mercial or social projects. Yet it is an association for as noble a purpose as any involved in our prior decisions."

At page 4590:

"In my view, the proper constitutional inquiry in this case is whether this Connecticut statute infringes the Due Process Clause of the Fourteenth Amendment because the enactment violates basic values 'implicit in the concept of ordered liberty,' Palko v. Connecticut, 302 U.S. 319, 325. For reasons stated at length in my dissenting opinion in Poe v. Ullman, supra, I believe that it does. While the relevant inquiry may be aided by resort to one or more of the provisions of the Bill of Rights, it is not dependent on them or any of their radiations. The Due Process Clause of the Fourteenth Amendment stands, in my opinion, on its own bottom."

At page 4594:

"In sum, I believe that the right of privacy in the marital relation is fundamental and basic-a personal right 'retained by the people' within the meaning of the Ninth Amendment. Connecticut cannot constitutionally abridge this fundamental right, which is protected by the Fourteenth Amendment from infringement by the States. I agree with the Court that petitioners' convictions must therefore be reversed."

"Mr. Justice White, concurring.

"In my view this Connecticut law as applied to married couples deprives them of 'liberty' without due process of law, as that concept is used in the Fourteenth Amendment. I therefore concur in the judgment of the Court reversing these convictions under Connecticut's aiding and abetting statute. "It would be unduly repetitious, and belaboring the obvious, to expound on the impact of this statute on the liberty guaranteed by the Fourteenth Amendment against arbitrary or capricious denials or on the nature of this liberty.

In Molofsky v. Bundy, 34 L.W. 2582, the Balt. Cir. Court said:

"Finally, a property owner has the right to enjoy the privacy of his home, without an invasion of this privacy even by peaceful picketing. As was said in Griswold v. Connecticut, 382 U.S. 479, 31 L.W. 4587, the Fourth Amendment creates a 'right to privacy, no less important than any other right carefully and particularly reserved to the people.' The First and Fourteenth Amendments have never been treated as absolute. Freedom of speech and press does not mean that one can talk or distribute where, when, and how one chooses. Rights other than those of the advocates are involved."

"When the right to free speech (which is not synonymous with picketing) is weighed against the right to privacy, the balance favors the privacy of the home. This is particularly true where the protest is directed against a legal right to obtain a liquor license through legal means." In Hughes v. Superior Court of California, 339 U.S. 460, in affirming an injunetion against picketing a store in support of a demand that the employer hire as many Negroes as white clerks, the court held (syl. 3) that the due process of law clause could not be construed as precluding the policy of a state against involuntary employment on racial lines by systematic picketing or violate the constitutional guarantee of free speech (syl. 2).

"2. Industrial picketing is something more than free speech, since it involves patrol of a particular locality and since the very presence of a picket line may induce action of one kind of another, quite irrespective of the nature of the ideas which are being disseminated. pp. 464-465."

"3. The Due Process Clause cannot be construed as precluding California from securing respect for its policy against involuntary employment on racial lines by prohibiting systematic picketing that would subvert such policy. pp. 465-466."

In Breard v. Alexandria, 341 U.S. 622, the Supreme Court in upholding a city ordinance forbidding the practice of going in and upon private residences for the purpose of soliciting orders for goods, without prior consent of the owners or occupants, held that the ordinance was not invalid under the due process of the Fourteenth Amendment (syl. 1, a and b).

"1. The ordinance is not invalid under the Due Process Clause of the Fourteenth Amendment. pp. 629–633.

(a) The ordinance can be characterized as prohibitory of appellant's legitimate business of obtaining subscriptions to periodicals only in the limited sense of subscriptions by house-to-house canvass without invitation. It leaves open the usual methods of solicitation-by radio, periodicals, mail and local agencies. pp. 631-632.

(b) The Constitution's protection of property rights does not render a state or city impotent to guard its citizens against the annoyances of life because the regulation may restrict the manner of doing a legitimate business. pp. 632-633."

In Hurd v. Hodge, 334 U.S. 24, the Supreme Court held at syll. 1 and 3, that a private conveyance of real estate in an addition to the District of Columbia "which forbids the rental, lease, sale, transfer or conveyance of land to any Negro, is valid, although not enforceable by the Federal Court; that the inhibition against discriminating in the sale of land is directed only to governmental action and does not invalidate private arrangements, as long as their purpose is achieved through voluntary adherence to their terms.

It follows from the above authorities that an Act of Congress which prohibits discrimination by a private person in the sale or rental of private property deprives the owner of liberty and property without due process of law, and takes private property without just compensation, in violation of the Fifth Amendment to the Constitution of the United States, just as such action by a state or municipality by such legislation would deprive the owner of liberty and property without due process of law under the Fourteenth Amendment to the Constitution of the United States. This is true where the property owner acts pursuant to a private agreement and where there is no contract it is also true because the individual is deprived of his liberty of choice and liberty to do unto his neighbors as he would have them do unto him. The individual's neighbors are likewise protected by the Fifth Amendment from being deprived of their rights to look to the voluntary act of any individual in the neighborhood in exercising a free choice of compliance with the contract or giving consideration to the rights of his neighbor.

The proposed housing provisions of the 1966 Civil Rights Bill introduced in Congress could not be supported by the Commerce Clause of the Constitution. This is true for two reasons:

1. Private housing and the sale or leasing of which is not a transaction in interstate commerce and has no connection with interstate commerce, which would give Congress the power to legislate against discrimination by a private individual under the Commerce Clause of the Constitution. The housing involved is located within the state and the transaction for its sale or rental would be a transaction within the state.

In Monamotor Oil Co. v. Johnson, 292 U.S. 86, Syll. 2 and 3, the Supreme Court held:

"A state may impose a tax on the local use of gasoline imported from without and collect it by requiring the importing distributor to report the amounts of his importations, account to the State for the corresponding taxes, as collecting agent of the State, and pass on the tax burden to consumers by adding it to the selling price."

"No unlawful burden on interstate commerce results from the circumstance that, in the application of this method of collection, the distributor may make preliminary payments in respect of imported gasoline which he intends at the time to export, or which he may afterwards in fact export, from the State, where, as in this case, he is entitled to a refund of such payments."

In Felt & Tarant Manufacturing Co. v. Gallagher, 306 U.S. 62, Syl. 1, the Supreme Court held where goods were sent from the vendor from outside of California directly to purchasers or agents for distribution to them at the price paid to the vendor in Illinois, the State of California was free to apply its taxes to sales of such tangible property for storage, use or other consumption in California.

In International Harvester Company v. Department of Treasury, 322 U.S. 340, Syl. 2, the Supreme Court held :

"Neither the Commerce Clause nor the Fourteenth Amendment precludes the imposition of a state tax on receipts from an intrastate transaction, even though the total activities from which the local transaction derives may have incidental interstate attributes."

In Montgomery Ward & Co. v. Antis, et al., 158 F. 2d 948, Syll. 2 and 3, the Court of Appeals for the Sixth Circuit held:

"The wholesale activity of a chain store organization is within stream of commerce within Fair Labor Standards Act until outstate merchandise is delivered to retail stores, and hence interstate transportation terminates when goods are placed on sale in retail establishment and sold to customers thereof. Fair Labor Standards Act of 1938, § 13 (a) (2), 29 U.S.C.A. § 213 (a) (2).”

"Employees in warehouse of chain store system who were engaged in loading, checking and dispatching retail deliveries to customers, receiving back incompleted retail deliveries, and handling clerical work incidental thereto, and those engaged in repair and servicing of merchandise for retail customers and in handling incidental clerical work, were engaged in a local retail activity and hence were not within coverage of Fair Labor Standards Act. Fair Labor Standards Act of 1938, § 13 (a) (2), 29 U.S.C.A. § 213 (a) (2).”

In the Supreme Court, certiorari denied 331 U.S. 811.

In State Tax Commission of Utah v. Pacific States Cast Iron Pipe Co., 372 U.S. 605, the Supreme Court held:

"Respondent, a Nevada corporation, manufactured in Utah certain cast iron pipe and related products to meet the specifications of specific out-of-state jobs. Delivery was made and title passed to the purchaser at respondent's foundry in Utah, and the purchaser hauled the material to the predetermined out-of-state destination. Held: Since passage of title and delivery to the purchaser took place within Utah, the Commerce Clause of the Federal Constitution did not prevent Utah from levying and collecting a sales tax on this transaction." 2. In the second place, even if interstate commerce could in some way be affected by the local transaction of sale, leasing or rental of local housing, the rights of the private owner of real estate to rely upon the provision of the Fifth Amendment that no person "* ** (shall) be deprived of life, liberty or property without due process of law" would prevail over the Commerce Clause. In United States v. Kress, 243 U.S. 316, Syl. 3, the Court held:

"The power of the Federal Government to improve navigable streams in the interest of interstate and foreign commerce must be exercised, when private property is taken, in subordination to the Fifth Amendment."

Indeed, all such powers reserved to Congress are subject to the Fifth Amendment.

In Louisville Bank v. Radford, 295 U.S. 555, 589, the court said at page 589, and footnote 19:

"Fourth the bankruptcy power, like the other great substantive powers of Congress, is subject to the Fifth Amendment.'

* 19

In Secretary of Agriculture v. Cent. Roig Co., 338 U.S. 604, 617, the court said: "However, not even resort to the Commerce Clause can defy the standards of due process."

In Breard v. Alexandria, 341 U.S. 622 (cited supra on the proposition of privacy of a home) held that the ordinance did not place a burden on interstate commerce in violation of the Commerce Clause of the Constitution (syl. 2, a, b, and c).

"2. The ordinance does not so burden or impede interstate commerce as to violate the Commerce Clause of the Federal Constitution. pp. 633-641.

(a) The ordinance does not discriminate against interstate business and is a valid local regulation of solicitation. Hood & Sons v. Du Mond, 336 U.S. 525, and Dean Milk Co. v. Madison, 340 U.S. 349, distinguished. pp. 633-641.

(b) Appellant, as a publishers' representative or in his own right as a doorto-door canvasser, is no more free to violate local regulations to protect privacy than are other solicitors. pp. 637-641.

(c) When there is a reasonable basis for legislation to protect the social, as distinguished from the economic, welfare of a community, it is not for this Court because of the Commerce Clause to deny the exercise locally of the sovereign power of the state. pp. 640-641."

19 For instance, the war power, ex parte Milligan, 4 Wall, 2, 119; Ochoa v. Hernandez, 230 U.S. 139, 153-4; Hamilton v. Kentucky Distilleries Co., 251 U.S. 146, 155. (The power to tax, United States v. Railroad Co., 17 Wall. 322; Boyd v. United States, 116 U.S. 616: Nichols v. Coolidge, 274 U.S. 531, 542; Blodgett v. Holden, 275 U.S. 142, 147; Barclay & Co. v. Edwards, 267 U.S. 442, 450 Heiner v. Donnan, 285 U.S. 312, 326. The power to regulate commerce, Monongahela Navigation Co. v. United States, 148 U.S. 312, 336: United States v. Joint Traffic Assn. 171 U.S. 505, 571; Carroll v. Greenwich Insurance Co., 199 U.S. 401, 410 United States v. Lynah, 188 U.S. 445, 471; United States v. Cress. 243 U.S. 316, 326. The power to exclude aliens. Wong Wing v. United States, 163 U.S. 228, 236, 237-8. Compare Perry v. United States, 294 U.S. 330."

LOTT & SANDERS,

Greenwood, Miss., June 25, 1966.

Hon. JAMES O. EASTLAND,
Hon. JOHN STENNIS,

U.S. Senators,

Senate Office Building,

Washington, D.C.

GENTLEMEN: I am enclosing with this letter to each of you a copy of the opinion rendered June 20, 1966, by the Supreme Court of the United States in the City of Greenwood, Mississippi, vs. Willie Peacock, et al.

The last four pages of this opinion set forth reasons why Congress should not enact Title IV and Title II of S. 2923. It occurred to me that these statements of the Supreme Court might assist you in bringing home to some of your colleagues the disastrous results which will follow the adoption of this legislation. In the Peacock case, the defendants in the criminal prosecution were attempting to persuade the Supreme Court to construe the present removal statute to be almost as broad as Section 402 of S. 2923 would make it; and each point that the Supreme Court makes as to the bad effect of such construction applies with even more force to the pending Civil Rights Bill.

In addition to the matters mentioned by the Court in the enclosed opinion, I would like to mention one further bad result of the enactment of Titles IV and II of the pending legislation.

It will make it utterly impossible for financial reasons for the vast majority of municipalities to either maintain or enforce law and order.

Under this legislation, any defendant charged with any offense from overparking a motor vehicle to murder can remove his case to Federal Court by simply alleging that he is engaged in advocating some civil right and that the prosecution against him was instituted for the purpose of punishing or deterring him on account of his exercise or advocacy of some civil right. That defendants will take advantage of this is shown by the statement in the enclosed opinion that 1,079 such cases were so removed in 1965 in the Fifth Circuit alone, and by the further fact that the small municipality of Greenwood, Mississippi, now has 134 of its Police Court cases pending in Federal Court.

Such removal will require at least one factual trial in Federal Court to determine whether or not the case is removable on the facts; and this trial will necessarily be lengthy because it involves not only the facts and circumstances of the offense but also the motives of the prosecutor. If it is determined on this trial that the case is removable, then a second trial will be required in Federal Court to determine the guilt or innocence of the defendant, and then perhaps an appeal from the result of that trail. If it is determined on the first trial that the cause is not removable, then under the Civil Rights Act of 1964 the defendant will have the right of appeal to a United States Court of Appeals. In most cases the Federal District Court sits some distance from the municipality. In addition to the expense of hiring attorneys in connection with these Federal Court cases, the municipality will have to transport numerous witnesses to the trail. As a City Attorney, I assure you that municipalities cannot bear this expense in con nection with its police court cases. It is not a question of the municipality not wanting to spend this much money. It is a fact that they do not have and cannot acquire such sums of money. For example, the City of Greenwood could not afford to try its present 134 cases in federal court, and it could not even attempt to bear this expense year after year in order to prosecute police court cases. Under those circumstances, there will be nothing for the vast majority of municipalities to do except to permit defendants to violate all of their laws, including traffic regulations, with absolute impunity. The only other possible way of enforcing its laws would be to have its policemen punish anyone on the spot for such violation, and that of course is unthinkable as it would take us back to savagery and the law of the jungle. Why anyone (except a person intent on wrecking this country) would want to take away from a municipality the ability to enforce law and order is beyond my comprehension.

I am sending a copy of this letter and of the enclosure to Senator Sam J. Ervin, Jr., of North Carolina, and to Congressman Thomas G. Abernethy. With best wishes and personal regards to each of you, I am, Sincerely,

HARDY LOTT.

(Greenwood v. Peacock is printed elsewhere in the appendix.)

EWELL'S-ST. PAUL,

THE METHODIST CHURCH AT CLAYTON, DELAWARE,

May 26, 1966. Senator SAM ERVIN, Jr., Chairman, Senate Committee on Constitutional Rights, Senate Office Building, Washington, D.C.

MY DEAR SENATOR: I write respectfully to voice my strenuous opposition to Senate Bill 3296 having to do with "Open" Housing.

Recently I have completed a term as Chaplain of the Delaware State Senate.' At least twice, in their wisdom, has our General Assembly voted down such proposals. Not only so, but I have sounded out a wide spectrum of the citizenry and Church laymen in this area. Strong sentiment against "housing" is over

whelming.

Speaking then for myself, for our Church lay-people and in accord with the expressed will of our legislators, I urge you and your Committee bury this newly proposed Civil Rights Bill. It is clearly an attack on the rights of private property without which there can be no human rights. And the inviolability of private property is forcefully taught in the Bible from Abraham, through Moses, Joshua and on into the New Testament with its teaching of the stewardship of property under God.

Thank you and may God Bless you.

Faithfully,

Rev. ADDISON L. SMITH, Pastor.