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

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Brief of Industry Respondents
- **Published:** January 1, 1958
- **Citation:** 355 U.S. 597

## Text

_> 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
I.

“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,
IL

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

Ss
t

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., |

_ £. 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. —

a

: —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.” |

ae

‘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.

a

ithe.

B. The Decision of the State Courts.

1.

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”

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

ig
~

«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-

4

a federal question. [C a. WwW hite °v Ragen, supra, 324
U. S. at 766; Johnson v. Risk, supra, 137 U: S. at 307--—

e

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

AX

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

ny

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
© words, the argument is that the alleged invasion was
_ 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.

an

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,

_

4

*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

Mf

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

- the, right to — a ‘living ©
’ ranks high in our constitutional bystem, - Res . S. Const.

- Amend. 14) .” (Op. Br., 18]

a
‘

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

é

Sy

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
- not. been violated . . ng [Shelley © v. Kraemer, 334 —«
‘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.] :

Q

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

: centralize power so as to upset the: federal system.” [Coltine © v.
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

4

oa be drawn a al tit tn tea itn nnn?
| ip eager in Se stead or Siem at © point wich
| 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 ‘
of this section of .our brief ‘ [p. 40, supra] all that was ©
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 *~

a

7.

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
the benefit of stare decisis as was United States v.‘ Classic, 313 ©
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
court, had the direct and necessary effect of putting. ©
' 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.

as

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-

ge

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 =
“now rejected Lochner-Coppage-Adkins © philosophy, which |

-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. ;

a
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”

[Cf., Corrigan v. Buckley; 271 U. S. 323, 330 ©

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 : >

mo
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

7

%

3®Actually the matter of the self-incrimination privilege was only ©

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.

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385610_1055%3A08. Public record. Not legal advice.