Brief of Industry Respondents — Wilson v. Loew's Inc.

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_> LIBRARY | — cies

_ SUPREME courr, 73) fe

eo : "OCT 2.9 1967

IN THE — . ‘JOHN T. FEY, Clerk

Spree Court of the United States:

October Term, 1957

No: 33 a

MICHAEL WILson, et al., | .

Petitioners, ©

vs. | 7

LoEw: S INCORPORATED, a corporation, et al.,

0 Respondents.

On Writ of Certiorari to the District Court of Appeal,

Second Appellate District, State of California, Division Three.

BRIEF OF INDUSTRY RESPONDENTS.

IrviING M. WALKER, -

210 West Seventh Street,

Los Angeles 13, California,

- HerRMAN F. SELvIn,

523 West Sixth Street,

Los Angeles 14, California, — i

Attorneys for Industry, Respondents.

| SUBJECT INDEX ce

, ves

Preliminary statement... ncaa

pr ae ee ee

Restatement of questions presented........ gcd 8

nd oo adders i 10

= A. The complaint .... | anil 10

B. The decision of the state courts. — ; : 15

: Some deficiencies in petitioners’ statement of the ‘case. bacae 18

~ Summary ‘of the argument...... HORSE DATS a es net aR ETE 20 ss

- Argument. | an ceepeennetnsenee dM sioidilisaobalaeiensoiall 23

“This court is without jurisdiction iain the. sis is”

- based on independent non-federal grounds a to

sustain it ... idicisadininpinincvnotalion ‘eGinadbilionii se 23

A. The state court newt based iis judgment on the

- proposition that even if the conduct complained of was”

_ unlawful petitioners were entitled to no relief in respect

’ of it because it had not injured them. That was a

non-federal ground, fully sustaining the judgment and

independent of any federal ground ‘going to establish

the unlawfulness, of the conduct......... bidliciabsisnielaesishianams : =

B. The failure to raise the federal questions below season-

ably and in proper form is in itself an n adequate non- |

federal ‘ground » inane linha aesaebnenliiceaitiiladiadlaidiadbitriiicilnieaty 30

C. No federal constitutional question afises from a decision

of state law by a state court made in accordance with

its established procedure

PACE,

The state did not enforce or control adherence to the private

agreement here complained of. Its only concern with the

matter is that it has not acted affirmatively to. prohibit such

agreements. Such inaction is not state action within the

meaning of the Fourteenth Amendment...................-..00------s0 - 40

| III.

Questions raised which are outside the scope of the questions —

presented by the petition for certiorari should not ey con- |

sidered sensennlniisaloaieaiebends , ' 52

en ree . lonimcidiiag ae

111.

TABLE OF AUTHORITIES CITED

‘Cases | ? PAGE

A. F. Estabrook Co. v. Ind. Acc. Comm., 177 Cal. 767, 177 Pac.

NRCS Steerer ieaelterenene Pt rll 7

Allen v. Arguimbau, 198 U. S. oes

American Ry. Express Co. v, Kentucky, we. &. .....: Sass

Pa ee eae

Arizona Employers’. Liability aa 290 U. S. 4003................... 39

Arkansas v. Arkansas & Texas Coal Co., 183 U. S. UT mae

Arrowsmith v. Harmoning, 118 U. S. 194.. Keciaasen ee:

Atkins ‘v. Gamble,42 Cal. 86.--peccnviccecciwerereeceentenjensnndis. 28

" Bachtel v. Wilson, 204 U.S. 36..ccccecvccseciccecectuetnetntnesntee Oy 27

Bailey v. Anderson, 326 U. S. eee A Rete Se ne —

Bank of America v. ‘Superior Court, 20 Cal. “2d 697, 128 .P. 2d

RODS SADIE LESAN MIT Ee RN ERC a

" Barrows v. Jackson, 346 oe cae Al, 45

Berri v. Superior Court, 43 Cal. 2d 856, 279 P. 2d 8.00. 4

Bi-Metallic Inv. Co. v. Colorado, 239 U. $. 44]ecccececcncnens 27

Black ‘v. Cutter Laboratories, 351 U. S. 292................ 17, 24, 26, a

. Bottone v. Lindley, 170 F,-2d 705 ; cert. den., 336 U. S. 944..°....-41

iis Sek OU .... n......5, 6, 7, 34

Callahan v. Broderick, 124 Cal. 80, ee 10

Campbell v. Reyburn, 129 Gal: App. 2d 232, 276 P. 2d 671......... 28

Campo v. Niemeyer, 182 F.2d 115...cccccccsccsssscecteteneneernese 4

Carroll v. United States, 354 U.S. 394....ccccesopccsetcceneen eee

Central Land Co. v. Laidley, 159 U. $. 108... a

. Chavez v. Times- Mirror Co., 185 Cal. 20, 195 Pac. 606 ‘SEE 12

Colling v, Hardyman; 341 U. S651. 1O, 41, 42,45, 53

Consolidated Turnpike v. Norfolk etc, Ry. Co., 228 U. S. 326... 34

Corrigan v. Buckley; 271. U.S. 323. ....-ccleccscscccccsssseeneeeticssensS2, 54

iene

PACE

Courant v. International Photographers, 176 F. 2d 1000; cert.

den., me 8 6. ‘insite tininee ae

Cuyahoga Power Co. v. Madders hutty Co., 244 U. S. 300.......:-24

Day-Brite Lighting v. Missouri, 342 U. S. 421........................ 39, 48

De Cou v. Howell, 190 Cal. 741, 214 ‘Pac. 444.000... csseescesee ene 6

De La Beckwith v: Superior Court, 146 Cal. 496, 80 Pac. 717.... 5

Delmar Jockey Club v. Missouri, 210 U. S. 324... sepia 28

De Sassure v. Gaillard, 127 i. = een dak hethenicllauidebediaaeainaae

Dorsey v. Stuyvesant Town, 299 N. Y. 512, 87 N. E. 2d 541;

cert. den., 339 U. S. ba soins 42

Cie = en 8... 25, 31.

‘Edelman v. California, 344 U.5 . IS seresiipecienvntonsicitesontnverbicield 24, #

Ellis v. Dixon, 349 U. ON Gane ha eet es bale 25, @

— Irrig. Dist. v. Farmers Mut. Canal Co., 243 U. S. 164

EMPLEO RT DUNN TRE PROT Ve RSE TONES

Erie R. Co. v. Tompkins, 304 U. S. 64........... echinacea

Fairchild v. Hughes, 258 U. S. sci eiepnsorvnsoncinsienboececiaeal 29

Fairport, P. & E. R. Co. v. Meredith, 292 U. S. 589.........0.......... 26

Faulkner v. California Toll-Bridge Auth., 40 Cal. 2d 317, 253.

RMR DL nen IS SEE TREE MONT RONEN Tae OS 10

Federal Baseball Club ‘v: National League, 259 U.S. 200............ 43

Forbes v. State Council, 216 U. S. 396............... li cuiiclainineliiichi 31, 35

Fox Film Corp. v. Muller, 296 U. S. 207.0... 5 ccpaeicaaae

Frantz v. Mallen, 204 Cal. 159, 267 Pac. 314.....ssseccscccssssssscsseee 5

Frost Trucking Co. v. Railroad Commission, 271 U.S. 583........ 49

General Talk’ Pic. Corp. v. Western Electric Co., 304 U. S: 175.. 53°

Gillette v. Gillette, 122 Cal. App. 640, 10 P. 2d 760 Siicdienanis ae 29°

Goesart v. Cloneie, SIS WU, Se GGG i nncrcinscscicscnentens eee sie a

Goldner v., Spencer, 163 Cal: 317, 125 Pac. 347.......... ghoeisaaiectimi 6

Gosewich v. Doran, 161 Cal. 511,119 Pac. aan seston Aa

—- .

a a PAGE

Gregoire v. Biddle, 177 F. 2d 579............... S 4)

Gryger v. Burke, catch 38

Hammell v. Britton, 19 Cal. 2d 72, 119 P. 2d 333.2202... 12

Hammerstein v. Superior Court, 341 U. S. 491....:......:.. Roieetbi 23

Harding v. MNllinois, 196 U. S. 78.......... scales sonese 35

“Hedgebeth v. North Carolina, 334 U. S. 806.....ec-- Sameer

-Herb v. ce SL ROR aa eee ae 24

Herbert v. Lankershim, Wal. 2d 409, 71 P. 2d 220............ ction 7

Herndon v. Georgia, 295 U. S. 441 ........-..ecceeccseesseseneesseeseeeses 34, 35

“Holley v. Lawrence, 317 U.S. 518..cssccccscsscsecscesssneeeeece 24, 30

Honeyman v. Hanan, 300 U.S. 14..0.......2ssscossssssssslensneceeceeeeeen 24

Hurd v. Hodge, 334 U. S. 24...c.cccccceneneneen cineca ae

Imperial Valley L. Co. v. Globe Grain ete. Co., 187 Cal. 352,

« 202 Pac. 129. si delice lial nag ic abate sisi — 7

Iowa Cent. Ry. Co. v. Iowa, 160 U: S.. 389............... nna: Ee

Irvine v: California, 347 U. S. eR itittilinieres SRC URED ET oe ROE eo 53 . -

_ Johnson v. New York Life Ins. Co., 187°U. _ 4 , Seiaoew nee |

ee i BO ee 25, 29

“Jones v. Union Guano Co.,<264 U.S. 17 Diocccccecscceinegeeteeenencee 39

Klinger v. Missouri, 13 Wall.” 257.....c-.cccccccsscecscesencessseenee —

Liberty Warehouse Co. v. Burley T. G. Co-op. M. Assoc., 276 —

Ob sevapsiscsaneseidhetncesen dinscroanebirileptstadaane foveelD, 38

Live Oak Water Users’ Fue, v. Railroad Commission, 269

ss, sess esieanllbecaccestncataCcenred nesocesi 35

Loeber v. Schroeder, 149 U. S. 580 = SE TSE SERS aici 35

Lord v. Katz, 54 Cal. App. 2d 363,128 P. 2d 907 .ccccsccsco re,

ee i a a rcslon ae

Lynch v. New York ex rel. Pierson, 293 U. S. 52... occcecsteseees. ‘24

Lynch v. New York, ex rel. Pierson, 293 U. S. 54

MacLeod v.-Fox, West Coast T. Corp., 10 Cal. 2d 383,°74 P.

Marsh v. Alavama, 326 U. S. a ALE RRS ea -...45, 46

Massachusetts v. Mellon, 262 U. §, 47.2 ; 29

Mazer v. Stein, 347 U. S. 201., Tee : anneal 53

McCabe v. A. T. & S: F. Ry. Co., 235 U. S. 151 ee

. McCoy v. Shaw, 277 U. S.. 302 siditead » . 27

Mergenthaler Linotype Co. v. Davis, 251 U. S. 256 .ccsscowisenceee 38,

"Milwaukee Electric Ry. Co. v. Milwaukee, 252 U. S. 100.......... 38

Moxley v. Title Ins. & Tr. Co.; 27 Cal. 2d 457; 165 P. 2d 15... 6

Munn v. Illinois, 94 U. S. 113 all 39, 47, 48

Mutual Life Ins. Co. v. McGrew, 188 U.S: 311. one 5, 7, 19, 31, 35

National Licorice Co... v. Nat. Lab. Rel. Bd., 309 U. S. he

pees | cd

“Nebbia v. New York, 291 eee .. oo a

Neblett v. Carpenter, 305 U. S. 297.

New York Cent. R.R..Co. v. White, 243 U. S. =

New York R. T. Co. v.-New“York, 303 U. S. 573 ..csccccse0-- ecosieies

New York ex rel. Bryant v. Zimmerman, 278 U. S. 63............ 7, 37

_ New’ York ex rel. Doyle v. Atwell, 261-U. S. 590...... 2%

Ownbey v. Morgan, 256 U. S. 94. 32, 38

Oxley ‘Stave Co. v. Butler County, 166 U. S. 648..ccccccsccssccce 7

Parker v. McLain, 237 U. S. 469...... Sercbivecenncccthgi

Phyle v.- Duffy, 334 U. S. 431 a an

Popcorn Equipment Co. ‘v. Page, 92 Cal. App. 2d 448, 201 P..

\ 2d 647 ... a 8 ; wee

‘Prince v. Hill; 170 Cal. 192,. 149 Pac. 578. a

- Radio: Station WOW, Inc. v. Johnson, 326 U.S. 120....... 27, B, 35

Ragan ¥, Merchants Transfer & W. Co., 337 U. S. 530.0 26

' Railway Express Agency v. New York, 336-U. S. 106... ee cae 39

Rice v. Sioux Gity Memorial’ Park meee | 245 Ia. 147,

N. W. 2d 10 see 45

- Rice v. Sioux City Memorial Park Cemetery, 349 US. 70a 45

: f mr x PAGE

Rogers v. Jones, 214 U. S, 196 | . 24

Roth v. United States, 352 U. S. 964. piu belmioane Te

Roth v. United States, 354 U. S. 476, n. 27 Gicdeccions SB

. Sanders v. Howard Park Co., 86 Cal. App. 2d 721, 195 P, 2d 898 7

Screws v. United States, 325 U.S. Qo ccinnwrnnnnnnnnAl, 42, 43

Shelley v. Kraemer, 334 U. S."DeccsorncnnnnnennnnaiMly, 45, 49, 52

Shelley v. Kraemer, 334 U. S. 13. ‘ 49

Sherman v. Grinnell, 144 U. S. 198............:..... — 26

Silver v. Silver,.280 U. S. 117 . ine

Slaughter: House Cases, 16 Wall. 36...0occccinceneen 2, 42, 43, 44°

Smith v. Q’Grady, 312 U. S. 329 ..ecccsccenn aes Stoo.

dent v. Hughes, 321 U. S. 1......... , al

‘Stembridge v. Georgia, 343 U: S. 541...... .25, 30 .

Stryker v. Republic Pictures Corp., 108 Cal. ae 24 191, 238

A ER ition 29

Takahashi v. Fish and Game Commission, 334 U. S. 410...» 49

Talton v. Mayes, 163 U. S. 376. ciabteinahcieslh sian , —

‘Terral v. Burke Construction Co., 257 U. a eae, a. 49

ee + een, 2 U.S

Tileston v. Ullman, 318 U. S. 44........... | ~.. 29°

Toolson v. New York Yankees; 346 U. S. 356........... ie

Tracy v. Ginzberg, 205 U.S. 170..2c02cscccccscesai-.37, 38, 44, 50

Truax v. Raich, 239 U.S. 33... faipbaiiegs 49.

Twining v. New Jersey, 211 U. S. 78... : 42°

United States v. Classic, 313 U. S. 299.2. cccscncns 43

United States v. Cruikshank, 92 U: S. 542 ERR

United States v. Harris, 106 U. S. 629..cccyocssseciessssseineeneeeneesne 41

Virginia v. Rives, 100 U.S. 313s loeenmeeitetnteinee 41

Walter A. Wood Co: v, Skinner, 139 U.'S. 293..--cctccccessepacsinne 25

Watkins v. United States, 354 U. S. 178 J - 51

viii.

et : al 3 —

Weil v. Barthel, 45 Cal. 2d 835, 291 P. 2d 30. nicsccniaae

"_Weitzenkorn v. Lesser, 40 Cal. 2d 778, 256 P. 2d 947 .cccicccnere 19

-” Whipley v. McKune, 12 ‘Cal. 352... 7 ‘is 28

_ White v. Ragen, 324 U. S, 760 : 24, 29, 30

Williams v. Kaiser, 323 U. S. 471 24, 27

Williams v. Kinsey, 74 Cal. App, 2d 583, 169.P. 2d 487...crncno ie

. | Wilmington. Min. Co. v. Fulton, 205 U. S. Dene peter nists 39

Wood y. Brady, 150 U. 8. 18. meee

‘Woods v. Nierstheimer, 328 U. Sv 21 Loceccnn | 24

Worcester County Tr. Co. v. Riley, 302 U. S. 292 38

STATUTES

' California Constitution, ee I Bil edeeadectenbinsitbagecsinsetinnninsinensiiige 3%:

California Constitution, PE er Pe i iicritttercsiirernniciaetbciesintiniis

California Labor Code, Secs. 1050, 1053....... i 14

Civil Rights Cases, 109 U. S. 3. 7 2, 41, 43, 47, 48

United States Code, Title 28, Sec. 1257 (3)... bie ase

United States Constitution, Art. VI, Cl. 2...,......... se 8

- United States Constitution, First, ‘menial: ; 8, 52, 53

United. States Constitution, Fifth Amendment 8% 52, 54 ~

‘United States Constitution, Vouseeenils Acunistiininis |

2, 4, 8, 9, 15, 21, 22, 32, 36, 37, 38

41, 46, 48, 49; 50, 52; 5 54

TEXTBOOKS ie ah

8 Harvard Law Review, ‘p. 1 (1894), Holmes, ‘eae |

' Malice and Intent . 2B.

Restatement of Law of Torts (Amer. Law. Instit. 1934), Secs

7, 8A8(c) . , . 2

INTHE: ..

Supreme Court of the United states |

" Oeaer Term, 1957

No. 33

MICHAEL WILSON, et al.,

| : 7 Petitioners,

US.

Lorw’s INCORPORATED, a corporation, et all,

is . : | Respondents.

On Writ of Certiorari to the District Court ‘of Appeal,

Second Appellate District, State of California, Division Three.

"BRIEF ~~ wedi iain

Preliminary Statement.

‘This . case began—and. throughout, ‘its. course below

it was treated by the State Courts—as one involving only

this reasonably uncomplicated question: Does the com-

plaint state a cause of action for tortious interference

respondents with the business relatiéns of the .—

titioners? At the last moment, after judgment had

-gone against petitioners in the trial court and had been —

affirmed by the District Court of Appeal solely upon this

- issue of State ‘law, a tardy and desperate effort was

made by petitioners to ‘Inject into the cause a question

under the Fourteenth Amendment: ° [See, ’ Jurisdiction,

infra, pp. 3+8.]

——

- Upon that flimsy foundation there has been erected by

petitioners an argument. nearly limitless in the range

‘and variety of constitutional problems discussed. The

argument is almost all irrelevant, for in preponderant

_bulk it goes to questions . which are not properly here.

_ They are questions which were not raised or decided

below. They are questions for which no- adequate record

exists because no one deethed them in issue below. They

are questions which are not: within the scope of those

presented in the petition for certiorari. They are, there-

fore, questions which need not and should not be decided

on this record and in this ‘cause. |

So far as any constitutional issue under the Fourteenth

Amendment ‘is concerned—assuming it to be properly

before this Court—the central question must be whether,

in the private conduct complained of, there has been any

“state action” in the meaning of that term in relation to the

Amendment. That, in turn, is essentially a. question of ac-

commodating and: delimiting the respective spheres and:

intests of the Federal and State governments in the regu-

lation of private conduct. It is a question which touches

upon a sensitive spot. As has been recognized. at least

_since the Slaughter House Cases, 16 Wall.. 36 (1872)

and the Civil Rights, Cases, 109° U. &. 3 (1883) were

decided, it is a question of a sort the answer to which

profoundly affects the basic and essential nature of the

Federalism we have known since ‘the founding.

‘Having regard to the independent non-federat grounds

upon which the judgment was based, and also to. the

-manner in which and the time at which the Fourteenth

Amendment question was ‘raised below, it cannot be said

that even’that question’ is properly before this Court:

_{Jurisdiction, infra, pp. 5-8; Point I, infra, pp. 30-37.]

Certainly, however, no other constitutional question is

here. ~ | ee ard SEAS

Jurisdiction.

This Court is without jurisdiction because the federal

questions sought to be reviewed. were not seasonably or

properly raised in, and were not decided by, any of the

State courts in which the instant cause was heard [28

U.S.C., §1257(3)]; and because the judgment rests on

‘independent non-federal grounds adequate to sustain it.

The state of the record in that regard is as follows:

1. The complaint was not framed to raise or put

in issue any right under the constitution or laws of the

United States. It was plainly nothing more than an at-

tempteto state a cause of. action under the law of Cali-

fornia for tortious or unjustified interference with busi-

ness relations. [R. 35-36] ‘It was so described by

petitioners in the District Court of Appeal below. [See,

their Opening Brief in that court, page 1.] No. federal

right was alleged; no provision of the federal constitution

or of any federal law was pleaded or otherwise referred

to. [See, pp. 10-13, infra; and, cf., Br. 3-7.)] —

2. A demurrer to the original complaint was sustained,

with leave to amend, on the ground that the ‘complaint

did not state facts sufficient: to constitute a cause of

action. [R. 16-29] It is petitioners’ theory, now. that a

determination by a State court that the facts alleged gave

them no cause of action’ was such action by the State in

‘The Brief for Petitioners is referred to herein by the abbrevia-

tion “Br.” ss

aid of respondents’ private conduct as to make that con-

duct a denial by the State of due process ‘and. equal

protection. [Br. 31-43; 87.] If that is So, then obviously.

the appropriate, and certainly the latest, time at which

that. constitutional question should have been raised was

in the proceedings taken next after the rulings on re-

spondents’ demurrer which precipitated the question. [See,

Point I, B, infra, pp. 32-34.] That was not done. Only.

an amended complaint, for all practical purposes identical

with the original, was filed? [R. 29-41, 76-77] Still

absent was any suggestion that a federal. right was being.

asserted or a federal constitutional question was being

» raised. . eee

3. A demurrer to. the amended complaint was sus-

tained without leave to amend.* [R. 55] This, of course,

made entry of a judgment of dismissal mandatory unless _

the ruling was reconsidered. [Berri v. Superior Court,

43 Cal. 2d 856, 860, 279 P. 2d 8, 11 (1955).] A motion

to reconsider, on the ground that the ruling of no, cause

of action violated petitioners’ rights under the Fourteenth

Amendment, could have: been made under California's

‘ practice. [Bank of America v. Superior Court, 20 Cal.

2d 697, 702, 128 P. 2d 357, 360 (1942); Frantz v.

2The only differences between the two complaints were the dele-

tion in the later of them of the words “blacklist” and ‘ “conspiracy”

ina few places and the addition of the epithetical adverb “mali-

ciously.” [R. 44] In the California practice such epithetical

pleading states no fact and raises no issue. [Cases cited, note 11,

snfra, p. 10.) -

%A demurrer by. the so-called committee respondents (who, as

they did in the State courts, appear here separately and by other

counsel) was sustdined with leave to amend.. [R..55] Petitioners,

however, were satisfied with their amended pleading. They de-

clined to’'amend further and permitted’ judgment of dismissal as to

*those respondents to go against them. [R. 61-62] |

Mallen, 204 Cal.. 159, 161, 267 Pac. 314, 315 (1928);

De La Beckwith v. Superior Court, 146 Cal. 496, 498,

499, 80. Pac. 717, 719 (1905).] No‘such. motion, in fact

.no motion to reconsider on any ground whatever, was

made. [R. 55- 56)

4. An appeal from the judgment of dismissal was

taken to the appropriate appellate court of the State.

, Petitioners’ filed elaborate briefs, aggregating: 112 pages

in length, in which they discussed. many questions. But.

‘they did not assert any federal right as such. In the

_course of arguing other questions there were some occa-

sional: generalities about “constitutional rights.’”* These

-were merely rhetorical flourishes, serving no purpose

other than to add a literary flavor to what was essentially

an argument of a question of State law. [Cf., Bowe

v. Scott, 233 U. S.-658, 664 (1914); Mutual Life Ins.

Co. v. McGrew, ere 188 U. S. at $11. See, Point I, B,

infra, pp. 34-37.] .

5. The District Court of Appeal affirmed the judg-

ment of dismissal upon the sole ground that it did not

appear from the complaint that ‘the alleged exclusion of

petitioners from employment in the motion picture industry

was the result of the monopolistic and discriminatory

‘combinatrton- among the defendants averred: so, it did

not appear that petitioners have been injured or damaged

-by that combination; therefore they had no cause of action -

‘The references in this connection upon which petitioners rely

are collected at pages 12-13 of their brief here. Examination of

them in the context in which they appeared below will bear out

the characterization of them made in the footnoted text above.

[See, Point I, B, infra, pp. 34-37.]

for any relief. in respect of it.’ [R. 69-77] There was

no discussion in the opinion of the court of any federal

'. right or of the federal constitution or any law passed in

“pursuance of it. No federal question of any kind was

touched upon or decided in the opinion of the appellate

court.® [R. 63-78. ] Petitioners themselves Say the holding

was that they “had no standing to sue . . .” [Br. 87.]

6.. A petition for rehearing in the District Court of

Appeal was filed. In it, in addition to various non-federal

grounds, petitioners made the contention that the Court's

decision adverse to petitioners “merely because appel-

lants [petitioners here] have not alleged the existence

or probability of a contract of employment” denied’ them

equal protection and due process “in violation of the |

equal protection and due pr cess. provisions of the four-

teenth amendment.” [Pet/ for Rehear., 10-13] This

ground of the petition’ was opposed by respondents on

the merits and, as well, because it came too’ late to be

5In California a judgment based on the sustaining of a demurrer

to the complaint will be affirmed if the demurrer was good on any ©

ground made, regardless of the ground upon which the trial court

may have sustained it. [Moxley v. Title Ins. & Tr. Co., 27 Cal.

2d 457, 462, 165 P. 2d 15, 17 (1946).] It may also be noted that

in California practice the memorandum opinion of a trial court

‘cannot be used on appeal to impeach or vary its findings or judg-

ment. . [De Cou v. Howell; 190 Cal. 741,751, 214 Pac. 444, 448

(1923) : Goldner v. Spencer, 163 Cal. -317, 320, 125 Pac. 347, -

Ed Williams v. Kinsey, 74 Cal. App. 2d 583, 600, 601,

2d 487, 498-499. (1946); Lord v. Katz, 54 Cal. App. 2d 463,

, 367 12% P. 2d 907, 909 (1942).]

°This reinforces the conclusion that no such question was raised

below. [Bowe v. Scott, supra, 233 U. S. at 664; Bachtel v. Wilson,

204 U. S. 36, 40 oer ).]

7 ss

considered.’ [Anszver to Petition for Rehear., 4-5]- The

order of the District Court of Appéal was: “Petition

for rehearing denied.” [R. 78] Such an order, in the

~ circumstances, here involved, cannot. be taken as a deci-

‘sion of the federal question.® —s,.

7. “se petition for hearing in the State Supreme Court

after decision by the District Court of Appeal was next —

filed. Among a large number of other grotinds for a

hearing it was argued, under the heading “The Decision

Below Creates An Unreasonable Classification,” that due -

process and equal protection had been denied; but without

explicit statement whether the asserted denial arose under

the State or, the United States constitution.’ [Pet. for

Hear., 37-40.) The opposition to the petition was

grounded, among others, upon the proposition that the fed-

eel

‘A contention advanced for the first time in a petition for re-

hearing in a California appellate court comes too late to Tequire

consideration: or decision of it by. the court. That is a “settled

rule” of practice in that State. [Prince v. Hill, 170 Cal. 192, 195,

149 Pac. 578, 580 (1915); A. F. Estabraok Co. v. Ind. ‘Ace.

Comm., 177 Cal. 767, 771, 177 Pac. 848, 849 (1918); Sanders v.

Howard Park Co., 8 Cal. App. 2d-.721, 723, 195 P. 2d 898, 899

(1948 ).] Neither ‘will a contention not made in the trial court. be

considered Gn appeal. {/mperial Valley [. Co. v. Globe Grain etc.

‘Co’, 187 Cal. 352, 359, 202 Pac. 129, 131-132 (1921) ; Herbert v.

Lankershim, 9 Cal. 2d: 409,°484.. 71 P. 2d 220, 257 - (1937) ;

Mutual Life Ins. Co. v. McGrew, 188 vs, S. supra, at W9, and

California cases there cited. ]

‘That order might have been based upon the untimeliness of the

contention under the State’ practice, or upon the failure to make

it in the trial court. This in itself would be an adequate state

ground ‘for the result in the State appellate court. [Point 1, B,

infra, pp. 30-37.]-

®A4 contention of unconstitutional action which, as stated by the

party making it, may be referrable to either the State Gr the federal

- constitution is insufficient. [Oxley Stave Co. v. Butler County, 166 -

U. S. 648 (1897). Bowe ‘v. Scott, supra, 233° 'U. S. at 665:

New York ex rel. Bryant v. Zimmerman, 278 U. S. 63, 67-68

(1928).]

— eral question was ‘raised too late. (Ans. to Pet. for Hear.

ing in 2d Civ. No. 20769, 11-12.] The Supreme Court

order was: ‘Appellants’ petition for hearing Denied. |

_ Carter, J.-.is of the opinion that the petition one be

grant ~ Re.

8. The. record. shus. diane shows:

- None of the federal questions which. petitioners

now an to have reviewed .was raised or. ‘oat in

the State court of first ‘instance. |

_ b. None of-them was raised, and, eyen if raised,

none of them was decided in the State District Court

of Appeal when the cause was heard on the merits.

Determination of them was not necessary to the deci-

sion actually made.

When raised in the petition for tenia they

Pe not embrace any question going beyond the equal

protection or due process clauses of the Fourteenth

Amendment.” [ Pet. for Rehear.., 10-13]

The record fails to show -that. steer the federal questions

were belatedly raised, any one of thie State courts in-—

volved entertained or decided them.

Restatement of Questions Presented.

1. Dues this Court have jurisdiction to. review a

‘State court judgment when (a) that judgment ‘rests on

an independent non-federal ground adequate’ to support

it, 1.e., the absence of any showing of ey to the

10There was not the slightest suggestion of any question under the

privileges and immunities clause of the Fourteenth Amendment: |

or. thder the due process clause of the Fifth Amendment; or

under the First Amendment ; or under the supremacy ¢liuse, Article

VI, clause 2... Yet, questions’ directly involving all of these pro-

‘vistons are now argued at le ngth in petitioners’ brief

- petitioners from the allegedly wrongful conduct com-

plained of; and, (b) the federal question sought to be

_ reviewed was - not. raised or decided in ‘the trial court,

“was not clearly or properly- taised on appeal until the

filing of a petition for rehearing in the State appellate

court, and the record here does not show that the ques- ike

‘tion was entertained or decided by that Court?

2. In an action for unjustified interference with busi-

ness or employment relations, based upon ‘an alleged

agreement among all employers in a particular industry

not to employ persons who invoked the self- incrimination

| privilege when questioned as witnesses before a committee

of the Congress, the State court held that the plaintiffs —

"had failed to show that their aileged inability to obtain

_ employment in that industry was brought about. by that

‘agreement, so that their complaint failed to staté a cause

of action for any relief in respect of the employers’

agreement. That holding was not based upon any statute

of the State, or upon any determination that the agree-

ment was lawful or constitutional, but upon the common

law doctrine of interference with business relations. On

these facts. did the State deprive the plaintiffs of prop- °

erty without due- process of law or deny them, equal

protection of theslaws within the meaning of the Four-

teenth Amendment, to the’ constitution of the United

States? — Si

'3. .When the only constitutional questien presented in

the petition for certiorari dealt solely with alleged rights

under the due process and equal protection clauses of the

Fourteenth Amendment and the supremacy clause, will this

Court entertain and decide questions, raised in the peti-

_tioners’ brief on the merits, arising under other provisions.

of the constitution ?. ae

‘

inl a

Statement of the Case.

_- A. The Complaint.

1. The case was decided in the trial court on-a de. .

murrer to the amended tomplaint. It is, therefore, of the

first importance that we know precisely what the well-.

pleaded facts in it were ; and that we also know essential

facts not pleaded. un Taking the first count relating to pe- -

titioner Wilson as typical of the other counts [R. 38] the

complaint made these material allegations :

a. Petitioner’ is by profession a motion picture

writer with more than five years experience as: such.

He has acquired a reputation for cdechees \of work

and has won high esteem as such a \writer/ — [R. 29]

-. ° b. The corporate respondents, except for: certain

trade associations formed by them, are in the busi-

ness of producing and distributing motion pictures.

They and the individual respondents - 2( other than

the so-called’ committee respondents ) directly and

indirectly control all motion picture. production and

distribution in the United States and all employ-

ment. opportunities therein for actors, writers and

others. [R. 29-34] — |

. Prior to March 5, 195f the respondents agreed ..

aa each other to refuse to employ and to exclude

from employment in the motion picture industry

all efnployees and persons seeing employment there- —

1'Tn California a demurrer, like a motion to dismiss in the federal

practice [Collins v. Hardyman, 341 U. S. 651, 652 (1951) ], admits

only the well-pleaded . facts. It does not admit conclusional, argu-

mentative or epithetical averments. [Faulkner v. California Toll- .

Bridge Auth., 40 Cal. 2d 317, 328, 253 P. 2d 659, 667 (1953);

Callahan: v. Broderick. 124 Cal. 80, 82.83, 56 Pac: 782, 783

(1899); Gosewich v. Doran, 161 Cal. 511; 515-516,.119 Pac. 656,

658 (1911).] ;

in who, among other things, having been subpoenaed

as witnesser before the Un-American Activities Com-,

‘mittee of the House of Representatives refused, on

constitutional grounds including the. privilege’ against

‘self-incrimination, to answer. questions concerning.

their political . affiliations, associations and beliefs; .

or who, having been named before the Committee —

~ as Communists, refused or failed to appear before

'* the Committee and waive and surrender their con-

stitutional rights and testify as to their political

affiliations, associations and beliefs and those of their

' families, friends, associates dees , aoqquaintances. ~ 2m.

33] .

d. Respondents agreed that such persons would

not be employed in the motion picture industry.

-Having so agreed, and intending to prevent them |

from being employed, respondents induced. and per-

‘ suaded each other, and other employers in the in-

dustry, not to.employ such persons. As part of that

agreement respondents have circulated and are cir-

culating throughout the entire motion picture pro-

duction, distribution and exhibition fields a list con-

taining the n.mes of such persons with the intent _

that they be not employed. [R. 35-36]

e. By this conduct the respondents “without justi-

fication or excuse have interfered with and injured

‘the right. of said employees and other persons rea-

sonably to expect employment in the ‘motion picture

industry and to pursue their professions and oc-.

"The agreement was also alieged to extend to other categories

of conduct; but no facts were alleged to show that any of the ©

petitioners engaged in conduct coming within these categories.

[See, R. 35] |

4 +N

—12—

: cupations therein, and have prevented their em:

ployment therein.” [R. 36] | > |

_ £. On September 20, 1951 petitioner Wilson ap-

- peared before the Committee. pursuant. ‘fo subpoena. -

- He there refused-to answer certain questions put

to him concerning his political affiliations, beliefs and

associations.” Petitioner refused to samee’s ‘those

ns questions, “basing his refusal upon his constitutional

rights, including the privilege against self-incrimina-

tion under ‘the Fifth Amendment to the Constitution.

of the United ee. fa

g. As a result, and by reason of the acts and

agreement of respondents, petitioner. has -been and

is now refused and -excluded from employment in

the motion picture industry; and will henceforth

find it impossible to obtain. employment in the pro-—

fession to which he has devoted a major part of ,

his life and energy. [R. 36] |

h. The purpose of the agreement of the respon-

dents, according to the belief of. petitioners, was and

13In California a fact whieh ie the subject of judicial notice may

be deemed a part of .a complaint, even in the face of a contrary

‘averment. {Weil v. Barthel, 45 Cal. 2d 835, 837, 291 P. 2d 5,

31 (1955) ; Chavez v.. -Times-Mirror Co., 185 Cal. 20, 23, 195 Pac.

666, 668. (1921); Hammell v. Britton, 19 Cal. 2d 72, 75, 119 P.

2d 333, 334-335 (1941).] Accordingly, the State court took .

judicial notice of the proceedings of the Congressional Committee

“and :thereby noticed that the questions put to petitioner related

.to whether he was or ever had been a member of the Communist

Party. [R,.67-68] The notice which it took was merely of the -

+ ‘proceedings before the Committee, ie., of , what had transpired

there. It did not notice, indeed it could not have taken notice, |

that the assertions, answers or other statements there made were

’ true or that they .were proof of the facts asserted. [See, cases

cited, note’20, infra, p. 19.] The petitioners opposed respondents’

request for judicial notice [see their Reply Brief, 42-58, in. the

, District Court of Appeal] and made no request, on their own

.account, that any fact be noticed. —

: —l3—

_ ig to limit, control and direct’ the political activities

of their employees and to coerce and influence them

by aneans of threat of discharge arid loss of em-

: ployment to refrain from adopting or following any.

course or line of: political action not acceptable to

- the” Committee; to limit employment in the motion

picture industry to persons whose political beliefs -

',are acceptable to the Committee; and to. limit - pro-

duction of motion pictures to those the. content. of

which is acceptable to the Committee. "* [R. 37}

.Compensatory damages of $1 2s0;80000 and

oid damages of $1,000,000.00, were \alleged in

general terms. [R. 37] a

_ j.. Difficulty of ascertaining damages 4nd_ir-

reparable injury were also alleged in genetal and ;

conclusional lariguage. [R. -37-38] | ;

2. What the complaint did not allege is at at as

_ important as what it did.”* It did not allege:

a. That any of the petitioners was employed in

the motion: picture industry at the time the alleged

agreement was made by the ‘respondents; or at the

time they appeared - ‘or were named . before the,

Committee:

We summarize these allegations because petitioners place. -so

much emphasis on them. They were, however, little if, any more ~

than averiments of the “belief”.of the petitioners. They were,

therefore, argumentative. and conclusional within the meaning of

the California decisions {see, note. 11, supra, P. 11]; and so, were

_ hot admitted by the demurrer.

The presumption -below, which the District Court of Appeal

indulged [R. 74-75, 76-77], was that: petitioners -had pleaded

the strongest case open to them. [Faulknersv. California Toll-

Bridge Author., supra, 40 Cal. 2d at 32, .253 P. 2d at 666, and

. cases there cited. } ;

.—14— ;

- " b That _any of them, at the times in question,

* had any reasonably probable or certain prospect of

being ‘so employed; or that, but for the acts of

respondents ‘complained: of, baad would Save been

employed. |

c. That any of: them, at or _— they appeared )

or were named before the Committee, had requested -

- ° or sought such: employment ; or that en :

therefor were pending in any of their behalfs:*

d. That the list allegedly being circulated con- -

tained their names; or, if it did, that any statement

in it was untruthful or a misrepreséntation; or that

it had been circulated to anyone not rt a special

request for it.” |

‘At oral argument in the State appellate court it was- conceded

that “it was not alleged ‘that individual ae? did apply for

work and were denied the fight to work.’” [R. 75]

17Calitornia has a so-called ‘ ‘blacklisting” statute. It is as fol-

lows [Cal. Labor Code, secs. 1050, 1053}:

81050. Any person, or agent or officer. thereof, who, after

having discharged an employee. from the service of “such

person or after having paid off an employee voluntarily leaving

such service, by any misrepresentation prevents or attempts to

prevent the former employee -froni obtaining employmnient, is ~

— of a misdemeanor: ree ;

* * *

1053. Nothing in this chapter shall prevent an employer

"or an agent, employee, superintendent or manager thereof from

furnishing, upon special request therefor. a truthful statement

concerning the reason for the discharge of ’an employee or

why an employee voluntarily left the service of the employer.

If such statement, furnishes any mark, sign, or other means

conveying ‘information different from that expressed by words

- therein, such fact, or the fact that such statement or other

means of furnishing information was given’ without a’ special -

request therefor is’ prima’ facie - evidence. of a violation of

sections 1050 to 1053.

ithe.

B. The Decision of the State Courts.

amended complaint was sustained without: leave to amend. |

[R. 55, 56] The court’s order in that regatd. was ac-.

companied by a memorandum opinion [see, note 5, supra,

p. 6] in which there: was “discussed only the. question

whether the respondents’ alleged inter ferencé” with peti-

tioners’ employment relations was shown to have been

" unprivileged or unjustified. No question ‘ arising under

the Fourteenth Amendment was suggested, disctissed or.

decided. [R. 44-54] Pursuant to that ruling, and some

In the trial court, respondent’ s demurrer to the “

three weeks after it had been made, a judgment « of dis-

missal was entered. [R. 55- 56]

2. The District Court of Appeal affirmed. the judg-

[R. 78] It did ‘so on the’ sole ground that there

was “‘an entire absence of factual allegation showing that

any legally protected interest of plaintiffs has been inter-

fered with. Neither an existing nor a prospective con-

tract or business relationship is alleged. And there is

nothing in the pleading from which it may be inferred

-that.any prospective contract or business: relationship has’ .

been’ interfered ‘with by any. ‘wrongful acts of, the. defen-

dants ae (R. FE0G} The. steps in the Court’s

. reasoning . by which it arrived at that conclusion were

-. these :

a. .It was assumed that petitioners had mes

‘their case as strongly’ as it was possible for them to -

do so. [R. 76] .

b. . The cause ‘of action attempted to be alleged

was “obviously one’ for wrong ful interference with -

=. been entered into between any one of the petitioners

—16—

future of prospective contract or business relations

7 [R. 69].

c.. It was the general rule that to’ recover “for

interference with the loss of a future or prospective

-. contract or. business. relationship, ‘{ must appear that

-such contract or ae would otherwise have

been entered re.

d.. The complaint ‘was devoid of. any. allegation

‘of fact that any contract or relationship would have

and anyone in the motion picture industr~ but for

- the alleged agreement of the’ respondents. Refer-

ence was. made to-the inatters which were not al-

leged, along lines to which we have already referred,

‘supra, pages 13-14. Froin this absence of allega-

tion, and: from the fact ‘that at. most the complaint

showed an employment and a términation of it some

years before. the respondents’. agreement? the infer-

ence “necessarily is that.the termination was the

| result of facts. wholly disconnected from fhe agree-

‘ ment and that-those facts, whatever they may. have

been, still are effective Meee |G

e. It could not be inferred frorn the complaint

that petitioners “have not obtained employment since

they invoked their. constitutional privilege aaeny be-

cause of that. fact.” TR. 75]

ee! Consequently, there was an absence of factual

allegation: showing. that: any legally protected inter-

est of petitioners had been interfered ‘with by any

“ue

By making that statement the Conrt agreed with petitioners’

own characterigation of the nature of their complaint, as. stated -

by them at. page | of their one ning “Brief in that Court

weil

wrongfut act of the respondents. The ‘complaint,

therefore, did not state a cause of action. [R. 75-76]

g. In view of this conclusion thé Court did “not -

reach other points argued: by counsel,” [R. 77]

| 3. It-is quite clear from the apition of the District

Court of Appeal that it did not. reach, discuss or decide...

any questjon: arising or thought to arise under the Four-:: :

teenth Amendment or any other provision of the dalersl

constitution. It is also clear that the Court did not

_ decide whether respondents alleged wrongful agreement

“was or was not unlawful, either under State law or by

virtue of any provision of ‘the constitution or laws of the

United States. There’ was no occasion to decide any

such question, “assuming it to have been raiséd, ‘since the

Court’ had held that no legally protectible interest of the

petitioners had been interfered with by that agreement.”

[R. 77] |

4, The ‘proceedings in connection. with petitioners’

petition for rehearing and for a hearing in the. State

Supreme Court have already been adequately summarized.

[Jurisdiction, supra, pp. 6-8.]

The Distriet Court of Appeal did take judicial notice “of the

proceedings and reports of the Committée on Un-American Activi-

ties”< and concluded that the questions put to, petitioners by that

Committee at the times alleged in the complaimt did not relate to’

their political affiliations, associations or beliefs but concerned

“their membership in a ‘conspiratorial and revolutionary Janta’

” [R. 67-68] Nothing in the decision of the Court, ‘as -

petitioners now concede [Br 13-14, BR-X9]. was made to depend

on the matter so noticed That dictum or statement in-the opimon

presents nothing for review” This Court reviews decisions, not

statements in an opimion. [Black « Cutter Laboratories, 331 US

292, 207-298 (1956), | : ,

me cat ie —18—

C. Some Deficiencies in Petitioners’ Statement of the Case.

s\ttention should be called to certain significant omis-

sions from and unwarranted additions to the matters

appearing in the record which have been made- in

Petitioners’ “Statement “of the Case.” .[Br., 3, et seq.]°

For example:

a They state that the. purpose of the combine

complained of was ‘to “refuse employment and to exclude

from employment . . . all employees ‘and persons seek-

ing employment: | . .” [Br. 4] They do not ca!l

attention to the fact that there was no allegation that

any of them was, at the timés here material, an “employee”

or a “person seeking employment.’’ -As has-been seen, it .

was the absence of any * such allegation which largely

influenced the resuft below. ° [Statement of the Case,

supra, pp. 15-17. ] | :

2. They do not refer to. or summarize the allegation

‘by which, they characterized the: nature: or basis of their

supposed cause of action. That allegation was this [R.

36]:

sé

That the defendants and each of them by

this conduct wrongfully, maliciously: and without

jurisdiction or excuse have interfered with and: in-

jured the right of said employees and other persons

reasonably to expect employment in ‘the motion pic-

ture industry and to pursue their professions and.

occupations therein, and have prevented their employ-.

on therein.”

3. * The activities and proceedings of the Hostse-Com--

mittee on Un- American, . Activities Which preceded or

—19—

followed. the hearing at which petitioners appeared [ Br.

7-10] were not noticed by any of the courts below; and no

request that they be judicially noticed was ever made. The

only notice taken—and ‘this was opposed by petitioners,

who argued that -judicial notice did not extend so far

(Reply Br. in the District Court of Appeal, 50-52]—was

of the proceedings of the Committee, insofar as they

related directly to the petitioners, at the time or times

alleged in the complaint. [R. 36 (par. VI), 67-69]

4. The persorial data with respect to the award-winning

activities and. the employment record of . some of the

petitioners [Br. 9-10; Br., App., 65-72] wete not judicially

- noticed below. They could not have been except upon the

premise that testimony or statements before the Committee

established the truth of the matters there’asserted w ith-

out any right in the respondents to meet with other evi-

dence. .

5. The statement contained in the footnote at page 9

of Petitioners’ Brief with respect to loss of employment

is not. supported by any reference to the. record, or for

that matter, to anything outside the record. It is patently

a matter.not the subject of judicial notice but one requiring |

allegation and proof in any case in which the fact may be

relevant and material to some issue.”°

With respect to the limits of judicial notice, see: Mutual L.

Ins. Co. v: McGrew, supra, 188 U.S. at 312; Arkansas v. Kansas

‘ Texas Coal Co., 183 U. S. 185, 189; 190 (1901): Heitzenkorn .

v. Lesser, 40 Cal. 2d 778, ~ 78%, 256.P. 2d 947, 934.955 (1953);

Popcorn Equipment.Co. u. Page, 92 Cal. App. 2d 448, 452-454, 201

P. 2d 647, 650-651 (1949).

—2-

Summary of the Argument. ,

Decision below was expressly and squarely ‘based on

only one ground. That was that the complaint failed to

state a cause of action for tortious interference with

business or employment relations because it was not alleged ,

that, at the times of the alleged, wrongful conduct of

respondents, any of the petitioners were employed or

. seeking employment or that any of them had a reasonably

certain prospect of obtaining employment ‘in the motion _

picture industry. Rather, it appeared from the complairit

that any loss of employment or failure to obtain it by

petitioners was the result of causes other than the conduct

complained of. Consequently, it did not appear that any

legally-protectible interest of petitioners had been invaded

by that conduct. This was-an independent non-federal

‘ground, adequate to sustain the iudgment. This Court.

therefore, is without jurisdiction to determine se! bev,

questions.now sought to be raised. - [Point I, \, infra,

pp. 23-30. ]

Another independent and. adequate non-federal ground |

arises from the failure of petitioners to make their claim

of’ federal right in the trial court at all, and from their

failure to make it seasonably in the District Court of

Appeal. - California’s practice requires that questions |

sought to be reviewed on appeal must have been raised .

in the trial court; and, also, that they cannot in.any event

be raised for the first time on appeal ina petition for -

rehearing. No state court in this. case eritertained a

~ decided any of the federal questions now presented by

petitioners. The record here does not show ‘that this,

absence of decision was not based on the State’s procedural

requirements jst referted to. Furthermore, in the view

“of the case taken by the District Court of Appeal and upon -

‘which it grounded its decision, it was. not necessary to

reach or decide any of the federal questions, even assum-

_ ing that they were. seasonably and properly raised. ice

‘T, B, infra, pp. 30-37.] 7 te ge | ,

Decision of a. question of state law—and that is all

that was decided below—raises no question of due process

or equal protection. The Fcurteenth. ‘Amendment. does

not guarantee that state court decisions of local law will |

be either correct or uniform. In any event, “since the

_ Fourteenth Amendment does not: fasten upon the states

any particular social or economic philosophy, the State

here was free, so. far as substantive due process was con-

cerned, to adopt, alter or modify the common law doctrine

of interference with business: relations as it saw fit. . It

was also free, so far as equal protection was concerned, to .

- classify upon the basis of differences between the classes:

_ reasonably related to the subject matter and purpose of the -

rule of law concerned. Differentiation, for purposes of

applying the doctrine of interference with business rela- .

‘tions, between those who do and those who ‘do not have -’

an existing or reasonable prospective business Telation-

ship. is entirely reasonable and proper. [Point |; é

- infra, pp. 37-40.] « a

_If it be assumed that ‘questions under the due’ process

and equal protection clauses are properly before this Court,

—Zg—

and if it be further assumed that it was necessarily decided

below that the alleged combination or agreement of respon-

dents was lawful, there is still no case for application of

the Fourteenth Amendment. The provisions -of that

Amendment are restrictions upon the State, not upon

private’ conduct or private agreements voluntarily made

and voluntarily adhered to. When the State has ot

exerted its power to enforce or compel adherence to such

‘private ‘agreements, when all that it has done is to ‘Say,

speaking through its courts, that a private agreement or

some course of private conduct is not prohibited by any

positive law or rule, ‘there: has not been stich “State -

action” as if necessary to bring the Fourteenth Amend-

ment into play. That is so because the’ opposite view

would, in effect, make all privaté conduct which the

State does not affirmatively prohibit subiect to Fourteenth 4

Amendment standards. Such a view would run counter

to every decision of this Court on the subject. Tt would

radically change the present balance between State and

Federal jurisdiction in the regulation and control : of

private and local activities. It would make of the nation

a centralized rather than a federal policy. It would,

short, completely change the fundamental structure a

nature of the Union. [Point IT, infra, pp.- 40-52. ]

The other federal questions argued by petitioner afe

net properly .cognizatle. They were not: raised or de-

cided beh w at any time. They are not within the scope

of the questions presented in the petition for writ of

certiorari, Either as a matter of want of jurisdiction. or

of nopsconformity to this Court's practice, they should

“not be considered. | Point IT]. infra. pp. n2-5 35. }

ARGUMENT.

| \ aaa

This Court Is Without Jurisdiction Because the Judg-

ment Is Based on Independent Non-federal

Grounds Adequate to Sustain It.

There are in this case two independent non- -federal

‘grounds, either of which is adequate to sustain the judg-

ment sought to be reviewed. The ‘first of these. is that

judgment went against petitioners because, as a niatter of

state tort law ahd without regard to whether the combina-

tion or agreement of respondents was or was not in

any way unlawful: or: unconstitutional, there had been no

showing that the injury complained of resulted from or

was brought about by that allegedly wrongful conduct.

‘[Statement of the Case, supra,’ pp. 15-17:] The second 1s

that the questions now assertetl were not decided ‘below —

‘because they had not been raised at such time and in

such manner as, under the. state practice, required the

state courts to entertain or decide them. . [ Jurisdiction,

supra, pp. 3-8.] ° . Se ae or aia

We xnow with complete certainty that the decision of

the District Court of Appeal—properiy the court to

which certiorari. was directed [Hammerstein v. Superior — ,

Court, 34¥ US. 491, 492 (.1951).]--was expressly —

based on the first of these non-federal questions. [State-

ment of the Case, supra, pp. °15-17.] We know too that

‘under the state practice the decision might -have been

based on the second of these questions { Jurisdiction,

supra, pp. 3-8]: and we gannot tell from the ‘record that

it was itet so based. - Because of this. explicit: Showing,

and also because of the absence of any negaticn in’ the |

record of ,the possibility that the questioas were not

Corp. vs Muller, 296 US 207, 2%0 (1935)

—24—

decided because of the time and manner of their presenta- .

tion below, the conclusion follows ‘that this. Court is

without -jurisdiction to ‘decide them on their merits, what-

ever their appeal may be. [Edelman v. California, 344.

U. S. 357, 358-359, 361-362 (1953).]

It has long been the rule of this Court-—adhered to,

it has been said, since the Court’s foundation [Herb »v,

_ Pitcairn, 324 U.S. 117.125 (1945) ]—that “it will not

review judgments of state courts that rest on adequate:

and independent state grounds . . .” [Jdem. Other

- cases to this effect are cited in the margin. 11 That rule

applies even when, unlike the -instant. case, the state court

in fact decided the federal question—for, to give this

‘Court jurisdiction the federal question must hawe. been

necessarily decided. [De Sassure v. Gaillard, 127 U. §

216, 232 (1888): Lynch v. New York ex rel. Prerson,

293 U..S.-52, 54-55 (1934); Rogers v. Jones, 214 i oS

196. 204 (1909); Honeyman v--Hanan, 300 T. Ss. 14, 18

* (1937). See, Williams v, Kaiser, 323 U. S..471, 477,

480 (1945); Black v. Cutter Laboratories, 351 U. S. 292,

298-299 (1956).] ne

And where the record is ambiguous or silent so that it ;

is impossible to tell whether the, judgment rests on the.

federal or the non-federal ground, it is enough to deprive |

this Court of jurisdiction that’ the judgment might have

rested on the. non-federal Bround. Jurisdiction must be |

21H’o00ds v. Nierstheimer, 328.U. S. 211, 214, 216 (1946) ;

White wv Ragen, 324 U. S. 760, 706, 767 (1945); Enterprise Ir-

rig. Dist. v. Farmers Mut. Canal Co., 243 U. S..157. 164 (1917);

Holley v. Lawrence, 317 U.S. 518 (1943) New York ex rel.

Doyle v. Atwell, 201 UL oS. 300, 592 (1923+: Cuyahoga Power Co.

Northern Realty Co.. 244 U.S. 3007 503 i] 7 »: Fax Film

shown affirmatively; it cannot rest in conjecture or de-

batable inferenve.” [Stembridge v. Georgia, 343 U. S.

$41, 547-548 (1952) ; Durley v. Maso, 351 U.S. 277, 281,

284- 285 (1956); Phyle'v. Duffy, 334:U. S. 431, 444

(1948) ; Ellis v. Dixon, 349° U. S. 458, 460 (1955) ;:

Allen v.° Arguimbau, 198 U. S. 149, 154-155 (1905),

Walter A. Wood Co. v. oblliner, 139 U. S. 293,

(1891); Johnson v. Risk, 137 U. S. 300, 307 1890)

American Ry. Express Co. v. Kentucky, 273 U. . 269,

272 (1927).

Application of these ~ established _ principles to the

facts at bar leads clearly to the conclusion that this Court

is without jurisdiction. . ines :

A. The State Court Expressly Based Its Judgment on the

Proposition That Even if the Conduct Complained of

‘Was Unlawful Petitioners Were Entitled ‘to No Relief = --

in Respect of It Because It Had Not Injured Them.

That Was a Non-Federal Ground, Fully Sustaining the

Judgment and Independent of Any Federal Ground

Going to Establish the Unlawfulness of the" Conduct.

_ First; As has been seen, the explicit ground upon which

the decision of the District Court of Appeal was rested

concerned only a local question of tort law. Petitioners

were denied relief—not because the combination or agree-

ment’ of which they complained was held by ‘that Court -

to. be lawful or constitutional—bnut because they had

failed to show that the comlgination, whatever its nature, °

—— ee

* #Compare, Carroll v. United States, 354 U.S. 394, 399 (1957)

in which it was said: x ; ;

“It is axiomatic, as a matter of poh as well as doctrine,

that the existence of appellate jurisdicuon ima specihit federal

court over a given type of case ts dependent, upon authority

expressly conferred by statute.

: —26—.

: had so impinged - upon any legally protectibig interest of

_ theirs as to have causéd them any injury or damage,” In

short, the causal connection between the alleged har. to

them, that is, loss of or failure to obtain _employment,’. &

and the wrongful conduct complained of, was not shown:

[Statement of the Case, supra, pp. 15-17.]

Plainly enough this was the decision of a question: of

state law. [Cf., Fairport,.P. & E. R.:Co.. 0. Meredith,

292°U. S. 589, 597-598 (1934) : Neblett v.. Carpenter, 305

“U. S. 297, 302 (1938) ; Parker v. McLain, 237 U. S. 469,

472-473 (1915); Sherman v. Grinnell, 144-U. S. 198, 201-

202 (1892).] As such it i¢ beyond the power. of this

Court to review. [American Ry. Express Co. v- Ken-

tucky, supra, 273 U. S. at 272-273; Black v. Cutter .Lab-

oratories, supra; 351 U. S. at 298, (f., Erie R. Co. v.

_ Tompkins, 304 U. S. 64, 78-80 (1938): Ragan v. Mer-

chants Transfer & W, Co., 337-U. S. 530, 533 sit

See, also, cases cited, supra, p. 24.]

Just as plainly, it was a ground of decision .broad

enough to sustain the judgment of dismissal. It was also

one which did. not require. for its deters$ination, decision

of any federal question. Even if the alleged conduct of

respondents were unlawful or unconstitutional in all of

-the respects now claimed by petitioners, decision of the

- issue of causal connection could have been no different.

If would still have been true that regpondents’ conduct. |

ex -hypothesi unlawful and unconstitgtional, inflicted no

- harm upon the petitioners: as a cons | )

civil cause: of action in respect of it: * Thus the non- federal

_ ground is seen to be broad enough. to sustain the judg-’

ment: and, as well, to be independent of any federal

question. Any decision of the federal questions. even. -

—27-—

if they had heen decided, would not: have. been -in .any —

way necessary to the determination of state law ‘which -

was made. | a

_ Necessarily, then, the principles governing this Court's

jprisdtetion { Point I, supra, pp. 23-25] apply here to

establish want of jurisdiction to hear’ or decide the

instant Cause on the merits. |

Second: That is so regardless of the correctness ‘or

incorrectness of the State court’s decision as a matter of

local law. ‘ whatever the grounds of that decision:

it is binding on [this Court] insofar as state law is con-

cerned oa [Williams v. aio supra, 323 U.S. at

se oa

On occasion the suggestion has o been ies that if

decision of a state ‘question is palpably so arbitrary or

unfounded as to. stamp it merely a, device to evade federal

review, determination of federal questions otherwise prop-

erly presented ‘w ‘ill not be forestalled. [See ec. g.. Eenter-

prise Irrig. Dist. v. Farmers Mut. Canal Co., supra, 243

UL. S. at 164: McCoy v. Shaw, 277 U. S-. 302.303 °

(1928).] But that is a far different thing:-from review -

of a decision of a State couft merely for the ‘sake of —

revising the. State court's ejudgment on a qeustion of .

State law. An adequate and independent: non-federal

‘grourid, even though decided contrary to this Court’s —

view of the correct decision on “the . subject. negates

federal jurisdiction [See, Bachtel 7 Wilson, 204 U. S.

—

To the same cect: Sunith ov. O'Grady, 312 US. 320. 330

(1941 ): Neblett vo Carpenter, supra, 305 U.S. at302: Bi-Vetaltic

‘nv. Co. v. Colorado, 239 U.S. 441. 444 (1915+: Black ov. Cutter

Laboratories, supra, 351 U.S. at. 298, 299; Radio Station WOW’,

[nc. V7. Johnson, 326 Us: S. 120, }29 ( FO485.

_, lowed in a number of. other jurisdictions. as well: [R. 70-

_.. 228; 256-257.* None to the contrary is cited there or by

oo an the case-law met

_ decision. FL Wood v. Brady, 150 U. S. 18, 22-23 .

~-(1893).; American Ry. Exp ss Co. 0. Kentucky, nie

oa _ Rey. at 1 ( mers Courts sit to determine. concrete cases

At Duty aie ‘Club Vy Maas 210

; (1908), Radio Station WOW., Inc. v

a, 326 u. S. at 129; linger v, 8 13

Wall. 257, 263 _(1871):] ; oo. ee

In any event, the decision with which we are here

i csaladinie cannot properly be . characterized as palpably

‘arbitrary or unfounded. ‘It was based upon a- principle

. of the’ law of interference with business. relations which

had been. previously. anriqunced and applied: in- California

[Campbell v. Reyburn, 129 Cal. App. 2d. 232; 234-235,

276 P. 2d 671; 672 (1954)]; and which had _been_ fol-

74. “The cases aie collectgal i in Annotation 9 A, L. R. 2d

; petitioners. ] Td be sure, no previous case “involved a

precisely similar - | situation, ~ But, having regard

of: jurisdictions inheriting” the.

common’ law ttadition, it cannot be said that_a court acts

arbitrarily or without basis when it applies to a new ‘set

of facts the logically. pert: nt principle of -an earlier.

‘.273. U.S. at 273.] &

‘ The decision, too, is ; slides consistent with a general

: principle that runs throughout the law—“that wrong

.and injury must combine’ sa that the. former without the~

latter creates no’ cause of action. [W hipley v. McKune

-12- Cal. 352, 357-358 (1859) ; Atkins v. Gamble, 42 Cal.

— 86, 106 ( 1871). ‘Generally see, powell of the Law,

Torts, (Amer. Law Instit. 1934), secs. 7, 848( c);

Holmes, Privilege, Malice and Intent, 2 Harward Law.

“7

¢?

‘ f

e Se

-%. :

«te

am “controversies, not abstract questions ‘of law. To

invoke .the judicial power one must show .that’ he has "

sustained or.is in danger of\ sustaining immediately ‘sowie

direct injury ‘as the result of the wrong complained of.

[See, Massachusetts v. Mellow, 262 U. S.°477, 488

(1923) ; Fairchild, v.vHughes, 258 U. Sq126,’ 129-130

(1922).] So.,.one not adversely affected hal some recog-.

nized temporal interest by an alleged wrong is not usually

a position to bring .about an adjudication of the’ ey

[See, MacLeod v. Fox West Coast T. Corp., 10 Cal. 2d

.Pictures Corp., 108 Cal. App. 2d 191,195, 238 P. 2d

643, 10 P. 2d 760, 761 (1932).]_ y

In this regard, the. decision inten: is - fairly analogous

to the proposition that’ one not affected by state action -

claimed to be tigconstftutional, cannot raise the question |

of its ‘constitutionality ; or, put somewhat differently, one+

may not ordinarily invoke or assert. the constitutional -

rights of another. * That doctrine ‘is firmly imbedded in x».

the decisions’ wt this Court. [Tileston v. Uliman, 318 ~

U.S. 44, 46" (1943) and cases there cited; McCabe ‘v:

A. T. & S. F. Ry. Co., 235 'U. S. 151. 162- ——

L iberty Warchouse Co. v. Burley T. G. C o- op. M P Assoc.,

276 U. S. 71, 88 (1928).]_

a,’

‘Disposition of the instant case in the court below: ona »

theory consistent with general printiples SO widely’ recog-

a federal question. [C a. WwW hite °v Ragen, supra, 324

U. S. at 766; Johnson v. Risk, supra, 137 U: S. at 307--—

| question whether there has been in fact any “wrong. &

383, 386, 74° P. 2d 276, 278 (1937) ;:Stryker.v. ‘Republic? §% 5

670; 672 (1951); Gillette v. G illette, 122 Cal. App. 640,

nized in the law can hardly be characterized as arbitrary ie

@ or. groundless, or as merely a device to evade decision a

Pam ‘

LVeriass

2. *,

ire ARIES 6 SE Beers

natin,

ne ?

é‘ e/

ME ele! EM

309; Allen v. Meni, supra, 198 U. S. at 155; Amer-

ican Ry. Express Co. v. Kentucky, supra, 273 U. S. at

273.) ; see &" _— . -_

oy “ip :

'B. The Failure to Raise the Federal Questions Below See

- gonably and in Proper Form Is in Itself an Adoquete

Mew-Federal Ground. — Seas

Well settled is the proposition that petitioners’ “rights

3 under-the Federal Constitution must be pursued ‘according

to the procedural requirements” of the State and this

Court. is. “bound*by the record on which [the State] judg-

_ ment was-based .. ...” [Hedgebeth v. North Carolina,

_ 334 U. S. 806, 807 (1948).] -Failure-to decide a federal.

question because it was not properly- presented i in accord-

ance with the State’s: procedural requirements is itself

“an, adequate and. independent @gn- -federal ground for the

judgment sought. to be reviewed. [Stembridge’ v: Georgia,

supra, 343 U, S. at 547; Holley v. Lawrence, 31¥-U. a

518° “(1943) ; Edelman v. California, supra’, 344 U. S. at .

358-359; Whitv. Ragen, supra, 324 U. S. at 766-767.]

Just such a non- -federal ground appears in the case at bar.

First: It is a settled rule-of California practice that

questions not raised, in the trial court will not be reviewed

on.appeal. Neither will questions raised for the first time |

_ in a petition for rehearing i in the appellate court. [ Cases

cited, note 7, supra, p. 7.] ec

There is absolutely nothing in ee er here to show

that any federal question was raised in the trial- court:

“[Jurisdiction, supra, pp. 3-5.] It is not even contended

by petitioners that one was there raised. That fact, by

itself, justified: the State appellate courts, ‘as a matter of

‘ local practice, in not deciding any such question, assuming ©

_ It to have been. — properly raised in those courts.

“i ‘ . a : 3 ie

Furthermore, in view of Se senthiie redched by the’

District Court of Appeal: of the substantive- question of —

state law to which it devoted its opinion, .it was not neces-

sary. to decide any fedecal: — arr I, ‘A, supra,

pp.. 25-26.], jee eo. sae ee |

In either event, “there 4s_no basis for -any—treview-of ~~~

- federal questions | in: this Court; for the’ reasons, first,

that failyre to wg te because: of non-compliance with the

\o*

state’ s procedural r ements is itself, an adequate non- )

federal ground . [cases Cited, supra, p. 30]; and, second, . , °

-a federal question necessarily decided below is an essential |

predicate of this Court’s jurisdiction.” [Cases cited, supra,

ad coe ae ae

Second: It is clear, in view of the foregoing, “that the ~

judgment might have rested upon a non-federal ground

| [Stembridge v. Georgia, supra, 343. U.S. at

547-548 (Court’s italics); Durley v.. Mayo,. supra, . 351

U. S. at 281, 285.] That appears plainly from the ae ‘

_opiion of the District Court of Appeal, which rested. «°°

judgment on a determination’ of local‘ law and for ‘that *.

reason did not reach any other question. [R. 77] Je

The order of that Court denying the petition for te-

héaring was a, bare denial, without expression of any

‘reason or ground. . [Jurisdiction, supra, p. 7.] Such

an order cannot be taken as a decision of some federal.

ground presetited i in the petition, especially when, as here,

there is a basis. for holding thatthat presentation was

not in compliance with a Te aie that the

contention’ should: have. been sooner made. [Forbes v.

State Council; 216 U. S. 396, 399 (1910); Durley v.. .

Mayo, sipra, 351 U. S. at 284-285; Bailey v. Anderson, —

326 U. S. 203, 206-207 (1945) ; Mutual apace Ins. Co. v.

q ;

‘a

McGrew, supra, 188 U.S. at 3H). ‘ent the same is,

true, of course, of the State Supreme Court:s den x

the petition for hearing in that court. ‘Jurisdiction,

wsupra, pp. 7-8.] .

‘Third: It cannot. iain ie contended that the

fedefat questions now argued - by petitioners: could not.

have bees! raised i in the trial court... Their. complaint here

‘is that ‘their constitutional ‘rights were invaded below by

‘the’ judgment. of the District Court of Appeal. . Tha

complaint, in turn, -rests, not on anything mie

decided, but on-the result itself. “[Br., 15816] In other

_ accomplished by the determination, .on whatever ground, -

that the facts alleged did. not state a cause of actian. |

Bie

"a>

If thati is true at all, it is equally true of the trial court’s

judgment.4; Yet not a word was. said in that court .which

even remotely suggested the existence of a constitutional

question. However confident petitioners may have been

24In arguing that a tien under the Fourteenth Agnendment

‘was properly raised in the District Court of Appeal “petitioners refer

to page 7 of their Opening Brief in that Court. [Br., 12] We

assume they refer to the heading appearing on that page reading

as follows: (Italics ours)

“The Judgments ,below Sustaining . the Demurrers to the.

Complaint and‘ Dismissing the Action Without Trial Deprived

Appellants. of Their Liberties -and Properties Without Due

Process of Law . .

They could just as easily have said as much in the trial court.

‘It may also be noted that to the extent that this heading purports |

to raise any constitutional question it is one which is not now

being urged by petitioners; i.e., that procedural due process was

denied because the complaint was dismissed ‘Without Trial.”

Of course, dismissal after a deinurrer has been sustained, as here,

after notice and opportunity to be heard, for the reason’ that the

.-facts alleged, assuming them to be trut, do not show a ground

for relief as a matter of law, is not a = of. due process.

[See, Iowa Cent. Ry. Co. v. lowa, 160 4. S . 389, 393-399 (1896) ;

Oper v. Morgen, 256 U. S. 94, 1105442 (1921).]

¢ gues: see ——

of their legal position when they commericed t thisaction,

‘thes could not blandly or blindly exclude,. from their think- °

ing all possibility of an adverse résult in the trial court.

The’ uncertainties of the Jaw and of litigation are’ ‘still

to be reckoned with by any lawyer not - — none

‘enced or ingenyous. . be

In any’ everit, when ‘respondents filed theif” first de-

murrer the possibility that the facts alleged by petitioners j

might be held: not to state a cause of action was not,

then -beyond ordinary prescience.. That possibility became

a reality when, the demurrer was ‘sustained. Petitioners

by then must “have known that’ unless their’ complaint

was ainended in substantial particulars, judgment in the

trial court would go against them. They made no such

amendment. So, .another demurrer was ‘sustained, this

time without leave to amend. That made inevitable ‘the

‘thtry of a judgment against them unless the ruling#orf

the demurrer was reconsidered. | Jurisdiction, supra, PP.

(35; Statement of the Case, supra, -p. 15.)

If the contention that- such 4 judgment. would deprive

petitioners of constitutional: rights were ever to be made

the time—and the latest permissible time—to. make it had

arrived. The state practice provided a method by which

the contention: could have been raised in the trial. court

even at, that late date. [ Jurisdiction, supra, pp. 4-5. ] Peti-

tioners, however, did not avail themselves of it. : They

permitted judgment to go in accordance with wad ruling

on demurrer.

Their failure in this regard ca be excused by any

claim that the judgment of the trial rt cduld not have

been anticipated. At least during t between the

ruling on the second demurrer and the ac 1al entry of the

; tinea of dunia (a peried of over even wedee [R-

55)) there was nothing which had to be anticipated ;. the

“result, _absent a motion to reconsider; was an: accdéinplished .

and. inevitable consequence of that ruling, plainly fore- +

" seeable without possession of any gift of prophecy. ‘[See,

Herndon v. Georgia, 295 U. S. 441, 444-446 (1935);

- “Johnson v. New York Life. Ins. Co.; 187_U. S. 491, 495

(1903) ies er : \

Fourth: Actually, it is fair to say. that on the record ©

before this Court there is nothing to show that the federal

questions now argued by petitioners were ever raised

below—prior-to-the—petition- for-rehearing- in the District

Court of Appeal.. As we. have seen, they were not then :

entertained or decided. [Jurisdiction, supra, pp. 5-7 :

Point I, B, ‘supra, pp. 30-32.] When that is so, nothing is

better settled than the proposition that a federal question

comes too late when raised for the first time in a petition

for rehearing or in an application to the State’s highest

court to exercise its discretionary jurisdiction to review .

the case. [Consolidated Turnpike v. Norfolk: etc. Ry.

Co.,\228 U. S. 326, 334 (1913); Bowe v. Scott, supra,

*5In Herndon the constitutional question arose out of an alleged

change by the State Supréme Court ir the construction of a state

statute... The question was first urged on a petition for rehearing

in, the State Supreme Court. A ‘majority of this Court held the

question should have. been sooner raised because, while a motion

for new trial was pending in the trial court, the State’ Supreme

Court had refidered a decision foreshadowing the changed statu-

tory constructions So, the deféndant was “bound to anticipate .

the probability of a similar ruling in his owm case, and preserve

his. right to a review here by el as action. on the original -

hearing in the court below . = The case at bar is clearly

a much. stronger one for applicatj n of this, rule. In Johnson it

. was held that a claim of ony of the obligation of a contract,

precipitated by the trial court’s judgment, should have been - raised

“either on the motion for a new trial, or in the assignments of*

error filed in the Supreme Court of the State . .. .”

ee & ; ; —35— Der, | 5 / am

233 U. s: at. 663;-Radio Statian wow. Inc. v. Johnson,

supra, 326 U:.S. at 128; Mergenthaler Linotype Co. v.-

' Davis, 251 U. S. 256, 258-259 (1919); Herndon v.-

Georgia, supra, 295 U. S. at 443; Forbes v. State C oun-

cil, supra, 216. U. S. at 399; Loeber v. Schroeder, 149

U.S. 580, 585 (1893).] | e e.

Petitioners, of. course, ” contend that they ved the

' questions from the beginning in their briefs in the, Dis- .

trict Court of Appeal. [Br., 10-11] To this’ contention .

.~ there are several \answers. ;

1. ‘Even if-raised, the questions were not decided and

. did not have to be decided: Jurisdiction here cannot be

based. upon such a state of the record. [Point 5 ae

supra, pp. 30-32.] ae

2. The briefs are not part of, the record. A “claim '

of jurisdiction [cannot] be sustained by reference to

- briefs andystatements which are not part of ‘the record.”

{Lynch v. New York, ex rel. Pierson, supra, 293 U. S. at

54. Fe the same effect: Live Oak Watek_Usgrs’ Assoc.

_ v. Railroad Commission, 269 U. S. 354, 357-358 (1926) ; _

Harding v. Illinois, 196-U. S, 78, 84 (1904); Mutual ©

Life Ins. Co. v. McGrew, supra, 188 U.-S. at 308, Sud a

3. The references in the briefs did not properly raise

any question under the federal constitution, assuming: the

briefs to be part of the.record. They were not made in

‘support ‘of any claim, standing on its own footing, that

; petitioners had been deprived by the State of California

- of any constitutional rights. Rather, they were advanced

“as reasons why the trial court had erred in holding that »

“the burden to show want of justification or privilege for

the alleged interference with business relations was on

- more,-a good many of the references i in petitioners’ briefs

' the facts going to this question. °[Op. Br.,27, 21. (All refer-—

_ences* in this footnote are to the briefs filed by petitioners in the

___._ state andfederal laws .. . 18 U.S.C, Secs. 1, 2 [sic].

’ Art. I, Sees. 1, 13; U. S. Const. Amend. 14) . . 5” so that “it

- cannot he reasonably argued . . . that the burden to prove

te poner The District Court of Appeal however,

avalettiobn [R..77:] Accordingty; the

made up the bulk of_the briefs on both sides in the

it unecessary to deal with the subject of justifica-

arguments pro and con touching that subject—(and these.

District Court of Appeal )—were not considered. Further-

were of such generality: and imprecision 4s not to amount 4

to a tender. * any federal constitutional i issue in ‘fform |

= al

- <a

ee petitioners oni that the ed iiieaiins could

held prima facie privileged or justified; that the complaint —

tly alleged want of justification anyway; and that the trial

aaa had erréd in dismissing; their complaint without .a trial on

District Tourt of Appeal). ] In support of that.” proposition they

argued: Respondents’ “monopolistic control of em nt_op--

portunities in the industry runs counter-te-the-tetter “and or 5

[Op.. Br., 15]; that “it cannot be denied ‘that’ the right to a

a living ranks high in our constitutional system. (Cal. Const.

lack of justification, if there was such a burden, was not’ met by

the appellants here. The immunity granted to. the respondents by

the Court below operated to deprive appellants of their funda-

mental right: to a trial ofsissues palpably requiring determination” td

{Op. Br., 18, 21]; that there was no power in a_private combina-

_ tion -to assume the powers of government and even government

‘ would not have Bone to compel: waiver of constitutional rights

emp

as a conditic loyment [Op. Br., 21-28]; the - interest .of

respondents © ht t6 provide the justification for their conduct

was not as important as the constitutional privilege against ‘self- _

incrimination [Op. Br., 28-32]; and respondents’ purpose td ‘con-.

trol the political activities of their employees ran “counter to the

letter and spirit of constitutional provisions which even govern-

mental officials are forbidden to infringe . . .” [Op. Br., 36-42]

They ‘also argued that respondents’ claim that ‘they had a ‘right - to

- control the content’ of .their - motion pictures as a matter of

their right of free speech, was a strange sidhinntnae of the First

Amendment. [Reply Br., siaiinad

adequate to require a court ‘to take cognizance of it.” |

[Cf., Thomas v. Iowa, 209 U. S. 258, 263 (1998) ; New

York ex rel. Bryant v. Zimmerman, 278.U-S. 63, 67-68"

(1928). Ellis v. Dison, 349.'U.'S. 458, = (1955) J.

Cc ‘No. Federal ee Question felons. From é De-.

cision of Ptate Law by a State Court. Made in Accordance 3

. With Its Established Procedure,

) “First: No question_ under the. Fourteenth 7 ee

- arises” “from ‘the ground ‘upon which this case was de- ©

cided below, ‘even. if we assume ‘that this: :non-federal a

ground of decision was. wholly erroneous. That decision

‘was made, after notice and opportunity ‘to petitioners to

to be heard, in accordance with the State’s ordinary and.

_ regular procedure: The “Fourteenth Amendment did not

impair the authority of the States, by their judicial tri-|

bunals, and according:: to their settled usages, and estab-

~ lished modes of procedvre, to determine finally, for ‘the

parties before ‘t, controverted questions’ . . .* which

did not, involve any right secured by the Bodersl Consti-

ay [Tracy: VU, Ginzberg, 205 U. S. 170, 178

'(1907).] The opposite view would. make every judgment

of a state court reviewable. here,’ “which, as Mr. Justice

- Holmes said in the case just cited, would be “a result

"For example: (All references are to ‘petitioners’ bids. iri the

District Court.of Appeal): “. . . Respondents do not deny

that the right. to earn a living is , liberty protected by the Consti-

‘tution . . .” [Reply Br . .. this would not tMmean

that such artists had not Tak dencived of their right ‘to earn

a living by the coercive conduct’ of respondenf%.” [Reply Br.,

“ 38]; . . monopolistic control of employment . opportunities —

oe . Sruns, counter to the el and: spirit of state and federal

’ ranks high in our constitutional bystem, - Res . S. Const.

- Amend. 14) .” (Op. Br., 18]

‘

ae |

i: 393, 394 (1896) ; American Ry. Express Co. v. Kentucky,

_. supra, 273 U. S. at 273; Enterprise Itrig. Dist. v. Farm-

. the decision below was éerrofieous as a matter of state .

k 38 7 we 7 ne Co

aie tei thanign of . .'.” [Tracy v. Ginsberg, supra, .

— 205 :U. S. at 178. ‘ota cone aiien: Gryger v. Bae;

um U.S. 728, 731 (1948y.) - SP eared

tis settled that a state court decision .

actr & be caper eeo-ek hehe proceedings and

__ based_on-state law, does not deptive the losing party of

, due process or deny him equal protection ; and ‘that is so

even if f the detision is erroneous of inconsistent wi

earlier” state decisions. ' [Worcester Ce ounty Tr. Co,v..-

Riley, 302: U. S. 292, 299 (1937); Milwaukee Electric

Ry. Co. v. Mikwaukee, 252 U. S. 100, 106 a : Cen-:

tral Land Co, v. Laidley, 159 U. S. 103, 110- ‘Z (1895) ;

Arrowsmith v. Harmoning. 18 . U: S. d¥4, 195-196

(1886); Jowa Central Ry. Co. v. Iowa, U: S. 389,.

a ers Mut. Canal Co., supra, 243 US. a at 166°]

* Petitioners devote ‘considerable space to arguing ‘that.

‘law. -[Br. 25-31, 42-45, 9 93- -106.] As. the cases jyst cited

amply show, such an argument presents nothing of which

‘this Court may properly take cognizance. =

| Second: Even if the argument is \edgnizable amy, “ite

presents no substantial — féderal question. Certainly.

nothing. in ‘the Fourteenth Amiendment compels. a State —

- eithér. to recognize or to reject the common, law doctrine

“of interference. with busiriesyy relatigns ; or” having recog-

nized it, to limit or expand it in any way. [Cf., Ownbey

v. Morgan, 256 U. S. 94, 112 (1921).]. In this regard,

“as in most others, the State is freecto “alter, amend, or

abolish the common law within its jurisdiction .... .”

[Liberty Warehouse Co. v. —. id G. =e M.

~o, Silver 280 U. S. 117, 122 (1929); New York Cent. |

R. R. 0: v.. White, 243 U. S. 188, 198-200, 206 (1917);

Wi on Min. Co. v. Fulton, 205 U. S. 60, 74 (1907) ;.

+ v. MMinajs, 94 U. S. 113, 134 (1876).}

Y. So, too, the State is “free to adopt whatever economic

policy may teasonably be deemed ‘to ‘promote public wel-

Ce ee. [Nebbia v. New York, 291/U:.S. 502,-537

(1934).] \ It cannot be. assumed that, when this Court |

~ ejected what it called the “Loehner-Coppage-Adkins”

philosophy [ Day-Brite Lighting v. Missouri, 342 U. S.

421, 423], it did no pad ‘than to substitute the strait-

- jacket of one economie philosophy for another. If, there- =

- fore, the State of: California chooses to. say that it will

_ recognize a cause of action for interference with business

‘relations but only as to those who. have sufferéd inter--

ference in respect of an existing or reasonably prospective .

: there is nothing in the .due process clause. to

‘ stand . in its way. AGT. Arizona Employers’ Liability

Cases, 250--U. S. 400, 419-422 (1919).]

“By the same token, there is, nothing in the equal pro- #

tection clause to proscribe such a policy.- Equal protection

of the laws is. not denied by a classification .based: upon

differences between. the classes having a. reasonable rela-

tion to the subject matter and purpose of the ‘rule. (Jones

v.. Union Guano Co., 264 U.S. 171, 188 (1924); New

York R. T. Co. v. New York, 303 U: S. 573, 578 (1938) ;

Goesart v. Clearly, 335 U. S. 464. (1948); Railway Ex-

_ press Agency v. New. York, 336 U.S. 106 (1949).]

~ Here, the differences between the classes defined by the

‘decision of the District Court. of Appeal are apparent, aS

' pertinent and reasonable. On the one hand are those who

arn

ess

Yay

pha -

_tign. *

| eee ae 3 as .

hhave an existing Gr feasonably prospective business or

employment rejation. - On the, other, are ‘those who do

not. The former have a cause of action padtierecsti

_ interference with that telation, because they have an -

- immediate or existing interest which is adversely affected _ 7

by the interference. The others do not. have a cause of

-action, because they do not have such an interest ; sO,

they have not been adversely affected in the ‘same. way

as -the first class. This demarcation between the classes

"js, as’we have pointed out, pages 28-30, supra;

to’ differentiations which are: generally made in the law.

- It cahnut ‘Propérly be deemed. an unreasonable classifica

II.

The State Did Not Enforcé or Cueik Adherence. to

the Private: Agreement Here Complained of. “Its”

“« Only Concern With the Matter Is That It Has .

Not Acted. Affirmatively to Prohibit Such Agree--

ments. . Such Inaction Is Not State Action Within 3

the Meaning of the Fourteenth Amendment. |

- For the purposes ‘of this section of. our argument we

may assume, although the record does not bear out the —

assumption, that it was decided below that the combina-’ .

tion or agreement allegedly entered’ into by the respon-

dents was lawful under the law of California. Upon °

| that assumption the question with respect” to the Four-

‘teenth Amendment.is, obviously, whether in those ‘circum- _

stances the S tate has acted to deprive petitioners of due_

process of law or deny to them the equal protection of

the, laws. Consideration of the facts at bar in the light

of history and Precedent ae a negative answer to that .

question. . |

> ~ ¥ P .

| £ ‘y a ° —ti— —

First: The“ principle ‘has iensine firmly imbedded in

‘our constitutional law that“ the action inhibited by’ the -

first section of the Fourteenth Amendment. is only such

action as may fairly be said to be that. of the States.

° That Amendment erects no shield against merely private

_ conduct, however, discriminatory or wrongful - + «- So.

* Jong as the purposes of those [discriminatory] agree- |

ments are effectuated by voluntary adherence to their

‘terms, it would appear clear that there has-been no action

“State and the provisions of. the Amendment have

‘vy. S. 1, 13 (1948).¥]. .“; . . Individual invasion of '

"individual rights is not be subject matter of the amend- z

ment... .” [ Civil. Rights Cases, one 109 U. S. at

11 ha € oe

is . The reasons. for. this view cot the Fourteenth Amend-

ment are’ well known... They rest on more than a literal

reading of the - words. “No State” in the amendment.

They are based upon a sensitive regard for the kind of .

nation -which ‘the constitution created and -upon the con-

| _vietion that the opposite | view would result in- “suth. a

¢ . F re we

*8Among a - considerable iain of other debits to this: same* .

. general effect are the following: Barrows v. Jackson, 346 U. S..-

_ 249, 251, 253. (1953); Collins ‘v.. Hardyman, supra, 341 °U. S.

at 657-658; Civil Rights Cases, supra, 109 U. S. at 10-12; United

States v. ‘Harris, 106 U. S. 629, 638-639 (1882) ; Virginia v..

’ Rives, 100 U. S:.313, 318 (1879) ;. Screws v. United States, 325

US 8 :108-109;. 140 (1945) ; ‘Hurd v. Hodge, tng Ss. 2; ot -32

(1948).

_ Of the same nee are: nited-Statés . ae ‘elistinnh, 92

~'U. S. 542, 554 at Ollie 0-7 a supra, 341°U. S. at

658; Gregoire v. Biddle, 2: Cir., 177 F..2d 579, 581 (1949); |

Love v. handler, 8 Gir., "124 F. 2d 785, 786 (1942) : Bottone v.

. Lindley, 10 Cir., 170 F. 2d 705, 706-707 (1948) cert. den. 336

U.S. 944; Campo vw. Niemeyer, 7.Cir., 182 F. 24-115, 118 (1950). .

See, Courant v. International - Photographers, 9 Cir, 176 F. 2d -

1000, 1003 (199) cert. den. 338. U. S. 943.] :

cnnnitentan “ot federal power ‘in matters iecnerely

thought to be of local concetn as to overturn ‘federal .

system. That is a fact of history which this reso!

nized in the first case decided on the merits.under the.

Amendment [Slaughter House Cases, supra,, 16 Wail. at

77-78): and to = it has adverted on a _— many -

- otcasions since” = 1c

Ae econd: ‘This long held view: of the-scope of the Ariend-

- ment delimits the question | here. That question is not —

| ‘whether a line between the spheres of State. and Nation

_ For. cake:

Cases} had - ‘prevailed it is easy to see how far the authority and

independence of the States would have been: diminished, by-. sub-

jecting all. their legislative and judicial acts to correction by the

legislative and review by the judicial. branch of : the - National ...

Government. But we. need mot now inquire into the merits of the

original dispute.. This part at least of the Slaughter-House Cases

has ‘been steadily.adhered to by this court . . .% [Twining v.

New Jersey, 211 U. S. 78, 96 (1908).]

ae “This decision [United States v. Harris, supra, 106

U. 3 629] was in harmony with that of other important decisions _

during. that period (referring, among others, to.the Slaughter .

House Cases, supra, 16 Wall. 36,’ and the Crvil Rights Cases,

supra, 109 U. $.: :3]. by a Court, every member of which had

. been: appointed by Presidents Lincoln, Grant, Hayes, Garfield or

..Arthur—all indoctrinated in the cause which ~ produced: the -Four- -

teenth Amendment, but convinced that it was not’ to be used. to

Hardyman, supra, 341 U. S. ‘at 657-658. |

eect ‘The Fourteenth Amendment did hot alter the ‘basic

relations between the States and the national government. .

It is only staté action of a . latanaa chatacter’ that is prohibited

by the ata Amendment . . = crews v: he srtind S tates,

supra, 325 U.-S. 109.]

a! It .was not intended by the Fourteenth Amendment

that all matters formerly within the exclusive cognizance

of the states should become matters of national cor -ern.’ [Sn owden

v. Hughes, 321 U. S. 1, 11 (1944).] .

. See, also, Dorsey v. Stuyvesant Town, 299° ph 38 512,87 N. E.

2d: 541 (1949) cert. den. 339 U. S. 981. ;

if the views of ‘the iuinoriey [in the Slaughter House

oa be drawn a al tit tn tea itn nnn?

| pet o dra 4 at that Selck, howseur, would £0- :

quired an interpretation’ of the Amendment amounting to

ee ee ied one We eae.

«since the Slaughter House Cases. |

" Upon the assumption whieh was made at the Legttnling ‘

er could haye been decided below was that ‘no. positive

_law*or rule of decision ‘in California made’ unlawful. ae

actionable the combination or agreement of the resp

“dents. To the. extent that, that agreement had any a“

tiveness at alll it was because the parties to it voluntarily

adhered. to it. . The State courts did not enforce—they

& have never beeri.asked to‘enforce—that agreement.- They

, hes not. compel or order any of the parties to adhere to.

- They imposed no sanctions, civil or penal, upon any .

é the parties to compel or induce adherence to it. The .—

real complaint of petitioners, therefore, ‘is, and ‘it can-

only be, that the State has done nothing to aan such *~

ary private agreements, oe Oe

31Petitioners do not in so many. words seek reconsideration or

reversal of this line of. decision. ‘A % of their argursent,

'. however; would necessarily bring - about., just. that. result. ‘To.

find “state action” in the state’s inactipn here would push the

limits of federal authority farther than’ any decision of this Gourt °

has yet taken them, as we: shall‘ show in a thoment. At this point,

however, we may suggest that - the Civil ‘Rights Cases and the

others which have conformed to them are ‘as muich entitled to

U. S. 299 (1941) [see, Screws v. United States, supra, 325 U: S.

_ at 412-113] or Federal Baseball Club v. National League, 259

‘U! S. 200 (1922). sai Toolson v. ~— York Yankees, 346

-U. §. 356 ee :

What the argument of petitioners comes down to, then,.

_is that the State} by its inaction, has permitted such

agreements to be voluntarily thade and performed. If

that. is “state action” then all private ‘conduct not’ pro-

hibited by positive State law is state action. All private

conducg, not ‘so prohibited is, in this sense, “permitted”

by the state. Thus, it is plain—at least when fesort to.

a State court: for relief against such unprohibited private

conduct has proved futile because of the very fact that:

there i is no prohibition against it—that all private conduct

beconies state action and, therefor, subject to the Fottt-

~ teenth Amendment. That, to repeat Mr. Justice Holmes’

phrase uttered i in a not dissimiiar context, is “a result not: .

to be thought of . .°.”. [Tracy v. Ginzberg, su supra, 205

U. S. at i768? It is ‘not to be thought of because it

would for the first time introduce into the constitution

the. centralizing coriception of the Fourteenth Amendment

‘against which this Court and so was generally have -

ne nn... : —

*2It is not difficult to think of ,ordinary private activity, hereto-

fore never considered to be of. anything but local concern, which

would be ject to Federal legislative and judicial control if

petitione s’ “fheory were law. For example,- suppose that in a

State havirig-no prohibition against closed- -shop contracts all of the

employers in a given industry, not engaged in interstate commerce,

agreed, and induced each other to agree, that they. would employ

‘only members in good standing of a ceftain union. Employees

discharged for non-union membership.and other persons refused

employment for the same reason, would thus be effectively deprived

of their “right to work” at their chosen .callings. If such persons

brought an action against the employers, seeking relief in respect

of’ this “monopolistic” combination, and suffered a dismissal be-

cause no law of the state made such an agreement or combination -°

unlawful, petitioners” theory of the Fourteenth Amendment would

require a holding that in so deciding the. State court had deprived

the plaintiffs of due process and denied them equal protection.

The same would be true of a person denied admission to a-private -%

social club because of his race, religion or economic status: or of

‘

Third: The furthest limits in this. regard to which this

Court has been willing to go are fairly represerited, we

think, by Shelley v. Kraemer, supra, 334 U. S. 1, Bar- . |

_ rows v.. Jackson, supra, HA6 2. o 249, and Marsh ‘v.

Alabama, 326 U. S. 501 (1946)." None of them, how-

ever, goes far enough to support the position of petition-

‘ers at bar. There was in each of them affirmative action

by the State, through its courts or -its legislature, which

had the effect of putting behind the private agreements;»,

“er conduct involved: the coercive. power of the State »

through civil or penal sanctions. That is obviously quite —

a wai matter from the inaction which is -all that can

one denied admission to a fraternal or other ‘organization which’

restricts its membership. to persons of a specified religion or

country of origin.. The number of such examples is limited only

by the nearly infinite variety of private activity in which men

engage. All that it would take to make State action out of such

privaté conduct would be. the commencement of a lawsuit in the

State court and its: ultimate dismissal for’ failure to state a cause

of action. Of course, it no doubt would be found in n@py

cases that the conduct was justified or reasonable, and, therefore,

not a violation of the Amendment. :But that is not .the point.

The point is that the power of ultimate decision would rest in the

Federal judiciary; and, necessarily, in view of section 5 of the

Amendment, the power of control and bee suaeacccnd would reside

in the Congress.

Rice v. Sioux City icles Park Cemetery, 348 U, 'S. 880

(1954) affirming, by. an equally divided court, Rice v. Sioux Ci ity

Memorial ‘Park Gemetery, 245 Ia. 147, 60.N. W. 2d 110 ( 1953)

is of little help. Because of that equal division in the first instance

and. the subsequent rehearing and dismissal of the writ of certiorari -

_ [Rice v. Sioux City Memorial Park Cemetery, 349 U. S. 70.

(1955)], it canhot be taken as having settled the question one way

.or the other... The fate of that case in this Court does show, how- -

ever, that. the constitutional question with which we are concerned

‘is one which should not be reached except upon a record inex-

orably ‘calling for its decision. The case at bar is not such a

case, for the reasons to which we have adverted at length. [Point

‘I, supra, pp. 23-40.) In. this connection, we may’ properly notice

_ the traditional reluctance of this Court to reach constitutional

.¥ problems of grave import when it is not absoltitely necessary to

im do so. [See, ¢.g., Collins v. Hardyman, supra, 341 U.S. at 659.)

be ‘into to ) the State in the instant case. It is one

thing for a court to hold: : only that ho law of the State

prohibits voluntary adherence to. some private compact.

It is another matter entirely for a court, in addition to

so holding, to compel or coerce adherence to that compact

by injunction, an award of damages, or criminal punish-

ment. 7 ry. |

Petitioners’ main reliance on the issue of state action

seems to be Marsh v. Alabama, supra, 326 U. S. SOI.

' [Br. 16, 36-47] Whatever may be the sweep of some

. of the language appearing in the majority opinion in

that case, the actual holding was carefully limited to a

_ ground -which conforms “to conventional Fourteenth

Amendment doctrine. It cannot: be: overlooked that in

Marsh this Court was reviewing a judgment of convic-

tion under a. penal statute of thé State of Alabama.

That statute, as interpreted and applied. by the State

' behind the private conduct there complained of the whole

coercive power of Alabama’s: criminal law. It was,

therefore, much more than a case of state inaction; it

was a case of affirmative and effective legislative action

the State directed toward restricting the defendant’s

freedom of speech and religion. That is made clear by

the ‘following excerpts from the majority opinion: [326

U. S. at 505, 508, 509. Italics ours.] | |

‘é

For ‘it is the .state’s contention that the

. mere fact that all thé property interests in the town

~are held by a single company is enough to give that

company power, enforceable by a state statute, to

abridge these freedoms.

és

The managers appointed by the corpora-

tion cannot curtail the liberty of press and religion

of these people consistently with the purposes of the .

Constitutional guarantees, ‘and a state statute, as

the one here involved, which enforces such action by

criminally punishing those who attempt to distribute

- religious literature clearly violates the First and -

Fourteenth Amendments Ce

os ai oe . + * * -

the circumstancé that-the property rights

to the premises: where the deprivation of liberty, here

involved, took -place, were held by others than the

public, is not sufficient to justify the State’s permit-

ting a corporation: to govern a community .of citizens’

so as to restrict their fundamental liberties and the

enforcement of such restraint by the application of a

state statute. ‘In so, far as the State has attempted

to impose criminal ‘punishment on appellant for un-

dertaking to distribute religious literature in a com-

pany town, its action cannot stand. . . .

' Fotirth: Petitioners. also present the theory that ac-

tivities, of a private business which may be regulated —

| by the State because it is ‘affected with a public .interest,”

" become in some way state action. [Br., 39-47] That

_ theory was much more clearly spelled’ out in the historic

_ dissent of Mr. Justice Harlan in ‘the Civil Rights Cases,

supra, 109-U. S. at 37-42, 57-59, in which he drew upon

the discussion of the. concept of» business “affected with

a public use” in Munn v. Minois, supra, 94 U.S. 113.

But a great deal has happened. to that concept since: 1876.

‘However useful it may then have been to make palatable 5

the unpleasant, even hated, fact of- government regulation

of business, it has long sitice ‘served its purpose.** Today

all business, indeed, virtually all private conduct, may be

regulated by the State in the public interest, regardless

of, whether it is or is not affected with a public use in the

technical common law sense. [Nebbiad v.. New York,

_ supra, 291 U. S. at 537; Day-Brite Lighting. v. Missouri,

supra, 342 U. S. at 423-424.] Consequently, if the power

OF. regulation | were to~ be. made the criterion of state

"action, all, such regulable. conduct would meet the test.

The argument adumbrated by petitioners is merely an-

other way of urging adoption of that centralizing view

‘of the Fourteenth Amendment which. “never, since the

_ Amendment was adopted, has been able to command the

approval of this Court.

Fifth: While petitioners’ attack on the judgment below

as a denial of rights secured by the Fourteenth Amend-

ment: has taken a wide range it need not be answered

‘line by line. Unless the matters of which they complain

can be said to have been the product of some action by §&

eK,

- '4It is not out of place to’ observe that the reasoning of Mr.

Justice Field’s dissents in Munn. v../Mlinois, supra, 94 U. S-.at:

136, 139-143, 145-147, and the Slaughter Housé Cases, supra,

16 Wall. at 88-89—on their face apparently nothing moré than

a vigorous defense of the right to’ pursue the common: callings

and to hold private property without interference or restraint from

the State—supplied the materials from which was’ fashioned =

-stringently confined the area of State legislative activity in naaitiaes

of social and economic significance. A reversion to that philosophy, |

even though indirectly, coupled with that view of the séope of

the Fourteenth Amendment which did not prevail in the Cizil

Rights Cases, would indeed reduce the States to mere subdivisions a

or provinces of the national government.

35E xcept, perhaps, during that period when the Lochner- Coppage-

Adkins philosophy held, the ascendancy with a of this

Court. ; ’

“the State the Fourteenth Amendment is inapplicable. For

the most part, petitioners’ argument simply assumes the

iS disputed question in that regard; but’ their “assumption —

cannot be upheld for the reasons already noted. [ Point

II, supra, pp. 40-47. ] With the destruction ‘Of = as-

sumption, their argument: collapses.

Nevertheless, a few additional words may be said’ in

‘respect of some of their specific contentions. For ex- -

‘ample, they assert at length and‘in vafying phraseology

that they were denied’ the right to work except at the.

price of surrendering constitutional rights. [Br., 21-45,

92-98] But that denial, as their own discussion shows,

was the result of voluntary adherence to a voluntary pri-

vate agreement. To the support of their position they

cite a large number of decisions holding or recognizing

the rule that while a State may exclude a foreign corpo-

‘ration entirely it canriot condition admission upon a: denial

or curtailment. of constitutional rights. [For éxample,

Terral v. Burke Construction Co., 257 U. S. 529 (1922) : ,

Frost Trucking Co. v. Railroad “Commission, 271 U. Ss

583 (1926). ] We need not take issue with those deci-

sions, although they have not always mét with complete

approbation. Manifestly they\ deal with a réstriction on

the action of a State. That is far different from a limi-

tation upon private conduct which, even if arbitrary or

discriminatory, does not come. within the proscription

of the Fourteenth Amendment. [ Shelley v. Kracmer,

_ supra, 334 U. S. at 13.] For the same reason, cases such |

as Truax v. Raich, 239 U. S. 33 (1915), Takahashi v.

Fish and Game: Commission, 334 U.S. 410 (1948), and

the like, which deal with arbitrary ‘restrictions on the

right to work imposea by positive legislative enactment,

are ane beside the point.

Relying on Pretty much the same line of decision treat-

ing of so-called. “unconstitutional limitations” on the ad-

mission . of foreign corporations, petitioners strenuously

argue that they have been denied “access to courts of the .

tele so ie ae 36] It is impossible to understand

that argument. The cases cited.have nothing whatever to

do with the -proposition for which Ahey are’ offered.

Furthermore, petitioners had complete, access to the courts.

_ Their complaint was filed. Its sufficiency as-a matter

of law was carefully considered and determined: after

due notice to them and opportunity to be heard, at which. .

wa hearing they appeared. They had-the benefit of an appeal,

which: they took, and upon. which they’ were fully heard.

[R. 2, 29, 56 (fol. 153), 57,-63.] Surely, “access to the

courts” means no more than this. Most certainly it does .

not ‘mean that .a ‘suitor, defeated after a full and fair

_- hearing in accordance with the State’s ‘settled usages

and established rae of procedure” [see, Tracy v. Gins-.

“«berg, supra, 205 U.S. at 178 has been denied that access

simply. because judgment went against him.

Petitioners ‘assail the discussion in the opinion of ‘the

District Court of Appeal concerning judicial notice [Br.

87-92]. and the effect of .the facts so noticed on the

applicability of certain sections of the California Labor .

‘€ode. [Br. 104-106] Aside from the fact that this

was wholly a matter of the state law, it is conceded

fhat the decision below was not based on it. The con-

tention presents nothing for review here. po note 19,

supra, p. 17.]

They also attack the merits of the argument made by —

us below with respect to the matters establishing justifi-. -

cation for the alleged interference with business rélations.—

[ Br. 106-115] Perhaps the Fourteenth Amendment prob-

—

_ lems which they see in that theory of defense might have

“grisen had the State court based its affirmance of t

judgment of dismissal upon that ground. The question.

was never reached in the District Court of Appeal. [R.

77). It did not have to be reached. We assume that

this Court is not interested in rendering. what could only

be, in this regard, an advisory opinion upon an abstract

or moot question.

" Petitioners’ most vigorous and vehement. _argument is.

reserved for their attack on the-motives of. the House

Committee on Un-American Activities. ‘| Br. 51-59, 68-80]

This raises a question never before brought forward in

- the instant case. The argument is akin to that made in_

Watkins v. United States, 334 U.S. 178, 199-200 (1957)

—a case which, unlike the one at bar, necessarily and di-

rectly involved the legality of the Committee’s progedures.

The-argument was there disposed of as follows:

sé

‘But a solution to our problem is not to

be found in testing the motives of C ommittee mem-

bers for this purpose [exposure for exposure’s sake].

‘Their motives alone would not vitiate an investigation

which had been instituted by, a House of Congress

if that assenibly’s legislative purpose is being serv ed.”

* The‘ presence of some members and eunplonecs of the.

rams Committee as respondents here does not make out

“There is, the refore, no adequate recofd upon w which to base any

exploration of that question. Certainly* more. is needéd for an

informed decision. than the fragmentary excerpts from the record

of some hearings (with which. petitioners’ had nothing to do)

obviously carefully screened and selected to make a point. [See

“also, cases cited, note 20, supra, p. 19.] . In that.state of the record

we ‘do not think it necessary to extend an already overlong brief

with an analysis, correction or supplementation Of petitioners’

* materials, which, ike their material, would have to be based on

matters outside the record at. bar. ;

Sk og

Pees 7

a case. of state action. They . were not officers or: agents

of the State of California. As. agents or agencies of

the Federal Government it is not the Fourteerith but, the -

— Amendment which imposes any restrictions upon”

ae: Sheiley v. Kraemer) supra, 334 U. S. at 8-9;

« Courant v. International Photographs, supra, 176 F.2d

at 1001-1002, 1003.] No question under the. due process _

clause of om Fifth Amefidment has heretofore been raised

in this case.” ; oe : >

Sensis Raised: Which Are Outside the ions of

the Questions Presented by the Petition for Certi-

orari Should Not Be Considered.

. Petitiopers have discussed a fumber of other questions

dealing with asserted denial ‘of their right of free speech

and association under the First Amendmemt [Br. 51-80],

and of their” right to appear as a witness before Com-

. mittees of the C ongress and there invoke the self-i -incrimi-

_ nation privilege ‘ [Br. 81-87.] These, too, are new -ques- -

tions in .the cause. Furthermore, they dre outside the .

scope of the ‘questions presented in the petition for cer2

tiorari, as indeed are a number of. other questions dis-

cussed.” Nevertheless, we shall discusse them briefly.

aTWith respect to these res ndents the only. contention. peculiar

to them which petitioners raised below was that the doctrine of

governmental immunity from liability for torts did «not apply.

[Opening Brief in District Court of . Appeal, 42-44] That, too,

was a question not decided because it was not necessary to cote

“. fR. 77] .

%8Aside from one going to jurisdiction, the ouly oiniien pre-

sented ‘in the petition for a was whether the dismissal of

petitioners’ complaimt because ¢

or ‘prospective employment “was contrary to law and the supremacy

clause of Article VI of the: Constitution, deprived petitioners of.

their liberty without due process of law and denied ‘petitioners the

equal protection of the laws, in- violation of the equal protection

its failure to” allege an existing.

mnt

_.. First:. The fallacy in petitioners’ - ‘First Amendment

argument ‘is the same one whith vitiates their claim of

_denial of due process under the Fourteenth, "The First -

Amendment, which is. historically and literally a restric-

tion only upon the national government [Talton v. Mayes,

163 U. S. 376, 382°-{1896) ];.can. be applied to the States

only if the freedoms which it guarantees-are part of the _

due process secured by the Fourteenth Amendment: . The

denial of these’ freedoms, as with any other right secured

by the Fourteenth Amendgnent, must, therefore, ‘be found

in some action of the State... That vital element is wanting

here. [ Point II, supra, PP. 40-52.] e

If there: has been, an interference with First Amend-

‘ment freedoms shown in this case at all, it was not an-

‘interference by the State of, California. An interference.

brought sat by lawful, or even unlawful, private con- |

duct does not bring’ the Fourteenth Amendment into

play. [{Compare, Collins v. Hardyman, supra,. 341 U. S.

651. Also, the cases cited, notes 28, 29," supra, Pp. 41.]

! Actually, . petitioners’ argument in this respect is no -

more than.a-statement -of reasons which would justify a

State, as a matter of tr. in prohibiting conduct of

and due | process provisions of: the Fourteerith Amendment.” [Pet.,

3-4]: General as this language maybe it does not embrace such

questions as whether rights under the First or Fifth Amendments

have been violated; whether the Committee's motives or procedures

were proper and, if not, whether that gave petitioners any cause

of action; or whether the State courts correctly applied the

‘decisional law of the State. | Roth. v. United States, 354 U. S. 476,

_ 490, n. 27 (1957), with which compare the order granting certiorari,

Roth v. United States; 352 U.: S. 964 (1957).| Customarily, this

Court has limited its consideration to those questions presented by

the ition for, certiorari. geod v. Stein, 347 U. S$. 201, 208

(1954); National Licorice Co. v. Nat. Lab.' Rel. Bd., 309 U. S.

35), 357, n. 2 (1940); Irvine v. California, ow tv. S. 128, 129-

= (1954) ; General Talk Pic.Corp. v. U'estern Electric Co., WA

. S. 175, 177-178 (om:) ; 3

¢ 3 ?

= : .

the sort discussed. . It®does not, however, bear on the

_ question whether the State of California has deprived

these. petitioners “of any constitutional right secured to

them. cee. , | =

Secénd; We need not ee delat the questi whether,

2 notwithstanding: the supremacy:clause or the Fifth Amend-

.ment, a State may restrict or. confine the self-incrimina-

tion privilege secured by the Fifth Amendment. The

State of California has not attempted any -such restric-

tion; and nothing in the decision below put any approval

upon such an attempt had jit been tried. The “Court .

below did riot decide that the alleged. combination, deny-

ing employment to those who invoked that ‘privilege, was.

or was not lawful either under State law or Federal law.

Decision went off on other. grounds; making decision *

of the question’ to which petitioners address themselves

quite mmnncorssary. [ Statement of the Case, supra, PP. ,

15-17,] - .

So. far as the argument of petitioners depends on the

due process clause. of the Fifth Amendment, the ‘answer.

is substantially the same as has been given in relation to’

the Fourteenth. {Point II, supra, pp. 40-48.] The

_Fifth-Amendment does not create rights in one individual. ~

against another. It is directed against the actiofi of the

national government. [Corrigan v. Buckley, supra, 271

a collateral matter below, involved in the question whether respon-.

dents’ alleged interference with business was or was not justified in

the technical meaning of “justification” in tort law. The question

of justification vel non wads not decided: and so there was no

decision of any question under the Fifth Amendment or ~the

supremacy clause in regard to ‘the self-incrimiriation Privifege.

[Point II, Fifth, supra, pp. 50-51.) —° -

UL 5. at 330 (1926) : Courant v. International Photog-

raphers, supra, 176 .F. 2d’ at. .1003.]

Third: Much of petitioners’ argument is directed at

what they conceive to be the error of the decisjén below

as a matter of State law. [Br. 25-26, 27-31, 42-45, 93-

106.) The answer to that argument has already been

indicated and need not be. repented. ° [Point I, C, supra,

pp. lee Ng eae

‘Conclusion.

The writ of certiorari should be dismiased for. want °

of. jurisdiction. /Tf, however, it is determined that juris-

. diction of a exists, ‘the. judgment of the District

Cotrt ‘of Appeal should be affirmed.

' Respect futty submitted,

: _ Irvine M. WALKER, |

Herman F. SELVIN,

a for Industry Respondents.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.