Albertson v. Millard

• Decision Date: 30 July 1952
• Docket Number: Civ. A. 11623.
• Parties: ALBERTSON et al. v. MILLARD, Atty. Gen. of Michigan, et al.
• Court: U.S. District Court — Western District of Michigan

106 F. Supp. 635

ALBERTSON et al. v. MILLARD, Atty. Gen. of Michigan, et al.

Civ. A. 11623.

United States District Court E. D. Michigan, S. D.

July 30, 1952.

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Frank G. Millard, Atty. Gen. of Michigan, Edmund E. Shepherd, Sol. Gen., Detroit, Mich., Daniel J. O'Hara and Ben H. Cole, Asst. Attys. Gen., for defendants.

Lewis, Rowlette, Brown and Bell, Joseph A. Brown, Goodman, Crockett, Eden & Robb and Ernest Goodman, Detroit, Mich., for plaintiffs.

Before SIMONS, Chief Circuit Judge, and PICARD and LEVIN, District Judges.

SIMONS, Chief Judge.

The numerous constitutional questions raised by the bill of complaint pose the problem, whether the Legislature of Michigan, recognizing a substantial threat to the very existence of state and national governments, in the activities of the Communist Party of Michigan, may protect itself against it, by condemning the infiltration of its members into private and public employment, and into the public schools of the state, curtailing its subversive propaganda and advocacy of the overthrow of government by force or violence, when the Congress of the United States has already legislated with identical or related purpose. The solution of the problem involves the question, whether the Constitution of the United States by its carefully designed guaranties of individual liberty and due process has so tied the hands of the state that it may not take effective steps to avert this threat to ordered liberty in a time of great national crisis.

The bill of complaint assails the constitutionality in various aspects of the so-called Trucks Act, No. 117 Mich.Pub.Acts 1952, approved by the Governor of Michigan April 17, 1952, and given immediate effect. It seeks an injunction restraining state and local authority from enforcing §§ 4, 5, 7, of the Act, an adjudication that such sections are invalid and unconstitutional on their face, and in their intended application to the complainants, and such other relief as equity may require. A temporary restraining order issued. The defendants, responding to an order to show cause, deny the material allegations of the bill and a 3-judge court was constituted to hear and decide the petition for injunction, as required by Federal statute. Constitutional issues were fully argued and ably briefed with commendable restraint and in reliance upon reason and precedent.

Prior to the enactment of the Trucks Act, the people of Michigan amended § 22 of Article II of the State Constitution by defining subversion to "consist of any act, or advocacy of any act, intended to overthrow the form of government of the United States or the form of government of this state * * * by force or violence or by any unlawful means", Pub.Acts 1950, Ex.Sess., p. 133, declared subversion to be a crime punishable by any penalty provided by law, and to constitute an abuse of the rights secured by § 4 of Art. II, which prohibits the passage of any law abridging liberty of speech or of the press. Following the adoption of the amendment, the Legislature enacted Public Act No. 38 of the Public Acts of 1950, Cum.Supp. § 28.243(1) et seq., the "Little Smith Act", creating the crime of subversion and providing penalties therefor. That Act is not by these proceedings assailed but may be indirectly involved.

Of the sections of the Trucks Act specifically challenged as unconstitutional, § 4 defines a "communist front organization" as one whose members are not all Communists but which is substantially directed, dominated or controlled by Communists or by the Communist Party, or which in any manner advocates or acts to further the World Communist Movement and the Attorney General is authorized to prepare and cause to be published a list of all such organizations. Section 5(a) requires that each person remaining in the State for five consecutive days after the effective date of the Act, who is a communist and knowingly a member of a communist front organization, register with the State Police under oath and give pertinent information of the purpose of his presence within the State, features of identification, and other data. It also requires officers of the Communist Party and those of communist front organizations to register and disclose the location of their offices and meeting places, names of their members, financial statements reflecting receipts and disbursements, and other data, within thirty days after the effective date of the Act and imposes criminal penalties for failure to comply. Section 7 of the Act provides that the name of any communist or any nominee of the Communist Party shall not be printed upon any ballot used in any primary or general election in the state or in any political subdivision thereof.

At the very outset, we are confronted with the question, as to which, if any, of the cited provisions of the Trucks Act are brought into issue by the named plaintiffs. It has repeatedly been held that "one who would strike down a state statute as violative of the federal Constitution must show that he is within the class of persons with respect to whom the act is unconstitutional and that the alleged unconstitutional feature injures him." Heald v. District of Columbia, 259 U.S. 114, 123, 42 S.Ct. 434, 435, 66 L.Ed. 852 (Opinion of Mr. Justice Brandeis). To the same effect is Com. of Massachusetts v. Mellon, 262 U.S. 447, 488, 43 S.Ct. 597, 601, 67 L. Ed. 1078, where it was said: "The party who invokes the power must be able to show, not only that the statute is invalid, but that he has sustained or is immediately in danger of sustaining some direct injury as the result of its enforcement, and not merely that he suffers in some indefinite way in common with people generally." To hold otherwise "would be, not to decide a judicial controversy, but to assume a position of authority over the governmental acts of another and coequal department, an authority which plainly we do not possess."

This being the limitation upon our power to adjudicate constitutional questions, we look to the parties-plaintiff. They are Albertson and the Communist Party of Michigan. Albertson sues in his own right and as representative of the Communist Party, of which he is the secretary. Albertson does not disclose the authority of the governing body of the party to sue in its name. He does not claim to represent organizations that are merely communist fronts. He represents but a party whose members are all communists. Our conclusion is that no communist front organization is party to this suit, and that all provisions affectng communist front organizations or foreign communists who may come into the state, are not presently challenging the constitutional validity of the Act, and that all provisions relating to them must be disregarded and the bill as to them dismissed.

Joint Anti-Fascist Refugee Committee v. McGrath, Attorney General, 341 U.S. 123, 71 S.Ct. 624, 95 L.Ed. 817, has no bearing upon the present problem. There, the organizations which complained of the classification by the Attorney General of the United States expressly denied that they were within it. They presented a controversy which could be adjudicated under the constitutional grant of judicial power. Here, are no organizations claiming relief from classification as communists. The parties-plaintiff proclaim themselves communists. There may be provisions in the Trucks Act which raise grave constitutional questions. They are not here at the prayer of parties qualified to challenge.

The justiciable issues that remain are those in respect to the provisions of Section 5 of the assailed Act, which requires communists (as distinguished from members of communist front organizations) to register with the Michigan State Police and to furnish information as to communist organizations, and Section 7 which forbids the name of any communist or of any nominee of the Communist Party to be printed upon the ballot used in any primary or general election in the state, or in any political subdivision thereof. As in all cases where the strong arm of equity is sought by way of injunction, consideration must be given to whether enforcement of the statute will cause irreparable injury. If the Communist Party and its members are what the bill of complaint says they are, and seek only to enhance and secure the general social and economic welfare of the American people and provide protection for their civil rights and liberty, and if registration of its members would subject them to the penal provisions of the Little Smith Act and other statutes; would make them social outcasts and informers, then, of course, the bill sufficiently alleges that irreparable injury will be suffered by enforcement of the Act. It is no answer to this contention that the Communist Party has not appeared upon the ballot in Michigan since 1946. Political parties have on occasions sprung from small groups, and have been reactivated after lying dormant. This is not to say, however, that in the face of legislative findings and public knowledge the allegations of the bill in this respect must be taken as conclusive, and detailed consideration will follow.

Our attention at this point must be given to the contention that the Trucks Act is invalid because the Congress by the Internal Security Act of 1950, Public Law 831, the McCarran Act, 50 U.S.C.A. § 781 et seq., completely "occupies the field", to the exclusion of the exercise of state authority. We have been cautioned in Hines v. Davidowitz, 312 U.S. 52, 67, 61 S.Ct. 399, 404, 85 L.Ed. 581, that in considering the validity of state laws in the light of treaties, or Federal laws touching the same subject, expressions "conflicting; contrary to; occupying the field; repugnance; difference; irreconcilability; inconsistency; violation; curtailment; and interference" do not provide an infallible constitutional test or an exclusive constitutional yardstick. "In the final analysis,...