128

Appendix to Opinion of DOUGLAS, J., dissenting.

APPENDIX TO OPINION OF

MR. JUSTICE DOUGLAS.

Mr. Justice Murphy, when Attorney General, was responsible for the creation of the Civil Rights Section in the Department of Justice. That was on February 3, 1939. In 1947 Mr. Justice Clark, then Attorney General, reported that the Section had in the eight years of its existence investigated nearly 850 complaints, instituted prosecutions in 178 cases, and obtained the conviction of more than 130 defendants. Clark, A Federal Prosecutor Looks at the Civil Rights Statutes, 47 Col. L. Rev. 175, 181. See also Report of the President's Committee on Civil Rights: To Secure These Rights (1947), pp. 114 et seq.

A more recent account of the work of the Civil Rights Section will be found in Putzel, Federal Civil Rights Enforcement: A Current Appraisal, 99 U. of Pa. L. Rev. 439 (1951). It is there stated that on the average 20 civil rights cases are prosecuted a year, acquittals and convictions being about equally divided. Id., p. 449, n. 43. These figures are confirmed by the Administrative Office of the United States Courts. Records available in that office show the following number of civil rights prosecutions filed in the district courts in the years since 1947:

More detailed figures are available for the past three fiscal years. The following table shows the number of defendants who actually went to trial, the disposition of

Appendix to Opinion of DOUGLAS, J., dissenting. 347 U.S.

their cases, and the sentences imposed on those who were convicted:

Note: These figures from the Administrative Office include all prosecutions filed and conducted under all of the Sections of the Criminal Code which are usually called Civil Rights Sections, that is, 18 U. S. C. §§ 241-244. Use of §§ 243 and 244, however, has been very rare, so that most of the figures quoted involve prosecutions under either § 241 or § 242. The figures set out in the second table do not take into account such appellate reversals as may have been entered, and they include only those post-judgment motions in the district court which were disposed of before the end of the fiscal year in question.

128

Appendix to Opinion of DOUGLAS, J., dissenting.

The Code provisions in question read as follows: "§ 241. Conspiracy against rights of citizens.

"If two or more persons conspire to injure, oppress, threaten, or intimidate any citizen in the free exercise or enjoyment of any right or privilege secured to him by the Constitution or laws of the United States, or because of his having so exercised the same; or

"If two or more persons go in disguise on the highway, or on the premises of another, with intent to prevent or hinder his free exercise or enjoyment of any right or privilege so secured

"They shall be fined not more than $5,000 or imprisoned not more than ten years, or both. "§ 242. Deprivation of rights under color of law.

"Whoever, under color of any law, statute, ordinance, regulation, or custom, willfully subjects any inhabitant of any State, Territory, or District to the deprivation of any rights, privileges, or immunities secured or protected by the Constitution or laws of the United States, or to different punishments, pains, or penalties, on account of such inhabitant being an alien, or by reason of his color, or race, than are prescribed for the punishment of citizens, shall be fined not more than $1,000 or imprisoned not more than one year, or both.

"§ 243. Exclusion of jurors on account of race or color.

"No citizen possessing all other qualifications which are or may be prescribed by law shall be disqualified for service as grand or petit juror in any court of the United States, or of any State on account of race, color, or previous condition of servitude; and whoever, being an officer or other person charged

Appendix to Opinion of DOUGLAS, J., dissenting. 347 U. S. with any duty in the selection or summoning of jurors, excludes or fails to summon any citizen for such cause, shall be fined not more than $5,000. "§ 244. Discrimination against person wearing uniform of armed forces.

"Whoever, being a proprietor, manager, or employee of a theater or other public place of entertainment or amusement in the District of Columbia, or in any Territory, or Possession of the United States, causes any person wearing the uniform of any of the armed forces of the United States to be discriminated against because of that uniform, shall be fined not more than $500."

Syllabus.

MICHIGAN-WISCONSIN PIPE LINE CO. v. CALVERT, COMPTROLLER OF PUBLIC ACCOUNTS, ET AL.

NO. 198.

APPEAL FROM THE COURT OF CIVIL APPEALS OF TEXAS, THIRD SUPREME JUDICIAL DISTRICT.*

Argued January 5-6, 1954.-Decided February 8, 1954.

1. A Texas tax on the occupation of "gathering gas," measured by the entire volume of gas "taken," as applied to an interstate natural gas pipeline company, where the taxable incidence is the taking of gas from the outlet of an independent gasoline plant within the State for the purpose of immediate interstate transmission, held invalid under the Commerce Clause of the Federal Constitution. Pp. 161–170.

(a) The validity of the tax under the Commerce Clause depends upon considerations of constitutional policy having reference to the substantial effects, actual or potential, of the tax in suppressing or unduly burdening interstate commerce. P. 164.

(b) A tax imposed on a local activity related to interstate commerce is valid only if the local activity is not such an integral part of the flow of interstate commerce that it cannot realistically be separated from it. P. 166.

(c) As here applied, the State has delayed the incidence of the tax beyond the step where production and processing have ceased and transmission in interstate commerce has begun; so that the tax here is not levied on the capture or production of the gas, but rather on its taking into interstate commerce after production, gathering and processing. Utah Power & Light Co. v. Pfost, 286 U. S. 165, distinguished. Pp. 166-169.

*Together with No. 200, Panhandle Eastern Pipe Line Co. v. Calvert, Comptroller of Public Accounts, et al., on appeal from the same court; and No. 199, Michigan-Wisconsin Pipe Line Co. v. Calvert, Comptroller of Public Accounts, et al., and No. 201, Panhandle Eastern Pipe Line Co. v. Calvert, Comptroller of Public Accounts, et al., both on appeal from the Supreme Court of Texas.