NAACP v. Alabama Brief and Argument for Respondent
Public Court Documents
October 18, 1957

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Brief Collection, LDF Court Filings. NAACP v. Alabama Brief and Argument for Respondent, 1957. 29d5222e-bf9a-ee11-be36-6045bdeb8873. LDF Archives, Thurgood Marshall Institute. https://ldfrecollection.org/archives/archives-search/archives-item/b2b216c8-c5a9-4515-8f2c-7e8ad06cfdee/naacp-v-alabama-brief-and-argument-for-respondent. Accessed July 09, 2025.
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f , . I IN THE jSupmtte (Court of tljr ffimizb jiia te OCTOBER TERM, 1957 NO. 91 NATIONAL ASSOCIATION FOR THE ADVANCEMENT OF COLORED PEOPLE, A Corporation, Petitioner V. STATE OF ALABAMA, ex rel. JOHN PATTERSON ATTORNEY GENERAL BRIEF AND ARGUMENT FOR RESPONDENT 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 Page Opinion Below ................................................................. 1 Jurisdiction 1 Questions Presented ................................................... X Statement o f the Case ............................................... 2 Summary of Argument ..................................... 8 Argument I. The judgment below, based upon State procedure, left no Federal question to be reviewed by this Court.......................13 II. The equity proceeding for injunction and ouster was a reasonable and well recognized exercise o f the State’s police power ................................................... 1 9 III. The order to produce the corporation’s records including names of members and solicitors did not deprive either the corporation or its members o f the liberty guaranteed by the Fourteenth Amendment ...................................................25 Conclusion ........................................................... 3 1 TABLE OF CASES CITED Page Adamson v. California, 332 U. S. 46 11, 25 Application of Catalonian Nationalist Club (1920) 112 Misc. 207, 184 N. Y. S. 132.................. 20 Davids v. Sillcox (1948) 297 N. Y. 355, 81 N. E. 2d 353 ...........................................................30 Doherty v. Moreschi et al (1946) 59 N. Y. S. 2d 542 ........................................................................21 ii Ex parte Baker (1898) 118 Ala. 185, 23 So. 996 9, 17 Ex parte Dickens (1909) 162 Ala. 272, 50 So. 218 8, 13 Ex parte Hart (1941) 240 Ala. 642, 200 So. 783 8, 15 Ex parte Monroe County Bank (1950) 254 Ala. 515, 49 So. 2d 161 9, 17 Ex parte Morris (1949) 252 Ala. 551, 42 So. 2d 17 .................................................... 8, 14, 15 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, 8, 10 Ex parte Sellers (1948) 250 Ala. 87, 33 So. 2d 349 .......................................................... 14,15 Goodall-Brown and Co. v. Ray (1910) 168 Ala. 350, 53 So. 137 ........................................................... 17 Hague v. Committee for Industrial Organizations, 307 U. S. 496, 514 11, 26 Hale v. Henkel, 201 U. S. 43 20, 25 Hammond Packing Company v. Arkansas, 212 U. S. 322 ........................................................... 9, 17 Henderson v. Henderson (1952) 329 Mass. 257, 107 N. E. 2d 773 ........................................................ 17 Herb v. Pitcairn, 324 U. S. 117 ............................. 8, 13 Ill In re General Von Steuben Bund (1936) 159 Misc. 231, 287, N. Y. S. 527 ............................ International Brotherhood of Teamsters v. Vogt, Inc. 354 U. S. 284 .................................... 10, Jacoby v. Goetter Weil (1883) 74 Ala. 427 9, Joint Anti-Fascist Committee v. McGrath, 341 U. S. 123, at 183 and 184 11, 12, 26, 28, Knights of the Ku Klux Klan v. Commonwealth (1924) 138 Va. 500, 122 S. E. 122 ....................... New York ex rel. Bryant v. Zimmerman, 278 U. S. 63 ...................................................16, 21, Pacific Typesetting Co. v. International Typo graphical Union (1923) 125 Wash. 273, 216 P. 358 ......................................................... People ex rel. Miller v. Tool (1905) 35 Colo. 225, 86 P. 224 ................................................................ 10, People v. Jewish Consumptive Relief Society, (1949) 196 Misc. 579, 92 N. Y. S. 2d 157 9, 16, Pierce v. Grand Army of the Republic (1945) 220 Minn. 552, 20 N. W. 2d 489 ............................. Pierce v. Society o f Sisters, 268 U. S. 510 .........12, Powe v. United States (C. C. A. 5) (1940) 109 Fed. 2d 147, cert, denied 309 U. S. 679 12, Profile Cotton Mills v. Calhoun Water Co., (1914) 189 Ala. 181, 66 So. 50 .............9, Rogers v. United States, 340 U. S. 367 ................... State ex rel. Griffith v. Knights o f the Ku Klux Klan (1925) 117 Kan. 564, 232 P. 254, cert, denied 273 U. S. 664 ............... 9, 10, 16, 21, Sweezy v. New Hampshire, 354 U. S. 234 .12, 26, Tileston v. Ullman, 318 U. S. 44 ............................... 20 21 17 29 21 30 21 23 20 10 28 29 16 25 23 27 26 IV United States v. Cruikshank, 92 U. S. 542 12, 29 United States v. Josephson (C. C. A. 2.) (1947) 165 Fed. 2d 82, cert, denied 333 U. S. 838.............26 United States v. Rumely, 345 U. S. 41 12, 26, 28 United States v. White, 322 U. S. 694 11, 20, 25 United States v. United Mine Workers of America, 330 U. S. 258 10 Watkins v. United States................................. 12, 26, 27 Wilkinson v. McCall (1945) 247 Ala. 225, 23 So. 2d 577 ...............................................................17 W olf v. Colorado, 338 U. S. 25 11, 25 STATUTES Title 7, Section 1061, Code of Alabama 1940 16 Title 10, Sections 192, 193 and 194, Code of Alabama 1940 2, 3, 23 Title 10, Sections 194 and 195, Code o f Alabama 1940 ..............................................23 New York Civil Rights Law, Section 53 ..................30 New York General Corporations Laws, Sections 210, 211 and 219 ....................................... 20 New York Membership Corporation Law, Section 10 ..................................................................... 20 New York Membership Corporation Law, Section 2 6 ...................................................................... 30 United States Code: Title 28, Section 1257 (3) ....................................... 1 OTHER AUTHORITIES Constitution of Alabama 1901 Section 232 ......... 3, 23 Constitution of the United States, Amendment X 19 Federal Rule o f Civil Procedure, 37 (b ) 9, 17 IN THE Supreme Olcmri of tl]t Pmtrfr jSiafcs OCTOBER TERM, 1957 NO. 91 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’s application for a writ of certiorari from the Supreme Court of the United States to re view the judgment o f the Supreme Court of Alabama, rendered December 6, 1956, under the provisions of Title 28, Section 1257(3), United States Code, Judici ary and Judicial Procedure, has been granted. The judgment of the Supreme Court o f Alabama was not dependent upon a decision of any federal question. QUESTIONS PRESENTED I. Has the petitioner, a foreign membership cor poration, having neglected to avail itself o f the proper remedy in the Alabama courts, and having chosen to remain in contempt, standing to obtain review in this 2 Court of the orders and decisions of the Alabama courts? H . Did the totality of the State’s action in seeking an injunction and ouster of petitioner, a foreign cor poration, and the procedure used to obtain evidence upon the issues o f that action, exceed the powers re served to the State by the Tenth Amendment? m . Did the State o f Alabama violate the rights o f the petitioner, a foreign corporation, and of its members, guaranteed by the implementation of the First Amend ment by the Fourteenth Amendment, in demanding the records and membership lists of petitioner? STATEMENT OF THE CASE Upon June 1, 1956, the State of Alabama, on the relation of John Patterson, its Attorney General, filed a bill in equity, against the petitioner, National Asso ciation for the Advancement of Colored People, a Corporation, in the Fifteenth Judicial Circuit, Mont gomery County, Alabama. The gravamen of the bill was that the corporation conducted extensive intra state activities in pursuance of its corporate purpose in Alabama without having filed with the Secretary of State a certified copy o f its articles o f incorporation and an instrument in writing, under the seal o f the corporation, designating a place of business and an authorized agent residing in Alabama, as required by Title 10, Sections 192, 193 and 194, Code o f Alabama 1940, thus doing business in Alabama in violation o f 3 Section 232 of the Constitution of Alabama 1901, and Title 10, Section 194, Code of Alabama 1940. (R pp. 1, 2, and 3). The bill o f complaint alleged irreparable harm to the property and civil rights o f the residents and citi zens o f 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 intrastate business within Alabama, from maintaining any offices and organizing further chapters within the State. A per manent injunction, in accordance with the prayer for temporary injunction, was also prayed for. Finally, an order o f ouster forbidding the corporation from organizing or controlling any chapters of the National Association for the Advancement o f Colored People in Alabama, and exercising any of its corporate func tions within the State, was requested. (R. p. 2). On June 1, 1956, the Circuit Court of Montgom ery County, Alabama, entered a decree for a tempo rary 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 o f qualifying to do business in Alabama. Service was had upon the corporation, at its offices in Birmingham, Alabama. (R. pp. 18, 19, 20) 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 4 papers alleging that the examination o f the papers was essential to its preparation for trial. (R. p. 3) The State’s motion was set for hearing on July 9, 1956. At the hearing, at which petitioner raised gen erally but not explicitly both State and Federal con stitutional objections, (R. p. 6) the court issued an order requiring production o f the following items re quested in the State’s motion: “ 1. Copies of all charters o f branches or chapters o f the National Association for the Advancement o f Colored People in the State o f 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 o f the National Association for the Advancement o f 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 o f Alabama authorized to solicit memberships in and contributions to the National Association for the Advance ment of Colored People, Inc. “ 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 o f filing the petition for injunction, pertaining to or between the Na tional Association for the Advancement o f Colored People, Inc., and persons, corpor 5 ations, associations, groups, chapters and partnerships within the State of Alabama. “ 6. All deeds, bills o f sale and any written evidence o f 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 o f 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 A d vancement of Colored People, Inc., and Au- therine Lucy, Autherine Lucy Foster, and Polly Myers Hudson. “ 11. All lists, books and papers showing 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- 6 pondence and other memoranda pertaining to or between the National Association for the Advancement of Colored People, Inc., and Aurelia S. Browder, Susie McDonald, Claudette Colvin, Q. P. Colvin, Mary Louise Smith and Frank Smith, or their attorneys, Fred D. Gray and Charles D. Langford.” (R. pp. 20, 21 and 22) 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. (R. p. 6) On July 23, petitioner filed an answer on the merits, denying certain intrastate activities constitut ing doing business in Alabama. In addition, though denying the applicability of the Alabama statutes, pe titioner averred that it had procured the necessary forms for the registration of a foreign corporation supplied by the office of the Secretary of State of the State o f 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 pro duce which motion was set down for hearing on July 25th. (R. pp. 6 and 7) On July 25, 1956, the court heard oral testimony, and argument of counsel, the Attorney General testi fying that if the petitioner would agree that it was doing business in the State o f Alabama, and agree as to the nature o f that business, the material sought by motion would not be needed. (R. p. 7) The Court overruled the motion to set aside and ordered the pro 7 duction o f the items stated in its previous order. Pe titioner refused to comply with the court’s order, upon which the court adjudged petitioner in contempt, as sessed a fine of $10,000.00 against it for the contempt with the further provision that unless the petitioner complied with the order to produce within five days the fine would be increased to $100,000.00 The Court also decreed that if the petitioner complied with the order, it would entertain a motion to remit the fine. The petitioner’s motion to dissolve the temporaiy in junction was not heard in view of its contempt in refusing to obey the order to produce. (R. pp. 7-11) 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 miscel laneous documents which it alleged to be substantial compliance. At all times the corporation refused to produce the names and addresses o f its members. This motion was denied and petitioner then filed a motion in the Supreme Court o f Alabama, requesting stay of execution o f 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. (R. pp. 11-15) On August 8, petitioner filed a purported peti tion for writ o f certiorari in the Supreme Court of Alabama. After oral argument on August 13, 1956, 1. 91 So. 2d 220. 8 the Supreme Court o f Alabama, denied the writ on the grounds o f insufficiency.2 Thereafter on August 20, 1956, petitioner filed a second petition for writ o f certiorari.3 Upon Decem ber 6, 1956, the Supreme Court of Alabama denied the writ requested in this petition. SUMMARY OF ARGUMENT I. 1. The United States Supreme Court does not review state court judgments based upon an adequate and independent nonfederal ground. Herb v. Pitcairn, 324 U. S. 117. The nonfederal basis of the judgment o f the Supreme Court of Alabama is real and not il lusory. Though Ex parte Dickens, 162 Ala. 272, 50 So. 218, holds certiorari the proper method to review contempt, the established law of Alabama is that mandamus is the proper method by which to review an order to produce. Ex parte Hart, 240 Ala. 642, 200 So. 783. Petitioner could have raised all constitutional questions in mandamus proceedings but elected or neglected to take such action though it had adequate time, fifteen days, before being required to produce the records. Ex parte Morris, 252 Ala. 551, 42 So. 2d 17, is o f no avail to petitioner because in that case the writ o f certiorari to review a contempt citation for failure to produce records was also denied. In both Ex parte Morris and the case at bar the Alabama Su 2. 91 So. 2d 221. 3. The grounds alleged by the petitioner in both the first and second petitions for certiorari appear at Record pages 16 and 17. 9 preme Court considered questions o f constitutional law for the future guidance of lower courts but not as the basis o f its decision. 2. The procedure to obtain the records was in keeping with established Alabama law. Ex parte Mon roe County Bank, 254 Ala. 515, 49 So. 2d 161; and Ex parte Baker, 118 Ala. 185, 23 So. 996. The re quested records were relevant both to issues raised by the motion to dissolve the injunction and those raised by the answer. The documents required could have been used to prepare affidavits on the motion to dissolve, as well as in presenting the case on the merits. Profile Cotton Mills v. Calhoun Water Co., 189 Ala. 181, 66 So. 50. The nature and extent o f the corporation’s business within Alabama was the heart of the matter because upon it depended the jurisdic tion of the court and the type and severity of sanc tions, if any, to be imposed upon petitioner. State ex rel. Griffith v. Knights of the Ku Klux Klan, 117 Kan. 564, 232 P. 254, cert, denied 273 U. S. 664; and People v. Jewish Consumptive Relief Society, 196 Misc. 579, 92 N. Y. S. 2d 157. 3. The procedure of precluding from further proceeding with a case a party, which has refused to produce evidence necessary to determination of the issues therein, is neither novel, unfair or unconstitu tional. Federal Rule o f Civil Procedure 3 7 (b ) ; Ham mond Packing Co. v. Arkansas, 212 U. S. 322. Nor is it unusual for a party in contempt to be prevented from further proceeding on the merits. Jacoby v. Goetter Weil Co. 74 Ala. 427. 4. Thus, it can be seen that the petitioner’s own disregard for Alabama procedure placed it in the po 10 sition where it could not test the validity o f the order to produce but could either comply or stand in contempt. 5. The size of the fine was not excessive. United States v. United Mine Workers of America, 330 U. S. 258; and Ex parte National Association for the Ad vancement of Colored People, 91 So. 2d 214. 1. The police power is one of those reserved to the states by the Tenth Amendment. That amendment is o f equal dignity to the rest o f the Constitution in cluding amendments preceding and following it. A corporation, being an artificial entity, is subject to the restraints o f the police power more than a natural person and has fewer rights. It has no right of pri vacy or privilege against self-incrimination. Corpora tions and membership associations are subject to the laws of a state within which they would operate whether that be of their domicile or not. International Brotherhood of Teamsters, Local 695 A. F. L. v. Vogt, Inc., 354 U. S. 284; Pierce v. Grand Army of the Re public, 220 Minn. 552, 20 N. W . 2d 489; and State Ex rel. Griffith v. Knights of the Ku Klux Klan, 117 Kan. 564, 232 P. 254, cert, denied 273 U. S. 664. 2. It is a legitimate exercise of a state’s police power and proper for its attorney general to proceed in equity to enforce laws enacted to protect its people even though the acts enjoined also be crimes. State Ex rel. Griffith v. Knights of the Ku Klux Klan; and People Ex rel. Miller v. Tool, 35 Colo. 225, 86 P. 224. 3. There is no reason why a membership cor 11 poration devoted to propaganda, promotional activi ties, even good works, and the furthering o f the inter ests o f its members or o f particluar groups should be exempt from the registration statutes o f the states and the penalties for violating them. Such a corporation can commit the same torts as commercial ventures, the same crimes. In these days of mass media, complex and subtle methods of influencing public opinion the state and its people have a real interest in knowing the identity of those who would pool their powers as individuals in corporate form to achieve their ends. Those who act as a corporation must expect to be treated as a corporation. m. 1. Corporations, associations, and similar or ganized groups concededly have a right of freedom o f speech and press. They do not have a right of privacy or secrecy, Joint Anti-Fascist Refugee Com mittee v. McGrath, 341 U. S. 123, at pages 183 and 184; nor privilege against self-incrimination, United States v. White, 322 U. S. 694. They are not entitled to the privileges and immunities o f natural persons nor, any more than a natural person, may they assert an- others rights. Hague v. Committee for Industrial Or ganization, 307 U. S. 496, at page 514. 2. The Fourteenth Amendment does not incor porate the first eight amendments. Adamson v. Cali fornia, 332 U. S. 46; and W olf v. Colorado, 338 U. S. 25. 3. Four cases are the basis o f petitioner’s claim that its freedom of speech and press and those o f its members was unconstitutionally abridged. O f these 12 three, Watkins v. United States, 354 U. S. 178; Sweezy v. New Hampshire, 354 U. S. 234; and United States v. Rumely, 345 U. S. 41, deal with the assertion by a natural person of the right to remain silent concerning his political associations, or subscribers to his publi cations, or the subject matter o f his speeches, when questioned by an investigative committee. The W at kins and Sweezy cases hold essentially that a person cannot be held in contempt for failure to answer ques tions which are not relevant to a well defined line of inquiry. The vagueness of the standard by which the person interrogated must judge his right not to answer makes a contempt conviction a denial of due process. The Rumely case was not decided on constitutional grounds. Joint Anti-Fascist Refugee Committee v. McGrath, has no majority opinion and at most can be construed as holding that an ex parte Attorney General’s listing of an organization as ‘ ‘subversive” injures its reputation without granting the hearing which due process requires. It will be seen that in ̂ all these cases it was action by the sovereign upon the individual, not the danger of pressure by private per sons upon members o f an organization, which was held v to be a violation of constitutional rights. Pierce v. Society of Sisters, 268 U. S. 510, holds merely that a statute compelling all children to attend public schools deprives without due process private organizations o f the property right to be in the edu cation business. Petitioner has justified its refusal to produce its records on the mere speculation of injury by private persons to its members. Private action is not state action. United States v. Cruikshank, 92 U. S. 542; and Powe v. United States, 109 Fed. 2d 147, (C. C. A. 5), cert, denied United States v. Powe, 309 U. S. 679. 13 ARGUMENT I. THE JUDGMENT BELOW, BASED UPON STATE PROCEDURE, LEFT NO FEDERAL QUESTION TO BE REVIEWED BY THIS COURT 1. The United States Supreme Court will not review a state court judgment based upon an adequate and independent nonfederal ground. The reason for this rule is obvious. It lies in the division of power between the state and Federal judicial systems. The power of the Supreme Court over state judgments is to correct them only to the extent that they adjudge Federal rights and not to pass upon state court opin ions concerning Federal questions which are not neces sary to the decisions. Herb v. Pitcairn, 324 U. S. 117. Therefore, before this Court will review a state court case it must determine either that the decision of the state court was based upon a federal ground or that any nonfederal ground for the decision was in adequate by itself to support the state court judgment. The petitioner attempts to show that the non federal ground for the decision o f the Supreme Court of Alabama is illusory. It contends that the Alabama Court departed from a long standing State procedure permitting review of contempt proceedings by cer tiorari. That opinion reveals the error o f this conten tion by citing Ex parte Dickens, 162 Ala. 272, 50 So. 218. Respondent does not concede, as petitioner states upon page 2 o f its brief, that, because certiorari is the proper method of reviewing a contempt citation, the holding in the case at bar that mandamus was the 14 proper remedy to review an order to produce was in any way a departure from established State procedure. Rather, by mandamus the aggrieved party can obtain review without the danger of a contempt citation. The petitioner chose another course though it had ample time in which to have filed mandamus proceedings prior to July 25, 1956. The petitioner elected to test this order by refusal to obey thus subjecting itself to contempt proceedings. The Supreme Court of Ala bama reviewed those contempt proceedings with a view to determine whether the trial court had juris diction of the person and subject matter, whether the proceedings were valid and regular on their face, and whether the lower court had exceeded its authority. Petitioner, in the jurisdictional statement of its brief on the merits, touches lightly on this facet of the Alabama decision, but in its petition for certiorari re lies upon Ex parte Morris, 252 Ala. 551, 42 So. 2d 17, Ex parte Sellers, 250 Ala. 87, 33 So. 2d 349, and simi lar cases, to show that the Supreme Court o f Alabama used the device of State procedure to preclude review of its decision. Those cases cited by the petitioner fail wholly to support that contention. For example, in Ex parte Morris, the Alabama Supreme Court did not grant the writ of certiorari and then affirm the case but rather in the first instance denied the writ. After deciding that Morris’ petition showed a direct con tempt committed in the presence of the court, that due process was afforded the petitioner, and that no error appeared on the face o f the record, the court denied the writ o f certiorari, but deemed it advisable that the opinion further exposit the views of the court for future guidance upon problems of this nature. The attention of this Court is called to the parallel in the opinion delivered by the Supreme Court of Alabama 15 in this case. The court therein denied the writ of cer tiorari on essentially the same grounds as in Ex parte Morris, but in order that the parties might understand its views on the subject, wrote to the merits o f the petitioner’s constitutional objections. Thus, expres sions of opinion on constitutional matters were not necessary to the decision and are not before this Court. The only thing before this Court is the adequacy of the nonfederal grounds of the decision. The Supreme Court of Alabama clearly stated and demonstrated by ample authority that mandamus is the correct and the only procedure to review an order to produce records.4 Such cases as Ex parte Sellers, are not in point, as these cases either deal with a direct contempt or the refusal to obey a court order not reviewable by mandamus. 2. At pages 37 and 38 of the petitioner’s brief, it argues that the procedure followed in the trial court was calculatedly designed to place it in a position where it could not obtain a hearing on its motion to dissolve the temporary injunction and ultimately on the merits of the case. Analysis o f the order o f events rebuts this argument. The motion to produce was granted on notice and hearing. Between July 9 and July 24, there was ample time to have contested the order to produce by mandamus, or to obey. The records and documents were relevant to proof of the nature and methods of petitioner’s business in Alabama. It was proof necessary to determine whether the temporary injunction should remain in effect and whether or not a permanent injunction and ultimately an order of ouster should be granted. 4. Ex parte Hart, 240 Ala. 642, 200 So 783. 16 It is true that, if objected to, oral testimony is not admissible on a motion to dissolve a temporary injunc tion, but affidavits are permitted. Profile Cotton Mills v. Calhoun Water 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. In this connection, it should be remembered that the petitioner’s answer, while admitting some of the State’s allegations, denied that it had solicited members for either the local chap ters or the parent corporation or that it had organized local chapters within the State (R. p. 7). The Attorney General testified that the records would not be required if petitioner would admit that it was doing business within Alabama and disclose the nature and extent thereof." To this offer the petitioner did not agree. Since the petitioner had filed an answer and sub mitted to the jurisdiction o f the court, a trial on the merits could have followed immediately, whether or not the temporary injunction was dissolved. Thus, the State needed to examine the corporation’s records in the aid of its preparation for trial. It is nowhere the rule that a party may not examine documents to be used in preparation o f a case until such time as trial on the merits has commenced in court. The Federal 5 5. Solicitation o f funds or membership within a state is doing business so as to subject a corporation to state regulation and restraint. People v. Jewish Consumptive Relief Society, 196 Misc. 579, 92 N. Y. S. 2d 157; State ex rel. Griffith v. Knights of the Ku Klux Klan, 117 Kan. 564, 232 Pac. 254, cert. den. 273 U. S. 664; and New York ex rel Bryant v. Zimmerman, 278 U. S. 63. 17 Rules o f Civil Procedure contain far reaching discov ery procedures. Numerous states, such as New Jersey, have followed the lead o f the Federal courts. And the penalties for refusing discovery can be severe. For example, Federal Rule o f Civil Procedure 37(b) au thorizes default judgment against a party contuma ciously refusing to disclose documents necessary and relevant to the issues of a cause. As far back as Ham mond Packing Co. v. Arkansas, 212 U. S. 322, it was held that when a defendant corporation disobeyed an order to secure the attendance of its officers, agents, directors and emploees as witnesses and refused pro duction of books, papers and documents in their pos session, it was not a denial of due process to permit the rendering of a default judgment against it. What some states have prescribed by statute, Alabama per mits as a matter o f common law.0 This rule of denying a party in contempt the right to proceed further with a trial pending its purging itself o f contempt, even when the flouted order was interlocutory, is recognized in other states. Henderson v. Henderson, 329 Mass. 257, 107 N. E. 2d 773. Lest the action o f the Alabama Supreme Court be lightly disregarded as a device to frustrate review by the United States Supreme Court, we reiterate that the corporation had fifteen days in which to have filed a petition for writ o f mandamus to obtain review of 6 6. Ex parte Monroe County Bank, 254 Ala. 515, 49 So. 2d 161; Ex parte Baker, 118 Ala. 185, 23 So. 996; Goodall-Brown and Co., et al. v. Ray, 168 Ala. 350, 53 So. 137; Wilkinson v. McCall, 247 Ala. 225, 23 So. 2d 577; and Jacoby v. Goetter Weil Co., 74 Ala. 427. 18 the trial court’s order to produce before being called upon to disclose its records. During this time petition er’s sole action was to file an answer which carefully avoided describing the character and extent o f its ac tivities in Alabama. Yet this answer, together with certain affidavits purporting to show that its members, if known, were subject to pressure by private citizens of Alabama, was offered as the excuse for its refusal to produce its corporate records. It was not until its attorneys had said that those records would not be produced and the corporation was held in contempt that the petitioner attempted to obtain from the ap pellate courts of Alabama review of the order making it produce its records. As this Court has so often stated, it is constitu tionally barred from reviewing a State court judgment resting on a nonfederal ground. The sovereignty of State’s government, so fundamental to our constitu tional system requires that this Court confine its re view to those cases which inescapably present a fed eral question. Can it be said after reading the careful analysis o f the applicable Alabama law contained in the opinion o f the Supreme Court o f Alabama in this case and the record on appeal, that the decision of a federal question was necessary to the conclusion to deny the writ? Rather, the petitioner’s own inatten tion to and deliberate disregard of established pro cedures, similar to those recognized in other jurisdic tions, placed the petitioner in its present dilemma. 19 II. THE EQUITY PROCEEDING FOR INJUNCTION AND OUSTER W AS A REASONABLE AND WELL RECOGNIZED EXERCISE OF THE STATE’S POLICE POWER. 1. “ The powers not delegated to the United States by the Constitution nor prohibited by it to the states, are reserved to the states respectively, or to the people.” Thus, reads the Tenth Amendment to the Constitu tion o f the United States. Without it that Constitu tion, the authority by which all branches o f the Federal government act, would not exist. It is a provision of equal dignity to all other portions o f that Constitu tion, including those amendments which precede it in order or were adopted thereafter. It is true that in its history judicial interpretation has restricted the sov ereign power of the states, but the police power has never been questioned as one of these reserved rights of the states without which they would cease to be sovereign entities. What are the limitations on this police power? That is what this Court must decide if it leaps the initial hurdle o f deciding that the decision o f the Supreme Court of Alabama in this case was necessarily based upon a Federal ground. In analyz ing the extent o f the police power o f the several states in the context of this case it is helpful to examine what states other than Alabama have done to control the activities of domestic and foreign corporations within their borders. That a corporation is an artificial entity subject to restraint by the sovereign which grants it life or 20 which permits it to function within the sovereign’s boundaries is axiomatic. That a corporation does not have all the rights of a natural person, because o f its artificial character, is also basic law. Hale v. Henkel, 201 U. S. 43; and United States v. White, 322 U. S. 694. The petitioner herein would have this Court be lieve that, because it is a membership corporation which engages in propaganda and political activities and seeks to promote the interests of its members, it is entitled to wear a cloak of not only immunity but invisibility nullifying the constitutional power o f the states to inquire into, regulate, and curtail its activities. It makes this claim in the face o f the statutory and case law of the state of its origin.7 W e need not go beyond the New York General Corporation Law, Sections 210, 211 and 219, to see that a foreign corporation, which either does unlicensed business within New York or exceeds the powers which New York permits it to exercise within its borders, is subject to injunction and ouster.8 Labor unions, which 7. The New York Membership Corporation Law, Sec tion 10, empowers Justices of the State Supreme Court to pass upon the purpose of membership corporations and disapprove them if they offend either New York public policy or the individual Justice’s opinion as to desirability of purpose. Application of Catalonian Nationalist Club, 112 Misc. 207, 184 N. Y. S. 132; In re. General Von Steuben Bund, 159 Misc. 231, 287 N. Y. S. 527. 8. People v. Jewish Consumptive Relief Society, 196 Misc. 579, 92 N. Y. S. 2d. 157. 21 are certainly entitled to as much consideration as this corporation, are also subject to state restraint.9 However, even more strikingly in point with the case at bar, are three cases sustaining the power o f the state to regulate another membership corporation whose charter also contains statements o f worthy aims and ends, namely, The Knights of the Ku Klux Klan. The cases are, State ex rel. Griffith v. Knights of the Ku Klux Klan, 117 Kan. 564, 232 P. 254, cert, denied, 273 U. S. 664; Knights of the Ku Klux Klan v. Com monwealth, 138 Va. 500, 122 S. E. 122; and New York ex rel. Bryant v. Zimmerman, 278 U. S. 63. The peti tioner would have it that these cases may be explained on the basis o f judicial notice that the Klan is an or ganization based upon bigotry and committed to vio lence. Similarly, this Court is asked to take judicial notice o f the noble character and purpose of petitioner based upon publications, periodicals and news reports whose accuracy, impartiality and reliability are not subject to the tests usually reserved for evidence ad mitted in court. If such judicial notice is permitted, an appellate record loses its value and briefs on appeal become a battle o f magazine and newspaper opinion. To return from this digression to the more fun damental issues in this case, the striking similarity of 9. Doherty v. Mareschi, et ah, 59 N. Y. S. 2d 542; International Brotherhood of Teamsters v. Vogt, Inc. 354 U. S. 284; Pacific Typesetting Co. v. International Typographical Union, 125 Wash. 273, 216 P. 358. 22 Kansas’ successful action against the Ku Klux Klan to that which Alabama commenced againt this recal citrant corporation, which would set itself above the law, is immediately evident. The Supreme Court of Kansas outlined, on the basis o f a Commissioner’s re port, the activities o f the Klan in Kansas. It sustained the ouster o f the Klan, even though it was a member ship corporation, while expressly accepting the com missioner’s finding that the evidence was insufficient to show that the Klan engaged in violence and intimi dation. The Supreme Court o f the United States denied certiorari. Thus, despite the somewhat ambiguous con clusion to be drawn from denial o f certiorari by the United States Supreme Court there is no ambiguity about the assertion of the right o f Kansas to regulate and oust nonprofit membership corporations doing business within its borders. It is submitted that this case alone is sufficiently authority upon which to sus tain the initial proceedings in Alabama. 2. Petitioner makes a somewhat halfhearted at tack on the validity o f the action for injunction and ouster upon the grounds that equity will not enjoin violation o f statutes for which there is a criminal pen alty. W e do not quarrel with the general rule that equity will not aid in enforcement of a penalty nor the rule that equity will not act where there is an ade quate remedy at law. But do those rules apply in this case? The fact is that this is not an action to enforce a penalty but rather to forbid the doing of an act which is also a crime. This last equity most certainly will do, as in the case of the enjoining o f gambling houses and liquor nuisances even though both gambling and pos session of illegal liquors are crimes. In the case at bar, the State had no adequate remedy at law since each act o f solicitation o f membership constituted a 23 separate violation of Title 10, Sections 194 and 195, Code of Alabama 1940. The multiplicity o f criminal actions necessary to enforce these statutes against such an organization, its officers and agents is self-evident. The interest o f Alabama in protecting its citizens from an abuse o f their personal and property rights is found in the declaration o f the State policy o f Title 10, Sections 192 and 193, Code of Alabama 1940, and the Constitution of Alabama 1901, Section 232. The Griffith case sustained the power o f Kansas in a simi lar action to protect the similar rights of the people o f Kansas. The power to protect by injunctive pro cess was also sustained in People Ex rel. Miller v. Tool, 35 Colo. 225, 86 P. 224. 3. The reason why a corporation is subject to this regulation is that an artificial body, created by the State, is naturally limited by the rules set by its crea tor. Those who would unite in coporate form and en joy its benefits must also accept its disadvantages. If they would act through a corporation, they must be prepared to be treated as a corporation. Now how is a membership corporation, devoted ostensibly to good works, political activity, and propaganda, but financed by membership subscriptions and solicited contribu tions, so different from the ordinary commercial cor poration that it should be free from regulation, free from the restraints which the sovereign can ordinarily impose? It can libel and slander, it can make and break contracts. By its agents it can commit torts or crimes, just as can the most crassly commercial venture. If it does these things, who is to be served, where is he to be found? 24 If petitioner should be free of regulation and re straint, why should not trade associations, manufac turers associations, advertising firms, all those who deal in public relations, be free of examination into their affairs on the theory that their primary function is to inform the public, to influence opinion and the resulting action, and in many cases, to persuade legis latures to specific ends and the public to particular political action? In these days of subliminal adver tising and other subtle and indirect ways o f obtaining the desired but not readily apparent ends of various groups, the right of the sovereign to know and the people to know who are these idea peddlers is fully as great as the right to trade in those ideas. In fact, the very right to dissent which the State must not de stroy, which is so fundamental to our free society, can be destroyed by the unrestrained action o f organiza tions who, because they claim noble aims and lofty purposes, also claim a constitutional right to secrecy and privacy. Yet the very power of these groups to act in concert in corporate or membership form is granted by the sovereign who most certainly must have the right to see that this power is neither abused nor misused. 25 m . THE ORDER TO PRODUCE THE CORPORATION’S RECORDS INCLUDING NAMES OF MEMBERS AND SOLICITORS DID NOT DEPRIVE EITHER THE CORPORATION OR ITS MEMBERS OF THE LIBERTY GUAR ANTEED BY THE FOURTEENTH AMENDMENT. In analyzing why the liberties o f neither the cor poration nor its members have been abridged, we shall discuss, first the constitutional rights o f the corpo ration, second the fact that the corporation may not as sert the rights o f its members, and third the constitu tional rights o f those members. 1. At the outset it should be clearly understood what rights and liberties a corporation has, and which it does not have, guaranteed by the Fourteeth Amend ment. W e concede that a corporation has the First Amendment rights o f freedom o f speech and freedom of the press. W e do not concede that a corporation has a privilege against self-incrimination, or freedom from a reasonable search or seizure to require produc tion o f corporate records. Hale v. Henkel, 201 U. S. 43; United States v. White, 322 U. S. 694; and Rogers v. United States, 340 U. S. 367. Nor does the Four teenth Amendment incorporate the first eight amend ments to the United States Constitution. It is only when the state intrusion is so shocking that it amounts to a denial o f due process that state action is held to be unconstitutional. Adamson v. California, 332 U. S. 46, and W olf v. Colorado, 338 U. S. 25. In this con nection the rights of natural persons are o f more con cern to this Court than those o f corporations. 26 Thus, we come to the rights of a corporation which are secured by the Fourteenth Amendment. Conced- edly, they include freedom of speech and freedom of press. They do not include freedom of association, a right of privacy, or the right to assert the privilege of others, including members. This Court has held that natural persons alone are entitled to the privileges and immunities o f Section I of the Fourteenth Amendment. Hague v. Committee for Industrial Organization, 307 U. S. 496. But not even natural persons can invoke the constitutional rights of others. Tileston v. Ullman, 318 U. S. 44; and United States v. Josephson, (C. C. A. 2 ), 165 Fed. 2d 82, 89, cert, denied 333 U. S. 838. 2. The cases which petitioner claims support the contention that it may assert the rights o f its members or at least may refuse to disclose the names o f its mem bers because o f possible ill effects upon its operations are four. United States v. Rumely, 345 U. S. 41; Joint Anti-Fascist Refugee Committee v. McGrath, 341 U. S. 123; Sweezy v. New Hampshire, 354 U. S. 234; and Watkins v. United States, 354 U. S. 178. By a parlay o f these four decisions petitioner attempts to justify a rule that a corporation may conceal the identity of its members if those members, once identified would tend to fall away from membership with a resulting loss of the corporate strength. As was pointed out on pages 14 and 15 o f respondent’s brief in opposition to the petition for writ of certiorari, this, when studied, is a somewhat involuted concept. Yet it has a decep tive simplicity similar to Decartes’ famous dictum “ I think, therefore I am.” It has the same metaphysical quality o f requiring an act o f faith as the basis for the syllogism. Their reasoning seems to be: W e are an organization o f individuals; our individual members have certain constitutional rights, therefore we the 27 organization have those constitutional rights since we are the mere sum of all our members. This reasoning overlooks the nature of a corporation, which is some thing more than the mere sum of its individual mem bers. Rather, it is an artificial entity through which the members act and which, because it permits them to shield themselves from certain personal liabilities, is subject to more restraints than a natural person. It can be seen that Watkins and Sweezy were both asserting individual personal rights of freedom of speech and association. As we interpret the majority opinion in both cases it held that the two men were denied due process when compelled to answer ques tions concerning their associations and political con nections in the absence o f a showing that the questions were related to a well defined line of inquiry in which the sovereign had a substantial interest. Certainly, the Watkins case, is based upon the fact that the questions were so discursive, the directive o f Congress and the investigating body’s interpretation thereof so broad that Watkins had no way of telling what he might properly decline to answer and what he could not re fuse. Thus, his prosecution was a denial of due pro cess because no clear standard of conduct was estab lished by which he could judge the legality o f his ac tions. With Sweezy, the question was similar and the majority opinion seems to hold that the Attorney Gen eral’s questions were not related to matters entrusted to his investigation by the legislature. Thus, the in vasion o f Sweezy’s personal rights was not warranted and contempt based thereon was a denial o f due pro cess. In both cases, even though they sustained the right not to give information, the rights asserted were personal to individual citizens as contrasted with corporations. 28 Rumley’s case involved the assertion of the right not to give certain information concerning persons who subscribed to his publications. No majority opinion sustained his refusal upon constitutional grounds. While Mr. Justice Black’s concurring opinion dealt with freedom of the press and his thought was that the official harassment o f people who bought Rumley’s tracts might injure Rumley’s business, to that extent abridging his exercise of freedom of spech and free dom of the press, it is clear that the opinion is con cerned with the possibility of harassment o f the press by public officials under the guise o f obtaining information. Joint Anti-Fascist Refugee Committee v. McGrath, 341 U. S. 123, has no majority opinion. The Justices agreed that the Committee had some standing to sue because the act o f the Attorney General, in declaring the organization subsersive, injured its reputation naturally causing it to lose membership. It was char acterizing it as subversive without a hearing which con stituted denial o f due process. It is true, that Mr. Jus tice Jackson expressed the thought that the organiza tions could assert the rights of their members. He also said, at pages 183 and 184, that corporations, organ ized groups or associations which solicit funds or memberships had no right of privacy or secrecy. The fact that members were held up to scorn and obloquy did not entitle them to secrecy. This can only be taken as meaning that memberships cannot be kept secret. Pierce v. Society of Sisters, 268 U. S. 510, cited by petitioner for the proposition that a corporation may assert constitutional rights of others including their rights to free association, deals with none of these. It holds simply that an Oregon statute com- 29 pelling all children to attend public schools deprived, without due process of law, private organizations of their property rights to conduct schools. The action o f the Oregon Legislature directly interfered with that property right. 3. At this point a very important distinction must be made between all these decisions and the case at bar. It is true that an Alabama court has ordered this corporation to reveal the names of its members and solicitors. But the interference, if any, with the rights of the corporation and its members are at best a matter of conjecture. And, in no event, consists of more than exposing of the members to public criti cism and possible economic and social pressure by private individuals. Neither the privileges and im- munties of the First Amendment nor the rights created by the Fourteenth Amendment are protected against individual as contrasted with state action. United States v. Cruikshank, 92 U. S. 542; and Powe v. United States, (C. C. A. 5) 109 Fed. 2d. 147, cert, denied United States v. Powe, 309 U. S. 679. Mr. Justice Jackson recognized the distinction in Joint Anti-Fascist Refugee Committee vs. McGrath, 341 U. S. 123, when he placed his decision that the rights of members were abridged, upon the basis that ex parte listing o f an organization as subversive without a hearing resulting in an automatic dismissal o f government employees who were members therein deprived these employees of their livelihood wthout due process. 4. The petitioner, at page 40 of its brief, at tempts to show that it was denied due process by quoting two excerpts from a speech made by the learned trial judge almost a full year after the pro ceedings before him in the case at bar. It argues that 30 because he was opposed to integration, organizations committed to integration of the races could not receive a fair hearing before him. Likewise, might the Daily Worker, an organ of the Communist party, argue that no Federal or state judge could sit upon a case in volving that publication, because all such judges must take an oath to uphold the Constitution o f the United States; a priori committing themselves as foes of Com munism. Such argument, and petitioner uses it to be labor all officials o f Alabama in building up a picture of calculated denial o f its rights, could be used to de velop a sort o f Parkinson’s law that the more unpopu lar an organization is, the greater is its freedom from control and examination by the sovereign. New York, the petitioner’s State of origin, recognizes no such rule. The New York Civil Rights Law, Section 53, compels membership corporations which require an oath as prerequisite or conditions of membership, with certain exceptions, to file a roster o f their membership and list o f their officers for each year. The constitution ality o f this statute was upheld by the United States Supreme Court in New York ex rel Bryant V . Zim merman, 278 U. S. 63.10 It is difficult to see why Ala bama may not obtain, by judicial order, evidence rele vant to issues in a proceeding to enforce its corpora tion laws, similar to that which New York may consti tutionally extract from corporations by virtue o f a statute. 10. New York also permits visitorial rights by the Supreme Court over membership corporation by statute: New York Membership Corporation Law, Section 26; and compels production o f records by mandamus as a matter o f common law. Davids v. Sillcox, 297 N. Y. 355, 81 N. E. 2d 353. 31 CONCLUSION The petitioner neglected to avail itself o f the es tablished procedure o f petition for writ o f mandamus to review the trial court’s order to produce. Therefore, the judgment of the Alabama Supreme Court was not based on any Federal ground and leaves nothing for this Court to review. The action of the State o f Alabama to enjoin and oust petitioner, a foreign corporation, which had vio lated the Alabama corporation laws, was a well recog nized exercise o f the police power of the State re served to it by the Tenth Amendment. No constitutional rights o f either the corporation or its members were abridged by the commencement of an action for injunction and ouster and the require ment that the corporation produce records relevant to the issues in that action. It is respectfully submitted that the writ o f cert iorari heretofore issued by this Court should be re called or in the alternative the decision o f the Ala bama Supreme Court should be affirmed. Respectfully submitted, JOHN PATTERSON Attorney General o f Alabama MacDONALD GALLION Assistant Attorney General of Alabama EDMON L. RINEHART Assistant Attorney General o f Alabama Counsel For Respondent JAMES W. WEBB Assistant Attorney General o f Alabama Of Counsel On Brief 32 CERTIFICATE OF SERVICE I, Edmon L. Rinehart, one of the attorneys for the respondent, The State of Alabama, and a member of the Bar o f the Supreme Court of the United States, hereby certify that on the J O ..............day o f October 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 a ...... —<r- o V-