Supreme Court, Appellate Division, Third Department, New York.
THOMPSON et al.
v.
WALLIN et al.
March 8, 1950.
Attorneys and Law Firms
**787*465 Nathaniel L. Goldstein, Atty. Gen., for appellants. (Wendell P. Brown, Sol. Gen., Albany, and Ruth Kessler Toch, Asst. Atty. Gen., of counsel).
Unger, Freedman & Fleischer, New York City, for respondents. (David M. Freedman, Bernard Jaffe and Abraham Unger, New York City, of counsel).
Samuel M. Birnbaum, New York City (Louis E. Drago, Brooklyn, and Solomon Kreitman, New York City, of counsel), for The American Legion, Department of New York, amicus curiae.
Before FOSTER, P. J., and HEFFERNAN, BREWSTER, BERGAN and COON, JJ.
Opinion
BREWSTER, Justice.
The judgment here under appeal nullifies as unconstitutional Chapter 360 of the Laws of 1949, known as the Feinberg Law, and enjoins the defendant-appellant, The Board of Regents of the University of the State of New York, from an execution of any of its provisions. The parts of the enactment needful for examination in a test as to its validity are set forth in a companion case decided herewith. Matter of Application of L'Hommedieu v. Board of Regents of University of State of N.Y., 494 App.Div. 494, 95 N.Y.S.2d 443.
**788 The judgment and the order therefor here appealed from were at the suit of plaintiffs-respondents as officers of a voluntary association known as the Communist Party of the State of New *466 York, and the judgment obtained was the only object of their suit.
Whether these plaintiffs have any standing to sue seems doubtful. Their complaint is framed mostly as a treatise which presents their views of the unconstitutionality of the statute. There is neither clear allegation nor proof that they have been touched by its enforcement. It appears, however, to be conceded that when this suit was brought plaintiffs-respondents' association had been noticed for and was under inquiry by the Board of Regents for its finding as to whether it was subversive, in accordance with and under the Act; and defendants have taken the position that in the interest of an expeditious determination of an issue as to the validity of the statute they do not press the point that the plaintiffs have no standing to sue. While a further rule is that in such a case a qualification to sue may not be supplied by a stipulation of parties or counsel, Tyler v. Judges of the Court of Registration, supra, still, in view of the foregoing, and the fact that plaintiffs do charge that the statute attaints their association, I feel impelled to the views herein expressed.
**789*467 The only way in which it has been shown or can be seen that these plaintiffs-respondents may or can be affected by the statute they question is that their association is liable, the same as any other organization, to an inquiry by the Board of Regents for a finding as to whether, in its consensus, it is subversive to our Government for the reasons stated in the Act, viz.: that it advocates, advises, teaches or embraces the doctrine that the government of the United States or of any state or of any political subdivision thereof shall be overthrown or overturned by force, violence or any unlawful means, or that it advocates, advises, teaches or embraces the duty, necessity or propriety of adopting any such doctrine, as set forth in section twelve-a of the Civil Service Law.
To the plaintiffs' charge that as to its association, the statute carries or has the prohibited effect of a bill of attainder, they point for support to its preamble wherein the Legislature, in stating its promptings, used the expression, ‘the communist party’ as descriptive of one of the ‘subversive groups' which, reputably, or, as it is stated, ‘by common report’, teaches or advocates the overthrow of our Government by force or violence, and whose members ‘have infiltrated into public employment in the public schools of the state.’ To effectively refute this charge there are several answers. In the first place, the references in the preamble are expressly based on hearsay. They adjudicate nothing as to the organizations referred to. In the event that the Board of Regents, for the reasons prescribed, finds and lists any organization as subversive, even then the statute provides naught else so far as that organization is concerned—no punishment is meted out, no pains and penalties inflicted, nor forfeitures prescribed. The statute is not a criminal law, nor does it possess a penal nature. Mahler v. Eby, 264 U.S. 32, 44 S.Ct. 283, 68 L.Ed. 549. For aught of the workings of the statute the organization, even when branded as subversive, can carry on as it chooses. As to any effects upon it which may flow from other sources because of the branding, suffice it to say here that none are imposed by the statute. Plaintiffs say that their association is named in the Act. Even so, it is only in the preamble which forms no part of the statute. The preamble enacts nothing. It is an expression of views. It carries no sanctions. While it may, if necessary, be looked to for aid when the statute itself is ambiguous, it cannot control the enactment, People v. Sharp, 107 N.Y. 427, 14 N.E. 319,1 Am.St.Rep. 851;Neumann v. City of New York, 137 App.Div. 55, 59, 122 N.Y.S. 62, 66;Pumpelly v. Village of Owego, 45 How.Prac. 219;*468 Goodell v. Jackson, 20 Johns. 693, 722, 11 Am.Dec. 351; Jackson ex dem. Woodruff v. Gilchrist, 15 Johns. 89, and no such ambiguity is found. We cannot be concerned with the wisdom or propriety of the legislative choice of language in the preamble. It is no problem for us to interpret as to its reference to the ‘communist party’ as based upon ‘common report.’ Moreover, there is nothing before **790 us to show that in such reference the plaintiffs-respondents' association was thereby named. Communism is a doctrine of ancient origin and wide concept, and a school of thought, party, group or organization which believes in, teaches or advocates it, may or may not advocate its advance by an overthrow of our organized governments by force and violence. Matter of Lithuanian Workers' Literature Society, 196 App.Div. 262, 187 N.Y.S. 612. We may take notice that to do so is not an essential of its basic doctrine. Accordingly, since as to these plaintiffs the statute in question exercises no judicial power, renders no judgment, imposes no punishment, inflicts no pain or penalties, it may not be stricken down as a bill of attainder. People v. Hayes, 140 N.Y. 484, 35 N.E. 951,23 L.R.A. 830, 37 Am.St.Rep. 572.
Plaintiffs' only other cause to complain of the statute for its bearing upon them presents their claim that it unwarrantably denies or encroaches upon their association's basic freedoms which are recorded and prescribed by our organic law, viz.: as to assembly, speech and its employment of the media of the press. The statute's only impact there **791 is that, after requisite due notice and hearing, their association shall, if duly established facts warrant, be listed as subversive for the reasons prescribed and the purposes manifested. That result can obtain only as an incident to the primary aim of the statute in carrying out the state's function in its prescription and maintenance of the qualifications of its public school personnel. In so far as the statute can operate the basic freedoms of plaintiffs' association remain unmolested. Even as to an unwarranted use or criminal abuse of those freedoms (Penal Law, Art. 14), the statute which is attacked does not fetter or punish.
When the argument that the statute runs counter to those freedoms which have constitutional guaranty, reduces to the proposition that, in the maintenance of the qualifications of its public school employee personnel, the State may not exclude those who advocate or adhere to the doctrine of criminal anarchy, it appears that no one rests upon that conclusion. All relevant criticism is as to the means provided to achieve the statutory aim. Those means are the method of the state's exercise of its police power in a proper field—education. Interstate Consolidated St. Ry. Co. v. Commonwealth of Massachusetts, 207 U.S. 79, 28 S.Ct. 26, 28, 52 L.Ed. 111, 12 Ann.Cas. 555, ct. Barbier v. Connolly, 113 U.S. 27, 5 S.Ct. 357, 28 L.Ed. 923. They are employed in a matter which is not within the operative effect of the federal guaranties as originally laid down nor as extended by the 14th Amendment. In re Slaughter-House cases, 16 Wall. 36, 83 U.S. 36,21 L.Ed. 394;Maxwell v. Dow, 176 U.S. 581, 20 S.Ct. 448, 44 L.Ed. 597;People v. Ewer, 141 N.Y. 129, 36 N.E. 4,25 L.R.A. 794, 38 Am.St.Rep. 788. In Noble State Bank v. Haskell, 219 U.S. 104, 110, 111, 31 S.Ct. 186, 187, 55 L.Ed. 112, 32 L.R.A., N.S., 1062, Ann.Cas.1912A, 487, Justice Holmes, in cautioning against ‘pressing the broad words of the 14th Amendment to a drily logical extreme’ said, as to a state's police power, that: ‘It may be put forth in aid of what is sanctioned by usage, or held by the prevailing morality or strong and preponderant opinion to be greatly and immediately necessary to the public welfare’; and: ‘Many laws which it would be vain to ask the court to overthrow could be shown, *470 easily enough, to transgress a scholastic interpretation of one or another of the great guaranties in the Bill of Rights.’ In Barbier v. Connolly, 113 U.S. 27, 31, 32, 5 S.Ct. 357, 359, 28 L.Ed. 923, supra, Justice Field, in stating that a primary meaning of the 14th Amendment was ‘that no impediment should be interposed to the pursuits of any one, except as applied to the same pursuits by others under like circumstances * * *’, further said: ‘But neither the amendment—broad and comprehensive as it is—nor any other amendment, was designed to interfere with the power of the state, sometimes termed its police power, to prescribe regulations to promote the health, peace, morals, education, and good order of the people’; and further that: ‘Class legislation, discriminating against some and favoring others, is prohibited; but legislation which, **792 in carrying out a public purpose, is limited in its application, if within the sphere of its operation it affects alike all persons similarly situated, is not within the amendment.’ In people v. Ewer, supra, 141 N.Y. 129, at page 132,36 N.E. at page 5, supra, in treating of police power, Judge Gray wrote: ‘We may say of it that when its operation is in the direction of so regulating the use of private property, or of so restraining personal action, as manifestly to secure or tend to the * * * protection of the community, no constitutional guaranty is violated, and the legislative authority is not transcended.’ (Emphasis supplied.) And, in People ex rel. Nechamcus v. Warden of City Prison, 144 N.Y. 529, 535,39 N.E. 686, 688,27 L.R.A. 718, he wrote: ‘If the act is a valid and reasonable exercise of the police power of the state, then it must be submitted to, as a measure designed for the protection of the public and to secure it against some danger, real or anticipated, from a state of things which modifications in our social or commercial life have brought about.’ (Emphasis supplied.)
In my opinion these plaintiffs have unsuccessfully challenged the constitutionality of the statute as to its effect upon them, their association or any one else. The judgment and order appealed from should be reversed, defendant's motion for judgment on the pleadings granted and the complaint dismissed.
Judgment and order reversed, on the law; defendant's motion for judgment on the pleadings granted and the complaint dismissed, with costs.
FOSTER, P. J., and HEFFERNAN, BERGAN and COON, JJ., concur.