ESTABLISHING RULES OF INTERPRETATION GOVERNING QUESTIONS OF THE EFFECT OF ACTS OF CONGRESS ON STATE LAWS

THURSDAY, APRIL 28, 1955

HOUSE OF REPRESENTATIVES,

SUBCOMMITTEE No. 1 OF THE JUDICIARY COMMITTEE,

Washington, D. C.

The subcommittee met, pursuant to notice, at 10 a. m. in room 327, Old House Office Building, Hon. Michael A. Feighan, acting chairman of the subcommittee, presiding.

Present: Hon. Messrs. Feighan and IIyde and Hon. Miss Ruth Thompson.

Also present: Mr. Shattuck.

Mr. FEIGHAN. The subcommittee will come to order.

We have for consideration this morning H. R. 3 introduced by our very distinguished colleague from Virginia, Hon. Judge Smith. And we are very happy to have you with us this morning, Judge. (H. R. 3 is as follows:)

[H. R. 3, 84th Cong., 1st sess.]

A BILL To establish rules of interpretation governing questions of the effect of Acts of Congress on State laws

Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, That no Act of Congress shall be construed as indicating an intent on the part of Congress to occupy the field in which such Act operates, to the exclusion of all State laws on the same subject matter, unless such Act contains an express provision to that effect. No Act of Congress shall be construed as invalidating a provision of State law which would be valid in the absence of such Act unless there is a direct and positive conflict between an express provision of such Act and such provision of the State law so that the two cannot be reconciled or consistently stand together.

Mr. FEIGHAN. Judge Smith, the committee are very happy to have you with us and to have your comments on this bill.

Mr. SMITH. Thank you, Mr. Chairman, very much.
Mr. FEIGHAN. You may proceed.

STATEMENT OF HON. HOWARD W. SMITH, A REPRESENTATIVE IN CONGRESS FROM THE STATE OF VIRGINIA

Mr. SMITH. Mr. Chairman and members of the committee, I do not like to try your patience with a long discussion of a strictly legal proposition and while I know no way to avoid it because it is strictly a legal question and one I regard of paramount importance, I will be brief in my remarks.

1

In the early days of the Republic the Supreme Court of the United States established what was known as the preemption doctrine which is briefly this:

The Federal courts held and some of the State courts held that as long as Congress does not speak on any subject the State courts are free to enforce State laws on the same subject.

But that when Congress enacts a law relating to any subject of litigation that may arise by virtue of that act, whether the Congress says so or not, it is construed to be the intent of Congress that all State laws on the same subject are thereby suspended.

That doctrine was laid down early in the Republic.

Mr. FEIGHAN. I believe you refer to the case of Gibbons v. Ogden. Mr. SMITH. Yes. And earlier than that in the case of Hueston v. Moore. There the right of the State court to intervene was sustained. That was where the State court undertook to try a soldier by courtmartial. There was a good deal of debate about it in the court at that time. Mr. Justice Story dissented from the opinion of the Court which sustained the right of the State court.

Then comes the case to which you refer, Gibbons v. Ogden. In that case I think the whole thinking of the court on the subject was changed by the expression in the argument of Daniel Webster in which he said

the States may legislate themselves wherever Congress has not made a plenary exercise of its power. But who is to judge whether Congress has acted on its power? It has done all that it deemed wise; and are the States now to do whatever Congress has left undone? Congress makes such legislation as in its judgment the case requires. This leaves whatever shall constitute the system of useful regulation. It is not held in restraint. And that which the Congress has seen fit to leave free is a part of this regulation as much as the rest.

In that case the doctrine was first upheld.

Then came along a later case, Prigg v. Commonwealth and in that case Judge Story rendered the opinion and in that definitely held that when Congress acted on any subject the State laws were outlawed. But it is interesting to note that in that decision the doctrine was established by a vote of 5 to 4.

I would like it understood at the beginning that there is no constitutional provision that requires this to be done. It is purely a doctrine established by the Supreme Court. Congress can change the doctrine.

I think Congress has a sort of complex about the power of the courts with respect to the jurisdiction of Federal courts because when you examine the Constitution the Congress has almost unlimited power to fix the jurisdiction of the courts. There are only two classes of cases in which the Constitution gives the Supreme Court the power of original jurisdiction.

One is in cases between States and the other is with foreign ambassadors and ministers of foreign countries. These are the only two cases in which the Supreme Court has original jurisdiction.

Then it goes on to say the Supreme Court shall have appellate jurisdiction with respect to other cases covered by the Constitution with such exceptions as Congress may make. Congress can wipe out any phase of the appellate jurisdiction of the Supreme Court, with respect to the two cases I have mentioned where it has original jurisdiction.

Mr. HYDE. Mr. Chairman, Congress could not give the Federal courts power over any matter which was not within the express powers given the Federal Government.

Mr. SMITH. No. I did not say tl at.

I was not talking about the additional jurisdiction Congress could give. I am talking about the jurisdiction Congress can take away. But as to the inferior courts the Constitution provides there shall be such inferior courts as Congress may establish. But Congress, having the power to create these courts it has the power to destroy. Congress can do away with every inferior Federal court we have and establish some other system of courts. That power rests with Congress under the Constitution.

Now, the reason I am here at this time and the thing that brought this to a head and caused the introduction of this bill was a decision of the Supreme Court of the State of Pennsylvania.

There was a very notorious Communist named Nelson there. Pennsylvania, like 47 other States in the Union, has had for many years before Congress stepped into the field antisubversive acts of their own and under their act this man Nelson was prosecuted and convicted.

The case was taken to the Supreme Court of Pennsylvania on the theory that Congress, having passed the Smith Act had thereby suspended all State laws on the subject and the Supreme Court of Pennsylvania so held. There was 1 dissenting opinion in which 2 justices joined and I would like to file with the committee a copy of that dissenting opinion which is rather lengthy. That was by Justice Bell, concurred in by Justice Musmanno.

Miss THOMPSON. Judge Musmanno.

Mr. SMITH. Musmanno, yes.

(The dissenting opinion in the case of Commonwealth of Pennsylvania v. Steve Nelson is as follows:)

[154]

IN THE SUPREME COURT OF PENNSYLVANIA

WESTERN DISTRICT

No. 94, March Term, 1953

Commonwealth of Pennsylvania v. Steve Nelson, Appellant

Appeal from the Judgment of the Superior Court at No. 170, April Term, 1953. Affirming the Judgment and Sentence of the Court of Quarter Sessions of the Peace of Allegheny County at No. 764, October Sessions, 1950.

DISSENTING OPINION

Filed: JANUARY 25, 1954.

BELL, J.

Congress has never once said that Pennsylvania's law or any State law on Sedition was superseded or invalidated; the Supreme Court of the United States has never said so; if there could be any doubt on the question-and in my opinion there is none-it should certainly not be resolved in favor of freeing one of the top leaders of the Communist party in America, who has just been convicted of plotting the destruction of our Country.

Sedition has been a crime under the law of Pennsylvania since 1861. The defendant was indicted, tried and convicted under the Pennsylvania Sedition Act of 1939 (P. L. 872, 18 PS 4207-which reenacted the Sedition Act of June 26, 1919. P. L. 639). The Sedition Act makes it a felony "(a) to make or cause to be made any outbreak * * * of violence against this State or against the United States; (b) to encourage any person* * * to engage in any conduct with the

view of overthrowing or destroying *** by any force or show or threat of force the government of this state or of the United States."1

The analogous decisions of the Supreme Court of the United States, the preservation of the police power of every Sovereign State in the United States, andmost important of all-the protection, safety and security of our Country imperatively require that the Pennsylvania Sedition Act be sustained.

The majority base their Opinion upon two grounds-(1) Supersession, and (2) Double Jeopardy. They are both equally and clearly untenable.

I. Supersession.—California v. Zook, 336 U. S. 725 (1949); Bethlehem Steel Co. v. State Board, 330 U. S. 767 (1947.)

The Tenth Amendment to the Constitution of the United States provides: "The powers not delegated to the United States, nor prohibited by it to the States, are reserved to the States respectively or to the people." The Federalist (No. XXXII) in speaking of the delegation of State power to the Federal Government, said (page 143): “*** This exclusive delegation, or rather this alienation of state sovereignty, would only exist in three cases: where the constitution in express terms granted an exclusive authority to the union; where it granted, in one instance, an authority to the union, and in another. prohibited the states from exercising the like authority; and where it granted an authority to the union, to which a similar authority in the states would be absolutely and totally contradictory and repugnant. ***"

The majority opinion admits, as it must, that the Constitution does not grant exclusive authority to the Federal Government; it admits, as it must, that the Constitution does not expressly or even impliedly prohibit the States from legislating on the subject of Sedition; it merely claims that because Congress has recently legislated on the subject it thereby preempted the entire field of Sedition. This, as we shall see, is a non sequitur. Moreover, the Pennsylvania Sedition Act and the Smith Act are obviously complementary and not by the wildest stretch of the imagination can they be said to be contradictory or repugnant or conflicting.

The constitutionality of Pennsylvania's Sedition Act was sustained in Commonwealth v. Lazar, 103 Pa. Superior Ct. 417, 157 A. 701, appeal dismissed 286 U. S. 532, and in Commonwealth v. Blankenstein, 81 Pa. Superior Ct. 340; Commonwealth v. Widovich, 295 Pa. 311, 145, A. 295. In the latter case, several members of the Communist Party were indicted and convicted under a prior Sedition Act which was reenacted in 1939. This Court, after holding that the Sedition Act does not violate freedom of speech or any provision of the Federal Constitution, said (page 317): “* * * The legislature, under the police power, to preserve "the State's republican form of government, to suppress insurrection and to maintain the safety, peace and order of its citizens, may enact laws to suppress acts or attempts to commit acts of violence toward the government; it may prohibit the teaching or advocacy of a revolution or force as a means of redressing supposed injuries, or effecting a change in government. See Buffalo Branch, Mutual Film Corp., v. Breitinger, 250 Pa. 225; White's App., 287 Pa. 259, and cases there referred to. It is true that section 7 is a part of the Bill of Rights, but overshadowing these rights is the authority of the government to preserve its existence under the police power. Article XVI of the Constitution says 'the police power shall never be abridged.' This relates to all phases of its exercise. The police power is the greatest and most powerful attribute of government; on it the very existence of the state depends; 6 R. C. L. 183; District of Columbia v. Brooke, 214 U. S. 138; Bank v. Haskell, 219 U. S. 104; Eubank v. Richmond, 226 U. S. 137.”

In Worter Mills v. Textile Workers U. of A., 369 Pa. 359, 85 A. 2d 851, we said: “* * * It is well to recall that a State or other Sovereign has a paramount right and an inescapable duty to maintain law and order, to protect life, liberty and property and to enact laws and police regulations for the protection and preservation of the safety, health and welfare of the people of the state or community Carnegie-Illinois Steel Corp. v. U. S. W. of A, 353 Pa. 420, 426, 45 A. 2d 857; Westinghouse Electric Corp. v. United Electrical Workers, 353 Pa. 446, 460, 46 A. 2d 16.

""The power and duty of the State to take adequate steps to preserve the peace and to protect the privacy, the lives, and the property of its residents cannot be doubted': Thornhill v. Alabama, 310 U. S. 88, 105; Carlson v. California, 310 U. S. 106, 113. The sovereign powers of a State should be protected and sustained except where restricted by the Federal or State Constitution and except

1 Italics throughout, ours.

where an "intention of Congress to exclude States from exerting their police power [is] clearly manifested." ***': Allen-Bradley Local v. Wisconsin E. R. Board, 315 U. S. 740, 749."

In the Allen-Bradley Local case, supra, Mr. Justice DOUGLAS, speaking for a unanimous Court, said (page 749) "*** this Court has long insisted that an 'intention of Congress to exclude States from exerting their police power must be clearly manifested." Napier v. Atlantic Coast Line R. Co., 272 U. S. 605, 611. and cases cited; Kelly v. Washington, 302 U. S. 1, 10; South Carolina Highway Dept. v. Barnwell Bros., 303 U. S. 177; H. P. Welch Co. v. New Hampshire, 305 U. S. 79, 85; Maurer v. Hamilton, 309 U. S. 598, 614; Watson v. Buck, supra." In Auto Workers v. Wisconsin Employment Relations Board, 336 U. S. 245, 253, Mr. Justice JACKSON, in sustaining an injunction against a union by a State Court of Wisconsin in matters affecting interstate commerce, said: “* * * the 'intention of Congress to exclude States from exercising their police power must be clearly manifested.'"

In Rice v. Santa Fe Elevator Corp., 331 U. S. 218, the Court said (page 230): "Congress legislated here in a field which the States have traditionally occupied. See Munn v. Illinois, 94 U. S. 113; Davies Warehouse Co. v. Bowles, 321 U. S. 144, 148-149. So we start with the assumption that the historic police powers of the States were not to be superseded by the Federal Act unless that was the clear and manifest purpose of Congress."

In Reid v. Colorado (187 U. S. 137), the Supreme Court of the United States said (page 148): "It should never be held that Congress intends to supersede or by its legislation suspend the exercise of the police powers of the States, even when it may do so, unless its purpose to effect that result is clearly manifested. This court has said-and the principle has been often reaffirmed that ‘in the application of this principle of supremacy of an act of Congress in a case where the state law is but the exercise of a reserved power, the repugnance or conflict should be direct and positive, so that the two acts could not be reconciled or consistently stand together."

In Missouri, Kansas & Texas Ry. Co. v. Haber (169 U. S. 613), the question arose as to whether a Kansas statute which made actionable the transporting into Kansas of fever-ridden cattle was superseded by a federal statute which established a Bureau of Animal Industry charged with control of transportation across state lines. The Supreme Court of the United States held that this federal legislation did not override the state statute and said (page 623): "May not these statutory provisions stand without obstructing or embarrassing the execution of the act of Congress? This question must of course be determined with reference to the settled rule that a statute enacted in execution of a reserved power of the State is not to be regarded as inconsistent with an act of Congress passed in the execution of a clear power under the Constitution, unless the repugnance or conflict is so direct and positive that the two acts cannot be reconciled or stand together."

Kelly v. Washington (302 U. S. 1) sustained the validity of a state statute authorizing a state to inspect tugboats plying the navigable waters of the United States and in a unanimous opinion, speaking through Chief Justice HUGHES, said (page 10): "The principle is thoroughly established that the exercise by the State of its police power, which would be valid if not superseded by federal action, is superseded only where the repugnance or conflict is so 'direct and positive' that the two acts cannot be reconciled or consistently stand together' (Sinnot v. Davenport, 22 How. 227, 243; Missouri, K. & T. Ry. Co. v. Haber, 169 U. S. 613, 623, 624; Reid v. Colorado, 187 U. S. 137, 148; Crossman v. Lurman, 192 U. S. 189, 199, 200; Asbell v. Kansas, 209 U. S. 251, 257, 258; Missouri Pacific Ry. Co. v. Larabee Mills, 211 U. S. 612, 623; Savage v. Jones, 225 U. S. 501, 533; Atlantic Coast Line v. Georgia, 234 U. S. 280, 293, 294; Carey v. South Dakota, 250 U. S. 118, 122; Atchison, T. & S. F. Ry. Co. v. Railroad Commission, 283 U. S. 380, 392, 393; Mintz v. Baldwin, 289 U. S. 346, 350; Gilvary v. Cuyahoga Valley Ry. Co., supra).

Certainly it cannot be said that the Smith Act and the Pennsylvania Sedition Act are repugnant or conflicting and cannot be reconciled or stand together; it is equally certain that the Smith Act does not clearly manifest a purpose and intent to supersede or suspend or invalidate the sovereign police powers of a State.

An examination, nay, even a casual reading of the Smith Act, makes the following facts crystal clear and irrefutable:

(1) The Smith Act and the Pennsylvania Sedition Act are complementary and not repugnant or conflicting; (2) the Smith Act does not directly or expressly