Wilson v. Loew’s, Incorporated

PETITIONER:Wilson
RESPONDENT:Loew’s, Incorporated
LOCATION:Wolverine Tube, Inc.

DOCKET NO.: 33
DECIDED BY: Warren Court (1957-1958)
LOWER COURT: State appellate court

CITATION: 355 US 597 (1958)
ARGUED: Jan 08, 1958
DECIDED: Mar 03, 1958

Facts of the case

Question

  • Oral Argument – January 08, 1958 (Part 1)
  • Audio Transcription for Oral Argument – January 08, 1958 (Part 1) in Wilson v. Loew’s, Incorporated

    Audio Transcription for Oral Argument – January 08, 1958 (Part 2) in Wilson v. Loew’s, Incorporated

    Irving M. Walker:

    I’m sorry but I understand your statement — provided argument.

    I must confess to a sentimental desire on my part not to complete a professional career that run for 50 odd years without having the privilege of addressing this Court.

    I have a more substantive reason, however, for presenting an argument at this time.

    I should like to emphasize one of the points that are made by the respondents, which it seems to me might be controlling of this case in this Court.

    I refer particularly, to the question of jurisdiction and more particularly to the contention of the respondents that the constitutional points now are being urged upon the Court by the petitioners were raised too late.

    They were not raised in the trial court.

    It’s quite too that under the law of California a statement or allegations of fact are all that is required.

    But somewhere along the line, the attention of the Court if constitutional points are involved or federal laws are involved must be called to that fact.

    And in the case at bar and notwithstanding the protestations of my learned opponent, these matters were not called to the attention of the trial court.

    There is a statement in the reply brief to the effect that they were all called to the attention of the Court and I must call attention to the fact that nowhere in this record does it appear that these matters were called to the attention of the trial court as constitutional questions and that the decision of the trial court did not vest upon any of the so-called constitutional questions.

    It is true that in the memorandum opinion of the trial judge, there is some reference to the Fifth Amendment right against self-incrimination.

    But it’s in the general context of the discussion as to whether or not the plaintiffs in the action had met — met the obligation to show that there was no justification for the complaint of acts of the defendants.

    Now, it is said by the petitioners that the judgment of the District Court has denied them due process under the Fourteenth Amendment and an equal protection of the laws.

    Could I ask you one question —

    Irving M. Walker:

    Yes, indeed —

    — Mr. Walker?

    In their petition for rehearing, did it raise the question?

    Irving M. Walker:

    In the petition for rehearing they raised a number of these questions all those —

    Is that (Voice Overlap) under your preference that’s too late (Voice Overlap) —

    Irving M. Walker:

    That is too late under our facts and has been so declared by this Court in connection with California cases.

    It is your contention at that point to eliminate the whole case?

    Irving M. Walker:

    Yes, Your Honor.

    I’m glad so.

    That’s the reason I indicated that this might be determined into the case.

    There is the complaint as indicated by Mr. Margolis that it is the judgment —

    Felix Frankfurter:

    May I ask you —

    Irving M. Walker:

    Yes.

    Felix Frankfurter:

    — one further question?

    In the petition for review or whatever segment you will call?

    What is it in California?

    Felix Frankfurter:

    When you decide the Supreme Court to review —

    Irving M. Walker:

    It’s a petition — it’s a petition to review, a petition to hear after decision by the District Court.

    Felix Frankfurter:

    Well is that, I take it, the petitioners bring federal — I take it, I assume, they raise federal constitutional question, did they?

    Irving M. Walker:

    They raised them first, as I see it, in the petition for a rehearing before the District Court and again raised them in their petition to the Supreme Court.

    Felix Frankfurter:

    Now, when they did it — when they raised it in their petition for review to the Supreme Court of California, in your opposition to that petition.

    I assumed you made it on petition.

    Irving M. Walker:

    Yes, Your Honor.

    Felix Frankfurter:

    Did you raise the question that you raise now?

    Irving M. Walker:

    Yes, Your Honor.

    Felix Frankfurter:

    That the federal question was too late.

    Irving M. Walker:

    Yes, Your Honor and also in our reply to the petition for rehearing in the District Court of Appeals.

    Felix Frankfurter:

    If I — if I recollect that.

    This case is to hasten the — the petition for rehearing was denied without ado, is that right?

    Irving M. Walker:

    Yes, a mere order of denial.

    No — no opinion of memorandum or otherwise.

    The petitioner’s complaint, that it is the judgment of the District Court of Appeals that raises these questions of due process and so forth.

    Now, if that is true, it was equally true of the judgment of the trial court when the demurrer was sustained without leave to amend as I think counsel has conceded.

    It was inevitable that a judgment of dismissal would be entered unless something was done by the plaintiffs to stay off that result.

    Then they knew that this judgment which they claim would have or does have this effect was going to be entered and they have the opportunity under the California law and beyond any possible question at anytime before the judgment was entered, to ask the trial court for a reconsideration of this matter and they could then have indicated to the trial court that these constitutional questions were involved and that a judgment such as was indicated would create this cons — constitutional situation.

    No such motion for reconsideration was made and the judgment was entered.

    And in that connection, may I call the Court’s attention to what seems to me to be an inconsistency on the part of the petitioners.

    They say that these problems, these constitutional problems were involved in this case from the out — outset by reason of the allegations of the complaint.

    How can that be true if their reliance here is upon a claim that the judgment is the thing that creates the constitutional questions because there they say, came the action on the part of the state which was required in order to make them Fourteenth Amendment questions.

    Now, there was no element of surprise as far as these gentlemen were concerned in the decision of the District Court of Appeals.

    It is true that the trial court did not base its determination upon one of the grounds that was urged by the defendants, the respondents here.

    But the record shows, and I refer to page 27 of the transcript in this Court, to an excerpt on the memorandum of points and authorities in support of the demur of the respondents.

    The complaint does not state facts sufficient to — to constitute a cause of action for interference with business relations.

    No existing contract between plaintiffs and any of the defendants is alleged.

    Consequently, there must be shown a reasonable probability that but for the alleged interference.

    Business relations between the parties would have been entered into.

    Irving M. Walker:

    It is not enough that plaintiff’s hope or even expected that such relations might eventuate, the fact that they would have eventuated must appear citing authority for the contention.

    And so, they knew as soon as the first demurrer was filed that this was one of the contentions of the respondents as to the law of this case and might be adopted either in the trial court or in the higher court.

    Now, the effect of the failure on the part of the petitioners to call these federal questions to the attention of the trial court had, I submit, this effect.

    None of these questions had to be considered by the District Court of Appeals under California practice.

    They were not considered by the District Court of Appeals on what would have been a perfectly proper ground and not having been to say it — considered, not having been decided, this Court, I think has no right to consider.

    Earl Warren:

    Mr. Walker, should they have raised — should they have raised under the California practice, the question of constitutionality in their complaint?

    Are they obliged to do that?

    Irving M. Walker:

    I can’t say that that is true on the basis of the decisions.

    It would seem to me, that when they had completed these factual allegations that they should have indicated in their — in their complaint and certainly it would have been appropriate if not required that as a result of these facts which they set forth, that there arose these effects with regard to the constitution — constitution of the United States.

    They — the cases of this Court —

    Earl Warren:

    Are there authorities to that effect in the United States Court, I say, are in California?

    Irving M. Walker:

    I do not have them and I don’t believe they exist.

    This Court has said on various occasions that these matters must be called to the attention of the Court and its indicated in places that — in times that they should be in the pleadings, but I can’t say that this Court has made a positive statement to that effect either.

    Felix Frankfurter:

    Mr. Walker —

    Earl Warren:

    May I — may I ask, just this one question.

    If the plaintiffs were not required to call it to the attention of the court, the trial court in their complaint, where would be the first time that they would be obliged to do that?

    Irving M. Walker:

    The first time they would have been obliged to do it, I think, would have been upon the presentation of their case in connection with the demurrer.

    Earl Warren:

    Where?

    Irving M. Walker:

    In the trial court.

    Earl Warren:

    But doesn’t the Court think its true everything that’s in the — in the complaint?

    Irving M. Walker:

    If it is well pleaded.

    Earl Warren:

    Yes.

    Irving M. Walker:

    Yes.

    And as I say these federal questions may lurk — some federal questions may lurk in these allegations but unless the Court, trial court’s attention is called to the fact that these are the questions involved.

    I do not believe that they have been presented to the Court for decision.

    Felix Frankfurter:

    Mr. Walker, did I — did I understand, the rule which were invoked and which, I think strongly to be expected here.

    The reason for that rule is that, did you make a federal claim?

    You are to give the state court an opportunity to pass it on rather this Court can’t say that the state court disregarded the federal claim if it wasn’t brought to its attention.

    Irving M. Walker:

    Exactly, Your Honor.

    Felix Frankfurter:

    But that reason is satisfied if the state court of its own appeals that the determination of what is brought before does involve such a federal question.

    Felix Frankfurter:

    And it seems to me that the opinion of the amendment — memorandum ruling of the Superior Court on page 46.In the present case, the question has have plaintiff properly raised in their pleading, the question of defendants liability for a concerted refusal without justifications?

    The answer requires the consideration of the privilege to refuse self-incrimination.

    The scope of the Fifth Amendment to the — to the Constitution that is before the citation, I think, and the privilege of embodying the California constitutional law.

    Now, if the Court of its own motion concluded that in order to pass on the issue that is before it requires a scrutiny of the requirements of the federal constitution doesn’t that bring the federal constitutional question before the Court?

    Irving M. Walker:

    I think not within the context of the — of the trial court’s memorandum opinion.

    He was dealing entirely with the question of whether or not it was necessary for the plaintiffs to show that the action of the defendants was not justified.

    And it was only as a part of that discussion that he went into this question and then applied it in one particular to the group of defendants who had not appeared before the Court and said, “Of course, it could have no application to them because they were never placed in a position where they had to exercise or consider the exercise of their federal privilege for their constitutional privilege.”

    Felix Frankfurter:

    But you —

    Irving M. Walker:

    But I —

    Felix Frankfurter:

    — say — do I infer that you mean — you suggest that in all event, these questions of equal protection of the law before the duty of the state court to accord a remedy for some affirmative — some inroad upon a federal right to those questions, not only were not brought to the attention of the California court but they were not brought and the Court did not deal what they were in because they didn’t discussed it.

    That’s (Voice Overlap) —

    Irving M. Walker:

    Did not discuss them.

    Did not pass upon them, was necessary to its decision which was a decision that the plaintiffs have not stated the cause of action because they had not made allegations that were sufficient to show that the action of the defendants was not justified.

    Now, in the District Court and I’m referring to the opening brief of the plaintiffs and it was their obligation, if they were going to raise these constitutional questions to raise them in their opening brief not in their reply brief but in their opening brief under the California procedure.

    There appears, and it is my contention that these questions were not presented properly to the District Court of Appeals, that court therefore, could refuse them just as it could because they had not been raised in time.

    On page 7 of the opening brief of petitioners, the District Court, there is a heading.

    The judgments by the court below sustaining the demurrers, to the complaint and dismissing the action without trial deprived appellants of their liberties and properties without due process of law in violation of the due process provisions of the California constitution and the Fourteenth Amendment to the United States constitution.

    There, the proposition that is presented if there has been — they have been deprived of due procedural process and of course, there could be no soundness in my humble opinion to such a proposition which is not urged now for such a proposition.

    Because they had proceeded as required under the California law and filed their complaint, fought the defendants in the Court and the ordinary steps have been taken that were proper under the procedure of California, resulting in this sustaining of the demurrer without leave to amend and in the judgment.

    I should add that there was no determination or discussion by the District Court of Appeals of any of these questions and as I have said, it would have been justified and not discussing them because they were not presented in the trial court and because they were not truly presented in the opening brief because following, even this end to which I have called the Court’s attention.

    There is no discussion of these questions as constitutional questions as such.

    The District Court of Appeals rendered its judgment on what is apparent obviously I should say a question of California State Law and a question that is in independent ground, an inadequate ground under the state law.

    Now, these questions were brought up or some of them at least were brought up in the petition for rehearing and as already stated, the petition for rehearing was denied without comment.

    It’s also stated, the same objections were raised on the part of the respondents in their answer to the petition for rehearing and the same situation existed in the Supreme Court.

    Earl Warren:

    Do you cite in your — in your brief the — the California case of the said complaint (Voice Overlap) —

    Irving M. Walker:

    Yes — yes, Your Honor, at length.

    Earl Warren:

    — raised it before the Court.

    Irving M. Walker:

    At — at length, Your Honor, at — at length Your Honor yes.

    I shall only deal for a moment so as to save the time for Mr. Selvin with the proposition that the decision was an independent and adequate state ground for the decision that it was not simply an effort to evade any federal question.

    I would call the Court’s attention to the statement of the District Court in its opinion which is attached to the petition for the writ of certiorari in this Court.

    Irving M. Walker:

    The complaint in the case of bar is devoid of any allegation of fact that any contract or relationship would have been entered into between anyone of plaintiffs and anyone of the defendant, motion picture producers and distributors or with anyone in the motion picture industry, but for the alleged agreement.

    There is no factual showing of denial of employment.

    There is no allegation that at the time the agreement was made or at anytime thereafter.

    Anyone of the plaintiffs was an employee of anyone of the defendants or had any reasonable prospect of becoming such or that anyone of them, was or is or had any prospect of being a producer of motion pictures.

    There’s not even an allegation that there were any negotiations pending or that any plaintiff was seeking employment in the industry at the time of the alleged tortuous interference.

    There is no allegation that at anytime after the making of the agreement, anyone of plaintiff’s requested employment from anyone of the defendants or from anyone in the motion picture industry.

    It is not alleged that what for defendants alleged interference.

    Anyone of plaintiffs would or even probably or possibly would have been employed in the industry.

    At the oral argument, counsel for plaintiffs conceded it was not alleged that individual plaintiffs did apply for work and were denied the right to work.

    So far as it appears, the last efforts of plaintiffs to obtain employment may have occurred years before the agreement.

    All that is alleged is that at some unspecified time prior to the agreement they have been so employed.

    When and why that employment was terminated is not alleged.

    Since the employment terminated some time before the agreement in the absence of contrary allegation, the inference necessarily is that the termination was a result of facts, wholly disconnected from the agreement and that those facts whatever they may have been are still effect — still are effective.

    It cannot be inferred from the alleged facts that at some unspecified time, prior to the agreement, plaintiffs were employed in the motion picture industry.

    They have not obtained employment since they invoked their constitutional privilege solely because of that fact.

    Thank you, Your Honors.

    Earl Warren:

    Mr. Selvin.

    Herman F. Selvin:

    Mr. Chief Justice, may it please the Court.

    It is now clear here as it was in both the trial court and the District Court of Appeals below that this action was and is a common law tort action characterized by Judge Kenny only this morning, as a tort action seeking relief for a concerted refusal to deal.

    As at page 11 of the reply brief, the petitioners concede, the State of California had no connection whatever, had taken no action in respect of the conduct, the combination or agreement which it is alleged here is unlawful until a judgment of its court dismissing the complaint was entered.

    Their entire constitutional argument is premised not on the fact that in some way the California court, in this case, denied them procedural due process, not on the fact that the California court upheld against constitutional challenge, some action of some other agency or department of the State of California, but solely and simply and wholly on the fact that by rendering its judgment of dismissal, the Court deprived these petitioners of their constitutional rights.

    I should think therefore that it would be a matter of some significance to know precisely what it was that the California court, the District Court of Appeals to whom this certiorari runs decided.

    It held — it affirmed the judgment of dismissal upon one ground and one ground alone that it did not appear from the complaint construed as it was required to be construed under the California practice that the injury claimed by these petitioners had been brought about by or was the result of the challenged combination or agreement and that’s all there was to the decision below.

    The Court expressly stated that in view of that conclusion, we do not reach the other contentions made.

    It treated the case as a simple and conventional tort case decided it on what we have characterized in our briefs as on the question of standing to sue.

    They haven’t been hurt for the combination.

    They haven’t shown they were hurt by it and therefore there were no position to challenge it.

    Now, from that common law tort decision, Mr. Margolis has argued this morning, there arises a denial of equal protection, a denial of equal protection because in his view, James against Marinship should have controlled rather than the cases which the District Court of Appeals purported to follow.

    Now, it has been many times said and held in this Court that an erroneous decision of state law, even an inconsistent decision of state law inconsistent with prior decisions of a state raises no question under either the due process or the Equal Protection Clauses of the Constitution and that’s for a very obvious reason because otherwise this Court would have power and jurisdiction to review every decision of a state court on any and every subject.

    Mr. Margolis says that the classification is an unreasonable one.

    Herman F. Selvin:

    We say in the first place that is not a reviewable question here because he is complaining not of a classification upheld by the state court as the result of the action of some other state agency, but of the classification made by the Court itself in handing down this decision.

    But the classification is unreasonable that it can be defended within the broad limits of classification that this Court has supported the States under the Equal Protection Clause.

    What do the State do?

    In James against Marinship which is the case upon which Mr. Margolis depends, the Supreme Court of California held that a combination of employers and a closed union, a union which he excluded colored people from membership could not, under the California common law, enter into a close shop agreement, so that colored employees actually employed at that time and excluded from membership in the union would loose their existing employment.

    That was the decision in James against Marinship and it was a decision as matter of state law.

    In our case, the Court simply held that persons who have no existing employment, who failed to show any reasonable prospect of existing employment, had no standing to sue in respect of a combination or agreement which is alleged was arbitrary and unfair.

    On the one — on the one hand in the class are those who have an existing or established or reasonably perspective employment, on the other are those who do not.

    As to the first class, the State of California says, “You have a cause of action if you prove those facts”, as to the other, the State of California says, “You have no cause of action because you haven’t proved the one necessary element that will bring you over on the other class.”

    And that, we submit, Your Honor is a reason classification, even assuming that this Court can properly consider the equal protection question with respect to the decision of the California court on a question of state law.

    The Court did not directly or indirectly or by any intimation decide that this challenge combination was or was not lawful either under state law or under federal law.

    For all we know today, when persons appropriately situated so as to be able to raise the question, challenge this combination if it still exists in a California court, the California court may hold that it is violative of — of state law or of federal law —

    Felix Frankfurter:

    Is that what Sherman law —

    Herman F. Selvin:

    I beg your pardon, sir?

    Felix Frankfurter:

    Is that a local Sherman law?

    Herman F. Selvin:

    Yes.

    We have the Cartwright Act which is a — which is a state antitrust act and which is sometimes invoked, it was never invoked in this case.

    Well, the California court didn’t decide this constitutional questions, didn’t have to.

    But let’s assume in order to meet the petitioners head on that it should have decided the questions and that by affirming the dismissal, it did decide this constitutional questions.

    What constitutional right of these petitioners, have been violated?

    The real attack —

    Earl Warren:

    Before you get to that, I want — I’d like to clear up something in my mind.

    As I understood Mr. Walker, there are no California cases which would require the constitutional issued to the pleading that — did I understand you correctly?

    Herman F. Selvin:

    That’s right, Your Honor.Yes.

    Earl Warren:

    All right.

    Now, would you mind telling me then what there is in the memorandum opinion of the Superior Court Judge that would require them to raise all of these issues before the Court of Appeals?

    What language in that opinion would — would require the raising of it there.

    Herman F. Selvin:

    No language except his final conclusion that the demurrer should be sustained, because as I understand the position of the petitioners, it is the mere fact that their complaint was dismissed not because of anything the Judge Myers or for that matter Judge (Inaudible) in the District Court of Appeals said that deprived on their constitutional rights.

    But the mere fact that their complaint was dismissed, they have engraves.

    They say all of these questions which they say, couldn’t have been decided against them and should have kept the case in Court

    Earl Warren:

    But if the superior judge put it on — on state grounds other than — than federal constitutional grounds and dismiss the complaint.

    Earl Warren:

    Would they be — be obliged to do more than to — to meet the — the issue, as raised by the Supreme Court?

    Herman F. Selvin:

    I think they would, Your Honor, in this respect.

    If their contention was going to be as it now is, that the entry of a judgment on the state a facts would deprive them of constitutional rights, then they were obligated to assert in the Court that had indicated it was going to enter that judgment but to do so would violate their constitutional rights.

    Felix Frankfurter:

    That is on the assumption that the — these constitutional rights were raised by their complaint?

    Herman F. Selvin:

    Yes, and I am assuming for the purposes of the argument as they contend that they were.

    Felix Frankfurter:

    That is if — if a complaint raises federal constitutional rights and the court throws out the complaint or decides adversely to the complaint.

    It is to be deemed on State ground.

    Are you saying that it is the law of California which is (Inaudible), are you saying that if they want to save their federal constitutional right — rights, which were not pass on by the (Inaudible) judge what should have been passed on, they must raise that before the appellate court?

    Herman F. Selvin:

    Oh, yes.

    They must raise it before the appellate court, certainly.

    Earl Warren:

    Now, where — did you cite the opinions of that effect on you brief?

    Herman F. Selvin:

    Well, we cited — we’ve cited the California practice case as to the effect that the appellate courts need not, and ordinary, will not consider any point not made in the trial court.

    Earl Warren:

    But if — if a plaintiff files an ordinary tort action in the Superior Court and the Court sustains a general demurrer on state grounds, is the plaintiff to be prejudiced because he doesn’t raise a constitutional question when he goes to the Court of Appeals to — to reverse the Superior Court.

    Are there cases to that effect in California?

    Herman F. Selvin:

    There aren’t — there aren’t cases in California to the effect that a particular point not brought to the attention of the trial court in such a way as to require it to pass upon, will not be considered on appeal and it not be considered on appeal.

    If the — if the question is there, if it was before the trial court, if in someway it was raised in the trial court either by appropriate pleading, by argument, by brief, by objection, by motion, by any method.

    And the record discloses that fact and the failure to pass upon it below will not preclude appellate review if it is necessary for the appellate court to reach the question.

    William J. Brennan, Jr.:

    Let me see if I understand this, Mr. Selvin.

    Are you suggesting that what should have been done in the Court of Appeals, in effect was to say, the judgment dismissing the complaints by sustaining the demur.

    Denies equal protection of the laws because it denies a remedy where California should provide a remedy —

    Herman F. Selvin:

    Whatever —

    William J. Brennan, Jr.:

    — et cetera, et cetera.

    Herman F. Selvin:

    Whatever their constitutional contention is today, it should have been made in that form in the District Court of Appeal although step further.

    It should have been made in the trial court after the trial court had unmistakably indicated that it was going to enter that kind of a judgment and a procedure was available for making the contention of the trial court.

    Let me give an example that takes as out of the esoteric realm of constitutional law but may illustrate California practice.

    Generally speaking, you do not have an order to save a point for appeal.

    You do not have to renew it on a motion for a new trial or even make a motion for a new trial.

    But certain types of questions you do because the first opportunity the Court has to pass upon the question is after the verdict had come in or the judgment has been entered as versus the excessiveness of damages.

    You cannot review that on appeal in California unless you have made a motion for a new trial upon that ground in the lower court.

    Now, what happened here?

    Herman F. Selvin:

    Up until the time that the judgment of, first, the trial court and then the judgment of the District Court of Appeals was entered, there was no apparent thought in the minds of the petitioners but any constitutional rights had been invaded or were going to be invaded.

    There contention now is that simply by dismissing their complaint, their constitutional rights were invaded, when the Court informed them by sustaining the demurrer without leave, that a judgment of dismissal would be entered mandatorily and as a matter of routine within a comparatively short time.

    Then it was the time we say, when they should have said to the trial Court, “If you enter this judgment which you say you’re going to enter, you will deprive of us of equal protection and due process and all of the rest of the consequences if they now say, flow from the mere fact of that judgment alone.”

    Remember, sir, that it is not the judgment as a confirmation of some other state action that raises the constitutional question here.

    It is the judgment as itself an act of the State that it is claimed, deprived them of their constitutional right.

    William J. Brennan, Jr.:

    Well, would it be an act of the state until the opportunities to appeal from it had been exhausted and the appeals determined?

    Herman F. Selvin:

    Well, that — that would be — that would be true of almost any judgment or any constitutional (Voice Overlap) —

    William J. Brennan, Jr.:

    Because I gather that it was in the petition for rehearing that you conceive these questions were properly raised?

    Herman F. Selvin:

    In the petition for rehearing, certain limited constitutional questions were raised.

    William J. Brennan, Jr.:

    Well, in any event (Voice Overlap) —

    Herman F. Selvin:

    — that they did raise some constitutional (Voice Overlap) —

    William J. Brennan, Jr.:

    — to bring those questions here.

    To bring — sufficiently in any event to bring those questions here, I gather you conceive.

    Herman F. Selvin:

    If there were time.

    William J. Brennan, Jr.:

    If they were time —

    Herman F. Selvin:

    If they were timely under the state practice at that time.

    William J. Brennan, Jr.:

    And — and that petition was filed in the Court of Appeals, was it?

    Herman F. Selvin:

    Yes.

    And in substantially the same form, certainly no more elaborately in the petition for hearing before the Supreme Court in each instance along with the primary stress on other problems, the state law problems in the case.

    In each instance, the petitions were denied without opinion, nothing in this record to show that the denial was based in any way upon the constitutional question presented and the assumption must be that it was not upon that ground because under the California practice, questions raised for the first time in the petition for hearing or petition for rehearing will not be considered.

    Earl Warren:

    Supposed the constitution — constitutional issue first develops in the Court of Appeals and would it be too late to —

    Herman F. Selvin:

    No.

    Earl Warren:

    — to raise it —

    Herman F. Selvin:

    No.

    Earl Warren:

    — on rehearing?

    Herman F. Selvin:

    Not as it first develops at that time and I think by —

    Earl Warren:

    The reason I asked, Mr. Selvin, what — what is there if he doesn’t have to allege in the complaint?

    What is there in the memorandum of opinion of the superior judge that would compel him to raise it in the Court of Appeals if he’s to raise it in the time and manner?

    Herman F. Selvin:

    Only the fact, that the memorandum opinion was a ruling that the complaint was going to be dismissed for whatever reasons.

    Earl Warren:

    On State — on state grounds?

    Herman F. Selvin:

    On state grounds.

    Earl Warren:

    Yes.

    Herman F. Selvin:

    But it was going to be dismissed.

    Their contention now is that that dismissal even on a state ground, constituted a denial of the constitutional rights which they assert they set up in the complaint.

    Now, if that dismissal hands that effect, certainly, the latest time at which they should have challenged it was when they were informed that that was going to be done.

    And the memorandum opinion informed them it was going to be done, not on constitutional grounds, I agree, but the fact that it was not on constitutional ground does not determine the argument that the petitioners are making.

    They say regardless of the ground upon which the trial court dismissed this complaint.

    The dismissal in the face of these allegations was a denial of due process of equal protection.

    And if that’s so, why then it sometime at the earliest opportunity after that became apparent, they were required to challenge it.

    They could have challenge at the trial court.

    They didn’t challenge it in the Court of Appeal until a petition for rehearing.

    Felix Frankfurter:

    (Inaudible) I think two questions little blended in your argument.

    Part of your argument is — is at the point that Mr. Walker gets it, namely, that in the Superior Court — Superior Court exposed of this complaint on a professed state ground.

    It entered an appeal to the District Court and under your law, under California procedure if they claim that the judgment in the Superior Court denied their federal claim here, properly brought to the attention of the Superior Court in the complaint.

    That although the — the Superior Court confess to go on a state ground.

    They still insist that there’s a federal claim which they have a right to have enforce by appropriate appeal in the District Court.

    That’s the question of the procedural mode by which a federal question must be brought before a state court.

    That’s a very different question as I gather.

    There’s nothing to do as to whether or not what the court of California here did was before we say that under the Fourteenth Amendment.

    Herman F. Selvin:

    Oh, I — I quite agree.

    It’s a quite a different question and I have discussed and duplicated Mr. Walker’s discussion in response to questions that I haven’t intended myself to get into it.

    But getting to the Fourteenth Amendment question, basically, petitioner’s case has rested on the asserted unlawfulness of this combination or agreement or conspiracy or whatever you want to call it.

    And the question therefore, it seems to me, which must be answered is whether such an agreement by private individuals gives them a cause of action directly under the Fourteenth Amendment and without reference to any other legislation or implementing constitutional provisions of any kind.

    The answer to that question, is no, it does not.

    It does not because at least one thing has been repeated many times in this Court without substantial dissent and that that the Fourteenth Amendment is a restriction against the States.

    It creates no rights as between individual and individual.

    That general proposition has been applied in a context peculiarly appropriate to this case and in a number of cases which I am — should render the State, do no appear in our brief but to which I should like to direct the special attention of the Court.

    As we all know, we’ve had for sometime federal legislation which makes it both crime and a civil cause of action at least to the federal court or two or more persons to conspire, to intimidate, threaten or oppress any citizen in a free exercise of a right or privilege secured or protected by the constitution or laws of the United States.

    In Hodges versus United States, 203 U.S. 1, it was held that that legislation was inapplicable to a conspiracy to deprive a certain class of citizens of their jobs of the right to pursue their colleagues because the constitutional power or jurisdiction of the Congress under the Fourteenth Amendment did not go that far, to protecting individuals against individual exertions of arbitrary or discriminatory power.

    In United States versus Wheeler, 254 U.S. 281, an indictment for a conspiracy to deport citizens from one state to another and exclude them from the state against private individual was held that for the same reason.

    Herman F. Selvin:

    In United States against Williams 341 U.S. 70, involving the coerced confession by third degree methods obtained by private individuals.

    It was held that the rights which the Congress could constitutionally protect as against the action of individuals excluded those rights, which the Constitution secured only against State interference.

    Now, if the Fourteenth Amendment does not protect the work, the right to work or any other right or immunity which as against the States, it protects.

    If it does not protect it against individual conduct then this combination or agreement cannot be unlawful simply by virtue of the Fourteenth Amendment.

    It is not unconstitutional because it is individual action and if that is so, when the District Court of Appeal held, if it did so hold, that petitioners constitutional rights were not infringed under the Fourteenth Amendment by it, its action was not unconstitutional.

    We can’t assume, in view of the silence of the District Court of Appeal with respect to these constitutional questions, a silence induced, we say, because the questions were never raised.

    We can’t assume that the Court held anymore than what I have just said.

    They were asked to hold but this complaint stated a cause of action for damages and for injunctive relief in respect of a concerted combination not to deal.

    It held expressly that there was no cause of action because injury was not shown or followed from the alleged wrongful act.

    It held, according to petitioners by necessary implication although certainly not expressly that the combination was not unlawful for the other reasons and that is perfectly consistent with the view of the Fourteenth Amendment to which I’ve referred, and if that’s it held, it correctly decided the Fourteenth Amendment question and its decision cannot therefore be said in itself to be unconstitutional.

    Earl Warren:

    Supposed the state court upheld restricted covenants if in being, would that be state action?

    Herman F. Selvin:

    I should say, it would depend on the manner of the upholding and it was just to that that I was coming, Your Honor.

    In the restrictive covenant cases, in Shelly against Kraemer, Barrows against Jackson, it seems to me that what this Court did is best typified by just two or three sentences from the opinion in Barrows, explaining what the Court had done in Shelly.

    Under the applicable law, these covenants are not invalid.

    No one will be punished for voluntarily adhering to them.

    Therefore, no one’s constitutional rights are infringed by them.

    But then the Court went on to say, of course, there was something more in this case than that.

    The State’s coercive power was put behind the covenant by injunctive restraint and mandate in Shelly, by request for damages which the California court refused in Barrows, so that the covenants there were no longer voluntarily covenants — voluntarily adhered to but were because of the action taken by the state court and would on all other cases have been because of the action taken by the state court, covenants, performance of which could have been compelled in a way that action is always and ordinarily compelled through the use of state sanctions.

    But the implications of Shelly and Barrows all converge upon the proposition, that where all that the State does is to tolerate these covenants or agreements, does not put behind them the coercive power of the State to compel performance of them that then you have not state action under the Fourteenth Amendment, but only individual action or state in action.

    Now, I say the implications converged on that proposition, I gather that in the first instance from the care with which the Court differentiated the mere validity of the covenants in themselves from the situation which was produced when the Court enforced the covenants from the way in which in the opinion of the Court contrasted the terms State in action and action.

    More particularly, however, I think those implications come from the whole history of the Fourteenth Amendment in this Court, for if, if mere state toleration of private conduct but short of sanctioning the conduct becomes state action under the Fourteenth Amendment, then virtually all private conduct is such.

    Because all private conduct not declared unlawful by positive state law is conduct which is tolerated by the State but if that’s all the State does.

    And if it does not put behind it the sanctions of its civil or penal law, it is still private conduct.

    In other words, as I say, we do what this Court consistently, since this Waterhouse case has refused to do, turned the Fourteenth Amendment into a municipal code for the governing of individual action instead of a restriction upon the States.

    And while I realize, Your Honor, that it is presumptuous to attempt to tell a Court which decided the case, what it meant by the case, I think, I should like to have a word or two to say about Marsh against Alabama.

    As I read Marsh against Alabama, the state action involve in that case, the state action that was expressly held it to be unconstitutional was not this individual conduct of the managers of the corporation in excluding these Jehovah’s Witness from the streets.

    It was the act of the State of Alabama in putting its criminal law behind that individual act of the managers and sending the Jehovah’s Witness to jail.

    And this Court expressly stated, in Mr. Justice Black’s opinion, that insofar as the State has put its power behind this conduct by its penal statute, its action cannot stand.

    Where is the state action?

    There it just does in Shelly against Kraemer, the private conduct was implemented by the coercive power of the State, in that case, the criminal sanction in Shelly and Barrows by the civil sanction.

    Earl Warren:

    Could that be denial of a — of a constitutional right by State which would continue a illegal practice of this state action as well as if the judgment had gone for the — for the plaintiff —

    Herman F. Selvin:

    Yes, sir.

    Earl Warren:

    And then affirmative relief against the defendants?

    Herman F. Selvin:

    If the denial — if there’s a denial of a constitutional right.

    But so far as the Fourteenth Amendment is concerned, the constitutional right in the individual is not to be free from the interference of other individuals but to be free from interference by the State.

    Now, of course, a judge — judgment — judicial action can be state action but it must — I think must be tested by Fourteenth Amendment standards in appropriate cases.

    But when a court — all that a court does, when all that the court does is to say, nothing in the positive law of the State of California makes an agreement of this sort invalid so long as it is voluntarily adhered to, California isn’t enforcing that agreement.

    It isn’t putting a sanction behind the agreement.

    It is simply, shrugging its shoulders in effect and saying private conduct will be private conduct and it may be distasteful private conduct, it may be calling private conduct.

    It may even be conduct which if it were undertaken by the State, would bring it within the undertakers of the Fourteenth Amendment.

    But the whole history of the Amendment, as I read that history, has always been but it is only against the State that it operates not against the individual.

    Earl Warren:

    But would you say all the employers in California join together and inspired together to prevent this certain group of citizens from — of California from — from being employed any place in California, that would not violate some constitutional provision?

    Herman F. Selvin:

    So long as that’s all there was.

    In my opinion, Your Honor, it would not.

    It would violate the common law of California in my opinion and there would be ample remedy but —

    Earl Warren:

    What would the remedy be?

    Herman F. Selvin:

    An action for interference with business relations or refusal not to deal.

    However, you want to determine.

    Earl Warren:

    Of a man whom he has one skill that he alleges that he has been kept out.

    The only industry in which he can use that skill is that just — is that not just as much to try with him of his constitutional right as if he was (Inaudible)?

    Herman F. Selvin:

    No, no.

    Because in order to deprive him of a constitutional right, the depriver must be the State, in this case, the private individual who deprives him of the right.

    Our whole point in that connection is that the Fourteenth Amendment, as I say, is only a restriction on the State.

    It creates no rights between individuals as such.

    That has been its history and for the reason to which I have indicated and for, it seems to me, Your Honors, perhaps an even more compelling reason.

    The basic purpose, as I see into the Fourteenth Amendment was to keep — secure the human individual and his personal freedom and the freedom to express himself in whatever ways within broad limits, his talent, his temperament, his personality may dictate it, to lay room in this country for all shapes and varieties of opinion and conduct without arbitrary or unreasonable interference from the State.

    And accordingly, the Fourteenth Amendment was designably prepared as a restriction upon the State’s power to interfere with that individual freedom again within broad limits, not as a restriction on the individual to be as free as consistently with the policy of the State in which he lives, he desires to be.

    And I respectfully submit that to make of the Fourteenth Amendment the same kind of a restriction on the individual that it is on to states is not to follow the Fourteenth Amendment but to support its great purpose.

    Thank you, Your Honors.

    Earl Warren:

    Mr. Margolis.

    Ben Margolis:

    Few moments as to how these questions were raised, if the Court please.

    We heard nothing about the supremacy point from counsel.

    Now, as far as the supremacy point is concerned, the trial judge discussed that in his opinion and said in effect that the supreme law of the land, as applied, nevertheless required a dismissal of the complaint.

    So, it was considered and was passed on by the trial court.

    It was raised specifically on page 26 of the opening brief.

    It was raised again on the petition for rehearing.

    So, this has been raised throughout.

    Now, let us take due process and equal protection.

    William J. Brennan, Jr.:

    What was — what was raised throughout?

    Ben Margolis:

    The supremacy point, supreme law of the land.

    Now, let us take due process and equal protection.

    Contrary to what counsel has served —

    Felix Frankfurter:

    What do you mean by the supremacy point —

    Ben Margolis:

    The point (Voice Overlap) — the failure to (Voice Overlap) I’m — I’m trying it shorthand.

    The failure to apply the Supreme Court — the Supreme — the failure to apply enforce the supreme law of the land.

    Felix Frankfurter:

    The supreme law of the land refers to something which is the supreme law.

    Ben Margolis:

    Yes.

    William J. Brennan, Jr.:

    Federal rights.

    Ben Margolis:

    Federal right is what I’m talking about, the rights of — right of — the rights of these people as witnesses to perform their duties as witnesses without injury from any source.

    Felix Frankfurter:

    Did you — I should think and (Inaudible) to the pleadings here and say that in your complaint, you raised the constitutional questions you urged against the bar.

    Can one say that you raise these questions after the District Court decided against them?

    Can one say that you raised them that the — if the District Court considered them in any way?

    Ben Margolis:

    The District — the — the District Court of Appeals have not considered but they were raised — they’re in the pleading — the pleadings assert that these people were being punished by the combination or being injured by the combination because of their exercise of their rights of witnesses —

    Felix Frankfurter:

    Did you say in your — in your opinion to the District Court, that we raised the following federal constitutional (Voice Overlap) —

    Ben Margolis:

    Yes.

    It’s on page 26 of our brief with respect to the federal — with respect to the Supremacy Clause.

    Now, I wanted to —

    Felix Frankfurter:

    That doesn’t mean anything to me Mr. Margolis, the Supremacy Clause.

    Ben Margolis:

    But —

    Felix Frankfurter:

    The Supremacy Clause substitute some other provision of federal rights —

    Ben Margolis:

    Yes.

    William O. Douglas:

    Those — those —

    Ben Margolis:

    We spell out what those federal rights are.

    Felix Frankfurter:

    I’m not saying you don’t —

    Ben Margolis:

    Nobody —

    Felix Frankfurter:

    — I’m asking you (Voice Overlap) —

    William O. Douglas:

    Nobody admits that —

    Felix Frankfurter:

    — Supremacy Clause.

    William O. Douglas:

    Nobody has mentioned it so far.

    But I think they appear in paragraph 7 of your complaint on page 11 of the record.

    Ben Margolis:

    Yes.

    Well, it set forth — it is clearly set forth in the complaint —

    Felix Frankfurter:

    I’m not denying it —

    Ben Margolis:

    And I — I —

    Felix Frankfurter:

    I don’t know.

    Ben Margolis:

    I don’t want to take the time to read it because I want to move on to some other things (Voice Overlap) —

    Felix Frankfurter:

    Well, it would be vital whether or not according to California procedural law, you raised the federal question in time for consideration by the District Court or by the Superior Court which it raised and not passed on by the Superior Court.

    At that time, I think, I understand California law to be, it would be very common that if you raise a federal constitutional question in the Court of first instance and that Court, for one reason or another doesn’t deal with the federal question, you may then go up to the appellate court and say we have a federal claim which we exist on and which the Court adversely, have not passed on.

    Ben Margolis:

    That’s all we were required to do in the complaint was to allege of the fact upon which our federal —

    Felix Frankfurter:

    And the federal court didn’t pass on it.

    Ben Margolis:

    No.

    Felix Frankfurter:

    And the Superior Court —

    Ben Margolis:

    But —

    Felix Frankfurter:

    — didn’t pass on it, did it?

    Ben Margolis:

    The Superior Court in considering the issue of justification discussed the question of the federal rights under the Fifth Amendment and the federal rights as a witness.

    Felix Frankfurter:

    Now, tell me this.

    Under California law, in order to go out to the District Court must — what kind of a paper (Inaudible) —

    Ben Margolis:

    You file a brief on appeal.

    Felix Frankfurter:

    And in that —

    Ben Margolis:

    Just that —

    Felix Frankfurter:

    — brief you must set forth the questions that you want the District Court could pass on, is that right?

    Ben Margolis:

    You said — well, I don’t think that there is any specific statement of questions.

    You have —

    Felix Frankfurter:

    You’ve got to bring questions of constitutionality that you want passed on to the objection of that —

    Ben Margolis:

    Yes.

    And this was done.

    Felix Frankfurter:

    All right.

    If it was done, it was done.

    Ben Margolis:

    Now, insofar as the denial of equal protection and — and due process are concerned, it is our position that these arose out of the action of the Court, not only in dismissing the complaint but on the grounds on which the complaint was dismissed.

    For example, in the trial court, the trial court ruled in our favor insofar as the cause of action being one for the right to work and not requiring a specific contract.

    That was in our faith.

    It ruled against us on the issue of justification, should we then have moved for reconsideration and said to the trial court, “If you had ruled against us on the issue of the necessity for a contract, you would have denied us our constitutional rights.”

    That’s — that’s the kind of a motion for reconsideration we would have had to make.

    We would have had to say, if you had ruled differently than you did rule.

    If your grounds for your ruling had been different, then you would have denied us of these constitutional rights.

    When we went up on appeal, we claim that there were certain constitutional rights involved in the issue of justification and we urged those constitutional rights, due process and equal protection but in the light of the trial court’s ruling, the trial court up to that point having ruled in our favor, insofar as the point now before this Court is concerned.

    The first time — the first time that we knew that the — that any State of California, any court of the State of California was going to require a contract as a condition of enforcing this right was when the District Court of Appeal handed down its decision.

    And what did we have to anticipate?

    Number one, that they will treat our complaint which is based upon their right to work as though it were based upon violation of a specific contract —

    William J. Brennan, Jr.:

    Well, right there.

    What is the specific state action on which you complain?

    Ben Margolis:

    The specific —

    William J. Brennan, Jr.:

    The affirmance by the Court of Appeals?

    Ben Margolis:

    Yes, the affirmance by the Court of Appeal on the grounds upon which it is based.

    That is the specific and — and we just have no way of knowing before that that they would disregard the right to work.

    William J. Brennan, Jr.:

    And you addressed the federal questions at least to that action in the petition for rehearing.

    Ben Margolis:

    The first opportunity we have — the first time that we knew that — that those questions are rolled.

    The supremacy point which was present at all times is present in the case at all times.

    It was raised at all times, was considered by the trial court and was raised in our briefs.

    I see my time is up.

    Ben Margolis:

    We have these adequate matters which we could answer which shall adequately answered in our brief.

    Felix Frankfurter:

    You mean — may I ask you this question.

    You mean that — that the first time you knew and could deal with the provisions of the Superior Court that in order to bring an ordinary common law at all for infraction of the right, require that you allege that you have some interest into the point of asking for a job, the deprivation of which was the basis of your claim.

    Ben Margolis:

    The Superior Court did not so ruled, it ruled the other way.

    That’s the point.

    The — the Superior Court ruled the other way on this point.

    The District Court Appeal was the first court.

    Felix Frankfurter:

    What was the basis of the hearing?

    Ben Margolis:

    The Superior Court rule that it appeared from the face of the pleadings, it — it ruled first of all, that there — that there was a cause of action for loss of the right to work, pleaded here.

    But it said that there can be there can be justification.

    It is the burden of the plaintiff to show — to show lack of justification in the complaint that the complaint on its face did not show such lack of justification.

    That was the basis of the Superior Court’s ruling.

    It had ruled in our favor on the point that the District Court of Appeal later ruled against us —

    Felix Frankfurter:

    Explicitly — explicit —

    Ben Margolis:

    Yes.

    It’s in there.

    I think it’s the — what’s it?

    Mr. Kenny, perhaps, can help me find the specific page reference?

    I think — I think it’s very clear that it was affirming, that as far as it was treating our right as one which existed regardless of contract.

    Your Honor, will find it on page 45 of the — of the record.

    Now, there is one — well, I think my time is up.

    Earl Warren:

    Go ahead you — you have 30 seconds.

    Ben Margolis:

    I —

    Felix Frankfurter:

    Look what it says in the Superior Court.

    The plaintiff has not alleged the existence of any contract, that any defendant or (Inaudible) or attempted any conventional allegation of the restraint of trade.

    Ben Margolis:

    Right.

    They have to go on.

    You see, they go on to hold that this — that this is not insufficient.

    They considered the point.

    William J. Brennan, Jr.:

    And what you’re telling us is that in the Superior Court, you have a cause of action without having a contract to the possibility, that for the first time or probability one but for the first time in the Court of Appeals, the law was laid down that you have no cause of action without — after showing a contract or the probability —

    Ben Margolis:

    Yes.

    William J. Brennan, Jr.:

    Is that it?

    Felix Frankfurter:

    But you couldn’t have been surprised by a question which the Superior Court discussed and even assuming that is so, there are other (Inaudible).

    Ben Margolis:

    But the point is that there was no state action against —

    Felix Frankfurter:

    How can you say, they were surprised?

    Ben Margolis:

    The point is that there was no state action against us on those grounds.

    Felix Frankfurter:

    There was state action against you and not granting you relief.

    That was the state action.

    Ben Margolis:

    But this —

    Felix Frankfurter:

    The state action isn’t the point of law.

    A state action is granting or denial a remedy.

    Ben Margolis:

    But we have — if we had moved for reconsideration.

    Here’s what we would have had to say.

    If you had ruled differently than you ruled, you would have denied us due process because they had ruled that our — that we didn’t have to have a contract.

    We would have had to say, if you had ruled that we require the contract, you would have denied us due process and equal protection.

    Felix Frankfurter:

    But you were appealing and we are considering here judgment not all.

    Ben Margolis:

    But the judgment was based entirely upon lack of justification which was an independent ground.

    Felix Frankfurter:

    But the case you rely on, that important case, very important namely —

    Ben Margolis:

    (Inaudible)

    Felix Frankfurter:

    That means when a court decides something that is really a surprise, it couldn’t be a surprise if the Court had it in litigation.

    Ben Margolis:

    Well —

    This record.

    Ben Margolis:

    — no think of (Inaudible) doesn’t simply involve a question of, I think, the issue was raised in (Inaudible) but what happened was that there was a change in the law.

    And — and what the appellate court did in (Inaudible) was to change the law and accept a contention which in effect changed the law.

    Now —

    Felix Frankfurter:

    Nobody — there was no question.

    That issue was not incompetent and my suggestion is that here, this issue was in controversy but lower court says — the Superior Court says, assuming you’re right, let’s go on.

    And to say that that has deprived (Inaudible) case every time that a district (Inaudible) the Court, discusses an issue and proposed of it is a surprise if on appeal and the Court of Appeals takes to congress.

    Ben Margolis:

    We would have had to anticipate, if the Court please, that our complaint would be treated as alleging something entirely different than as alleged.

    And I submit that we were not required to anticipate that.

    William O. Douglas:

    Where is your petition for rehearing in the Court of Appeals —

    Ben Margolis:

    I beg your pardon, sir?

    William J. Brennan, Jr.:

    Where’s your petition for rehearing, this printed record?

    Ben Margolis:

    Yes, it’s — it’s printed and I believe it’s on file here.

    Hugo L. Black:

    Where is it printed in the record?

    Ben Margolis:

    No, it’s not printed in the record.

    It’s on —

    William J. Brennan, Jr.:

    On file with the clerk?

    Ben Margolis:

    Yes, it’s on file here with the clerk.

    Hugo L. Black:

    How do you raise objections when you’re on appeal in the appellate court, by assignments of error or by —

    Ben Margolis:

    No.

    By — you will just raise the points in the brief in your argument.

    Hugo L. Black:

    Just in the brief?

    Ben Margolis:

    Yes.

    Under the law of California there —

    Hugo L. Black:

    Briefs here?

    Ben Margolis:

    The briefs are there.

    Hugo L. Black:

    They’re not in the record.

    Ben Margolis:

    They were —

    Hugo L. Black:

    Did you raise any —

    Ben Margolis:

    — offered as part of the record whether they have been accepted as part of the record under the Court’s rule.

    I — I don’t know for sure.

    Hugo L. Black:

    Did you raise it in the Appellant Court, the Superior Court’s decision, that you have no cause of action because you couldn’t show justification on account of the construction that court gave to the Fifth Amendment?

    Ben Margolis:

    Yes.

    We — we raised that and we also said that the court’s ruling — we said in the — in the appellate court, that the court’s ruling denied us of — of due process and of equal protection.

    It was argued in a somewhat different context than it is being argued now.

    But we did argue that the dismissal of the complaint denied us due process and equal protection.

    That was argued in the Court of Appeals.

    But it was argued in the light of the decision of the trial court.

    Hugo L. Black:

    The Superior Court according to the record at page 46, you cited your complaint was not good on the ground that you didn’t show, you fail to show such a refusal without justification under the (Inaudible).

    Ben Margolis:

    That’s right.

    Hugo L. Black:

    The Court said that in order to decide that, it had to turn to the meaning of the Fifth Amendment.

    Ben Margolis:

    Right.

    Hugo L. Black:

    It did turn to the meaning of the Fifth Amendment and it gave its meaning.

    Ben Margolis:

    Right.

    Hugo L. Black:

    And then, what I’m asking is, if you and your petition or in your brief in the Supreme Court and your motion for — appellate court and your motion for rehearing challenge that interpretation of the Fifth Amendment.

    Ben Margolis:

    It was challenged at every step of the case.