NAACP v. Alabama Brief and Argument for Respondent

    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

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