Earl Warren: -- versus Subversive Activities Control Board. Mr. Solicitor General.
J. Lee Rankin: Mr. Chief Justice and may it please the Court. Returning to my argument, I tried to give some further consideration to this problem of separability and see if I couldn't draw upon the decisions of the Court to find a case that might elucidate, illuminate the questions better than I have been doing. And I thought that it would be helpful to the Court if I would call its particular attention to the case of Electric Bond Company versus the Commissioner, in 303 U.S. 419. You probably immediately recall that that's the Public Utility Holding Company Act and it provided for a number of things in the Act and one of them was of course registration and another was that they file a registration statement and then there were a long list of other provisions that were also included in the Act. And a very bitter controversy occurred before this Court, which the petitioners in that case, claim that the Act was inseparable and that you had to construe all of the various provisions together. I make my position clear in this case on behalf of the Government, in telling the Court yesterday that the Communist Party alone could register. I did not mean to indicate that I was giving up, on behalf of the Government, any of the other provisions. I was trying to make it clear that I thought the Court had the duty, under the law and under its decisions, to take each part of the statute step by step and examine each part since there was a separability provision and determine the validity of each provision as it became ripe because of its properly coming before this Court under its decisions for determination as to each of the various portions. And I did not mean to indicate, if anyone misunderstood me, that the Communist Party should not be required to register on a statement as the next step after registering as a Party. And that then various other provisions of the Act would still be applicable unless this Court determined that they were unconstitutional or invalid in a proper case. In such event, and each one that the Court would strike down, would disappear from the Act but the rest of it would be enforceable. I also tried to indicate that I thought that this Court only has before it, limited issues at this time because the other issues were premature and not ripe. Now, in the Electric Bond and Share case, we have a case that is exactly parallel on this element of separability. I'm not saying for a moment that it involved a First Amendment problem. In this case, it does not but it does involve the -- the problem of whether or not, an Act has numer -- numerous provisions and whether those provisions should be treated separately when the Congress says so in how this Court should Act in such a matter and treatment.
Hugo L. Black: Did it involve the Fifth Amendment problem (Inaudible)
J. Lee Rankin: Well, Mr. Justice Black, I think it could've been in this regard. It -- the registration statement, of course, required all the kinds of information as I'm sure you are familiar with and a part of that, for example on the Insul Holdings, there are all kinds of fraudulent transactions alleged with regard to (Inaudible) about stock transactions.
Hugo L. Black: It doesn't mean setting up another action in fact?
J. Lee Rankin: No, I mean that -- that that was a factual situation that came -- that was revealed to the public in connection with the Insul and if --
Hugo L. Black: It required for them to deal in the future and the present facts?
J. Lee Rankin: Yes, but it also would probably give a lead to who the officers in the Insul Empire were in regard to all of these various transactions that were alleged to be fraudulent about the issue of the Insul stock, if you recall, at that time so that I think there was the problem of whether a registration statement would reveal, although it was not developed in the case as -- as decided by the Court.
Hugo L. Black: Was there evidence to suggest (Inaudible)
J. Lee Rankin: It was not suggested in this as far as the opinion of the Court rules, but it did deal with the question of separability and the duty of the Court to -- where there was such a provision like there is in this case to separate out a portion of the statute that was divisible and you said there was a presumption in that regard and it should be followed. And therefore, the statute was found to be enforceable and valid.
Felix Frankfurter: Is that – the case dealt with it, the case turned on?
J. Lee Rankin: Well, that's what I mean Mr. Justice Frankfurter. That was the heart of Chief Justice Hughes' opinion in regard to it and the contention was bitterly made that you couldn't consider a registration and the registration of statement as a separate matter, but you had to -- had to consider them altogether and the Court said, "That was not correct and that you should take those separately.
Hugo L. Black: I understood they were raising and may be I am wrong about it, the place is in fact different, possibly a district case. The argument here that I can gather to each of the problems is, what is decided in the Act in Communist Party in fact, amounts -- well, not expressly declare it to a direct money unequivocal practical outlawry of the political party, which at least, in some of the evidences is (Inaudible) small political party. The plaintiffs argue -- argued outlawry and that cannot be done. Only way I see it is to determine that it does not invade the Party and its outlaws and the criminal fee of the Party (Inaudible). The only way perhaps, that it grieves death certificates to see whether taken as a whole, it does amount with the three outlawing of (Inaudible) when illegal Act relates to Justice Stewart's opinion to -- I recall the Mr. Justice Brandeis -- if he made a crime but you couldn't go all the way to the bridge between them of speak and express influence, simply because some of the activities were illegal. I assume that that is done. And assuming that you can only find that out by looking at the whole Act and all of its statutes, how could the Court and members of the Senate merely to registration as the other Parties.
J. Lee Rankin: Well, Mr. Justice Black, in the Electric Bond case, it was claimed that that was a Death Sentence Act and all of these provisions were so extreme, including prohibition of use of mails for legitimate purposes that it would kill the Utility Holding Company. So the same parallel contention was being made and the Court said the examination should not be made on that basis. The question was to carry out the will of the Congress and deal with it on a separable basis and take each part and see whether that could be enforced in dealing with the problem.
Hugo L. Black: Do you have any other cases, as I understood, of that case under the light -- that case which did not refer to freedom of speech, prayer and proximity as far as I recall it and (Inaudible). The mere registration is met to providing or to make any changes as for the -- the other members to bring about a conviction.
J. Lee Rankin: Well, there were all kinds of Fifth Amendment claims in that case, but they were question of whether you take the property without due process but they were there and they were apparent that they were doing real damage.
Hugo L. Black: You prevent that case in disposing of the case.
J. Lee Rankin: Well, I think it is on the separability question.
Felix Frankfurter: Would the Court subsequently, if he was -- do you claim that other Fifth Amendments --
J. Lee Rankin: Well, it the expressed --
Felix Frankfurter: I don't mean -- I don't mean in this -- I don't mean the Electric Bond and Share but later to just (Inaudible) it's under (Inaudible) clause.
J. Lee Rankin: Yes, Mr. Justice and the Court said to all those questions to reserve --
Felix Frankfurter: I mean the -- those -- those were not privilege questions. They were -- being asked by this Court.
J. Lee Rankin: Well, I don't contend that they shouldn't be in this matter. They're all there.
Felix Frankfurter: And the plaintiff established what? What the issues were in the Electric Bond and Share or whether they weren't.
J. Lee Rankin: Yes.
Felix Frankfurter: I think it came out to affect, I don't know the cause and perhaps the validity of the death sentence which was refused to be passed on in Electric Bond and Share, is that correct?
J. Lee Rankin: That's correct, Mr. Justice.
John M. Harlan II: But I assume --
Felix Frankfurter: Unlike the -- I wish you could tell me what the metaphor of outlawing, what did any bearings that the Communist Control Act of 1954, in his statement, therefore, the Communist Party should be outlawed there if anything (Inaudible)
J. Lee Rankin: We don't think it has any.
Felix Frankfurter: What -- what does that -- what is -- what's the function? What purpose to that?
J. Lee Rankin: None at all, as far as the Government is concerned. It's merely a -- a recital of the statement by Congress, but it didn't act to do that.
Felix Frankfurter: And so instead the (Inaudible) is learning the fact. That's just the -- an exaltation or a belief, is that it?
J. Lee Rankin: That's right, Mr. Justice --
Hugo L. Black: Well, you argue here that any party -- any party that operates as a party, rather than act like just the Smith Act, as I understand you.
J. Lee Rankin: Well, let me try to --
Hugo L. Black: Incumbent practice as an outlawing.
J. Lee Rankin: I make myself plain on that, Mr. Justice Black. The Government does not treat this or believe that this is just a party. It thinks that the --
Hugo L. Black: I understand that, I understand you.
J. Lee Rankin: And that makes all of the difference in the world.
Hugo L. Black: Well, then it changes but -- but you can't change it by giving it a different label, can you?
J. Lee Rankin: No, we can by --
Hugo L. Black: And does -- does it -- does it or has it, or has it not and I'm not talking about in all of the claims. Has it or has it not as to provoked sought votes, sought members on public questions which -- which -- to some of which is said to be wholly illegal but has it or not, acted in that respects and that element was there as a party?
J. Lee Rankin: Yes.
Hugo L. Black: As a political party.
J. Lee Rankin: And presumably, it has done lawful acts as well as unlawful act.
Hugo L. Black: What I'm getting at is this. We've said that the reference to the littering in the streets that there are other ways to prevent littering in the streets that bars freedom of speech and press. You could go after the direct act to consider. Does this -- do these laws (Inaudible) make it legal or illegal (Inaudible) is not a punishment of what the Congress wanted to do, tried to do, to outlaw the parties which burdens on it that make it impossible to act in the Party to any of the things that the Party is doing. Do you believe that it could possibly act through the Party, with these things, these laws, I think.
J. Lee Rankin: Well, I think it could do -- it could act as a party, yes.
Hugo L. Black: How?
J. Lee Rankin: But I think that it would have --
Hugo L. Black: How could they manage to check what's presented to your members?
J. Lee Rankin: Well, he could continue to --
Hugo L. Black: Wouldn't it be better to meet the case in on to put on something down. Congress has intended to the Communist Party, it imposed sanctions that amount to outlaw (Inaudible). It is not singled out action which it has -- it has imposed, although it hasn't said so but in doing that it can place the burden as to the burden which would seem to bond from doing all of the -- to the business of the Party, would have to be the function. Tactics, no -- no tactics as that there is no (Inaudible). How could it function as a party?
J. Lee Rankin: Well, the Congress was not trying that issue that it's just a party and I'm trying to --
Hugo L. Black: And I -- I understand that, I agree with that (Inaudible) My question is based on that assumption. Did it believe and said that was -- that they engaged in business of advocating some kind of reason at all, whatever it was to the old law of this Government by the Court upholds toward the staff and that's the reason that Congress had -- as I read the Act and sought to make it impossible to (Inaudible). Perhaps, someone may have thought, as was suggested by distinguished citizens that it would find the outlaws, would violate the Constitution. Whether it could be done, simply, by imposing the sanctions of the burden and they did impossibly and that is -- is the form of sanctions. I'm not criticizing it as to that but isn't that what we have to meet here in this case and taken as a whole that this Act, insofar the various threats hanging over to all these sanctions, but the operation of it is advised.
J. Lee Rankin: Well, I think that you have to assume what Congress provided that it had to be a -- a party that was dominated and controlled.
Hugo L. Black: I -- of -- of course. Of course --
J. Lee Rankin: -- by a foreign country.
Hugo L. Black: Of course.
J. Lee Rankin: And that it --
Hugo L. Black: And it maybe that that is what would save its constitutional analysis that allowed the foreign (Inaudible) and the outlaws. But what I'm saying is, why (Inaudible) -- why not meet the case or can say that this Congress has had, does it outlaw the party because insofar -- far (Inaudible) and because it's perfect eventually that this (Inaudible). Why not meet that constitutional issue which is plainly in it to mean --
J. Lee Rankin: I think you have to recognize the separability decision too which -- and ends by the Congress, so as to carry out whatever there is of the statute that you consider to be valid because that's a part of it.
Earl Warren: But General, if we -- should -- if the Court should disagree with you on the question as to whether the First Amendment problems and the Fifth Amendment problems aren't before us at the present time. Suppose we should conclude that all of those problems are before us, would we then proceed with the -- with the -- your separability theory in accordance with the case you have cited and still do justice to the case.
J. Lee Rankin: I think we could, Mr. Justice -- Mr. Chief Justice. I think that in the first place, I have not tried to indicate -- I thought the First Amendment problem was here but I thought it was in regard to each separate part of it, as there is a First Amendment case in a registration and the registration statement. I don't want this -- help you to understand that I don't think there's any First Amendment involved.
John M. Harlan II: Could I ask you one question and -- and I -- as far as I'm concerned, I hope you cover the individual sanctions.
Earl Warren: I wonder if I can -- I think you may have to, unless --
John M. Harlan II: I beg your pardon.
Earl Warren: Unless you have to (Inaudible) please the Court.
John M. Harlan II: Sorry.
J. Lee Rankin: Well then, I think you would have to view it in each question when it becomes right. If the registration statement is answered and they sign in their names and don't raise any Fifth Amendment problems, I don't think you have any question or problem in it whatsoever. They have a right to come in and sign their names, say they're officers, say who the members are, what their finances are, and that's their legal right under the law and this Court has so held.
Earl Warren: But General, my point is -- is this that suppose the Court disagrees with you on that and believes that both refers to the Fifth Amendment problems of the officers and members of the organization are before us as they were in NAACP then would you still say that -- that we could impose the separability clause in a manner that you have indicated what was done under the -- the case you cited.
J. Lee Rankin: Well, of course the -- if you would determine that it couldn't considered that way, then I would think you would decide that Congress is dividing for separability, although they've tried to do it, could not lawfully do it. I think that's the way you would have to decide what you're asking me now. And that you know they said that it was separable but you couldn't find if they were separable as a matter of constitutional law. In that case, you would have to go further. What I'm trying to say is that in this case, exactly the same distinction was made and the Court rejected, and said it had to do if it could, what Congress said and take it piece by piece. Nor to that answer because I'm trying to --
Earl Warren: Well, I -- I didn't think there are any Fifth Amendment problems in that case.
J. Lee Rankin: Well, there were claims --
Earl Warren: -- because I didn't -- I didn't --
J. Lee Rankin: A different kind of Fifth Amendment.
Earl Warren: -- I didn't really believe there were any First Amendment problems --
J. Lee Rankin: No.
Earl Warren: -- in the case either.
J. Lee Rankin: No.
Earl Warren: Now, and my point is specifically this. Suppose this Court was of the opinion that those problems are before us in this case, can we then adopt the reasoning of that case in this one, and determine separability.
J. Lee Rankin: Well, I think you can as to certain phases of it. For instance, I think you might well think -- consider that First Amendment was in the provisions in regard to registration and the Fifth Amendment might be in regard to some. But then you got the problem of the registration statements and whether or not the Government can ask for the information and you have not said, as I read the case, that they can't ask for the information. And you say -- and you have said they can't compel the information. Therefore, until you know whether someone is going to invoke their privilege or give you the (Inaudible) the Government the information, you don't have the case ripe for decisions before the Court and I don't think you reached that particular point, although you reach others.
Felix Frankfurter: Mr. (Inaudible), I think you and the Chief Justice understate there are (Inaudible)
J. Lee Rankin: Sorry.
Felix Frankfurter: -- in determining whether the Fifth Amendment was or wasn't involved in the Electric Bond and Share. The privilege against self-incrimination provision of the Fifth Amendment was not involved. The Due Process Clause of the Fifth Amendment was involved.
J. Lee Rankin: I think I said that -- I tried to say and I --
Earl Warren: I so understood you, yes.
Felix Frankfurter: Well, it -- it can't be subject if Fifth Amendment was not involved because it wasn't involved.
J. Lee Rankin: Yes, Sir.
Felix Frankfurter: In regard to the issue that came before it on the merits and you have the statute label, so the Fifth Amendment was as much involved there, in here or different portions.
Earl Warren: We're talking about self-incrimination in this case throughout, not any other portion it has said.
J. Lee Rankin: I think so.
John M. Harlan II: I don't want to take up any much of your time but answer this question, putting aside the Fifth Amendment claims in a -- on a question of sanctioning, assuming if we were to accept your argument that we should not reach any of the sanction, would there be any other factors other than the factors which are present now that would -- present in the adjudication of the sanction (Inaudible)
J. Lee Rankin: Well --
John M. Harlan II: Basically, your basis that aren't equally before us now.
J. Lee Rankin: Well, on some of them, there wouldn't and in some there would --
John M. Harlan II: Which ones?
J. Lee Rankin: On the registration, I think the facts would be very important.
John M. Harlan II: Oh, registration, I'm talk -- I'm talking about sanctions distinguishing it --
J. Lee Rankin: Well, I think that many of those might be right for adjudication in a declaratory judgment, the action and --
John M. Harlan II: Well, aren't they equally ripe now? But why aren't they equally ripe now?
J. Lee Rankin: Well, as to those who are members and apply for a passport for instance, you have the problem of whether or not there is a law outstanding at that time that then was -- was triable which is the constitutional right to having a passport and how you will interpret that provision and -- and how the application of the regulations to that provision might be made. I think that those questions, according to your holdings in the past and all you've reserved until they come before you with a Party who was asking for that particular relief. Well, then when some organization claims it on their behalf, I don't think that any of your cases would sustain your -- a passing upon that kind of question in this context. Now, time after time, people appeared before this Court asking you to pass on constitutional questions. You say we'll never reach that question because you have to and it seems to me, all of those sanctions would have to be treated under those holdings as you adhered to when they come up, depending upon on the context in which they're presented and not reaching out to get them decided in this case when they're not necessary.
John M. Harlan II: Alright, this is the question originally. Now, they say this is the question, a part of the Constitution attack here (Inaudible) the -- that this (Inaudible), it's part of the Constitution in terms under registration provision.
J. Lee Rankin: Yes, but it doesn't appear that it's necessary to a decision in this case that those sanctions be passed upon now until that particular case comes up, just like in the Holding Company Act when the death sentence provisions were passed upon when they came up by an independent procedure.
Hugo L. Black: As I recall it (Inaudible) that -- that the -- as I recall it, the basic idea of inseparability is one of them. If we look to see, we'll have enough time. And we have certain things that apply to a part of the Act, as I see it, (Inaudible). You can't get to various parts of it (Inaudible), except there has to be one paragraph that may have stated, the Communist Party requirement, could stand up to something (Inaudible) or statement where you register under this Act.
J. Lee Rankin: Yes, Mr. Justice --
Hugo L. Black: What if they would -- you thing that was a good decision for the no name, nor anyone would take somebody's statements (Inaudible) with the Communist Party's statement, now, with registration. If you're asking (Inaudible) orders for that, do you say that's one thing that's a bit of -- that that could -- if you make the standing alone, is that what you (Inaudible)
J. Lee Rankin: Well, I think it's clear they did.
Hugo L. Black: What would they get Mr. Solicitor General if they all have from the act of local -- of an action and say it's Communist Party (Inaudible) without any -- any officers (Inaudible)
J. Lee Rankin: Well, you see the act provides for the registration without this kind of a hearing too, voluntary registration and the Congress was willing and happy to have that if they could get it.
Hugo L. Black: To have what?
J. Lee Rankin: A voluntary registration without any trial merely a -- a mere recognition by the Party.
Hugo L. Black: To that effect, (Inaudible)
J. Lee Rankin: Yes.
Hugo L. Black: It's all they wanted.
J. Lee Rankin: They -- they -- no, not at all.
Hugo L. Black: Well, do you think -- do you think it's anybody that was (Inaudible), they have much confidence. As in that, provided nothing in the file in the paper by somebody and signed, maybe by (Inaudible), it has something to Communist Party to statement of registering. Is that what the argument you made just today (Inaudible), I think part of this.
J. Lee Rankin: Well, I don't want to be misunderstood to say that they need a responsible act which --
Hugo L. Black: I'm not talking about being responsible. You just suggest it in a way that it would be a responsible action. You just -- if they just emphasized statements, pre registering. That does have -- under the act, you could include the statements insofar as the (Inaudible) one of them is that and the other was (Inaudible)
J. Lee Rankin: All I can say is what Congress did say and it was -- it very -- it very clearly said that they could satisfy the requirements of registration by coming forward itself without a trial or hearing or anything else and say, "We do register." That was one particular section of it and they wanted that, and it meant a lot because it would be a recognition that this party --
Hugo L. Black: But on your -- on your argument before to this case, I assume that everything they say is standing -- that we consider nothing else in the world except one provision, it means no more than that pre registering. And we say it's best that the separable parties and that makes it -- we had the (Inaudible) and that would be the -- we can (Inaudible) it to that is fairly treatment, an act of Congress (Inaudible)
J. Lee Rankin: Well, I didn't say it's --
Hugo L. Black: How about 10 years, in separate facts.
J. Lee Rankin: I didn't mean to say that that is the only Party that the Government is contending as valid.
Hugo L. Black: I understand that.
J. Lee Rankin: The Government is contending for all of that but it does take the position that -- that with the separability clause, you take section by section and see what you can sustain under the law and that it was -- would satisfy one of the purposes of Congress. It's very important to have them just come forward and say, "We register with nothing more." Another purpose was to get information in the registration statement and I think you can properly and should consider that separately -- separately. And that the Government can ask questions and they don't have to answer, which this Court has said. They can say this will incriminate us, we don't answer or would tend to incriminate.
Hugo L. Black: Your argument (Inaudible) that we should consider it all (Inaudible) on the question of (Inaudible), it's under attack.
J. Lee Rankin: Well, I -- only make that argument and saying, if you find that they can't do more, you can say that much is valid, but I don't want to be misunderstood to say it that I -- I'm not urging that you find much more than that valid. But I say that Congress said and I can only resort to their words, and I think the history is plain and I think the Court in this case, Electric Bond and Share, said, "We turn to that language and it was contended by counsel that you look at the legislative history and Congress wouldn't have -- have urged any -- passed such a bill with just the registration." That same argument was made and they said, "Look at the legislative history," and the Court said, "Look at the language that Congress said."
Hugo L. Black: And they have then resolved the question of whether or not that would confiscate their properties at a reasonable familiarity than the -- and I do not believe that it was impossible to say at that time under the Act (Inaudible) where they confiscated enough -- it confiscate, once they found out how they did it. Therefore, it was the Government but I understand that it was far more subject to the matter there.
Felix Frankfurter: Could I ask you -- inappropriate --
William O. Douglas: (Voice Overlap) and put down ultimately to the question, I suppose and in these case, of whether any words of the Electric Bond and Share opinions I have used, the various parts are so interwoven that you -- you must know how to disposes of the one question of treatment or treat more than just that one (Inaudible)
J. Lee Rankin: Yes, Mr. Justice.
William O. Douglas: I think those words were interwoven.
J. Lee Rankin: I guess but -- I think that if you read that opinion and you examine it again, I'm sure you would agree that it was expressly said -- said by the Court, that the duty of the Court was to try see if it wasn't separable and make it such because Congress said so. That's where you start. You don't start in the other presumption. So it seems to me, with that kind of a presumption, if you have duty to see if you can't make any portion of it standup alone. Now, you might find you couldn't and that's something else again.
William O. Douglas: My difficulty is that once a registration statement of the form of -- prescribed by the Attorney General if filed with all the data, a lot of other things come into play. We know, state laws, loyalty boards, Boards of Education, state laws that disqualify people from holding though a certain jobs, would seem to come into play. There's a radiation from it that that is very pronounced, isn't that -- wouldn't that be true?
J. Lee Rankin: I think there is -- the radiation that you describe is involved in the Act. I think you could say that certain portions are valid without allowing the -- the other to come into play and that's what I mean by taking step by step to see whether it's here and if it is here, whether it's necessary and if it's invalid, you leave what you can to itself.
Felix Frankfurter: You see (Inaudible) as to these questions on the assumption that you will permit them that the legislative history of the Public Utility Holding Company has. Do you mean by that, the report doesn't -- submitting (Inaudible) Congress in the long, long debates in those (Inaudible) and I would like to ask you whether you think, and on reading those debates and those reports, you are prepared to say that Congress would've been satisfied that all Congress wanted to that elaborate process with which one is familiar in that particular legislation and that all that Congress wanted is to establish instant right, a letter saying I am the boss of this holding company.
J. Lee Rankin: Well, Mr. Justice Frankfurter, I can't answer the question with the assumption because I'm only familiar with the newspaper accounts at the time and I haven't examined that history. But from the newspaper accounts, it was clear that Congress wanted more and that was the argument that was made in this particular case and the Court rejected it saying, "We'll turn to the language of the separability clause that governs our duty and we'll follow."
Felix Frankfurter: Now, the next question I want to ask you, whether you think that with reference to the death sentence statute to the very main important which was involved in the death sentence statutes, whether you think there were no radiation with reference to that Act flowing from the fact of registration, whether the -- the opportunity to the -- in the national market, whether the relationship between either corporate bodies of the great Insul Empire, etcetera, etcetera. Whether no radiations in that situation?
J. Lee Rankin: Well, there's no question that there were on the burden of the argument of the petitioners in that case, was that the radiation for such that -- that registration in itself was part of -- only a part of what the Congress wanted and these other steps were up -- attached to it and bound to do them such injury. And of course, the recitals in the legislation, the purpose of it were the terrible evils that the Public Utility Holding Companies were to indicate what the Congress was trying to do. I think that was clear that there were plenty that would flow from the mere registration and the filing of the registrations.
Hugo L. Black: Plenty of what?
J. Lee Rankin: Plenty of radiations as to other effects.
Hugo L. Black: What injury? What constitutional injury (Inaudible) think can find it that's declared to them of that by confiscation of the property if -- if they meant to choose, provided in the Act to abolish the (Inaudible)
J. Lee Rankin: Well, when you say except that, that's pretty involved in the Section.
Hugo L. Black: But what if anything else but that?
J. Lee Rankin: No, but they argued that they were taking their life away and taking their properties --
Hugo L. Black: Yes, that's right. That's right.
J. Lee Rankin: -- in effect and all of these property would be destroyed of tremendous values.
Hugo L. Black: Can you think of any way that their property would -- would be taken except by registration? Can you think -- would that have barred them from using the (Inaudible)? Would it have barred them from getting acted up? Would it have destroyed them, though financially to mere registration?
J. Lee Rankin: The failure to register add a penalty that they couldn't use the mails and that was upheld, right in the same case.
Hugo L. Black: Yes, but they -- they got -- they got around that by registering.
J. Lee Rankin: Well, that was --
Hugo L. Black: What -- what would follow -- what would follow if they register, that would be dangerous to this? Would they lose the right if they registered? To a -- in fact there are so many things, I can't remember them all, but was there any, as to their restraint of possible (Inaudible), the kind that there is here. They would suffer from the mere acts of registration.
J. Lee Rankin: Well, in the climate of those days, I'm sure that registration --
Hugo L. Black: I'm not talking about the climate. What did the Act provides --
J. Lee Rankin: Well, registration would --
Hugo L. Black: -- that we've done to them by merely registering?
J. Lee Rankin: Registration in itself, Mr. Justice Black, would have all of the reflection and the bad effects of being a Public Utility Holding Company --
Hugo L. Black: Would it bar -- would it bar them from using mails?
J. Lee Rankin: Well, if they fail to register --
Hugo L. Black: I'm talking about registration.
J. Lee Rankin: Well, but I think you (Voice Overlap) seen in the others.
Hugo L. Black: What would've happened to them -- what was the injury? Is it -- is it clear to them by registering under that Act by registering alone? What property would have been taken from them? Would they have lost the -- the various lives of tax deductions, or any of the things like that that have provided them this Act by registering?
J. Lee Rankin: Well, I think the registration would be an acknowledgment that was involved in the -- in the other files.
Hugo L. Black: Well, I -- I understood you to say the separate and that Court held that was separate. It wouldn't involve and they could attach that later. By registering, they did not injure themselves. According -- under the constitutional claims there, they didn't think it barred them from all these things. It's barred them from injury.
Felix Frankfurter: Practically, what would have happened? The fact that --
Hugo L. Black: Yes, and I -- I'm not --
Felix Frankfurter: -- if anything have happened --
Hugo L. Black: I'm not speaking about the truth.
Felix Frankfurter: -- administering into will be that. Would he -- nothing would have happened.
J. Lee Rankin: No, (Inaudible)
Felix Frankfurter: It's market is financing one of those and I'm just -- just saying that (Inaudible) will be call on just the same. The evaluation of it is changed, would've been just the same?
J. Lee Rankin: Well, the claims were that as immediately as the one that registered, they would lose all the tremendous values.
Hugo L. Black: I'm talking about is, what does the Act provide by law that could be done to them, the way they (Inaudible) from doing anything of any kind or any nature by registering. What did the act say, will be a legal consequences that will destroy your business by mere registration.
J. Lee Rankin: I don't think the Act said in itself that by registration, there would be further consequences. Now, in the same case law, the Court said that the registration was statement is also valid separately. And they -- and that certainly would reveal all kinds of things that would have damaged them and adversely affected the values of their properties. It isn't personal rights but it is property rights that they were contending for.
Hugo L. Black: As a matter of law.
J. Lee Rankin: It's very real.
Hugo L. Black: It is a constitutional right if they are (Inaudible)
J. Lee Rankin: Yes.
Hugo L. Black: I'm -- I'm -- It's not what I'm -- not what I'm talking about. I'm talking about the legal consequences of the registration. Here, you admit, I thought they would be barred from various things that you get practical (Inaudible) what other (Inaudible)
J. Lee Rankin: Well, they would --
Hugo L. Black: When -- when -- why else would it be (Inaudible) registering? They would not register alone.
J. Lee Rankin: They would be barred from getting the contributions from government employees and they would also have to make a disclosure on their -- their label, their publications that they were communist -action organization. That much they would also have.
Hugo L. Black: Acted up to the (Inaudible)
J. Lee Rankin: Yes and the tax deduction of course, were a matter of grace (Inaudible) and whether they were entitled to exemptions and on behalf to --
Hugo L. Black: So that's separation here, treating this as the only thing that we consider, these consequences don't come which are incomparably away from the legal -- legal consequences provided by the Act and those that were the form -- that would have (Inaudible) on the whole sense.
J. Lee Rankin: I want to try to answer your question frankly, Mr. Justice Black.
Hugo L. Black: If that's not correct, I'd like to know why.
J. Lee Rankin: You're treating the registration as being -- as being a separate part when this case treats both the registration and the requirement of a registration statement as being separable parts that could be sustained separately.
Hugo L. Black: I'm talking -- what I'm talking about here is, is it not – is it not true that if they had merely come up and say, "Sign a statement or somebody's going to pay for it because we probably have thought you appeared here by race." Would that -- are there any consequences such as acts of the Government and so forth that would have to be a part of (Inaudible) under the Act which would practically destroy their ability to continue what they're doing of the Party. That was not legal consequences under the wholly (Inaudible) of the Act on registration alone.
J. Lee Rankin: I think there is left, the distance between the two.
Hugo L. Black: Do you see this claim that, there's no relevance.
J. Lee Rankin: No, I -- I do think, Mr. Justice Black, that it's unreal to say that these people weren't -- wouldn't be hurt under the Public Utility Holding Act by a registry, but it's not --
Hugo L. Black: Well, they're about to have certain by passing the Acts.
J. Lee Rankin: Well, it is not the legal consequence that you're asking about but certainly, the mere fact that registering would have its impact upon the value of all their property.
John M. Harlan II: In all of the questions, whether we decide the sanctions now or whether of the statute that he can build, whether values has a priority to impose the elements -- the elements of --
J. Lee Rankin: Well, the ultimate question of whether if you will abstain.
John M. Harlan II: If the sanctions are good and Congress had the power to pass on the outlawry claim, has no dependable distance to that saying.
J. Lee Rankin: hat's right, Mr. Justice.
John M. Harlan II: So that the ultimate question whether we review the sanctions as it is viewed now or whether we view them piecemeal as they arise, ultimately, the question you have to decide in either instances whether the sanction is justifiable to -- to his constitutional (Inaudible) in this sense.
J. Lee Rankin: That's right.
John M. Harlan II: Isn't it?
Hugo L. Black: And view all of the sanctions together, amounting to the outlawry, whether you call it so or not, if he had a question of outlawry.
J. Lee Rankin: I don't think so, Mr. Justice.
Hugo L. Black: Even if all of it amounts to that?
J. Lee Rankin: No because -- because I'm saying you slice off one-half from another --
Hugo L. Black: Yes, yes, as I understood.
J. Lee Rankin: -- you may not agree with that but I'm trying to make it clear, what I think the Congress said and if you think that out of eight sanctions, eight --
Hugo L. Black: Well, the reason I asked that before is, you answered the question which said the outlawry would have nothing to do with the -- all the claims and is a matter of -- you answered that here and as I understand you to make your -- make your claim. But -- the question would still remain if all the sanctions to that -- and as well as all of them amounts on outlawry of all the activities of a political party and whether that could be constitutionally be done.
J. Lee Rankin: Well, I didn't understand the question in that way. I think that if you would say in -- in your question as I understand -- your question now that the accumulation of all of them makes it impossible for them to do any lawful acts.
Hugo L. Black: That's right.
J. Lee Rankin: Then you still have that problem. I agree that you would.
Hugo L. Black: Would -- would --
J. Lee Rankin: But I don't agree that that problem is in the case because I -- I contend, on behalf of the Government that this is not lawful action and I say it's comparable to your situation in an antitrust case where there is a conspiracy, say, a group get together or by persons and they agree in writing to conspire to restrain trade and they put down the various acts they're going to take and amongst that are a number of acts that are lawful that no one could take offence to but they will contribute to the conspiracy and if they proceed to do any of those acts, this Court has said, "You can't proceed to do lawful acts to accomplish an unlawful purpose." Now, you might not agree that that is the -- what we have before the Court here, but that is the concept and I think it's a valid one. And I think that when they take peace for instance or when they say, "In Soviet Russia today we have a free press." They're not talking the same language that we are and when they say that kind of thing or when they say they're -- they have peace, they're for peace, they use that as a means to accomplish their -- their objective and their purpose to support this foreign power and you can't use lawful means for that illegal purpose. Now, that's the difference whether you agree with it or not, but I'm trying to point out and I don't think that you can use advocacy either for an unlawful purpose if you tie them together, trying to carry out that unlawful purpose. I think that's the problem in the case.
Felix Frankfurter: That -- I meant to ask you just for clarification in view of your answer to Justice Harlan's question, namely, whether isn't it a fact that the question on this separability gets down to whether the Court decides the matter now or later. And use, if I may take them, if I correct it said, yes, it does get down with the Act. And I don't want to stop this but the fact that it may happen to decide it later, justify deciding it now.
J. Lee Rankin: Well, all I know is what I read in your cases in this Court and constantly, those cases said, "You don't decide constitutional questions until you reached them."
Hugo L. Black: Not as a matter of choice but as a matter of usage.
J. Lee Rankin: That's right. In principle to have them before you in that form that you'll consider this. And I think time after time, you've said that not to instruct the lawyers but because it's basic to the function and to the duty that you perform on behalf of the country.
John M. Harlan II: And Suppose the assumption to the that is here now, whether you carve it up or (Inaudible) up or you could package it that denies the distinguished constitutional question that the individual members, independently in the organization that were raised. It's a different problem. But the First Amendment question is right here whether you carve it up or whether you deal with it as a package in here.
J. Lee Rankin: I think I can --
John M. Harlan II: So you're not postponing any First Amendment question.
J. Lee Rankin: I said that a number of times, Mr. Justice Harlan but I wasn't saying the First Amendment question was not here.
John M. Harlan II: Yes.
J. Lee Rankin: But I did want to make it clear on the other constitutional questions if they're properly here. I'm not saying this Court shouldn't decide --
John M. Harlan II: Wouldn't you say -- wouldn't you say that their summary of this whole discussion is that either courts with a permissible cause for the Court to adopt, the Court of Appeals shows to regard this as a package and their -- their view can be expressed -- that judgment to be equally well postpone adjudication? And could adjudicate the sanctions if you wished to, but either course would be permissible.
J. Lee Rankin: But the fact that the Court of Appeals adopted, shows that other people disagree but the Government does not think they're here now.
Felix Frankfurter: But that isn't what was done when we said and ruled in the Electric Bond and Share. It is not a choice. It doesn't (Inaudible) to the whole Court to the legal instructions and said when -- when validity is in question, divisibility and not integration in the (Inaudible) and I don't know what it means to say the First Amendment to could (Inaudible) what you want. It's here after requiring it to registration by the Communist Parties.
J. Lee Rankin: That's right.
Felix Frankfurter: And everything that derived from that in relation to the First Amendment could (Inaudible) and to talk at large that the First Amendment could see it, it is not analyzing the problem as I see it. A First Amendment problem is here but not the First Amendment problem (Inaudible)
J. Lee Rankin: Mr. Justice Frankfurter, I wanted to be clear that I was not saying to the Court there was no First Amendment problem before the Court. But I do say that it is limited, and should be taken step by step as to every single respect to it.
Felix Frankfurter: That means, as I understand you that First Amendment claimed by individual on the separability clause not --
J. Lee Rankin: That's right. That's our position.
Hugo L. Black: Do -- do the order require individual (Inaudible)
J. Lee Rankin: Not at this point.
Hugo L. Black: What would you say about an individual?
J. Lee Rankin: It directs the Party to register. That's the effect of the --
Hugo L. Black: (Inaudible) can you think off?
J. Lee Rankin: You -- you see the -- the whole Act that I was trying to describe is conceived of the idea of reserving the question of the individuals and the individuals, when the Party has to act, then are given a time in which to try to get out of the Party if they decide to do so.
Earl Warren: Mr. Abt.
John J. Abt: Thank you Mr. Chief Justice. May it please the Court. Yesterday, an answer to a question from Mr. Justice Harlan, I stated that the question of the privilege would drop out of the case if the Act could be construed as permitting the filing of an unsigned registration statement. I was wrong. The question would still remain on the case because Section 7 (d) requires a statement to list the names of all officers and members of the organization, and Section 15 (b) punishes omissions from the statement. Thus, if an officer or a member of petitioner prepared a statement, he would be obliged to incriminate himself by listing his name as such even if he didn't sign the statement. Again, that the state -- statement was submitted by a lawyer, as Mr. Rankin suggested, the lawyer would have to get the names of the officers and members from one of them and the latter would have to incriminate himself by furnishing his name to the lawyer for inclusion in the statement. Hence, there is no escape in this case from a question of the privileges.
Hugo L. Black: (Inaudible)
John J. Abt: Someone would have to give him the books and in doing so, identify himself as an officer or a member of the organization who had possession of the books and that in itself would be the findings.
Felix Frankfurter: But to say this, would you say the parties hopes he hasn't surrendered them.
John J. Abt: We do -- we will examine our brief on the question of wide services in the discussion length during Mr. Rankin's argument, I think you'll find that -- and distinguished by them -- let's. I'd like -- I only have a -- what?
Felix Frankfurter: But how do you distinguish it?
John J. Abt: I have only one moment, Mr. Justice Frankfurter and I'd like to come to the second point. Mr. Rankin urges that the Court should not pass upon the sanctions now but should await criminal prosecution for their violation. But once the order is affirmed, the sanctions have immediate and devastating consequences from the organization by writing that the way its members through making them ineligible for jobs, passports, making them subject denaturalization of what not, and drives away its contributors and supporters and that it even drives away its potential audience. Thus, if the sanctioned -- as that aren't passed upon now, the patient will die before the doctor arrives. The organization will be destroyed before the validity of the sanctions would have passed upon and in this aspect this case is entirely different from Bond and Share. The heart of the Public Utility Holding Company Act was the so-called death sentence of Section 11. Of that which required, under certain circumstances, public utility companies, when ordered to do so by the SEC to dispose off their operating companies. But that this sentence never came into operation without an administrative hearing before the Section, with all kinds of opportunity for judicial review. And when Mr. Justice Frankfurter used the Court in your time have finally got around to testing on the validity of a sentence. You were reviewing an administrative determination made after an administrative hearing and the judicial review in the Court of Appeals.
Felix Frankfurter: Aren't we reviewing here?
John J. Abt: Here -- I could --
Felix Frankfurter: Aren't we (Inaudible) here the determinations of the Board and men of the Court?
John J. Abt: Yes, but they're quite different, Your Honor. Here, the sanctions of the Act automatically go to effect as a result of the registration order. In Electric Bond and Share, the registration order was a first step and the Court -- Mr. Justice Hughes discussed the so-called incidence of registration. What he didn't discuss and what he said were reserved for later, was a death sentence which didn't go into effect as a result of registration, didn't go into effect until there was a full hearing before the Section -- an order by the SEC and judicial review. That's the difference.


Warren E. Burger: We will hear arguments next in number 71-1069 Associated Enterprises against Toltec Watershed District. Mr, Burgess you may proceed whenever you are ready.
Henry A. Burgess: Mr. Chief Justice, may it please the Court. This case is before this Court on appeal from the mandate of the Supreme Court of Wyoming affirming a judgment which was entered by the State District Court for Albany County, Wyoming. The mandate and the judgment of the State Court found that certain Wyoming statutes providing for the creation of a Watershed improvement district do not violate the Equal Protection clause, the Fourteenth Amendment United States Constitution. This action was commenced by the Toltec Watershed Improvement District which is organized under the provision of the Watershed Improvement District Law of Wyoming seeking the entry upon the lands belonging to the associated enterprises for the purpose of surveying and drilling a dam site. Preliminary to the construction of a dam. The lands involved are owned by Associated Enterprises that are under lease to the Johnston Fuel Liners. Johnston Fuel Liners as lessee was not allowed to vote in the election which created the district.
William H. Rehnquist: Mr. Burgess where in the record is there a finding by either the Trial Court or Supreme Court of Wyoming that Johnston Fuel Liners was a lessee from Associated Enterprise.
Henry A. Burgess: It is in the appendix Your Honor.
William H. Rehnquist: Where about. The reason I asked is that I did not find in your stipulation of facts. I found it in questions and answers submitted in interrogatory form but I did not find any finding at least in my study either by the Trial Court of the Supreme Court of Wyoming that assumed it as a fact.
Henry A. Burgess: On page 19 of the appendix, there is a stipulation of the facts, and Paragraph 3 says that Johnston Fuel Liners is not a land owner. As defined by WS 1957 so forth, and although given notice at the time and place to the referendum had no legal right to vote and did not vote. That was in the stipulation of the facts. This case was not actually tried. It was submitted.
William H. Rehnquist: (Inaudible) At least the Johnston Fuel Liners almost having this based on the land.
Henry A. Burgess: That is correct. They alleged that they are in possession of the land and then there was an order and judgment from which the appeal was taken and on page 24, in the interrogatory, and interrogatory number 3, has thus used, starting from bottom of the page 23 and we go down through the interrogatories, the second interrogatory says that they commenced using lands in 1959. The use was continuous since 1959 to the date of the answer of the interrogatories. Interrogatory number 4 says, Associated Enterprises had purchase some cattle in 1969, around the cattle and lands in Toltec District, then in entry or interrogatory number 5, it talks about the lease agreement between these two companies and the exchange of use of various lands.
William H. Rehnquist: Okay this is Johnston Fuel Liners position I realize, but how are we to know that either the Trial Court or the Supreme Court of Wyoming accepted this position?
Henry A. Burgess: Well, I believe then the Supreme Court -- the order of intervention of course, Johnston Fuel Liners is not rich as your party defendant and they were allowed to intervene and in the motion it says, that -- this is again on pages 14 and 15 of the motion, that they were a lessee and the entry of the lands upon Toltec, up the entry by Toltec upon the lands of Johnston Fuel Liners and their interference to move and strikes to its use and possession of the lands. That's on pages 14 in the appendix.
William H. Rehnquist: Bunch of it I get, as to -- I was just concerned.
Warren E. Burger: I noticed though, before you leave it on the top of page on 25, there is the request in the interrogatory, please attach all copies of leases between the Johnston and Associated Enterprises, and then the answer is that the agreement is reflected on the Journals of the company and that there is no single written lease document.
Henry A. Burgess: Correct.
Warren E. Burger: This is just an occupancy at sufferance.
Henry A. Burgess: I would resume that you could term it that. Say two cooperations own lands which are intermingled and one of them uses lands in one area and one uses the other, there is a monthly payment, I would take it that it is a tenancywhich could be revoked at the end of any annual period of time.
Warren E. Burger: Do you think that might bear if it's a tenancyof sufferance and occupancy at sufferance, and might be relevant consideration and with their interest in going on the matter.
Henry A. Burgess: Yes I would think that the interest of any user of this land who occupies it, that his interest is as great as the interest of any person who owns a title to that land. Secondly, of course anything which affects the rent which would be charged upon that land would also affect a person who uses that land.
Warren E. Burger: Would you think the right to vote might be different if it is a 99 year or occupancy at sufferance, terminable at will?
Henry A. Burgess: No Your Honor I think that the right to vote is something that is granted by this particular case by this particular act. The act says that a land owner may vote, and all other parties were excluded. So it would seem to me that if you are not a land owner, it does not make any difference while your tenancyis wanted sufferance for a year or for 99 years, in any event you are excluded from voting.
William H. Rehnquist: But in order to as maintain -- you have standard to maintain your constitutional issue, you got to show that if the constitution were applied in the way you say it be then your client would end up having right to vote.
Henry A. Burgess: Correct I understand that and that is why in the interrogatories and the order of the Court, the Court did allow Johnston Fuel Liners to intervene finding perhaps not expressly but certainly by implication and as a general orders that all of the facts and legal conclusions necessary enter the order or embodies in that order. As I say, the case arises under the statutes of relating to the Watershed Improvement District and the purposes of that district of course, or to provide for the prevention and control of erosion, flood water, sediment damage is to provide for storage, conservation, development, utilization and disposal of water, there by to preserve and protect land and water resources. It is also designed as statutory purpose states, from all the health, safety and general welfare, the people they state. Now, this district is formed by the written petition being filed by land owners with the Board of Directors, what is called Water and Soil Conservation District which board then determines whether or not in their opinion the district would be feasible. Thereafter, if it is determined that it would be feasible a referendum has had. Our statute provides no qualifications for the boarders except that you have to be a land owner. The land owner is defined by the statute that as being one who holds the legal title or is acquiring title by a contract. There is no qualification as to residence, a non-resident land owner, one outside of the state may vote, a minor may vote by a guardian and deceased to state by an executive and there is no registration requirement. Now prior to the actual casting of the ballot, the land owner must make an affidavit in which he states the number of acres he owned. He then votes and as the ballots are counted and in order to pass the referendum must have voting in favor of it, a majority of the land owners who also represent a majority of the acres. So in effect the vote is weighted. Now, after the creation of the district, a Board of Directors is elected to operate a district, there are five of them and in order to be nominated you have to be nominated by ten land owners. Upon the creation of the district, the statute states it constitutes a governmental subdivision of the state and a public body corporate and politic, they have the authority to levy taxes, make assessments, build structures, accept grants, apportion benefits against irrigated lands. They also have the authority to submit to the land owners, a proposition for the issuance of the bonds. Now, once again, only the land owners vote on the bonds, the vote must carry by two-thirds of the land owners voting. And those two-thirds must own a majority of the acreage. So once again you have a waiting of the vote in comparison to number of acre zone. Now, in this particular case, it was argued of course, in the lower courts that the limiting of voter franchise to the land owners in the creation and maintenance of Watershed Improvement District violates the Fourteenth Amendment, Equal Protection clause and that it creates an unreasonable arbitrary and capricious voting classification. The second argument was that the weighting of these votes by requiring a majority of the acreage is at the basement of the votes and the people resident in the district and the owners of small acreages. Our Supreme Court held that while Wyoming is always recognized the distinction between governmental and proprietary functions of a legal subdivision and that this was a legal subdivision, that a Watershed Improvement District functions are primarily proprietary, and then they stated that the appellants in that case would fail to show that the statute was unconstitutional and that the classification of the burden showing this classification of orders was upon the appellant. Our court also made the observation that there is an overreaction to the decisions of this court, both by judges and lawyers, that the one man one vote rule has been extended to a local specialized unit of government, and Wyoming Supreme Court rejected the idea or extend the rules include such water a improvement district.
William H. Rehnquist: What if under Wyoming law, that Watershed Improvement District must be or formed on the vote of all the registered voters within that proposed district?
Henry A. Burgess: What if it were to be? It couldn't be under our statute.
William H. Rehnquist: I know, but if the statute just provided that?
Henry A. Burgess: Well, I think that would be constitutional.
William H. Rehnquist: What if -- I don't know why your corporate lessee shouldn't demand on the same argument demand the right to vote?
Henry A. Burgess: The corporate lessee in this case would not have a right to vote, if as the Justice says, it were upon the basis of an individual person voting.
William H. Rehnquist: I know they wouldn't, I said that they wouldn't have the right according to the statute but would the statute be constitutional if, it like the present one excluded your corporate lessee from voting.
Henry A. Burgess: My understanding, that is the law that it would be constitutional. Now, the corporate --
William H. Rehnquist: Well, why can't the state then exclude it under this statute?
Henry A. Burgess: Sir. I didn't --.
William H. Rehnquist: Why can't the state exclude your corporate lessee --
Henry A. Burgess: Because we contend that is a unreasonable and capricious exclusion.
William H. Rehnquist: Well I don't know why it wouldn't under the other one, if you would have exactly the same interest.
Henry A. Burgess: What we are talking about here as I understand it, in a sense is the purpose of an election and running counter and at the same time going along with that is a question of the qualification of a voter. Now I think that when you vote --
Potter Stewart: You mean you have a case here, you think you have case here only because they proceeded on the basis of land owners being voters?
Henry A. Burgess: And voting the acreage. You wait the vote. What you are doing is you are voting the number of acres you own.
Potter Stewart: So, you say therefore, it is just they proceed on the basis of the land owners, it's invidious to exclude lessee?
Henry A. Burgess: Right. What we are talking about as I understand, in these previous decisions of this court, is people and certainly not acres, the corporations. In the Cipriano case, you are talking about striking down a statute that was provided for the passage of sewer bonds. Now there is really no difference between this case and that case, and one case of sewage is what you are talking about on a bond issue, in this case we are trying to get the water.
Hugo L. Black: Mr. Burgess, who pays the bond that are issued by your district?
Henry A. Burgess: The bonds are paid by the owner of the land who benefits from the improvements made in form of the dam, and canals and ditches. Now in the instance that is assessed against the land owner. He is the one who has the obligation to pay the tax that are collected by the county treasure, for failure to pay the tax as the land is sold under the regular laws relating to delinquency taxes. We contend that that payment and the case below, the lessee is passed over to the lessee, in increased breadths.
Hugo L. Black: Is the assessment based on the number of acres--
Henry A. Burgess: It is based upon the value of benefits on certain acres, for instance, if a total project had cost $100,000 and there is 10,000 acres, it must be $10 per acres, would be the assessment.
Hugo L. Black: If the general public has no obligation directly or indirectly to pay the bonds that are issued by the district.
Henry A. Burgess: Correct.
Hugo L. Black: You refer to a case involving the issuance of sewer bonds, who paid for interest and principal on those bonds?
Henry A. Burgess: Property owners.
Hugo L. Black: Only property owners?
Henry A. Burgess: Only property owners. It is my understanding that's Cipriano v. City of Houma. In that case they are talking about paying for the bonds, for the sewage, in this case we are talking about paying for the bonds for the purpose of getting the water.
Hugo L. Black: Is your position that one must have an interest in land by a lease or otherwise to be entitled to vote or would you suggest that anyone who lived in the district regardless of whether he had an interest in land also should be entitled to vote?
Henry A. Burgess: I would respectfully suggest that anybody in the district has a right to vote. I think that in this day and age, with government being as complex as it is --
Potter Stewart: But you don't have to go that far.
Henry A. Burgess: No, I don't have to go that far, but I think that the people have the right to vote. Now we are talking about an arid state and there are only three things that value in Wyoming, those years they had no water and the water is an illusory transitory thing and if you don't get the water when it's there and if you don't use it, is forever gone, or you have it and you have wealth, you have homes, you have an irrigated farms, you have towns, you have communities. It is our contention that everybody in the community whether it is an irrigated has a vital interest.
Potter Stewart: What the priority of the used water in Wyoming to--
Henry A. Burgess: Doctrine of prior appropriations.
Potter Stewart: And what got in to the conflict between the domestic consumption and irrigation?
Henry A. Burgess: Well, we go on a doctrine of priority, if you have, we have four prime preferred uses, if you have a preferred use which is subsequent in time to an irrigation right, the irrigation right prevails, however the preferred right can Wyoming domain take the prior use or on the scale--
Potter Stewart: The water conserved by this district might be available or higher usage of --
Henry A. Burgess: Well, the contemplated use is used for agricultural purposes. Now Wyoming is growing, I suppose and in a sense it could be used, it would be kept in Wyoming--
Potter Stewart: It would have to be bought.
Henry A. Burgess: It would have to be purchased by someone else.
William H. Rehnquist: The improvement district doesn't acquire any water rights of its own as a result of constructing this facility.
Henry A. Burgess: That's correct you have to file to the state engineer, make a beneficial use of the water and then you get a water right. But this is the facility and the structure. Now, pardon me, but under this the water district could file an application to construct a dam and get what they call a primary permit which would authorize them to then impound and store within the dam for the benefit of the members of the districts of water.
William H. Rehnquist: So, but the water it does store is not for its own benefit as such but simply for the benefit of its members?
Henry A. Burgess: Of the members and also be used for recreational purposes, fishing. We also submit that this is a case which probably was raised by the dissent of Justice Harlan, which he said that on this day, I pleaded the Hadley case, this principle which was handed down at a case applies to an irrigation district and for all of the reasons enunciated by this court in previous cases, we feel it's only logical that this press-school be applied to the watershed improvement district tax of the State of Wyoming.
Warren E. Burger: Thank you Mr. Burgess, Mr. Phifer.
Fred W. Phifer: Mr. Chief Justice and may it please the court. Possibly to give a little bit more background on this case, the question that was raised about tenancyat sufferance was raised in the Wyoming Supreme Court and was specifically not passed on. There is no written lease in this case as the interrogatory shows. This was a working arrangement between two corporations to use the land. Now what isn't shown in the record but I am sure Mr. Burgess would concede is that one man is the primary stockholder in these two corporations. They both belong to a man by the name of Elvin Johnston. He has several ranches, as indicated by the record, Johnston Fuel Liners is a trucking company.
Potter Stewart: But the boards were the same.
Fred W. Phifer: The boards are the same, yes, there is some differentiation in some of the minority stockholders but --
Potter Stewart: The stockholders are not the same.
Fred W. Phifer: The stockholdings are not quite the same but almost the same Mr. Justice. Secondly, in Wyoming there is a statute which specifically provides that you are a tenant at sufferance unless you have a specific written lease. So in this case, there are a candidate sufferance although the Wyoming Supreme court passed over that question when I raised it in my brief. Secondly, with regard to the question on paying for this, the district is originally formed as an (Inaudible) would indicate on a watershed area, the drainage is all the same. Then after the district is formed and after they have decided that it is feasible to build a dam in a certain location, then only the lands that are benefited below that dam are assessed. In other words, not all of the lands that is in the watershed district, much of it is in the mountainous area, this area in particular is an outlying area, the lowest elevation I suppose in the district would be 6900 feet running from there to about 7200 feet. It's quite an arid area. The dam in on the North Wyoming River which is a very small river but normally in the middle of the summer, you could step across it in places. There is a large spring run off and it is the purpose of this type of law in Wyoming to catch this spring run off, so that it can be used later for irrigation. The meadows that are irrigated here will only grow in hay because of the altitude and the shortness of the growing season. There probably is 2000 acres involved belonging to about 12 different families. The production on these wells is very limited again because of the fragility of the soil, it's a very thin outlying soil mostly gravel. It will produce a half-a-ton to a ton of hay, with very good cultivation and some fertilizer. It might produce a ton-and-a half a hay, but here again it's not Alfalfa, as Mr. Justice quite would be familiar with from his background in Northern Colorado but primarily wild hay. It has no market this area is located about 60 miles from the nearest town. The hay is used primarily by the ranchers for cattle.
Potter Stewart: Present in the vicinity of--
Fred W. Phifer: Well, the Wyoming Peak is right on the edge of this, so it's in the vicinity of Laramie, Wyoming it would be about 60 to 70 miles in north of Laramie Wyoming.
William H. Rehnquist: Really it is just irrigated pasture there.
Fred W. Phifer: Well, no it's irrigated meadows.
Potter Stewart: Irrigated meadows.
William H. Rehnquist: Because you harvest the hay.
Fred W. Phifer: You harvested hay, you have to have it for winter.
Potter Stewart: Do you bale it?
Fred W. Phifer: All that most part they don't bale it here, primarily because the meadows are too rough.
Potter Stewart: But do you keep the cattle there?
Fred W. Phifer: Keep the cattle there and feed them there --
Potter Stewart: In the winter time.
Fred W. Phifer: In the winter time. This would provide only supplemental water incidentally to existing water rights. It would not bring any new land under irrigation. Here again to go back to the question of who pays for this, once this question here is decided, if we are still constitutional, then appraisers are ordered by the court to go out and appraise the land that will be benefited, only the land that will be under ditch. Now the land will be classified, by these appraisers so that some of it will probably pay a little bit more than others. But where the total area of the Watershed district itself might be 15,000 or 20,000 acres. The area that will pay for it is only the area that's benefited that would come under, I would say under 2000 acres meadow. Now, in regard to the question on priority of water rights in Wyoming, domestic consumption does come first, and it can at any time condemn any other industrial or agricultural water, if it's necessary. In this case it's very unlikely, it's located in a remote area. There is under the provisions for setting up the Watershed law in the first place, Congress enacted specific legislation making grants in aid to Watershed districts to build these sort of things. In the interest of conservation and particularly in the interest of flood control, and we have a flood control problem here. Nothing that menaces life but that does cause damage, quite extensive damage down the river each year. They grant about 50% of the cost of these projects as an outright rent. Then the other half of it is loaned to the projects by the Farmers Home Administration.
Potter Stewart: Well, how does this case get started?
Fred W. Phifer: The case got started primarily right after the district was formed, we asked permission to go on to Johnston's land to make a survey to see if the foundation studies would be proper to build a dam in a particular location.
Potter Stewart: I think Johnston must have gone against the formation?
Fred W. Phifer: He allowed us to go on first. Well, he have already guessed the formation the district yes, then he allowed us to go in his land and check to see, then as it often happens with government projects, we had the inadequate data.
Potter Stewart: So that the people of -- there were other owners who own more land that he did.
Fred W. Phifer: Yes.
Potter Stewart: So they outvoted him?
Fred W. Phifer: Well, actually the vote -- there were only three land owners that voted against that there were about 12 that voted for it. There were two large land owners in the area and both of them voted for it. So the acreage --
Potter Stewart: So he got voted.
Fred W. Phifer: He got out voted.
Potter Stewart: Now if this lessee is entitled to vote, that isn't going to do any good because he would have been out voted also --
Fred W. Phifer: Well --
Potter Stewart: If set what, do you have to really strike down, do you have to get to the acreage limitations as well as--
Fred W. Phifer: As to the land owners.
Potter Stewart: I think it goes down rather than --
Fred W. Phifer: I think that based on the decisions in this Court, all of which are concerned with so called popular elections. I am not exactly sure what a popular elections except that it's where we go into a voting booth and it's a secret ballot and whether we are voting on sewage bonds or anything else, it has a particular form to it. This and the decision of this court apply to popular elections, unless there is an -- they will stand unless there is invidious discrimination. In fact, I think there is some language in some cases of this Court, that says once the popular election process shows then you must do so and so.
Potter Stewart: How would this election have come out in the first place if the rule had been (Inaudible)?
Fred W. Phifer: It would still have passed. Both ways, but here is the thing this is not popular election.
Potter Stewart: Well then let's assume this, let's assume you lose this suit?
Fred W. Phifer: If we lose this suit, the entire Wyoming Watershed law I think is unconstitutional, then probably we have plans to go back and form a private ditch company--
Potter Stewart: No I was just asking just really a fair reliable law suit.
Fred W. Phifer: I beg your pardon.
Potter Stewart: And what interest would the other side have, and they would would still lose this, they would still lose the election. They still would have then lost the election?
Fred W. Phifer: Well they wouldn't, in one particular instance, if lessees are allowed to vote, then what is to prevent the landowner who is against this, from leasing, ten acres out of 10,000 acres to 50 different people in a line to vote.
Potter Stewart: That would be the situation for (Inaudible) --
Fred W. Phifer: Yeah. But I think the --
Potter Stewart: Well if you lose this lawsuit --
Fred W. Phifer: These are things that open to fraud.
Potter Stewart: Well if you lose this lawsuit there will be a new vote that's the point and you don't know how that's going to come out.
Fred W. Phifer: But we know how the new vote will come out because we not only have a majority in number, we have a majority in acreage both, either way we are --
Potter Stewart: Except that, if there is a new vote as you say one of the land owners that might lease an acre of piece to 200 people, of all them were --
Fred W. Phifer: That's right, and they will control the election. It leaves it open to fraud I think. I think that this is the compelling state interest that, the state of Wyoming had in setting up this proposition of landowners only, is that it does leave it open to fraud. If you do it on the basis of letting lessees also. Not only that but let's take this particular instance. Here is Johnston Fuel Liners and Associated Enterprises, are you going to say that only lessees can vote and the landowner can't if there is a lease or you are going to say both lessees and landlords can vote. If that's the case Mr. Johnson would be allowed to vote twice in this instance. Because he owns the land as one corporation he is a lessee as another.
William H. Rehnquist: And he is lessor voted in the fist instance?
Potter Stewart: He was his lessor.
Fred W. Phifer: He was his own lessor --
William H. Rehnquist: He was his own --
Fred W. Phifer: Now going back to this popular election proposition, this is not a popular election, there is no secret ballot to start with. Because they have to write down how many acres they have so that we'll know when we look at their name at the counting of the ballots how many acres are involved. There is no age limit in this case. There is no residency requirement, in fact there isn't any citizenship requirement nor is a vote limited to persons. A Swiss corporation if it filed to do business in Wyoming could own land and vote in this. So it has no real comparison to a popular election, which to my mind distinguishes this from the whole line of cases on one man one vote.
Potter Stewart: Well if you distinguish the cases where -- say there is really no difference between landowner and a lessee. I mean there is a not enough difference land owner and the lessee to warrant its duty for the lessee simply because the landowner has the formal obligation to pay the bill.
Fred W. Phifer: That's the right because actually as you said in previous cases the renter or the lessee ends up paying bill and increased rent at least to next --
Potter Stewart: Do you accept that?
Fred W. Phifer: I do accept that, except that I am afraid that the compelling state interest in this case is to exclude lessees because it would lead the elections open to fraud and that any landowner that was opposed to it could bring an enough so called lessees to entirely control the elections.
William H. Rehnquist: But other than that you have no answer to give?
Fred W. Phifer: No sir.
William H. Rehnquist: Mr. Phifer, Justice Powell as Mr. Burgess about the case of Cipriano, do you read Cipriano the same way Mr. Burgess does as involving a obligation that was to be ultimately paid only by property owners?
Fred W. Phifer: Well no, I read Cipriano and all the other cases once you get out of the -- once you get into the bond election sort of process. Everything at this court had passed on before, with regard to school district, sewer bonds and so forth, the benefit in those cases were things, were such that benefited the entire community, everybody in a sewer district is interested in sewers, whether they own land and have to pay for the --
Potter Stewart: Regardless of who pays the bill?
Fred W. Phifer: Regardless of who pays the bill, everybody is directly affected by sewage disposal. It's a matter of again health of the whole community. So that and like schools whether you have children in school or whether you own property, everyone in the community is directly affected and directly interested in the benefits of the schools. Everyone in the community is not directly interested or directly benefited by a Watershed district. This is only concerned with irrigation water. Now I can't differentiate too much between lessees and landlords. But you can certainly differentiate between people who or several residents, for instance, that would cabin side in the Watershed district or employees on ranches, another way of broodingly controlling this election would be to bring up multitude of employees in, just prior to election and allowing them to vote because they are located on the ranches.
Thurgood Marshall: But don't you have that same possibility with one man one vote, (Inaudible) to bring in a thousand people?
Fred W. Phifer: Well --
Thurgood Marshall: Yes, yes, yes.
Fred W. Phifer: You do Mr. Justice up to the point that they have to support them for about 30 days I believe now under your --
Thurgood Marshall: Well you could put a residence, what prevents them putting a residence requirement.
Fred W. Phifer: A residency equirement in here?
Thurgood Marshall: Yeah.
Fred W. Phifer: Well I think that it would be unconstitutional to make a residency requirement here because here we go back to the matter of discrimination, is the class which is excluded more directly interested in the results than the class which is included. And in this case if you put a residency requirement in, all the corporations at a glance would be non-residents.
Thurgood Marshall: All he says is let to lessee vote, he doesn't say that the lessee that comes in today, vote sort of thing?
Fred W. Phifer: No but the only alternative I think to the present system where it limits the landowners, is a system that what put it back on the old residency requirement.
Thurgood Marshall: Do you know of any lessor who pays taxes himself?
Fred W. Phifer: lessor?
Thurgood Marshall: Yeah.
Fred W. Phifer: In our areas yes sir they all pay the taxes directly themselves generally speaking at least --
Thurgood Marshall: If you have got a lessor and a lessee, who pays the taxes?
Fred W. Phifer: Well.
Thurgood Marshall: I know who signs the check but who will pays --
Fred W. Phifer: Well, of course ultimately then it goes back to who is paying the bill.
Thurgood Marshall: How many people are in this district?
Fred W. Phifer: Probably 12 families.
Thurgood Marshall: What's wrong if they let the 12 people vote?
Fred W. Phifer: Not a thing except that they are not the people who are directly interested in the elections. The landowners are -- there are quite a few landowners that live in this area. For instances neither one of the corporations here actually headquarter here. They wouldn't be classed as residents.
Thurgood Marshall: But you said, definitely this and other cases is for the benefit of all the people in the district.
Fred W. Phifer: The other cases are at the benefit, I think sewer or bonds or --
Thurgood Marshall: Is this advantageous to all of the people in the district?
Fred W. Phifer: No sir, No sir, it's only of interest to the people who own or lease irrigated land. It's not of any interest to summer people, except for the low possibility --
Thurgood Marshall: A sewer for 12 families, would that make difference?
Fred W. Phifer: I beg your pardon.
Thurgood Marshall: A sewer for 12 --
Fred W. Phifer: That would make a great deal of interest, because even if you are --
Thurgood Marshall: I notice a great trouble with letting twelve people full.
Fred W. Phifer: Well, I think that if you limited it again, as I said to residence, then you will be excluding a great number of land owners who are directly interested in this. And I think then it would be unconstitutional.
Thurgood Marshall: I am only saying that you want to protect it against fraud. You are here bringing thousand people in here with lease -- I mean, that's not in this case.
Fred W. Phifer: Well, if lessees were allowed to vote and if Associated or Johnston Fuel Liners is classified as lessee which has no lease.
Thurgood Marshall: Oh, you said bona fide lessee.
Fred W. Phifer: Bona fide lessees again, you can make out 50 leases in an afternoon. I think that the lessee's interest is not different than the land owners. I think they both have a commonality of purpose in irrigation districts. So that they are not going to be voting at odds. I think also, that it's not fair for a lessee, who may be tenant at sufferance or at least for a term of years to be allowed to come in and push through a large expensive project -- the payoff on this is estimated as 50 years. And he may be there a year of two and pull out and leave the landlord with $3 ½ or $4 a year assessment to pay on this project. I agree that it doesn't seem on itself on the surface to be fair, except that you have to draw the line somewhere. And I think it is more fair to draw the line against the lessees that it would be to set up a residency requirement and draw the line against -- but non-resident landowners who have a very direct interest in both the benefits and the cost of this project. Secondly, I really believe that this isn't again a matter of government --
Thurgood Marshall: Do you think anybody could persuade to go up in the back woods of Wyoming and just stay there for the purpose of vote?
Fred W. Phifer: They wouldn't, no, I don't think so. I am differentiating here again, Mr. Justice, between -- if the lessee is --
Potter Stewart: It so happened --
Fred W. Phifer: Here again the lessees would not have to come up here. If lessees were allowed to vote without a residency requirement. If there is a residency requirement, I am not worried about fraud, because I don't think they are going to move lessees into the area and make them stay there almost till they fill up the lessee, let's say a fractional residency requirement. It's a pretty remote and cold area. But I do think that then, you are probably excluding a great many people who are directly interested in the thing, and there are non-residents, or even non-citizens, non-persons as these corporations, who should be allowed to vote at. I don't think you could device a fair system. I don't believe there is any injustice here. No large landowner can force through a vote, on his small neighbors because it has to be pass by a majority of the people. Conversely, no group of small landowners could come in and force a project against one large landowner who would have the burden of pain for it. Because it must pass by a majority of the acreage. And limiting it to landowners here again is the only logical way that it can be done, I think. Here again, I think it should be differentiated from a governmental unit. It is a governmental entity, but it exercises no sovereign power over the people. None of the --- it's more in the nature of a quasi-private corporation or quasi-public. It has a power to levy and collect assessments, which almost any mutual company would have. It has the power to buy and sell real estate and personal property and the power to borrow money and sell bonds which any private corporation can do. It does have the power to receive government grants and loans, that I think, the (Inaudible) corporation has that power also. And it has the power of eminent domain. Now there seems to be in counsel's brief, a great distinction made because of this branding of the power of eminent domain. Every private or public utility has the power to eminent domain. So I think this thing has much more in common with private corporations than it does with any public governmental entity.
Potter Stewart: Mr. Phifer, some little time ago, you were contrasting the situation here with what you called a popular election, and as you rightly said, in a popular election generally there is a vote in polling place by a secret ballot by individual voters. Since so many of these voters are corporation, how is the vote taken, is it public, is it just done by a letter or--
Fred W. Phifer: No, we have a meeting, and they come in and vote.
Potter Stewart: Individual representatives of the corporation?
Fred W. Phifer: Individual representatives of the corporation.
Potter Stewart: Who in question show their authority to represent the corporation.
Fred W. Phifer: Yes, in this instance, this is a small community and there is no question about who is the owner of the corporation and also the land. In the course only one man would be allowed. Here again --
Potter Stewart: Is it a public meeting?
Fred W. Phifer: Yes, it is an open meeting and there is quite an involved due notice requirement here. Every time anything is done by this thing, by the Watershed district, due notice must be given in and it must be posted at four or five places prominent in the district which is kind of hard to do, when there ranches are ten miles are apart, they post them on the bridge post and it has to be advertised in the newspaper in the area for three weeks I think, prior to that time. So there is good notice given, not only that but because we anticipated that there will be problems in the first place, we always send certified letters to everyone of the voters, giving them due notice of any elections.
Potter Stewart: Actual notice by them.
Fred W. Phifer: Yes, sir.
Hugo L. Black: Mr. Phifer, where are these bonds marketed?
Fred W. Phifer: They only have one market and that's United States government, the bonds as such are merely security for the obligation under the FHA Rules. It'd be interesting to see how they were foreclosed on those bonds, if they had to since almost all of the land involved was privately mortgaged to insurance companies or to the state of Wyoming, prior to this time. So the bonds are an overriding obligation on the Watershed district, and they had quite a time collecting on them if they were to pay.
Hugo L. Black: Are they subordinate to the private debt?
Fred W. Phifer: Well, they are really not a private debt, there are debt of the Watershed district itself, and the land under assessment is of course subject to leans or assessments, but -- and it might be subject to foreclosure by these, but I think the government would have step in pay off, lot of insurance company loans before they can do it. It isn't spelled up very well.
Potter Stewart: How do you know that if these assessments and the leans, the representatives -- subordinate with the private lease, does the statute say something?
Fred W. Phifer: No, the statute does not say something.
Potter Stewart: This hasn't been adjudicated?
Fred W. Phifer: No, it hasn't been adjudicated. I don't know whether they're subordinate --
Potter Stewart: (Inaudible)
Fred W. Phifer: I don't -- I am sorry, I think you are right, it wouldn't be subordinate but the assessments are not subordinate. But the assessments don't represent the bonds. The assessments are merely -- assessments made by the districts to help pay the bills of the districts, and it could not only be bonds but improvements and everything else. And the assessments are an obligation owing to the district from that landowner. There is no other obligation, from the District to the federal government for the loan except the bonds, and what their priority is, I have no idea.
William H. Rehnquist: But occasionally, when one recalls at lease cases where the bond owner has sought an action against the issuer to make the issuer take such action as it can by marshaling of assets to collect funds that maybe available to it but not directly to the bond owner. I take it that, if a land owner fails to pay an assessment made by this district, the district has the power to have the property sold to pay the assessment under Wyoming bond.
Fred W. Phifer: That's right. Here again I don't know what the priority is, that would be --
Potter Stewart: (Inaudible)
Fred W. Phifer: That might be. Thank you gentleman.
Warren E. Burger: Thank you Mr. Phifer, Mr. Burgess, you have got about nine minutes left.
Henry A. Burgess: Mr. Chief Justice and the Court, several observations I make, but one of them is, and I think we got a little bit outside of the record here, discussing this district. The fact of the matter is, there is gerrymandering went on here, Johnston Fuel Liners does have a number of employees who do reside in the district of course, they were not allowed to vote. The site for their proposed dam, where take in and destroy much of the land of Associated Enterprises who in turn have upstream dams, and what we are talking about --
Potter Stewart: Does it involve (Inaudible)
Henry A. Burgess: I will stop it Your Honor, if you don't believe, it shouldn't go on, but the point is that people did decide, it was said there was two big landowners and they voted the acreage and that's how we are here. Now, this business of voting, I can't visualize as one of the justices said, anybody moving to the Laramie Peak country, was at least just to vote, and I am sure that every election case, which is brought before this court has thrown out to it, this bug-a-boo about fraud in elections, and that's no problem. A small community like Wyoming, at first place we all think we are honest, secondly, the people come in and they are pretty well known to their neighbors and they are that. When you get all through looking at this case, I think that historically these cases started on a question of voting for Congress and then it got over to voting of a school trustee, and then the county commissioner, and you keep growing down and down and down into the spectrum of local self-government, and we contend that this principle should also be extended into the lower unit of this particular water improvement district.
William H. Rehnquist: Your colleague said that the question of tenancy at sufferance would resemble the Wyoming Supreme court, was not decided to pass by them, which I take it means, it wouldn't make any difference to one on the Supreme Court in terms of its right, if this were a wholly independent lessee with a lease of 10 years.
Henry A. Burgess: Correct, or you have an individual. And I would just like to point that up, the saying that this case --
Thurgood Marshall: Is this true that there were only 12 people involved?
Henry A. Burgess: I think there maybe 12 families that voted for, I am not sure the exact vote, there were three who voted against as I understand, but there are more families involved above the upper limit which are interested in this, and of course, they were brought in. If this is a live issue in the community, it's a very live issue --
Thurgood Marshall: Are those families up there lessees or landowner.
Henry A. Burgess: Both.
Thurgood Marshall: Would the landowner be allowed to vote?
Henry A. Burgess: Certainly they should be allowed to vote, but they weren't, they weren't even put into the proposed boundary.
Thurgood Marshall: Does that raise the interest?
Henry A. Burgess: No.
Thurgood Marshall: In this case, there are 12 families involved.
Henry A. Burgess: Correct.
Thurgood Marshall: Why do you call this election made by who sits around the living room and tells about something.
Henry A. Burgess: That's correct, that's probably it was.
Thurgood Marshall: And that's an election?
Henry A. Burgess: Well, that's for this court --
Thurgood Marshall: If it wasn't called an election, would you have any case?
Henry A. Burgess: Well I suppose not, except it is a governmental, political subdivision of the state. Thank you.
Warren E. Burger: Thank you gentleman, the case is submitted.