Hardyman v. Collins Brief Amicus Curiae

    f?UC

IN TIIE

United States Court of Appeals
For the Ninth Circuit

No. 12120

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

'Appellants,
vs.

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

Appellees.

BRIEF FOR THE NATIONAL ASSOCIATION FOR 
THE ADVANCEMENT OF COLORED PEOPLE 

AS AMICUS CURIAE.

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

T hurgood Marshall,
J ack Greenberg,

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

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



T O P IC A L  IN D E X

PAGE

Interest of the 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. “ Sometimes Congress supplies its own dic­
tionary ’ ’ __________________________  4

B. “ It may do so, as in recent legislation, by a
section within the statute containing de­
tailed definitions” ___________________ 5

C. “ Or there may be indications from the statute
that words in it are the considered lan­
guage of legislation” ________________ 5

D. “ If Congress has been accustomed to use a 
certain phrase with a more limited mean­
ing than might be attributed to it by com­
mon practice, it would be arbitrary to 
consider that fact when we come to inter­
pret a statute” ____________________  6

E. “ Or words may acquire scope and function
from the history of events which they sum­
marize or from the purpose which they 
serve” _____ _______________ _______  7

F. If ambiguity exists, public policy dictates ap­
pellants ’ construction of person _______ 7

Conclusion 11



11

T a b le  o f A u th o r itie s  C ited  

C ases

page

Bridges v. California, 314 U. S. 252 _______________  9
Kovacs y. Cooper, 93 L. Ed. 379 __________________ 10
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 ____________________ ___________  1.0

M isce lla n eo u s

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

Crawford, The Construction of Statutes, 1940_______ 9
Dowling, Constitutional Law, 1947 _______________  10
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)--------------- 9

S ta tu tes

13 Stat. 258 ______________________    4
14 Stat. 163 _________________    4
15 Stat. 166 ---------------------------------------------------  4
16 Stat. 431 ---------------------------------------------------  4



I l l

PAGE

1 United States Code Annotated, Sec, 1 _________  6
2 United States Code Annotated, Sec. 261(c) _____  6
4 United States Code Annotated, Sec. 110 ________ 7
5 United States Code Annotated, Sec. 1001(b) ______  6
6 United States Code Annotated, Sec. 15 _________ 6
6 United States Code Annotated, Sec. 618__________ 7
7 United States Code Annotated, Secs. 242, 504,

608a(9) ____ ...______________________________  7
United States Code Annotated, Title 8, Sec. 47(3)____ 2, 4,

5, 6, 7
15 United States Code Annotated, Secs. 80a-2, 80b-2,

431, 715a, 717a, 901, 1127 ____ ,._______________  7
16 United States Code Annotated, Secs. 631a, 690h, 721,

796, 851 ________________________________ _ 7
21 United States Code Annotated, Secs. 171,188a, 321  7
22 United States Code Annotated, See, 611_____ ...__  7
26 United States Code Annotated, Secs. 145, 894, 1426,

1532(i), 1607(k), 1718, 1805, 1821, 3124, 3507, 
3710(c), 3793(b), 3797 _______________________  7

29 United States Code Annotated, Secs. 152, 203_____  7
33 United States Code Annotated, Sec. 466a____    7
35 United States Code Annotated, Sec. 316_________  7
41 United States Code Annotated, Secs. 52, 103 ______  7
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



IN  T H E

U n i t e d  S t a t e s  C o u r t  of  A p p e a l s
For th e  N in th  C ircuit

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

Appellants,
vs.

Orville Collins, H. I). Burkheimer, Stan­
ley L ord, J ames E. D oggett and R alph 
Baker,

Appellees.

No. 12120

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 the past forty (40) years, the National Association 
for the Advancement of Colored People has worked un­
ceasingly to foster those political, social and economic con-



2

ditions in which no individual’s opportunity will be limited 
by his race, religion, national origin or ancestry.

For this cause, the N. A. A. C. P. has enlisted every 
legitimate measure—including all legal, political and educa­
tional means that can be appropriately employed. In a 
struggle against prejudice, it has always recognized that 
only in a free political and public forum can orderly change 
be effected in society. To that end it has fought for free­
dom 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, the indispensable machinery of a respon­
sive, responsible government, is antecedent to any change. 
Free expression, it feels, is choked off as effectively by mob 
intolerance and violence as by state action. It feels 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 peti­
tion for grievances is within that sphere. It further believes 
that the Congress so intended, and that that fact is demon­
strated in appellant’s brief. However, as a friend of the 
Court, it would like to perhaps emphasize some matters al­
ready alluded to therein and to briefly discuss some points 
of law which we submit should lead to a reversal of the 
judgment below.

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

who infringe certain constitutionally granted rights.

Appellees, in their brief, dispute only the allegation 
that Section 47(3) applies to private persons. They con­
tend that the word “ persons” in the statute does not mean



3

“ persons” but is narrowly limited in meaning and means 
“ governmental agencies or officials”.

“ * * * (We) assume that Congress uses common 
words in their popular meaning, as used in the com­
mon speech of men * * * ” (F r a n k f u r t e r , “ Some 
Reflections on the Reading of Statutes,” 47 Col. 527, 
536 (1947).)

However, when ambiguities occur, we turn to various de­
vices to determine the meaning of the legislature, or per­
haps when that task proves impossible, under the fiction of 
determining legislative meaning we assign a meaning most 
appropriate under all the circumstances. To this end we 
employ certain techniques. 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 relevent—i. e., whether the definition includes cer­
tain juristic and artificial entities, not whether the converse 
of this usual question is true. Nevertheless, we propose to 
subject the term “ person” to any conceivable analysis to 
demonstrate that in this case it has no peculiar meaning. 
Mr. Justice F rankfurter has succinctly stated the various 
approaches to statutory construction, and for purposes of 
convenience our analysis will follow his pattern:

“ Sometimes Congress supplies its own dictionary. 
It did so in 1871 in a statute defining a limited num­
ber of wrords for use as to all future enactments. It 
may do so, as in recent legislation, by a section within 
the statute containing detailed definitions. Or there 
may be indications from the statute that words in it 
are the considered language of legislation. ‘If Con­
gress has been accustomed to use a. certain phrase 
with a more limited meaning than might be attrib­
uted to it by common practice, it would be arbitrary 
to refuse to consider that fact when we come to inter­
pret a statute. But, as we have said, the usage of



4

Congress simply shows that it has spoken with care­
ful precision, that its words mark the exact spot at 
which it stops.’ Or words may acquire scope and 
function from the history of events which they sum­
marize or from the purpose which they serve.” 
F rankfurter, op. cit. supra.

A . “S om etim es C ongress su p p lies  its o w n  d ic tio n a ry .”

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 “ in­
dividual” and “ person” by including within the terms such 
entities as “ partnerships, firms, associations * * * corpora­
tions”. 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 similar 
definition. 1871 marked the appearance of the first general 
definition of “ person” . It is to be noted once more that 
this definition was passed shortly before the passage of the 
section we now construe. It stated:

C i * # *

“ 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 per­
son 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).



5

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

B. “It m a y  d o  so , a s  in recen t leg is la tio n , b y  a  section  w ith in
th e  s ta tu te  c o n ta in in g  d e ta i le d  d e f in itio n s .”

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 appellees ’ defini­
tion (Appellants’ Brief, p. 22), and the Congressional prac­
tice of providing definitions for particular statutes—surely, 
a specific definition for purposes of this section would have 
been provided.

C. “Or th ere  m a y  b e in d ica tio n s from  th e  s ta tu te  th a t w ord s
in it are  th e  con sid ered  la n g u a g e  o f  le g is la tio n .”

All indications from the statute are that “ person” 
means “ person”. The same considerations applicable in 
the discussion of Point “ B ” above are relevant here. The 
internal evidence upon which appellee relies is that the 
word “ equal” somehow indicates that only the state is 
capable of causing culpable deprivation. By definition, 
privileges or immunities bestowed by the national govern­
ment must be equally distributed. They cannot be enjoyed 
by some, and not by others. The word “ equal” here merely 
emphasizes the solemn importance of the activities which 
are protected. Therefore, any deprivation of a privilege 
or immunity must be the deprivation of an “ equal” privi­
lege or immunity. And an individual who suppresses the 
exercise of one of these essential freedoms 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.



6

D . “ If C ongress h a s b een  a ccu sto m ed  to u se  a  certa in  p h ra se  
w ith  a  m ore lim ited  m ea n in g  th an  m ig h t b e a ttr ib u ted  
to  it  b y  com m on p ra ctice , it w o u ld  b e  a r b i t r a r y  to  co n ­
sid er  th a t fa c t  w h en  w e  com e to  in te r p r e t  a  s ta tu te .”

We have examined the customary use to which Congress 
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, Sec­
tion 1 states:

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

“ 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, cor­

porations, associations or public or private organiza­
tions 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 corpo­
ration. * * * ” 61 Stat. 646.



7

The following sections are in accord: 4 U. S. C. A. 
Section 110; 6 U. S. C. A. Section 618; 7 IT. S. C. A. 242, 
504, 608a (9); 15 IT. S. C. A. Section 80a-2, 80b-2, 431, 715a, 
717a, 901, 1127; 16 XT. S. C. A. Section 631a, 690h, 721, 796, 
851; 21 U. S. C. A. Section 171, 188a, 321; 22 U. S. C. A. 
Section 611; 26 II. S. C. A. Section 145, 894, 1426, 1532(i), 
1607(k), 1718, 1805,1821, 3124, 3507, 3710(c), 3793(b), 3797; 
29 U. S. C. A. Section 152, 203; 33 U. S. C. A. Section 466a; 
35 U. S. C. A. Section 42c; 41 U. S. C. A. Section 52, 103; 
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. IT. S. C. A. 
Section 38, 985, 1161, 1502, 1892.

E. “Or w ord s m a y  a cq u ire  sco p e  and fu n ctio n  from  th e  
h isto ry  o f  ev en ts  w h ich  th ey  su m m arize  or from  th e  p u r­
p o se  w h ich  th e y  serv e .”

To satisfy this test, although those submitted above 
should more than suffice, one need only make reference to 
the scholarly analysis of the Legislative History of 47(3) 
set forth in Appellants’ Brief at page 23.

F. If a m b ig u ity  ex ists , p u b lic  p o lic y  d ic ta te s  a p p e lla n ts ’ con ­
stru ction  o f person .

It is impossible to see how any interpretation, other 
than appellants’, 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 our leading treatise on 
statutory interpretation adduces ample support :

Section 4901:
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.



8

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 
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



9

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 
Constitution (1943).

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

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” . 
(Lebxer, “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 con­
clusions. However, a necessary adjunct to the theory of 
the loosely fettered legislature is that it shall be subject to 
political restraint. To this end it is necessary to have an 
electorate capable of exerting the corrective force. And to 
that end any impairment of the. effectiveness of the elec­
torate is viewed more carefully by the Court. To this effect 
see: United States v. Carotene Products Co., 304 U. 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.



10

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.” (Dowling, 
Constitutional Law, 1946.)

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



11

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:

‘ 4 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
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 la rk , “ A Federal Prosecutor Looks at the 
Civil Rights Statutes”, 47 Col. 175, 185 (1947).)

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

Conclusion.

T he ju d g m en t o f th e  D istr ic t C ourt should be  
reversed  an d  th e  D istr ic t C ourt d ire c te d  to  d en y  
a p p e llee s’ m otion  to  d ism iss th e  com pla in t.

L oren Miller,
T hurgood Marshall,
J ack Greenberg,

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



[7573]
L awyers P ress, I n c ., 165 William St., N. Y. C. 7; ’Phone: BEekman 3-2300