Collins v. Hardyman Brief Amicus Curiae

    Supreme Court of the United States
October Term, 1950

No. 217

ORVILLE COLLINS, H. D. BURKHEIMER, STANLEY 
LORD, JAMES E. DOGGETT and RALPH BAKER,

Petitioners,
vs.

HUGH HARDYMAN, MRS. EMERSON MORSE, MRS. 
TOSCA CUMMINGS and MRS. MABLE PRICE,

Respondents.

BRIEF FOR THE NATIONAL ASSOCIATION FOR 
THE ADVANCEMENT OF COLORED PEOPLE 

AS AMICUS CURIAE.

L oren Miller,
129 West 3rd Street,
Los Angeles, California,

T htjbgood Marshall,
J ack Greenberg,

20 West 40th Street,
New York City, New York, 

Attorneys for the National 
Association for the Advance­
ment of Colored, People.



I N D E X

PAGE

Interest of tlie National Association for the Advance­
ment of Colored People__________________________ 1

I—Section 47(3) covers the action of private persons 
who infringe certain constitutionally granted 
rights _______________________________________  2
A. General Congressional Definition---------------  3

B. No Contrary Specific Definition ----------------- 4

C. No Internal Evidence That Word Is Being
Used in Unusual Sense-------------------------  4

D. The Customary Congressional Usage ---------  5

E. Legislative History ----------------------------------  7
F. If Ambiguity Exists, Public Policy Dictates

Respondents’ Construction of “ Person”  7

Conclusion ________________________________________  11

Table of Authorities Cited 

Cases

Bridges v. California, 314 U. S. 252 ------------------------- 9

Kovacs v. Cooper, 93 L. Ed. 379 -------------------------------  9
Thomas v. Collins, 323 U. S. 516-------------------------------  9
Thornhill v. Alabama, 310 U. S. 8 8 ----------------------------  9
United States v. Carolene Products Co., 304 U. S. 144 — 9

West Virginia State Board of Education v. Barnette,
319 U. S. 624 ___________________________________  9



Miscellaneous
PAGE

Clark, A Federal Prosecutor Looks at the Civil Rights 
Statutes, 47 Col. L. R. 175 (1947) _______________  11

Crawford, The Construction of Statutes, 1940 -------- - , 8
Dowling, Constitutional Law, 1947 --------------------------  9
Frankfurter, Some Reflections on the Reading of Stat­

utes, 47 Col. L. R. 527 (1947) ________ ___________  3
Lerner, The Mind and Faith of Justice Holmes (1943) 9
Sutherland, Statutory Constitution (1943) ---------------  8

Statutes

13 Stat. 258 ________________________________________  3
14 Stat. 163 ________________________________________  3
15 Stat. 166 -------------------------    3
16 Stat. 431 ________________________________________  4
1 United States Code Annotated, Sec. 1 ------------------- 5
2 United States Code Annotated, Sec. 261(c) -----------  6
4 United States Code Annotated, Sec. 110 ---------------  6
5 United States Code Annotated, Sec. 1001(b) ---------  6
6 United States Code Annotated, Sec. 15 -----------------  6
6 United States Code Annotated, Sec. 618 ---------------- 6
7 United States Code Annotated, Secs. 242, 504,

608a(9) _____ -__________________________________  6
United States Code Annotated, Title 8, Sec. 47(3) ------2,3,

4, 5,7
15 United States Code Annotated, Secs. 80a-2, 80b-2,

431, 715a, 717a, 901, 1127 _______________________  6
16 United States Code Annotated, Secs. 631a, 690h, 721,

796, 851_________________________________________

11

6



Ill

PAGE

21 United States Code Annotated, Sees. 171,188a, 321_ 6

22 United States Code Annotated, Sec. 611 _________  6

26 United States Code Annotated, Secs. 145, 894, 1426,
1532(i), 1607(k), 1718, 1805, 1821, 3124, 3507, 
3710(c), 3793(b), 3797 ___________________________ 6

29 United States Code Annotated, Secs. 152, 203 _____ 6
33 United States Code Annotated, Sec. 466a--------------  6
35 United States Code Annotated, Sec. 42c----------------  6

41 United States Code Annotated, Secs. 52, 103 ---------  6

42 United States Code Annotated, Sec. 1818--------------  7

46 United States Code Annotated, Sec. 316----------------  7

49 United States Code Annotated, Secs. 1(3), 401, 902 7

50 App. United States Code Annotated, 38, 985, 1161,
1502, 1892 ______________________________________ 7



Supreme Court of the United States
October Term, 1950

No. 217

Orville Collins, H. D. B txrkheimer, Stan­
ley L ord, J ames E. D oggett and R alph 
B aker,

Petitioners,

vs.

H ugh H ardyman, Mrs. E merson Morse, 
Mrs. T osca Cummings and Mrs. Mable 
P rice,

Respondents.

BRIEF FOR THE NATIONAL ASSOCIATION FOR 
THE ADVANCEMENT OF COLORED PEOPLE 

AS AMICUS CURIAE.
The National Association for the Advancement of 

Colored People submits this brief as amicus curiae. The 
written consent of all parties to the case to the filing of this 
brief has been filed with the Clerk of the Court.

Statement of Interest.
For more than forty (40) years, the National Associ­

ation for the Advancement of Colored People has worked 
unceasingly to foster those political, social and economic 
conditions in which no individual’s opportunity can be 
limited by race, religion, national origin or ancestry.



To this end, the N. A. A. C. P. has enlisted every legiti­
mate measure—including all legal, political and educational 
means that can be employed. In a struggle against preju­
dice, it has recognized that only in a free political and 
public forum can orderly change be effected in society. 
Therefore, it has fought for freedom of expression for 
individuals and groups, in and out of the political process. 
It has fought for this freedom even for those with whom it 
disagrees, for it realizes that free communication is indis­
pensable to responsive, responsible government, and ante­
cedent to any change. Free expression, it believes, is 
choked off as effectively by mob intolerance and violence 
as by state action.

The N. A. A. 0. P. believes that there is a sphere of 
essential freedom, which the federal government can and 
must protect, on which the survival of free society hinges, 
and that certainly to assemble and petition for grievances 
is within that sphere. It further believes that the Congress 
so intended, and that that fact is demonstrated in respon­
dents’ brief and the opinion of the Court below. However, 
as a friend of the Court, it would like to perhaps emphasize 
some matters already alluded to therein and to briefly 
discuss some points of law which it submits should lead to 
affirmance of the judgment below.

The opinion below is reported at 183 F. 2d 308.

I.
Section 47(3) covers the action of private persons 

who infringe certain constitutionally granted rights.
Petitioners and the dissenting opinion below deny that 

Section 47(3) applies to private persons. They contend 
that the word “ persons”  in the statute does not mean 
“ persons”  as that word is customarily understood, but

.2



that it is narrowly limited in meaning to “ governmental 
agencies or officials” .

In construing a statute, we “ assume that Congress uses 
common words in their popular meaning, as used in the 
common speech of men * * * ”  (F rankfurter, “ Some Re­
flections on the Reading of Statutes” , 47 Col. L. R. 527, 536 
(1947)). However, when ambiguities occur, we employ 
various devices to determine the meaning of the legislature, 
or if that task proves impossible, under the fiction of de­
termining legislative meaning, we assign a meaning most 
appropriate under all the circumstances.

For purposes of this case, it seems that no one could 
question the meaning of “ persons” , as any ambiguities 
which the word conjures are in a realm not here relevant— 
i. e., whether the definition includes certain juristic and 
artificial entities. Nevertheless, we propose to subject the 
term “ person”  to any conceivable analysis to demonstrate 
that in this case it has no peculiar meaning:

A. General Congressional Definition.

In 1871, the identical year in which what is now Section 
47(3) was passed, Congress also passed a definition statute, 
defining, among other things, the word “ person” . That 
this was a well considered statute is demonstrated by its 
gradual formulation during the preceding seven ,(7) years. 
In 1864, a manufacturing statute (13 Stat. 258) defined 
“ individual”  and “ person”  by including within the terms 
such entities as “ partnerships, firms, associations # * * 
corporations” . In 1866, a tax law (14 Stat. 163) made a 
similar definition, adding “ bodies corporate or politic” .

In 1868, another tax statute (15 Stat. 166) made a sim­
ilar definition. 1871 marked the appearance of the first 
general definition of “ person” . It is to be noted once more

3



4

that this definition was passed shortly before the passage 
of the section we now construe. It stated:

( ( # # #

“ Sec. 2. And be it further enacted, that in all acts 
hereafter passed * * * the word ‘ person’ may extend 
and be applied to bodies politic and corporate, and 
the reference to any officer shall include any person 
authorized by law to perform the duties of such 
office, unless the context shows that such words were 
intended to be used in a more limited sense # # * ’ ’ 
(16 Stat. 431).

It is also to be noted that Congress did not conceive 
“ officers”  and “ persons”  to be identical, but saw fit to 
define each separately.

B. No Contrary Specific Definition.

Sometimes, Congress, within a statute, defines the mean­
ing of words used therein. No such definition appears in 
47(3). Surely, if another meaning were intended, in view 
of the common definition of “ person” , the general definition 
statute quoted above, internal contradictions which result 
from petitioners’ definition (see the opinion of the Court 
below, p. 311), and the Congressional practice of providing 
definitions for particular statutes—surely, a specific defi­
nition for purposes of this section would have been pro­
vided.

C. No Internal Evidence That Word Is Being Used in
Unusual Sense.

All indications from the statute are that “ person”  
means “ person”  as that word is commonly understood. 
The same considerations applicable in the discussion of 
Point “  B ”  above are relevant here. The internal evidence 
upon which petitioners rely is that the word “ equal”  some­



5

how indicates that only the state is capable of causing cul­
pable deprivation. By definition, privileges or immunities 
bestowed by the national government must be equally dis­
tributed. They cannot be enjoyed by some, and not by 
others. Therefore, any deprivation of a privilege or im­
munity must be the deprivation of an “ equal”  privilege 
or immunity. The word “ equal”  here merely emphasizes 
the solemn importance of the activities which are protected. 
An individual who suppresses one of these essential free­
doms assails an “ equal”  privilege and immunity to the 
same extent as does a state officer. Because government 
bestows equality does not mean that only government can 
take it away.

Petitioners and the dissenting opinion below attempt to 
back into an unusual definition of “ person”  by reliance 
upon a jurisprudential theory of who may grant rights and 
who may deprive them and their exercise. Granting, 
arguendo, the correctness of the concepts relied upon, at 
most, we find ourselves with a statute which presents cer­
tain internal contradictions. The meaning of the statute 
then must be resolved in terms of the various probabilities 
presented heretofore, and below, and in the light of con­
siderations of public policy, as discussed more fully below.

D. The Customary Congressional Usage.

We have examined the customary use to which Con­
gress put the word “ person”  before and at the time of the 
passage of 47(3). Since then Congress has defined “ per­
son”  scores of times never suggesting that “ person”  means 
government official and only government official. At the 
very outset of the United States Code Annotated, Section 1 
states:

“ In determining the meaning of any Act of Con­
gress, unless the context indicates otherwise * * *



6

“ The words ‘ person’ and ‘whoever’ include cor­
porations, companies, associations, firms, partner­
ships, societies and joint stock companies, as well 
as individuals. * * * ‘ officer’ includes any person 
authorized by law to perform the duties of the 
office. * * * ’ ’ 62 Stat. 859.

Again note the recognized non-identity of “ person”  
and “ officer” .

Throughout the Code definitions are similar. 2 U. S. 
C. A. Section 261(c) states:

“ The term ‘ person’ includes an individual, part­
nership, committee, association, corporation, and any 
other organization or group of persons.”  60 Stat. 
839.

5 U. S. C. A. 1001(b) states
“  ‘Person’ includes individuals, partnerships, 

corporations, associations or public or private or­
ganizations of any character other than agencies. 
* * * ”  62 Stat. 99.

6 U. S. C. A. 15 provides
“  * * * The term ‘ person’ in this section means 

an individual, a trust or estate, a partnership or a 
corporation. # * * ”  61 Stat. 646.

The following sections are in accord: 4 U. S. C! A. 
Section 110; 6 IT. S. C. A. Section 618; 7 U. S. C. A. 242, 
504, 608a (9 ); 15 IT. S. C. A. Section 80a-2, 80b-2, 431, 715a, 
717a, 901, 1127; 16 U. S. C. A. Section 631a, 690h, 721, 796, 
851; 21 IT. S. C. A. Section 171, 188a, 321; 22 IT. S. C. A. 
Section 611; 26 IT. S. C. A. Section 145, 894, 1426, 1532(i), 
1607(k), 1718, 1805,1821, 3124, 3507, 3710(c), 3793(b), 3797; 
29 IT. S. C. A. Section 152, 203; 33 IT. S. C. A. Section 466a; 
35 U. S. C. A. Section 42c; 41 IT. S. C. A. Section 52, 103;



7

42 U. S. C. A. Section 1818; 46 U. S. C. A. Section 316; 
49 U S. C. A. Section 1(3), 401, 902; 50 App. U. S. C. A. 
Section 38, 985, 1161, 1502, 1892.

E. Legislative History.

To satisfy this test, although those submitted above 
should more than suffice, one need only make reference to 
the Legislative History of 47(3) set forth in the opinion 
of the Court below at page 311.

F. If Ambiguity Exists, Public Policy Dictates Respon­
dents’ Construction of “ Person” .

It is impossible to see how any interpretation, other 
than respondents’, of the word ‘ ‘ person”  is possible. How­
ever, if doubt exists, it should be resolved in favor of a 
meaning most consistent with public policy. For this propo­
sition, the following excerpt from a leading treatise on 
statutory interpretation adduces ample support:

Section 5901:
Public policy retains a place of great importance 

in the process of statutory interpretation and the 
tendency of the courts has always been to favor an 
interpretation which is consistent with public policy. 
In fact it may be safely asserted that the bases of 
all the interpretative rules in regard to strict and 
liberal interpretation are founded upon public policy 
in one form or another. Although public policy, in 
the abstract, is a vague and indefinite term incapable 
of accurate and precise definition, it often serves as a 
concise expression for a combination of factors which 
exercise a tremendous influence in the formation in­
terpretation, and application of legal principles. * # *

In its strict sense public policy reflects the trends 
and commands of the federal and state constitutions, 
statutes and judicial decisions. In its broad sense 
public policy may be traced to the current public



8

sentiment towards public morals, public health, pub­
lic welfare and the requirements of modern economic, 
social and political conditions.

It will be observed that the principles of strict 
and liberal statutory construction are founded upon 
the same or cognate factors. Therefore, public policy 
has no separate significance in statutory interpre­
tation, but instead, the rules of strict and liberal 
interpretation are expressions of public policy. How­
ever, it is natural and very common for the courts to 
regard policy as a separate aid to interpretation, 
and for that reason, it is expedient to consider here 
the counterparts of public policy and how they affect 
statutory interpretations.
Section 5902:

Constitutional legislation which is highly respon­
sive to current demands serves as an extremely 
valuable source of public policy. Thus a statute is 
generally given a meaning consistent with its pur­
pose or spirit which it is commonly associated with, 
and serves as an indicia of public policy. * * *
Section 5904:

In this country the most reliable source of public 
policy is to be found in the federal and state consti­
tutions. Since constitutions are the superior law of 
the land and because one of their outstanding fea­
tures is flexibility and capacity to meet changing 
conditions, constitutional policy provides a valuable 
aid in determining the legitimate boundaries of 
statutory meaning. Thus public policy having its 
inception in constitutions may accomplish either a 
restricted or extended interpretation of the liberal 
expression of a statute. 3 Sutherland, Statutory 
Construction (1943).

To a similar effect see Crawford, The Construction of 
Statutes 1940, page 374.



9

The public policy of the United States relating to free­
dom of expression is clear. It is best set forth in those 
opinions of the Supreme Court which state that the pre­
sumption of constitutionality normally applicable to legis­
lation does not apply when a civil liberty is threatened. 
The presumption is an outgrowth of what has been called 
Justice H olmes’ philosophy of “ judicial laissez faire” . 
(Lerner, “ The Mind and Faith of Justice Holmes,”  (1943), 
127). That is, a choice among the infinite number of social 
remedies should be left almost entirely to the legislature, 
which responds to the electorate, not to the courts. The 
presumption, therefore, means that there is a wide area 
in which the authority of the legislature will be upheld, 
even though the Court might disagree with legislative 
conclusions.

However, a necessary adjunct to the theory of the 
loosely fettered legislature is that it shall be subject to 
political restraint. For this it is necessary to have an 
electorate capable of exerting the corrective force. There­
fore any impairment of the effectiveness of the electorate 
is viewed more carefully by the Court. To this effect see: 
United States v. Carotene Products Co., 304 IT. S. 144, 
152 n. 4; Thornhill v. Alabama, 310 U. S. 88, 95; Thomas v. 
Collins, 323 U. S. 516, 530; Bridges v. California, 314 U. S. 
252, 262-263; West Virginia State Board of Education v. 
Barnette, 319 IT. S. 624, 639. “ The underlying theory of the 
court appears to be that if, by striking down interferences 
in respect to matters of the mind, it can keep the market 
place of ideas open and the polling booths accessible, it will 
rely upon the ordinary political processes to prevent abuse 
of power in the regulation of economic affairs.”  (D owling, 
Constitutional Law, 1946.)

Mr. Justice F rankfurter, concurring in Kovacs v. 
Cooper, 93 L. Ed. 379, 387 (1943), discussed the line of



10

opinions which have asserted that freedom of speech de­
serves at least a “ preferred”  position under the First and 
Fourteenth Amendments. Although he rejects as mislead­
ing such terminology as “ preferred position”  or “ presump­
tively unconstitutional” , he apparently joins in this ra­
tionale of the cases:

“ The philosophy of his opinions on that subject 
arose from a deep awareness of the extent to which 
sociological conclusions are conditioned by time and 
circumstance. Because of this awareness Mr. Justice 
Holmes seldom felt justified in opposing his own 
opinion to economic views which the legislature em­
bodied in law. But since he also realized that the 
progress of civilization is to a considerable extent 
the displacement of error which once held sway as 
official truth by beliefs which in turn have yielded to 
other beliefs, for him the right to search for truth 
was of a different order than some transient eco­
nomic dogma. And without freedom of expression, 
thought becomes checked and atrophied. Therefore, 
in considering what interests are so fundamental as 
to be enshrined in the Due Process Clause, those 
liberties of the individual which history has attested 
as the indispensable conditions of an open as against 
a closed society come to this Court with momentum 
for respect lacking when appeal is made to liberties 
which derive merely from shifting economic arrange­
ments. Accordingly, Mr. Justice Holmes was far 
more ready to find legislative invasion where free 
inquiry was involved than in the debatable area of 
economics.”  Kovacs v. Cooper, supra.

Attorney General, now Mr. Justice Clark, stated the 
same policy somewhat differently in a recent article:

“ Our democracy suffers a grievous, if not a fatal, 
blow when the processes of law and order are broken 
down by mob violence. The federal government must 
not stand idly by when a few reckless men in a com­



11

munity disclaim their obligation to society and, flout­
ing the priceless heritage of equality of all men, un­
dertake to substitute lynch law for due process of 
law. (C lark, “ A Federal Prosecutor Looks at the 
Civil Eights Statutes” , 47 Col. 175, 185 (1947).)

Therefore, although it is difficult to see how any serious 
ambiguity could exist, any uncertainties should be resolved 
in the direction of the preservation of free expression.

Conclusion.

The judgment of the Circuit Court of Appeals 
should be upheld.

L oren M iller,
T httrgood Marshall,
J ack Greenberg,

Attorneys for the National 
Association for the Advance­
ment of Colored People.



L aw yers P ress, I nc., 165 William St., N. Y. C. 7; ’Phone: BEekman 3-2300