The Constitution of the United States of America: Analysis and Interpretation Part 186

DEFINITIONS OF TERMS

What Const.i.tutes State Action

The inhibition against denial of equal protection of the laws has exclusive reference to State action. It means that no agency of the State, legislative, executive or judicial,[1005] no instrumentality of the State, and no person, officer or agent exerting the power of the State shall deny equal protection to any person within the jurisdiction of the State. The clause prohibits "discriminating and partial legislation * * * in favor of particular persons as against others in like condition."[1006] But it also has reference to the way the law is administered. "Though the law itself be fair on its face and impartial in appearance, yet, if it is applied and administered by public authority with an evil eye and an unequal hand, so as practically to make unjust and illegal discriminations between persons in similar circ.u.mstances, material to their rights, the denial of equal justice is still within the prohibition of the Const.i.tution."[1007] This was said in a case where a Chinese subject had been convicted of operating a laundry in violation of a munic.i.p.al ordinance which made it unlawful to engage in such business (except in a building constructed of brick or stone) without the consent of the board of supervisors. Permission had been withheld from pet.i.tioner and 200 other Chinese subjects but had been granted to 80 others to carry on the same business under similar conditions. This discrimination solely on the basis of nationality was held illegal. For an unlawful administration of a valid statute to const.i.tute a violation of const.i.tutional rights, purposeful discrimination must be shown. An erroneous performance of a statutory duty, although a violation of the statute, is not without more a denial of equal protection of the laws.[1008] This clause is also violated by the withholding of equal access to the courts,[1009] or by inequality of treatment in the courts.[1010] In Sh.e.l.ley _v._ Kraemer[1011] the use of judicial power to enforce private agreements of a discriminatory character was held unconst.i.tutional. Holding that restrictive covenants prohibiting the sale of homes to Negroes could not be enforced in the courts, Chief Justice Vinson said: "These are not cases, as has been suggested, in which the States have merely abstained from action, leaving private individuals free to impose such discriminations as they see fit. Rather, these are cases in which the States have made available to such individuals the full coercive power of government to deny to pet.i.tioners, on the grounds of race or color, the enjoyment of property rights in premises which pet.i.tioners are willing and financially able to acquire and which the grantors are willing to sell. The difference between judicial enforcement and nonenforcement of the restrictive covenants is the difference to pet.i.tioners between being denied rights of property available to other members of the community and being accorded full enjoyment of those rights on an equal footing."[1012] The action of the curators of a state university in refusing admission to an applicant on account of race is regarded as State action.[1013] A State cannot avoid the impact of the clause by the delegation of responsibility to a private body. After a period of vacillation, the Supreme Court has determined that the action of a political party in excluding Negroes from members.h.i.+p is unlawful when such members.h.i.+p is an essential qualification for voting in a primary conducted pursuant to State law.[1014]

"Persons"

In the case in which it was first called upon to interpret this clause the Court expressed doubt whether "any action of a State not directed by way of discrimination against the Negroes as a cla.s.s, or on account of their race, will ever be held to come within the purview of this provision."[1015] That view was soon abandoned. In 1877 it took jurisdiction of a series of cases, popularly known as the Granger cases, in which railroad corporations sought protection under the due process and equal protection clauses.[1016] Although every case was decided against the corporations on its merits, there was no expression of any doubt that the corporations were ent.i.tled to invoke the protection of the amendment. Nine years later the issue was settled definitely by an announcement from the bench by Chief Justice Waite that the Court would not hear argument on the question whether the equal protection clause applies to corporations, adding: "We are all of opinion that it does."[1017] At the same term the Court gave the broadest possible meaning to the word "person"; it held that: "These provisions are universal in their application, to all persons within the territorial jurisdiction, without regard to any differences of race, of color, or of nationality; * * *"[1018] The only qualification of the meaning of "person" is that introduced by subsequent decisions holding that a munic.i.p.al corporation cannot invoke the amendment against its State.[1019]

"Within Its Jurisdiction"

It is persons "within its jurisdiction" that are ent.i.tled to equal protection from a State. Largely because article IV, section 2, has from the beginning ent.i.tled "Citizens of each State" to the "Privileges and Immunities of Citizens in the several States," the Court has never construed the phrase, "within its jurisdiction," in relation to natural persons.[1020] The cases interpretive of this expression consequently all concern corporations. In 1898, the Court laid down the rule that a foreign corporation not doing business in a State under conditions that subjected it to process issuing from the courts of the State at the instance of suitors was not "within the jurisdiction," and could not complain of the preference granted resident creditors in the distribution of the a.s.sets of an insolvent corporation.[1021] That principle was subsequently qualified, over the dissent of Justices Brandeis and Holmes, by a holding that a foreign corporation which sued in a court of a State in which it was not licensed to do business to recover possession of property wrongfully taken from it in another State was "within the jurisdiction" and could not be subjected to unequal burdens in the maintenance of the suit.[1022] The test of amenability to service of process within the State was ignored in a recent case dealing with discriminatory a.s.sessment of property belonging to a nonresident individual. In holding that a federal court had jurisdiction to entertain a suit for a declaratory judgment to invalidate the tax, the Supreme Court specifically mentioned the equal protection clause as the source of the federal right, but took no account of the plaintiff's status as a nonresident, beyond a pa.s.sing reference to the existence of diversity of citizens.h.i.+p.[1023] When a State has admitted a foreign corporation to do business within its borders, that corporation is ent.i.tled to equal protection of the laws, but not necessarily to identical treatment with domestic corporations.[1024] A foreign corporation licensed to do business within a State upon payment of an annual license tax is subject to the power of the State to change at any time the conditions of admission for the future. If it fails to pay an increased license tax as a prerequisite to doing business, it is not "within the jurisdiction" and unequal burdens may be laid upon it as compared with other foreign corporations.[1025]

"Equal Protection of the Laws"

Equal protection of the laws means the protection of equal laws.[1026]

It forbids all invidious discrimination but does not require identical treatment for all persons without recognition of differences in relevant circ.u.mstances. It requires "that equal protection and security should be given to all under like circ.u.mstances in the enjoyment of their personal and civil rights; that all persons should be equally ent.i.tled to pursue their happiness and acquire and enjoy property; that they should have like access to the courts of the country for the protection of their persons and property, the prevention and redress of wrongs, and the enforcement of contracts; that no impediment should be interposed to the pursuits of anyone except as applied to the same pursuits by others under like circ.u.mstances; that no greater burdens should be laid upon one than are laid upon others in the same calling and condition, and that in the administration of criminal justice no different or higher punishment should be imposed upon one than such as is prescribed to all for like offenses."[1027] The Amendment was not "designed to interfere with the power of the State, sometimes termed its 'police power,' to prescribe regulations to promote the health, peace, morals, education, and good order of the people, and to legislate so as to increase the industries of the State, develop its resources, and add to its wealth and prosperity * * * Regulations for these purposes may press with more or less weight upon one than upon another, but they are designed, not to impose unequal or unnecessary restrictions upon anyone, but to promote, with as little individual inconvenience as possible, the general good. Though, in many respects, necessarily special in their character they do not furnish just ground of complaint if they operate alike upon all persons and property under the same circ.u.mstances and conditions."[1028] The due process and equal protection clauses overlap but the spheres of protection they offer are not coterminous. The due process clause "tends to secure equality of law in the sense that it makes a required minimum of protection for everyone's right of life, liberty, and property, which the Congress or the legislature may not withhold. * * * The guaranty [of equal protection] was aimed at undue favor and individual or cla.s.s privilege, on the other hand, and at hostile discrimination or the oppression of inequality, on the other."[1029]

Legislative Cla.s.sifications

Although the equal protection clause requires laws of like application to all similarly situated, the legislature is allowed wide discretion in the selection of cla.s.ses.[1030] Cla.s.sification will not render a State police statute unconst.i.tutional so long as it has a reasonable basis;[1031] its validity does not depend on scientific or marked differences in things or persons or in their relations. It suffices if it is practical.[1032] While a State legislature may not arbitrarily select certain individuals for the operation of its statutes, a selection is obnoxious to the equal protection clause only if it is clearly and actually arbitrary and not merely possibly so.[1033] A substantial difference, in point of harmful results, between two methods of operation, justifies a cla.s.sification and the burden is on the attacking party to prove it unreasonable.[1034] There is a strong presumption that discriminations in State legislation are based on adequate grounds.[1035] Every state of facts sufficient to sustain a cla.s.sification which can reasonably be conceived of as having existed when the law was adopted will be a.s.sumed.[1036]

There is no doctrinaire requirement that legislation should be couched in all-embracing terms.[1037] A police statute may be confined to the occasion for its existence.[1038] The equal protection clause does not mean that all occupations that are called by the same name must be treated in the same way.[1039] The legislature is free to recognize degrees of harm; a law which hits the evil where it is most felt will not be overthrown because there are other instances to which it might have been applied.[1040] The State may do what it can to prevent what is deemed an evil and stop short of those cases in which the harm to the few concerned is thought less important than the harm to the public that would ensue if the rules laid down were made mathematically exact.[1041]

Exceptions of specified cla.s.ses will not render the law unconst.i.tutional unless there is no fair reason for the law that would not equally require its extension to the excepted cla.s.ses.[1042] Incidental individual inequality does not violate the Fourteenth Amendment.[1043]

One who is not discriminated against cannot attack a statute because it does not go further; and if what it commands of one it commands of all others in the same cla.s.s, that person cannot complain of matter which the statute does not cover.[1044]

TAXATION

At the outset, the Court did not regard the equal protection clause as having any bearing on taxation.[1045] Before long, however, it took jurisdiction of cases a.s.sailing specific tax laws under this provision.[1046] In 1890 it conceded cautiously that "clear and hostile discriminations against particular persons and cla.s.ses, especially such as are of an unusual character, unknown to the practice of our governments, _might_ be obnoxious to the const.i.tutional prohibition."[1047] In succeeding years the clause has been invoked but sparingly to invalidate State levies. In the field of property taxation, inequality has been condemned only in two cla.s.ses of cases: (1) intentional discrimination in a.s.sessments; and (2) discrimination against foreign corporations. In addition, there are a handful of cases invalidating, because of inequality, State laws imposing income, gross receipts, sales and license taxes.

Cla.s.sifications for the Purpose of Taxation

The power of the State to cla.s.sify for purposes of taxation is "of wide range and flexibility."[1048] The Const.i.tution does not prevent it "from adjusting its system of taxation in all proper and reasonable ways. It may, if it chooses, exempt certain cla.s.ses of property from any taxation at all, such as churches, libraries, and the property of charitable inst.i.tutions. It may impose different specific taxes upon different trades and professions, and may vary the rates of excise upon various products; it may tax real estate and personal property in a different manner; it may tax visible property only, and not tax securities for payment of money; it may allow deductions for indebtedness, or not allow them. All such regulations, and those of like character, so long as they proceed within reasonable limits and general usage, are within the discretion of the State Legislature, * * *"[1049] A State may adjust its taxing system in such a way as to favor certain industries or forms of industry,[1050] and may tax different types of taxpayers differently, despite the fact that they compete.[1051] It does not follow that because "some degree of inequality from the nature of things must be permitted, gross inequality must also be allowed."[1052] Cla.s.sification may not be arbitrary; it must be based on a real and substantial difference,[1053] but the difference need not be great or conspicuous;[1054] but there must be no discrimination in favor of one as against another of the same cla.s.s.[1055] Also, discriminations of an unusual character are scrutinized with especial care.[1056] A gross sales tax graduated at increasing rates with the volume of sales,[1057]

a heavier license tax on each unit in a chain of stores where the owner has stores located in more than one county,[1058] and a gross receipts tax levied on corporations operating taxicabs, but not on individuals,[1059] have been held to be repugnant to the equal protection clause. But it is not the function of the Court to consider the propriety or justness of the tax, to seek for the motives and criticize the public policy which prompted the adoption of the statute.[1060] If the evident intent and general operation of the tax legislation is to adjust the burden with a fair and reasonable degree of equality, the const.i.tutional requirement is satisfied.[1061] One not within the cla.s.s claimed to be discriminated against cannot raise the question of const.i.tutionality of a statute on the ground that it denies equal protection of the law.[1062] If a tax applies to a cla.s.s which may be separately taxed, those within the cla.s.s may not complain because the cla.s.s might have been more aptly defined, nor because others, not of the cla.s.s, are taxed improperly.[1063]

Foreign Corporations

The equal protection clause does not require identical taxes upon all foreign and domestic corporations in every case.[1064] In 1886, a Pennsylvania corporation previously licensed to do business in New York challenged an increased annual license tax imposed by that State in retaliation for a like tax levied by Pennsylvania against New York corporations. This tax was held valid on the ground that the State, having power to exclude entirely, could change the conditions of admission for the future, and could demand the payment of a new or further tax, as a license fee.[1065] Later cases whittled down this rule considerably. The Court decided that "after its admission, the foreign corporation stands equal and is to be cla.s.sified with domestic corporations of the same kind,"[1066] and that where it has acquired property of a fixed and permanent nature in a State, it cannot be subjected to a more onerous tax for the privilege of doing business than domestic corporations.[1067] A State statute taxing foreign corporations writing fire, marine, inland navigation and casualty insurance on net receipts, including receipts from casualty business was held invalid under the equal protection clause where foreign companies writing only casualty insurance were not subject to a similar tax.[1068] Recently, the doctrine of Fire a.s.so. of Philadelphia _v._ New York was revived to sustain an increased tax on gross premiums which was exacted as an annual license fee from foreign but not from domestic corporations.[1069] Even though the right of a foreign corporation to do business in a State rests on a license, yet the equal protection clause is held to insure it equality of treatment, at least so far as _ad valorem_ taxation is concerned.[1070]

Income Taxes

A State law which taxes the entire income, including that derived without the State, of domestic corporations which do business in the State, while exempting entirely the income received outside the State by domestic corporations which do no local business, is arbitrary and invalid.[1071] In taxing the income of a nonresident, there is no denial of equal protection in limiting the deduction of losses to those sustained within the State, although residents are permitted to deduct all losses, wherever incurred.[1072] A retroactive statute imposing a graduated tax at rates different from those in the general income tax law, on dividends received in a prior year which were deductible from gross income under the law in effect when they were received, is not obnoxious to the equal protection clause.[1073]

Inheritance Taxes

In inheritance taxation, there is no denial of equal protection in prescribing different treatment for lineal relations, collateral kindred and strangers of the blood, or in increasing the proportionate burden of the tax progressively as the amount of the benefit increases.[1074] A tax on life estates where the remainder pa.s.ses to lineal heirs is valid despite the exemption of life estates where the remainder pa.s.ses to collateral heirs;[1075] there is no arbitrary cla.s.sification in taxing the transmission of property to a brother or sister, while exempting that to a son-in-law or a daughter-in-law.[1076] Vested and contingent remainders may be treated differently.[1077] The exemption of property bequeathed to charitable or educational inst.i.tutions may be limited to those within the State.[1078] In computing the tax collectible from a nonresident decedent's property within the State, a State may apply the pertinent rates to the whole estate wherever located, and take that proportion thereof which the property within the State bears to the total; the fact that a greater tax may result than would be a.s.sessed on an equal amount of property if owned by a resident,[1079] does not invalidate the result.

Motor Vehicle Taxes

In demanding compensation for the use of highways, a State may exempt certain types of vehicles, according to the purpose for which they are used, from a mileage tax on carriers.[1080] A State maintenance tax act, which taxes vehicle property carriers for hire at greater rates than similar vehicles carrying property not for hire is reasonable, since the use of roads by one hauling not for hire generally is limited to transportation of his own property as an incident to his occupation and is substantially less than that of one engaged in business as a common carrier.[1081] A property tax on motor vehicles used in operating a stage line that makes constant and unusual use of the highways may be measured by gross receipts and be a.s.sessed at a higher rate than taxes on property not so employed.[1082] Common motor carriers of freight operating over regular routes between fixed termini may be taxed at higher rates than other carriers, common and private.[1083] A fee for the privilege of transporting motor vehicles on their own wheels over the highways of the State for purpose of sale, does not violate the equal protection clause as applied to cars moving in caravans.[1084] The exemption from a tax for a permit to bring cars into the State in caravans of cars moved for sale between zones in the State is not an unconst.i.tutional discrimination where it appears that the traffic subject to the tax places a much more serious burden on the highways than that which is exempt.[1085] The exemption of small vehicles from graduated registration fees on carriers for hire,[1086] and of persons whose vehicles haul pa.s.sengers and farm products between points not having railroad facilities or hauling farm and dairy products for a producer from a vehicle license tax on private motor carriers, has been upheld.[1087]

Poll Taxes

A poll tax statute exempting women, the aged and minors, does not make an arbitrary cla.s.sification[1088].

Property Taxes

The State's lat.i.tude of discretion is notably wide in the cla.s.sification of property for purposes of taxation and the granting of partial or total exemption on the grounds of policy,[1089] whether the exemption results from the terms of the statute or the conduct of a State official under it.[1090] A provision for the forfeiture of land for nonpayment of taxes is not invalid because the conditions to which it applies exist only in a part of the State.[1091] Intentional and systematic undervaluation by State officials of other taxable property in the same cla.s.s contravenes the const.i.tutional right of one taxed upon the full value of his property;[1092] but mere errors in judgment resulting in unequal overvaluation or undervaluation, not intentional or systematic, will not support a claim of discrimination.[1093] Differences in the basis of a.s.sessment are not invalid where the person or property affected might properly be placed in a separate cla.s.s for purposes of taxation.[1094] An owner aggrieved by discrimination is ent.i.tled to have his a.s.sessment reduced to the common level.[1095] Equal protection is denied if a State does not itself remove the discrimination; it cannot impose upon the person against whom the discrimination is directed the burden of seeking an upward revision of the a.s.sessment of other members of the cla.s.s.[1096] A corporation whose valuations were accepted by the a.s.sessing commission cannot complain that it was taxed disproportionately, as compared with others, if the commission did not act fraudulently.[1097]

Special a.s.sessment

A special a.s.sessment is not discriminatory because apportioned on an _ad valorem_ basis, nor does its validity depend upon the receipt of some special benefit as distinguished from the general benefit to the community.[1098] Railroad property may not be burdened for local improvements upon a basis so wholly different from that used for ascertaining the contribution demanded of individual owners as necessarily to produce manifest inequality.[1099] A special highway a.s.sessment against railroads based on real property, rolling stock and other personal property is unjustly discriminatory when other a.s.sessments for the same improvement are based on real property alone.[1100] A law requiring the franchise of a railroad to be considered in valuing its property for apportionment of a special a.s.sessment, is not invalid where the franchises were not added as a separate personal property value to the a.s.sessment of the real property.[1101] In taxing railroads within a levee district on a mileage basis, it is not necessarily arbitrary to fix a lower rate per mile for those having less than 25 miles of main line within the district than for those having more.[1102]

POLICE POWER

Cla.s.sification

Justice Holmes once called the equal protection clause the "usual last refuge of const.i.tutional arguments."[1103] When State action is attacked under the due process clause, the a.s.sailant usually charges also that he is denied the equal protection of the laws. Except where discrimination on the basis of race or nationality is shown, few police regulations have been found unconst.i.tutional on this ground.[1104] The Court has condemned a statute which forbade stock insurance companies to act through agents who were their salaried employees, but permitted mutual companies to operate in this manner.[1105] A law which required private motor vehicle carriers to obtain certificates of convenience and necessity and to furnish security for the protection of the public was held invalid by reason of the exemption of carriers of fish, farm and dairy products.[1106] Discrimination among milk dealers without well advertised trade names, giving those who entered business before a specified date the benefit of a price differential denied to those who commenced operations thereafter, is arbitrary and unlawful.[1107] A statute providing for the sterilization of defectives in State inst.i.tutions was sustained;[1108] but a similar act applicable to triple offenders was held void.[1109]

Administrative Discretion

A munic.i.p.al ordinance which vests in supervisory authorities a naked and arbitrary power to grant or withhold consent to the operation of laundries in wooden buildings, without consideration of the circ.u.mstances of individual cases, const.i.tutes a denial of equal protection of the law when consent is withheld from certain persons solely on the basis of nationality.[1110] But a city council may reserve to itself the power to make exceptions from a ban on the operation of a dairy within the city,[1111] or from building line restrictions.[1112]

Written permission of the mayor or president of the city council may be required before any person shall move a building on a street.[1113] The Mayor may be empowered to determine whether an applicant has a good character and reputation and is a suitable person to receive a license for the sale of cigarettes.[1114] In a recent case[1115] the Court held that the unfettered discretion of officer river pilots to select their apprentices, which was almost invariably exercised in favor of their relatives and friends, was not a denial of equal protection to persons not selected despite the fact that such apprentices.h.i.+p was requisite for appointment as a pilot.

Alien Laws

The Fourteenth Amendment prohibits purely arbitrary discrimination against aliens.[1116] Where alien race and allegiance bear a reasonable relation to a legitimate object of legislation, it may be made the basis of cla.s.sification. Thus, legislation has been upheld under which aliens were forbidden to conduct pool rooms[1117] or to take game or possess shotguns.[1118] A discrimination between citizens and aliens in the matter of employment on public works is not unconst.i.tutional.[1119] A State cannot, however, deny to aliens the right to earn a living in ordinary occupations. Consequently, a statute requiring that employers of more than five workers employ not less than eighty percent qualified electors or natural born citizens denies equal protection of the law.[1120] Likewise a State law forbidding the issuance of commercial fis.h.i.+ng licenses to aliens ineligible for citizens.h.i.+p has been held void.[1121] State laws forbidding aliens to own real estate, have been upheld in the past.[1122] A less sympathetic att.i.tude toward such legislation was indicated in Oyama _v._ California, in 1948.[1123] There the State of California sought to escheat land owned by an American-born son of a j.a.panese father under a provision of its Alien Land Law which made payment by an alien of the consideration for a transfer of land to a third person _prima facie_ evidence of intent to evade the statute.

The Court held that the burden of proof imposed upon the son, an American citizen, by reason of his parent's country of origin, was an unlawful discrimination, but it did not pa.s.s upon the const.i.tutionality of the Alien Land Law itself. In concurring opinions four Justices took the position that the law was incompatible with the Fourteenth Amendment.[1124]