1

RUTLEDGE, J., dissenting.

the like restrictions and limitations, as are or may be prescribed by the laws for raising the Revenues of this State.

And be it enacted, That for every sum so paid, the Sheriff or Collector shall give a receipt, expressing therein to what society of Christians the person from whom he may receive the same shall direct the money to be paid, keeping a distinct account thereof in his books. The Sheriff of every County, shall, on or before the

day

of in every year, return to the Court, upon oath, two alphabetical lists of the payments to him made, distinguishing in columns opposite to the names of the persons who shall have paid the same, the society to which the money so paid was by them appropriated; and one column for the names where no appropriation shall be made. One of which lists, after being recorded in a book to be kept for that purpose, shall be filed by the Clerk in his office; the other shall by the Sheriff be fixed up in the Court-house, there to remain for the inspection of all concerned. And the Sheriff, after deducting five per centum for the collection, shall forthwith pay to such person or persons as shall be appointed to receive the same by the Vestry, Elders, or Directors, however denominated of each such society, the sum so stated to be due to that society; or in default thereof, upon the motion of such person or persons to the next or any succeeding Court, execution shall be awarded for the same against the Sheriff and his security, his and their executors or administrators; provided that ten days previous notice be given of such motion. And upon every such execution, the Officer serving the same shall proceed to immediate salé of the estate taken, and shall not accept of security for payment at the end of three months, nor to have the goods forthcoming at the day of sale; for his better direction wherein, the Clerk shall endorse upon every such execution that no security of any kind shall be taken.

RUTLEDGE, J., dissenting.

330 U.S.

And be it further enacted, That the money to be raised by virtue of this Act, shall be by the Vestries, Elders, or Directors of each religious society, appropriated to a provision for a Minister or Teacher of the Gospel of their denomination, or the providing places of divine worship, and to none other use whatsoever; except in the denominations of Quakers and Menonists, who may receive what is collected from their members, and place it in their general fund, to be disposed of in a manner which they shall think best calculated to promote their particular mode of worship.

And be it enacted, That all sums which at the time of payment to the Sheriff or Collector may not be appropriated by the person paying the same, shall be accounted for with the Court in manner as by this Act is directed; and after deducting for his collection, the Sheriff shall pay the amount thereof (upon account certified by the Court to the Auditors of Public Accounts, and by them to the Treasurer) into the public Treasury, to be disposed of under the direction of the General Assembly, for the encouragement of seminaries of learning within the Counties whence such sums shall arise, and to no other use or purpose whatsoever.

THIS Act shall commence, and be in force, from and after the day of in the year

A Copy from the Engrossed Bill.

JOHN BECKLEY, C. H. D.

Washington Mss. (Papers of George Washington, Vol. 231); Library of Congress."

*This copy of the Assessment Bill is from one of the handbills which on December 24, 1784, when the third reading of the bill was postponed, were ordered distributed to the Virginia counties by the House of Delegates. See Journal of the Virginia House of Delegates, December 24, 1784; Eckenrode, 102-103. The bill is therefore in its final form, for it never again reached the floor of the House. Eckenrode, 113

Syllabus.

UNITED PUBLIC WORKERS OF AMERICA (C. I. O.) ET AL. v. MITCHELL ET AL.

APPEAL FROM THE DISTRICT COURT OF THE UNITED STATES FOR THE DISTRICT OF COLUMBIA.

No. 20. Argued December 3, 1945. Reargued October 17, 1946.— Decided February 10, 1947.

1. Under § 3 of the Act of August 24, 1937, 50 Stat. 752, 28 U. S. C. § 380a, a direct appeal to this Court was taken from a judgment of a district court of three judges denying an injunction in a case involving the constitutionality of a federal statute. The case was not docketed in this Court until after 60 days from the time the appeal was allowed. The steps prescribed by Rule 11 of this Court for obtaining a dismissal were not taken by the appellees. Held: This Court has jurisdiction of the appeal. Pp. 84-86.

(a) The provision of 28 U. S. C. § 380a requiring an appeal thereunder to be docketed in this Court within 60 days from the time the appeal is allowed was not intended to vary Rule 11 of this Court and does not constitute a limitation on the power of this Court to hear this appeal. Pp. 85-86.

(b) Rule 47 of this Court requires the same practice for appeals under 28 U. S. C. § 380a that Rule 11 does for other appeals. P. 86. 2. Certain employees of the executive branch of the Federal Government sued for an injunction against the members of the Civil Service Commission to prohibit them from enforcing against such employees §9 (a) of the Hatch Act, 18 U. S. C. Supp. V § 61h, which forbids such employees from taking "any active part in political management or in political campaigns," and also for a declaratory judgment of the unconstitutionality of this section. They did not allege that they had violated the Act or that they actually were threatened with any disciplinary action, but only that they desire to engage in acts of political management and in political campaigns (specifying the nature of the actions which they wish to take) and are prevented from doing so by fear of dismissal from federal employment. Held: Their suit does not present a justiciable case or controversy. Pp. 86-91.

3. Another employee of the executive branch of the Federal Government brought a similar suit, alleging that he actually had committed

specific violations of the Act and that the Commission had charged him with violations and had issued a proposed order for his removal, subject to his right to reply to the charges and to present further evidence in refutation. Held: His suit presents a justiciable case or controversy. Pp. 91-94.

(a) Since the employee admits that he violated the Act and that removal from office is therefore mandatory under the Act, there is no question as to exhaustion of administrative remedies. P. 93.

(b) There being no administrative or statutory review for the Commission's order and no prior proceeding pending in the courts, there is no reason why a declaratory judgment action does not lie, even though constitutional issues are involved. P. 93.

4. A person employed as a roller in a United States mint acted outside of working hours as a ward executive committeeman of a political party and was politically active on election day as a worker at the polls and as a paymaster for the services of other workers. The Civil Service Commission found that he had taken an "active part in political management or in political campaigns" in violation of §9 (a) of the Hatch Act, 18 U. S. C. Supp. V § 61h, and Rule 1 of the Commission and issued an order for his removal from federal employment. Held: Such a breach of the Hatch Act and Rule 1 of the Commission can be made the basis for disciplinary action without violating the Constitution. Pp. 94-104.

(a) Congress has the power to regulate, within reasonable limits, the political conduct of federal employees, in order to promote efficiency and integrity in the public service. Ex parte Curtis, 106 U. S. 371; United States v. Wurzbach, 280 U. S. 396. Pp. 96-103.

(b) The fundamental human rights guaranteed by the First, Fifth, Ninth and Tenth Amendments are not absolutes; and this Court must balance the extent of the guarantee of freedom against a congressional enactment to protect a democratic society against the supposed evil of political partisanship by employees of the Government. Pp. 95-96.

(c) The Hatch Act permits full participation by federal employees in political decisions at the ballot box and forbids only the partisan activity deemed offensive to efficiency. P. 99.

(d) It does not restrict public and private expressions on public affairs, personalities and matters of public interest, not an objective or party action, so long as the government employee does not direct his activities toward party success. P. 100.

(e) If political activity by government employees is harmful

to the service, the employees or people dealing with them, it is hardly less so because it takes place after hours. P. 95.

(f) The prohibition of § 9 (a) of the Hatch Act applies without discrimination to all employees of the executive branch of the Government, whether industrial or administrative. P. 102.

(g) Whatever differences there may be between administrative employees of the Government and industrial workers in its employ are differences in detail for the consideration of Congress, so far as the constitutional power here involved is concerned. P. 102.

(h) The determination of the extent to which political activities of government employees shall be regulated lies primarily with Congress; and the courts will interfere only when such regulation passes beyond the generally existing conception of governmental power. P. 102.

5. Acting as ward executive committeeman of a political party and as a worker at the polls is within the prohibitions of §9 of the Hatch Act and the Civil Service Rules. P. 103.

56 F. Supp. 621, affirmed.

Certain employees of the executive branch of the Federal Government and a union of such employees sued to enjoin the members of the Civil Service Commission from enforcing the provision of § 9 (a) of the Hatch Act, 18 U. S. C. Supp. V § 61h, which forbids such employees to take "any active part in political management or in political campaigns" and for a declaratory judgment holding the Act unconstitutional. The District Court dismissed the suit. 56 F. Supp. 621. A direct appeal to this Court was taken under § 3 of the Act of August 24, 1937, 50 Stat. 752, 28 U. S. C. § 380a. Affirmed, p. 104.

Lee Pressman argued the cause for appellants. With him on the brief were Frank Donner and Milton V. Freeman.

Ralph F. Fuchs argued the cause for appellees. With him on the brief were Solicitor General McGrath, Assistant Attorney General Sonnett, David L. Kreeger and Abraham J. Harris.