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WHITNEY v. CALIFORNIA

decided: May 16, 1927.

WHITNEY
v.
CALIFORNIA



ERROR TO THE DISTRICT COURT OF APPEAL, FIRST APPELLATE DISTRICT, DIVISION ONE, OF THE STATE OF CALIFORNIA.

Taft, Holmes, Van Devanter, McReynolds, Brandeis, Sutherland, Butler, Sanford, Stone

Author: Sanford

[ 274 U.S. Page 359]

 MR. JUSTICE SANFORD delivered the opinion of the Court.

By a criminal information filed in the Superior Court of Alameda County, California, the plaintiff in error was charged, in five counts, with violations of the Criminal Syndicalism Act of that State. Statutes, 1919, c. 188, p. 281. She was tried, convicted on the first count, and sentenced to imprisonment. The judgment was affirmed by the District Court of Appeal. 57 Cal. App. 449. Her petition to have the case heard by the Supreme Court*fn1 was denied. Ib. 453. And the case was brought here on a writ of error which was allowed by the Presiding Justice of the Court of Appeal, the highest court of the State in which a decision could be had. Jud. Code, ยง 237.

On the first hearing in this Court, the writ of error was dismissed for want of jurisdiction. 269 U.S. 530. Thereafter, a petition for rehearing was granted, Ib. 538; and the case was again heard and reargued both as to the jurisdiction and the merits.

The pertinent provisions of the Criminal Syndicalism Act are:

"Section 1. The term 'criminal syndicalism' as used in this act is hereby defined as any doctrine or precept advocating, teaching or aiding and abetting the commission of crime, sabotage (which word is hereby defined as meaning wilful and malicious physical damage or injury to physical roperty), or unlawful acts of force and violence or unlawful methods of terrorism as a means of accomplishing a change in industrial ownership or control, or effecting any political change.

"Sec. 2. Any person who: . . . 4. Organizes or assists in organizing, or is or knowingly becomes a member of, any organization, society, group or assemblage of persons organized or assembled to advocate, teach or aid and abet criminal syndicalism. . .

"Is guilty of a felony and punishable by imprisonment."

The first count of the information, on which the conviction was had, charged that on or about November 28, 1919, in Alameda County, the defendant, in violation of the Criminal Syndicalism Act, "did then and there unlawfully, wilfully, wrongfully, deliberately and feloniously organize and assist in organizing, and was, is, and knowingly became a member of an organization, society, group and assemblage of persons organized and assembled to advocate, teach, aid and abet criminal syndicalism."

It has long been settled that this Court acquires no jurisdiction to review the judgment of a state court of last resort on a writ of error, unless it affirmatively appears on the face of the record that a federal question constituting an appropriate ground for such review was presented in and expressly or necessarily decided by such state court. Crowell v. Randell, 10 Pet. 368, 392; Railroad Co. v. Rock, 4 Wall, 177, 180; California Powder Works v. Davis, 151 U.S. 389, 393; Cincinnati, etc. Railway v. Slade, 216 U.S. 78, 83; Hiawassee Power Co. v. Carolina-Tenn. Co., 252 U.S. 341, 343; New York v. Kleinert, 268 U.S. 646, 650.

Here the record does not show that the defendant raised or that the State courts considered or decided any

[ 274 U.S. Page 361]

     Federal question whatever, excepting as appears in an order made and entered by the Court of Appeal after it had decided the case and the writ of error had issued and been returned to this Court. A certified copy of that order, brought here as an addition to the record, shows that it was made and entered pursuant to a stipulation of the parties, approved by the court, and that it contains the following statement:

"The question whether the California Criminal Syndicalism Act. . . and its application in this case is repugnant to the provisions of the Fourteenth Amendment to the Constitution of the United States, providing that no state shall deprive any person of life, liberty, or property, without due process of law, and that all persons shall be accorded the equal protection of the laws, was considered and passed upon by this Court."

In Cincinnati Packet Co. v. Bay, 200 U.S. 179, 182, where it appeared that a federal question had been presented in a petition in error to the State Supreme Court in a case in which the judgment was affirmed without opinion, it was held that the certificate of that court to the effect that it had considered and necessarily decided this question, was sufficient to show its existence. And see Marvin v. Trout, 199 U.S. 212, 217, et seq.; Consolidated Turnpike v. Norfolk, etc. Railway, 228 U.S. 596, 599.

So -- while the unusual course here taken to show that federal questions were raised and decided below is not to be commended -- we shall give effect to the order of the Court of Appeal as would be done if the statement had been made in the opinion of that court when delivered. See Gross v. United States Mortgage Co., 108 U.S. 477, 484-486; Philadelphia Fire Association v. New York, 119 U.S. 110, 116; Home for Incurables v. City of New York, 187 U.S. 155, 157; Land & Water Co. v. San Jose Ranch Co., 189 U.S. 177, 179-180; Rector v. City Deposit Bank,

[ 274 U.S. Page 362200]

     U.S. 405, 412; Haire v. Rice, 204 U.S. 291, 299; Chambers v. Baltimore, etc. Railroad, 207 U.S. 142, 148; Atchison, etc. Railway v. Sowers, 213 U.S. 55, 62; Consolidated Turnpike Co. v. Norfolk, etc. Railway, 228 U.S. 596, 599; Miedreich v. Lauenstein, 232 U.S. 236, 242; North Carolina Railroad v. Zachary, 232 U.S. 248, 257; Chicago, etc. Railway v. Perry, 259 U.S. 548, 551.

And here, since it appears from the statement in the order of the Court of Appeal that the question whether the Syndicalism Act and its application in this case was repugnant to the due process and equal protection clauses of the Fourteenth Amendment, was considered and passed upon by that court -- this being a federal question constituting an appropriate ground for a review of the judgment -- we conclude that this Court has acquired jurisdiction under the writ of error. The order dismissing the writ for want of jurisdiction will accordingly be set aside.

We proceed to the determination, upon the merits, of the constitutional question considered and passed upon by the Court of Appeal. Of course our review is to be confined to that question, since it does not appear, either from the order of the Court of Appeal or from the record otherwise, that any other federal question was presented in and either expressly or necessarily decided by that court. National Bank v. Commonwealth, 9 Wall. 353, 363; Edwards v. Elliott, 21 Wall. 532, 557; Dewey v. Des Moines, 173 U.S. 193, 200; Keokuk & Hamilton Bridge Co. v. Illinois, 175 U.S. 626, 633; Capital City Dairy Co. v. Ohio, 183 U.S. 238, 248; Haire v. Rice, 204 U.S. 291, 301; Selover, Bates & Co. v. Walsh, 226 U.S. 112, 126. Missouri Pacific Railway v. Coal Co., 256 U.S. 134, 135. It is not enough that there may be somewhere hidden in the record a question which, if it had been raised, would have been of a federal nature. Dewey v. Des Moines, supra, 199; Keokuk & Hamilton Bridge Co. v. Illinois, supra, 634. And this necessarily excludes from our consideration a question sought to be raised for the first time by the assignments of error here -- not presented in or passed upon by the Court of Appeal -- whether apart from the constitutionality of the Syndicalism Act, the judgment of the Superior Court, by reason of the rulings of that court on questions of pleading, evidence and the like, operated as a denial to the defendant of due process of law. See Oxley Stave Co. v. Butler County, 166 U.S. 648, 660; Capital City Dairy Co. v. Ohio, supra, 248; Manhattan Life Ins. Co. v. Cohen, 234 U.S. 123, 134; Bass, etc. Ltd. v. Tax Commission, 266 U.S. 271, 283.

The following facts, among many others, were established on the trial by undisputed evidence: The defendant, a resident of Oakland, in Alameda County, California, had been a member of the Local Oakland branch of the Socialist Party. This Local sent delegates to the national convention of the Socialist Party held in Chicago in 1919, which resulted in a split between the "radical" group and the old-wing Socialists. The "radicals" -- to whom the Oakland delegates adhered -- being ejected, went to another hall, and formed the Communist Labor Party of America. Its Constitution provided for the membership of persons subscribing to the principles of the Party and pledging themselves to be guided by its Platform, and for the formation of state organizations conforming to its Platform as the supreme declaration of the Party. In its "Platform and Program" the Party declared that it was in full harmony with "the revolutionary working class parties of all countries" and adhered to the principles of Communism laid down in the Manifesto of the Third International at Moscow, and that its ...


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