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1969

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Brief Collection, LDF Court Filings. Lancaster v. Hammond Opinion, 1949. d8297348-ba9a-ee11-be36-6045bdeb8873. LDF Archives, Thurgood Marshall Institute. https://ldfrecollection.org/archives/archives-search/archives-item/d1c25a81-a7b2-4de5-a2c2-3ec7b19fd49b/lancaster-v-hammond-opinion. Accessed August 19, 2025.
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C ircuit C ourt N o. 2 of Baltimore C ity No. 30021-A Docket 58A— 184, (1949) Filed August 15, 1949 H . C A R R IN G T O N L A N C A S T E R , E T A L ., vs. H A L L H A M M O N D , A T T O R N E Y G E N E R A L O F M A R Y L A N D , E T A L . Subversive Activities Act of 1949— Constitutionality— Emergency Act— Constitutionality Opinion by Sherbow, J. Price 10 Cents Circuit Court No. 2 of Baltimore City No. 30021-A Docket 58A—184, (1949) Filed August 15, 1949. H. CARRINGTON LANCASTER, ET AL„ VS. HALL HAMMOND, ATTORNEY-GENERAL OF MARYLAND, ET AL. I. Duke Avnet, Mitchell A. Dubow, Linwood G. Roger, Donald, G. Mur ray, Robert P. McG-uinn, and Bernard Rosen for the complainants. Hall Hammond, Attorney-General; J. Edgar Harvey, Deputy Attorney- General ; Thomas N. Biddison, City Solicitor of Baltimore; Leroy W. Preston and Hugo A. Ricduti, Assistant City Solicitors, for the defen dants. __________________ A m ici Curiae Harold Buchman for National Union of Marine Cooks and Stewards. Benjamin L. Wolfson and Kenneth R. Hammer, for American Legion, Department of Maryland. Dallas F. Nicholas and David Rein, for National Lawyers Guild. David Scribner for United Electrical, Radio and Machine Workers of America. Subversive Activities Act Of 1919—Constitutionality—Emergency Act—Consti tutionality. SHERBOW, J — The complainants assert that the “ Subversives Act of 1949,” also known as the “Ober Bill,” Chapter 86 of the Acts of the General Assembly of 1949, is unconstitutional and void. They also seek to have Chapter 310 of the Acts of 1949, declaring the “ Subversives Act of 1949” an emergency measure, like wise declared unconstitutional and void. Parties; History Of The Statutes. The complainants are four professors of Johns Hopkins University, a pro fessor of Morgan State College, a doc tor of medicine specializing in psychia try, a professor of George Washington University, a salesman, a general med ical doctor, and a sculptor. Other interested parties received per mission from the Court to file briefs as amici curiae. The Attorney-Gen eral of Maryland and the City Solicitor of Baltimore have filed demurrers, asserting both acts are valid and con stitutional. As a great number of contentions have been made, they will be treated separately under appropriate headings. By Chapter 721 of the Acts of 1947 a constitutional amendment was pro posed, and this was approved by the voters in November, 1948. It is now Section 11 of Article 15 of the Con stitution, and is as follows: “Sec. 11. No person who is a mem ber of an organization that advocates the overthrow of the Government of the United States or of the State of Maryland through force or violence shall be eligible to hold any office, be it elective or appointive, or any other position of profit or trust in the Government of or in the admin istration of the business of this State or of any county, municipality or other political subdivision of this State.” At the Special Session of the Gen eral Assembly of 1948, a Resolution was passed by the Senate (Senate Joint Resolution No. 2) creating a Committee on Subversive Activities. The Committee was directed to make a study of the laws of this country and formulate and prepare a legisla tive program to protect the democratic principles and ideas of this State from those seeking to destroy our freedom and institutions, and to expose and expurgate subversive and other illegal activities. On June 26, 1948, at the annual meet ing of the Maryland State Bar Asso ciation, Mr. Frank B. Ober delivered an address on the subject “ Sedition versus the Constitution.” (53 Md. Bar Assn. Transactions, 255.) In the Aug ust 1948 issue of the American Bar Association Journal, Mr. Ober also wrote and published an article entitled “ Communism versus the Constitution: The Power to Protect our Free Institu tions.” Pursuant to the Senate Joint Reso lution, the Governor appointed a Com mittee of eleven citizens, called the “Commission on Subversive Activities,” with Mr. Ober as Chairman. The re port of the Commission was submitted to the Governor on December 30, 1948, with an attached draft of a proposed bill to be entitled “Sedition and Sub versive Activities.” The bill was passed, with few amend ments, on March 31, 1949, to become effective in the usual manner on June 1, 1949, and became Chapter 86 of the Acts of 1949. Almost immediately thereafter it became publicly known that a group of citizens proposed to secure sufficient signatures to a peti tion for a referendum on this bill in accordance with the provisions of Article 16 of the Constitution of Mary land. If the requisite number of sig natures was obtained the Act would not go into effect on June 1, 1949, and could not become effective unless ap proved by the voters at the General Election to be held in November, 1950. On April 1, 1949, Senate Bill No. 528 was introduced to make the earlier bill an emergency measure, effective at once. The rules of the Senate were suspended, the bill placed on second reading and ordered printed for third reading. It was passed by the Gen eral Assembly, and on April 22, 1949, was signed by the Governor and became Chapter 310 of the Acts of 1949. The original bill will be generally referred to in this opinion as the “ Subversive Activities Act of 1949” or the “Ober Bill,” and the second statute will be referred to as the “Emergency Act.” The Subversive Activities Act con tains a number of recitals referring to the world communist movement, its objectives and methods, and to other subversive groups with similar objec tives, and recites that “the communist movement plainly presents a clear and present danger to the United States Government and to the State of Mary land.” Section 1 defines subversive organ izations, foreign subversive organiza tions, subversive persons, and others. It makes a felony certain acts under the subsection entitled “ Sedition.” After June 1, 1949, any person who becomes or who after September 1, 1949, remains a member of a subver sive organization or a foreign subver sive organization and is convicted by a court of competent jurisdiction may be imprisoned up to five years and fined not more than $5,000 or both in the discretion of the Court. Those convicted under the Act are barred from holding any office or employment of the State of Maryland or any poli tical subdivision, or standing for elec tion for any public office, or voting in any general election. The statute pro vides that such organizations may be declared subversive by a finding of a court of competent jurisdiction, the charter shall be forfeited and all funds and records and property shall be seized by the State of Maryland. The Attorney-General is authorized and directed to appoint an additional Assistant to perform the duties of Spe cial Assistant Attorney-General in charge of Subversive Activities. Judges of the Criminal Courts of the State are directed under certain con ditions to instruct grand juries to in quire into violations of this law. Then follows a group of sections under the sub-title “Loyalty.” Every employing group of the State of Mary land and its political subdivisions is required to ascertain that all such em ployees, including teachers, are not subversive persons, “and that there are no reasonable grounds to believe such persons are subversive persons. In the event such reasonable grounds exist, he or she as the case may be shall not be appointed or employed.” Laborers are excluded. All those em ployed by the State of Maryland or its political subdivisions from the first of June, 1949, shall make a written’ statement, subject to the penalties of perjury, that he or she is not a sub versive person as defined by this law. Reasonable grounds shall be cause for discharge subject to the right to a hearing under the provisions of the Act, with the right of appeal to the 2 courts, and a jury trial, if elected, with a further appeal to the Court of Ap peals of Maryland. Section 15 provides that no person shall become a candidate for election for any public office in this state un less he files with his certificate of nomination an affidavit that he is not a subversive person. The certificate shall not be received for filing by any election officials, nor placed upon the ballot or voting machine, if the affi davit has not been made. No appropriation of funds of any character shall be made by the State to any private institution of learning until there is filed with the Governor, the President of the Senate, and the Speaker of the House of Delegates, on behalf of the institution, a written report setting forth procedures it has adopted to determine whether it has reasonable grounds to believe that any subversive persons are in its employ and the steps taken to terminate em ployment of such persons. All written applications for employment shall be under the penalties of perjury. The Emergency Act The complainants maintain that the Emergency Act is invalid and there fore the Ober Bill is not now in effect as the requisite number of signatures have been filed with the Secretary of State for a referendum. Article 16 of the Maryland Constitu tion provides for a referendum by the people, to reject or approve at the polls any act or part of any act of the General Assembly. It is not applicable to appropriations for maintaining the State Government, and applies to cer tain portions only of appropriations for public institutions. All laws generally tak'e effect on the first day of June directly succeeding the date of passage. I f a petition for a referendum is filed by ten thousand qualified voters, not more than half of whom are from Baltimore City, the law does not take effect until thirty days after its approval by a majority of the voters at the next state-wide election. Section 2 of Article 16 of the Con stitution provides that “no law enacted by the General Assembly shall take effect until the first day of June next after the session at which it may be passed, unless it contains a Section declaring such law an emergency law and necessary for the immediate pres ervation of the public health or safety, and passed upon a yea and nay vote supported by three-fifths of all mem bers elected to each of the two Houses of the General Assembly. * * *” An emergency lam remains in force not withstanding a referendum petition, but can be repealed by referendum of the voters in which case the repeal takes effect thirty days after rejection by a majority of the voters at the election. An emergency act shall not create or abolish any office, or change the salary, term or duty of any officer. The Subversive Activities Act of 1949 was approved by the Governor on March 31, 1949, and became Chapter 86 of the Acts of 1949. Section 3 states “ that this Act shall take effect June 1, 1949.” The Emergency Act which became Chapter 310 of the Acts of 1949 was approved April 22, 1949, to take imme diate effect. It did not re-enact the entire Ober Law. The entire Emer gency Act is as follows: “Chapter 310 (Senate Bill 528) “AN ACT to repeal and re-enact, with amendments, Section 3 of Chap ter 86 of the Acts of 1949, said Act adding Article 85A to the Annotated Code of Maryland, title “ Sedition and Subversive Activities,” providing that said Chapter 86 be declared an emergency measure. “ Section 1. Be it enacted by the General Assembly of Maryland, That Section 3 of Chapter 86 of the Acts of 1949, said Act adding Article 85A to the Annotated Code of Maryland, title ‘Sedition and Subversive Activi ties,’ be and it is hereby repealed and re-enacted, with amendments, to read as follows: “3. This Act is hereby declared to be an emergency measure and neces sary for the immediate preservation of the public health and safety, and having been passed by a yea and nay vote, supported by three-fifths of all the members elected to each of the two Houses of the General Assembly of Maryland, the same shall take effect from the date of its Ijassage. “Sec. 2. And be it further enacted, That this Act is hereby declared to be an emergency measure and neces sary for the immediate preservation of the public health and safety, and having been passed by a yea and nay 3 vote, supported by three-fifths of all of the members elected to each of the two Houses of the General As sembly of Maryland, the same shall take effect from the date date of its passage.” Approved April 22, 1949. The procedure followed by the Gen eral Assembly to declare the Ober Act an emergency law was novel. The usual method is to literally follow the language of the Constitution as was done in Chapter 85 of the Acts of 1949, “ Sabotage Prevention.” Every emer gency act which the Court has exam ined (and counsel have not found any others) contains within itself a provi sion declaring the act an emergency measure and necessary for the imme diate preservation of the public health and safety, and passed by the requi site three-fifths of the elected members of the General Assembly. In this instance the Legislature sought to make a whole Act an emerg ency law, by amending only the sec tion of the Act setting the date it becomes effective. The amending sta tute, Chapter 310, concerns itself only with Section 3 of Chapter 86. Section 3 of the original Ober law, as amended by the Emergency Act, undertakes to operate retroactively upon the whole of Chapter 86 and to declare the entire Ober Act an emergency measure, and to have been passed as an emergency measure. Ac tually the Ober Act was not passed as an emergency law originally. It was not repealed and re-enacted as an emergency act. The explicit provi sions of the Constitution spell out in unmistakable words that such an act becomes effective on June 1st “unless it contains a Section declaring such law an emergency law. * * *” “It” refers clearly and only to the law sought to be made an emergency act. Manifestly, Chapter 86, the Ober Act, does not contain any such section. So far as the Ober Act itself shows, it may not have been deemed necessary for the immediate preservation of the public health or safety, and it may not have been passed by the requisite three-fifths of all the elected members. A recital in a later Act that the orig inal Act had been passed by a three- fifths vote, is, by no means, conclusive of that fact; nor does a later determi nation by the legislature that it was emergency legislation answer the clear requirement of the Constitution that no act shall become an emergency act unless it contain a section so providing. The 'Emergency Act becomes effective on April 22, 1949. It contains a provi sion that the Ober Act becomes effec tive on the date it (the Ober Act) was approved, namely, March 31, 1949. Putting it another way, we have here one law passed as an emergency law effective on one date making another law, not passed as an emergency act, effective retroactively to an earlier date. Counsel for the complainants con tend this action was taken to delib erately thwart the will of the people to prevent a referendum on the Sub versives Act of 1949. Whatever may be the reasons, the Court cannot con sider them. The Court of Appeals has already spoken flatly on this subject. In Culp vs. Chestertown, 154 Md. 623, the Court said: “We deem it advisable, however, to say in answer to that argument that, * * * if the legislation does come within the provisions of Art. 16 of the Constitution, in that event the question of whether or not an emergency in fact exists is a ques tion for the Legislature, and its de termination is final and not subject to review by the courts.” In Norris vs. Baltimore, 172 Md. at p. 686, the Court of Appeals again said that “the Legislature alone has the power to determine whether such an emergency as is contemplated by that section of the Constitution exists, and its determination of that question is not judicially reviewable.” • The Court of Appeals has, however, held invalid an ordinance of the Mayor and City Council of Baltimore author izing a debt as an emergency measure. Baltimore vs. Hofrichter, 178 Md. 91; see also Geisendaffer vs. Baltimore, 176 Md. 150. Complainants contend that the emergency statute is an ex post facto law and prohibited by Article 1, Sec tion 10, of the U. S. Constitution and Article 17 of the Maryland Declaration of Bights. An ex post facto law is one making punishable as a crime what was not criminal when done. Hoch- heimer, Criminal Law, fid Ed. p. 102. Mr. Justice Chase in Calder vs. Bull, 3 Dallas, 386, 1 L. Ed. 648, defined ex post facto laws, among others, as “every law that makes an action done before the passing of the law, and 4 winch was innocent when done, crim inal ; and punishes such action.” In this case if we are to follow the plain meaning of the statutes then the emergency law creates a crime on April 22, 1949, and makes it retro active to March 31, 1949. In Mary land a statute is not given retroactive effect unless no other meaning can be attached or the legislative intent is clear. (Kelch vs. Keehn, 183 Md. 140; Commission vs. Power Co., 182 Md. 111.) However, in the second opinion in Robey vs. Broersma, 181 Md. 325, the Court of Appeals held that a law made effective by its terms on May 1st, but not signed by the Governor until May 26th, was effective from the latter date. It might therefore be argued that while the emergency act purports to act retroactively, actually it does not, because both laws are effective from the date the emergency act was signed, and no earlier. Such a con struction would be opposed to the plain language of the statutes. It is clear the Legislature meant (and it said) the Ober Act was to be effective from the date it was passed. Anyone violating this law between March 31st and April 22nd was guilty of a crime, carrying heavy and severe penalties, although such a person could not know until April 22nd that his earlier act was in fact a violation of the law. The general presumptions of validity of a statute are narrowed in their scope when we deal with laws limiting- rights protected by the Constitution. Statutes dealing with civil rights and personal liberty are not those referred to in the dissent of Mr. Justice Car- dozo in U. S. vs. Constantine, 296 U. S. 287, 299, where he said: “There is another wise and ancient doctrine that a court will not adjudge the invalidity of a statute except for manifest neces sity. Every reasonable dou-bt must have been explored and extinguished before moving to that grave conclusion.” Rather, they come within the deci sion of Schneider vs. State, 308 U. S. 147, following the now famous foot note of Chief Justice Stone in U. S. vs. Carolena Products Co., 304 U. S. 144, 152, where he said: “there may be narrower scope for the operation of the presumption of constitutionality when legislation appears on its face to be within a specific prohibition of the Constitution, such as those of the first ten amendments, which are deemed equally specific when held to be embraced within the Fourteenth * * See also Duine vs. U. S., 138 F. 2d, 137. The complainants also maintain that the Ober Act as amended by the Emergency Act creates a. new office and changes the duties of an officer, which cannot be done by emergency legislation. The Subversives Act of 1949 author izes the Attorney-General to appoint a Special Assistant Attorney-General in charge of subversive activities. While he is under the general supervision of the Attorney-General, his own special duties and responsibilities are set out in detail. He is in charge of subversive activities, and it is his responsibility, under the supervision of the Attorney- General, to work with the State’s At torneys in this State, submit informa tion to grand juries, collect evidence and information, call upon the Super intendent of State Police, the Police Commissioner of Baltimore City, and other police authorities. They in turn are directed to furnish such informa tion and assistance as he may request. The Special Assistant may testify be fore any grand jury, and he is required to keep complete information of all records and matters handled by him. Such records as may reflect on the loyalty of any resident may not be made public except with the permission of the Attorney-General. Every em ploying authority who discharges any one pursuant to the provisions of this article shall promptly report to the Special Assistant Attorney-General the fact of, and the circumstances sur rounding, the discharge. In Maryland there is a wide dis tinction between “office” occupied by a “public officer” and a “position” oc cupied by an employee. In Buchholtz vs. Hill, 178 Md. 280, the Court said: “The most important characteris tic of a public office, as distinguished from any other employment, is the fact that the incumbent is entrusted with a part of the sovereign power to exercise some of the functions of government for the benefit of the people. But the necessity of taking an oath of office is also a very im portant test in determining whether a certain position is a public office.” See also Worcester County vs. Golds- borough, 90 Md. 103, and State Tax Commission vs. Harrington, 126 Md. 5 157. In this latter case the Court of Appeals held that the General Counsel to the State Tax Commission was a mere employee and not a public officer. His salary and tenure of employment were not fixed by law, no oath was required, no official bond was given, no commission was issued, and the in cumbent did not exercise any sovereign power. Article 32A, Section 4 of the Code provides that the Assistants to the Attorney-General continue in their employment “during the pleasure of the Attorney-General.” In Norris vs. Baltimore, 172 Md. 667, an emergency law was involved providing for the use of voting machines and setting up a special board to carry out the act. The law was upheld as an emergency law. The Court holds that the Special Assistant Attorney-General is not an officer holding an office in contraven tion of the Constitution preventing the creation o f an office by an emergency act, nor does the change in the duties of the Attorney-General violate the same section of the constitution. That it will change and alter the work of the office of Attorney-General is appar ent. This is inherent in the kind of activity the Special Assistant will en gage in. The Ober Commission was careful to point out that he should not become a Gestapo agent, and therefore placed him under the supervision of the Attorney-General. They were fear ful, and rightly so, of what could come out of the creation of such an office, with power placed in the hands of an incompetent, narrow, biased official for getful of the grand traditions of Mary land. Conclusions; Emergency Act. The Court finds that the Emergency Act, Chapter 310 of the Acts of 1949, is unconstitutional and invalid, be cause, it is an ex post facto law and does not comply with the special pro visions of the Constitution of Mary land relating to emergency statutes. Oaths By Candidates For Office Section 15 of the Subversive Activi ties Act provides that no person shall be a candidate for public office in this State unless he files an affidavit he is not a subversive person within the meaning of this law. The Supervisors of Elections and the Secretary of State shall not enter the name on the ballot or voting machine if the affidavit has not been filed. The complainants contend this re quirement is in violation of Article 37 of the Maryland Declaration of Rights; “ * * * nor shall the Legisla ture prescribe any other oath of office than the oath prescribed by this Con stitution.” The oath required is set out in Section 6 of Article 1 of the Constitution. It is simple; the affiant swears to support the Constitution of the United States, be faithful and bear true allegiance to the State of Mary land, support the Constitution and laws thereof, and execute faithfully, without partiality or prejudice, the office which he assumes. The defendants say the Ober Act does not prescribe any additional oath of office ; it merely requires a candidate for office to take a special oath. The history of these sections of the Declaration of Rights and of the Con stitution are interesting and will be found in “Perlman’s Debates of the Maryland Constitutional Convention of 1867” and Chief Judge McSherry’s opinion in Davidson vs. Brice, 91 Md. 6S1. Beginning with the Declaration of Rights of the Constitution of 1776, on through the Constitutions of 1851 and 1864, the Legislature was empowered to prescribe the oaths of office to be taken by different officers of govern ment. Prom 1864 to 1867 the citizens of this State knew what it meant to live under a Constitution they did not approve; one that had gone into effect by a scant majority of 375 votes, after “counting” the ballots of soldiers out In the field. Confederate sympathizers could not hold office unless restored to full rights of citizenship by special act of the General Assembly passed by a two-thirds vote. ( See Art. 1, Secs. 4, 7, and 8 of the Constitution of 1864, set out in full in Perlman’s Debates, etc., supra.) The Constitutional Convention of 1867 swept aside these repressive re strictions, and introduced a positive prohibition against any additional oath. This action was deliberate. As Chief Judge Me Sherry said: “Thus the old provision which gave to the Legis lature the power to exact official oaths not prescribed by the organic law was not only deleted, but a new clause was put in which denied to the Legis lature the authority it formerly pos sessed in this particular. Article 37 of the Declaration of Rights is not confined to offices created by the Con 6 stitution” and “it is wholly immaterial whether the office he of constitutional creation or of statutory origin.” In this case the Court of Appeals had squarely before it the question as to whether or not the Legislature has the authority to prescribe as a qualification for the office of County Treasurer any other oath than the one which Section 6, Article 1, o f the Con stitution imposes. That Section of the Constitution was held to be a manda tory provision. The Court said: “Not content with prescribing the precise oath to be taken, the Declaration of Bights, in Article 37, prohibits any other oath from being exacted, for it declares: * * nor shall the Legisla ture prescribe any oath of office than the oath prescribed by this Constitu tion.’ ” The Subversive Activities Act of 1949 seeks to do by indirection that which cannot be done directly. It is obvious that of all the candidates who file for office, one will be successful. The law forbids an additional oath of the elected official. To allow the oath of all the candidates, knowing one will be the successfully elected offi cial, is to nullify the restriction of Article 37 of the Declaration of Rights. This is in the face of the plain and positive inhibition of the law. It means we no longer look to the sub stance but adopt the form which de stroys the substance. This section of the Ober Act is there fore invalid. Constitutionality Of Ober Act. The question of the validity of the Subversives Activities Act of 1949 turns principally on whether it violates the first, fifth and fourteenth amendments to the Constitution of the United States, the Maryland Declaration of Rights, and our State Constitution. The complainants say the law is an unlawful Bill of Attainder, finding guilt by legislative fiat; that it violates the freedoms of speech, of the press, and lawful assembly, creates guilt by association, and Is obnoxious to our ■whole system of democratic govern ment. They argue that this act changes the basic philosophy of our government from one where the sovereign powrer lies in a free people, to one where it would be vested in the governing au thorities by the device of empowering them to forcibly control the ideas, ex pressions and independent political activities of the people of Maryland. It is not for the Court to pass on the wisdom of this or any other legis lation, nor substitute its judgment or views for that of the law-making body. Certain legal principles have been set down by the Supreme Court and the Court of Appeals of Maryland; this Court is bound by those principles as applied to this statute. Various anti-sedition laws have been passed from time to time. In this country they began with two laws in 1798. The first, the Alien Act, gave the President power for two years to expel any alien whom he might deem “dangerous to the peace and safety of the United States.” The second, the Sedition Act, placed heavy penalties on every person trying to stir up “sedi tion” or who wrote or published any thing “false, scandalous or malicious” against the President, or other officers of government. The American people reacted violently against these attacks on their liberty, and the laws were never renewed. Reconstruction days after the Civil War saw the passage of many laws depriving citizens of civil rights, and in Maryland the people hastened to nullify the Constitution of 1864 by the Constitution of 1867, now in effect. In other states laws which constituted unlawful Bills of Attainder were struck down by the Supreme Court. It is usually after wars that such legislation is passed, engendered by flames of passion and strong feeling. In 1918, Congress amended the Es pionage Act (40 Stat. 553, 1918) by adding a paragraph by which many types of utterances could be inter preted as disloyal. Then followed the raids by Attorney-General Mitchell. Palmer and arrests of thousands of persons, with the subsequent failure of the prosecutions. (See Chafee, Free Speech in The United States.) In 1920 the New York Assembly suspended without hearing and pend ing trial five members of the Socialist Party, alleging this organization was disloyal. This was followed by the Lusk Committee of the New York Leg islature which held many hearings on the subject of sedition. New York in 1921 enacted the Lusk Anti-Sedition Bills, establishing standards of loyalty for teachers and providing for loyalty tests. This high intensity of feeling after the First World War was then fol lowed by a period of calm, dispassion 7 ate review, then the repeal by Congress of the amendment it had adopted in 1918, and next in New York by the repeal of the Lusk Anti-Sedition Sta tutes. In signing these repealers Gov ernor Alfred E. Smith said: “They are repugnant to the funda mentals of American democracy. Under the laws repealed, teachers, in order to exercise their honorable call ing, were in effect compelled to hold opinions as to governmental matters deemed by a State officer consistent with loyalty. * * * Freedom of opin ion and freedom of speech were by these laws unduly shackled. * * * In signing these bills, I firmly be lieve that I am vindicating the prin ciple that, within the limits of the penal law, every citizen may speak and teach what he believes.’’ In denouncing the expulsion action of the New York Assembly, Charles Evans Hughes, later Chief Justice of the United States, said: “ it is of the essence of the institutions of liberty that it be recognized that guilt is personal and cannot be attributed to the holding of opinion or to mere in tent in the absence of overt actions. * * *” (5 N. Y. Legis. Doc. No. 30.) Today we face serious problems to a degree undreamed of and unknown before. The situation in Europe and Asia has brought us face to face with the realization that the world may be plunged again into war, of a character that might destroy civilization as we know it. Techniques of sedition are different; unfortunately they have been successful in too many places for us to remain complacent. It is clear this country has powerful enemies outside its borders. To what extent are they within our country? How shall they be ferretted out? What powers have our legislative bodies to pass laws aimed at those who threaten us from within ? Many penal statutes are now on the law books dealing with such activities, as for example, acting as agent of a foreign government without notifica tion to the Secretary of State, 18 U. S. C., section 951; possession of prop erty in aid of foreign government for use in violating any penal statute or treaty rights of the U. S., 18 U. S. C., section 957; espionage activities, 18 U. S. 0., sections 793-797; inciting or aiding rebellion or insurrection, 18 U. S. C., section 2383; seditious conspir acy, 18 U. S. C., section 2384; advocat ing overthrow of the government by force, 18 U. S. C., section 2385; treason, 18 U. S. 0., section 2381; misprision of treason, 18 U. S. C., section 2382; undermining loyalty, discipline or morale of armed forces, 18 U. S. C., section 2387; sabotage, 18 U. S. C., section 2156; importing literature ad vocating treason, insurrection or forci ble resistance to any federal law, 18 U. S. 0., section 552; injuring federal property or communications, 18 U. S. 0., section 1361. Organizations en gaged in civilian military activity, sub ject to foreign control, affiliated with a foreign government, or seeking to overthrow the Government by force, are subject to registration requirements under the Voorhis Act, 18 U. S. C., 2386. And we have the general law of conspiracy, a, powerful weapon in the hands of a skilful prosecutor. With this brief historical discussion, and some knowledge of present laws, we now consider the constitutionality of the Subversive Activities Act of 1949. Laws abridging freedom of speech, freedom of the press, or the right of the people peaceably to assemble, are forbidden by the first amendment and to the States by the fourteenth amend ment. Such laws can be constitution ally justified only if the utterance, pub lication or assembly sought to be sup pressed threatens “clear and present danger that they will bring about the substantive evils that Congress has a right to prevent.” This statement by Mr. Justice Holmes in Schenck vs. U. S., 249 U. S. 47, 52, has been repeated in a series of cases in the Supreme Court and in Maryland in the recent case of WFBR. et al. vs. Maryland, T h e D a ily R ecoed, June 27, 1949. In that case, Judge Henderson, speaking for the Court of Appeals, said : “It is now perfectly clear that whatever the law of the state, em bodied in its constitution, statutes or judicial decisions, the provisions of the Federal Constitution are su preme. Bridges vs. California, 314 U. S. 252. It is also clear that the guarantees contained in the first amendment, safeguarding free speech and a free press, are implicit in the concept of due process contained in and made applicable to the States in the fourteenth amendment.” The Supreme Court has made it clear that laws may punish acts and conduct 8 which clearly, seriously and imminent ly threaten substantive evils. They may not intrude into the realm of ideas, religious and political beliefs and opinions. Clear and present danger refers to proximity and degree. The law deals with overt acts, not thoughts. It: may punish for acting, but not for thinking. In the dissent of Mr. Justice Holmes in Abrams vs. U. S., 250 U. S. 616, 630-631 (1919), he said: “* * * we should be eternally vigi lant against attempts to check the expression of opinions that we loathe and believe to be frought with death, unless they so imminently threaten immediate interference with the law ful and pressing purposes of the law that an immediate check is required to save the country. * * * Only the emergency that makes it immediately dangerous to leave the correction of evil counsels to time warrants mak ing any exception to the sweeping command ‘Congress shall make no law abridging the freedom of speech.’ ” This is now the law as stated by the Supreme Court in Schneiderman vs. U. S., 320 U. S. 118, 138; “ * * * if there is any principle of the Consti tution that more imperatively calls for attachment than any other it is the principle of free thought—not free thought for those who agree with us but freedom for the thought that we hate.” In this case the Court rejected"; the Government’s contention that a naturalized citizen who advocated the principles of the Communist Party was / not entitled to retain citizenship. In Bridges vs. Wixon, 326 U. S. 135, 165, Mr. Justice Murphy said; “Proof that the Communist Party advocates the theoretical or ultimate - overthrow of the Government by force was demonstrated by resort to some rather ancient party docu ments, certain other general Com munist literature and oral corrobo rating testimony of Government wit nesses. Not the slightest evidence was introduced to show that either Bridges or the Communist Party seriously and imminently threatens to uproot the Government by force or violence.” Chief Justice Hughes held that the display of a red flag as a symbol of opposition by peaceful and legal means to organized government was protected by the free speech guaranties of the Constitution. (Stromberg vs. Califor nia, 283 U. S. 359.) The Supreme Court has upheld the right of persons to as semble at a public meeting under the auspices of the Communist Party. (He Jonge vs. Oregon, 299 TJ. S. 353.) In Harndon vs. Lowry, 301 U. S. 242, a statute restricting (as construed) the right to a Communist to solicit mem bership in the Communist Party was held invalid. In Thornhill vs. Ala bama, 310 U. S. 97, the Court said: “The existence of such a statute, which readily lends itself to harsh and dis criminatory enforcement by local prose cuting officials, against particular groups deemed to merit their dis pleasure, results in a continuous and pervasive restraint on all freedom of discussion that might reasonably be regarded as within its purview.” Recently, in Terminiello vs. Chicago, 337 U. S. 1, 4, Mr. Justice Douglas said: “ » * * right to speak freely and to promote diversity of ideas and programs is therefore one of the chief distinctions that sets us apart; from totalitarian regimes. Accord ingly a function of free speech under our system of government is to in vite dispute. It may indeed best: serve its high purpose when it in duces a condition of unrest, creates ; dissatisfaction with conditions as they are, or even stirs people to anger. Speech is often provocative; and challenging. It may strike at - prejudices and preconceptions and have profound unsettling effects as it presses for acceptance of an idea. : * * * There is no room under our Con stitution for a more restrictive view. 5 Por the alternative would lead to standardization of ideas either by legislatures, courts, or dominant poli tical or community groups.” The Ober Act is a penal statute car rying severe and drastic penalties. Statutes creating crimes are invalid if they define the crime in vague and ambiguous terms. If a law is indefinite and uncertain it fails to meet the con stitutional requirement of due process as in Winters vs. New York, 333 D. S. 507, 515, where the Court said: “The standards of certainty in statutes pun ishing for offenses is higher than in those depending primarily upon civil sanction for enforcement. The crime must be defined with appropriate defi 9 niteness * * * there must be ascertain able standards of guilt. Men of com mon intelligence cannot be required to guess at the meaning of the enactment. The vagueness may be from uncertain ty in regard to persons within the scope of the act, * * * or in regard to the applicable tests to ascertain guilt.” And at page 518 the Court said: “ * * * Tjie present case as to a vague statute abridging free speech involves the circulation of only vulgar maga zines. The next may call for decision as to free expression of political views in the light of a statute intended to punish subversive activities.” The Ober Act makes it a felony by the use of general language for any person knowingly and wilfully to act, advocate or teach “by any means’’ the commission of any act as to constitute a clear and present danger to the security of the United States, Mary land, or any political subdivision, or participate in the management or con tribute to support of any subversive organization. This would Include any attempt to bring about such a result by speech, pamphlet, publication, radio discussion, or participating in a meet ing designed to bring about changes in our government. Crimes must be definitely defined. What is meant by “alteration” of the constitutional form of the Government of the United States? There are some who believe in the Socialist form of government and advocate that this country adopt the system of govern ment in force in England today. To them revolution means the consumma tion of the change; it does not include force or violence. This may seem far fetched, but the test of the constitu tionality of a statute ordinarily is not what has happened, but what may happen under it. (Raney vs. Montgom ery County, 170 Md. 196.) This statute makes it a felony to remain a member of a subversive or ganization after September 1, 1949, knowing the organization to be sub versive. Does “knowing” mean actual knowledge, or constructive knowledge? Does it mean having the information in one’s possession to lead a reasonable person to believe the organization is subversive? May reasonable persons differ on the meaning or interpretation of such information? If a member honestly believes he belongs to an organization that is not subversive, he may find himself facing severe, even harsh penalties, if that organization has been found to be sub versive under Section 5 of the Act by a court of competent jurisdiction. It is then too late to withdraw from mem bership. Some labor organizations have been characterized as subversive. A worker may believe his union is in the con trol of officers who would direct its activities into seditious channels. If that union has a closed-shop agreement with management he cannot withdraw from the organization without losing his job. If he remains in the union, he is guilty of a felony, not because of any act of commission on his part, but because of his association with others. Valuable property rights within the or ganization may be lost; the alternative is no job, or conviction of a serious crime, all without his day in court, and without due process. An organization, legal when founded, may become subversive within the meaning of this law, as a result of acts by a small group of officers in control for a short time, and in spite of the violent opposition of the general membership. If it be a political party that is de clared subversive, what tests shall be applied to determine whether one is a “member” of the party? How does one determine who is a member of the Democratic or Republican party? Po litical parties do not take applications for membership; individuals do not swear their adherence to the party’s platform. Suppose such an organiza tion does have characteristics of mem bership which require a card or other symbol of membership and immediately upon passage of this bill abolishes such indicia of membership, how then would one determine what constitutes mem bership? In the case of Bridges vs. Wixom, 326 U. S. 135, 143, supra, the Supreme Court distinguished between “member ship” and “affiliation.” Does member ship mean making speeches on behalf of candidates of a party? attendance at meetings? If this act means the Communist Party, the Supreme Court has said that such participation in the affairs of the Communist Party does not necessarily indicate adherence to any purpose to overthrow the Govern ment of the United States hy force and violence or subserviance to the policies of a foreign government—Schneider- man vs. U. S., 320 U. S. 118, supra. There the Court said, at p. 136: “Un der our traditions beliefs are personal and not a matter of mere association, and men in adhering to a political party or other organization notoriously do not subscribe unqualifiedly to all of its platforms or asserted principles.” In the loyalty section of the statute no subversive person is eligible to hold any kind of office or position in the State Government or any political sub division. All employers must establish rules and regulations and procedures to ascertain if any person, including teachers, is a subversive person “and that there are no reasonable grounds to believe such persons are subversive persons. In the event such reasonable grounds exist, he or she, as the case may be, shall not be appointed or em ployed.” What kind of standard is set up by “ reasonable grounds?” What may seem reasonable to one may seem extremely arbitrary and unreasonable to another. Here the employer need not have evi dence that the prospective employee is subversive. All he needs is reasonable grounds. No man may be convicted of a crime in Maryland except upon evi dence; the court and jury must be con vinced beyond a reasonable doubt, based upon the evidence. In civil cases it is the preponderance of the evidence. Under this statute one may be deprived of an opportunity to work for the state, county or city upon no evidence at all, but merely upon “reasonable grounds.” In the Schneiderman case, supra, the Supreme Court held that cancellation of the naturalization of a member of the Communist Party was illegal be cause the law required “clear, un equivocal and convincing evidence.” The Court said, p. 153: “We are not concerned with the question -whether a reasonable man might so conclude, nor with the narrow issue whether administrative findings to that effect are so lacking in evidentiary support as to amount to a denial of due pro cess.” Every person who is employed by the State of Maryland is required to sign a written notice, subject to the penalties of perjury, that he is not a subversive person or a member of any subversive organization. All who re fuse to execute such a statement shall immediately be discharged, even though the refusal is based on con scientious scruples against taking such an oath. “Reasonable grounds on all the evi dence to believe that any person is a subversive person” is cause for dis charge. While the loss of a position is purely civil, the discharge must be reported to the Special Assistant At torney-General in charge of subversive activities. So one may lose his job after many years of honorable service in the State’s employ, if he is a mem ber of an organization that started out innocently enough, but found its aims prostituted by its officers. The fact that he attended no meetings, showed no interest in its affairs, perhaps did not even pay dues, may not save him from the loss of his job if he was carried on the roster of membership. Such a fact may be “reasonable grounds on all the evidence.” The definition of foreign subversive organizations brings in another vague term. It “means any organization directed, dominated or controlled directly or indirectly by a foreign gov ernment * * *” What does “indirectly” mean ? To ask the question is to answer it. This is so vague and indefinite as not to meet the requirements of a penal statute. Does “indirect” mean that the organization is a foreign sub versive organization when it changes with the party line as given out at Moscow? or if it opposes the Atlantic Pact? or the Marshall Plan? or the foreign policy of this country? or has connections with, or is affiliated with, international labor organizations whose policies may be “indirectly” controlled from England or Canada? What be comes of the status of a dissenting member? a minority of members? or even a majority who differ with the officers? It may well be that what this statute seeks to accomplish is difficult under our law. In Musser vs. Utah, 333 U. S. 95, 97, the Supreme Court said: “This led to the inquiry as to whether the statute attempts to cover so much that it effectively covers nothing. Statutes defining crimes may fail of their pur pose if they do not provide some reasonable standards of guilt. * * * Legislation may run afoul of the Due Process Clause because it fails to give adequate guidance to those who would be law-abiding, to advise defendants of the nature of the offense with which they are charged, or to guide courts in trying those who are accused.” Every public school teacher must take a loyalty oath. State aided insti l l tutions of learning must purge their institutions of subversive persons within the meaning of the Act. To de termine if such statutes are clear and precise in their terms or vague and indefinite, one need only turn to the debates now being waged in academic circles on this very issue. There are some who, although im placable foes of Communism, feel that so long as membership in the Com munist Party is legal, that faculty members should not be deprived of their positions. Others hold that mem bership in the Communist Party is in compatible with academic competence and integrity. There are some who even believe professors should be dis ciplined if they lend their presence and give encouragement to extra-cur ricular activities regarded as com munistic in leaning, if not in fact. The Ober Act refers to the “World Communist Movement” and inferential- ly to the Communist Party. It is charged by the complainants in this case that the act means members of the Communist Party as well as lib erals, labor organizations, political parties other than the Democratic and Republican Parties; any and all who differ from the generally accepted be liefs of those who happen to be in the majority at the moment. They charge that this is a Bill of Attainder and unconstitutional. In Anderson vs. Baker, 23 Md. 531, 604, the Court of Appeals defined Bills of Attainder. It said: “Bills of attainder, which include bills of pains and penalties, are pro hibited as well by the Constitution of Maryland, (Art. 18, Declaration of Rights,) as by the Constitution of the United States. They are special Acts of the Legislature, inflicting capital or other punishments upon persons supposed to be guilty of an offense, without any conviction in the ordinary course of judicial pro ceedings. In such cases, the Legisla ture assumes judicial magistracy, pronouncing upon the guilt of the party without any of the common forms and guards of trial, and satis fying itself with proofs, when within its reach, whether conformable to the rules of evidence or not.” In U. S. vs. Lovett, 328 U. S. 303, the Supreme Court, after reviewing its prior decisions on Bills of Attainder, said, at p. 315 : “ * * * They stand for the proposi tion that legislative acts, no matter what their form, that apply either to named individuals or to easily as certainable members of a group in such a way as to inflict punishment on them without a judicial trial are bills of attainder prohibited by the Constitution.” In that case certain government em ployees were charged by a Congres sional Committee with subversive be liefs and subversive associations. A rider was attached to the Appropria tions Bill depriving them of further pay. The Court said, p. 316: “ * * * The fact that the punish ment is inflicted through the instru mentality of an Act specifically cut ting off the pay of certain named in dividuals found guilty of disloyalty, makes it no less galling or effective than if it had been done by an Act which designated the conduct as criminal. No one would think that Congress could have passed a valid law, stating that after investigation it had found Lovett, Dodd, and Wat son ‘guilty’ of the crime of engaging in ‘subversive activities’, defined that term for the first time, and sentenced them to perpetual exclusion from any government employment. Section 304, while it does not use that lan guage, accomplishes that result. The effect was to inflict punishment with out the safeguards of a judicial trial and ‘determined by no previous law or fixed rule’. The Constitution de clares that that cannot be done either by a State or by the United States.” The Supreme Court cited Cummings vs. Missouri, 4 Wall (U. S.) 217, where a Catholic priest was convicted for teaching and preaching without taking the oath of loyalty as provided by the Missouri (Reconstruction) Constitu tion. The conviction was set aside, the constitutional provision struck down as an unlawful Bill of Attainder. The Court said that case has never been overruled—it is still the law. Conclusion. The Subversive Activities Act of 1949 for the reasons stated is uncon stitutional and invalid. It violates the basic freedoms guaranteed by the first and fourteenth amendments, and due process under the fifth amendment. It violates the Maryland Constitution and Declaration of Rights, is an un lawful Bill of Attainder, and is too 12 general for a penal statute. As stated by Mr. Justice Jackson in West Vir ginia Board vs. Barnette, 319 U. S. 624, 642: “If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion or force citizens to confess by word or act their faith therein.” The demurrers will be overruled. IN THE CIRCUIT COURT NO. 2 OF BALTIMORE CITY No. 30056-A Docket 58A, 224 (1949) PHILIP FRANKFELD AND GEORGE A. MEYERS, vs. HALL HAMMOND, ATTORNEY- GENERAL, ET AL. Maurice Braverman for complain ants. Hall Hammond, Attorney-General; J. Edgar Harvey, Deputy Attorney- General; Thomas N. Biddison, City Solicitor of Baltimore; Leroy W. Pres- ton and Hugo A. Riccuiti, Assistant City Solicitors, for the defendants. Philip Frankfeld, Chairman of the Communist Party of Maryland, and George A. Meyers, labor secretary of the Communist Party, filed this Bill of Complaint following in the main the allegations in the case of Lancaster, et al., just decided. In addition, they filed as an exhibit a copy of the Con stitution of the Communist Party of the United States, and set out the various aims of this organization. For the reasons given in the Lan caster case, the demurrers will be overruled. (Reprinted from T h e D a ily R ecord, August 16, 191/9) 13