Warren E. Burger: Number 23 Turner against Fouche and number 30 will follow that immediately. Mr. Meltsner you may proceed whenever you’re --
Michael Meltsner: Mr. Chief Justice and may it please the Court. This case is here on appeal from a final judgment of a statutory three-judge court convened in the Southern District of Georgia. It was drawn in 1967 by Negro appellants as a class action challenged violations of the Thirteenth, Fourteenth and Fifteenth Amendments by Georgia statutes and state constitutional provisions which set out an interlocking system of jury and school board selection and also to enjoin racial discrimination in the enforcement of these statutes by appellee officials in Taliaferro County, Georgia. Appellants make three claims in this Court. That the Georgia statute which authorizes jury commissioners to exclude persons from service they deem not intelligent and upright is void for one of the standards. Secondly that the District Court failed to grant adequate relief to reform racial selection of jurors and school board members, and third that a restriction that school board members be freeholders or real property owners violates the equal protection clause. The Georgia system for jury and school board selection which is at the center of this case begins when a superior court judge is elected by the voters of multi-county circuits. In this case, Taliaferro County is one of six counties which vote to elect the superior court judge for the Tombs Circuit. The judge then selects six citizens of each county who serve as jury commissioners. These commissioners in turn select jurors from the official registered voter list by disqualifying persons from the list, who they do not believe are intelligent and upright and also by disqualifying persons who are not the right age and haven’t resided in the county for the right period of time and for other similar reasons. They then reduced the number remaining randomly in order to get a workable number and place that number on a traverse jury list. From the traverse list, they select not more than two-fifths to constitute the grand jury list. And from this list, the superior court judge selects names which ultimately constitute the county grand jury. This grand jury --
Potter Stewart: The judge himself reforms that last function?
Michael Meltsner: That’s correct. He chooses 32 names from the grand jury list, calls the persons into court, hears excuses and then takes the first 23 names remaining on the list.
Potter Stewart: And the judge himself selects 32 from how many? Two-fifths of the whole --
Michael Meltsner: From not more than two-fifths, a number of about a 130 in this county.
Potter Stewart: And he selects those subjectively or does he pick them in some random objectively?
Michael Meltsner: No, he picks them from a box randomly. Gets 32 names, the sheriff goes out, calls those 32 into court. The judge then hears excuses.
Potter Stewart: Yes, I understand that part of the right.
Michael Meltsner: And then takes the first 23 names to constitute the grand jury. Now, the grand jury among its functions elects the five-man county school board when vacancy has occurred from the freeholders of the county and the school board is responsible for the management and operation of the schools in the county.
Potter Stewart: What is the term of this grand jury, how long does it stay and exists?
Michael Meltsner: It’s about six months I believe, the term of court each grand jury.
Potter Stewart: And what is the term of the school board, members of the school board selected by grand jury?
Michael Meltsner: Five years.
Potter Stewart: So the grand jury performs the function, whatever that happens to be a --
Michael Meltsner: Whenever there has to be a vacancy, now if there is a death or resignation, the school board will pick and interim candidate but the next grand jury will then act and is free to select whoever it wants for the position. If there is a vacancy due to be end of the term, the grand jury preceding that vacancy will make the decision. Now prior to the institution of this litigation in 1967, no Negro had ever been selected to serve as a jury commissioner by the circuit -- by the superior court judge. And while black people are 60% of the population in this county and 50% of the voters, only a small number of their number were on the jury lists. No county grand jury had ever selected a black school board member, although since 1965 the schools were totally black. Whites having fled rather than attend desegregated schools to a horribly setup private school in the county or to adjoining counties. Indeed, until the District Court acted in an earlier case involving several of the parties in 1965 by setting up a receivership over the public schools of the county, public funds were used to transport the whites out of county to other schools.
Potter Stewart: Has there any -- ever been a non-white superior court judge?
Michael Meltsner: The record only shows the race of the judge now in office as white. I think it was assumed by all the parties and the District Court that there never had been one at least in the preceding 80 years. After taking evidence, the District Court informed the jury commissioners and school board members that there was racial discrimination in the selection of the jury and that the exclusion of blacks from the school board could not continue. The court ordered the defendants to make an attempt to remedy the situation and suggested that two blacks to be put on the school board prior to a reconvening of the court a month later. The jury commissioners during this period recompiled the jury list placing additional Negroes on it and a new grand jury was selected. However, the commissioners excluded a 171 Negroes and only seven whites because they failed to meet the statutory requirement that jurors be intelligent and upright. The new grand jury made two appointments to the school board. One was a white man and one was a black man. The black man chosen had a third grade education, no children in the school and he was selected without the public notice which is required by Georgia law. On the basis of the recomposition of the jury list, the addition of one Negro to the school board and its view as to the constitutional questions presented, the District Court merely enjoined future racial exclusion in selection of the grand jury and denied further relief. Appellants first contention in this Court is that Section 59-106 of the Georgia Code violates the Fourteenth Amendment by authorizing jury commissioners to exclude men who they believe are not upright and intelligent. Now certainly these terms with the synonyms used by Georgia officials to characterize there meaning, the word like understanding or honesty are words which have no commonly accepted meaning. They are matters of personal judgment unless they are tied to some objective standard as they are not in Georgia. There are several consequences to their use which supports the appellant’s contention. They violate the Fourteenth Amendment when placed in the hands of the man who select eligible jury. The first is that they make the right to participate in the institution of Government depend on the will, whim, or caprice of a public official. The court has condemned placing such discretion in the hands of voting registrars as jury commissioners exercise a similar function. There is no reason why a different rule should apply. Secondly, because men cannot agree as to the meaning of these terms to their application to particular individuals, they always command arbitrary, erratic and inconsistent judgments between individuals. Thus at the outset, the use of these terms seems to me are basically inconsistent with the notion of due process of law that more rather than men will govern whether or not one can exercise a right.
Speaker: Have other states got these broad provisions of this character? I saw it somewhere in the paper.
Michael Meltsner: In the jurisdictional statement.
Speaker: Jurisdictional statement. There are 21 other states who got these sweeping statutes.
Michael Meltsner: I think 21 plus Georgia makes 22.
Speaker: Not only in the south but --
Michael Meltsner: Of the 22 states listed in the jurisdictional statements, seven are in the south.
Warren E. Burger: Counsel, you suggest that these words -- I think you put it command confusion. Do you think they are any less broad than the term unreasonable for example in the Fourth Amendment providing to searches?
Michael Meltsner: Well I think a language is often vague and undefined and certainly the word unreasonable in the Fourth Amendment is a vague word. But its function is totally different from the function that these words -- its function is to guide the Court in its decision of cases and it is construed by the Court in accordance with history and its own decisions.
Warren E. Burger: Well then how about the situation when a trial judge instructs the jury on a reasonable man standard. Now that’s an explicit -- the explicit purpose to that instruction is to afford guidelines to the jury, is that guideline any less difficult than the one you are confronted with here?
Michael Meltsner: Well I think that this, this always is -- always going to be a certain amount of discretion to the administration drew law but in appraising the constitutionality of it, one has to look at the function involved and the necessity of the particular bid of discretion. Now here, there is absolutely no necessity. Congress has passed a perfectly satisfactory jury selection statute which does away with the capacity for arbitrariness and discrimination which this form of statute has. Secondly, a jury deciding a negligence case for example is not selecting among individuals in the community. It is perhaps exercising an ad hoc judgment which in certain circumstances the law allows. The question is whether the results that this record show and the capacity which this Court has already condemned in many, many other areas are necessary and I submit that they’re not here and that there is no state interest involved in allowing the jury commissioners this much discretion to select among individuals at their will.
Warren E. Burger: Suppose, if in the last three or four years for example the record in this case now showed that to a change in attitude and change of heart the selection of these people was made on the result of about 45-55 in one term and 55-45 the next time and was roughly over a long period of time balanced in the way that reflected approximately or very nearly approximately the population balance of a community. Would you quarrel then be with the -- still be with the statute?
Michael Meltsner: Oh! Yes. I think the error in the statute here is -- the infirmity in the statute is the arbitrary power which it confers. Now the evidence of racial discrimination which this record has in abundance, the -- for example exclusion of a 171 of a 178 persons of the Negro race under this standard is evidence of this capacity for abuse, quite strong evidence. But our quarrel would still exist with the statute because the statute -- the problem with the statute is that it makes almost impossible selection between individuals which is not erratic and which does not depend on the will of the selecting official. Now I think another thing that one might consider here is that it’s totally impossible to review and appraise and evaluate the decision made by these jury commissioners. We can disagree with what they say when it’s a all 171 of these are 178 persons black that can’t be. But one can’t get in there and prove it. One can evaluate it, one can’t review it and that is a function as this Court has always apparently employed vagueness analysis to permit. Unless there is some specificity, there’s absolutely no way for the federal courts to determine whether or not the statute is being used in fact to discriminate because it obviously has its opportunity for discrimination. The jury commissioner need only pretend that the Negro is of poor character and little intelligence to mask his discrimination. And therefore it’s not surprising that a 171 of these persons are black.
Warren E. Burger: In my hypothetical if the figures where as I suggested in these hypothetical situation which is the lack of basis for complaint?
Michael Meltsner: Well, I don’t say --
Warren E. Burger: Don’t you say that’s a long way.
Michael Meltsner: I don’t think that’s this case I would say this. I would say this that clearly the other jurisdiction which have these statutes might by administrative action or by judicial construction apply to the jury selection procedure, the sort of standards and confining of discretion which would make them non-arbitrary. But our quarrel is with the statute on its face. I do -- this one more point I think would be stressed here and that is that even the well intention and sincere jury commissioner is offered precious indictments for these terms other than a vague sense that he should select the best people around. And it’s all too lightly then that he will select the persons were most like himself when the persons who would like those he encounters in social gatherings and quite unconsciously it simplifises exclude blacks who he does not come in contact with.
Potter Stewart: Well, would it help you think simply to take these adjectives out?
Michael Meltsner: Certainly it would.
Potter Stewart: That wouldn’t give him any more or further or stricter standards, would it and wouldn’t give them any standards?
Michael Meltsner: It would certainly remove from him the capacity to disqualify persons on the basis of his subjective will, his subjective understanding of these illusive concepts.
Potter Stewart: Would you think with those standards at all there would be certainly as much capacity for anybody to exercise his power in a discriminatory fashion?
Michael Meltsner: Well, I think that as this statute is written, this is clearly a disqualification of the voters who are at the beginning deemed eligible and that is in fact the way that’s been applied in this particular county, the -- what the jury commissioners do is they take the voter list, they sit around and they go over every name in the voter list and they say, is he upright and intelligent, and they cut out certain number of persons in that way. If their authority was removed, then eligible voters, they would be the basic source still. They would then be able to move persons who were in insane asylums who were not of the proper age, who were not residing the county so what they would then have the source.
Potter Stewart: Mr. Meltsner, I have a little difficulty saying why if the statute which now reads shall comply -- shall compile and maintain or revise a jury list of intelligent and upright citizens of the county to serve as jurors. Why if it were revised jury maintain a revised jury list of citizens of the county to serve as jurors, there would not be at least equal capacity for a jury commissioner to discriminate unfairly on the basis of race?
Michael Meltsner: Well, I think there are two -- if I understand your question Mr. Justice Stewart, your question is that if this language was declared void, there would still be some general free raging discretion on the part of the jury commissioners --
Potter Stewart: Is that even more so if anything?
Michael Meltsner: Well, I would agree that they would still have the capacity to discriminate as any one administrating a system does. But the basis on which they have justified this particular discrimination on which jury officials constantly do so would be removed. As I read the statute in light of there practice that they would have to take any persons who did not meet -- who were voters and were not excluded for specific reasons and in effect, that is what we ask this Court to so hold that this is too subjective arbitrary and erratic a way of selecting jurors. The State may come back and pick another system which is more specific. It may not.
Speaker: What you’re arguing is that constitutionally as to the separate objective standards that you know what the discretions are?
Michael Meltsner: More objective than this.
Speaker: Right and your argument in this as I get in your brief in the context with what the practices have been in the Section (Inaudible).
Michael Meltsner: That is correct. Now there is one more --
Warren E. Burger: That brings me back -- that brings me back in my hypothetical, let me alter a little bit. Suppose the record show that the recent years since they’re going to change of heart and attitude that 70% of the persons selected by the jury commissioner had been Negro and only 30% white. On what basis would you attack the statute?
Michael Meltsner: Well, I think that the 401 would find consistent results of that sort with the statute of this kind. They would have to have been brought into it. Some form of objective line drawing standard.
Warren E. Burger: But what would be your complaint in that factual setting?
Michael Meltsner: Then perhaps the -- as a litigant, I would have no complaint but in this case and in other cases of this sort, the complaint is there -- there is an inherent capacity for arbitrariness --
Warren E. Burger: Doesn’t that bring us back to just what you had discussed with Mr. Justice Stewart and Mr. Justice Harlan that it’s the practice not the statute that is the vice here? It’s what being done, not what could be done which is important?
Michael Meltsner: My position is that in this case, both are important, both are here and that the Court should decide this case. But I must take the position that the vice of the statute has nothing to do with result. The result merely confirms the vice which we see in it. Now, the infirmity in the statute is that --
Speaker: Does that have to do with the result?
Michael Meltsner: The infirmity in this statute is in its grant of arbitrary power. Just as in the licensing field --
Speaker: Or you, I think among that list would substitute the jurisdiction you say is learning was constant. I think that might or Arizona I know it, do you think you can make this argument in the context of litigation there?
Michael Meltsner: I think that a litigant in a class excluded would be able to make that argument. Yes, I certainly do. And for that, I wish to come back to the State of Georgia because there’s another aspect to this jury system which I think the Court ought to consider. And that’s not only as jury selection involved here, but the grand jury has been given a political function and so the operation of the statute is to exclude blacks from selecting public officials. It’s not just the jury system that’s involved here. It’s excluding black people in this county from choosing school board. And so as important as in participating in the administration of justices, we have even more important rights at stake here. My second claim that -- the second claim that we wish to present to the Court is that the District Court did not adequately reform the system of jury and school board selection. Certainly, if the Court strikes down the broad discretion which Georgia law grants the jury commissioners that will no doubt make far more likely non-racial jury and school board selection. But there is still need for equitable relief to eliminate the effects of past discrimination and to make it unlikely to recur in the future. Initially, the present school boards still has on it, person selected by grand juries which for themselves unconstitutionally selective. And one step, we think that the District Court should be required to take on remand is to vacate the membership board in order to -- and the effects of past discrimination and make a great with the past. More fundamentally to make sure that discrimination does not recur, at a minimum, the District Court should appoint black jury commissioners as was sort in the complaint. The commissioners play critical role in this process in a small amount of discrimination in the future with tip control with the grand jury to whites. They have discriminated in the past. They have -- there has never been a black jury commissioner and the whole process works over an issue which blacks in this county have enormous interest. Whites on the other hand have no interest comparable in educational quality. I think it’s a little like the Voter Registration Act if I can use that -- the Voting Rights Act of 1965 if I can use that analogy where the statute provided that under certain circumstances, the courts might appoint voting registrars to administer even a non-discretionary system of voting registration. The record in this case in the activities of the appellee officials here makes similar relief at a minimum necessary.
Thurgood Marshall: Is the only standard for selection on Georgia these words you used in your question?
Michael Meltsner: The upright and intelligent?
Thurgood Marshall: Yes.
Michael Meltsner: The only other standard aside from age and residence is that --
Thurgood Marshall: Of what?
Michael Meltsner: Residence. Is that idiots and lunatics are excluded.
Thurgood Marshall: Any what?
Michael Meltsner: idiots and lunatics are excluded. That’s the only other standard.
Thurgood Marshall: Outside of that the only standard is that they must be upright?
Michael Meltsner: Upright and intelligent.
Thurgood Marshall: And intelligent.
Michael Meltsner: Right. I would like to reserve my --
Warren E. Burger: Mr. Evans.
Alfred L. Evans, Jr.: Mr. Chief Justice Burger and may it please the Court. There’s no question but the Georgia’s juror selection statute is capable of being improperly administered. There is no question but that in Taliaferro County, Georgia, it has been improperly administered. What is in question is whether Georgia of for that matter any other state may prescribe juror qualifications which call for an exercise of judgment on the part of the public board or public officials responsible for composing the jury list. This is the true question before the Court for two simple reasons. First of all is self-evident that whenever law requires judgment to be exercised, there is the possibility, they will be exercised improperly or wrongfully. Second, because of the capacity and people being as they are, we can anticipate that from time to time statutes providing for the exercise of judgment will be administered improperly. Now of course the question of juror qualifications goes to the very heart of the concept of trial by jury, the concept which this Court just a little more than one year ago in Duncan versus Louisiana declared to be “Fundamental to the American scheme of justice.” State legislatures including Georgia’s general assembly have quite generally supposed that the right to trial by jury means trial by jurors who are first of all possessed of intelligence sufficient to understand the matters they may be called upon to judge. And secondly that they shall have such moral character as will enhance the possibility of a fair verdict. Some example of the character and intelligence qualifications of the various states are included at pages 12 and 13 of appellant’s jurisdictional statement. We think both the statutes are essentially indistinguishable from Georgia. Maine for example provides qualifications as follows, “of good moral character, of approved integrity, of sound judgment, and well informed.” In New York, it’s of good character, of approved integrity and sound judgment. In Michigan, it’s of good character, of approved integrity, of sound judgment, and well informed. Nebraska also uses intelligent, of fair character, of approved integrity, and well informed. Now this Court in the past has always adhered to the view that such character and intelligence qualifications are at the very least consistent with if not required by the Constitution. Over a hundred years ago, in Strauder versus West Virginia, this Court planned out that the Fourteenth Amendment was never intended to prevent a state from prescribing such qualifications of age and educational qualifications as well. More recently in Brown versus Allen, this Court after observing that State should decide for themselves the matter of the quality of their juries stated that the Court ought not to impose on States, its conception of the proper source of jury list so long as a source reasonably reflects a cross-section of the population suitable in character and intelligence for this civic duty. In rejecting, the same sort of attack which appellants make here, the Supreme Court of Georgia only this year relied upon Brown versus Allen in the case of Sullivan versus State. When it said that in using the words suitable and intelligence, that is the words of this Court. The Supreme Court must necessarily have had reference to good character, honorable or just persons. The Supreme Court of Georgia continued that in using the words suitable and intelligence for that civic duty, this Court must have meant persons sufficiently intelligent to serve as jurors. Now, we recognize of course that the law also requires the jury to reflect the community. I read from Georgia statute which is currently in effect and was in effect at the time of this trial. In composing such jury list, the commissioners select a fairly representative cross-section of the intelligent and upright citizens of the county from the official registered voters list and that the statute goes on. If at any time it appears to the jury commissioners that the jury list so composed is not fairly representative cross-section of the intelligent and upright citizens of the county, they shall supplement such list by going out into the county and personally acquainting themselves with other citizens of the county including intelligent and upright citizens of any significantly identifiable group in the county which may not be fairly represented thereon. We think it’s quite clear from the statute that its entire thrust is to avoid discrimination based on race or economic status.
Potter Stewart: This is a rather recent statute as presently worded, is it not?
Alfred L. Evans, Jr.: No sir. It is in part. There was a change from the list from which the -- the list from which the jury list was derived have been detached list. Now, it is the voters list and this was changed in --
Potter Stewart: After our decision in Whitus against Georgia.
Alfred L. Evans, Jr.: In Whitus and also Avery versus Georgia to meet the criticism of this Court in those decisions.
Potter Stewart: How about the sentence, the long sentence you just read to us, I won’t repeat it.
Alfred L. Evans, Jr.: I think that --
Potter Stewart: At any time it appears for the jury commissioner that the jury list of both is not fairly represented and so on. Is that new or --
Alfred L. Evans, Jr.: It is what I believe that particular -- that isn’t an issue yes, sir.
Potter Stewart: I understood so.
Alfred L. Evans, Jr.: In any event, we think that qualifications as to character and intelligence are essential to the proper functioning of the jury system. We think that such qualifications are at least consistent with if not required by the Constitution. I’m referring specifically to the Sixth and Seventh Amendments. We think it would be a mistake to fill these qualifications out merely because they have a capacity to be wrongfully employed. We think that the courts of the Fifth Circuit have been handling matters of maladministration quite correctly and we think this is the proper approach. Two questions of wrongful administration of statutes which we think are quite clear and equitable on their face.
Thurgood Marshall: How have they been handling, do you say it’s been satisfactory?
Alfred L. Evans, Jr.: Well, in the case at hand, the court directed a revision of the jury list. The court directed that the jury list be reconstituted and it was reconstituted but the Fifth Circuit as I’m sure Mr. Justice Black is aware in LaBach and Rabinowitz has consistently stricken the administration of the statute without becoming really involved in the facial validity of the statute.
Speaker: How are your jury commissioners selected?
Alfred L. Evans, Jr.: The jury commissioners in Georgia as appointed by the judge. The jury commissioners then used the voters list as the principle source for names which end up on the jury list.
Speaker: Can you suggest any manner or any description that of what’s the duty of the jury commissioners that would be anymore definite than this that could be handled?
Alfred L. Evans, Jr.: I think it is very hard, Your Honor. I have not seen a statute not to include the federal statute which is not capable of being abused. Now, I think it -- the federal statute for example uses such word as incapable of rendering satisfactory jury service. If a person was bent to discrimination, he obviously could seize upon the word satisfactory. We have an inherit vagueness in the English language. Words cannot reach the exact intuitive mathematical equations. We think that actually word such as intelligent and character are reasonably clear. Certainly clear enough for a civil statute after all. In criminal cases, we permit a person to be hanged or set free upon evidence of his reputation in the community. This is a vague thing. Reputation in the community but is it admissible evidence in many instances in a capital felony.
Thurgood Marshall: Mr. Evans, doesn’t the federal statute also require that there be a cross-section of the community?
Alfred L. Evans, Jr.: I don’t know if it’s in the statute itself, I think this would follow by the random approached used. Yes.
Thurgood Marshall: So it is that there is an effort to be sure that everybody in the community is collective?
Alfred L. Evans, Jr.: Yes Mr. Justice Marshall as is included in the Georgia statute.
Thurgood Marshall: But the Georgia statute didn’t put that in, that’s the legislative matter for the Georgia.
Alfred L. Evans, Jr.: Mr. Justice Marshall, I beg to disagree, the Georgia statute does have one, a provision in their providing for inclusion of broad cross section of the community.
Thurgood Marshall: Right, but I mean, you said it didn’t come from the federal statute. That’s what I wanted to know.
Alfred L. Evans, Jr.: It is -- it might be in other statutes. It is not in the statute spelling out the qualifications.
Thurgood Marshall: Yes, I see. I just wanted to know from that.
Hugo L. Black: How do you suggest that as possible to draw a statute that would enable people who are mistreated in this way as of they are in that county to protect that interest or can it be done by a statute? Must it be done by providing the proof that a remedy is declared is the result such as affected in this record?
Alfred L. Evans, Jr.: Mr. Justice Black, I believe it in fact has been done by the Supreme Court of Georgia in the Sullivan decision where it gave a bit more interpretation to the words intelligent. It stated that intelligence in the context of the selecting jurors meant capacity to understand the matters which they may be called upon to judge. That is of course more definite in the statute. The Court has filled in a gap there.
Hugo L. Black: I presume the word upright but in no judgment the tantamount to statement citizens of integrity and so forth.
Alfred L. Evans, Jr.: Yes sir. It would be character reputation. As I said, we use, we allow evidence into Court to determine whether a man shall be hanged to set free based upon reputation in the community, if we can hang a person, I think we can also decide whether or not he should be eligible to deserve on a jury on the same criteria. Reputation in the community, in the case at hand there was testimony that they consulted with the sheriff to see whether or not the individuals under consideration had a criminal record. They do not limit themselves to this. It was based upon general reputation in the community.
Hugo L. Black: Is it your contention that assuming all to be true which you said here about the disproportionate number, colored people that are on the jury, there is no judicial remedy --
Alfred L. Evans, Jr.: Yes, sir.
Hugo L. Black: And that this case should be dismissed? Or that the case should be tried.
Alfred L. Evans, Jr.: Well, sir I think the Court fashioned appropriate remedy. The jury list was reconstituted, the -- it was primarily drawn by lot after the initial elimination due to various qualifications, now much was made of the 179 persons disqualified because they lack the requisite intelligence or character. These 179 persons amounted to only 8% of the total number of names considered. So it wasn’t the case where they just wholesale eliminated great numbers of people.
Hugo L. Black: What was their remedy the judge ordered?
Alfred L. Evans, Jr.: The recomposition of the jury list.
Hugo L. Black: Has that been done?
Alfred L. Evans, Jr.: Yes, sir. It has been done and the first act I might add of the newly constituted grand jury was to appoint a black man to school board. That was the first act done by the newly constituted grand jury.
Hugo L. Black: That’s one black man on the school board but what does that do with reference to the juries hereafter? What does the order of the court do his reference to the jury?
Alfred L. Evans, Jr.: It enjoins the jury commissioners from racially discriminating in their application of Georgia statute. It enjoins further racial discrimination.
Speaker: And did it make findings that the disproportion had adhered for existed did constitute racial discrimination?
Alfred L. Evans, Jr.: Yes, sir. I would say that I might mention, this came up in a rather unusual way. The court held a hearing in the nature of a pretrial hearing. From the bench, it observed that the plaintiffs here, the appellants had made out prima facie case of racial discrimination. It recessed the hearing and advised the counsel for the county defendants to consult with his clients and advice them as to the fact that the court believed that the jury list was malconstituted. At that time, the judge -- the state judge of the Superior Court on his own motion dismissed both the traverse and the grand jury and ordered the jury commissioners to reconstitute, in other words make up a brand new jury list. This was done.
Speaker: Complete new jury list?
Alfred L. Evans, Jr.: Yes sir, traverse and grand jury. This was the remedy granted by the trial Court, a three-judge court.
Speaker: And did he order? I believe you said he ordered that the grand jury be selected by lot?
Alfred L. Evans, Jr.: No, sir. He did not order about that. This is the way the jury commissioners went about it. The first thing they did was they took every name on the registered voters list which was something over 2,000. They then disqualified certain numbers because of age, the fact that they were out of the county most of the time. For various reasons, they disqualified certain numbers of citizens. Of the number which remained after the disqualifications, they still have far too many names. They put them in alphabetical order and selected every other name. At this point, they look to see what the racial composition was and at this point as judge they’ll observe from the bench, there was only a difference of 40 names between the list as it came out and a 50/50 breakdown. In other words, it was fairly closed. Then they drew line. They put all the names into the jury box and by lot drew out the requisite number of names for the jury list and also the grand jury list.
Speaker: Well, it’s apparent that some at least partial relief has been granted.
Alfred L. Evans, Jr.: Yes, sir. I think there is a little question there.
Speaker: What is the attack being now made on the judgment of the court charging it with being inadequate?
Alfred L. Evans, Jr.: I have certain difficulty in understanding exactly what the appellants are driving at. Apparently they think that the entire membership of the board should be dismissed or somehow pass out of office and have all new members appointed. That is --
Speaker: You mean of the jury board? Jury Commission?
Alfred L. Evans, Jr.: No sir, I was speaking of the board of education.
Speaker: Board of education.
Alfred L. Evans, Jr.: That is the argument as I understand it. I don’t think that --
Speaker: Why is the Board of Education?
Alfred L. Evans, Jr.: This case actually rose over the composition of the board of education, the fact that you have an all black school system administered by an all white board of education. This actually was the problem which gave rise to the entire litigation.
Speaker: Is that before us now?
Alfred L. Evans, Jr.: No sir I don’t really believe it is other than possibly as to the request for additional -- or other remedy, another remedy. The appellants do say that they are dissatisfied with the remedy granted by the District Court. We think the remedy was adequate.
William O. Douglas: Well do you think freeholder standard is unconstitutional?
Alfred L. Evans, Jr.: Mr. Justice Douglas, I was just now coming to the freeholder point. There are two points I would like to make.
William O. Douglas: But am I not correct Mr. Evans what the appellants are asking us to do is to strike down this group of statutes plus only in that way as I understand it, can you get what they regard as a constitutionally established a board of education?
Alfred L. Evans, Jr.: No sir, as I read their brief, they are more or less asking for a suspension of Georgia’s statutes in Taliaferro County. As I read their brief, they have abandoned their attack on the various statutes --
William O. Douglas: Yes, but don’t they want the jury statutes declared unconstitutional?
Alfred L. Evans, Jr.: The jury statute yes.
William O. Douglas: But this to a fact a recomposition of the boards of education. Is that right?
Alfred L. Evans, Jr.: No, sir. I don’t think that’s correct. The members of the court --
Speaker: Perhaps you got to wait to till they get up on --
Alfred L. Evans, Jr.: The board of education of course has selected for a five-year term and just removing the present grand jury would not affect these officers.
Speaker: Well perhaps I should wait to --
Hugo L. Black: But suppose it did strike down, as unconstitutional, the requirement for a school board member to be freeholder, what would that be?
Alfred L. Evans, Jr.: I think not a thing Mr. Justice Black, not a thing. I have not yet come to the freeholder point but I shall address myself to that point. First of all, and I will just touch on this, we do not think this question is properly before the Court. The principle plaintiff, Calvin Turner in fact was a freeholder, is a freeholder. The evident shows that great numbers of the black citizens of Taliaferro County are in fact freeholders. They did subsequently permit an intervention of a person who --
Speaker: What percentage?
Alfred L. Evans, Jr.: Sir?
Speaker: What percentage?
Alfred L. Evans, Jr.: Of?
Speaker: Of freeholders.
Alfred L. Evans, Jr.: I don’t know but the word in court -- the word in court was great.
Speaker: What?
Alfred L. Evans, Jr.: Great numbers is what the word in court was, great numbers. The court observed from the bench that there was no question here where the -- as to the requirement discriminating against black citizens. But I have two points on the freeholder. First we think that is not before the court, there is not a shred of evidence in the record to show that anyone much less these plaintiffs has been denied a position on the board of education because of the freeholder requirement. Secondly of course, we think that if we get to the merits of the problem, we think the law is that there is nothing improper about a freeholder requirement for a public office. This Court has so held twice, they are rather old decisions. The first was Strauder versus Virginia and the second was Vought versus Wisconsin and each case the Court held that there was nothing improper about a freeholder requirement for a public official.
Hugo L. Black: Does your state law define that term within a precision freeholder?
Alfred L. Evans, Jr.: Mr. Justice Black as I point out in my brief, I believe the requirement could be met by the purchase of one square inch of realty. I don’t believe there is any standard as far as the amount of realty one must own to be a freeholder. I think it’s rather --
Hugo L. Black: But it does require the ownership of real estate?
Alfred L. Evans, Jr.: Yes sir, it does require. Freeholder is one who owns real estate. The statute does require a board member to be a freeholder.
Hugo L. Black: And I suppose that’s done, suppose that’s stricken down. They are not required to be freeholders, what’s left here that we can do?
Alfred L. Evans, Jr.: Mr. Justice Black, I really don’t think of course striking the freeholder would have any bearing on this particular case.
Hugo L. Black: I don’t see that it has so much from what you said about it but if that was stricken, what would be the situation then with reference to the other complaints.
Alfred L. Evans, Jr.: I presume, I cannot speak for appellants. I presume that their other complaints would continue. Their essential complaint as I see it is the attack on the upright and intelligent qualification for grand -- for jurors. As I see it, that is the principle question before the Court today.
Hugo L. Black: Well of course they do not claim, do they? That they should not be upright and intelligent?
Alfred L. Evans, Jr.: No sir they obviously do not maintain. They should not be. They say that the standard is too vague. We can only submit -- we think it’s a rather clear standard. In fact, sometimes I think when you consider constitutional attacks of vagueness on a word like intelligent or upright in the context of a juror I think that one would perhaps have to be a lawyer not to understand it. It’s a word that’s been commonly used for at least a hundred years in Georgia and is never even been attacked until recently. Yes, but anyway it’s a word that is easily understood. Only year ago in Cameron, this Court upheld in a criminal statute where the standard is higher. It upheld unreasonable interference. Well, that can be a vague phrase too. This would involve the picketing case and demonstrations on the street and this Court said it was perfectly clear the phrase unreasonably interfere. It seems to me that in the contract -- in the context of juror selection, I think that words like reason on upright are not difficult words. It’s a simple reputation of community as far as the character qualification, as far as intelligence. It is as a Georgia Supreme Court declared as the chairman of the jury commissioners declared. It is capacity to understand what it going on in court. We think that this is essential to the operation of a jury system.
Hugo L. Black: Is the State of Georgia defending the use of the words freeholders and the statute defending the right of Georgia to require that they’ll be freeholder?
Alfred L. Evans, Jr.: Yes sir. We defend. We think that that is a constitutional standard. I say I emphasize that word because I do think it would be perfectly candid. I think it’s open to question as to its wisdom. I might add that very recently I recommended to the Georgia constitutional revision committee that be deleted. I personally don’t like it but I do think it is not unreasonable. If the Court would like a reason to -- I could point out that members of the board of education have a great deal to do with fixing the tax rate. It is not beyond the realm of reason to say that it might be desirable to have persons who are directly affected by property taxes. It is not beyond the realm of reason to feel that they might be perhaps a bit more prudent in the expenditure of public funds. We think that the voting rights cases such as Harper, Cipriano and Kramer are not after a poll. The reason they are not after poll is clearly a state as the federal government can prescribe different and higher standards for the holding of public office than for voting.
Speaker: Is the voter required to be a freeholder?
Alfred L. Evans, Jr.: No, sir.
Warren E. Burger: When you link the prudence factor that you mentioned to the fact these men on the board fixing the taxes or fixing taxes for the support of almost all black schools, then that assumes another dimension. Would you not agree potential for carrying prudence too far?
Alfred L. Evans, Jr.: Mr. Justice Burger, this probably would be a danger. I would point out that the record in this particular case shows that between the time the white pupil has left the school system and the time of the litigation that per pupil expenditure went up not down.
Potter Stewart: That was perhaps because there were not many fewer pupils.
Alfred L. Evans, Jr.: I’m talking of --
Potter Stewart: For pupil expenditure.
Alfred L. Evans, Jr.: For pupil expenditure.
Potter Stewart: Say might have been a less amount of total value.
Alfred L. Evans, Jr.: It’s possible that as a matter of fact the per pupil expenditure did go up not down. They did not reduce the taxes.
Warren E. Burger: Very well Mr. Evans. Mr. Meltsner you have about three minutes left.
Michael Meltsner: In the very short time left, I’m going to try and deal with two or three of these issues. First, Mr. Justice Brennan, assuming that the court eliminates the capacity for discrimination in the upright and intelligence --
Speaker: You mean strikes down those --
Michael Meltsner: Strikes that down.
Speaker: Yes.
Michael Meltsner: We have concluded that the most appropriate remedy is for the District Court to try and make this system of selection which is ingrained in state law work and we think the way --
Speaker: I can’t hear you.
Warren E. Burger: Counsel, would you raise your voice a little?
Michael Meltsner: I’m sorry. We have concluded that if this statute is knocked down by the court, our challenge is successful that the most appropriate way for the District Court to assure that the system of school board selection and jury selection works is to appoint black jury commissioners to put them in this process. Because a very small amounted discrimination on the part of the commissioners would tip the balance in the grand jury which selects the school --
Speaker: Well tell me Mr. Meltsner, I know that such a complaint asked that on the premise statutes struck down that you wanted membership on the board of education and jury commission to be declared vacant, a receiver be appointed to operate the public schools and in selection of constitutionally acceptable board that a special master select members of the grand and petit juries and that ancillary damages be worth. Do you still press for all that relief?
Michael Meltsner: Well not, we do not press in this Court for ancillary damages but all that relief may be appropriate to the District Court to advice a system which will assure their selection.
Speaker: You don’t think a mere declaratory judgment would be enough?
Michael Meltsner: Absolutely not, after there was a declaratory judgment, 96% of the persons excluded under the statutory test were black. Declaratory judgment is not going to work. Now with respect to Mr. Justice Douglas’ question as to the freeholder requirement, this is just something I wish to bring to the Court’s attention in this point because I just discovered it really and that is that Georgia has two other ways of selecting school boards. One is a -- local law may be passed and the referendum take place and other is that area school boards may be created. Now the constitutional provisions which provide for these systems of selection say nothing about freeholders. Indeed, they delegate to the voters of the particular communities, the power to set qualifications. Thus, there can’t be very much of a state interest involved here. Finally, I just -- one more point here. Mr. Justice Stewart, these statutes with the exception of the cross-section to the community language are all reconstruction statutes. They --
Potter Stewart: They are talking about that language.
Michael Meltsner: I see. Finally, I just wish to make it perfectly clear. We do not disagree that a state has an interest in the intelligent and upright jurors. We merely assert that the test involved in the statute is not the way to achieve that end. It grants too much discretion and invites racial discrimination.
Speaker: Would you consider that if you prevail on your facial attack here that the statutes the (Inaudible)?
Michael Meltsner: I think some of them definitely will but I think in most of them, my own experience is that in most of them, there are administrative procedures grafted onto them which make the selection much fairer but certainly many of these statutes will have to go.
Warren E. Burger: Thank you, Mr. Meltsner thank you for your submission and Mr. Evans thank you for your submission. The case is submitted.


Earl Warren: Number 362, Raymond Jerean Koller and Martin Silverbrook, Petitioners, versus United States of America. Mr. Malis, you had finished your opening argument, you do?
Robert H. Malis: Yes, sir.
Earl Warren: Mr. Kestenbaum, you may proceed.
Lionel Kestenbaum: Mr. Chief Justice, may it please the Court. This case involves a fraudulent misuse of veterans priority established under the Surplus Property Act of 1944. In this Act, the Congress provided for the disposal of vast quantity of goods which would be left over at the end of the Second World War. The statutory objective included fair distribution of goods, avoidance of dislocation of the economy, discouragement of speculation, and encouragement of small business specifically aid to returning veterans was mentioned. By 1946 Amendment, veterans were given a priority second only to that of the federal government. And in addition to that, the veterans were given the exclusive right to acquire certain specific types and quantities of property which was set aside for them. These -- a lot of types and quantities and property could be acquired by veterans who desire to acquire them for their own personal use or for the establishment and maintenance of their own small business. Now, petitioners, Koller and Silverbrook were veterans who applied for and obtained these priority certificates. They -- instead of using them for the purposes to which were intended and which were certified in their application, they sold them to a third party. Koller executed two fraudulent applications and this -- his certificates were used by the third party to purchase two trucks and one car. Silverbrook's certificate was used to purchase six busses and three trucks. Both petitioners were indicted to these fraudulent acts. They pleaded guilty, and they each paid small fines. In the present case as Mr. Malis stated the third day, the Government has to enforce civil remedies provided by this Act, the Surplus Property Act of 1944. Section 26 (b) sets forth three alternative measures of recovery and the first one was the one used here, $2000 for each fraudulent act and double damages. Summary judgment was granted against Koller for $4000, against Silverbrook for $2000. The petitioners' only defense was that the suit was barred by statute of limitations because it is not been brought within five years of the acts complained of. There's no statute of limitations in the Surplus Property Act itself, the -- one rely to parties, one contained in Title 28, Section 2462 imposing a five-year limitation upon suits for a civil fine, penalty or forfeiture. The courts below -- both courts below relied upon the decision of this Court only three years ago, Rex Trailer Company versus United States and held that the recovery sought by the Government and obtained by the Government was not such as civil fine, penalty or forfeiture. Now, the petitioners do not dispute that damage to the Government could be anticipated from violations of this Act. There's none for that matter that damage was actually sustained here. And I think the problem can be put in a perspective by examining the elements of damage which the Court set forth in Rex Trailer Company versus United States. First, the policy of the Congress concerning disposal of this property were frustrated. The fraud diverted the vehicles, these 12 vehicles from veterans or other priority claimants who were entitled to them. Second, Mr. Justice Clark in Rex Trailer Company pointed out that there was a pecuniary loss suffered by the United States. The sale on these priority certificates was at a much lower price than petitioners or anyone else could have paid -- could have paid for these vehicles on the open market. So, the Government sold these vehicles for a price lower than their market value. In addition, since the fraud decreased the number of vehicles available to government agencies, it may very well be -- it could be reasonably anticipated that a -- federal agencies would have to go out and buy the same vehicles because they have been obtained fraudulently by impeachment. Third is the element of the unjust enrichment to the perpetuators of the fraud themselves. Mr. -- Mr. Justice Clark indicated these elements in the Rex Trailer case but the record there was not adequate to show its existence. Here on the other hand, we have the admitted fact that the petitioners sold their certificates to this third party for a consideration, a consideration which undoubtedly reflected the difference between the market value of these vehicles and the price which the Government was wiling to take from veterans and veterans alone. Fourth element, not mentioned by the Court in Rex Trailer but pointed out by the Third Circuit in this case. It's the element of the cause of investigation and litigation which Congress might have had in mind in setting up this measure of recovery in the Act. Now, once these items of damage -- anticipated damage are set forth then it becomes clear that what we have here in 26 (b) (1) of the Surplus Property Act is a common legislative device. To use the language in the Rex Trailer case is the fixing of a lump sum in damages in a situation where the actual damage maybe difficult or impossible to ascertain. Now, the Court also said, it is the function of liquidated damages to provide a measure of recovery and just of circumstances. The judgment for $2000 for each fraudulent act which was the one upheld in that case was held comparable to recovery under liquidated damage provisions. In the same way in Marcus versus Hess of 317 U.S., the almost identical civil remedy of the False Claims Act was involved. And the Court held there that the purpose and effect of this kind of recovery was to provide indemnity or restitution to the Government for -- for the fraud against it. The device of double damages plus specific sum was chosen, the Court said, to assure that the Government would be made completely whole. And the choice of such a sum, the discretion in fixing this kind of recovery to assure that the Government would be is whole the choice was up to Congress.
Speaker: Could you give an you give an example of what you see would be a civil penalty under the statute?
Lionel Kestenbaum: Yes, Mr. Justice. There are many such civil penalties in the U.S. code and there are many -- and there are a number of them which are exampled by cases under 2462 itself under the statute of limitations. The -- some prominent ones, I can give a few as an example. If a railroad which violates -- which fail to comply with an order of the Interstate Commerce Commission, would have to pay a certain penalty of the violation and certain number of dollars for each day during which this violation continues. A farmer who sells a certain amount of his crop above his permissible marketing quota, is subject to a penalty. A few others, a ship owner who requires a seaman to work more than eight hours a day, pay a sentence of -- is subject for the payment of a certain sum. This kind of penalty goes way back. One of the earliest ones we have is a participation in a slave trade which could result in a forfeiture of vessel and the payment of certain sum. I think the key to all these cases and each one of these situations, there was no transaction of the Government. There was no possible foreseeable liability to the Government under any contract towards principles. And so what we have in those situations, the Government is seeking to vindicate either a general public policy or the interest of a specific protected class like seaman or another situation, Indians. The statutes state that a person who surveyed Indian land illegally is subject to a penalty of $1000 which the Government can collect. Now, this line has been indeed drawn under 2462. The cases under 2462 recognize that a legislature -- the Congress or legislature of the states can establish measures of liquidated damages in a situation where it might be difficult or impossible to prove actual damage. And in no such recovery whether it's double damages, treble damages or a fix sum, no such recovery has ever been held to constitute a penalty under this statute of limitations into full with in it. The line was set forth by this Court I think quite clearly in Meeker versus Lehigh Valley Railroad, 236 United States, that where the statutory liability fix runs to readdress a private injury that is it runs in favor of the party who was injured or to whom injury was anticipated, then it cannot be a fine, a penalty or forfeiture. Hence, it's not covered by this limitations period. I think -- I'd like to point out following that -- I think the error in the petitioner's position and the error in the one conflicting decision -- that of the Court of Claims is demonstrated by their assumption that double damages is necessarily a penalty. Under 2462, this Court has held explicitly that treble damages -- that treble damage is recoverable under the antitrust laws that those treble damages are -- do not constitute a penalty or a fine. And hence, are not covered by these limitations period. What they do constitute, they constitute a measure of recovery which a legislature sought to establish.
Potter Stewart: How about the -- in addition to double damages under subsection -- subparagraph (1) there was the sum of $2000 for each act, without any reference at all (Inaudible) true, isn't it?
Lionel Kestenbaum: That's correct. Well, the -- that Section provide both the double damages and the $2000. And the Court stated in Marcus versus Hess which I referred to just a moment ago that it is a -- that the device of these two together, double damages and $2000 to recheck was the device chosen by Congress to provide full restitution. I think this case is an example of the fact that it's very difficult to prove double damages. The Government did not seek to prove double damages, and the recovery here consist only this fix sum. That's very often the case. In Marcus versus Hess which is under the False Claims Act, there was a judgment for both elements together. And the Court said, “This is a measure of indemnity, a measure of restitution for the wrong done by the Government.”
Potter Stewart: Mr. Kestenbaum, I don't want to interfere with the -- your own order of your argument but I understood in learning before you conclude a really fine information as to the suspension of the statute of limitations during World War II and as to how that fits into this case at least from your --
Lionel Kestenbaum: Yes, Mr. Justice (Voice Overlap) --
Potter Stewart: -- so far as your position goes.
Lionel Kestenbaum: I wish I have a moment. The Third Circuit, of course, recognized that the ultimate question in both the cases to which I referred in Rex Trailer and the Marcus versus Hess. The ultimate question was different and that it concerned the application of Double Jeopardy Clause.But the rationality of these decisions is what is controlling. The rationality of these decisions is dispositive in this case for petitioners conceived that if this recovery can be characterized as liquidated damages. If that's what it is, then it is not covered by this statute of limitation. And I may say in passing that the characterization, the definition of this recovery as liquidated damages was the very basis for the decision in those two cases. They can hardly be dismissed as dicta. In both of those cases, the Court held that since it was liquidated damages. Therefore, the recovery would -- was a civil recovery. And the -- that part of the -- that element in the case is what controls here. Not only is the rationality is positive. But as the Court below pointed out, Mr. Justice Clark show -- said in Rex Trailer that certiorari was granted specifically to resolve a conflict between decisions of the Court of Appeals.
Felix Frankfurter: In your view of the matter, could the defendant (Inaudible) the Government call under the witness and extract evidence from him? I'm not saying this intermittently.
Lionel Kestenbaum: In this case, Mr. Justice?
Felix Frankfurter: Yes. The nice distinction that had been taken in a civil penalty for which a civil action is brought, the verdict can be directed unlike criminal case, the jury can be told to bring in a verdict for the plaintiff.
Lionel Kestenbaum: Of course the problem is not -- is not presented here Mr. Justice.
Felix Frankfurter: I understand that. But I -- these are nice questions. I want to get light on it.
Lionel Kestenbaum: Well, seems there could be a criminal prosecution. There is a criminal penalty involved aside from this recovery which is involved here. The --
Felix Frankfurter: But you mean the $2000?
Lionel Kestenbaum: No, no. There is -- the person who perpetuated (Voice Overlap) could be proceeded against for this fraud under criminal provisions of the -- of Title 18. And for that reason, they would be protected by those --
Felix Frankfurter: I was thinking of (Voice Overlap) against United States and Heffner against United States.There are all sorts of distinction.
Lionel Kestenbaum: Well, Heffner involved a penalty. It was a -- an amount which a person could be forced to pay for soliciting immigration illegally into the United States. It would fit into what I've suggested before --
Felix Frankfurter: It's -- but the Court held as you know that a (Inaudible) can be directed in favor of the Government.
Lionel Kestenbaum: That's correct. The Court held in that case that such a penalty was a civil penalty. It could be recovered in a civil action.
Felix Frankfurter: Of course I noticed that -- I suppose I wonder when that came into the legislative phraseology. A civil fine, do you happen to know whether that was after Heffner -- you statute.
Lionel Kestenbaum: Yes.
Felix Frankfurter: Or a civil fine, penalty or forfeiture. Is that a modern trade in penalty legislation?
Lionel Kestenbaum: Well, the acts -- the statute of limitations was passed in 1839 and at that time, it referred to recovery -- as a recovery for any penalty of forfeiture pecuniary or otherwise.
Felix Frankfurter: But this is -- I'm getting myself --
Lionel Kestenbaum: I understand.
Felix Frankfurter: -- a civil fine.
Lionel Kestenbaum: In this provision, it came in when the --
Felix Frankfurter: You said it was 1839?
Lionel Kestenbaum: The statute of limitations originally comes from 1839. I think this language --
Felix Frankfurter: I don't think it was a civil crime.
Lionel Kestenbaum: I think that came in when it was codified in 1948.
Felix Frankfurter: So, that's (Voice Overlap)
Lionel Kestenbaum: Yes.
Felix Frankfurter: At the recent (Inaudible)
Lionel Kestenbaum: That's correct.
Felix Frankfurter: But if it wasn't in the older cases, which you refer to these against United States, penalty against steamship companies for bringing in illicitly aliens --
Lionel Kestenbaum: Well, I think what I meant by answering your question before, Mr. Justice was that Heffner hold that this -- this is a civil penalty. It can be recovered in a civil proceeding and this would be -- the precise kind of penalty that we claim is covered by the statute of limitation.
Felix Frankfurter: I'm suggesting that merely putting the label of a civil penalty that is a penalty which may be pursued as a civil action is not an all embracing comprehensive term because as lead shows although the action is maybe brought similarly and although verdict maybe directed, yet the privilege against self discrimination qualifies the civil act.
Lionel Kestenbaum: Yes, I quite -- I quite understand, Mr. Justice. And I think -- I think --
Felix Frankfurter: (Inaudible)
Lionel Kestenbaum: Yes.
Felix Frankfurter: -- saying this is a civil penalty and it doesn't add all legal purpose may answer your question.
Lionel Kestenbaum: I think I'd like to point out in connection with that, that in one sense, the problem presented with respect to such recovery under constitutional provisions is a much more difficult one than the one we have here. Under the ones to which you referred, it could be -- it could be argued that whatever Congress said is not controlling. As Your Honor just stated, the Congress is of course restrained by these constitutional provisions, and you cannot --
Felix Frankfurter: The Congress in the instances we're talking about.
Lionel Kestenbaum: Yes.
Felix Frankfurter: The Congress didn't say anything. This is all court fashion. Heffner is court fashioned anything against United States (Inaudible)
Lionel Kestenbaum: I understand, Mr. Justice. The point that I was making --
Felix Frankfurter: And the answer was derived from policies behind, respective claims that were asserted.
Lionel Kestenbaum: Yes. And the answer was derived I would think also from the problems of interpreting and applying this constitutional provisions. In that sense, our case is much easier for awhile Congress cannot alter or cannot transgress this constitutional provisions. What we have here is a statute of limitations problem which is wholly within the power of Congress. As it sees fit, Congress can either decide to impose a limitation period upon claims accruing to the United States or cannot do so. Ordinarily, in civil situations, there is no limitation period against the Government.
Felix Frankfurter: What do you do with Priebe? Is that the name of the case I'm thinking of?
Lionel Kestenbaum: Yes, I think there is a name -- there is a case by that name, Mr. Justice. That case held that a liquidated damage provision set forth in a government contract was a penalty and therefore it could not be enforced. But here of course, we have one established by Congress. So, there's no question about its forcibility, the only question is what are the consequences of this kind of measure of damages.
Felix Frankfurter: But before you -- before the Court got to that it has to decide whether it's a compensatory provision or merely an exact (Inaudible).
Lionel Kestenbaum: That's correct.
Felix Frankfurter: So that the question, in a way, is the same as this, wasn't it?
Lionel Kestenbaum: That's correct, except -- if Congress -- the point I was just making in distinguishing this situation from a constitutional problem is that --
Felix Frankfurter: I'm talking about Priebe --
Lionel Kestenbaum: Yes.
Felix Frankfurter: -- is it a constitutional question at all.
Lionel Kestenbaum: I understand that. But in this situation, my point is that if Congress has indicated its intention, its characterization of this kind of recovery as a measure of compensatory recovery, then that simply settled the issues since the matter is one wholly within the power of Congress.
Felix Frankfurter: If it has, so clearly you and I wouldn't be here on this point.
Lionel Kestenbaum: Well, I may say that every Court other than one Court, the Court of Claims has held that this is clear -- this is a clear intention that has been a clear intention of Congress and clearly expressed.
Felix Frankfurter: The fact is that this is merely a question of ascertaining damages and the violation of a contract or ascertaining damages for breach of what we called thought.
Lionel Kestenbaum: That's correct.
Felix Frankfurter: There is a determination here of fixation -- fixing at the outset by Congress so as not to pursue the controversy of litigation except -- but there's an element of smart money, isn't it?
Lionel Kestenbaum: Yes, I --
Felix Frankfurter: -- because you say you can ascertain what the actual damage is, as you do in ordinary contracts on both cases.
Lionel Kestenbaum: That's correct.
Felix Frankfurter: That's what the jury gets.
Lionel Kestenbaum: Yes.
Felix Frankfurter: And therefore, when they say, “Well, a statute of limitation is -- also have a policy. The longer statute relates to a more serious business and shorter statute (Inaudible) You want to leave time openings for all the delays and the uncertainties of getting the litigating process --
Lionel Kestenbaum: Or when the Government is -- when the Government is involved, Mr. Justice, in ordinary civil recoveries, the Government has no statute of limitation applicable against it.
Felix Frankfurter: The Congress seemed fit to fix one.
Lionel Kestenbaum: Seem fit to fix one in a civil fine, penalty or forfeiture area. And what I was stating before was that if the Congress has indicated its intention that this is a compensatory device, then that would settle the issue even though just taking it apart from that congressional intention and we might have a -- we might have a problem upon which you might differ.
Felix Frankfurter: That's your burden to show that this is clearly compensatory and not an additional smarty.
Lionel Kestenbaum: Well, I would -- I would put it two ways. One, that we believe that Rex Trailer and the -- and Marcus versus Hess hold that this is a compensatory device. And second, that Congress has clearly indicated this intention -- this characterization as its intention. And that therefore, that settles the question. As far as the intention of Congress is concerned, the Court stated it. The Court set it forth in Rex Trailer. I will just repeat these elements for a moment here. Congress, in the first place, copied Section 26 (b) (1) from the comparable provision of the False Claims Act. And this Court, just a year before the Surplus Property Act was passed, this Court had held the same recovery, $2000 for each act and double damages to constitute a compensatory civil remedy. As Mr. Justice Clark said in Rex Trailer, obviously, when Congress copied this language, it intended a similar compensatory device in this act. Second, Congress specifically designated the two alternative measures of recovery in 26 (b) as liquidated damages. The petitioner's argue that that indicate some sort of distinction between subdivisions (2) and (3) and subdivision -- subdivision (1) which are set forth on page 3 of our brief. But I think the answer to that in the first place contained in Rex Trailer itself. The Court said that each one of these three alternatives can be selected by the Government at its option and each was of the same nature. If there has to be an explanation, I think the explanation lies in the chronology to which -- which I just referred. Since this Court had already held 26 (b) (1) or its equivalent to constitute a measure of liquidated damages, the Congress began with it that it did not have to characterize it. This Court has already done so. And then added on these two alternative methods which the Government -- which the United States could allege and each one of those was characterized by the Congress as liquidated damages to assure that it will be treated the same way. Turning to the suspension provision to what Mr. Justice Stewart referred a moment ago, I think that no contrary implication of a congressional intent can be drawn from that suspension provision. That a suspension applies to a number of statutes under which the government proceeds. And even if it does cover also civil statute of limitations as well as criminal statutes, even if it does cover civil statute, even if it does hold civil statute of limitation, there is nothing to intimate -- there's nothing in its passage to intimate that Congress thought there was a civil statute which applied to the recovery in the Surplus Property Act. The Third Circuit not only relied upon the rationale of this Court's decision in Marcus versus Hess and in Rex Trailer but it pointed out as I was stating a moment ago that certiorari had been granted in Rex Trailer to resolve a conflict between the Courts of Appeals. And that's conflict, the conflict referred to was the conflict on this precise issue, the statute of limitation issue. The Third Circuit said that it believe that the Court in deciding Rex Trailer must have resolve the very conflict to which it had referred in its opinion. And we submit that the Third Circuit was justified in reaching that conclusion. And the same conclusion had, as I indicated, been reached by every other court that has been faced with this problem other then the Court of Claims. As I already have indicted this conclusion below is demonstrated to be correct by the uniform interpretation of the statute of limitation itself. Petitioners have cited various cases using the words penalty. But not only do they ignore the holdings of this Court in Rex Trailer and in the Marcus versus Hess but they also ignore this uniform interpretation of the statute of limitation itself. This Act has been on the book since 1839 and -- and as I've stated, it has never been applied to a measure of recovery fixed by a legislature as a mode of liquidated damages to which an injured party can rely upon.
Speaker: (Inaudible)
Lionel Kestenbaum: We contend, Justice first that it is not -- cannot be called civil penalty that this Court had already held that it is not a civil penalty.
Speaker: (Inaudible)
Lionel Kestenbaum: We would contend, Mr. Justice that even if it might be going on a civil penalty for other purposes and as far the statute of limitation is concerned, the Congress has sufficiently indicated that it is not covered by the statute, that it is comparable to a civil compensatory action for damages. And for that reason, this congressional intent is conclusive on this issue. This issue being one which I have indicated is wholly within the power of Congress.
Speaker: (Inaudible)
Lionel Kestenbaum: I think I've tried to answer very briefly, Mr. Justice just a moment ago.
Potter Stewart: I didn't hear that.
Lionel Kestenbaum: Yes. The -- I stated that a suspension does not indicate a contrary congressional intent since it applies to a number of statutes which cover frauds against the United States.
Potter Stewart: What was -- what statute of limitation was suspended and when and for how long?
Lionel Kestenbaum: Well, the statute -- as the suspension statute indicates, it's set forth in page 27 of our brief. It applies to all offenses. Any existing statute of limitations applicable to any offense involving fraud against the United States, there are a number of such criminal penalties set forth in the United States code and each one of those would be told until three years after the termination of hostilities.
Potter Stewart: And this -- this would have applied to the -- to the criminal offense under which these people were cross -- were convicted.
Lionel Kestenbaum: That's correct.
Potter Stewart: And that's -- any applicable statute of limitations applicable to that offense was extended or (Voice Overlap) --
Lionel Kestenbaum: That's correct, yes. Now, there are some disputes as to whether it applies to civil statute. Our brief indicated that it did not or there are some lower court -- District Court holdings that this also told civil statues of limitation. I may say that the False Claims Act, the one involved in Marcus versus Hess had a civil statute of limitation. So, even if the Congress was intending by this suspension to affect civil statute of limitations, there is another one which it might have wanted to affect. There's certainly no intimation that Congress thought there was a civil statute of limitations applicable to this statue, the Surplus Property Act of 1944. There is none in this civil -- in the Surplus Property Act and the False Claims Act had to contain a specific statute of limitations in order to have one applicable to it. Does that answer your question Mr. Justice?
Potter Stewart: I'm not sure that it does. I -- would it be your position that the specific statute of limitations in the False Claims Act was told by this legislation or not?
Lionel Kestenbaum: The Government has taken that position in a number of District Court cases and has -- those District Courts have so held. But I was -- my position is that whether or not this applies to a civil statute of limitation, it certainly doesn't indicate any congressional intent that there was a civil statute here for the False Claims Act itself had to contain its own civil statute. The False Claims Act does not rely upon any civil statutes applicable to fines, penalties or forfeitures which is the one which we have here.
Potter Stewart: But was that act to False Claims Act under which Marcus against Hess was decided.
Lionel Kestenbaum: That's correct. So, I've got stated the Surplus Property Act involves not an attempt by the Government. It has indicated general public policy or the interest of a protected class, it involves a situation in which damage to the Government could have been anticipated. Just as Congress can fix a measure of recovery such as double or treble damages involving private plaintiffs so it can fix the same kind of measure when the Government itself was the one which was injured. And as this Court has held and as Congress intended, the civil remedies in this act constitute a measure of liquidated damages to the party injured here in the United States. And for that reason, the statute of limitation for penalties and forfeitures is not -- not applicable.
Robert H. Malis: Mr. Chief Justice.
Earl Warren: Mr. Malis.
Robert H. Malis: May I, Mr. Justice Stewart, perhaps more actively answer your question, 56 Stat. 747 is the citation of the original suspension section enacted in 1942. In 58 Stat.649, this was enacted July 1st, 1944. Certain important language was changed. The earlier statute clearly was a criminal suspension act. It applied to offenses indictable under the law. It's so stated when two years later in July 1st, 1944, the Contract Settlement Act in the law, the language offenses indictable was deleted and the statute was expanded to include acts, transactions and so on and applied to specifically the Contracts Settlement Act. In 1954, in October, three months later, and in the same volume of the statute at large, 58 Stat. 765, the Surplus Property Act contained an amendment to this suspension of limitation section. That is Section 28 of the Surplus Property Act and I submit to this Court that --
Potter Stewart: And that -- that Act, the Surplus Property Act which is the one here involved --
Robert H. Malis: Yes.
Potter Stewart: -- was originally enacted 1944, is that right?
Robert H. Malis: Yes, sir. It was. And at that time --
Potter Stewart: And part of that Act was an amendment to the suspension of the -- of the statute of limitations?
Robert H. Malis: As it had been amended, only three months before --
Potter Stewart: It had been amended earlier 1944.
Robert H. Malis: Yes, sir. That is exactly correct. And we submitted on our earlier portion of the argument that Section 28 is that suspension section relating to acts, transactions, and offenses. Not only offenses now indictable and that it follows by two sections, the subject 26 (b) (1) here on the consideration. We submit that the Congress definitely must have intended or assume that the provisions of the Surplus Property Act ant the Contract Settlement Act in each of which statutes, they took the trouble to enact suspension sections were bound by or governed by limitations. Otherwise, the presence of those suspension sections in that very act containing no criminal aspects of its own would be a rather unusual method of draftsmanship. Now, the Government assumes in their argument that we agree that these damages exist.We definitely do not agree on any such thing. There is nothing in this record at all which relates to damages to a program or damages in any other sort other than the offenses complained of were committed. As a matter of fact, the super priority which is referred to by the Government was not enacted until two of the three acts complained about had already taken place. The super priority section as it's been referred to was enacted on May 3rd, 1946. And it gave the secretary the right to delegate or to separate certain of the surplus vehicles for the benefit of veterans if he so chose. However, the two acts, the first two acts have already occurred then. There is no evidence whatever that any such delegation ever took place during the offenses complained off in this case, none whatever. We feel that there should be and there is a differentiation between a penalty as the language uses it and the purpose for which that is applied. As Mr. Justice Frankfurter pointed out, the question of penalty may be applied in an international law sense where one state enforced the law of the state of another. It may be applied as to double jeopardy as it was in Rex Trailer and Marcus. It may very well be applied to determine whether a defendant be required to testify. Now, none of those issues have been before the Supreme Court of the United States as applied to the statute of limitations. It is true, and I am somewhat interested as to why, in Mr. Justice Clark's opinion. He says, we took certiorari -- we granted certiorari because of asserted conflict and it wasn't until -- as read in the Government's brief that they -- they had joined in that request rather than opposing it as here.
Speaker: (Inaudible)
Robert H. Malis: I beg your pardon, sir.
Hugo L. Black: The conflict involves limitations.
Robert H. Malis: The conflict involves limitation. The issue involves double jeopardy and as we respectfully stated, I hope in our brief -- after merely -- a footnote reference to it -- the Court exclusively devoted itself to double jeopardy. That's why we say, sir that we are here for the first time on the question of limitations. And we -- we do very hardly recommend the Priebe case as Mr. Justice Frankfurter was questioning the Government.
Speaker: (Inaudible)
Robert H. Malis: The previous cases is one which sets forth quite clearly that in the absence of any measure of damage or any proof of damage whatsoever, an interorum provision to be applied upon the occurrence of an event regardless of whether any actual damages sustained or not is a penalty. And the language in that case has been followed and it's the foundation for the law as we understand liquidated damages. The final point that I think we should make regardless of all the cases cited by the Government, there is not one which contains a provision for $2000 or its ilk and a multiple or a fraction of provable damage in every case, Helvering and Mithcell, Huntington and Attrill all those cited in our briefs and in the Government's brief. Nowhere is there a situation which says take $2000 and double or a half of the provable damage. That $2000 was decided in Marcus and Hess to be collectible regardless of any proof of actual damage whatsoever. And with the --
Speaker: (Inaudible)
Robert H. Malis: It would, sir. And as I pointed out in my brief, if there were seven defendants who conspired together, but committed not one over a day, however, these seven defendants would each be liable for the $2000.
Speaker: How do you distinguish this statute from the treble damage point?
Robert H. Malis: Well, the Congress has clearly indicated the -- that 26 (b) (2) and (3) are liquidated damages. They've so stated. In our brief, we say that that determination is not before us. When they add $2000 to a multiple, and the multiple -- you'll see, Your Honor pleases, the multiple stands for its foundation upon proof of actual damage. And the jury returns the verdict the Government has been damaged for $1000. Then we doubled it. This is in a sense, compensatory. It is smart money that Congress has said, “It is given to the person injured.” Here, however, the basic distinction and the damages lies in the accessibility of that $2000 forfeiture or stipend as the courts have referred with, irrespective of one nickel worth of damage or any proof of any damage. Plus, when added to it, double the amount. You see, this is really intended to enforce the policy to prevent to punish. And it is this sort of thing that the Congress in enacting 2462 and referring back to Your Honor's opinions in Marcus and Hess said, “We may recover such a thing in a civil suit.” If this is the philosophy of the Court and the language which the Court uses to define this $2000 26 (b) (1) and then for hundred years, the Congress has failed to repeal the existing statute of limitations in the False Claims Act further indicating its satisfaction with it and the fact further that Congress in 1948 reenacted this 100-year-old statute of limitations. These things are all in my mind, indicative of an intention and an understanding that 2462 regardless of what we call 26 (b) (1), whether we call it penalty or forfeiture or civil crime or compensatory, for the limited purpose of limitations as oppose to double jeopardy or international law. But for the limited purpose of limitations, we urge that the Congress understood 2462 to full and rely upon and to govern such a suit. All the Government had to do here, they had nine years legally. All they had to do here was to institute suit before the suspension section applies. I -- I commend to Your Honors the case of McKenna versus Armour which was affirmed in 254 F.2d 90 and certiorari denied in this Court in 358 U.S. 834 this year -- 1958 in which that point of the suspension section applying to civil actions was decided. And so, we urge this Court to reverse the judgment of the Court of Appeals solely on the ground that the Government started 10 years after they should have. Five years after the men were indicted and that they are bound by the statute of limitation.