Bates v. City of Little Rock

PETITIONER:Bates
RESPONDENT:City of Little Rock
LOCATION:Superior Court of Bibb County

DOCKET NO.: 41
DECIDED BY: Warren Court (1958-1962)
LOWER COURT:

CITATION: 361 US 516 (1960)
ARGUED: Nov 18, 1959
DECIDED: Feb 23, 1960

Facts of the case

Question

Audio Transcription for Oral Argument – November 18, 1959 in Bates v. City of Little Rock

Earl Warren:

Number 41, Daisy Bates et al., Petitioners, versus City of Little Rock et al.

Mr. Carter you may proceed.

Robert L. Carter:

If the Court please, the question involved in this litigation concerns the constitutional validity of two ordinances and petitioners’ conviction there under.

The ordinances were enacted by the City of Little Rock, and by the City of North Little Rock, as amendments to what is known as their occupation license ordinance and they’re set out — we’ve set out the Little Rock ordinance on page 6 and 7 of the brief for petitioner but the ordinance of North Little Rock is identical.

This ordinance or these ordinances require that any organization operating within the confines of the municipality give on demand information concerning the organization to the City Council and on page 7 is a list of the things that the ordinance demands, the name of the organization, the official place of business, the name of the officers, the purpose, or purposes of the organization and Section E, the financial statement of the organization with fees and assessments and to whom such (Inaudible) paid in an affidavit from the president of the organization if it is an — an affiliate of a national group of what that group is.

Pursuant to these ordinances, demands were made on petitioners here for the information.

Potter Stewart:

Mr. Carter, I don’t like to interrupt you so early in your argument but there is something that is not at all clear to me.

You told us I think that the ordinances are identical.

Robert L. Carter:

Yes, sir.

Potter Stewart:

The Little Rock and the North Little Rock ordinances and yet in the — in the brief filed by the respondent, City of Little Rock, which is the only respondent’s brief have, North Little Rock not having filed one as I understand it, a statement is made on page 4 that there are significant differences in the facts of the Little Rock and North Little Rock cases.

Could you tell us what you think they mean by that?

Robert L. Carter:

Well, there are — there are significant differences.

What was meant was that in the reply to the ordinance, in reply in terms of the information, I gather that the Mrs. Williams in — in North Little Rock gave what the — Mr. Kemp, and this City of Little Rock is contending, complied more fully with the statute.

Now I will — if you — if you’ll give me time, I will meet that —

Potter Stewart:

Do it in your time?

Robert L. Carter:

— argument in —

Potter Stewart:

Something that’s —

Robert L. Carter:

— in one moment —

Potter Stewart:

(Voice Overlap) to me as —

Robert L. Carter:

— as soon as I get the facts of problems, Your Honor.

The — pursuant to — to these ordinances, demands were made on these petitioners and they complied with the ordinances by sending out information as requested.

Mrs. Williams sent a letter to the Little Rock, the North Little Rock City Council which is set out on page 40 of the record in which she gave the names of the officers, the official place of business, indicated that the purpose of the organization by quoting from the Articles of Incorporation of the National Association for the Advancement of Colored People, a financial statement with regard to it, but refused to give the names of members and contributors on the grounds that these people might be subjected to various kinds of reprisals and that therefore, she could not afford to give the — the names up and secondly, that the city had no authority to demand this information because it was an invasion of the First Amendment rights.

William J. Brennan, Jr.:

Well, was there any requirement for the names of the members of the party?

Robert L. Carter:

I’m sorry.

William J. Brennan, Jr.:

Any requirements for the names of members?

Robert L. Carter:

Yes, sir.

William J. Brennan, Jr.:

Where — where does that appear?

Robert L. Carter:

Now —

William J. Brennan, Jr.:

Where does that appear in the ordinance?

Robert L. Carter:

In Section E and this is —

William J. Brennan, Jr.:

Well, now, the names of members?

Robert L. Carter:

The — the city — the — the Supreme Court of Arkansas has construed the statute as requiring the names of members and contributors.

The — the — respondent here contends that Section E can be construed or could be construed as merely requiring a list of financial contributors.

Now, insofar as we’re concerned, this makes no difference since financial contributors includes the entire membership list.

But I don’t believe that the — the respondent can make this kind of contention in view of the fact that the Supreme Court of Arkansas has construed the statute as reaching membership and — and contributions and in — my understanding is that we are bound by that interpretation as this Court in the analysis of these problems.

Potter Stewart:

It — it so construed it in this very case?

Robert L. Carter:

Yes, sir.

Potter Stewart:

And you have in mind where in the record that —

Robert L. Carter:

Well, in the opinion —

Potter Stewart:

— construction appears?

Robert L. Carter:

The Court speaks — the Court speaks on page 44, the Courts and throughout — on page 74 of the record, I’m sorry.

Felix Frankfurter:

74?

Robert L. Carter:

74 of the record in the second sentence of the second paragraph.

The Court says, “Furnishing of membership list of nonprofit organizations in Arkansas as the basis of being deter — determined a nonprofit has been the rule in Arkansans since 1875.”

And it goes — goes on to indicate that further in the — in the opinion that the requirement that members and contributors be furnished, is not an invasion of any constitutional rights which have been asserted by the petitioner here.

So that — and it — and analyzes the decisions of this Court which it indicates gives —

William J. Brennan, Jr.:

Well, are you suggesting Mr. Carter that’s an interpretation of — of E of the ordinance?

Robert L. Carter:

Yes, sir.

We — we argued — this case was — was briefed and argued in the Supreme Court of Arkansas and at the — at the trial of this case throughout the trial, as a requirement that the names and addresses of members and contributors be furnished.

We raised this issue in the Supreme Court of Arkansas contending that if the statutes that required this, it was a violation of the First Amendment rights.

The Supreme Court of Arkansas indicates, deals with this question that we’ve raised and indicates that this is no infirmity in the statute even though — in the ordinance even though this is required.

So that, as far as our understanding of the opinion of the Supreme Court of Arkansas, it is that the — the this — this — the ordinance reaches membership list and contributions, but that — in reaching it, it is — it is being done as the — the exercise of a valid taxing authority of the State — of the City of North Little Rock and Little Rock and therefore, the breach of First Amendment rights is mere incidence of this and it has to be sustained.

William J. Brennan, Jr.:

May I ask you one more question?

Robert L. Carter:

Yes, sir.

William J. Brennan, Jr.:

Is there in the record what you just told us, namely that there’s an identity of contributors and members?

Robert L. Carter:

No sir.

We — I’m — I’m merely give — giving the — we took the position that the — that the ordinance required the listing of members and contributors.

As you will note in the letter which I’ve just indicated on page — which — on — on page 40 and 41 which Mrs. — and 42 which Mrs. Williams signed.

The — we cannot give you any information with respect to the names and addresses of our members and contributors or any information which may lead to the ascertainment of such information, setting forth the reasons why this was being refused.

We were — we — and when we went to — into Court and went to the Supreme Court of Arkansas, this was the — this was the issue which was put was —

Is the indictment —

Robert L. Carter:

— was dissented.

— or the information under which you were tried in the record?

Robert L. Carter:

No sir.

The — the — it’s a mere recital that we were tried for the violation of this ordinance.

Did that charge you with failing to submit the membership list, do you remember?

Robert L. Carter:

Well, I will — I have one more thing.

I think if — if —

Charles E. Whittaker:

Well, Mr. Carter —

Robert L. Carter:

— I may refer your attention —

Charles E. Whittaker:

Mr. Carter, before you do that, isn’t there a more direct answer to Mr. Justice Brennan’s question?

Does not Subsection E of this ordinance provide for financial statement of dues and by whom paid?

Robert L. Carter:

Yes, sir.

Charles E. Whittaker:

Well, would not that include all members?

Robert L. Carter:

Yes sir.

The — the — I think that the confusion which is — had come is because of — that the respondent has contributed, is — is saying that this section could be interpreted as to not to include a membership list.

Our view of this is that the Supreme Court of Arkansas has construed the statute as reaching members and contributors.

And it was so treated and therefore, insofar as this, as our problem before the Court is concerned, we are bound by that construction and the ordinance must be read as reaching that problem that there is no — so that, the difference between members and contributors is not really before the Court.

Charles E. Whittaker:

Maybe this isn’t the time to raise the question that is in my mind.

How do we get to the question of whether or not there is constitutional right to require the deduction of that material, when, as I read this ordinance there is no duty placed by it upon individuals to furnish information?

Robert L. Carter:

What —

Charles E. Whittaker:

Section 2 makes the duty to develop solely upon the organizations, doesn’t it?

Robert L. Carter:

Yes, sir.

Charles E. Whittaker:

And for breach of duty, it would be the organizations’ breach.

Is there anything in this ordinance that makes the — that imposes the duty upon the individuals?

Robert L. Carter:

Well, the duty which the — the trial court and the Supreme Court of Arkansas treated the duty on the petitioners as custodians of the records of the members — membership list and the contributors list of the organization and assumed that the petitioners were being called upon to supply this information for the organization and that therefore, their failure to do so that the ordinance — that they had violated the ordinance.

This is how — this — this is how the case was tried and this how the case was — was decided both in — in the trial court and in the — and in the Supreme Court of Arkansas.

Charles E. Whittaker:

Now does that raise a due process question in your view or are you simply relying upon the terms of the ordinance in contending that it violates First Amendment rights?

Robert L. Carter:

Well, I — our — our feeling on this is that insofar as the custodian of the membership list of an organization is concerned that the custodian is the person, since these — these are penal — is the penal statute that the custodian of the membership list on refusal to give up the membership list is — if it is required that the custodian could be reached.

And we did not and the Court raised any issue with respect to the fact that whether they could reach the organization or the custodian of the membership list.

Robert L. Carter:

We took — we — we based the assumption on the fact that they — that the custodian could be reached because having the membership list and refusing it that they could be reached by the statute and this is how — this probably (Inaudible)

Charles E. Whittaker:

Whether that might be contested or not, you make no point of it?

Robert L. Carter:

Yes, sir.

We made no point of it below and we don’t think we’re in the position to make any point of it here.

William J. Brennan, Jr.:

Well, I notice also, Mr. Carter that the trial, it opened with the stipulation, I’m looking at page 5 and 6 between Mr. Kemp, apparently, attorney for the city and the attorney for Mrs. Bates which includes that the violation of the ordinance was — and that it failed to supply the names of the membership of that organization.

Robert L. Carter:

Yes, sir.

I —

William J. Brennan, Jr.:

He stipulated that —

Robert L. Carter:

Yes, sir.

This was the — this was the issue.

I might add, if the Court please, one other issue which I think that the respondents make which they cannot make at this stage of the proceeding on that — that particular point.

They seek to argue that insofar as Mrs. Bates is concerned that her conviction can be sustained aside from the question of the validity of the demand for the membership list because they contend that Section E, that she did not comply with Section E by making a full statement to the — to the — which they say is demanded through the City Council.

This stipulation on — on page 6, it seems to us forecloses that because the stipulation was that the only manner in which there had been a failure to comply with the ordinance was — was the failure to give the membership list.

This is how the case was argued, briefed, tried and treated in the Supreme Court of — of Arkansas.

And we do not think that the defendant respondents can at this stage of the litigation say that there is anything else in the case.

So, our contention is that the only issue in the case in terms of the failure to comply with the ordinance is whether petitioners were required to supply to the — to the city the names and addresses of their members since they complied in all respects according to the stipulation at trial with every other phase of this — of the ordinance which is now before the Court.

We make two contentions in — in respect to this problem.

I might — I might say if I will to complete the facts that both Mrs. Bates and Mrs. Williams were tried separately, that they were convicted and fined.

They — appeals were taken to the Supreme Court of Arkansas where the cases, although separate, were consolidated because of the fact that they raised the same issue.

And the Supreme Court of Arkansas held that our contentions that these statutes are unconstitutional were without merit, with two justices dissented but with no opinion and the case is here.

I am advised the City of North Little Rock has not trialed in affirmance here, but Mr. Kemp, in representing the City of Little Rock since the statutes — the ordinances are the same, I — I think that the issues which are involved here can — will be presented.

Now to — back to the first question that Mr. Justice Stewart asked me about the differences, I think that what was a alluded to here was that the — the arguments that I’ve just referred to that Mr. Kemp believes he can make and which I don’t believe he could make here, and that is that there was compliance with the statute insofar as Mrs. Williams was concerned because she gave a more detailed statement in respect to her — her financial statement which he indicates is required by Section E of the ordinance.

But our contention is that in view of the fact that there was — has been has a stipulation that the only failure to comply with the ordinance was the failure to give a membership list that this contention can’t be made and therefore, there is — there — there are no differences in the facts, the essential facts in this case.

Potter Stewart:

That stipulation was made in the Little Rock case not in the North Little Rock?

Robert L. Carter:

Yes, sir, made in Little Rock.

Now, we make briefly three contentions.

We contend first that if this is not tax ordinance, that it is unconstitutional in view of the fact that there is the demand for the names and addresses of members and contributors and therefore, that N.A.A.C.P. versus Alabama is controlling.

We contend that if it is tax ordinance as the Supreme Court of Arkansas has — had held that it is a tax ordinance, that in the application of this ordinance to us that the Supreme Court of Arkansas has failed to meet the standards which this Court held must be met in this kind of situation in Speiser versus Randall.

We contend further that if the Court disagrees with our — our — with us and that this is a valid tax ordinance and that it has been applied without due process arguments — without a due process argument being — without being able to make a due process argument as to its application that nonetheless, the ordinance is unconstitutional in that, there is no reasonable relationship between the objective of the ordinance which is to determine tax status and the demand that the disclosure of names and addresses of members and contributors be given.

Now, the — the first question that that is — that this is which we — it is our view that realistically, that this is not really a tax ordinance, the purpose of this act — the purpose of this — of this ordinance in both the Little Rock and North Little Rock was an effort to curb the activities of the N.A.A.C.P. branches in those areas because it has been found that the — the most effective way to curb the activities of the association in areas in the South is by the publication, public disclosure of the names of the members and contributors because this has, as the record in this case discloses, fact is frightening things for people.

Robert L. Carter:

And what will happen is the people become afraid to participate in the organizational activities.

They are often as the record also discloses when they are so identified as Mrs. Williams and so forth, they are subject to various pressures.

So that, our view it is that this was the purpose of the ordinance.

How do you show that, Mr. Carter?

Robert L. Carter:

Well, I want to — I will come to this.

I think that — I’m — I’m talk — what I’m trying to say is that this is realistically what we regard as the purpose and effect of the ordinance.

We went — we attempted to indicate in the record to — to obtain testimony from the — from those who were the authors of the ordinance as to what its purpose was.

And in this, to attempt to show that in — insofar as the purpose of the ordinance was concerned and that, that there was testimony in the record by the sponsors of the two ordinances, that what was desired was to — in one instance to find out what was going on in the organization and secondly, to find out whether there were violations of gambling ordinance and so forth.

We believe, we don’t to — in order to show this, we think of course that from the — from the stand point of the legal position, in which we are at the present time, we maybe required to accept and the — the Court may not want to go behind the analysis of the ordinance which the Supreme Court of Arkansas has made up, and that is the — the tax ordinance.

But our — my argument was addressed to the fact that what I considered to be the realistic purpose of this ordinance that we call the “Bennet Ordinance” which is the — the Attorney General of the State of Arkansas and there has been no reasons, we think, to support the ordinance on any tax for a tax purpose shown in this record or by the Supreme Court of Arkansas.

Now —

Felix Frankfurter:

Does the record show, Mr. Carter, how many organizations are potentially subject for this ordinance, and number two, how many organizations in fact comply with its requirements?

Robert L. Carter:

The record does not show how many organizations are potentially subject to the ordinance.

The indications are, the argument of the respondent is that all organizations are subject — all organizations are subject.

Felix Frankfurter:

I’m wondering in number, is there —

Robert L. Carter:

No, sir.

Felix Frankfurter:

— we know?

Robert L. Carter:

No, sir.

I, and I do not know.

I think that there is some evidence in the record or in the brief of the respondents that some six organizations, some five or six other organizations have complied with the — with the requirements of this particular statute.

Felix Frankfurter:

And nothing to indicate how many are subject to it —

Robert L. Carter:

No, sir.

Felix Frankfurter:

— if it is indiscriminatingly enforced?

Robert L. Carter:

No, sir.

The —

Felix Frankfurter:

Are you suggesting or is it part of your argument, although sufficient here that in fact, this is, though generally helped direct to begin and enforce against the N.A.A.C.P. and against other amenable organizations?

Robert L. Carter:

We think that, Your Honor, but I —

Felix Frankfurter:

Do you mean to say that what might be — what’s in the back of their heads within actual enforcement and operation of the statute?

Is there anything in this case to indicate the N.A.A.C.P. was singled out?

Robert L. Carter:

No.

Robert L. Carter:

I don’t think that I would be in a position to make that kind of argument.

We did not make an equal protection presentation in the court below because we were in no position to get the information in respect to how it had been applied.

As I’ve indicated, our feeling is that this is — this is — that the ordinance is directed against us and that we are the only organization which had — which they have sought to seek to comply with the statute.

Felix Frankfurter:

Would in — would in compliance or non-compliant be a matter of public record in the Little Rock?

Robert L. Carter:

Yes, sir.

Felix Frankfurter:

So one could easily find out?

Robert L. Carter:

Yes, sir.

The — I suppose that the most serious contention which has been made with respect to this ordinance is the — the analysis of it by the Supreme Court of Arkansas.

The Supreme Court of Arkansas construes this ordinance as being an exercise of a valid taxing authority of the State.

Now, if I may bring the Court’s attention to page 5 of our brief?

State of Arkansas, in 1947, enacted Section 19-4601, the pertinent portions of which we’ve set out on page 5 and top of page 6.

This was a grant to municipalities in the — in the State of Arkansas of authority to secure from persons, firms and corporations engaged in various kinds of businesses and professions and callings in their respective communities, a privilege or a license tax for the — for the privilege of doing business, of doing this kind of business within the confines of the city, an annual license tax.

The statute sets out that the — this — the municipalities are empowered to — to levy the tax on the trade, on the — on the character of the — to differentiate of — with respect to the character of the calling and they can levy it on the goods and stocks, but they cannot make a levy on — on income or earnings.

Pursuant to this grant of authority, and I’m only going to discuss Little Rock because — Little Rock of the ordinance because of the facts that as I’ve indicated, they are identical.

Little Rock enacted an ordinance, 7444 and this ordinance may set a various classifications of persons who were at trades, businesses and callings within the city.

This ordinance, a copy of which in the record in the clerk’s office, we did not print it, levies a tax either a flat tax on it — on a profession.

It levies a tax based upon the character of the business for example, a tax is graded in the on with respect to parking lot, the tax might be graded based upon the number of cars that are parked each day.

The tax on mechanic shops, the tax may be levied based upon the number of — of persons who are employed.

There are — in this particular statute, there are about a thousand classifications which are subject to tax.

In order to engage in the occupation listed, before you can engage in this occupation, you are required to pay this particular fee and to pay it annually.

The city collector then issues you a license in your name, indicated for what period it is supposed to operate and you are required that have this license on public display in your place of business and — and if you are an attorney, you’ll — the license is supposed to be in your office.

Now this ordinance, 7444, was amended several times when various other businesses came into the city and added classifications where to — were taxed.

The Supreme Court of the State refers to a Section 7809 and I would point out to the Court that on page 15 and 16 of petitioners’ brief, we have listed the various amendments and where they will be found in the unprinted record.

17809, which the Supreme Court of Arkansas refers to, granted to charitable institutions, who engage in the business of manufacturing or selling, an exemption from the payment of the license tax.

Then the present ordinance with which we are now dealing was enacted, last year.

You will note that this ordinance recites that the — and it’s whereas clauses, that whereas many organizations claiming exception from 7444, the original occupation license tax, are that their claim of exemption is a mere subterfuge and that they are really operating for profit and therefore, this ordinance was passed in order to determine tax there.

The Supreme Court of Arkansas construes our position in this particular litigation as being that the N.A.A.C.P., one, is subject to — to 7444 and its amendments.

In other words, that we are either engaged in an occupation or some kind of occupation which is subject to tax, and two, that we have claimed an exemption from the occupation.

There is no evidence in the record to establish by the city that; one, that the association has engaged in any occupation which is subject to license under this statute — under these ordinances.

Two, there is no evidences in the record that we have claimed any exemption because of the fact that not being engaged in the occupation which was subject to license, we had no occasion to claim any exemption at all.

Robert L. Carter:

Nonetheless, the Supreme Court of Arkansas in its opinion presumes that we are seeking tax immunity and therefore that we are subject to the — to this ordinance and therefore holds that we could be required to give up our membership list and therefore be required to comply with the ordinance.

We think that under this construction of the law and of the ordinance that this is clearly within the area which this Court condemns in Speiser versus Randall.

Our position is that if the City of Little Rock is to bring the association within the confines of this particular ordinance, it would have to show that we are engaged in some occupation which is subject to license.

And that we have either not paid it for the demand for — for payment of a fee has been made upon the — the N.A.A.C.P. that they have failed to do so and that they are claiming tax exemption and tax exemption from the payment of business.

We contend that this would have to be shown or else the application of the ordinance to us is a violation of due process.

It’s clearly a violation of the standards which this Court said have to be met in the area of — where free speech is involved as it was indicated in Speiser versus Randall.

Now, as far as we’re concerned, we think that this was the construction placed on it, it was now placed within the ordinance, and the — the ordinance has been invalidly applied to us for this reason.

But to — to end on my final point, if the Court, and this we say that if the Court is persuaded, this Court is persuaded that the Supreme Court of — of Arkansas in assuming that we, that the — the organization was subject to the ordinance and in assuming that the organization was seeking a tax exemption without having any facts in the record upon which to base that assumption, if it could do that and not raise serious due process questions, then our contention is that the ordinance is still bad because 7444 which is an occupation license tax, as I had attempted to indicate applies to the character and kind of business or to the amount of stock and a determination as to whether or not an organization is invalidly seeking tax exemption from its application in our judgment, has nothing to do with the — who the members are or anything of that kind.

It has to do with the activity of the organization and we say therefore that insofar as the ordinance seeks the disclosure of the names of our members and contributors that this does not further, what is the purpose of the ordinance and therefore at best, there can be no — there is no reasonable relationship between the two and the statute must fall.

You’ve drawn out distinction between members and contributors in this respect?

Robert L. Carter:

No sir because our — our as I’ve indicated, I think that the — that under the grant of authority from the state, there can be no tax on income and therefore the — the tax has to be on the occupation on what is being done.

And is now — our — our view is that the City of Little Rock under this grant of authority could levy a tax on — on activity, on what is being done and that — and that these — these circumstances, if it made that kind of classification, this, under this grant of authority would be proper.

But since it cannot tax income, then it seems to us that there can be no possible relationship between the disclosure question which we think the raises the First Amendment questions and the objective which state seeks.

Potter Stewart:

How about the contributors considered as taxpayers themselves, possible deductions that they made — made but that’s of no concern, you say —

Robert L. Carter:

That —

Potter Stewart:

(Inaudible)?

Robert L. Carter:

Well, this is — it — the — the municipality has to get its authority for the validity of this ordinance.

We — we contend from this — the grant of authority from the State.

It has no right under — and since it is seeking to derive it from the State, it has no power to — to do anything else.

Charles E. Whittaker:

Mr. Carter before you go on, can I ask you this question?

Robert L. Carter:

Please, sir.

Charles E. Whittaker:

Could we validly sustain a conviction even though no objections be made, under a statute which does not purport to impose a criminal liability upon individuals?

Robert L. Carter:

Well, I would think, Mr. Justice Whittaker, that this question would raise — it’s the first time, to be frank with you, that it — it had occurred to — to me, this question might raise some due process — a due process argument.

I —

Charles E. Whittaker:

Wasn’t it inherent?

Robert L. Carter:

Yes, sir.

But our understanding of the — I think that actually, in the municipal court which is the record is not here, we, if I’m not mistaken, we made or attempted to make such a defense, but we were convinced that the law of Arkansas reached the individual custodian of the record in order to reach the organization.

And since our basic problem was the question of the free speech issue which we thought was the basic issue here, we do not pursue that at all.

So that, I’m in no — frankly, I’m in no position to argue that question here because I am reasonably certain that is the stage of the proceedings that if — if the question is present.

The question is present that as far as the petitioner is concerned, as far as we are concerned, that we have waived it in the court below and I don’t think we’re in a position to make that kind of argument before this Court.

Potter Stewart:

The ordinance proscribes a minimum fine of $50, doesn’t it?

Robert L. Carter:

Yes, sir.

Potter Stewart:

Petitioner was fined $25?

Robert L. Carter:

Well, this — the ordinance under the — the statutes of Arkansas, statutory authority that the fine could only be $25.

In fact, the matter is, Mrs. Bates was fined $100 but the grant of authority is only $25 and the — the — there — there is no power in the municipality to fine any — any more than this and this was brought out on — in the Circuit of Court of Appeals in the — and the city conceded error and indicated that the fine would have to be $25.

Charles E. Whittaker:

I’m thinking of an action with —

Robert L. Carter:

Yes, sir.

Charles E. Whittaker:

I am thinking of a matter that was before me on the Court of Appeals.

Under a 2255 motion for one that pleaded guilty to a charge in an information or indictment and had been sentenced, then sought relief under a 2255 motion upon the ground that the indictment affirmatively showed on its face that it was barred by limitations and didn’t constitute an offense and was therefore confronted with the question whether the defense was raised or not.

Can there be a conviction when under the law, no offense is charged and that was I am thinking about here.

Robert L. Carter:

Yes, sir.

Well, I — I think — pardon, which I think that this question that — that you have raised, certainly raises a due process question which goes to the — to the question of the reach of the ordinance as to whether or not it can validly — validly reach individuals rather than organizations, but as I indicated to the Court, we were concerned and our primary concern was in terms of the — of the raising the issue of the unconstitutional effect of the statute in — insofar as it attempted to reach on membership list.

I might point out to the Court that we’ve taken the position insofar as we could in an attempt to comply as nearly as we could with these various regulations even though we might have a — a constitutional claim except insofar as the question of our membership list was concerned.

We could have, we think take — taken the position in this case that the ordinance had no application to us and that we would not give up any of the information which the ordinance demanded, but our view was that we should do as much as we could in compliance with this, except with the — the basic issue which affects the freedom of association of our members and the — the effective activity of the organization itself.

Earl Warren:

Mr. Kemp.

Joseph C. Kemp:

Chief Justice, may it please the Court.

Counsel made reference to the distinction between the cases here and I’d like to make one reference to that as a City Attorney for the City of Little Rock, I can speak only for that City and do not propose to — at all refer to the trial and the matter involved in the City of North Little Rock.

I do however have limited knowledge of certain — certain testimony and matters of record in the North Little Rock case and that it is combined with our transcript.

We referred to a distinction between the two because specifically, one of the defender, rather the defendant in North Little Rock case as I remember, it has — was privileged without the objection of the city to make statements regarding the adverse effect which the revealing of this information would have on the N.A.A.C.P. and her city, that is the new membership dried and possibly the loss of old members.

Those questions were not — no testimony was made in the Little Rock case that was admissible.

It was read into the record that certain witnesses would have testified to facts concluding that this information if revealed would and possibly had affected their membership, but those are some of the distinguishing features which we think make the cases entirely different and therefore, we would confine ourselves to the Little Rock case only.

Mr. Carter confines his argument and I’m very surprised that he has, to the fact that this is not a tax ordinance.

We wonder what the Supreme Court of the State of Arkansas or how it could have made it more clear that this was an ordinance designed to aid the City of Little Rock in determining whether or not taxes were proper against alleged charitable and nonprofit organization.

Certainly, if in this case the N.A.A.C.P. were privileged to make a self-serving declaration and have it go by the Board without contest and without being able to pierce the veil and determine if the facts alleged therein were in fact true, if that were the case, then it is entirely possible that no revenue at all would be forthcoming.

They feel that its — it is possible further that if they’re unable to go behind this statement, a self-serving statement, that not only this organization, and I don’t refer to the N.A.A.C.P. as — I refer to it only because it’s a petitioner in this case, because there were other organizations that did furnish information required by this ordinance and it’s reflected in the statement in the letter of Dr. Crenshaw who originally contacted the city, relative to this thing for the N.A.A.C.P.

He, in that letter admitted that various – several — various under organizations had been readdressed to the plaintiff.

Now, if those organizations who claim immunity and I inject here that I don’t think it’s necessary that a claim be made from immunity in order to have this ordinance in effect, but if those organizations claiming immunity from the previous tax laws, are privileged to continue to be active in — in any community, in any state, without revealing factors upon which the governmental agencies or bodies could in fact determine if they really were non profit.

They could be engaged in activities that produce revenues far in excess of the imagination of most of us.

They could be engages — engaged in a profit venture, only by being able to determine these factors from our own investigation or from the city’s investigations can we be assured that the taxes which are justly due are received by the city.

Charles E. Whittaker:

Mr. Kemp.

Joseph C. Kemp:

Yes, sir.

Charles E. Whittaker:

May I ask you please, had there been any claim of tax exception on this occupation, under this occupation tax ordinance by in N.A.A.C.P. in advance of these steps?

Joseph C. Kemp:

I have no knowledge of a claim of — as such, Your Honor, except that there had been no taxes paid.

And as the ordinance reflected, was designed to determine in an investigatory manner whether or not organizations allegedly charitable and benevolent and nonprofit were in fact nonprofit or were in fact profit making organizations.

And thus, we, that is the city through its selected officials would go out and make an assessment if they found that the tax was proper, under other terms of the occupational privilege tax.

Charles E. Whittaker:

That has been my – (Inaudible) your city prior to the adoption of this ordinance to anticipate possible claims of exemption or a weight there being made?

Joseph C. Kemp:

I’d rather assume, Your Honor, that it had been the latter.

I have no knowledge of specific claims for immunity having been made.

The ordinance in question which granted the immunities, and that’s 7809, as I remember by number, made specific reference to the fact that there is sundry charitable organizations throughout the city had been known to be rendering a service to needy in the city and in the community.

And that they were entitled by reason of that service otherwise the city would have to finance it or the governmental body assembly that they went at some consideration and thus, from enacted the passage of this ordinance, such organizations if in fact true, nonprofit and benevolent.

Felix Frankfurter:

Have we in the briefs or in the record, the taxing statute where —

Joseph C. Kemp:

Yes, sir.

I think it is in the original but I have not seen the original, it’s not in the record.

Felix Frankfurter:

What — what — would you mind sketching quickly what the tax amenability would be if a non-charitable and what the statute says as to immunity from such normal–

Joseph C. Kemp:

I — I just don’t have that knowledge or it depend on the information we weigh was determined by investigation.

Felix Frankfurter:

Is there anything in the record which shows — which gives us the fiscal picture of this situation?

Joseph C. Kemp:

No, sir.

Felix Frankfurter:

In other words, what the source of revenue of Little Rock is?

How many charitable organizations, what it means if they’d all refuse to obey, anything like that?

Joseph C. Kemp:

That is not in the record, Your Honor.

Charles E. Whittaker:

Well, do you know as — as a matter of fact, whether this ordinance under which this occupation ordinance, 74 something —

Joseph C. Kemp:

7444.

Charles E. Whittaker:

— contains penalties for failure to file the required returns and pay the occupation license fees?

Joseph C. Kemp:

Yes, it does have to think penal clause — the criminal penal clauses.

Charles E. Whittaker:

The criminal penal clause.

Hugo L. Black:

Where is that — government’s — is printed here?

Joseph C. Kemp:

It is not in this record, Your Honor.

It is in the original the plaintiff provided.

The clerk office has it.

It is not transcribed at this time.

Hugo L. Black:

Is there any definition of what you mean by charitable, benevolent?

Joseph C. Kemp:

That ordinance which I referred to as being number 7809, I — I believe, sir, made reference to it in this way that our organizations in the city, benevolent to the extent they are performing the services for the needy and no profit is derived there from.

Those organizations, I think, that in itself is the definition of what the city (Voice Overlap) —

Hugo L. Black:

Does it describe what profit to whom?

Joseph C. Kemp:

No — no profit to the organization.

They are performing a service — a public service to the needy in the community.

Hugo L. Black:

Where is that?

Joseph C. Kemp:

That is (voice overlap) — I’m —

Hugo L. Black:

I haven’t been able to find it.

Potter Stewart:

There is reference to it —

Joseph C. Kemp:

It’s (Voice Overlap) — it’s in the original (Inaudible) filed with the clerk.

Potter Stewart:

Of May 16 of the petitioners brief, ordinance number 7809 relieved charitable organization engaging in the occupations affected from the payment of the privilege tax and the reference there to the transcript at page 132.

Joseph C. Kemp:

Yes, sir.

Felix Frankfurter:

Can you tell us how much the privilege tax —

Joseph C. Kemp:

I —

Felix Frankfurter:

Can you tell us what the privilege tax for non-charitable organizations is?

That depends on what?

Joseph C. Kemp:

There is one — there is —

Felix Frankfurter:

I’d like to — I’d like to know what the financial responsibility of an organization into — in Little — doing business or engage in activities in Little Rock is or what schedule of rate there — there is that does not apply to these charitable organizations as you define them, administering to the needy?

Joseph C. Kemp:

I don’t know why it doesn’t apply to them except that they —

Felix Frankfurter:

I said if it doesn’t.

Well, I thought that’s what all this is about, that you want to make sure that somebody who doesn’t pay a privilege tax is entitled not to pay it.

Isn’t that —

Joseph C. Kemp:

That is correct.

Felix Frankfurter:

— what the ordinance is about?

Joseph C. Kemp:

I — I — yes.

That is correct.

Felix Frankfurter:

Now, I want to know what the privilege tax would be if they’re not entitled to immunity from it?

Joseph C. Kemp:

That amount is set specifically by the ordinance and it would depend of what particular activity that organization was engaged in.

Felix Frankfurter:

According to the functioning of the organization?

Joseph C. Kemp:

That is right.

Felix Frankfurter:

And not their profit or in the —

Joseph C. Kemp:

That’s right.

It is not a profit matter.

No, sir.

Felix Frankfurter:

And you can’t tell how much of Little Rock’s revenue derives from that source?

Joseph C. Kemp:

No, you cannot at this time.

That — but — that information would be available but it was not put in this record.

Earl Warren:

Mr. Kemp, may I ask the question that Mr. Justice Frankfurter asked of Mr. Carter.

How many people have complied with this ordinance?

Joseph C. Kemp:

Your Honor, I would not attempt to say specifically but some between five and 10 as I remembered.

I — I would not hazard a guess as to —

Earl Warren:

Between —

Joseph C. Kemp:

— specific.

Earl Warren:

— between five and 10?

Joseph C. Kemp:

Yes organizations, different organizations and that —

Earl Warren:

In the whole community of Little Rock?

Joseph C. Kemp:

Yes.

William J. Brennan, Jr.:

Well, that this will constitute all requirements by any of the petitions except on direct effect?

Joseph C. Kemp:

That is correct, sir.

Earl Warren:

And —

William J. Brennan, Jr.:

And the directed purpose is made only to comply with him or with —

Joseph C. Kemp:

That is my recollection of it, sir.

I don’t have the figures specifically and it is not in the record (Voice Overlap) except that an admission is in this record on the part of petitioners to the effect that several organizations have been requested to furnish –

Felix Frankfurter:

Can you guess how many — how many charitable organizations if you define them down there — there are operating in Little Rock?

Joseph C. Kemp:

No, Your Honor.

I —

Felix Frankfurter:

Or would it be of what magnitude would it be 200 or 2000?

Joseph C. Kemp:

Oh, Certainly not.

I would think that will —

Felix Frankfurter:

How many — 200?

Joseph C. Kemp:

That would far exceed it.

I would say if there were 20, I’d be surprised.

Felix Frankfurter:

30 charitable organizations.

Potter Stewart:

Mr. Kemp, the way the word organization is, to apply it in the ordinance, it seems to me that there probably would be several thousand.

It says organization as used herein means any group of individuals, whether incorporated or unincorporated.

That would include a Sunday night supper club, wouldn’t it or Thursday night bridge club.

Joseph C. Kemp:

Well, I think it was intended if they were charitable organizations.

They — they don’t all —

Potter Stewart:

This is —

Joseph C. Kemp:

It’s possible.

Potter Stewart:

This isn’t charitable organization, this is organization —

Joseph C. Kemp:

Yes.

Potter Stewart:

— and that’s what the ordinance is —

William J. Brennan, Jr.:

Does it reach the bar associations, the medical associations?

Joseph C. Kemp:

If requested, yes, sir.

William J. Brennan, Jr.:

Does it? (Voice Overlap) —

Joseph C. Kemp:

If — if request is made.

Yes, sir.

Earl Warren:

How about all the fraternal organizations, the lodges?

Joseph C. Kemp:

Well, I would assume that they would be hard to dispose of.

Earl Warren:

You don’t think there are more than five or six of those in — in —

Joseph C. Kemp:

I said —

Earl Warren:

— Little Rock?

Joseph C. Kemp:

— five or six had been — had been served, sir.

I didn’t say that only five or six of the district.

Earl Warren:

Well, the reason I — I thought it was someone important in this language of this — of the Supreme Court where it said the ordinance here under attack does not single out the N.A.A.C.P. and require information of it only.

Rather, the ordinance requires information of all organizations seeking exemption from privilege tax.

Other organizations have complied.

Why should this one have immunity as though it were a favorite child?

Earl Warren:

Now, they must have had something in the — in the record there or told something to indicate that — that this was not discriminatory as another — all other people in the same position had complied.

Joseph C. Kemp:

As I’ve stated earlier, the admission is in here on the part of the petitioners that other organizations had complied.

Therefore, it was not made in — we made no attempt to get into the record other than that.

Potter Stewart:

Where did you say that admission appears?

Joseph C. Kemp:

On the transcript —

Potter Stewart:

In a letter, I think of all descriptions —

Hugo L. Black:

What page is it?

Joseph C. Kemp:

Page 25, Your Honor.

Earl Warren:

Of the record?

Joseph C. Kemp:

At the bottom — At the bottom of the page, the letter addressed to Mr. Jack Murphy, acting City Clerk of Little Rock, Arkansas is — since the passage of Little Rock ordinance number 10638 and pursuant to provisions of said ordinance various city officials have requested information from several organizations.

The matter of the relationship, just briefly and I’ll close on that particular subject —

But you (Inaudible) you can’t consider — considered to be relevancy of (Inaudible).

You say that generally (Inaudible)

Joseph C. Kemp:

From contributions to the organization?

Contributors.

Joseph C. Kemp:

Yes.

Well, I think certainly, would —

Names of contributors.

Joseph C. Kemp:

Yes, names of contributors.

These are ideas of my own, they’re not in the record.

Certainly, there is no authority in the case law for this particular (Inaudible), but as a matter of fact, I think we could assume that contributors conceivably might be paying money into the organization and — and claiming immunity from taxes on — on an activity which he was engaged in which was in effect of profit.

He might have been claiming a nonprofit exemption.

Potter Stewart:

But you — you thought you can agree with your — with your brother that — that the City of Little Rock or the City of North Little Rock doesn’t have power to impose an income tax?

Joseph C. Kemp:

I did not — I didn’t attempt, Your Honor, to infer that it would be on the income.

Suppose he was engaged in an activity, in an enterprise and was claiming immunity, when in fact he was making profit on it.

Potter Stewart:

You’re talking now about the individual contributors?

Joseph C. Kemp:

Yes, Your Honor.

Potter Stewart:

General what (Voice Overlap) —

Joseph C. Kemp:

Well, what — what we could find from where he’s getting his money.

I mean, supposed he’s engaged in the business of — of selling shoe laces on the corner in the name of John Doe but in fact, he’s a representative of the N.A.A.C.P. out there actually making this company — these sales and is buying the shoe laces for one cent a pair and sold them for 10 cents a pair.

Felix Frankfurter:

Have you a network of occupation taxes in Little Rock?

I mean you —

Joseph C. Kemp:

Yes.

Felix Frankfurter:

— you license Commerce Act for it.

Joseph C. Kemp:

Yes, sir.

Felix Frankfurter:

You license (Inaudible) —

Joseph C. Kemp:

Yes, sir.

Felix Frankfurter:

— directors.

Joseph C. Kemp:

Yes, sir.

Felix Frankfurter:

All subject to a tax that he could — a tax to cover the administrative expenses of licenses.

Joseph C. Kemp:

I — I would like to draw a distinction if I may, Your Honor, between the license tax and the occupational privilege tax.

They are different.

Felix Frankfurter:

The occupational privilege taxes are — its purpose taxes only — revenue producing — attacking revenue sources —

Joseph C. Kemp:

Yes.

Felix Frankfurter:

— sources.

Joseph C. Kemp:

The other is a regulatory —

Felix Frankfurter:

And you have a —

Joseph C. Kemp:

— type.

Felix Frankfurter:

— that main — is quite a large source or a main source of —

Joseph C. Kemp:

It is a very big source in the city’s revenue.

Yes, sir.

The exact amount, I don’t have.

Charles E. Whittaker:

Mr. Kemp.

Joseph C. Kemp:

Yes.

Charles E. Whittaker:

May I ask in supplementation to Mr. Justice Harlan’s question, what relevance you claim for the language in Section E of this ordinance, “Dues by whom and by whom paid, the dues and by whom paid?”

What relevance does that have to a determination of whether or not a certain tax payer, if he claimed exemption, was not entitled to it?

Joseph C. Kemp:

Specifically on the matter of the dues, I think that — I think that one of the officials of the organization for example could very well be paying in dues to the organization in the form of a salary and — and have the organization paying him the salary the back and even he or she could conceivably be the organization itself.

They’d be making the profit from them.

These are suppositions and I — I don’t have the clear answers which I know that Your Honors are entitled to.

Charles E. Whittaker:

Well, the phrase “dues and by whom paid” would reveal of course the entire membership, wouldn’t it?

Joseph C. Kemp:

I — that would be another matter, that remains to be seen.

It depends on whether or not membership pays dues.

Charles E. Whittaker:

Well, it would at least — would include the dues-paying members?

Joseph C. Kemp:

Yes.

It would include that, Mr. Justice.

Charles E. Whittaker:

What have you to say about the question that if one who doesn’t raise a defense that a certain statute doesn’t charge a crime, nevertheless, is convicted of the crime and whether or not we can sustain such a conviction?

Joseph C. Kemp:

Your Honor, the record reflects, I’m almost certain that stipulation was made so that we could proceed with the case but it was made because of the fact that originally, the writ was served on someone other than the defender or rather the petitioner in this case and I stand corrected if Mr. Carter doesn’t agree with that.

Charles E. Whittaker:

Do — may — maybe you don’t agree, maybe you take the position that this ordinance does impose a duty on individuals?

Joseph C. Kemp:

I think it’s expressly that, Your Honor.

Charles E. Whittaker:

Except for the affidavit that the president must file under —

Joseph C. Kemp:

Section —

Charles E. Whittaker:

— some section —

Joseph C. Kemp:

— section at the top of the page —

Charles E. Whittaker:

— if — aside from that, is there any?

Joseph C. Kemp:

I wouldn’t think so, no, sir.

Other than that, I think that’s rather clear, Your Honor.

Charles E. Whittaker:

And that the president must file an affidavit?

Joseph C. Kemp:

No, sir.

Section 6 — I’m sorry, I misunderstood you, top of the page eight, petitioner’s brief, “Any person or organization who shall violate the provisions of this ordinance shall be deemed guilty of a misdemeanor.”

Does that clear the matter for you, sir?

Potter Stewart:

The duty is imposed on the organization.

Charles E. Whittaker:

The duty is on the organization, isn’t it?

Joseph C. Kemp:

Yes, yes.

Oh, your — absolutely to say that the organization acting on (Inaudible) ambiguous statute at least with individuals (Inaudible)

Joseph C. Kemp:

Well, certainly, I think that we didn’t penalize the corporation, (Inaudible) of the organization.

Charles E. Whittaker:

Well by — by fine?

Joseph C. Kemp:

No.

I’m talking about — you — you could but there — who would you penalize, where would you get the money?

Charles E. Whittaker:

Well, is it your idea of the law, maybe this is right.

It’s not been my notion that a criminal statute which with imposes some kind of a liability in criminal in character for the corporation, may nevertheless be imposed upon its agents, the crime may — the penalty upon its agents for the corporate failure, is that right?

Charles E. Whittaker:

Can that be done?

Joseph C. Kemp:

Yes.

In some instances that can be done — I — as I understand it, Your Honor.

We, in — in this case had attempted to get this case tried and the issues resolved in (Inaudible) and — and before the Court and for that reason the stipulation was made that petitioner had failed to comply with the provisions of the ordinance and that she was (Inaudible) to the jurisdiction of the Court.

Now, if I may just briefly and in conclusion, touch on the matter of, what I thought was the petitioner’s point in his lawsuits and that is that this case is — is to be determined by the case of Alabama, the N.A.A.C.P. versus Alabama, recently decided by this Court wherein this Court held that the requirement by court order for the revealing of membership list was a depravation of the rights of the First Amendment and that as such would be void.

But that Court in — in the Alabama — this Court in the Alabama case also identified an exception, namely if there is a controlling justification for an alleged deterrent effect, a controlling justification barred the deterrent effect which the revealing of this information might have, then the Court here will balance the interest of the individual.

The Constitution gives that balance between the individual and the government so that it is not always a — a paramount right which can never be subjected to — to some sort of governmental investigatory power or authority.

Further, this Court, in the matter of a recent decision, Uphaus versus Wyman, 360 U.S., a 1959 decision, again confirmed the holding in the Alabama case by stating that and I quote, “Whether there was justification for the production,” they were producing a list of the guest at a summer camp and the — and the defendant denied that this was a proper being in view of the holdings of the Alabama case and the Court says, “Whether there were justification for the production timed on the substantial question of the State’s interest in obtaining the identity of a guest when weighed against the individual’s interest asserted by the fellow.

The Court found certainly that the — the State was privileged or should be privileged to investigate and determine whether or not, there were Communists in the — in their State.

I think unless this Court can agree that the State or the city of — whatever political subdivision we have in — has the authority and the power to determine whether or not a tax is due, then that government will deteriorate without taxation, without revenues, it just can’t function and perform and render the services which the public are entitled to and demand.

Therefore, there is a justification, a controlling justification for whatever aspect, the revealing of this information may have had or may in the future have.

Hugo L. Black:

May I ask if you mean by that and justified by the fact that they might have to pay a tax if you could get the facts that you allege if you want?

Joseph C. Kemp:

Yes.

Hugo L. Black:

Is that your argument?

Joseph C. Kemp:

No.

That is a point however —

Hugo L. Black:

It’s the justification?

Joseph C. Kemp:

No.

The justification which I (Voice Overlap) — yes, that — that is correct, I didn’t understand it.

Hugo L. Black:

Are all the ordinances — are all the taxable activities under ordinance set out on pages 10 and 11 of the petitioners’ brief?

Joseph C. Kemp:

I’m not sure whether they are all contained there in or not, Your Honor.

Hugo L. Black:

I’m just wondering if you would look at it and see which one you think they might possibly come under —

Joseph C. Kemp:

I would have no —

Hugo L. Black:

— even — even if they would answer all of your questions?

Joseph C. Kemp:

I’m unable — by looking at this, Your Honor, to determine that even if these ordinances were identified by title for the simple reason that the privilege tax ordinance names the particular activity which is taxed and assigns a tax — lump sum tax.

Hugo L. Black:

They’re very careful — they’re very careful to name them especially on —

Joseph C. Kemp:

Yes, sir.

They are very careful.

Hugo L. Black:

I find them for photographers, cobblers, blowers and mattress manufacturers and vending machines.

Joseph C. Kemp:

It depends on the activity —

Hugo L. Black:

Various things?

Joseph C. Kemp:

Yes, sir.

Hugo L. Black:

I’m just wondering if you can think of any ordinance you have, and would it all fit?

Joseph C. Kemp:

I — I could not, sir.

I would not have this —

Hugo L. Black:

But you said these people might be engaged in?

Joseph C. Kemp:

I would not —

Hugo L. Black:

Is that — which you know they engaged in?

Joseph C. Kemp:

(Attempt to Laughter) without the investigatory authority which this ordinance —

Hugo L. Black:

You have to have an investigatory authority to find out what you have said is trying to — is already provided for licensing, did you?

Joseph C. Kemp:

Yes, sir.

Hugo L. Black:

And I understand your justification would be that they might come under one of your — one of your licensing provisions.

Joseph C. Kemp:

Either that or they may very well want to levy a tax on them, create a new statute.

Hugo L. Black:

I didn’t understand that you were doing this in order to find out something which would enable you to write (Voice Overlap).

Joseph C. Kemp:

That is not the intent of the ordinance.

Hugo L. Black:

And that you’re doing it in order to collect the tax, it says that —

Joseph C. Kemp:

If the —

Hugo L. Black:

— the ordinance.

Joseph C. Kemp:

If it in fact is shown by the information revealed the city can conclude that the N.A.A.C.P. or any organization is in fact selling merchandise, then they are charged a privilege tax in that instance on the inventory.

I think that’s the way the privilege tax ordinance sets it up.

Hugo L. Black:

You think, you might reveal — bring out the fact that James in the sale of mercantile is business, you could levy more taxes?

Joseph C. Kemp:

If the facts reveal it, then they would be taxed.

Yes, sir, if they in — in fact selling merchandise.

Hugo L. Black:

I’m not talking about the abstract.

I’m talking about, is that what you say is your reason why you think this is justified.

Joseph C. Kemp:

Yes.

Hugo L. Black:

That you might prove he engaged in the mercantile business?

Joseph C. Kemp:

Not specifically that, sir.

I have not — I was using that as a supposition.

Hugo L. Black:

In what business?

Joseph C. Kemp:

Any business.

Hugo L. Black:

What business?

Joseph C. Kemp:

I have no knowledge.

Potter Stewart:

Mr. Kemp.

Joseph C. Kemp:

Yes, sir.

Potter Stewart:

Based on your analysis of the — of the cases you talked us about, N.A.A.C.P. against Alabama, and Uphaus and the others, when a constitutional plan is made in opposing a claim of governmental authority for — for information, on the basis of your analysis of — of those cases and — and on the basis of what you’ve said, don’t you think its incumbent upon the governmental authority to justify its request for what otherwise might be constitutionally protected information with some specificity.

Don’t those cases go that way?

Joseph C. Kemp:

I — I would agree with that wholeheartedly, Your Honor and I think very well that the ordinance expressed and made the justification (Inaudible)

Potter Stewart:

Well now, isn’t it true that these Little Rock privilege occupation —

Joseph C. Kemp:

Yes, sir.

Potter Stewart:

— ordinances and there are many, many of them.

They license tree surgeons and mattress manufacturers and plumbers and vending machine operators and so on but they — in other words, the measure of taxability depends in the first instance on the activity of the organization, has it not?

Joseph C. Kemp:

Yes, sir.

Potter Stewart:

And only if you’ll find that that activity would be taxable, then and only then do you look to see whether or not it’s a, whether or not it’s a charitable organization to see — to determine whether the organization would then be exempt from a tax of what otherwise be payable, isn’t that true?

Joseph C. Kemp:

That’s true.

Now, I further point out, Your Honor, that this — this privilege tax ordinance we are referring to in hereby amendments and etcetera.

Also has a catch-all provision therein wherein it’s provided that in the event, some organization for profit is not listed herein, that in no instance shall be — be privileged to conduct that but that but it’s out of less in front of my door and (Inaudible)

So at least they could get $25 if they couldn’t identify its particular activity.

William J. Brennan, Jr.:

Do you say the ordinance has had — they had to go up the ordinance.

So, there’s — there is a catch to all your service —

Joseph C. Kemp:

Yes, yes.

William J. Brennan, Jr.:

— which imposes the license fee on every businessman not otherwise classified?

Joseph C. Kemp:

That is correct, sir.

William J. Brennan, Jr.:

If — if it is a business —

Joseph C. Kemp:

If it is in fact a profitable business, yes, sir.

A business more profitable.

William J. Brennan, Jr.:

But is that still — does that answer Mr. Justice Stewart’s question?

It still, would you not or don’t you not still have a burden of establishing if there was a business that was engaged in? Because that’s the first step before anytime is whether or not as an exemption to which it might appeal?

Joseph C. Kemp:

We — we were concerned with that particular question in view of the holdings in the Speiser case under the first unitarian case in California, both of those cases.

We think that those cases are distinguishable and that they are — the defendant was requested in the Speiser case and that was reversed to give an affidavit of his non-Communist for some expatiation in order to have the immunity from a particular tax.

Joseph C. Kemp:

And the Court — this Court held as I recall that he would not be required or could not be required to furnish these information against him, that was to be used against him.

Felix Frankfurter:

Yes.

Joseph C. Kemp:

Or here, there, the — the city is not attempting to — to deprive this man or the N.A.A.C.P. or any organization of any right which is his or its.

We are attempting to determine whether or not a tax is proper or one is due or one is being evaded.

Hugo L. Black:

May I ask if you have any catch-all ordinance as well as in a — impose a license tax, in any group or association which is engaged in the dissemination of news and views for profit?

Joseph C. Kemp:

I have no knowledge regarding a section or a — a license ordinance, not in our city, Your Honor.

Hugo L. Black:

Our policy?

Joseph C. Kemp:

Pardon?

Hugo L. Black:

Our policy as news, dues or policy?

Joseph C. Kemp:

I have no knowledge of any, sir.

Hugo L. Black:

Arguments on public questions?

Joseph C. Kemp:

No, sir.

Hugo L. Black:

You tax radio stations?

Joseph C. Kemp:

Yes, sir.

There are privilege tax ordinances there.

Felix Frankfurter:

Radio stations —

Joseph C. Kemp:

Yes.

Felix Frankfurter:

— the T.V. stations?

Joseph C. Kemp:

Yes, privilege tax ordinance.

Are the names (Inaudible) organizations that you interrogate as a matter of public record and —

Joseph C. Kemp:

That, Your Honor has mentioned that.

I could state that this ordinance does not provide as has been alleged that the record will become a public record to the extent that the curious may go in and view it.

It says of public record.

Joseph C. Kemp:

Its says it is a public record for the interested to view and the Supreme Court of the State Arkansas has construed that term to mean those who have a direct interest, not something that someone who has only a curious idea of what it contain.

Felix Frankfurter:

And your State has have a direct interest?

Joseph C. Kemp:

Of course, that is rather abstract.

And I — I would pay (Inaudible).

I — I doubt insistently that they would be privileged to go in and see it.

And that they are not directly affected by.

Felix Frankfurter:

So, how would they be directly affected except that they would make the appropriate speech that their duty is to redeem as a matter of the public interest.

Joseph C. Kemp:

Duty does not engage and it is not privilege and to come and see it.

They — I don’t — think it is —

Felix Frankfurter:

— want asking it.

This is not what I think should be, but what —

Joseph C. Kemp:

I think they are not —

Felix Frankfurter:

(Inaudible)

Joseph C. Kemp:

— an interested party.

Felix Frankfurter:

Pardon me?

Joseph C. Kemp:

I think they are not an interested party under the case of Board versus the White County Bridge Commission.

Felix Frankfurter:

Well, who is an interested party except the city’s fiscal of — city political officers.

Joseph C. Kemp:

Well, certainly, the contributor would be of an interested person.

Certainly, creditors of the organization would — would be interested in determining whether or not funds were — were actually in the trade business.

Felix Frankfurter:

Well, I think a contributor or a non-contributor would be interested.

To see whether there, come down as a contributor on the absence.

Joseph C. Kemp:

He would like — might as well to see if his funds were being spent as he had been told they would bring it back.

Felix Frankfurter:

That’s the fact.

What do you say to my suggestion, there are non-contributors.

Somebody is curious to see whether —

Joseph C. Kemp:

I doubt that he —

Felix Frankfurter:

— an alleged charitable organization as having its role by including him.

Joseph C. Kemp:

Supreme Court of Arkansas, I don’t believe would —

Felix Frankfurter:

They (Voice Overlap) —

Joseph C. Kemp:

— distinct that to be an interested party.

They did not in this case and that is —

Where are these files, names after the jury, where are they filed?

Joseph C. Kemp:

They’re on file with the City Clerk’s Office, Your Honor.

Now, the ordinary citizens or in the City Clerk’s Office and says, “I’d like to see the contributors, this is what would happen.”

Joseph C. Kemp:

He probably wouldn’t be able to see them unless he could justify to the extent that he is definitely an interested person.

Do you know of any instance where access to them had been reviewed?

Joseph C. Kemp:

I don’t know such instance.

Charles E. Whittaker:

Would a newspaper reporter be an interested person?

Joseph C. Kemp:

I — I’d rather think that they have been privileged to see the record in as much as I’ve read it in the press.

I don’t know and I answered Mr. Justice Frankfurter here a moment ago to say that I don’t believe that legally, they would be an interested party.

Felix Frankfurter:

But the city — what are the — what if they may have the officially news keeping interest.

Joseph C. Kemp:

In these instances, there’s a (Inaudible)

Felix Frankfurter:

No.

What the — that office title.

Joseph C. Kemp:

The City Clerk, Your Honor.

Felix Frankfurter:

The City Clerk?

Joseph C. Kemp:

Yes.

Felix Frankfurter:

But the City Clerk, out of broadmindedness or generous view of what the public is entitled that would make it publicly, he or she —

Joseph C. Kemp:

Oh, I’m sure that it’s a discretionary manner.

I would hate to see it abused, however.

Felix Frankfurter:

And through the City Clerk and elected officials?

Joseph C. Kemp:

No, not in the City of Little Rock since it now has the —

Felix Frankfurter:

The city men —

Joseph C. Kemp:

— (Inaudible) form of government.

Potter Stewart:

Mr. Kemp, one more question.

Going back to Mr. Justice Harlan’s basic question as to the — perhaps the basic issue in the case as to the — as to relevance of this information.

Now, the ordinance in Section D requires that upon request, an organizations reveal the purpose or purposes of such organization.

And this organization, the organization represented by the petitioner did fully answer the information requested under Section B, didn’t it?

Appearing on page 40 and 41 of the record.

Now, is — has any claim been made or are you making any claim now, that the activities there described are subjects to what — that — that an organization that carries on the activities there described whether for profit of not for profit is subject to any license tax imposed by Little Rock or North Little Rock?

Joseph C. Kemp:

I don’t think that I would be qualified to make that determination until I’ve been able to view the information furnished under Section E.

Potter Stewart:

But why?

Joseph C. Kemp:

Because that is a self-served declaration.

And it’s just going to state what the petitioners made that — that he’s engaged in the activities or are promoted in the responsible cause of — advanced in the statement (Inaudible) that we can all appreciate.

William J. Brennan, Jr.:

But how would you be any better off if you got the names of ten contributors and their addresses on the — and I could get $252 and it just tell you would be a contribution, total receipts for the calendar year.

Could you then make a better determination than that’s of Justice Stewart question?

Joseph C. Kemp:

It’s entirely possible.

William J. Brennan, Jr.:

What — what about — what is it about the names of ten people with $2 or $3 or $10 along side each that makes that easier for.

Joseph C. Kemp:

It seems to me — would seem a little remote with, Your Honor.

I (Inaudible) a moment ago and was clear under it so that supposed the officers of the organization are in fact the only contributors to it and not, upon their coming in, reference is only newspapers, wouldn’t they?

And upon their coming from forces outside the organization and incidentally, most charitable organizations do lay as most of them might, sources outside membership.

And then, the funds are paid out that are taken in but you don’t know to whom it is paid.

The organization itself, that is the (Inaudible) officers may very well be just taking that money as a commission for a solicitation which does require the payment of previous tax in Little Rock.

Solicitant and for the clients.

William J. Brennan, Jr.:

That — that makes sense.

Still, I don’t understand how you get all of this out of a list of ten names for the $2 along side each aggregating $252?

Joseph C. Kemp:

Well, in your situation, $252 (Voice Overlap) —

William J. Brennan, Jr.:

Well, this is what — this is what they reported to you.

They reported to you that the total receipts of $252 for membership of its contributors for the calendar year, 1957.

They’ll get it — they spent $191.60.

Felix Frankfurter:

The dollar (Inaudible)

William J. Brennan, Jr.:

They set the national offer to —

Felix Frankfurter:

— for the Little Rock.

I don’t know, in North Little Rock.

Joseph C. Kemp:

Which one is it?

Felix Frankfurter:

26, 27 — 27.

William J. Brennan, Jr.:

Oh, I’m sorry.

Joseph C. Kemp:

You’re reading from North Little Rock.

William J. Brennan, Jr.:

I’m reading North Little Rock?

Joseph C. Kemp:

Yes.

Felix Frankfurter:

That’s 27.

Joseph C. Kemp:

That is appreciable larger sum.

William J. Brennan, Jr.:

$1791 here.

Joseph C. Kemp:

Yes, sir.

William J. Brennan, Jr.:

Well, that — then you get a hundred names instead of ten.

Joseph C. Kemp:

Yes.

I Suppose I can’t answer the question.

Charles E. Whittaker:

Mr. Kemp.

Joseph C. Kemp:

Yes, sir.

Charles E. Whittaker:

If Little Rock claims that any business owes but hasn’t paid an occupation license.

As I understood you to say earlier in answer to a question, that I asked you, they could simply assess it under the existing ordinance 7444, together with any penalties for failure to promptly apply and pay.

That’s been the normal remedy until the enactment of this new section in that, this new ordinance.

Joseph C. Kemp:

That is correct.

Charles E. Whittaker:

And the old one still exist, isn’t it?

Joseph C. Kemp:

Well, I’m sure that is (Inaudible) suggest.

Charles E. Whittaker:

Doesn’t that then allow you to collect any back occupational taxes, that are — do you?

You assess them at whatever figure you think is right?

Joseph C. Kemp:

Not under our order, Your Honor.

No, sir.

We have that — that privilege under this ordinance.

I think that the intent of this particular ordinance under consideration here that’s in the — that or the ordinance, was to aid in assessing the tax if in fact one is due but not to assess it unless they determine that one was really due and was — and that there was an attempt to avoid to paying that.

Hugo L. Black:

May I ask you if it’s your idea that the ordinance you have would cover that, if they make them.

At the end of the year, they have not spend as much as they made in doing what they say they do, on page 26 on the subdivision D.

Do you remember what that is?

Voluntarily, promoting equality of rights and eradicate as the rates.

That’s interested colored citizens, scope of their impartial separates and to increase their opportunities to securing justice into court, education and so forth, accepting that as correct.

Is it your idea that your ordinance covers that?

I don’t quite understand your idea of profit.

Joseph C. Kemp:

I — I did not say that.

Hugo L. Black:

If they do make a profit in doing that or whatever you call the profit.

Joseph C. Kemp:

Well, I — I think that we’re referring to monetary profit, Your Honor, when we talked about the —

Hugo L. Black:

But I understand that.

Joseph C. Kemp:

Yes sir.

Hugo L. Black:

But what I’m saying is, assume that’s the hold up right there.

Joseph C. Kemp:

Assuming that is the —

Hugo L. Black:

And that they’ve collected $2400 which they paid out in salaries for their people —

Joseph C. Kemp:

Yes, sir.

Hugo L. Black:

— the officials.

Is it your idea that they would go anything under your ordinance?

Joseph C. Kemp:

I would assume not if that picture right there were in fact true — true picture.

I would assume there would be not tax.

Hugo L. Black:

They would have to be engaged in something like selling goods or some business or anything.

Joseph C. Kemp:

They would not be indeed in a profit venture.

Yes, sir.

Hugo L. Black:

Well, and suppose they make a — what you call a profit out of that?

Joseph C. Kemp:

Well, I don’t concern that — I would not do that to be a profit and that — and that it’s paid out in salaries.

William J. Brennan, Jr.:

Well they show us — they show a balance on hand of $300 —

Joseph C. Kemp:

Yes.

William J. Brennan, Jr.:

— of expenditures under receipts.

So they have $300 balance on hand —

Joseph C. Kemp:

Yes.

William J. Brennan, Jr.:

Would that be a profit?

Joseph C. Kemp:

It very well maybe.

I — I could not say.

William J. Brennan, Jr.:

Well, assuming that is a profit based on what they have told you on the things that they do and the kind of things their engaged in.

Is there anything in your ordinance that will subject that profit, what are — and subject the organization by reason of that profit to any of these license fees under the ordinance?

Joseph C. Kemp:

If I accept their statement, what they do as being final then I’ll agree with you that there is probably (Voice Overlap) —

William J. Brennan, Jr.:

Nothing under the ordinance?

Joseph C. Kemp:

That’s right.

Potter Stewart:

Well, then if — and if you didn’t accept their statement or if you wanted them in more particularized statement, the — you or this — or the appropriate officials in the municipality could ask for it, couldn’t it?

As to a more detailed statement of how they carry on these activities?

Joseph C. Kemp:

I came under this ordinance otherwise not.

Potter Stewart:

Under this ordinance, under D of this ordinance.

And no — no such effort was made by the city was it, to get — to get a more particularized statement of the purpose under D of the ordinance?

And as — as the statement now appears, you’re telling us that even catch-all part of the ordinance, the catch-all ordinance, wouldn’t cover these activities even if conducted for a profit, is that right?

Joseph C. Kemp:

I’m saying that that’s the information they revealed here as to be their activity.

It — it’s taken on its face value.

Potter Stewart:

Yes.

Joseph C. Kemp:

I cannot say that there is a profit made in view of the brief.

Potter Stewart:

Well, assuming a profit.

Let’s assume that — that these activities are carried on for a profit?

Joseph C. Kemp:

Well, then if it is in fact carried on for the benefit of a profit or someone to — to make a profit, then in fact, there is tax due, yes.

But this is an organizational figure here, it doesn’t show that — that anyone in particular has received it.

Potter Stewart:

But under what ordinance would the tax be due, even assuming the profit —

Joseph C. Kemp:

I would assume —

Potter Stewart:

— carrying on these activities.

Joseph C. Kemp:

I would assume under the catch-all ordinance.

Potter Stewart:

Could you tell us the citation of that catch-all (Inaudible)

Joseph C. Kemp:

It’s in the ordinance itself, 7444, the original ordinance.

Potter Stewart:

Well, is that — is that original ordinance in the —

Joseph C. Kemp:

It’s in the original transcript at the clerk’s office.

Potter Stewart:

You mean outside the (Inaudible)

Joseph C. Kemp:

Yes, sir.

Potter Stewart:

That’s — that’s the basic —

Joseph C. Kemp:

7437.

Potter Stewart:

7444?

Joseph C. Kemp:

Yes, sir.

That’s the basic ordinance.

Hugo L. Black:

In the questions you asked, did it ask anything about what they’ve been doing in addition to this?

I’m not talking about, I know it asked for the contributors, the names of their members but did it ask in what — try to prove the kind of activity in which they have been engaged?

Joseph C. Kemp:

It required that that information be given, yes, sir.

Hugo L. Black:

Where is that?

Joseph C. Kemp:

And that information was given.

Hugo L. Black:

Where is that?

Well, that has been given here.

After this was given, did you ask anymore?

Joseph C. Kemp:

Oh, no.

Joseph C. Kemp:

It was not —

Hugo L. Black:

Did they give you everything in this regard as to what —

Joseph C. Kemp:

They — they have given — I’m assuming that the person or persons who made the request were satisfied with the information furnished accepting as to itself Section E.

Hugo L. Black:

As in contributors?

Joseph C. Kemp:

Yes.

Hugo L. Black:

And the number?

Joseph C. Kemp:

Yes.

Robert L. Carter:

If the Court please.

Earl Warren:

Mr. Carter.

Robert L. Carter:

I think that Mr. Kemp has mislead the Court in — at least in my understanding in — in answer to his question about the public, a publication of this information.

My understanding of Arkansas law is that a pubic record is — is — that there is an entitlement on the — the public access to it and this was set out in a decision, Collins versus State which is at 143 Southwest Second 1, in which the Supreme Court has — has determined what is a public record.

So, that I — I think that the interested party, information that he is dealing with concerns a definition of what is an interested party and litigation and not with the kind of problem that we have here.

One other thing, I would like to bring the Court’s attention to and that is, the question was asked, I mean I was trying to find it.

Where did it appear in the opinion of the Court that the — this ordinance was interpreted as applying only to members as of — as reaching membership in contributions.

I might refer the Court to the top of page 71 where the — of the record on the case where the — in the — in the opinion of the Court where it says that — about the third sentence that each in prosecuting her appealed to this Court raises this federal question.

The ordinance involved insofar as it requires the names and addresses of their member of and contributors to the local branch of the N.A.A.C.P. is an invasion of rights etcetera in all questions merge into this.

And I might also refer the Court to page 76 further on in the discussion of the opinion, at the top of the page about, mid the — the paragraph when the — there’s a — the — the Court seeks to distinguish N.A.A.C.P. versus Alabama.

That says that the ultimate aim in N.A.A.C.P. versus Alabama was to stop the activities of the N.A.A.C.P.

But in the case at bar, the disclosure of N.A.A.C.P. list of members and contributors is a mere incident to see if legal taxation is being evaded.

So, I think that the — this has been the — this — the — this ordinance has been interpreted to reach members and contributors.

Finally, I would like to point out to the Court that this 7444 as I indicated before, list various occupation under which there is this — this occupation tax with the listing of what the amount of the tax is and the taxes on the business on the — on the activity is not — is indicated on any organization itself.

William J. Brennan, Jr.:

What about catch-all clause, have adverted.

Robert L. Carter:

Well, the — I don’t know of any — I haven’t seen any tax of catch-all —

William J. Brennan, Jr.:

(Inaudible)

Robert L. Carter:

Yes, sir.

I have a — Section 1 reads that the carrying on of any business, profession, occupation of whatever kind or nature within the City Little Rock, Arkansas is hereby declared to be a privilege.

And from here on after the effective date of this ordinance, any person, firm or corporation engaged in any business, occupation or profession of whatever kind or nature within the City of Little Rock, shall pay various tax.

But then, there is a list, there is a listing of the various occupations that are subject to the tax with the gradation of what the tax is.

And my feeling is that this limits —

William J. Brennan, Jr.:

What if there’s a conclusory provision that this is kind of a virtue that — that the tax at all events, any business, profession or occupation, not listed to a $25 case.

Robert L. Carter:

That I don’t know.

Hugo L. Black:

And probably, do you know that that’s used in catch-all in some dues.

Do you have the ordinance before you?

Robert L. Carter:

Yes, sir.

I have the copy of it of — of–

Hugo L. Black:

What’s the last one part of it.

That’s ordinarily what a catch-all provision (Inaudible)

Robert L. Carter:

Well, the last Section 14 repeals all the other ordinances as being inequitable.

Charles E. Whittaker:

Well, after the list of the thing —

Hugo L. Black:

The last of the list of the taxable —

Robert L. Carter:

Alright.

I’ll look at — I look for that.

Section 2, after listing the ordinance, says that any person from a corporation selling any in all kinds of goods, where as in merchandise unless otherwise provided in Section 1 above shall pay on the 1st of January, an annual privilege tax based upon one half of 1% of the gross value of the average stock inventory for the preceding year.

Hugo L. Black:

In it?

I just sort of any what —

Robert L. Carter:

Any person, firm or cooperation within the City of Little Rock engaging in the business of selling any in all kinds of goods, wares and merchandise whether raw material or finished products or both from a regularly established place of business maintained within the City Little Rock, unless otherwise provided in Section 1 above, shall pay on the 1st of January of each year, an annual privilege tax for the privilege of doing business within the City, in an amount equal to one half of 1% of the gross value of the average stock inventory for the preceding year.

Now —

Earl Warren:

This — may I interrupt you just a moment, Mr. Carter and ask Mr. Kemp.

Is that the — is that the provision you spoke of?

Joseph C. Kemp:

May I — I was going to ask if I could correct the statement on this, Your Honor but I — I do not —

Earl Warren:

Yes.

You — you may correct and if you’ll excuse, Mr. Carter just a moment, to please —

Joseph C. Kemp:

In reference to that catch-all clause it is specific with — in reference to organizations engaging in the business of selling of goods, wares and merchandise, whether raw materials or finished product or both, says that in no instance shall any such activity being privileged to do business more or less than $25 of the tax.

Earl Warren:

Well, that’s —

Joseph C. Kemp:

That’s (Voice Overlap) —

Earl Warren:

As merchandise.

William J. Brennan, Jr.:

That’s — that was affected to a merchandise, yes.

It would not reach this ordinance.

Joseph C. Kemp:

That — that catch-all and I would — I just — just doesn’t — I wanted to —

Earl Warren:

Now, if you may, Mr. Carter you may —

Robert L. Carter:

Well —

Earl Warren:

— you may proceed again.

Robert L. Carter:

Well, I think I’m — well, if the Court please, we — we contend that this — that — that the ordinance insofar as it has been applied to us as unconstitutional and that insofar as it seeks to get out membership list for some constitutionality of the convictions hereunder cannot stand.

Earl Warren:

We’ll recess now.