Crown--International...Contd...II

English Authorities and principles

"It is well-established that the common law of England is that the King's prerogative is illustrated by the rule that the Sovereign is not necessarily bound by a statutory law which binds the subject. This is further enforced by the rule that the King is not bound by a statute unless he is expressly named or unless he is bound by necessary implication or unless, the statute being for the public good, it would be absurd to exclude the King from it." [Director of Rationing and' Distribution v. The Corporation of Calcutta, [1961] 1 S.C.R. 158 177

"That was law applicable to India also, as authoritatively laid down by the Privy Council in the case referred to above [(1946) L. R. 73 I.A. 271)]...... it (law in force under Art. 372 of the Constitution) must be interpreted as including the common law of England which was adopted as the law of this country before the Constitution came into force." (At p.173).]

Sinha, C.J., therefore, held that the said rule of construction was, part of the common law of England, that it was adopted by this, country and that Art' 372 of the Constitution continued it. Sarkar, J., on the other hand, agreed with the conclusion arrived at by Sinha, C.J., but on a different ground. He based his conclusion not on any common law doctrine, but simply on the ground that the said rule of construction of statutory provisions was accepted and followed in England, America and India. Wanchoo, J., in his dissent, put the case in a different perspective. The following, passage brings out his line of thought :

"Two things are clear from this modern conception of royal prerogative, namely (1) that there must be a Crown or King to whom the royal prerogative attaches, and (2) that the prerogative must be part of the common law of England. Both these conditions existed when the Privy Council decision in Province1 of Bombay v. Municipal Corporation of the City of Bombay(1) was given in October 1946; the King was still there and the Privy Council held that the English common law rule of construc- tion applied to Indian legislation as much as to English ,statutes." (At p. 184).

"In our country the Rule of Law prevails and our Constitution has guaranteed it by the provisions contained in Part III thereof as well as by other provisions in other Parts...... It is to my mind inherent in the conception of the Rule of Law that the State, no less than its citizens and others, is  bound by the laws of the land. When the King as the embodiment of all power-executive, legislative and judicial-has disappeared and in our republican Constitution, sovereign power has been distributed among various organs created 'thereby, it seems, to me that there is neither justification nor necessity for continuing the rule of construction based on the royal, prerogative." (At p. 185).

"But where the royal prerogative is merely a rule of construction of statutes based on the existence of the Crown in England and for historical reasons, I fail to see why in a democratic republic, the courts should not follow the ordinary principle of construction that no one is exempt from the operation of a statute unless the statute expressly grants the exemption or the exemption arises by necessary implication." (At pp. 188-189).

The conflict between the two views expressed by the learned Judges in the earlier decision mainly rests on the meaning of the expression "law in force" in Art. 372 of the Constitution. While Sinha, C.J., took the view that the common law of England, including the rule of construction, was accepted as the law of this country and was, therefore, the law in force within the meaning of the said Article, Wanchoo, J., took the view that whatever might be said of the substantive laws, 'a rule of construction adopted by the common law of England and accepted by the Privy Council at a time when the Crown was functioning in India, was not the law in force within the meaning of the said Article.

 

American Decisions

Some of the American decisions may usefully be referred to at this stage. It was said that in America where the Crown did not exist, the same rule of construction was adopted in that country as law of the land and therefore by analogy the same legal position must be accepted in India.

The decision in H. Snowden Marshall v. People of the State of New York(1) only lays down that the State of New York has the common law prerogative right of priority over unsecured creditors. This case has nothing to do with the rule of construction but was based upon the common law prerogative of the (1920) 65 L.cd. 315.Crown expressly embodied in the State's Constitution. The decision in Guarantee Trust Company of New York v. United States of America(1) accepted the immunity of the sovereign from he operation of statutes of limitation. That decision was based upon the doctrine of public policy evolved by courts, though in evolving the said policy the courts had been influenced, to some extent, by the doctrine of the pregrogative of the Crown. This decision also does not express any opinion on the rule of construction.

The decision in United States of America v. United Mine Workers of America ruled that statutes which in general terms, divested pre-existing rights and privileges would not be applied to the sovereign without express words to that effect. But Frankfurter, J., after citing the said rule, pointed out that "At best, this canon, like other generalities about statutory construction, is not a rule of law." The same rule was again re-stated in United States of America v. Reginald P. Wittek.

The question there was whether the District of Columbia Emergency Rent Act did not apply to Government-owned defence houses in the District such as Bellevue Houses. The Court relied not only upon the said rule of construction but also on other circumstances in support of the conclusion that the United States was exempt from the operation of that Act by necessary implication. In Jess Larson, as War Assets Administrator and Surplus Property Administrator v. Domestic and Foreign,, Commerce Corporation, the purchaser of surplus coal from the War Assets Administration filed a suit against the said Administration for an injunction prohibiting the latter from selling or delivering the coal to any other person. The suit was dismissed on the ground that the sovereign immunity in suits for injunction or for specific performance was based upon public policy. But it was argued that the principle of sovereign immunity was an archaic hangover not consonant with modern morality; the majority conceded that there was substance in such a viewpoint as applied to suits for damages. Mr. Justice Frankfurter in his dissent went further and pointed out that the doctrine of sovereign immunity was in disfavour. The American decisions, therefore, were mainly based either on the provisions of the constitution of the State or on. the ground of public policy evolved by Courts. The founding fathers carried with them the English doctrine of the Crown Prerogative and it continued to influence some of the principles of public policy evolved in that country. Even so, the decisions made it clear that the rule of construction was relied upon only as one of the guides to arrive at the intention of a particular statute.

That apart, the fact that the common law of England pertaining to prerogatives influenced some of the decisions of the Supreme Court, of the United States cannot help us in coming to a conclusion whether the said rule had become part of the Law in India.

 SUPERINTENDENT & LEGAL REMEMBRANCER,STATE OF WEST BENGAL V. CORPORATION OF CALCUTTA [1966] INSC 259; AIR 1967 SC 997; 1967 (2) SCR 170 (7 December 1966)

Crown Liablity: International Perspective

The following case whose link is provided at the end of the post sums up the International Practices adopted in regard to Crown.One may like to refer to this aptly summed ip ruling of Supreme Court of India on the Position of Crown. I have not given the citations of the cases referred to in this post as only limited readers would be interested.[Blogger]

  Observations of Some Popular Commentators

 In Halsbury's Laws of England, 3rd Edn., Vol. 7, in Part 5 of the Chapter on "Constitutional Law" under the heading "The Royal Prerogative", the Royal prerogatives are enumerated and their limitations are given. In para 464 it is stated :

"The general rule is that prerogatives cannot be affected or parted with by the Crown,  except by express statutory authority." The prerogative right can be taken away by law because the law is made by the Crown with the assent of the Lords and the Commons. It can be taken away only by law to which the Crown is a party. Whether a particular statute has taken away such right pertains to the domain of the rule of construction. The relevant rule of construction evolved by judicial decisions in England may be stated thus:

"At all events, the Crown is not reached except by express words or by necessary implication in any case where it would be ousted of an existing prerogative or interest." 

It is said much to the same effect in Maxwell's Interpretation of Statutes, 11th Edn., at page 129, thus :

"It is presumed that the legislature does not intend to deprive the Crown of any prerogative, right or property, unless it expresses its intention to do so in explicit terms, or makes the inference irresistible."

The same rule is given in Bacon's Abridgment 7th Edn., The legal position in England may be summarised thus :

"The substantive rule of law is that the prerogative of the Crown can only be taken away by law. The rule of construction evolved by the courts to ascertain the legislative intention is, that it is presumed that a statute has not taken away the prescriptive right unless it has expressly or by necessary implication done so."

There is an essential distinction between a substantive law and a rule of construction and that is well expressed by Craies in his book "On Statute Law", 6th Edn., at p. 10, thus :

"A rule of law, e.g., the Rule against Perpetuities or the Rule in Shelley's case (abolished in 1925), exists independently of the circumstances of the parties to a deed, and is inflexible and paramount to the intention expressed in the deed. A rule of law cannot be said to control the construction of a statute, inasmuch as a British statute is itself part of the supreme law of the land and overrides any pre-existing rules with which it is inconsistent. A rule or canon of construction, whether of will, deed or statute, is not inflexible, but is merely a presumption in favour of a particular meaning in case of ambiguity. This was well expressed by Bowen, L.J. in L. N. W. Ry. v. Evans:

'These canons do not override the language of a statute where the language is clear : they are only guides to enable us to understand what is inferential. In each case the Act of Parliament is all powerful, and when its meaning is unequivocally expressed the necessity for rules of construction disappears and reaches its vanishing point."

The same principle was stated by Bhashyam Ayyangar, J., in Bell v. The Municipal Commissioners for the City of Madras thus :

"These compendious canons of interpretation which are in the nature of maxims can only be regarded as mere guides to the interpretation of Statutes and ought not to be applied as if they were statutory clauses, enacted with all the precision and provisos of an Interpretation Act."

Franfurter, J., said to the same effect in United States v. United Mine Workers of America thus :

"At best, this canon, like other generalities about statutory construction, is not a rule of law. Whatever persuasiveness it may have in construing a particular  statute derives from the subject-matter and the terms of the enactment in its total environment."

Even in England this rule of interpretation has not been treated as inflexible. It is gradually losing ground in many branches of law. The incongruity of the rule of discrimination in favour of the Crown was pointed out by Glanville L. Williams in his treatise on "Crown Proceedings", at p. 53 :

"The rule originated in the Middle Ages, when it perhaps had some justification. Its survival, however, is due to little but the vis inertiae."

The author continues at p. 54 :

"With the great extension in the activities of the State -and the number of servants employed by it, and with the modern idea, expressed in the Crown Proceedings Act, [compare in this connection Art. 300 of our Constitution], "that the State should be accountable in wide measure to the law, the presumption should be that a statute binds the Crown rather than it does not."

The next question is, how far and to what extent the common law of England relating to the prerogatives of the Crown has been accepted as the law of our country? Nothing has been placed before us to show that the entire body of the common law pertaining to prerogatives was accepted as the law throughout India. India at the relevant time comprised Provinces and Native States. As Bhashyam Ayyangar, J., pointed out in Bell v. The Municipal Commissioners for the City of Madras"the prerogatives of the Crown in India-a country in which the title of the British Crown is of a very mixed character-may vary in different provinces, as also in the Presidency towns as distinguished from the mofussil.

'The determination, with anything like legal precision, of all the prerogatives of the British Crown in India is by no means an easy task." It is well-known that the Common law of England was applied as such in the original sides of the High Courts of Calcutta, Bombay and Madras, and that in the mofussil courts the principles embodied in the common law were invoked in appropriate cases on the ground of justice, equity and good conscience. It cannot, therefore, be posited that either the entire body of common law of England relating to prerogatives of the King or even the rule of construction as forming part of that law was accepted as law in every part of the country. It has to be established whenever a question arises as to what part of the common law was accepted as the law in a particular part of the country.

 SUPERINTENDENT & LEGAL REMEMBRANCER,STATE OF WEST BENGAL V. CORPORATION OF CALCUTTA [1966] INSC 259; AIR 1967 SC 997; 1967 (2) SCR 170 (7 December 1966)

Chapter-29 Stare Decisis- English Legal System-Part-3

Application to the English legal system

The doctrine of binding precedent or stare decisis is basic to the English legal system, and to the legal systems that derived from it such as those of Australia, Canada, Hong Kong, Pakistan, Singapore and New Zealand. A precedent is a statement made of the law by a Judge in deciding a case. The doctrine states that within the hierarchy of the English courts a decision by a superior court will be binding on inferior courts. This means that when judges try cases they must check to see if similar cases have been tried by a court previously. If there was a precedent set by an equal or superior court, then a judge should obey that precedent. If there is a precedent set by an inferior court, a judge does not have to follow it, but may consider it. The House of Lords however does not have to obey its own precedents.

Only the statements of law are binding. This is known as the reason for the decision or ratio decidendi. All other reasons are "by the way" or obiter dictum. [1]A precedent does not bind a court if it finds there was a lack of care in the original “Per Incuriam”. For example, if a statutory provision or precedent had not been brought to the previous court's attention before its decision, the precedent would not be binding. Also, if a court finds a material difference between cases then it can choose not to be bound by the precedent. Persuasive precedents are those that have been set by courts lower in the hierarchy. They may be persuasive, but are not binding. Most importantly, precedents can be overruled by a subsequent decision by a superior court or by an Act of Parliament.[2] Those powers were promptly invoked in this case. Because the Treasury was dissatisfied with the meaning given by this Court to the estate-tax provision, the very next day after the three decisions reaffirming May v. Heiner were handed down, the Treasury appealed to Congress for relief and Congress gave relief. The true significance of today's decision in the Church case is not to be found in the Court's failure to respect stare decisis. The extent to which judges should feel in duty bound not to innovate is a perennial problem, and the pull of the past is different among different judges as it is in the same judge about different aspects of the past. We are obligated, however, to enforce what is within the power of Congress to declare. Inevitable difficulties arise when Congress has not made clear its purpose, but when that purpose is made manifest in a manner that leaves no doubt according to the ordinary meaning of English speech, this Court in disregarding it is disregarding the limits of the judicial function which we all profess to observe.

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[1] See Rondel v. Worsley [1969] 1 AC 191.

[2] Source: Wikipedia

Chapter-29 Stare Decisis- Application to US legal system -Part-2

Application to the U.S. legal system

When the Court implies that the doctrine called Stare decisis rests solely on 'important policy considerations * * * in favor of continuity and predictability in the law,' it does not tell the whole story. Such considerations are present and, in a field as delicate as labor relations, extremely important. 'Stare decisis is usually the wise policy, because in most matters it is more important that the applicable rule of law be settled than that it be settled right.[1]'

In the ordinary case, considerations of certainty and the equal treatment of similarly situated litigants will provide a strong incentive to adhere to precedent.

In the United States Supreme Court, the principle of stare decisis is most flexible in constitutional cases:

Stare decisis is usually the wise policy, because in most matters it is more important that the applicable rule of law be settled than that it be settled right.... But in cases involving the Federal Constitution, where correction through legislative action is practically impossible, this Court has often overruled its earlier decisions.... This is strikingly true of cases under the due process clause[2].

For example, in the years 1946–1992, the U.S. Supreme Court reversed itself in about 130 cases.^[6][3] The U.S. Supreme Court has further explained as follows:

[W]hen convinced of former error, this Court has never felt constrained to follow precedent. In constitutional questions, where correction depends upon amendment, and not upon legislative action, this Court throughout its history has freely exercised its power to reexamine the basis of its constitutional decisions[4]

Stare decisis is not an "inexorable command[5]," but the doctrine is "of fundamental importance to the rule of law,"[6] Even in constitutional cases, in which stare decisis concerns are less pronounced, we will not overrule a precedent absent a "special justification.[7]" We do not agree that the doctrine of stare decisis bars a re-examination of Sinclair in the circumstances of this case. We fully recognize that important policy considerations militate in favor of continuity and predictability in the law. Nevertheless, as Mr. Justice Frankfurter wrote for the Court, '(S)tare decisis is a principle of policy and not a mechanical formula of adherence to the latest decision, however recent and questionable, when such adherence involves collision with a prior doctrine more embracing in its scope, intrinsically sounder, and verified by experience.[8]' It is precisely because Sinclair stands as a significant departure from our otherwise consistent emphasis upon the congressional policy to promote the peaceful settlement of labor disputes through arbitration [9]and our efforts to accommodate and harmonize this policy with those underlying the anti-injunction provisions of the Norris-LaGuardia Act [10]that we believe Sinclair should be reconsidered. Furthermore, in light of developments subsequent to Sinclair, in particular our decision in Avco Corp. v. Aero Lodge [11] it has become clear that the Sinclair decision does not further but rather frustrates realization of an important goal of our national labor policy. Nor can we agree that conclusive weight should be accorded to the failure of Congress to respond to Sinclair on the theory that congressional silence should be interpreted as acceptance of the decision. The Court has cautioned that '(i)t is at best treacherous to find in congressional silence alone the adoption of a controlling rule of law.' Girouard v. United States[12], Therefore, in the absence of any persuasive circumstances evidencing a clear design that congressional inaction be taken as acceptance of Sinclair, the mere silence of Congress is not a sufficient reason for refusing to reconsider the decision[13].

“When Sinclair Refining Co. v. Atkinson[14], was decided in 1962, I subscribed to the opinion of the Court. Before six years had passed I had reached the conclusion that the Sinclair holding should be reconsidered, and said so in Avco Corp. v. Aero Lodge[15]. Today I join the Court in concluding 'that Sinclair was erroneously decided and that subsequent events have undermined its continuing validity * * *.[16]”

When the Court implies that the doctrine called Stare decisis rests solely on 'important policy considerations * * * in favor of continuity and predictability in the law,' it does not tell the whole story. Such considerations are present and, in a field as delicate as labor relations, extremely important.[17]

'Stare decisis is usually the wise policy, because in most matters it is more important that the applicable rule of law be settled than that it be settled right. In the ordinary case, considerations of certainty and the equal treatment of similarly situated litigants will provide a strong incentive to adhere to precedent.

‘I do not believe that the principle of stare decisis forecloses all reconsiderations of earlier decisions. In the area of constitutional law, for example, where the only alternative to action by this Court is the laborious process of constitutional amendment and where the ultimate responsibility rests with this Court, I believe reconsideration is always proper.[18] Even on statutory questions the appearance of new facts or changes in circumstances might warrant re-examination of past decisions in exceptional cases under exceptional circumstances. In the present situation there are no such circumstances. Congress has taken no action inconsistent with our decision in Sinclair[19]. And, although bills have been introduced,[20] Congress has declined the invitation to act

‘Other members of the Court have drawn the distinction between constitutional and statutory matters, and indicated that the correction of this Court's errors in statutory interpretation is best left to Congress. For example, Mr. Justice Douglas noted in dissent in Swift & Co. v. Wickham[21] : 'An error in interpreting a federal statute may be easily remedied. If this Court has failed to perceive the intention of Congress, or has interpreted a statute in such a matter as to thwart the legislative purpose, Congress may change it. The lessons of experience are not learned by judges alone.[22] No doubt stare decisis is not 'a universal, inexorable command[23]' 'We recognize that stare decisis embodies an important social policy. It represents an element of continuity in law, and is rooted in the psychologic need to satisfy reasonable expectations.[24]' And one of the most recent reliances on stare decisis for decision was expressed with such firmness as to manifest allegiance to principle, not utilization of an ad hoc argument.[25] We are not dealing here with a ruling which cramps the power of Government; we are not dealing with a constitutional adjudication which time and experience have proved a parochial instead of a spacious view of the Constitution and which thus calls for self-correction by the Court without waiting for the leadenfooted process of constitutional amendment. We are dealing with an exercise of this Court's duty to construe what Congress has enacted with ample powers on its part quickly and completely to correct misconstruction.

‘The policy of stare decisis is at its most powerful in statutory interpretation (which Congress is always free to supersede with new legislation)[26], and §5 presents no exception to the rule that when statutory language is construed it should stay construed. But it is another thing entirely to ignore error in extending discredited reasoning to previously unspoiled statutory provisions.[27]’

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[1] Burnet v. Coronado Oil & Gas Co., [1969] USSC 129; 285 U.S. 393, 406, 52 S.Ct. 443, 447, 76 L.Ed. 815 (1932) per JUSTICE BRANDEIS, dissenting

[2] Burnet v. Coronado Oil & Gas Co., 285 U.S. 393, 406–407, 410 (1932) (BRANDEIS J dissenting)

[3] Congressional Research Service,Supreme Court Decisions Overruled by Subsequent Decision (1992) [source of this write up is , wikipedia]

[4] Smith v. Allwright, 321 U.S. 649, 665 (1944)

[5] Burnet v. Coronado Oil & Gas Co., [1969] USSC 129; 285 U. S. 393, 405 (1932) (BRANDEIS, J., dissenting)

[6] Welch v. Texas Dept. of Highways and Public Transp., [1987] USSC 147; 483 U. S. 468, 494 (1987).

[7] Arizona v. Rumsey, 467 U. S. 203, 212 (1984)

[8] Helvering v. Hallock, [1940] USSC 19; 309 U.S. 106, 119[1940] USSC 19; , 60 S.Ct. 444, 451[1940] USSC 19; , 84 L.Ed. 604 (1940). See Swift & Co. v. Wickham, 382 U.S. 111, 116, 86 S.Ct. 258, 261, 15 L.Ed.2d 194 (1965).

[9]See, e.g., United Steelworkers of America v. American Mfg. Co., [1960] USSC 107; 363 U.S. 564, 80 S.Ct. 1343, 4 L.Ed.2d 1403 (1960); United Steelworkers of America v. Warrior & Gulf Nav. Co., [1960] USSC 109; 363 U.S. 574, 80 S.Ct. 1347, 4 L.Ed.2d 1409 (1960); United Steelworkers of America v. Enterprise Wheel & Car Corp., [1960] USSC 108; 363 U.S. 593, 80 S.Ct. 1358, 4 L.Ed.2d 1424 (1960); Textile Workers Union of America v. Lincoln Mills, [1802] USSC 5; 353 U.S. 448, 77 S.Ct. 912, 1 L.Ed.2d 972 (1957).

[10] See, e.g., Brotherhood of Railroad Trainmen v. Chicago River & Ind. R. Co., [1957] USSC 37; 353 U.S. 30, 77 S.Ct. 635, 1 L.Ed.2d 622 (1957); Textile Workers Union v. Lincoln Mills, supra; cf. Graham v. Brotherhood of Locomotive Firemen, [1949] USSC 114; 338 U.S. 232, 70 S.Ct. 14, 94 L.Ed. 22 (1949). See also United States v. Hutcheson, 312 U.S. 219, 61 S.Ct. 463, 85 L.Ed. 788 (1941)

[11] Avco Corp. v. Aero Lodge 735[1968] USSC 85; , 390 U.S. 557, 88 S.Ct. 1235, 20 L.Ed.2d 126 (1968)

[12] Girouard v. United States, [1946] USSC 76; 328 U.S. 61, 69, 66 S.Ct. 826, 830, 90 L.Ed. 1084 (1946)

[13] Boys Markets, Inc v Retail Clerks [1970] USSC 125; 398 U.S. 235; 90 S.Ct. 1583; 26 L.Ed.2d 199;No. 768 (1 June 1970)

[14] Sinclair Refining Co. v. Atkinson, [1962] USSC 109; 370 U.S. 195, 82 S.Ct. 1328, 8 L.Ed.2d 440,

[15] Avco Corp. v. Aero Lodge 735[1968] USSC 85; , 390 U.S. 557, 562[1968] USSC 85; , 88 S.Ct. 1235, 1238[1968] USSC 85; , 20 L.Ed.2d 126 (concurring opinion)

[16] Boys Markets [supra] per JUSTICE STEWART ,he also quoted JUSTICE FRANKFERTER :” An aphorism of Mr. Justice Frankfurter provides me refuge: 'Wisdom too often never comes, and so one ought not to reject it merely because it comes late.' Henslee v. Union Planters Bank, [1949] USSC 4; 335 U.S. 595, 600[1949] USSC 4; , 69 S.Ct. 290, 293, 93 L.Ed. 259 (dissenting opinion).

[17] Burnet v. Coronado Oil & Gas Co., [1969] USSC 129; 285 U.S. 393, 406, 52 S.Ct. 443, 447, 76 L.Ed. 815 (1932) per JUSTICE BRANDEIS

[18] . See James v. United States, [1961] USSC 84; 366 U.S. 213, 233—234[1961] USSC 84; , 81 S.Ct. 1052, 1062—1063[1961] USSC 84; , 6 L.Ed.2d 246 (1961) per separate opinion of Black, J.

[19] Girouard v. United States, [1946] USSC 76; 328 U.S. 61, 70, 66 S.Ct. 826, 830, 90 L.Ed. 1084 (1946).

[20] cf. Helvering v. Hallock, [1940] USSC 19; 309 U.S. 106, 119—120[1940] USSC 19; , 60 S.Ct. 444, 451—452[1940] USSC 19; , 84 L.Ed. 604 (1940),

[21]Swift & Co. v. Wickham, 382 U.S. 111, 133—134, 86 S.Ct. 258, 271, 15 L.Ed.2d 194 (1965)

[22] See also United Gas Improvement Co. v. Continental Oil Co., [1965] USSC 119; 381 U.S. 392, 406, 85 S.Ct. 1517, 1525, 14 L.Ed.2d 466 (1965) (Douglas, J., dissenting). Apparently, however, some members of the Court are willing to give greater weight to state decisis in constitutional than in statutory matters. See, e.g., Orozco v. Texas, [1969] USSC 62; 394 U.S. 324, 327—328[1969] USSC 62; , 89 S.Ct. 1095, 1097—1098[1969] USSC 62; , 22 L.Ed.2d 311 (1969) (Harlan, J., concurring)

[23] State of Washington v. Dawson & Co., [1924] USSC 54; 264 U.S. 219, 238[1924] USSC 54; , 44 S.Ct. 302, 309[1924] USSC 54; , 68 L.Ed. 646.' Per BRANDEIS J [dissenting]

[24] 309 U.S. at page 119, 60 S.Ct. at page 451[1940] USSC 19; , 84 L.Ed. 604, 125 A.L.R. 1368

[25] See Screws v. United States, [1945] USSC 89; 325 U.S. 91, 112, 113[1945] USSC 89; , 65 S.Ct. 1031, 1040[1945] USSC 89; , 89 L.Ed. 1495, 162 A.L.R. 1330. 'But beyond that is the problem of stare decisis. The construction given § 20 [now 18 U.S.C.A. § 242] in the Classic case [United States v. Classic, 313 U.S. 299, 61 S.Ct. 1031, 85 L.Ed. 1368] formulated a rule of law which has become the basis of federal enforcement in this important field. The rule adopted in that case was formulated after mature consideration. It should be good for more than one day only. We do not have here a situation comparable to Mahnich v. Southern S. S. Co., [1944] USSC 24; 321 U.S. 96, 64 S.Ct. 455, 88 L.Ed. 561, where we overruled a decision demonstrated to be a sport in the law and inconsistent with what preceded and what followed. The Classic case was not the product of hasty action or inadvertence. It was not out of line with the cases which preceded. It was designed to fashion the governing rule of law in this important field. We are not dealing with constitutional interpretations which throughout the history of the Court have wisely remained flexible and subject to frequent re-examination. The meaning which the Classic case gave to the phrase 'under color of any law' involved only a construction of the statute. Hence if it states a rule undesirable in its consequences, Congress can change it. We add only to the instability and uncertainty of the law if we revise the meaning of § 20 to meet the exigencies of each case coming before us.'

[26] see Hilton v. South Carolina Public Railways Comm'n, [1991] USSC 155; 502 U.S. 197, 202 (1991),

[27]See: Reno v Bossier Parish School Bd [2000] USSC 12; 528 U.S. 320; 120 S.Ct. 866; 145 L.Ed.2d 845 (24 January 2000)

[2000] USSC 12; 528 U.S. 320