DOUGLAS, J., dissenting.

337 U.S.

to corporations on the ground that it violated the Equal Protection Clause. Every one of our decisions upholding legislation as applied to corporations over the objection that it violated the Equal Protection Clause has assumed that they are entitled to the constitutional protection. But in those cases it was not necessary to meet the issue since the state law was not found to contain the elements of discrimination which the Equal Protection Clause condemns. But now that the question is squarely presented I can only conclude that the Santa Clara case was wrong and should be overruled.

One hesitates to overrule cases even in the constitutional field that are of an old vintage. But that has never been a deterrent heretofore and should not be now.

3 See Chicago, M. & St. P. R. Co. v. Minnesota, 134 U. S. 418; Gulf, Colorado & Santa Fé R. Co. v. Ellis, 165 U. S. 150; Cotting v. Kansas City Stockyards Co., 183 U. S. 79; Connolly v. Union Sewer Pipe Co., 184 U. S. 540; Southern R. Co. v. Greene, 216 U. S. 400; Herndon v. Chicago, Rock Island & Pac. R. Co., 218 U. S. 135; Roach v. Atchison, T. & Santa Fe R. Co., 218 U. S. 159; Atchison, T. & S. F. R. Co. v. Vosburg, 238 U. S. 56; Gast Realty Co. v. Schneider Granite Co., 240 U. S. 55; McFarland v. American Sugar Co., 241 U. S. 79; Royster Guano Co. v. Virginia, 253 U. S. 412; Bethlehem Motors Corp. v. Flynt, 256 U. S. 421; Kansas City So. R. Co. v. Road Imp. Dist. No. 6, 256 U. S. 658; C. & N. W. R. Co. v. Nye Co., 260 U. S. 35; Sioux City Bridge Co. v. Dakota County, 260 U. S. 441; Thomas v. Kansas City So. R. Co., 261 U. S. 481; Kentucky Co. v. Paramount Exch., 262 U. S. 544; Air-Way Corp. v. Day, 266 U. S. 71; Hanover Ins. Co. v. Harding, 272 U. S. 494; Power Co. v. Saunders, 274 U. S. 490; Louisville Gas Co. v. Coleman, 277 U. S. 32; Quaker City Cab Co. v. Penna., 277 U. S. 389; Cumberland Coal Co. v. Board, 284 U. S. 23; Liggett Co. v. Lee, 288 U. S. 517; Concordia Ins. Co. v. Illinois, 292 U. S. 535; Stewart Dry Goods Co. v. Lewis, 294 U. S. 550; Mayflower Farms v. Ten Eyck, 297 U. S. 266; Hartford Co. v. Harrison, 301 U. S. 459.

* In re Ayers, 123 U. S. 443, overruled in part Osborn v. United States Bank, 9 Wheat. 738, a decision 63 years old; Leisy v. Hardin, 135 U. S. 100, overruled Peirce v. New Hampshire, 5 How. 504, a decision 42 years old. Erie R. Co. v. Tompkins, 304 U. S. 64, over

562

DOUGLAS, J., dissenting.

We are dealing with a question of vital concern to the people of the nation. It may be most desirable to give corporations this protection from the operation of the legislative process. But that question is not for us. It is for the people. If they want corporations to be treated as humans are treated, if they want to grant corporations this large degree of emancipation from state regulation," they should say so. The Constitution provides a method by which they may do so. We should not do it for them through the guise of interpretation.

1598 337

2

ruled Swift v. Tyson, 16 Pet. 1, a decision 95 years old; Graves v. N. Y. ex rel. O'Keefe, 306 U. S. 466, overruled Collector v. Day, 11 Wall. 113, a decision 68 years old. United States v. Underwriters Assn., 322 U. S. 533, overruled in part Paul v. Virginia, 8 Wall. 168, a decision 75 years old.

5 The restrictions on state power which are contained in the Commerce Clause and which may prevent the States from burdening interstate commerce (see Southern Pacific Co. v. Arizona, 325 U. S. 761; Morgan v. Virginia, 328 U. S. 373) or discriminating against it (see Nippert v. Richmond, 327 U. S. 416) rise from a different source and are not relevant here.

NATIONAL MUTUAL INSURANCE CO. v. TIDEWATER TRANSFER CO., INC.

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR

THE FOURTH CIRCUIT.

No. 29. Argued November 8, 1948.-Decided June 20, 1949.

The Act of April 20, 1940, c. 117, 54 Stat. 143 (now 28 U. S. C. § 1332), conferred on the federal district courts jurisdiction of civil actions (involving no federal question) between citizens of the District of Columbia and citizens of a State. A District of Columbia corporation instituted in the Federal District Court for Maryland an action against a Virginia corporation, wherein the jurisdiction depended solely on diversity of citizenship. The District Court held the Act unconstitutional and dismissed the complaint. The Court of Appeals affirmed. Held: The Act is constitutional and the judgment is reversed. Pp. 583-585, 604. 165 F.2d 531, reversed.

A District of Columbia corporation sued a Virginia corporation in the Federal District Court for Maryland, the jurisdiction depending solely on diversity of citizenship. The District Court dismissed the complaint. The Court of Appeals affirmed. 165 F. 2d 531. This Court granted certiorari. 333 U. S. 860. Reversed, p. 604.

David G. Bress argued the cause for petitioner. With him on the brief were Alvin L. Newmyer and Sheldon E. Bernstein.

By special leave of Court, Solicitor General Perlman argued the cause for the United States, as amicus curiae, urging reversal. With him on the brief were Assistant Attorney General Morison, Arnold Raum, Paul A. Sweeney and Harry I. Rand.

Wendell D. Allen and Francis B. Burch argued the cause and filed a brief for respondent.

582

Opinion of JACKSON, J.

MR. JUSTICE JACKSON announced the judgment of the Court and an opinion in which MR. JUSTICE BLACK and MR. JUSTICE BURTON join.

This case calls up for review a holding that it is unconstitutional for Congress to open federal courts in the several states to action by a citizen of the District of Columbia against a citizen of one of the states. The petitioner, as plaintiff, commenced in the United States District Court for Maryland an action for a money judgment on a claim arising out of an insurance contract. No cause of action under the laws or Constitution of the United States was pleaded, jurisdiction being predicated only upon an allegation of diverse citizenship. The diversity set forth was that plaintiff is a corporation created by District of Columbia law, while the defendant is a corporation chartered by Virginia, amenable to suit in Maryland by virtue of a license to do business there. The learned District Judge concluded that, while this diversity met jurisdictional requirements under the Act of Congress,' it did not comply with diversity requirements of the Constitution as to federal jurisdiction, and so dismissed. The Court of Appeals, by a divided court, affirmed. Of twelve district courts that had considered the question up to the time review in this Court was sought, all except three had held the enabling Act unconstitutional, and the two Courts of Appeals which had

1 Act of April 20, 1940, c. 117, 54 Stat. 143. For terms of the statute see note 10.

2 No opinion was filed by the District Court, which in dismissing the complaint for lack of jurisdiction relied upon its former decision and opinion in Feely v. Sidney S. Schupper Interstate Hauling System, Inc., 72 F. Supp. 663.

3 165 F. 2d 531.

The Act had been upheld in Winkler v. Daniels, 43 F. Supp. 265; Glaeser v. Acacia Mutual Life Association, 55 F. Supp. 925; and in Duze v. Woolley, 72 F. Supp. 422 (with respect to Hawaii). It

Opinion of JACKSON, J.

337 U.S.

5

spoken on the subject agreed with that conclusion. The controversy obviously was an appropriate one for review here and writ of certiorari issued in the case.

6

The history of the controversy begins with that of the Republic. In defining the cases and controversies to which the judicial power of the United States could extend, the Constitution included those "between Citizens of different States." In the Judiciary Act of 1789, Congress created a system of federal courts of first instance and gave them jurisdiction of suits "between a citizen of the State where the suit is brought, and a citizen of another State." In 1804, the Supreme Court, through Chief Justice Marshall, held that a citizen of the District of Columbia was not a citizen of a State within the meaning and intendment of this Act. This decision closed federal courts in the states to citizens of the District of Columbia in diversity cases, and for 136 years they remained closed. In 1940 Congress enacted the statute challenged here. It confers on such courts jurisdiction if the action "Is between citizens of different States, or

had been held unconstitutional in the District Court in the instant case; in Central States Co-operatives v. Watson Bros. Transportation Co., affirmed 165 F. 2d 392, and in McGarry v. City of Bethlehem, 45 F. Supp. 385; Behlert v. James Foundation, 60 F. Supp. 706; Ostrow v. Samuel Brilliant Co., 66 F. Supp. 593; Wilson v. Guggenheim, 70 F. Supp. 417; Feely v. Sidney S. Schupper Interstate Hauling System, 72 F. Supp. 663; Willis v. Dennis, 72 F. Supp. 853; and in Mutual Ben. Health & Acc. Assn. v. Dailey, 75 F. Supp. 832.

5 The Act had been held invalid by the Court of Appeals for the Fourth Circuit in the instant case, 165 F. 2d 531, with Judge Parker dissenting; and by the Court of Appeals for the Seventh Circuit in Central States Co-operatives v. Watson Bros. Transportation Co., 165 F. 2d 392, with Judge Evans dissenting.

6333 U. S. 860.

"U. S. Const. Art. III, § 2, cl. 1.

8 § 11 of the Act of Sept. 24, 1789, c. 20, 1 Stat. 73, 78.