflow of water which renders the property affected unfit for agricultural use and deprives it of all value, there is taking of property for which the Government is under an implied contract to make just compensation.[295] The construction of locks and for "canalizing" a river, which cause recurrent overflows, impairing but not destroying the value of the land amounts to a partial taking of property within the meaning of the Fifth Amendment;--the fee remains in the owner, subject to an easement in the United States to overflow it as often as may necessarily result from the operation of the lock and dam for purposes of navigation.[296] Compensation has been awarded for the erosion of land by waters impounded by a Government dam,[297] and for the destruction of the agricultural value of land located on a nonnavigable tributary of the Mississippi River, which as a result of the continuous maintenance of the river's level at high water mark, was permanently invaded by the percolation of the waters, and its drainage obstructed.[298] When the construction of locks and dams raised the water in a nonnavigable creek to about one foot below the crest of an upper milldam, thus preventing the drop in the current necessary to run the mill, there was a taking of property in the constitutional sense.[299] A contrary conclusion was reached with respect to the destruction of property of the owner of a lake through the raising of the lake level as a consequence of an irrigation project, where the result to the lake owner's property could not have been foreseen.[300]

JUST COMPENSATION

If only a portion of a single tract is taken, the owner's compensation includes any element of value arising out of the relation of the part taken to the entire tract.[301] Thus, where the taking of a strip of land across a farm closed a private right of way, an allowance was properly made for value of the easement.[302] On the other hand, if the taking has in fact benefited the owner, the benefit may be set off against the value of the land condemned.[303] But there may not be taken into account any supposed benefit which the owner may receive in common with all from the public use to which the property is appropriated.[304] Where Congress condemned certain lands for park purposes, setting off resulting benefits against the value of property taken, and by subsequent act directed the erection of a fire-station house therein, it was held that property was not thereby taken without just compensation.[305] The Constitution does not require payment of consequential damages to other property of the owner consisting of separate tracts adjoining that affected by the taking.[306]

Just compensation means the full and perfect equivalent, in money, of the property taken.[307] The owner's loss, not the taker's gain is the measure of such compensation.[308] Where the property has a determinable market value, that is the normal measure of recovery.[309] Market value is "what a willing buyer would pay in cash to a willing seller."[310] It may reflect not only the use to which the property is presently devoted but also that to which it may be readily converted.[311] But the value of the property to the Government for its particular use is not a criterion.[312] In two recent cases the Court held that the owners of cured pork[313] and black pepper[314] which was requisitioned by the Government during the war could recover only the O.P.A. ceiling price for those commodities, despite findings of the Court of Claims that the replacement cost of the meat exceeded its ceiling price, and that the pepper had a "retention value" in excess of that price. By a five-to-four decision it ruled that the Government was not obliged to pay the market value of a tug where such value had been enhanced as a consequence of the Government's urgent war time needs.[315]

Consequential damages such as destruction of a business,[316] the expense of moving fixtures and personal property from the premises, or the loss of goodwill which inheres in the location of the land, are not recoverable when property is taken in fee.[317] But a different principle obtains where only a temporary occupancy is assumed. If a portion of a long term lease is taken, damage to fixtures is allowed in addition to the value of the occupancy, and the expenses of moving, storage charges, and the cost of preparing the space for occupancy by the Government are proper elements to be considered in determining the fair rental value of the premises for the period taken.[318] These elements are not taken into account in fixing compensation for condemnation of leaseholds for the remainder of their term.[319] In Kimball Laundry Co. _v._ United States,[320] the Court by a close division held that when the United States condemned a laundry plant for temporary occupancy, evidence should have been received concerning the diminution in the value of its business due to destruction of its trade routes, and compensation allowed for any demonstrable loss of going-concern value. In United States _v._ Pewee Coal Co.,[321] involving another temporary seizure by the government, a similarly divided Court sustained the Court of Claims in awarding the company compensation for losses attributable to increased wage payments by the government. Four Justices thought no such loss had been shown.

Interest

Ordinarily property is taken under a condemnation suit upon the payment of the money award by the condemner and no interest accrues.[322] If, however, the property is taken in fact before payment is made, just compensation includes an increment which, to avoid use of the term "interest," the Court has called "an amount sufficient to produce the full equivalent of that value paid contemporaneously with the taking."[323] If the owner and the Government enter into a contract which stipulates the purchase price for lands to be taken, with no provision for interest, the Fifth Amendment is inapplicable and the landowner cannot recover interest even though payment of the purchase price is delayed.[324] Where property of a citizen has been mistakenly seized by the Government, converted into money and invested, the owner is entitled, in recovering compensation, to an allowance for the use of his property.[325]

Enforcement of Right to Compensation

When a taking of private property has been ordered, the question of just compensation is judicial.[326] The compensation to be paid may be ascertained by any appropriate tribunal capable of estimating the value of the property. Whether the tribunal shall be created directly by Congress or one already established by the State shall be adopted for the occasion, is a matter of legislative discretion.[327] The estimate of just compensation is not required to be made by a jury, but may be entrusted to commissioners appointed by a court or by the executive, or to an inquest consisting of more or fewer men than an ordinary jury.[328] The federal courts may take jurisdiction of an action in ejectment by a citizen against officers of the Government, to recover property of which he has been deprived by force and which has been converted to the use of the Government without lawful authority and without just compensation.[329] Where property is taken by the United States in the exercise of the power of eminent domain, but without condemnation proceedings, the owner may, under the Tucker Act, bring suit for just compensation in the Court of Claims or in a district court sitting as a Court of Claims.[330]

The Fifth Amendment does not require that compensation shall actually be paid in advance of the taking[331] but the owner is entitled to reasonable, certain, and adequate provision for obtaining compensation before his occupancy is disturbed.[332] In time of war or immediate public danger private property may be impressed into public service without the consent of the owner, but such taking raises an implied promise on the part of the United States to reimburse the owner.[333] An objection that an act of Congress providing for condemnation of land for a public purpose limited the aggregate amount to be expended was rejected, since the limitation did not affect the right of property holders in the event of condemnation.[334]

Notes

[1] Ex parte Wilson, 114 U.S. 417 (1885).

[2] Ibid. 427.

[3] Mackin _v._ United States, 117 U.S. 348, 352 (1886).

[4] United States _v._ Moreland, 258 U.S. 433 (1922).

[5] Ex parte Wilson, 114 U.S. 417, 426 (1885).

[6] Wong Wing _v._ United States, 163 U.S. 228, 237 (1896).

[7] Ex parte Wilson, 114 U.S. 417 (1885).

[8] Mackin _v._ United States, 117 U.S. 348 (1886).

[9] Parkinson _v._ United States, 121 U.S. 281 (1887).

[10] United States _v._ DeWalt, 128 U.S. 393 (1888).

[11] Ex parte Wilson, 114 U.S. 417, 426 (1885).

[12] Duke _v._ United States, 301 U.S. 492 (1937).

[13] Ex parte Bain, 121 U.S. 1, 12 (1887).

[14] Breese _v._ United States, 226 U.S. 1 (1912).

[15] Johnson _v._ Sayre, 158 U.S. 109, 114 (1895).

[16] Ex parte Quirin, 317 U.S. 1, 43, 44 (1942).

[17] Ex parte Lange, 18 Wall. 103, 169 (1874).

[18] Ibid. 172, 173.

[19] Kepner _v._ United States, 195 U.S. 100 (1904). This case arose under the act of Congress of July 1, 1902 (32 Stat. 631) for the temporary civil government of the Philippine Islands. To the same effect are United States _v._ Sanges, 144 U.S. 310, 323 (1892), and United States _v._ Evans, 213 U.S. 297 (1909), both cases arising within the United States.

[20] United States _v._ Oppenheimer, 242 U.S. 85 (1916).

[21] United States _v._ Ball, 161 U.S. 622, 669 (1896).

[22] Ex parte Lange, 18 Wall. 163 (1874).

[23] Bozza _v._ United States, 330 U.S. 160 (1947).

[24] Wade _v._ Hunter, 336 U.S. 684, 689 (1949).

[25] United States _v._ Perez, 9 Wheat. 579 (1824); Logan _v._ United States, 144 U.S. 263, 298 (1892).

[26] Simmons _v._ United States, 142 U.S. 148 (1891); Thompson _v._ United States, 155 U.S. 271 (1894).

[27] Lovato _v._ New Mexico, 242 U.S. 199 (1916).

[28] Wade _v._ Hunter, 336 U.S. 684 (1949).

[29] Collins _v._ Loisel, 262 U.S. 426 (1923).

[30] Taylor _v._ United States, 207 U.S. 120, 127 (1907).

[31] Bassing _v._ Cady, 208 U.S. 386, 391-392 (1908).

[32] United States _v._ Wilson, 7 Pet. 150, 160 (1883).

[33] Burton _v._ United States, 202 U.S. 344 (1906); United States _v._ Randenbush, 8 Pet. 288, 289 (1834).

[34] Morgan _v._ Devine, 237 U.S. 632 (1915). _See also_ Carter _v._ McClaughry, 183 U.S. 365 (1902); Albrecht _v._ United States, 273 U.S. 1 (1927).

[35] Ex parte Nielsen, 131 U.S. 176, 188 (1889).

[36] Helvering _v._ Mitchell, 303 U.S. 391 (1938).

[37] Pinkerton _v._ United States, 328 U.S. 640 (1946); United States _v._ Bayer, 331 U.S. 532 (1947).

[38] Pinkerton _v._ United States, 328 U.S. 640 (1946).

[39] American Tobacco Co. _v._ United States, 328 U.S. 781 (1946).

[40] 339 U.S. 485 (1950).

[41] Coffey _v._ United States, 116 U.S. 436 (1886).

[42] United States _v._ La Franca, 282 U.S. 568 (1931).

[43] Helvering _v._ Mitchell, 303 U.S. 391 (1938).

[44] Waterloo Distilling Corp. _v._ United States, 282 U.S. 577 (1931).

[45] United States _v._ Furlong, 5 Wheat. 184, 197 (1820).

[46] United States _v._ Lanza, 260 U.S. 377 (1922); Jerome _v._ United States, 318 U.S. 101 (1943).

[47] In re Chapman, 166 U.S. 661, 672 (1897).

[48] See generally J.H. Wigmore, 4 Evidence in Trials at Common Law, Sec. 2250 (2nd ed., 1923); also Edward S. Corwin, The Supreme Court's Construction of the Self-Incrimination Clause, 29 Michigan Law Review, 1-27, 195-207 (1930).

[49] McCarthy _v._ Arndstein, 266 U.S. 34, 40 (1924). _See also_ Boyd _v._ United States, 116 U.S. 616 (1886); Counselman _v._ Hitchcock, 142 U.S. 547 (1892); Brown _v._ Walker, 161 U.S. 591 (1896).

[50] Rogers _v._ United States, 340 U.S. 367, 370 (1951); United States _v._ Monia, 317 U.S. 424, 427 (1943).

[51] Hoffman _v._ United States, 341 U.S. 479, 486 (1951); Mason _v._ United States, 244 U.S. 362, 363 (1917).

[52] Rogers _v._ United States, 340 U.S. 367, 371 (1951); United States _v._ Murdock, 284 U.S. 141, 148 (1931).

[53] Brown _v._ Walker, 161 U.S. 591, 598-599 (1896).

[54] _Cf._ Burdick _v._ United States, 236 U.S. 79 (1915); and Biddle _v._ Perovich, 274 U.S. 480 (1927).

[55] United States _v._ Murdock, 284 U.S. 141, 149 (1931).

[56] Feldman _v._ United States, 322 U.S. 487 (1944).

[57] Brown _v._ Walker, 161 U.S. 591 (1896); Johnson _v._ United States, 318 U.S. 189 (1943).

[58] _Cf._ Twining _v._ New Jersey, 211 U.S. 78 (1908). However, a defendant in a prosecution by the United States enjoys a statutory right to have the jury instructed that his failure to testify creates no presumption against him. 28 U.S.C. 632; Bruno _v._ U.S., 308 U.S. 287 (1939). _See also_ 318 U.S. at 196.

[59] Pierce _v._ United States, 160 U.S. 355 (1896); Wilson _v._ United States, 162 U.S. 613 (1896); United States _v._ Mitchell, 322 U.S. 65 (1944).

[60] 318 U.S. 332 (1943).

[61] _Ibid._, 340. In Upshaw _v._ United States, 335 U.S. 410 (1948), a sharply divided Court found the McNabb case inapplicable to a case in which respondent, while under arrest for assault with intent to rape, was brought, by extended questioning, to confess having previously committed murder in an attempt to rape.

[62] Sullivan _v._ United States, 274 U.S. 259, 263 264 (1927).

[63] Blau _v._ United States, 340 U.S. 159 (1950). _See also_ Blau _v._ United States, 340 U.S. 332 (1951); Rogers _v._ United States, 340 U.S. 367 (1951); Dennis _v._ United States, 341 U.S. 494 (1951).

[64] Holt _v._ United States, 218 U.S. 245 (1910).

[65] Rochin _v._ California, 342 U.S. 165 (1952).

[66] Re Harris, 221 U.S. 274, 279 (1911).

[67] Dier _v._ Banton, 262 U.S. 147 (1923).

[68] Re Fuller, 262 U.S. 91 (1923).

[69] Arndstein _v._ McCarthy, 254 U.S. 71 (1920).

[70] McCarthy _v._ Arndstein, 262 U.S. 355 (1923).

[71] McCarthy _v._ Arndstein, 266 U.S. 34 (1924).

[72] Hale _v._ Henkel, 201 U.S. 43 (1906); Wilson _v._ United States, 221 U.S. 361 (1911); Oklahoma Press Pub. Co. _v._ Walling, 327 U.S. 186 (1946).

[73] United States _v._ White, 322 U.S. 694 (1944).

[74] Rogers _v._ United States, 340 U.S. 367, 372 (1951).

[75] _See_ pp. 825-828 _ante_.

[76] 335 U.S. 1 (1948).

[77] Ibid. 33. In a dissenting opinion Justice Frankfurter argued: "The underlying assumption of the Court's opinion is that all records which Congress in the exercise of its constitutional powers may require individuals to keep in the conduct of their affairs, because those affairs also have aspects of public interest, become 'public' records in the sense that they fall outside the constitutional protection of the Fifth Amendment. The validity of such a doctrine lies in the scope of its implications. The claim touches records that may be required to be kept by federal regulatory laws, revenue measures, labor and census legislation in the conduct of business which the understanding and feeling of our people still treat as private enterprise, even though its relations to the public may call for governmental regulation, including the duty to keep designated records.... If Congress by the easy device of requiring a man to keep the private papers that he has customarily kept can render such papers 'public' and nonprivileged, there is little left to either the right of privacy or the constitutional privilege." Ibid. 70.

[78] The Institutes, Part 2, 50-51 (1669).

[79] On the above _see_ especially Justice Harlan's dissenting opinion in Hurtado _v._ California, 110 U.S. 516, 538 (1884); _also_ Den ex dem. Murray _v._ Hoboken Land & Improvement Co., 18 How. 272, 280 (1856); Twining _v._ New Jersey, 211 U.S. 78 (1908); _also_ Corwin, Liberty Against Government (Louisiana State University Press), chap. III.

[80] Scott _v._ Sandford, 10 How. 393, 450 (1857).

[81] Adkins _v._ Children's Hospital, 261 U.S. 525 (1923). _See also_ Adair _v._ United States, 208 U.S. 161 (1908); and Lochner _v._ New York, 198 U.S. 45 (1905).

[82] Den ex dem. Murray _v._ Hoboken Land & Improvement Co., 18 How. 272, 276 (1856).

[83] Union P.R. Co. _v._ United States (Sinking Fund Cases), 99 U.S. 700, 719 (1879).

[84] Wong Wing _v._ United States, 163 U.S. 228, 238 (1896).

[85] United States _v._ Ju Toy, 198 U.S. 253, 263 (1905); _cf._ Quon Quon Poy _v._ Johnson, 273 U.S. 352 (1927).

[86] Wight _v._ Davidson, 181 U.S. 371, 384 (1901).

[87] Lovato _v._ New Mexico, 242 U.S. 199, 201 (1916).

[88] Public Utility Comrs. _v._ Ynchausti & Co., 251 U.S. 401, 406 (1920).

[89] Johnson _v._ Eisentrager, 339 U.S. 763 (1950); _cf._ In re Yamashita, 327 U.S. 1 (1946). Both decisions were reached by a divided Court. In the Yamashita Case, Justices Rutledge and Murphy dissented on the ground that the due process clause applies to every human being, including enemy belligerents.

[90] Davidson _v._ New Orleans, 96 U.S. 97, 102 (1878). Public Clearing House _v._ Coyne, 194 U.S. 497, 508 (1904).

[91] Ex parte Wall, 107 U.S. 265, 289 (1883).

[92] Interstate Commerce Commission _v._ Brimson, 154 U.S. 447, 489 (1894); Cooke _v._ United States, 267 U.S. 517, 537 (1925).

[93] Ex parte Wall, 107 U.S. 265 (1883).

[94] Reaves _v._ Ainsworth, 219 U.S. 296, 304 (1911). _See also_ Ex parte Reed, 100 U.S. 13 (1879); Johnson _v._ Sayre, 158 U.S. 109 (1895); Mullan _v._ United States, 212 U.S. 516 (1909); United States ex rel. Creary _v._ Weeks, 259 U.S. 336 (1922).

[95] Kahn _v._ Anderson, 255 U.S. 1 (1921).

[96] Crain _v._ United States, 162 U.S. 625, 645 (1896).

[97] Hopt _v._ Utah, 110 U.S. 574, 579 (1884).

[98] Blackmer _v._ United States, 284 U.S. 421, 440 (1932).

[99] Hovey _v._ Elliott, 167 U.S. 409, 417 (1897).

[100] Beall _v._ New Mexico ex rel. Griffin, 16 Wall. 535 (1873).

[101] United Surety Co. _v._ American Fruit Product Co., 238 U.S. 140 (1915).

[102] Helis _v._ Ward, 308 U.S. 365 (1939).

[103] Fayerweather _v._ Ritch, 195 U.S. 276 (1904).

[104] Hanover Nat. Bank _v._ Moyses, 186 U.S. 181, 192 (1902).

[105] Parsons _v._ District of Columbia, 170 U.S. 45 (1898).

[106] Wright _v._ Davidson, 181 U.S. 371 (1901).

[107] Jones _v._ Buffalo Creek Coal & Coke Co., 245 U.S. 328 (1917).

[108] Luria _v._ United States, 231 U.S. 9 (1913).

[109] Yee Hem _v._ United States, 268 U.S. 178 (1925).

[110] Tot _v._ United States, 319 U.S. 463 (1943).

[111] Opp Cotton Mills _v._ Administrator, 312 U.S. 126, 152, 153 (1941).

[112] 321 U.S. 503 (1944).

[113] Ibid. 521.

[114] Consolidated Edison Co. _v._ National Labor Relations Board, 305 U.S. 197 (1938).

[115] Central of Georgia R. Co. _v._ Wright, 207 U.S. 127, 136, 138, 142 (1907); Lipke _v._ Lederer, 259 U.S. 557, 562 (1922).

[116] Phillips _v._ Comr. of Internal Revenue, 283 U.S. 589 (1931). _Cf._ Springer _v._ United States, 102 U.S. 586, 593 (1881); and Passavant _v._ United States, 148 U.S. 214 (1893).

[117] Wong Yang Sung _v._ McGrath, 339 U.S. 33, 50 (1950).

[118] Morgan _v._ United States, 304 U.S. 1, 18-19 (1938).

[119] National Labor Relations Board _v._ Mackay Co., 304 U.S. 333, 349-350 (1938).

[120] Western Paper Makers' Chemical Co. _v._ United States, 271 U.S. 268 (1926). _See also_ United States _v._ Abilene & S.R. Co., 265 U.S. 274, 288 (1924).

[121] Consolidated Edison Co. _v._ National Labor Relations Board, 305 U.S. 197, 229-230 (1938).

[122] Londoner _v._ Denver, 210 U.S. 373 (1908).

[123] Federal Communications Commission _v._ WJR, 337 U.S. 265, 274-277 (1949).

[124] Ibid. 276. "The requirements imposed by the guaranty [of due process of law] are not technical, nor is any particular form of procedure necessary." Inland Empire Council _v._ Millis, 325 U.S. 697, 710 (1945). _See_ Administrative Procedure Act, 60 Stat. 237 (1946); 5 U.S.C. Sec. 1001-1011.

[125] 298 U.S. 38 (1936).

[126] Ibid. 51-54. Justices Brandeis, Stone and Cardozo, while concurring in the result, took exception to this proposition.

[127] Federal Power Commission _v._ Natural Gas Pipeline Co., 315 U.S. 575, 586 (1942); Federal Power Commission _v._ Hope Natural Gas Co., 320 U.S. 591 (1944).

[128] Federal Power Commission _v._ Hope Natural Gas Co., 320 U.S. 591, 602 (1944).

[129] 327 U.S. 1 (1946).

[130] 339 U.S. 103 (1950).

[131] Ibid. 111.

[132] 339 U.S. 703 (1950). Justices Black, Douglas and Burton dissented.

[133] United States _v._ Ju Toy, 198 U.S. 253, 263 (1905). _See also_ Yamataya _v._ Fisher, 189 U.S. 86, 100 (1903). _Cf._ United States ex rel. Knauff _v._ Shaughnessy, 338 U.S. 537 (1950).

[134] Oceanic Steam Navig. Co. _v._ Stranahan, 214 U.S. 320 (1909).

[135] Kwock Jan Fat _v._ White, 253 U.S. 454, 457 (1920). _See also_ Chin Yow _v._ United States, 208 U.S. 8 (1908).

[136] United States _v._ Sing Tuck, 194 U.S. 161 (1904). _See also_ Quon Quon Poy _v._ Johnson, 273 U.S. 352, 358 (1927).

[137] Zakonaite _v._ Wolf, 226 U.S. 272 (1012).

[138] 339 U.S. 33 (1950).

[139] 60 Stat. 237 (1946); 5 U.S.C. Sec. 1001 _et seq._ (1946).

[140] United States ex rel. Vajtauer _v._ Comr. of Immigration, 273 U.S. 103, 106 (1927). _See also_ Mahler _v._ Eby, 264 U.S. 32, 41 (1924).

[141] 198 U.S. 253 (1905).

[142] Ng Fung Ho _v._ White, 259 U.S. 276, 281 (1922).

[143] Ludecke _v._ Watkins, 335 U.S. 160 (1948). Three of the four dissenting Justices, Justices Douglas, Murphy and Rutledge, argued that even an enemy alien could not be deported without a fair hearing.

[144] Steward Machine Co. _v._ Davis, 301 U.S. 548, 584-585 (1937); Currin _v._ Wallace, 306 U.S. 1, 14 (1939); Sunshine Anthracite Coal Co. _v._ Adkins, 310 U.S. 381, 401 (1940); Detroit Bank _v._ United States, 317 U.S. 329, 337, 338 (1943).

[145] Hill _v._ United States ex rel. Weiner, 300 U.S. 105, 109 (1937).

[146] District of Columbia _v._ Brooke, 214 U.S. 138 (1909).

[147] Panama R. Co. _v._ Johnson, 264 U.S. 375, 392 (1924).

[148] United States _v._ Rock Royal Co-operative, 307 U.S. 533, 562, 565 (1939).

[149] Currin _v._ Wallace, 306 U.S. 1 (1939).

[150] Detroit Bank _v._ United States, 317 U.S. 329 (1943).

[151] Hurd _v._ Hodge, 334 U.S. 24 (1948).

[152] Thiel _v._ Southern Pacific Co., 328 U.S. 217 (1946).

[153] 323 U.S. 192 (1944).

[154] Ibid. 198, 199.

[155] Ibid. 208, 209. _Cf._ the following sentence from the concurring opinion of Justice Jackson in Railway Express Agency, Inc. _v._ New York, 336 U.S. 106, 112 (1949): "I regard it as a salutary doctrine that cities, states and the Federal Government must exercise their powers so as not to discriminate between their inhabitants except upon some reasonable differentiation fairly related to the object of regulation."

[156] 208 U.S. 161, 174 (1908).

[157] 313 U.S. 177, 187 (1941).

[158] 261 U.S. 525, 546 (1923).

[159] 300 U.S. 379, 400 (1937).

[160] Addyston Pipe and Steel Co. _v._ United States, 175 U.S. 211, 229 (1899).

[161] Baltimore & O.R. Co. _v._ Interstate Commerce Commission, 221 U.S. 612 (1911); Wilson _v._ New, 243 U.S. 322 (1917); Ellis _v._ United States, 206 U.S. 246 (1907). _See also_ United States _v._ Garbish, 222 U.S. 257 (1911).

[162] Patterson _v._ The "Eudora," 190 U.S. 169 (1903).

[163] Philadelphia, B. & W.R. Co. _v._ Schubert, 224 U.S. 603 (1912).

[164] Texas & N.O.R. Co. _v._ Brotherhood of Railway & S.S. Clerks, 281 U.S. 548 (1930); Virginian R. Co. _v._ System Federation, 300 U.S. 515, 559 (1937); National Labor Relations Board _v._ Jones & Laughlin Steel Corp., 301 U.S. 1 (1937).

[165] Highland _v._ Russell Car & Snow Plow Co., 279 U.S. 253, 261 (1929); United States _v._ Rock Royal Co-operative, 307 U.S. 533 (1939); Sunshine Anthracite Coal Co. _v._ Adkins, 310 U.S. 381 (1940); Bowles _v._ Willingham, 321 U.S. 503 (1944).

[166] Farrington _v._ Tokushige, 273 U.S. 284 (1927).

[167] Yu Cong Eng _v._ Trinidad, 271 U.S. 500, 525 (1926).

[168] Fleming _v._ Rhodes, 331 U.S. 100, 107 (1947).

[169] Woods _v._ Stone, 333 U.S. 472 (1948).

[170] 332 U.S. 194, 203 (1947).

[171] Knox _v._ Lee, 12 Wall. 457, 551 (1871).

[172] Norman _v._ Baltimore & O.R. Co., 294 U.S. 240 (1935).

[173] 44 Stat. 1424 (1927), 33 U.S.C. 901 _et seq._ (1946).

[174] Paramino Lumber Co. _v._ Marshall, 309 U.S. 370 (1940).

[175] Mulford _v._ Smith, 307 U.S. 38 (1939).

[176] McFaddin _v._ Evans-Snider-Buel Co., 185 U.S. 505 (1902).

[177] Montoya _v._ Gonzales, 232 U.S. 375 (1914).

[178] Ochoa _v._ Hernandez y Morales, 230 U.S. 139 (1913).

[179] United States ex rel. Burnett _v._ Teller, 107 U.S. 64, 68 (1883).

[180] Oregon & C.R. Co. _v._ United States, 243 U.S. 549 (1917).

[181] Capital Trust Co. _v._ Calhoun, 250 U.S. 208 (1919).

[182] Frisbie _v._ United States, 157 U.S. 160 (1895); _see also_ Margolin _v._ United States, 269 U.S. 93 (1925); Hines _v._ Lowrey, 305 U.S. 85 (1938).

[183] Wickard _v._ Filburn, 317 U.S. 111 (1942).

[184] Noble _v._ Union River Logging R. Co., 147 U.S. 165 (1893).

[185] Danzer Co. _v._ Gulf & S.I.R. Co., 268 U.S. 633 (1925).

[186] Lynch _v._ United States, 292 U.S. 571, 579 (1934). _See also_ Perry _v._ United States, 294 U.S. 330 (1935).

[187] Louisville Joint Stock Land Bank _v._ Radford, 295 U.S. 555 (1935).

[188] Wright _v._ Mountain Trust Co., 300 U.S. 440 (1937).

[189] Continental Illinois Nat. Bank & Trust Co. _v._ Chicago R.I. & P.R. Co., 294 U.S. 648 (1935).

[190] Kuehner _v._ Irving Trust Co., 299 U.S. 445 (1937).

[191] Re 620 Church Street Bldg. Corp., 299 U.S. 24 (1936).

[192] Lynch _v._ United States, 292 U.S. 571, 581 (1934).

[193] Dodge _v._ Osborn, 240 U.S. 118 (1916).

[194] Graham _v._ Goodcell, 228 U.S. 409 (1931).

[195] Anniston Mfg. Co. _v._ Davis, 301 U.S. 337 (1937).

[196] United States _v._ Heinszen & Co., 206 U.S. 370, 386 (1907).

[197] United States _v._ New York & C. Mail S.S. Co., 269 U.S. 304 (1925).

[198] United States _v._ Carolene Products Co., 304 U.S. 144 (1938); Carolene Products Co. _v._ United States, 323 U.S. 18 (1944).

[199] Kentucky Whip Collar Co. _v._ Illinois C.R. Co., 299 U.S. 334 (1937).

[200] Virginian R. Co. _v._ System Federation, 300 U.S. 515, 559 (1937); National Labor Relations Board _v._ Jones & Laughlin Steel Corp., 301 U.S. 1 (1937).

[201] National Labor Relations Board _v._ Stowe Spinning Co., 336 U.S. 226 (1949).

[202] National Labor Relations Board _v._ Mackay Co., 304 U.S. 333 (1938).

[203] Woods _v._ Miller, 333 U.S. 138, 146 (1948). _See also_ Bowles _v._ Willingham, 321 U.S. 503 (1944).

[204] Ex parte Jackson, 96 U.S. 727 (1878).

[205] Public Clearing House _v._ Coyne, 194 U.S. 497 (1904); sustained in Donaldson _v._ Read Magazine, 333 U.S. 178 (1948).

[206] 194 U.S. 497, 505-506.

[207] American School of Magnetic Healing _v._ McAnnulty, 187 U.S. 94 (1902).

[208] United States ex rel. Milwaukee Social Democratic Pub. Co. _v._ Burleson, 255 U.S. 407 (1921).

[209] St. Joseph Stock Yards Co. _v._ United States, 298 U.S. 38 (1936); Denver Union Stock Yards Co. _v._ United States, 304 U.S. 470 (1938).

[210] 320 U.S. 591 (1944). The result of this case had been foreshadowed by the opinion of Justice Stone in Federal Power Commission _v._ Natural Gas Pipeline Co., 315 U.S. 575, 586 (1942) to the effect that the Commission was not bound to the use of any single formula or combination of formulas in determining rates.

[211] 320 U.S. 591, 602, 605 (1944).

[212] American Telephone & Telegraph Co. _v._ United States, 299 U.S. 232 (1936); United States _v._ New York Telephone Co., 326 U.S. 638 (1946); Northwestern Electric Co. _v._ Federal Power Commission, 321 U.S. 119 (1944).

[213] Valvoline Oil Co. _v._ United States, 308 U.S. 141 (1939); Champlin Refining Co. _v._ United States, 329 U.S. 29 (1946).

[214] Isbrandtsen-Moller Co. _v._ United States, 300 U.S. 139, 146 (1937).

[215] St. Louis S.W. Ry. Co. _v._ United States, 245 U.S. 136, 143 (1917).

[216] Akron C. & Y.R. Co. _v._ United States, 261 U.S. 184 (1923).

[217] Dayton-Goose Creek R. Co. _v._ United States, 263 U.S. 456, 481, 483 (1924).

[218] Chicago, I. & L.R. Co. _v._ United States, 270 U.S. 287 (1926). _Cf._ Seaboard Air Line R. Co. _v._ United States, 254 U.S. 57 (1920).

[219] United States _v._ Berwind-White Coal Mine Co., 274 U.S. 564, 575 (1927).

[220] United States ex rel. Attorney General _v._ Delaware & Hudson Co., 213 U.S. 366, 405, 411, 415 (1909).

[221] United States _v._ Lowden, 308 U.S. 225 (1939).

[222] Louisville & N.R. Co. _v._ Mottley, 219 U.S. 467 (1911).

[223] Chicago, R.I. & P.R. Co. _v._ United States, 284 U.S. 80 (1931).

[224] Railroad Retirement Board _v._ Alton R. Co., 295 U.S. 330 (1935).

[225] United States _v._ Bennett, 232 U.S. 299, 307 (1914).

[226] Cook _v._ Tait, 265 U.S. 47 (1924).

[227] Helvering _v._ Lerner Stores Corp., 314 U.S. 463, 468 (1941).

[228] Brushaber _v._ Union P.R. Co., 240 U.S. 1, 24 (1916).

[229] McCray _v._ United States, 195 U.S. 27, 61 (1904).

[230] Treat _v._ White, 181 U.S. 264 (1901).

[231] Flint _v._ Stone Tracy Co., 220 U.S. 107 (1911).

[232] National Paper & Type Co. _v._ Bowers, 266 U.S. 373 (1924).

[233] Billings _v._ United States, 232 U.S. 261, 282 (1914).

[234] Steward Machine Co. _v._ Davis, 301 U.S. 548 (1937); Helvering _v._ Davis, 301 U.S. 619 (1937).

[235] Bromley _v._ McCaughn, 280 U.S. 124 (1929).

[236] Haavik _v._ Alaska Packers' Association, 263 U.S. 510 (1924).

[237] Alaska Fish Salting & By-Products Co. _v._ Smith, 255 U.S. 44 (1921).

[238] La Belle Iron Works _v._ United States, 256 U.S. 377 (1921).

[239] Helvering _v._ Northwest Steel Mills, 311 U.S. 46 (1940).

[240] Fernandez _v._ Wiener, 326 U.S. 340 (1945); _cf._ Coolidge _v._ Long, 282 U.S. 582 (1931).

[241] Untermeyer _v._ Anderson, 276 U.S. 440 (1928). _See also_ Blodgett _v._ Holden, 275 U.S. 142 (1927); Nichols _v._ Coolidge, 274 U.S. 531 (1927).

[242] Heiner _v._ Donnan, 285 U.S. 312 (1932).

[243] United States _v._ Hudson, 299 U.S. 498 (1937). _See also_ Stockdale _v._ Insurance Companies, 20 Wall. 323, 331, 341 (1874); Brushaber _v._ Union Pac. R.R., 240 U.S. 1, 20 (1916); Lynch _v._ Hornby, 247 U.S. 339, 343 (1918).

[244] Cooper _v._ United States, 280 U.S. 409 (1930); _see also_ Reinecke _v._ Smith, 289 U.S. 172 (1933).

[245] Helvering _v._ Mitchell, 303 U.S. 391 (1938).

[246] Helvering _v._ Nat. Grocery Co., 304 U.S. 282 (1938).

[247] Patton _v._ Brady, 184 U.S. 608 (1902).

[248] Tyler _v._ United States, 281 U.S. 497 (1930); United States _v._ Jacobs, 306 U.S. 363 (1939).

[249] Reinecke _v._ Smith, 289 U.S. 172 (1933).

[250] Tiger _v._ Western Investment Co., 221 U.S. 286 (1911). _See also_ Brader _v._ James, 246 U.S. 88 (1918); Williams _v._ Johnson, 239 U.S. 414 (1915); Lone Wolf _v._. Hitchcock, 187 U.S. 553 (1903).

[251] Choate _v._ Trapp, 224 U.S. 665 (1912). _See also_ English _v._ Richardson, 224 U.S. 680 (1912).

[252] Garfield _v._ United States, 211 U.S. 249 (1908). _See also_ United States ex rel. Turner _v._ Fisher, 222 U.S. 204 (1911).

[253] Winton _v._ Amos, 255 U.S. 373 (1921).

[254] United States ex rel. Brown _v._ Lane, 232 U.S. 598 (1914).

[255] Walker _v._ McLoud, 204 U.S. 302, 309 (1907); Carpenter _v._ Shaw, 280 U.S. 363 (1930).

[256] United States _v._ Jones, 109 U.S. 513, 518 (1883); United States _v._ Carmack, 329 U.S. 230, 241 (1946).

[257] United States _v._ Lynah, 188 U.S. 445, 465 (1903).

[258] Kohl _v._ United States, 91 U.S. 367, 374 (1876).

[259] Chappell _v._ United States, 160 U.S. 499, 510 (1896).

[260] Oklahoma _v._ Atkinson Co., 313 U.S. 508, 534 (1941).

[261] United States _v._ Chemical Foundation, 272 U.S. 1, 11 (1926). _See also_ Brown _v._ U.S., 8 Cr. 110 (1814); Page (Miller) _v._ United States, 11 Wall. 268, 304 (1871); Woodson _v._ Deutsche G. & S.S.V. Roessler, 292 U.S. 449 (1934); United States _v._ Dunnington, 146 U.S. 338 (1892); Cummings _v._ Deutsche Bank, 300 U.S. 115 (1937).

[262] Stoehr _v._ Wallace, 255 U.S. 239, 245 (1921).

[263] Silesian-American Corp. _v._ Clark, 332 U.S. 469 (1947); Becker Steel Co. _v._ Cummings, 296 U.S. 74 (1935).

[264] Russian Volunteer Fleet _v._ United States, 282 U.S. 481 (1931), followed in Guessefeldt _v._ McGrath, 342 U.S. 308 (1952).

[265] Shoemaker _v._ United States, 147 U.S. 282, 298 (1893).

[266] 327 U.S. 546 (1946).

[267] Ibid. 551.

[268] Ibid. 556-557; citing United States _v._ Gettysburg Electric R. Co., 160 U.S. 668, 680 (1896); Rindge Co. _v._ Los Angeles County, 262 U.S. 700, 709 (1923); Old Dominion Land Co. _v._ United States, 269 U.S. 55, 66 (1925); Cincinnati _v._ Vester, 281 U.S. 439, 446 (1930).

[269] 327 U.S. 546, 557-558.

[270] United States _v._ Gettysburg Electric R. Co., 160 U.S. 668 (1896).

[271] Brown _v._ United States, 263 U.S. 78 (1923).

[272] Monongahela Nav. Co. _v._ United States, 148 U.S. 312, 345 (1893).

[273] James _v._ Campbell, 104 U.S. 356, 358 (1882). _See also_ Hollister _v._ Benedict & B. Mfg. Co., 113 U.S. 59, 67 (1885).

[274] Omnia Commercial Co. _v._ United States, 261 U.S. 502 (1923).

[275] International Paper Co. _v._ United States, 282 U.S. 399 (1931).

[276] Hannibal Bridge Co. _v._ United States, 221 U.S. 194, 205 (1911).

[277] Old Dominion Land Co. _v._ United States, 269 U.S. 55 (1925).

[278] United States _v._ Sponenbarger, 308 U.S. 256 (1939).

[279] 12 Wall. 457, 551 (1871).

[280] 331 U.S. 745 (1947).

[281] Ibid. 748.

[282] United States _v._ Causby, 328 U.S. 256 (1946).

[283] Portsmouth Harbor Land & Hotel Co. _v._ United States, 260 U.S. 327 (1922). _Cf._ Portsmouth Harbor Land & Hotel Co. _v._ United States, 250 U.S. 1 (1919); Peabody _v._ United States, 231 U.S. 530 (1913).

[284] Richards _v._ Washington Terminal Co., 233 U.S. 546 (1914).

[285] Gibson _v._ United States, 166 U.S. 269, 271, 272 (1897).

[286] 10 Wall. 557 (1871).

[287] Ibid. 563.

[288] United States _v._ Appalachian Electric Power Co., 311 U.S. 377, 407, 409 (1940).

[289] Oklahoma _v._ Atkinson Co., 313 U.S. 508, 523 (1941).

[290] United States _v._ Commodore Park, Inc., 324 U.S. 386 (1945).

[291] Lewis Blue Point Oyster Cultivation Co. _v._ Briggs, 229 U.S. 82 (1913).

[292] United States _v._ Chandler-Dunbar Co., 229 U.S. 53 (1913).

[293] United States _v._ Willow River Power Co., 324 U.S. 499 (1945).

[294] United States _v._ Appalachian Electric Power Co., 311 U.S. 377, 427 (1940).

[295] United States _v._ Lynah, 188 U.S. 445 (1903). _See also_ Jacobs _v._ United States, 290 U.S. 13 (1933).

[296] United States _v._ Cress, 243 U.S. 316, 328, 329 (1917).

[297] United States _v._ Dickinson, 331 U.S. 745 (1947).

[298] United States _v._ Kansas City Ins. Co., 339 U.S. 799 (1950).

[299] United States _v._ Cress, 243 U.S. 316 (1917).

[300] Horstmann Co. _v._ United States, 257 U.S. 138 (1921).

[301] Bauman _v._ Ross, 167 U.S. 548 (1897); Sharp _v._ United States, 191 U.S. 341, 351-352, 354 (1903).

[302] United States _v._ Welch, 217 U.S. 333 (1910).

[303] Bauman _v._ Ross, 167 U.S. 548 (1897).

[304] Monongahela Nav. Co. _v._ United States, 148 U.S. 312, 326 (1893).

[305] Reichelderfer _v._ Quinn, 287 U.S. 315, 318 (1932).

[306] Sharp _v._ United States, 191 U.S. 341 (1903).

[307] Monongahela Nav. Co. _v._ United States, 148 U.S. 312, 326 (1893).

[308] United States ex rel. T.V.A. _v._ Powelson, 319 U.S. 266, 281 (1943); United States _v._ Miller, 317 U.S. 369, 375 (1943).

[309] United States ex rel. T.V.A. _v._ Powelson, 319 U.S. 266, 275 (1943); United States _v._ New River Collieries Co., 262 U.S. 341 (1923).

[310] United States _v._ Miller, 317 U.S. 369, 374 (1943). _See also_ Olson _v._ United States, 292 U.S. 246 (1934). _Cf._ Kimball Laundry Co. _v._ United States, 338 U.S. 1 (1949).

[311] Boom Co. _v._ Patterson, 98 U.S. 403 (1879); McCandless _v._ United States, 298 U.S. 342 (1936).

[312] United States _v._ Chandler-Dunbar Co., 229 U.S. 53 (1913).

[313] United States _v._ John J. Felin & Co., 334 U.S. 624 (1948).

[314] United States _v._ Commodities Trading Corp., 339 U.S. 121 (1950).

[315] United States _v._ Cors, 337 U.S. 325, 333 (1949). In United States _v._ Toronto Nav Co., 338 U.S. 396 (1949) the Court reversed a decision of the Court of Claims which based an award for an obsolete Great Lakes car ferry in part on a capitalization of its prior earnings, and in part on isolated sales of similar vessels used between Florida and Cuba.

[316] Mitchell _v._ United States, 267 U.S. 341 (1925).

[317] United States _v._ General Motors Corp., 323 U.S. 373, 379 (1945).

[318] Ibid. 382-384.

[319] United States _v._ Petty Motor Co., 327 U.S. 372 (1946).

[320] 338 U.S. 1 (1949).

[321] 341 U.S. 114 (1951).

[322] Danforth _v._ United States, 308 U.S. 271, 284 (1939).

[323] United States _v._ Klamath Indians, 304 U.S. 119, 123 (1938); Jacobs _v._ United States, 290 U.S. 13, 17 (1933).

[324] Albrecht _v._ United States, 329 U.S. 599 (1947).

[325] Henkels _v._ Sutherland, 271 U.S. 298 (1926). _See also_ Phelps _v._ United States, 274 U.S. 341 (1927).

[326] Monongahela Nav. Co. _v._ United States, 148 U.S. 312, 327 (1893).

[327] United States _v._ Jones, 109 U.S. 513, 519 (1883).

[328] Bauman _v._ Ross, 167 U.S. 548, 593 (1897).

[329] United States _v._ Lee, 106 U.S. 196, 220 (1882).

[330] Jacobs _v._ United States, 290 U.S. 13 (1933); United States _v._ Great Falls Mfg. Co., 112 U.S. 645 (1884).

[331] Hurley _v._ Kincaid, 285 U.S. 95 (1932).

[332] Cherokee Nation _v._ Southern Kansas R. Co., 135 U.S. 641, 659 (1890).

[333] United States _v._ Russell, 13 Wall. 623 (1871).

[334] Shoemaker _v._ United States, 147 U.S. 282, 302 (1893).

AMENDMENT 6

RIGHTS OF ACCUSED IN CRIMINAL PROSECUTIONS

Page Coverage of the amendment 877 Offenses against the United States 877 Trial by jury 878 Impartial jury 879 Place of trial 880 Definition of crime 881 Right of confrontation 884 Assistance of counsel 884

RIGHTS OF ACCUSED IN CRIMINAL PROSECUTIONS

Amendment 6

In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defense.

Coverage of the Amendment

Criminal prosecutions in the District of Columbia[1] and in incorporated territories[2] must conform to this amendment, but those in unincorporated territories need not.[3] For this purpose, Alaska was held to be an incorporated territory even before the organization of its territorial government.[4] In in re Ross[5] the requirements of this amendment were held to cover only citizens and others within the United States or who are brought to the United States for trial for alleged offenses committed elsewhere, not to citizens residing or temporarily sojourning abroad.[6] Accordingly, laws passed to carry into effect treaties granting extraterritorial rights were not rendered unconstitutional by the fact that they did not secure to an accused the right to trial by jury.

Offenses Against the United States

There are no common law offenses against the United States. Only those acts which Congress has forbidden, with penalties for disobedience of its command, are crimes.[7] As used in the Constitution the word "crime" embraces only offenses of a serious character. Petty offenses may be proceeded against summarily in any tribunal legally constituted for that purpose.[8] The nature of the act and the severity of punishment prescribed determine whether an offense is serious or petty. A penalty of $50 for a violation, not necessarily involving moral delinquency, of a revenue statute indicates only a petty offense.[9] The unlawful sale of the unused portion of railway excursion tickets without a license, is at most an infringement of local police regulations; and its moral quality is relatively inoffensive; it may therefore be tried without a jury.[10] But a charge of driving an automobile recklessly, so as to endanger life and property, is a "grave offense" for which a jury trial is requisite.[11] A conspiracy to invade the rights of another person also falls in that category.[12]

Actions to recover penalties imposed by act of Congress,[13] deportation proceedings[14] and contempt proceedings[15] for violation of an injunction have been held not to be criminal prosecutions. Only a prosecution which is technically criminal in its nature falls within the purview of Amendment VI.[16] The concept of a criminal prosecution is much narrower than that of a "criminal case" under the Fifth Amendment.[17]

Trial by Jury

The trial by jury required by the Constitution includes all the essential elements of jury trial which were recognized in this country and in England when the Constitution was adopted;[18] a jury must consist of twelve men, neither more nor less;[19] the trial must be held in the presence and under the superintendence of a judge having power to instruct the jurors as to the law and advise them in respect of the facts,[20] and the verdict must be unanimous.[21] But the requirement of a jury trial is not jurisdictional; it is a privilege which the defendant may waive with the consent of the Government and the approval of the court. There is no distinction between a complete waiver of a jury and a consent to be tried by less than twelve men.[22] When a person is charged with more than one crime, the right to a speedy trial does not require that he be first tried on the earliest indictment; no constitutional right is violated by removing him to another jurisdiction for trial on a later indictment.[23]

Impartial Jury

"* * *, the guarantee of an impartial jury to the accused in a criminal prosecution, * * *, secures to him the right to enjoy that mode of trial from the first moment, and in whatever court, he is put on trial for the offense charged. * * * To accord to the accused a right to be tried by a jury, in an appellate court, after he has been once fully tried otherwise than by a jury, in the court of original jurisdiction, and sentenced to pay a fine or be imprisoned for not paying it, does not satisfy the requirements of the Constitution."[24]

The qualification of government employees to serve on juries in the District of Columbia has been the principal source of controversy concerning the meaning of the phrase "impartial jury." In 1909, the Supreme Court decided, on common law grounds, that such employees were disqualified in criminal proceedings instituted by the Government.[25] As the proportion of public to private employees increased, this decision created difficulties in securing properly qualified jurors. To meet the situation, Congress removed the disqualification by statute in 1935. In United States _v._ Wood,[26] the act was held valid as applied in a criminal prosecution for theft from a private corporation. By a narrow majority the Court has subsequently held that government employees as a class are not disqualified by an implied bias against a person accused of violating the federal narcotics statutes,[27] nor against an officer of the Communist party charged with willful failure to appear before a Congressional committee in compliance with a subpoena.[28] In both cases, the way was left open for a defendant to establish the disqualification of federal employees by adducing proof of actual bias.

The Constitution does not require Congress to allow peremptory challenge to jurors in criminal cases. Consequently the contention that several defendants being tried together on a charge of conspiracy were denied a trial by an impartial jury because each was not allowed the full statutory number of peremptory challenges was without merit.[29] It is good ground for challenge for cause that a juror has formed an opinion as to the issue to be tried. But every opinion which a juror may entertain does not necessarily disqualify him. Upon the trial of the issue of fact raised by such a challenge, the Court must determine whether the nature and strength of the opinion are such as in law necessary to raise the presumption of partiality.[30] A member of the Socialist party is not denied any constitutional right by being tried by a jury composed exclusively of members of other parties and of property owners.[31]

Place of Trial

An accused cannot be tried in one district under an indictment showing that the offense was committed in another;[32] the locality in which the offense is charged to have been committed determines the place and court of trial.[33] In a prosecution for conspiracy, the accused may be tried in any State and district where an overt act was performed.[34] Where a United States Senator was indicted for agreeing to receive compensation for services to be rendered in a proceeding before a government department, and it appeared that a tentative arrangement for such services was made in Illinois and confirmed in St. Louis, the defendant was properly tried in St. Louis, although he was not physically present in Missouri when notice of ratification was dispatched.[35] The offense of obtaining transportation of property in interstate commerce at less than the carrier's published rates,[36] or the sending of excluded matter through the mails,[37] may be made triable in any district through which the forbidden transportation is conducted. By virtue of a presumption that a letter is delivered in the district to which it is addressed, the offense of scheming to defraud a corporation by mail was held to have been committed in that district although the letter was posted elsewhere.[38] The Constitution does not require any preliminary hearing before issuance of a warrant for removal of an accused to the court having jurisdiction of the charge.[39] The assignment of a district judge from one district to another, conformably to statute, does not create a new judicial district whose boundaries are undefined nor subject the accused to trial in a district not established when the offense with which he is charged was committed.[40] For offenses against federal laws not committed within any State, Congress has the sole power to prescribe the place of trial; such an offense is not local and may be tried at such place as Congress may designate.[41] The place of trial may be designated by statute after the offense has been committed.[42]

Definition of Crime

The effect of the clause entitling an accused to know the nature and cause of the accusation against him commences with the statutes fixing or declaring offenses. It adopts the general rule of the common law that such statutes are not to be construed to embrace offenses which are not within their intention and terms. Under this clause it is necessary that a crime "be in some way declared by the legislative power"; it "cannot be constructed by the courts from any supposed intention of the legislature which the statute fails to state."[43] A criminal statute which is so vague that it leaves the standard of guilt to the "variant views of the different courts and juries which may be called on to enforce it"[44] cannot be squared with this provision. Thus it was held, in the United States v. Cohen Grocery Co.,[45] that a statute making it unlawful "for any person willfully * * * to make any unjust or unreasonable rate or charge in handling or dealing in or with any necessaries" was unconstitutional because it was not "adequate to inform persons accused of violation thereof of the nature and cause of the accusation against them."[46] But a provision of the Immigration Act[47] which makes it a felony for an alien against whom a specified order of deportation is pending to "willfully fail or refuse to make timely application in good faith for travel or other documents necessary to his departure" is not, on its face, void for indefiniteness.[48]