ASHWANDER v. TENNESSEE VALLEY AUTHORITY

297 U.S. 288 (1936)

Argued and Submitted Dec. 19, 20, 1935.

Decided Feb. 17, 1936.

Mr. Justice BRANDEIS (concurring).

'Considerations of propriety, as well as long-established practice, demand that we refrain from passing upon the constitutionality of an act of Congress unless obliged to do so in the proper performance of our judicial function, when the question is raised by a party whose interests entitle him to raise it.' Blair v. United States, 250 U.S. 273, 279 , 39 S. Ct. 468, 470.

I do not disagree with the conclusion on the constitutional question announced by the CHIEF JUSTICE; but, in my opinion, the judgment of the Circuit Court of Appeals should be affirmed without passing upon it. The government has insisted throughout the litigation that the plaintiffs have no standing to challenge the validity of the legislation. This objection to the maintenance of the suit is not overcome by presenting the claim in the form of a bill in equity and complying with formal prerequisites required by Equity Rule 27 (28 U.S.C.A. following section 723). The obstacle is not procedural. It inheres in the substantive law, in well- settled rules of equity, and in the practice in cases involving the constitutionality of legislation. Upon the findings made by the District Court, it should have dismissed the bill.

Third. The practice in constitutional cases. The fact that it would be convenient for the parties and the public to have promptly decided whether the legislation assailed is valid, cannot justify a departure from these settled rules of corporate law and established principles of equity practice. On the contrary, the fact that such is the nature of the enquiry proposed should deepen the reluctance of courts to entertain the stockholder's suit. 'It must be evident to any one that the power to declare a legislative enactment void is one which the judge, conscious of the fallibility of the human judgment, will shrink from exercising in any case where he can conscientiously and with due regard to duty and official oath decline the responsibility.' 1 Cooley, Constitutional Limitations ( 8th Ed.), p. 332.

The Court has frequently called attention to the 'great gravity and delicacy' of its function in passing upon the validity of an act of Congress;3 and has restricted exercise of this function by rigid insistence that the jurisdiction of federal courts is limited to actual cases and controversies; and that they have no power to give advisory [297 U.S. 288, 346] opinions. 4 On this ground it has in recent years ordered the dismissal of several suits challenging the constitutionality of important acts of Congress. In Texas v. Interstate Commerce Commission, 258 U.S. 158, 162 , 42 S.Ct. 261, the validity of titles 3 and 4 of the Transportation Act of 1920 (41 Stat. 456). In New Jersey v. Sargent, 269 U.S. 328 , 46 S.Ct. 122, the validity of parts of the Federal Water Power Act (41 Stat. 1063). In Arizona v. California, 283 U.S. 423 , 51 S.Ct. 522, the validity of the Boulder Canyon Project Act (43 U.S.C.A. 617 et seq.). Compare United States v. West Virginia, 295 U.S. 46 , 55 S.Ct. 789, involving the Federal Water Power Act and Liberty Warehouse Co. v. Grannis, 273 U.S. 70 , 47 S.Ct. 282, where this Court affirmed the dismissal of a suit to test the validity of a Kentucky statute concerning the sale of tobacco; also, Massachusetts State Grange v. Benton, 272 U.S. 525 , 47 S.Ct. 189.

The Court developed, for its own governance in the cases confessedly within its jurisdiction, a series of rules under which it has avoided passing upon a large part of all the constitutional questions pressed upon it for decision. They are:

1. The Court will not pass upon the constitutionality of legislation in a friendly, nonadversary, proceeding, declining because to decide such questions 'is legitimate only in the last resort, and as a necessity in the determination of real, earnest, and vital controversy between individuals. It never was the thought that, by means of a friendly suit, a party beaten in the legislature could transfer to the courts an inquiry as to the constitutionality of the legislative act.' Chicago & Grand Trunk Ry. Co. v. Wellman, 143 U.S. 339, 345 , 12 S.Ct. 400, 402. Compare Lord v. Veazie, 8 How. 251; Atherton Mills v. Johnston, 259 U.S. 13, 15 , 42 S.Ct. 422.

2. The Court will not 'anticipate a question of constitutional law in advance of the necessity of deciding it.' [297 U.S. 288, 347] Liverpool, N.Y. & Phila. Steamship Co. v. Emigration Commissioners, 113 U.S. 33, 39 , 5 S.Ct. 352, 355;5 Abrams v. Van Schaick, 293 U.S. 188 , 55 S.Ct. 135; Wilshire Oil Co. v. United States, 295 U.S. 100 , 55 S.Ct. 673. 'It is not the habit of the court to decide questions of a constitutional nature unless absolutely necessary to a decision of the case.' Burton v. United States, 196 U.S. 283, 295 , 25 S. Ct. 243, 245.

3. The Court will not 'formulate a rule of constitutional law broader than is required by the precise facts to which it is to be applied.' Liverpool, N.Y. & Phila. Steamship Co. v. Emigration Commissioners, supra. Compare Hammond v. Schappi Bus Line, Inc., 275 U.S. 164 , 169-172, 48 S.Ct. 66.

4. The Court will not pass upon a constitutional question although properly presented by the record, if there is also present some other ground upon which the case may be disposed of. This rule has found most varied application. Thus, if a case can be decided on either of two grounds, one involving a constitutional question, the other a question of statutory construction or general law, the Court will decide only the latter. Siler v. Louisville & Nashville R. Co., 213 U.S. 175, 191 , 29 S.Ct. 451; Light v. United States, 220 U.S. 523, 538 , 31 S.Ct. 485. Appeals from the highest court of a state challenging its decision of a question under the Federal Constitution are frequently dismissed because the judgment can be sustained on an independent state ground. Berea College v. Kentucky, 211 U.S. 45, 53 , 29 S.Ct. 33.

5. The Court will not pass upon the validity of a statute upon complaint of one who fails to show that he is injured by its operation. 6 Tyler v. Judges, etc., 179 U. [297 U.S. 288, 348] S. 405, 21 S.Ct. 206; Hendrick v. Maryland, 235 U.S. 610, 621 , 35 S.Ct. 140. Among the many applications of this rule, none is more striking than the denial of the right of challenge to one who lacks a personal or property right. Thus, the challenge by a public official interested only in the performance of his official duty will not be entertained. Columbus & Greenville Ry. Co. v. Miller, 283 U.S. 96, 99 , 100 S., 51 S.Ct. 392. In Fairchild v. Hughes, 258 U.S. 126 , 42 S.Ct. 274, the Court affirmed the dismissal of a suit brought by a citizen who sought to have the Nineteenth Amendment declared unconstitutional. In Massachusetts v. Mellon, 262 U.S. 447 , 43 S.Ct. 597, the challenge of the federal Maternity Act was not entertained although made by the commonwealth on behalf of all its citizens.

6. The Court will not pass upon the constitutionality of a statute at the instance of one who has availed himself of its benefits. 7 Great Falls Mfg. Co. v. Attorney General, 124 U.S. 581 , 8 S.Ct. 631; Wall v. Parrot Silver & Copper Co., 244 U.S. 407, 411 , 412 S., 37 S.Ct. 609; St. Louis Malleable Casting Co. v. Prendergast Construction Co., 260 U.S. 469 , 43 S.Ct. 178.

7. 'When the validity of an act of the Congress is drawn in question, and even if a serious doubt of constitutionality is raised, it is a cardinal principle that this Court will first ascertain whether a construction of the statute is fairly possible by which the question may be avoided.' Crowell v. Benson, 285 U.S. 22, 62 , 52 S.Ct. 285, 296.8 [297 U.S. 288, 349]