A member of the State Highway Commission of Oklahoma, whose
principal employment was in connection with an activity financed in
part by loans and grants from a federal agency, served at the same
time as Chairman of the Democratic State Central Committee. During
his service on the Highway Commission, there was no general
election in the State, but he advised with the Governor concerning
a dinner sponsored by his Committee to raise funds for political
purposes, called the meeting to order, and introduced the
toastmaster. Pursuant to § 12 of the Hatch Act, 18 U.S.C. § 611,
the United States Civil Service Commission determined that these
activities constituted taking an "active part in political
management or in political campaigns," and that this warranted his
removal from the office of Highway Commissioner. It so notified him
and the State. Pursuant to § 12(c) of the Hatch Act, the State
instituted proceedings in a federal district court to review this
determination.
Held:
1. In this proceeding, the State may properly challenge the
constitutionality of § 12 of the Hatch Act. Pp.
330 U. S.
134-142.
(a) Since § 12(c) authorizes the reviewing court to decide
whether any order or determination made under § 12(b) is "in
accordance with law," the State can properly challenge, and the
court is authorized to consider and determine, the
constitutionality of the law upon which the order under review is
predicated.
Massachusetts v. Mellon, 262 U.
S. 447;
Perkins v. Lukens Steel Co.,
310 U. S. 113;
Alabama Power Co. v. Ickes, 302 U.
S. 464, differentiated. Pp.
330 U. S.
135-139.
(b) If the contention that the State has no standing to
challenge the constitutionality of the Act be treated as an
objection to its capacity to bring the suit, it was waived by
failure to object in the trial court. P.
330 U. S.
134.
(c) If it be treated as meaning that no justiciable controversy
exists as to the constitutionality of § 12, it is timely although
first made in this Court. P.
330 U. S.
134.
Page 330 U. S. 128
(d) Under § 12(c), either the state employee or the state may be
the party "aggrieved," and may maintain the action for judicial
review. P.
330 U. S.
137.
(e) Since failure to remove the State Highway Commissioner from
office would result under § 12(b) in interference with payment of
the full allotment of federal highway funds to the State, the
statutory proceeding to review the order finding that his violation
of the Hatch Act warranted his removal from office was a case or
controversy between the State and the Civil Service Commission. P.
330 U. S.
137.
(f) The rule that one may not, in the same proceeding, both rely
upon and assail a statute is not applicable to this case. P.
330 U. S.
139.
(g) Lack of extended discussion of the scope of judicial review
during the legislative debates on the Act does not, by implication,
deny to a litigant the right to challenge the constitutionality of
the Act. Pp.
330 U. S.
140-142.
2. Section 12 of the Hatch Act is not unconstitutional because
of its interference with the employee's freedom of expression in
political matters.
United Public Workers v. Mitchell,
ante, p.
330 U. S. 75. P.
330 U. S.
142.
3. It does not invade the sovereignty of a state in such a way
as to violate the Tenth Amendment. Pp.
330 U. S.
142-144.
(a) While the United States is not concerned with, and has no
power to regulate, political activities as such of state officials,
it does have power to fix the terms upon which its money allotments
to states shall be disbursed. P.
330 U. S.
143.
(b) The Tenth Amendment does not forbid the exercise of this
power in the way that Congress has proceeded in this case. P.
330 U. S.
143.
4. The actions of the Highway Commissioner constituted taking an
"active part in political management" within the meaning and
purpose of § 12(a). Pp.
330 U. S. 142,
330 U. S. 144,
330 U. S.
146.
5. The Civil Service Commission's determination that his acts
constitute such a violation of § 12(a) as to warrant his removal
from office was in accordance with law, and was not arbitrary,
unreasonable, or an abuse of discretion. Pp.
330 U. S.
144-146.
53 F.2d 280 affirmed.
The Oklahoma instituted proceedings under § 12(c) of the Hatch
Act, 18 U.S.C. § 611(c), to review an order of the United States
Civil Service Commission determining that a State Highway
Commissioner had engaged
Page 330 U. S. 129
in political activities which warranted his removal from office
under that Act. The District Court upheld the action of the Civil
Service Commission. 61 F. Supp 355. The Circuit Court of Appeals
affirmed. 153 F.2d 280. This Court granted certiorari. 328 U.S.
831.
Affirmed, p.
330 U. S. 146.
MR. JUSTICE REED delivered the opinion of the Court.
This proceeding brings to this Court
* another phase of
the Hatch Act. The petitioner, the State of Oklahoma, objects to
the enforcement by the United States Civil Service Commission of §
12(a) of the act. [
Footnote
1]
Page 330 U. S. 130
France Paris has been a member of the State Highway Commission
of Oklahoma since January 14, 1943. He was elected chairman of the
Democratic State Central
Page 330 U. S. 131
Committee for Oklahoma for his third term in February, 1942, and
he occupied such position continuously until October 18, 1943, when
he resigned. On October 12, 1943, the Civil Service Commission
issued its letter of charges in the matter of France Paris and the
State of Oklahoma, in which it notified Mr. Paris and Oklahoma that
information which the Civil Service Commission had received
warranted
Page 330 U. S. 132
an investigation into an alleged improper political activity on
the part of France Paris under the provisions of § 12 of the Hatch
Act. The charge was that, since January 14, 1943, Mr. Paris had
been an officer of Oklahoma whose principal employment was and is
in connection with an activity financed in whole or in part by
loans and grants from a Federal agency of the United States, and
that, during such time, Mr. Paris also held a political party
office, to-wit, the chairmanship of the State Central Committee
above referred to. It later developed that no general election
occurred in Oklahoma in 1943. The State Democratic Headquarters had
been closed on January 4, 1943, by Mr. Paris, and were later
reopened during the year under the direct charge of the
vice-chairman of that committee, we assume prior to Mr. Paris'
resignation on October 18, 1943. On June 14, the committee
sponsored a "Victory Dinner" in Oklahoma City. The trial court
found as follows:
"This dinner was designed to provide the National Democratic
Committee and the State Democratic Committee with funds to
discharge a deficit incurred by their political activities and to
provide funds for contemplated future activities. It also promoted
the sale of war bonds, and did result in the sale of approximately
$14,500,000.00 in war bonds. The dinner netted the Democratic
party, which was conceded to be a political party, approximately
$30,000.00. The dinner was staged under the general supervision of
the Governor of the state, and the details were handled by a
committee appointed by the Governor. W. G. Johnston was chairman of
this committee. France Paris was an
ex officio member of
the committee, and he advised with the Governor concerning the
dinner and called the meeting to order and introduced the
toastmaster, but he was not active in planning or arranging the
dinner. "
Page 330 U. S. 133
The Civil Service Commission determined that these facts
constituted taking an active part in political management and in
political campaigns. It considered that the violation warranted Mr.
Paris' removal from the office of Highway Commissioner of Oklahoma.
It ordered that notice of the aforesaid determinations be given
pursuant to § 12(b) of the Hatch Act. This order foreshadowed, if
Mr. Paris was not removed, a further order by the Commission under
§ 12(b) to the appropriate Federal agency that certain highway
grants to Oklahoma should be withheld "in an amount equal to two
years' compensation" of Mr. Paris.
Pursuant to § 12(c), the State of Oklahoma, after having
received notice of the Civil Service Commission's determination,
instituted these proceedings for the review of the order in the
proper district court of the United States. That court, 61 F. Supp.
355, upheld the action of the Civil Service Commission, and this
action was affirmed by the Circuit Court of Appeals for the Tenth
Circuit.
State of Oklahoma v. United States Civil Service
Commission, 153 F.2d 280. Certiorari was sought and allowed
because of the importance of the issues involved in the
administration of justice, 328 U.S. 831, under § 12(c), 53 Stat.
1147, as amended, 54 Stat. 767, and § 240(a) of the Judicial
Code.
The state contends that the judgments below are invalid for the
following reasons:
"(1) The Hatch Political Activity Act, insofar as it attempts to
regulate the internal affairs of a state, is an invasion of the
sovereignty of the states in violation of the United States
Constitution. It further is invalid as an unlawful delegation of
power."
"(2) If valid, the Act applies only to 'active' participation in
political management or political campaigns. Such 'active'
participation is not shown to be present in this case. "
Page 330 U. S. 134
"(3) If valid, the Act did not warrant the United States Civil
Service Commission in ordering the removal of a state officer or,
alternatively, the application of a penalty to the State of
Oklahoma."
"(4) The decisions of the lower courts place an intolerable and
unjustified restriction upon the right of an aggrieved person to a
complete judicial review under the Hatch Political Activity
Act."
First. The Government's first contention is that the
petitioner, the State of Oklahoma, has no standing to attack the
constitutionality of § 12. It is argued that the state has no legal
capacity to question the manner in which the United States limits
the appropriation of funds through § 12(a); that § 12(b) is merely
procedural, to assure that the statutory requirements are observed,
and that § 12(c) is a safeguard against the exercise of arbitrary
power by the Commission, not a permission to wage an attack on the
entire arrangement. [
Footnote
2]
If this contention is treated as an objection to the state's
capacity to bring this suit, as no objection was made until the
memorandum for the respondent on the petition for certiorari, it
would be out of time. A failure to object in the trial court to a
party's capacity is a waiver of that defect.
Parker v. Motor
Boat Sales, 314 U. S. 244,
314 U. S. 251.
On the other hand, if the contention is treated as meaning that no
justiciable controversy as to the constitutionality of § 12(a)
exists because petitioner suffers no injury which it may protect
legally from the withdrawal by the United States of a portion of a
grant-in-aid, the objection, as it questions judicial power to act
on that point, is timely, although first made in this Court.
[
Footnote 3] We think that
the
Page 330 U. S. 135
latter position more correctly reflects respondent's contention.
The Commission urges the cases listed in
note 2 above as showing that the relation between the state
and federal government arising out of grants in aid are
political and that the order of the Commission that Paris be
removed was not mandatory. We therefore treat the issue as properly
before us.
The issue is whether Oklahoma can challenge the
constitutionality of § 12 on statutory review of a Commission
order. Subsection (c) gives to any party aggrieved a judicial
review of the Commission order. The review is on the entire record,
and extends to questions of fact and questions of law. The order is
to be affirmed if the court determines that it is "in accordance
with law." If the court determines the order is not in accordance
with law, the proceeding is to be remanded to the Commission
"with directions either to make such determination or order as
the court shall determine to be in accordance with law or to take
such further proceedings as, in the opinion of the court, the law
requires. [
Footnote 4]"
We think the challenge can be made in these review proceedings
to the constitutionality of the law upon which the order under
review is predicated.
The activities of the Highway Commission of Oklahoma were
financed in part by loans and grants from a Federal agency during
all the pertinent times. This was the organization of which Paris
was a member. During the period in question, January 15, 1943, to
October 18, 1943, while Paris was also Chairman of the Democratic
State Central Committee, the United States, through allotment by
federal statute, contributed over $2,000,000 for the highway work
of the State of Oklahoma Commission. [
Footnote 5] Nothing indicates that these sums were to be
received by Oklahoma otherwise than in accordance with regular
statutory apportionment
Page 330 U. S. 136
among the states of federal highway funds, and we assume the
sums were to be so received by Oklahoma. Congress may create
legally enforceable rights where none before existed. Payments were
not made at the unfettered inclination of a federal disbursing
officer or highway agency, but according to statutory standards,
compliance with which entitled Oklahoma to receive her proper share
of the federal appropriations for highway construction through
state agencies. If it were not for § 12, Oklahoma would have been
legally entitled to receive payment from the federal disbursing
office of the sums, including the amount that § 12(b) authorizes
the Civil Service Commission to require the disbursing or
allocating federal agency to withhold from its loans or grants.
[
Footnote 6] Oklahoma had a
legal right to receive federal highway funds by virtue of certain
congressional enactments, and under the terms therein prescribed.
Violation of such a statutory right normally creates a justiciable
cause of action even without a specific statutory authorization for
review. [
Footnote 7] It may be
that, before the payment of those funds to Oklahoma, Congress could
have withdrawn the grant without legal responsibility for such
action, either in its officers or the National Government. Perhaps,
before disbursement, it could add, of its own free will, any
additional requirements, but when it erected administrative bars --
that is, a condition that a part of the allotment might be withheld
by action of the Commission, with judicial review of the
Commission's determination -- we think those bars left to Oklahoma
the right to receive all federal highway funds allotted to that
state, subject only to the condition that the limitation on the
right to receive the funds complied with the Constitution. Issues
presented by this suit, even though
Page 330 U. S. 137
raised by a state, are closely akin to private wrongs. [
Footnote 8] Either the state employee
or the state may be the party aggrieved, and may maintain the
action for judicial review. The power to examine into the
constitutionality of the conditions was given the federal courts by
the grant of the authority to review the legality of the Civil
Service order. Therefore, when, by § 12, a right of review of the
Civil Service Commission's order is given to Oklahoma, we are of
the opinion that the constitutionality of the statutory basis, §
12(a), of the order is open for adjudication.
Congress has power to fix the conditions for review of
administrative orders. [
Footnote
9] By providing for judicial review of the orders of the Civil
Service Commission, Congress made Oklahoma's right to receive funds
a matter of judicial cognizance. Oklahoma's right became legally
enforceable. Interference with the payment of the full allotment of
federal highway funds to Oklahoma made the statutory proceeding to
set aside the order a case or controversy between Oklahoma and the
Commission whose order Oklahoma was authorized to challenge.
[
Footnote 10] A reading of §
12 will show the special interest Oklahoma had in preventing the
exercise of the Civil Service Commission's power to direct that
Oklahoma's funds be withheld. [
Footnote 11] It was named as the employer affected by §
12(a). Notices were sent to it. Funds allotted to Oklahoma were to
be withheld under certain conditions. It was a "party aggrieved."
[
Footnote 12] When it
brought this suit, under this statutory
Page 330 U. S. 138
authority, Oklahoma was entitled to a judicial determination as
to whether the order of the Civil Service Commission was "in
accordance with law." Was the order within the competency of the
Commission? That question of competency included the issue of the
constitutionality of the basis for the order, § 12(a). [
Footnote 13] Only if the statutory
basis for an order is within constitutional limits can it be said
that the resulting order is legal. To determine that question, the
statutory review must include the power to determine the
constitutionality of § 12(a).
The cases cited by the Government as pointing toward lack of
power to adjudicate the constitutionality of § 12
Page 330 U. S. 139
are inapposite. None denies to a court with jurisdiction by
statute to review the legality of administrative orders the power
to examine the constitutionality of the statute by virtue of which
the order was entered. The authorities in
note 2 above, relied upon by the Government, do not
hold or imply a position contrary to our conclusion. In
Massachusetts v. Mellon, 262 U. S. 447, the
Commonwealth and others sought decrees to enjoin the enforcement of
the Federal Maternity Act. This Court denied federal jurisdiction,
262 U.S. at
262 U. S. 480,
because no burden was placed upon a state, and no right infringed,
262 U.S. at
262 U. S. 482.
Perkins v. Lukens Steel Co., 310 U.
S. 113, denied a manufacturer who desired to sell to the
Government the right to question a government official's definition
of "locality," which the official was required by statute to make
to determine the minimum wages of the "locality" under the Public
Contracts Act. The denial of federal jurisdiction to decide the
question was because no "litigable rights" to deal with the United
States had been bestowed by the statute on the would-be seller, pp.
310 U. S. 125
and
310 U. S. 127.
The prospective seller, by statute or otherwise, had nothing to do
with the conditions of purchase fixed by the United States.
Alabama Power Co. v. Ickes, 302 U.
S. 464, denied that the power company had any
enforceable legal right to be free of competition financed by
illegal loans. This present Oklahoma case is differentiated from
each of the foregoing by the authority for statutory review, and by
the existence of the legally enforceable right to receive allocated
grants without unlawful deductions.
We do not think the rule that one may not, in the same
proceeding, both rely upon and assail a statute [
Footnote 14] is applicable to the present
situation. In the cases the Government
Page 330 U. S. 140
cites, the litigants had received or sought advantages from the
statute that they wished to attack -- advantages other than the
mere right to sue. What we are concerned with in this case is not
an estoppel to sue, but the allowable scope of the statutory
jurisdiction.
From this point of view, the respondent urges that the Congress
did not intend to create a justiciable right broad enough to
include in attack upon the constitutionality of § 12(a). We think
the final sentence of § 12(c),
note
1 supra, comes near to demonstrating the unsoundness
of such a contention. It reads:
"If any provision of this subsection is held to be invalid as
applied to any party with respect to any determination or order of
the Commission, such determination or order shall thereupon become
final and effective as to such party in the same manner as if such
provision had not been enacted."
We do not see that this sentence can mean anything other than
that the invalidity (unconstitutionality) of any provision of
subsection 12(b) should not affect the determination of the Civil
Service Commission. In view of our conclusion hereinafter expressed
that § 12(a) is constitutional, whether the Commission's
determination would be enforceable without a particular statutory
provision is not involved in this case.
The Government urges that the absence of legislative
consideration of attacks on the constitutionality of § 12 through
the provision for judicial review negatives "the conclusion that
Congress intended Section 12(c) as an avenue of attack on Section
12(a)." [
Footnote 15] But we
do not agree that this lack of extended discussion of the scope of
the judicial review by implication denies to a litigant the right
to attack constitutionality. The final form of
Page 330 U. S. 141
judicial review is different from that first proposed. 86
Cong.Rec. 2468. No change of purpose, however, appears. The
proposer of judicial review feared arbitrary action.
Id.
2469. Others, a violation of political liberty. It was thought the
latter objection might be reached without right of judicial review.
No one intimated constitutionality could not be reached with
judicial review. [
Footnote
16]
Page 330 U. S. 142
None of the subsequent changes in the bill are effective to
modify this construction of the scope of this judicial review.
[
Footnote 17]
Second. Petitioner's chief reliance for its contention
that § 12(a) of the Hatch Act is unconstitutional as applied to
Oklahoma in this proceeding is that the so-called penalty
provisions invade the sovereignty of a state in such a way as to
violate the Tenth Amendment [
Footnote 18] by providing for "
possible forfeitures
of state office or alternative penalties against the state."
Oklahoma says § 12(c)
"provides that the commencement of an appeal from an order of
the Commission: ' . . . shall not operate as a stay of such
determination or order unless (1) it is specifically so ordered by
the court, and (2) such officer or employee is suspended from his
office or employment during the pendency of such proceedings. . .
.'"
The coercive effect of the authorization to withhold sums
allocated to a state is relied upon as an interference with the
reserved powers of the state.
In
United Public Workers of America v. Mitchell,
decided this day, we have considered the constitutionality of this
provision from the viewpoint of interference with a federal
employee's freedom of expression in political matters and as to
whether acting as an official of a political party violates the
provision in § 12(a) against taking part in political management or
in political campaigns. We do not think that the facts in this case
require any further discussion of that angle. We think that acting
as chairman of the Democratic State Central Committee and acting,
ex officio, as a member of the "Victory Dinner" committee
for the purpose of raising funds for the Democratic Party and for
selling war bonds constitute taking an active
Page 330 U. S. 143
part in political management. While the United States is not
concerned with, and has no power to regulate, local political
activities, as such, of state officials, it does have power to fix
the terms upon which its money allotments to states shall be
disbursed.
The Tenth Amendment does not forbid the exercise of this power
in the way that Congress has proceeded in this case. As pointed out
in
United States v. Darby, 312 U.
S. 100,
312 U. S. 124,
the Tenth Amendment has been consistently construed
"as not depriving the national government of authority to resort
to all means for the exercise of a granted power which are
appropriate and plainly adapted to the permitted end."
The end sought by Congress through the Hatch Act is better
public service by requiring those who administer funds for national
needs to abstain from active political partisanship. So, even
though the action taken by Congress does have effect upon certain
activities within the state, it has never been thought that such
effect made the federal act invalid. [
Footnote 19] As nothing in this record shows any attempt
to suspend Mr. Paris from his duties as a member of the State
Highway Commission, we are not called upon to deal with the
assertion of Oklahoma that a state officer may be suspended by a
federal court if § 12 is valid. There is an adequate separability
clause. No penalty was imposed upon the state. A hearing was had
conformable to § 12, and the conclusion was reached that Mr. Paris'
active participation in politics justified his removal from
membership on the Highway Commission. Oklahoma chose not to remove
him. We do not see any violation of the State's sovereignty in the
hearing or order. Oklahoma adopted the "simple expedient" of not
yielding to what she urges is
Page 330 U. S. 144
federal coercion.
Compare Massachusetts v. Mellon,
262 U. S. 447,
262 U. S. 482.
The offer of benefits to a state by the United States dependent
upon cooperation by the state with federal plans, assumedly for the
general welfare, is not unusual. [
Footnote 20]
In order to give the Civil Service Commission adequate standards
to measure active participation in political activities, Congress
adopted § 15 of the Hatch Act, quoted above in
note 1 By this section, Congress made the test of
political activity for state employees the same as the test then in
effect for employees in the classified civil service. The
Commission had, at that time, determined that "Service on or for
any political committee or similar organization is prohibited."
This could only mean that service on such a committee was active
participation in politics. Such determination was made a matter of
record by Senator Hatch, in charge of the bill during debate on the
scope of political prohibition. [
Footnote 21] Obviously the activities of Mr. Paris were
covered by the purpose and language of § 12. The words of § 12(a)
requiring Mr. Paris' abstention from "any active part in political
management or political campaigns" are derived from Rule I of the
Civil Service Commission, and have persisted there since 1907.
[
Footnote 22]
Oklahoma also argues that the Civil Service Commission
determination that the acts of Mr. Paris constitute such a
violation of § 12(a) as to warrant his removal from his state
office is not in accordance with law, but arbitrary, unreasonable,
and an abuse of discretion. The facts of Mr.
Page 330 U. S. 145
Paris' activities and his connection with the Democratic State
Central Committee during his tenure of office as a member of the
Highway Commission of Oklahoma have been stated. The Circuit Court
of Appeals said, 153 F.2d at 284, "Manifestly, the Commission had
solid footing in the Act for the conclusion that removal of Paris
from office was warranted." We agree. [
Footnote 23]
Finally, petitioner says that § 12(c),
note 1 supra, authorizes a review of "every
minute detail of the case" to
"determine whether sufficient facts exist to support the order
of the Commission, decide whether the statute has been reasonably
and justly applied and independently resolve the entire question as
though the federal court had been the forum in the first
instance."
The basis for this argument, insofar as it differs from that
referred to in the preceding paragraph, is drawn from the language
of § 12(c) that
"The review by the court shall be on the record entire,
including all of the evidence taken on the hearing, and shall
extend to questions of fact and questions of law. . . . The court
shall affirm the Commission's determination or order, or its
modified determination or order, if the court determines that the
same is in accordance with law."
As the facts were stipulated, and no objection has been taken to
the findings of fact, 61 F. Supp. 355, 357(5); 153 F.2d 280, 283,
the attack on this issue is limited to an examination into whether
or not the Commission abused its discretion in the order of
removal. As heretofore stated, the provisions for review underwent
changes during the passage of the act. [
Footnote 24] As finally
Page 330 U. S. 146
adopted, however, the reviewing court is directed to remand when
it determines that the action of the Commission "is not in
accordance with law." § 12(c). [
Footnote 25] The question of "the removal of the officer
or employee," § 12(b),
note 1
supra, we think is a matter of administrative discretion.
Since, under Rule I of the Civil Service Commission, the taking of
"any active part in political management or political campaigns"
had been determined by the Commission to include service on a
political committee,
see notes 37 and 38 of
United
Public Workers v. Mitchell, ante, p.
330 U. S. 75, it is
clear Mr. Paris' position violated § 15 of the Hatch Act.
note 1 supra. It could hardly
be said that determination of the Commission in ordering his
removal was an abuse of its discretion.
See 61 F.Supp. at
357(6) and (7); 153 F.2d at 283, 284.
Judgment affirmed.
MR. JUSTICE MURPHY and MR. JUSTICE JACKSON took no part in the
consideration or decision of this case.
MR. JUSTICE BLACK and MR. JUSTICE RUTLEDGE dissent.
*
See United Public Workers of America v. Mitchell,
decided today,
ante, p.
330 U. S. 75.
[
Footnote 1]
53 Stat. 1147, as amended, 54 Stat. 767:
"SEC. 12. (a) No officer or employee of any State or local
agency whose principal employment is in connection with any
activity which is financed in whole or in part by loans or grants
made by the United States or by any Federal agency shall . . . take
any active part in political management or in political campaigns.
. . ."
"(b) If any Federal agency charge with the duty of making any
loan or grant of funds of the United States for use in any activity
by any officer or employee to whom the provisions of subsection (a)
are applicable has reason to believe that any such officer or
employee has violated the provisions of such subsection, it shall
make a report with respect thereto to the United States Civil
Service Commission (hereinafter referred to as the 'Commission').
Upon the receipt of any such report, or upon the receipt of any
other information which seems to the Commission to warrant an
investigation, the Commission shall fix a time and place for a
hearing, and shall, by registered mail, send to the officer or
employee charged with the violation and to the State or local
agency employing such officer or employee a notice setting forth a
summary of the alleged violation and the time and place of such
hearing. At such hearing (which shall be not earlier than ten days
after the mailing of such notice), either the officer or employee
or the State or local agency, or both, may appear with counsel and
be heard. After such hearing, the Commission shall determine
whether any violation of such subsection has occurred and whether
such violation, if any, warrants the removal of the officer or
employee by whom it was committed from his office or employment,
and shall be registered mail notify such officer or employee and
the appropriate State or local agency of such determination. If in
any case the Commission finds that such officer or employee has not
been removed from his office or employment within thirty days after
notice of a determination by the Commission that such violation
warrants his removal, or that he has been so removed and has
subsequently (within a period of eighteen months) been appointed to
any officer or employment in any State or local agency in such
State, the Commission shall make and certify to the appropriate
Federal agency an order requiring it to withhold from its loans or
grants to the State or local agency to which such notification was
given an amount equal to two years' compensation at the rate such
officer or employee was receiving at the time of such violation;
except that, in any case of such a subsequent appointment to a
position in another State or local agency which receives loans or
grants from any Federal agency, such order shall require the
withholding of such amount from such other State or local agency: .
. ."
"(c) Any party aggrieved by any determination or order of the
Commission under subsection (b) may, within thirty days after the
mailing of notice of such determination or order, institute
proceedings for the review thereof by filing a written petition in
the district court of the United States for the district in which
such officer or employee resides; but the commencement of such
proceeding shall not operate as a stay of such determination or
order unless (1) it is specifically so ordered by the court, and
(2) such officer or employee is suspended from his office or
employment during the pendency of such proceedings. A copy of such
petition shall forthwith be served upon the Commission, and
thereupon the Commission shall certify and file in the court a
transcript of the record upon which the determination or the order
complained of was made. The review by the court shall be on the
record entire, including all of the evidence taken on the hearing,
and shall extend to questions of fact and questions of law. . . .
The court shall affirm the Commission's determination or order, or
its modified determination or order, if the court determines that
the same is in accordance with law. If the court determines that
any such determination or order, or modified determination or
order, is not in accordance with law, the court shall remand the
proceeding to the Commission with directions either to make such
determination or order as the court shall determine to be in
accordance with law or to take such further proceedings as, in the
opinion of the court, the law requires. The judgment and decree of
the court shall be final, subject to review by the appropriate
circuit court of appeals as in other cases, and the judgment and
decree of such circuit of appeals shall be final, subject to review
by the Supreme Court of the United States on certiorari or
certification as provided in sections 239 and 240 of the Judicial
Code, as amended (U.S.C.1934 edition, title 28, secs. 346 and 347).
If any provision of this subsection is held to be invalid as
applied to any party with respect to any determination or order of
the Commission, such determination or order shall thereupon become
final and effective as to such party in the same manner as if such
provision had not been enacted."
"
* * * *"
"SEC. 15. The provisions of this act which prohibit persons to
whom such provisions apply from taking any active part in political
management or in political campaigns shall be deemed to prohibit
the same activities on the part of such persons as the United
States Civil Service Commission has heretofore determined are at
the time this section takes effect prohibited on the part of
employees in the classified civil service of the United States by
the provisions of the civil service rules prohibiting such
employees from taking any active part in political management or in
political campaigns."
[
Footnote 2]
Massachusetts v. Mellon, 262 U.
S. 447,
262 U. S. 482;
Perkins v. Lukens Steel Co., 310 U.
S. 113;
Alabama Power Co. v. Ickes,
302 U. S. 464,
302 U. S. 479,
are cited as authority, together with other cases.
[
Footnote 3]
A respondent can support his judgment on any ground that appears
in the record.
LeTulle v. Scofield, 308 U.
S. 415,
308 U. S. 421;
Gainesville v. Brown-Crummer Co., 277 U. S.
54,
277 U. S.
59.
[
Footnote 4]
See note 1
supra, § 12(c).
[
Footnote 5]
See Federal Highway Act, 42 Stat. 212, as amended, 23
U.S.C. §§ 1-117.
[
Footnote 6]
Cf. Columbia Broadcasting System v. United States,
316 U. S. 407,
316 U. S.
422.
[
Footnote 7]
See Deitrick v. Greaney, 309 U.
S. 190,
309 U. S. 198,
309 U. S.
200-201;
Steele v. Louisville & Nashville
Railroad Co., 323 U. S. 192,
323 U. S.
202.
[
Footnote 8]
See the discussion in
Colegrove v. Greene,
328 U. S. 549.
[
Footnote 9]
American Power Co. v. Securities & Exchange Comm'n,
325 U. S. 385,
325 U. S.
389.
[
Footnote 10]
Federal Power Commission v. Pacific Power & Light
Co., 307 U. S. 156,
307 U. S.
159.
[
Footnote 11]
Chicago Junction Case, 264 U.
S. 258,
264 U. S. 266;
Z. & F. Assets Realization Corp. v. Hull, 311 U.
S. 470,
311 U. S.
485.
[
Footnote 12]
Federal Power Commission v. Pacific Power & Light
Co., 307 U. S. 156,
307 U. S. 159;
Federal Communications Commission v. Sanders Brothers Radio
Station, 309 U. S. 470,
309 U. S. 476;
American Power & Light Co. v. Securities & Exchange
Commission, 325 U. S. 385,
325 U. S. 390;
Parker v. Fleming, 329 U. S. 531.
[
Footnote 13]
Cf. Labor Board v. Jones & Laughlin, 301 U. S.
1,
301 U. S. 25,
301 U. S. 43,
301 U. S. 49;
Norwegian Nitrogen Products Co. v. United States,
288 U. S. 294,
288 U. S. 321,
288 U. S. 324;
United States v. Ruzicka, 329 U.
S. 287.
Judicial review normally includes issues of the
constitutionality of enactments and action thereunder. Pub.Law 404,
79th Cong., 2d Sess., Sec. 10(e):
"Scope of review. So far as necessary to decision, and where
presented, the reviewing court shall decide all relevant questions
of law, interpret constitutional and statutory provisions, and
determine the meaning or applicability of the terms of any agency
action. It shall (A) compel agency action unlawfully withheld or
unreasonably delayed, and (B) hold unlawful and set aside agency
action, findings, and conclusions found to be (1) arbitrary,
capricious, an abuse of discretion, or otherwise not in accordance
with law; (2) contrary to constitutional right, power, privilege,
or immunity; (3) in excess of statutory jurisdiction, authority, or
limitations, or short of statutory right; (4) without observance of
procedure required by law; (5) unsupported by substantial evidence
in any case subject to the requirements of sections 7 and 8 or
otherwise reviewed on the record of an agency hearing provided by
statute; or (6) unwarranted by the facts to the extent that the
facts are subject to trial do novo by the reviewing court. In
making the foregoing determinations, the court shall review the
whole record or such portions thereof as may be cited by any party,
and due account shall be taken of the rule of prejudicial
error."
See the full discussion of the "Scope of Review,"
Legislative History, Administrative Procedure Act, S.Doc. No. 248,
79th Cong., 2d Sess., p. 213, (e), and p. 278, § 10(e).
[
Footnote 14]
See Hurley v. Commission of Fisheries, 257 U.
S. 223;
United Fuel Gas Co. v. Railroad Commission
of Kentucky, 278 U. S. 300;
Great Falls Mfg. Co. v. Attorney General, 124 U.
S. 581.
[
Footnote 15]
It cites 86 Cong.Rec. 2354, 2429, 2440, 2468-2474, 9448, 9452;
H.Rep. 2376, 76th Cong., 3d Sess., p. 9.
[
Footnote 16]
86 Cong.Rec. 2470:
"MR. LUCAS. I have great respect for the opinions of the Senator
from Nebraska. I rise to ask him a question: Does the Senator from
Nebraska believe that the question of political liberty is involved
in the pending legislation in any way?"
"MR. NORRIS. I have not thought so."
"MR. LUCAS. In other words, the Senator does not believe that
the political rights of an individual who is charged with violation
of the statute are being invaded?"
"MR. NORRIS. Mr. President, I now understand the Senator's
question. I do not believe so. Some honest men who are better
lawyers than I am believe those rights are invaded. That question
can easily be tested, however, without having the amendment adopted
and passed upon. If the political rights of an individual were
invaded, then the law would be unconstitutional, and one could get
into court immediately by various kinds of applications. The
question could be placed before a court and carried to the Supreme
Court, and that Court could pass upon it. The adoption of the
particular amendment in question would not assist in that respect.
If the law is unconstitutional, it will be so found very soon, even
without the adoption of this amendment, and the law will fall."
"MR. LUCAS. But, if the Senator from Nebraska entertains the
same view as that entertained by the Senator from Illinois with
respect to the invasion of the political rights of an individual,
then, I take it, the Senator from Nebraska will agree that, in case
an individual were charged with violation of the statute, he should
have his rights determined by the court of last resort?"
"MR. NORRIS. I agree with the Senator. But we do not need this
amendment in order to get a decision on the matter. That is my
contention. We could not put anything into the law, however
ingenious we might be, which would take away the constitutional
rights of any citizen, and, if such an attempt were made, the
citizen could go into court and have the question determined even
without the adoption of language such as contained in the pending
amendment."
[
Footnote 17]
See 86 Cong.Rec. 9446, 9495.
[
Footnote 18]
"The powers not delegated to the United States by the
Constitution, nor prohibited by it to the States, are reserved to
the States respectively, or to the people."
[
Footnote 19]
Veazie Bank v.
Fenno, 8 Wall. 533,
75 U. S. 547;
Stearns v. Minnesota, 179 U. S. 223,
179 U. S. 244;
Florida v. Mellon, 273 U. S. 12;
Helvering v. Therrell, 303 U. S. 218;
Wright v. Union Central Life Ins. Co., 304 U.
S. 502,
304 U. S. 516;
Ashwander v. Tennessee Valley Authority, 297 U.
S. 288,
297 U. S.
338.
[
Footnote 20]
Steward Machine Co. v. Davis, 301 U.
S. 548,
301 U. S.
593-598;
United States v. Bekins, 304 U. S.
27,
304 U. S. 51-
54. A review of grants in aid will be found in 8 American Law
School Review, Corwin: National-State Cooperation, 687, 698.
[
Footnote 21]
86 Cong.Rec. 2938, § 15 of exhibit.
[
Footnote 22]
See United Public Workers v. Mitchell, ante, p.
330 U. S. 75.
[
Footnote 23]
See Jacob Siegel Co. v. Federal Trade Commission,
327 U. S. 608.
[
Footnote 24]
See 86 Cong.Rec. 2468-2474; S. 3046 in the House of
Representatives, Union Calendar No. 924, June 4, 1940, pp. 4 and
17; H.Rep. No. 2376, 76th Cong., 3d Sess., p. 9. The amendment
which resulted in the present form of the section appears at 86
Cong.Rec. 9448.
[
Footnote 25]
The following also appears in the section:
"The Commission may modify its findings of fact or its
determination or order by reason of the additional evidence so
taken, and shall file with the court such modified findings,
determination, or order, and any such modified findings of fact, if
supported by substantial evidence, shall be conclusive."
54 Stat. 767, 769.
MR. JUSTICE FRANKFURTER, concurring.
It is, of course, settled that this Court must consider,
whenever the question is raised, or even though not raised, by
counsel, the jurisdiction of the lower federal courts, as well as
the jurisdiction of this Court.
Mansfield, C. & L.M. R. Co.
v. Swan, 111 U. S. 379,
111 U. S. 382.
But whether a State has standing to urge a claim of
constitutionality under a
Page 330 U. S. 147
Congressional grant in aid statute does not involve
"jurisdiction" in the sense of a court's power, but only the
capacity of the State to be a litigant to invoke that power. In
this litigation, the Government did not challenge the standing of
Oklahoma to question the constitutionality of the Act until the
case came here. I think it is too late to raise that question at
this stage. Assuming that it is here, it is my view that, under the
Hatch Act, in the legislative and judicial context in which it must
be read, the State can question only the correctness of the
procedure and the determination of the Civil Service Commission,
not the validity of the Act. Section 12(b), (c), 54 Stat. 767
amending 53 Stat. 1147, 18 U.S.C. § 611(b) and (c).
The Administrative Procedure Act does not apply to the present
case. Pub.L. No. 404, 79th Cong., 2d Sess. June 11, 1946 § 12. That
Act will, in due course, present problems for adjudication. We
ought not to anticipate them when, being irrelevant, they are not
before us. The Act ought not to be used, even for illustrative
purpose, because illustrations depend on construction of the
Act.
Apart from the foregoing, I agree with MR. JUSTICE REED's
opinion.