Mills v. Polk County, FL School Board Reply Brief for Appellants

    V
IN THE

jiupmne (Eourt of ti|o Mnxttb j§tates
OCTOBER TERM, 1956

NO. 846

NATIONAL ASSOCIATION FOR THE ADVANCEMENT 
OF COLORED PEOPLE, A Corporation, 

Petitioner,

VS.
STATE OF ALABAMA, ex rel. JOHN PATTERSON, 

ATTORNEY GENERAL

BRIEF AND ARGUMENT 
IN OPPOSITION TO PETITION FOR WRIT 

OF CERTIORARI

JOHN PATTERSON 
Attorney General of Alabama

MacDONALD GALLION 
Assistant Attorney General

of Alabama
EDMON L  RINEHART 

Assistant Attorney General
of Alabama

Counsel For Respondent
JAMES W. WEBB 

Assistant Attorney General 
of Alabama 

Of Counsel on Brief



1

TABLE OF CONTENTS

Opinion Below 

Jurisdiction 

Questions Presented 

Statement of the Case 

Argument ..............

Page

1

1

1

2

I. The Decision Below correctly decided all
Questions properly presented in the
State Courts .................................................  9

II. No Constitutional Rights of Petitioner 
were abridged by the State in the 
Proceedings in the State Courts 14

Conclusion ....................................................................21



11

TABLE OF CASES CITED

Page

Adamson v. California, 332 U. S. 46 11

Asbury Hospital v. Cass County, 326 U. S. 207 12

Burstyn, Inc. v. Wilson, 343 U. S. 495 ...................  18

Ex parte Dickens, 162 Ala. 272, 50 So. 2 1 8 ...........  9

Ex parte King, 263 Ala. 487, 83 So. 2d 241 ........... 10

Ex parte Morris, 252 Ala. 551, 42 So. 2d 17 ......... 10

Ex parte National Association for the Advance­
ment of Colored People, 91 So. 2d 214,
91 So. 2d 220, 91 So. 2d 221 ...............................1, 7

Hague v. Congress of Industrial Organizations,
307 U. S. 514 .......................................................  17

Hale v. Henkel, 201 U. S. 4 3 ...................................  16

Herndon v. Georgia, 295 U. S. 441, 442 13

Joint Anti-fascist Refugee Committee v. McGrath,
341 U. S. 123, at 183 & 184 ...............................  19

International Ladies Garment Workers Union,
A. F. L. v. Seamprufe, Inc., 121 Fed. Supp. 175 17

Local 309, United Furniture Workers of America,
CIO v. Gates, 75 Fed. Supp. 620 17

National Safe Deposit Company v. Stead,
232 U. S. 58 11



Ill

Oklahoma Press Publishing Co. v. Walling,
327 U. S. 186 12

Pennekamp & the Miami Herald Publishing
Co. v. Florida, 328 U. S. 331 18

Pierce v. Society of Sisters, 268 U. S. 510 18

Powe v. United States, 109 Fed. 2d 147, 
cert, denied 309 U. S. 679 17

Profile Cotton Mills v. Calhoun Water Co.,
189 Ala. 181, 66 So. 50 16

Rogers v. United States, 340 U. S. 367 ................. 16

State ex rel. Griffith v. Knights of the Klu 
Klux Klan, 117 Kan. 564, 232 P. 254, 
cert, denied 273 U. S. 664 12

Thomas v. Collins, 323 U. S. 516 ...........................  18

United States v. Cruikshank, 92 U. S. 542 ........... 17

United States v. Rumely, 345 U. S. 41 18

United States v. United Mine Workers of 
America, 330 U. S. 258 .......................................  10

United States v. White, 322 U. S. 694 ................... 16

Williams v. Georgia, 349 U. S. 375 .......................  13

Wolf v. Colorado, 338 U. S. 25, 27 .......................  11



IV

STATUTES AND OTHER AUTHORITIES CITED

Title 7, Section 1061, Code of Alabama 1940 16

Title 10, Sections 192, 193 and 194,
Code of Alabama 1950 3

Constitution of Alabama 1901, Section 232 3

United States Code:
Title 28, Section 1257(3) ...................................  1



IN THE

Supreme Court of the litutn> States
OCTOBER TERM, 1956

BRIEF AND ARGUMENT 
IN OPPOSITION TO PETITION FOR WRIT 

OF CERTIORARI

BRIEF AND ARGUMENT FOR RESPONDENT

OPINION OF THE COURT BELOW
The opinion of the Supreme Court of Alabama 

is reported in 91 So. 2d, at page 214.

JURISDICTION

The petitioner has applied for a writ of certiorari 
from the Supreme Court of the United States to re­
view the judgment of the Supreme Court of Alabama, 
rendered December 6, 1957, under the provisions of 
Title 28, Section 1257(3), United States Code, Judici­
ary and Judicial Procedure. (See petitioner’s brief, 
page 2.)

QUESTIONS PRESENTED

I.
Is any constitutional question presented by the 

decision of the Supreme Court of Alabama, in view 
of the issues presented to that Court by the petition-



2

er, its failure to follow prescribed Alabama proce­
dures, and the long standing decisions of the Supreme 
Court of the United States upon the applicability of 
the First, Fourth, Fifth and Fourteenth Amendments, 
to corporations?

II.

Has the petitioner, a membership corporation, 
having neglected to avail itself of the proper remedy 
to review the trial court’s order to produce, having 
chosen to stand in contempt of that trial court in as­
serting the alleged constitutional rights of its mem­
bers, and having obtained review of the trial court’s 
contempt order, but not reversal thereof, been denied 
due process of law because its own contumacy has 
precluded its further proceeding on the merits of the 
main case, pending its purging itself of contempt?

III.

Has the petitioner, a membership corporation, 
the constitutional right to refuse to produce records of 
its membership in Alabama, relevant to issues in a 
judicial proceeding to which it is a party, on the mere 
speculation that these members may be exposed to 
economic and social sanctions by private citizens of 
Alabama because of their membership?

STATEMENT OF THE CASE

Upon June 1, 1956, the State of Alabama, on the 
relationship of John Patterson, its Attorney General, 
filed a bill in equity, against the petitioner, National 
Association for the Advancement of Colored People, 
a Corporation, in the Fifteenth Judicial Circuit, Mont­



3

gomery County, Alabama. The gravamen of the bill 
was that the corporation conducted extensive activi­
ties in pursuance of its corporate purpose in Alabama 
without having filed with the Secretary of State a 
certified copy of its articles of incorporation and an 
instrument in writing, under the seal of the corpor­
ation, designating a place of business and an author­
ized agent residing in Alabama, as required by Title 
10, Sections 192, 193 and 194, Code of Alabama 1940, 
thus doing business in Alabama in violation of Sec­
tion 232 of the Constitution of Alabama 1901, and 
Title 10, Section 194, Code of Alabama 1940.

The bill of complaint alleged irreparable harm 
to the property and civil rights of the residents and 
citizens of Alabama, for which criminal prosecutions 
and civil actions at law afforded no adequate relief. 
A temporary injunction and restraining order was re­
quested, preventing the respondent below and its 
agents from further conducting its business within 
Alabama, from maintaining any offices and organiz­
ing further chapters within the State. A permanent 
injunction, in accordance with the prayer for tem­
porary injunction, was also prayed for. Finally, an or­
der of ouster expelling the corporation from organ­
izing or controlling any chapters of the National As­
sociation for the Advancement of Colored People in 
Alabama, and exercising any of its corporate func­
tions within the State, was requested.

On June 1, 1956, the Circuit Court of Montgom­
ery County, Alabama, entered a decree for a tem­
porary restraining order and injunction, as prayed for 
and further enjoined until further order of the court 
petitioner from filing any application, paper or docu­
ment for the purpose of qualifying to do business in



4

Alabama. Service was had upon respondent corpor­
ation, at its offices in Birmingham, Alabama.

On July 2, 1956, petitioner filed a motion to dis­
solve the temporary restraining order and demurrers 
to the bill of complaint which were set for hearing on 
July 17. On July 5th the State filed a motion to re­
quire petitioner to produce certain records, letters and 
papers alleging that the examination of the papers 
was essential to its preparation for trial.

The State’s motion was set for hearing on July 
9, 1956. At the hearing, at which petitioner raised 
generally but not explicitly both State and Federal 
constitutional objections, the court issued an order 
requiring production of the following items requested 
in the State’s motion:

“1. Copies of all charters of branches or 
chapters of the National Association for the 
Advancement of Colored People in the State 
of Alabama.

2. All lists, documents, books and papers 
showing the names, addresses and dues paid 
of all present members in the State of Ala­
bama of the National Association for the 
Advancement of Colored People, Inc.

4. All lists, documents, books and papers 
showing the names, addresses and official 
position in respondent corporation of all per­
sons in the State of Alabama authorized to 
solicit memberships in and contributions to 
the National Association for the Advance­
ment of Colored People, Inc.



5

5. All files, letters, copies of letters, tele­
grams and other correspondence, dated or oc­
curring within the last twelve months next 
preceding the date of filing the petition for 
injunction, pertaining to or between the Na­
tional Association for the Advancement of 
Colored People, Inc., and persons, corpor­
ations, associations, groups, chapters and
partnerships within the State of Alabama.

•

6. All deeds, bills of sale and any written 
evidence of ownership of real or personal 
property by the National Association for the 
Advancement of Colored People, Inc., in the 
State of Alabama.

7. All cancelled checks, bank statements, 
books, payrolls, and copies of leases and 
agreements, dated or occurring within the 
last twelve months next preceding the date 
of filing the petition for injunction, pertain­
ing to transactions between the National As­
sociation for the Advancement of Colored 
People, Inc., and persons, chapters, groups, 
associations, corporations and partnerships 
in the State of Alabama.

8. All papers, books, letters, copies of let­
ters, documents, agreements, correspondence 
and other memoranda pertaining to or be­
tween the National Association for the Ad­
vancement of Colored People, Inc., and Au- 
therine Lucy, Autherine Lucy Foster, and 
Polly Myers Hudson.

11. All lists, books and papers showing



6

the names and addresses of all officers, 
agents, servants and employees in the State 
of Alabama of the National Association for 
the Advancement of Colored People, Inc.

14. All papers, books, letters, copies of let­
ters, files, documents, agreements, corres­
pondence and other memoranda pertaining to 
or between the National Association for the 
Advancement of Colored people, Inc., and 
Aurelia S. Browder, Susie McDonald, Clau­
dette Colvin, Q. P. Colvin, Mary Louise 
Smith and Frank Smith, or their attorneys,
Fred D. Gray and Charles D. Langford.”

The court then extended the time to produce un­
til July 24th, and simultaneously postponed the hear­
ing on petitioner’s demurrers and motion to dissolve 
the temporary injunction to July 25.

On July 23, petitioner filed an answer on the 
merits. In addition, petitioner averred that it had pro­
cured the necessary forms for the registration of a 
foreign corporation supplied by the office of the Sec­
retary of State of the State of Alabama, and filled 
them in as required. Petitioner attached them to its 
answer and offered to file same if the court would 
dissolve the order barring petitioner from registering. 
At the same time petitioner filed a motion to set 
aside the order to produce which motion was set down 
for hearing on July 25th.

On July 25, 1956, the court heard oral testimony, 
and argument of counsel and overruled the motion to 
set aside and ordered the production of the items 
stated in its previous order. Petitioner refused to com­
ply with the court’s order, upon which the court ad­



7

judged petitioner in contempt, assessed a fine of $10,-
000.00 against it as punishment for the contempt with 
the further provision that unless the petitioner com­
plied with the order to produce within five days the 
fine would be increased to $100,000.00. The petition­
er’s motion to dissolve the temporary injunction was 
not heard in view of its contempt in refusing to obey 
the order to produce.

Upon July 30, 1956, petitioner filed, with the trial 
court, a motion to set aside or stay execution of the 
contempt decree pending review by the Supreme Court 
of Alabama. Petitioner also tendered miscellaneous 
documents which it alleged to be substantial compli­
ance. At all times the corporation refused to produce 
the names and addresses of its members. This mo­
tion was denied and petitioner then filed a motion in 
the Supreme Court of Alabama, requesting stay of 
execution of the judgment below pending review by 
the appellate court. This motion or application was 
also denied.1 On the same day the Circuit Court en­
tered an order adjudging petitioner in further con­
tempt, increasing the fine to $100,000.00, in view of 
its continued refusal to obey the order to produce.

On August 8, petitioner filed a purported peti­
tion for writ of certiorari in the Supreme Court of Ala­
bama. After oral argument on August 13, 1956, the 
Supreme Court of Alabama, denied the writ on the 
grounds of its insufficiency.2

1. 91 So. 2d 220.

2. 91 So. 2d 221.



8

Thereafter on August 20, 1956, petitioner filed a 
second petition for writ of certiorari.3 Upon December 
6, 1956, the Supreme Court of Alabama, denied the 
writ requested in this petition.

3 The grounds alleged by the petitioner in both the first and second 
petitions for certiorari are as follows:

“Petitioner respectfully shows unto this Honorable Court as fol­
lows:

1. That the Circuit Court erred in entering its order of July 11, 
1956, requiring petitioner to produce certain documents and papers 
set out therein.

2. That the Circuit Court erred in overruling petitioner’s motion 
to set aside its order to produce.

3. That the Circuit Court erred in adjudging petitioner in con­
tempt and assessing a $10,000 fine against it as punishment therefor.

4. That the Circuit Court erred in punishing petitioner $10,000 
for contempt in excess of its statutory authority under Title 13, 
Section 143 of the Alabama Code of 1940.

5. That the Circuit Court erred in overruling petitioner’s motion 
to set aside and/or modify its order and judgment adjudging pe­
titioner in contempt and/or stay execution of its judgment pending 
review by this Court.

6. That the Circuit Court erred in adjudging petitioner in con­
tempt and in assessing a $10,000 fine against it as punishment there­
for.

7. That the Circuit Court erred in punishing and fining petitioner 
$100,000 for contempt in excess of its statutory authority under 
Title 13, Section 143 of the Alabama Code of 1940.

8. That the Circuit Court erred in granting the temporary re­
straining order.

9. That the Circuit Court erred in failing to dissolve its injunc­
tion and in refusing to permit petitioner to register with the Sec­
retary of State after it had tendered compliance with its answer.

10. That all of the errors committed by the Circuit Court and set 
forth above are in violation of petitioner’s right and the rights of 
its members to due process of law and equal protection of the 
laws secured under the Fourteenth Amendment to the Constitu­
tion of the United States, and violate petitioner’s rights under the 
commerce clause of the Federal Constitution.”



9

ARGUMENT

I.

THE JUDGMENT BELOW BASED UPON 
STATE PROCEDURE DISPOSED OF ALL QUES­
TIONS PROPERLY RAISED BY PETITIONER, AND 
LEFT NO FEDERAL QUESTION TO BE RE­
VIEWED BY THIS COURT.

In asserting its claim that the judgment below em­
ployed the device of State procedure to preclude re­
view by the United States Supreme Court, the pe­
titioner attempts to show that the Supreme Court of 
Alabama departed from a long standing State pro­
cedure of permitting review of contempt proceedings 
by certiorari. That opinion reveals the error of this 
contention. It is clear that the Alabama Court reaf­
firmed its rule that certiorari was the proper method 
by which to review contempt, by citing, Ex parte D ick­
ens, 162 Ala. 272, 50 So. 218. The gist of the opinion 
is that if the petitioner felt aggrieved by the trial 
court’s order to produce its proper remedy was a pe­
tition for writ of mandamus in the Supreme Court to 
compel the trial judge to set aside his order. By this 
means the aggrieved party can obtain review without 
the danger of a contempt citation. B u t  petitioner 
chose another course, though it had ample time in 
which to have filed mandamus proceedings prior to 
July 25, 1956. Petitioner chose to test the order to 
produce by a refusal to obey based upon vaguely des­
ignated constitutional rights. The Supreme Court of 
Alabama then reviewed the contempt proceedings 
with a view to determining if the trial court had jur­
isdiction of the person, subject matter and whether it



10

had exceeded its authority. Its greatest preoccupation 
was naturally with the nature of the contempt, civil 
or criminal? It needs no extensive argument or cita­
tion of authorities to show that its conclusion on this 
point was sound. See Ex parte King, 263 Ala. 487, 83 
So. 2d 241; and U nited States v. U nited M ine W orkers 
of Am erica, 330 U. S. 258.

But the petitioner asserts that because, in Ex 
parte Morris, 252 Ala. 551, 42 So. 2d 17, Morris, who 
had refused to produce names of Klu Klux Klan mem­
bers before a grand jury, obtained a review of a con­
tempt citation by petition for certiorari, the Nation­
al Association for the Advancement of Colored Peo­
ple, has in some mysterious fashion been aggrieved in 
the case at bar. However, it can readily be seen that 
Morris’ contempt was occasioned by his refusal to 
answer a question before a grand jury upon direct or­
ders of a judge. He had no opportunity to test the pro­
priety of the questioning by petition for mandamus 
but because of the immediate action of the judge in 
sentencing him to jail he was left to the remedy of 
certiorari. It is otherwise, with petitioner herein who 
had sixteen days in which to file his petition for man­
damus to review the order to produce.

In any event, in both, Ex parte Morris, 252 Ala. 
551, 42 So. 2d 17, and the case at bar, the Alabama 
Supreme Court considered the rights of the petition­
ers to refuse to produce their records on the grounds 
of privilege against self-incrimination and security 
against unreasonable searches and seizures. While cit­
ing Federal cases to demonstrate that these rights had 
not been violated, the Alabama court correctly treated 
them as matters of State law, in view of the holding



11

of the United States Supreme Court, that the due 
process clause of the Fourteenth Amendment does 
not incorporate the first eight amendments to th e  
United States Constitution. Adam son v. California, 
332 U. S. 4 6 ; and W olf v. Colorado, 338 U. S. 25. Es­
pecially, the Fourth Amendment has been held not to 
be a monitor upon State rules concerning searches and 
seizures unless the State action complained of was so 
shocking as to amount to fundamental unfairness. N a­
tional Safe Deposit Company v. Stead, 232 U. S. 58. It 
is true that such cases as W olf v. Colorado, 338 U. S. 
25, contain language supporting the proposition that 
the Fourteenth Amendment implements the Fourth 
Amendment as against State action. A reading of the 
majority opinion at page 27, dispels this notion:

“The security of one’s privacy against ar­
bitrary intrusion by the police—which is at 
the core of the Fourth Amendment—is basic 
to a free society. It is therefore implicit in 
the ‘the concept of ordered liberty’ and as 
such enforceable against the States through 
the Due Process Clause. The knock at the 
door, whether by day or by night, as a prelude 
to a search, without authority of law but sole­
ly on the authority of the police, did not need 
the commentary of recent history to be con­
demned as inconsistent with the conception 
of human rights enshrined in the history and 
the basic constitutional documents of Eng­
lish-speaking peoples.

Accordingly, we have no hesitation in say­
ing that were a State affirmatively to sanc­
tion such police incursion into privacy it



12

would run counter to the guaranty of the
Fourteenth Amendment...

From the above it is evident that the court did 
not decide that the Fourth Amendment in its de­
tailed entirety was an inhibition upon State action 
but rather that arbitrary oppressive police action is a 
violation of due process.

Insofar as petitioner’s asserted rights under the 
Commerce Clause of Article I, Section 8 of the United 
States Constitution are concerned, it is submitted that 
the extent and nature of its activities in Alabama are 
the determinant facts for deciding what limitations 
the State might place upon those activities. That the 
State has power over foreign corporations, even the 
power of ouster, is established law. See State Ex rel. 
Griffith v. Knights of the Klu Klux Klan, 117 Kan. 
564, 232 P. 254, cert, denied 273 U. S. 664; and As- 
bury H ospital v. Cass County, 326 U. S. 207. The pe­
titioner takes the anomalous position that its activi­
ties are protected by the Commerce Clause and then 
refuses the sovereign the right to examine its records 
to ascertain the applicability of that Clause to those 
activities and the corresponding limitation, if any, 
upon the State’s power of control. A similar argument 
was made in Oklahom a Press Publishing Co. v. W all­
ing, 327 U. S. 186. This court refused it and held that 
the Wages and Hours Administrator had the authority 
to examine the newspaper’s records to determine 
whether or not the Wages and Hours Laws applied 
to the company and whether it was violating them.

We finally come to the privilege and immunities 
clause of the First Amendment, as protected by the 
Fourteenth Amendment, a right so vigorously as­



13

serted by the petitioner in its application to this 
Court. At no point does it appear that these rights, if 
petitioner own any such, were urged by it before any 
Court of Alabama. A multitude of cases lay down the 
rule that the United States Supreme Court will not as­
sume jurisdiction when a Federal question has not 
been properly presented in the Federal court. One 
such case is Herndon v. Georgia, 295 U. S. 441, in 
which Mr. Justice Sutherland said at page 442:

“It is true that there was a preliminary at­
tack upon the indictment in the trial court on 
the ground, among others, that the statute 
was in violation ‘of the Constitution of the 
United States,’ and that this contention was 
overruled. But, in addition to the insufficien­
cy of the specification, the adverse action of 
the trial court was not preserved by excep­
tions pendente lite or assigned as error in due 
time in the bill of exceptions, as the settled 
rules of the state practice require. In that sit­
uation, the state supreme court declined to 
review any of the rulings of the trial court in 
respect of that and other preliminary issues; 
and this determination of the state court is 
conclusive here. . . .”

More recently, the case of W illiam s v. Georgia, 
349 U. S. 375, turned upon the fact that this Court 
considered that the petitioner therein had raised a 
Federal question in the manner prescribed and per­
mitted by Georgia procedure but that the Georgia 
court refused to consider the question raised. The dis­
senting opinion took a contrary view of the Georgia 
procedure but all Justices agreed that for the United



14

States Supreme Court to consider a Federal Constitu­
tional question it must have first been properly raised 
in the state court in accordance with state procedure.

n.
The petitioner herein argues that it was denied 

due process of law by the totality of the State action 
in the case to date. It is not entirely clear whether the 
basis of this contention is the denial to the corporation 
of a fair hearing or alternatively that because the pres­
ent state of the case leaves it out of business in Ala­
bama, and precluded from further contest in the Ala­
bama courts pending its purging itself of contempt, 
it has been denied certain rights guaranteed by the 
privileges and immunities clause of Section 1 of the 
Fourteenth Amendment. In addition, the corporation 
seems to be asserting certain First Amendment rights 
of its members and members of the Negro race in 
general. It is somewhat difficult to detect the indi­
vidual ingredients in its melange of asserted rights 
and grievances.

The course of petitioner’s argument, if we may 
change our metaphor, seems to be that, because the 
State incidentally to an equity action against it, de­
manded the names of its members possibly causing 
harrassment and discouragement of these members by 
private individuals, possibly causing them to discon­
tinue membership in the corporation, possibly leading 
to its ultimate weakening and demise, the rights of 
both the members and the corporation to freedom of 
speech, assembly, and redress of grievances have been 
abridged by the State. Petitioner alleges that it is the 
main effective voice of Negro citizens attempting to 
assert their constitutional rights. Thus, it argues its



15

rights depend upon its members and its members’ 
rights upon it. They are together a sort of legal flagel- 
latae spawning interdependant constitutional rights. 
Tangential to the circle of this main argument is the 
assertion of privilege against self-incrimination and 
freedom from unreasonable searches and seizures.

In building up the picture of the State, acting 
through its Attorney General and its courts to de­
prive petitioner of its rights, request is made that 
the Court take judicial notice of what is called “pub­
lic information.” Petitioner’s brief, pages 19 through 
25. While we do not agree that the elasticity of judicial 
notice stretches to include all the various hearsay, 
opinions and speculation included on these pages, if 
it is petitioner’s contention that the great majority of 
people in Alabama favor segregation, to that one fact 
we accede.

However, in addition, the impression is given by 
the footnotes on pages 23 through 25, of petitioner’s 
brief, that somehow orthodox Alabama procedure was 
departed from so as to place the corporation in the 
position of having to disclose its membership ere it 
could proceed to a hearing on its motion to dissolve 
the temporary injunction and ultimately on the merits 
of the case. This impression is false. The motion to 
produce was granted on notice and hearing. Ample 
time was given to contest it by mandamus or to com­
ply. The material requested was relevant to proof of 
the nature and method of petitioner’s business in Ala­
bama. Such proof was relevant to determine whether 
the temporary injunction should remain in effect and 
whether or not a permanent injunction, and finally 
an order of ouster should be granted. While it is true 
that generally speaking oral testimony is not taken on



16

a motion to dissolve a temporary injunction, ex parte 
affidavits of parties are permitted. Profile Cotton 
M ills v. Calhoun W ater Co., 189 Ala. 181, 66 So. 50,
and Title 7, Section 1061, Code of Alabama 1940. The 
names and addresses of petitioner’s members were 
needed for the State’s preparation of affidavits in op­
position to the motion to dissolve. Furthermore, the 
course which the trial would take was uncertain. 
Whether or not the temporary injunction was dis­
solved, a trial on the merits could have followed im­
mediately. In that event the State needed to examine 
the corporation’s records to prepare its proof of the 
allegations of the bill of complaint. While petitioner 
admitted in its answer some of the State’s allegations 
it denied solicitation of members for either the local 
chapters or the parent corporation, or that it had or­
ganized local chapters within the State. See petition­
er’s brief, page 8. It would be a strange rule that a 
party may not examine documents to aid in the prep­
aration of a case until such time as trial on the merits 
has commenced in court.

While the defenses to production of the requested 
records of privilege against self-incrimination and 
freedom from unreasonable searches and seizures are 
peripheral to the petitioner’s arguments, a word con­
cerning them is in order. That neither of these rights 
is infringed upon by such an order to produce was 
established as early as H ale v. H enkel, 201 U. S. 43, 
and carried down to United States v. W hite, 322 U. 
S. 694; and Rogers v. U nited States, 340 U. S. 367.

This brings us to the central question raised by 
the petitioner. Does a corporation have the right to re­
fuse to disclose the names of its members on the spec­
ulation that they may be exposed to public scorn and



17

dislike and to possible unfair economic and social 
pressures by private citizens? The answer is no.

First of all, neither the privileges and immunities 
of the First Amendment nor the rights created by the 
Fourteenth Amendment are protected against indi­
vidual as contrasted with state action. United States 
V . Cruikshank, 92 U. S. 542; and Pow e v. United States, 
109 Fed. 2d 147, (C. A. 5), cert, denied U nited States 
v. Powe, 309 U. S. 679.

Secondly, and most important, a corporation may 
not assert the privileges and immunities of its indi­
vidual members. Whether this be considered merely 
as a statement of the rule that a party may not as­
sert rights personal to another party or more import­
ant a statement that the rights to freedom of speech; 
assembly and redress of grievances are reserved to 
natural persons, it is still the law.

This Court has held:
“Natural persons, and they alone, are entitled 
to the privileges and immunities which Sec­
tion 1 of the Fourteenth Amendment secures 
for ‘citizens of the United States.’ Only the 
individual respondents may, therefore, main­
tain this suit.” H ague v. Committee for Indus­
trial O rganization, 307 U. S. 496, at page 
514.

See also International Ladies Garment W orkers U n­
ion, A. F. L. v. Seam prufe, Inc., 121 Fed. Supp. 165 
(D. C. E. D. Okla.) ; and Local 309 U nited Furniture 
W orkers of Am erica, C. I. O. v. Gates, 75 Fed. Supp. 
620 (D. C. N. D. Ind.).



18

These cases would seem to dispose of all ques­
tions, even those raised by the line of cases cited on 
page 18 of petitioner’s brief. Of these only, United  
States v. Rumely, 345 U . S. 41 and Pierce v. Society  
of Sisters, 268 U. S. 510, would seem to support the 
petitioner’s right to assert rights on behalf of its mem­
bers or to claim that injury to its members was injury 
to it. The other cases are distinguished by the fact 
that the person or company asserted its own right. 
For example, Burstyn, Inc. v. W ilson, 343 U. S. 495; 
Pennekam p & the M iami Herald Publishing Co. v. 
Florida, 328 U. S. 331, deal with direct censorship of 
the press. Thom as v. Collins, 323 U. S. 516, involves an 
attempt at prior censorship of a speech by a labor or­
ganization. The right asserted was individual and 
personal. Pierce v. Society Sisters, 268 U. S. 510, can 
be explained on the theory that the denial of the right 
of individuals to send their children to private schools 
eliminated by state action the means of livelihood and 
property rights of the private schools of Oregon. It is 
distinguishable from the case at bar, on the grounds 
that the statute operated on the individuals to pre­
vent their doing business with private schools, and 
thereby directly destroyed a property interest of those 
schools. U nited States v. Rumely, 345 U. S. 41, is also 
distinguishable. It deals principally with freedom of 
the press. It is true that the court vindicated Rumely’s 
refusal to disclose the names of the persons to whom 
he sold his publications. There was no majority opin­
ion holding that his refusal could be based upon con­
stitutional grounds. Mr. Justice Black did say that the 
freedom of the press was involved but it is clear that 
what concerned him was harassment of the press by 
public officials rather than the sensitivity of Rumely’s 
readers who might be exposed to public gaze.



19

The words of Mr. Justice Jackson in the Joint 
A ntifascist R efugee Com m ittee v. McGrath, 341 U . S.
123, at pages 183 and 184, are particularly apposite 
to the case at bar:

“I agree that mere designation as subversive 
deprives the organizations themselves of no 
legal right or immunity. By it they are not 
dissolved, subjected to any legal prosecution, 
punished, penalized, or prohibited from car­
rying on any of their activities. Their claim 
of injury is that they cannot attract audi­
ences, enlist members, or obtain contributions 
as readily as before. These, however, are 
sanctions applied by public disapproval, not 
by law. It is quite true that the popular cen­
sure is focused upon them by the Attorney 
General’s characterization. But the right of 
privacy does not extend to organized groups 
or associations which solicit funds or mem­
berships or to corporations dependant upon 
the state for their charters. The right of in­
dividuals to assemble is one thing; the claim 
that an organization of secret undisclosed 
character may conduct public drives for 
funds or memberships is another. They may 
be free to solicit, propagandize, and hold 
meetings, but they are not free from public 
criticism or exposure. If the only effect of the 
Loyalty Order was that suffered by the or­
ganizations, I should think their right to re­
lief very dubious.”

The petitioner has attempted to make of this a 
segregation case. It is not. It involves merely the power



20

of a state to compel foreign corporations operating 
within its borders, whatever their purpose, whether 
they be profit or non-profit, to conform to the laws 
applicable to all foreign corporations enacted for the 
protection of the citizens of Alabama. The merits of 
the State’s proceeding in equity to enjoin and oust 
the corporation from Alabama are not before this 
Court. Perhaps they never will or should be. That the 
petitioner is entitled ultimately to a hearing on the 
merits of the case is basic to our law. But it is the pe­
titioner’s own recalcitrance which has prevented its 
proceeding to the merits. The rule of law forbidding 
a party in equity who is in contempt of court contin­
uing further with a case is neither novel nor unfair. 
It makes the best of sense that a party who refuses to 
divulge information necessary to the conduct of a case 
should be prevented continuing with it. The petitioner, 
on mere speculation of injury by private individuals 
to what it construes to be the rights of its members, 
refuses to deliver to the court a list of that member­
ship. It also arrogates the constitutional rights of 
its members to itself, asserting a dubious infringe­
ment based not on State but on individual action. If 
such resistance to the orderly process of a trial is per­
mitted, corporations and particularly membership 
corporations will be permitted to place themselves 
above and outside the law. If we may be permitted a 
supposition, no more far fetched than some of those 
in petitioner’s brief, we pose the situation of a promi­
nent labor leader, under investigation, who refuses to 
produce records of his Union, even its membership, 
on the grounds that those members might be incrimi­
nated or perhaps because of the odious reputation of 
the particular Union held up to public scorn with a 
resulting fall in Union membership and Union power.



21

Can it be said that a Union official could refuse these 
records on such a basis. The answer is no. How then 
does the petitioner’s case differ? It does not. For 
these reasons there is no merit in its refusal to obey 
the order to produce issued by a court of Alabama, 
having jurisdication of both person and subject mat­
ter. *•

CONCLUSION

For the foregoing reasons this petition for certi­
orari should be denied.

Respectfully submitted,
JOHN PATTERSON 

Attorney General of Alabama

v MacDONALD GALLION
Assistant Attorney General of

Alabama

EDMON L. RINEHART 
Assistant Attorney General of

Alabama
Counsel For Respondent

JAMES W. WEBB 
Assistant Attorney General 

of Alabama 
Of Counsel On Brief



22

CERTIFICATE OF SERVICE

I, Edmon L. Rinehart, one of the attorneys for 
the respondent, The State of Alabama, and a mem­
ber of the Bar of the Supreme CourUof the United 
States, hereby certify that on the ../ fl .—r day of May 
1957, I served copies of the foregoing brief in opposi­
tion on Arthur D. Shores, 1630 Fourth Avenue, North, 
Birmingham, Alabama, by placing a copy in a duly 
addressed envelope, with first class postage prepaid, 
in the United States Post Office at Montgomery, Ala­
bama, and on Thurgood Marshall, 107 West 43rd 
Street, New York, New York, by placing two copies 
in a duly addressed envelope, with Air Mail postage 
prepaid, in the United States Post Office at Mont­
gomery, Alabama.

I further certify that this brief in opposition is pre­
sented in good faith and not for delay.

EDMON L. RINEHART 
Assistant Attorney General of

Alabama
Judicial Building 
Montgomery, Alabama