source: Caselaw Access Project

author: Me. Justice Marshall Mr. Justice Brennan,

license: Public Domain

text:
    ABATE et al. v. MUNDT et al.
    No. 71.
    Argued November 19, 1970
    Decided June 7, 1971
    Marshall, J., delivered the opinion of the Court, in which Burger, C. J., and Black, White, and Blackmun, JJ., joined. Harlan, J., filed a statement concurring in the result. Stewart, J., concurred in the judgment. Brennan, J., filed a dissenting opinion, in which Douglas, J., joined, post, p. 187.

      Frank P. Barone argued the cause and filed a brief for petitioner Abate. Doris Friedman Ulman argued the cause and filed a brief for petitioners Molof et al. Paul H. Rivet argued the cause and'filed a brief for petitioners O’Sullivan et al.

      J. Martin Cornell argued the cause for respondents. With him on the brief was Arthur J. Prindle.

      Louis J. Lefkowitz, Attorney General, Ruth Kessler Toch, Solicitor General, and Robert W. Imrie, Assistant Attorney General, filed a brief for the State of New York as amicus curiae.

   Me. Justice Marshall

delivered the opinion of the Court.

In this case, petitioners challenge the constitutionality of a reapportionment plan proposed in response to both federal and .state court findings of malapportionment in Rockland County, New York. The Court of Appeals of the State of New York upheld the plan. We affirm.

For more than 100 years, Rockland County was governéd by a board of supervisors consisting of the supervisors of each of the county’s five constituent towns. This county legislature was not separately elected; rather, its members held their county offices by virtue of their election as town supervisors — a pattern that typified New York county government. The result has been a local structure in which overlapping public services are provided by the towns and their county working in. close cooperation. For example, in Rockland County the towns adopt their own budgets and submit them to the county which levies taxes. These taxes are based on real property assessments established by the towns but equalized by the county board. Similarly, public services such as waste disposal and snow removal are provided through cooperative efforts among the municipalities. There is no indication that these joint efforts have declined in importance; in fact, respondents strenuously urge that the county’s rapidly expanding population has amplified the need for town and county coordination in the future.

The county’s increased population also produced severe malapportionment — so severe that, in 1966, a federal district court required that the county board submit a reapportionment plan to the Rockland County voters, Lodico v. Board of Supervisors, 256 F. Supp. 440 (SDNY). Pursuant to that order, three different plans were devised and submitted to the electorate; but each was rejectéd at the polls. The present action was brought in 1968 to compel the board to reapportion. After its initial proposal was rejected by the New York courts, the board submitted the plan that is the subject of this decision.

The challenged plan, based on 1969 population figures, provides for a county legislature composed of 18 members chosen from five legislative districts. These districts éxactly correspond to the county’s five constituent towns. Each district is assigned its legislators according to the district’s population in relation to the population of the smallest town, Stony Point. Stony Point has a population of 12,114 and is assigned one representative in the county legislature. The number of representatives granted the other districts is determined by dividing the population of each by the population of the smallest town. Fractional results of the computation are rounded to the nearest integer, and this need to round off “fractional representatives” produces some variations among districts in terms of population per legislator. Under 1969 population figures, the Orange-town district is the most “underrepresented” (7.1%); while Clarkstown is the most “overrepresented” (4.8%). Thus, the plan presently produces a total deviation from population equality of H.9%. Petitioners attack these , deviations as unconstitutional.

It is well established that electoral apportionment must be based on the general principle of population equality and that this principle applies to state and local elections, Avery v. Midland County, 390 U. S. 474, 481 (1968). “Mathematical exactness or precision is hardly .a workable constitutional requirement,” Reynolds v. Sims, 377 U. S. 533, 577 (1964), but deviations from population equality must be justified by legitimate state considerations, Swann v. Adams, 385 U. S. 440, 444 (1967). Because voting rights require highly sensitive safeguards, this Court has carefully scrutinized state interests offered to justify deviations from population eouality.

In assessing the constitutionality , of various apportionment plans, we have observed that viable local governments may need considerable flexibility in municipal arrangements if they are to meet changing societal needs, Sailors v. Board of Education, 387 U. S. 105, 110-111 (1967), and that a desire to preserve the integrity of political subdivisions may justify an apportionment plan which departs from numerical equality. Reynolds v. Sims, supra, at 578. These observations, along with the facts that local legislative bodies frequently have fewer representatives than do their state and national counterparts and that some local legislative districts may have a much smaller population than do congressional and state legislative districts, lend support to the argument that slightly greater percentage deviations may be tolerable for local government apportionment schemes, cf. ibid. Of course, this Court has never suggested that certain geographic areas or political interests are entitled to disproportionate representation. Rather, our statements have reflected the view that the particular circumstances and needs of a local community as .a whole may sometimes justify departures from strict equality.

Accordingly, we have underscored the danger of apportionment, structures that contain a built-in bias tending to favor particular geographic areas or political interests or which necessarily will tend to favor, for example, less populous districts over their more highly populated neighbors, see Hadley v. Junior College District, 397 U. S. 50, 57-58 (1970). In this case, we have no such indigenous bias; there is no suggestion that the Rockland County plan was.designed to favor particular groups. It is true that the existence of any deviations from strict equality means that certain districts are advantaged at that point in time; but, under this plan, changing demographic patterns may shift electoral advantages from one town to another.

The mere absence of a built-in bias is not, of course, justification for a departure-from population equality. In this case, however, Rockland County defends its plan by asserting the long history of, and perceived need for, close cooperation between the county and its constituent towns. The need for intergovernmental coordination is often greatest at the local level, and we have already commented on the extensive functional interrelationships between Rockland County and its towns. But because almost all governmental entities are interrelated in numerous ways, we would be hesitant to accept this justification by itself. To us, therefore, it is significant that Rockland County has long recognized the advantages of having the same individuals occupy the governing positions of both .the county and its towns. For over 100 years, the five town supervisors were the only members of the county board, a system that necessarily fostered extensive interdependence between the towns and their couqty government. When population shifts required that some towns receive a greater portion of seats on the county legislature, Rockland County responded with a plan that substantially remedies the malapportionment and that, by preserving an exact correspondence between each town and one of the county legislative districts, continues to encourage town supervisors to serve on the county board.

We emphasize that our decision is based on the long tradition of overlapping functions and dual personnel in Rockland County government and on the fact that the .plan before us does not contain a built-in bias tending to favor particular political interests or geographic areas. And nothing we say today should be taken to imply that even these factors could justify substantially greater deviations from-population equality. But we are not prepared to hold that the Rockland County reapportionment plan violates the Constitution, and, therefore, we affirm.

Mb. Justice Harlan concurs in the result for the reasons stated in his separate opinion in Whitcomb v. Chavis, ante, p. 165.

Mr. Justice Stewart concurs in the judgment.

Mr. Justice Brennan,

with whom Mr. Justice Doug-

las joins, dissenting.

.The Court today reaffirms all of the principles of Reynolds v. Sims, 377 U. S. 533 (1964), and its progeny but refuses, for a combination of reasons unpersuasive to me, to apply those principles to this apportionment scheme. I believe that our recent decisions in Avery v. Midland County, 390 U. S. 474 (1968); Kirkpatrick v. Preisler, 394 U. S. 526 (1969), and Wells v. Rockefeller, 394 U. S. 542 (1969), require reversal and I therefore dissent.

The Court holds that “a desire to preserve the integrity of political subdivisions may justify an apportionment plan which departs from numerical equality. Reynolds v. Sims, supra, at 578.” Ante, at 185. The Court’s reliance on Reynolds is misplaced. We said there that “it may be feasible to use political subdivision lines to a greater extent in establishing state legislative districts than in congressional'districting.” 377 U. S., at 578. But we warned that “[t]o do so would be constitutionally valid, so long as the resulting apportionment whs one based substantially on population and the equal-population principle was not diluted in any significant way.” Ibid. (emphasis added).. Moreover, the Court did not at that point in time “deem it expedient ... to attempt to spell out ¿ny precise constitutional tests.” We have doné so since.

In Kirkpatrick v. Preisler, supra, we explained that because ' “[t] deration of even small deviations detracts from” the constitutional command of “equal representation for equal numbers of people,” only those “limited population variances which are unavoidable despite a good-faith effort to achieve absolute equality, or for which justification is shown” are permissible. 394 U. S., at 531. “[T]he State must justify each variance, no matter how small.”. Ibid. On the record presented here it-is clear that such a good-faith effort has not been made. Nor can it be said that sufficient justification has been demonstrated for an 11.9% deviation from voting equality.

The plan approved here allegedly represents as close to mathematical exactness as is possible without changing, existing political boundaries or using weighted or fractional votes. But a plan devised under these constraints is not devised in the good-faith effort that the Constitution requires. In Wells v. Rockefeller, supra, we struck down a similar plan. We held that an attempt to maintain existing county lines was insufficient justification for a 12.1% variance. In explanation we stated that an attempt “to keep regions with distinct interests intact” was insufficient because to accept such a justification “would permit groups of districts with defined interest orientations to.be overrepresentéd at the expense of districts with different interest orientations.” 394 U. S., at 546. That is precisely what we are dealing with here. The attempt to maintain existing town lines has resulted in a variance from equality of 11.9%. I cannot believe that a 0.2% differential is the determining factor in approving this apportionment scheme.

The Court explains that it is, rather, a combination of factors that dictates this result, and that among them is the fact that New York has a long history of maintaining the integrity of existing' counties. It is not clear to me why such a history, no matter how protracted, should alter the constitutional command to make a good-faith effort to achieve equality of vbting .power as near to mathematical exactness as is possible.

.Today’s result cannot be excused by asserting that local governments are somehow less important than national and state governments. We have, already fully applied the principle of one man, one vote to local polities because “the States universally leave much policy and decisionmaking to their governmental subdivisions. . . . In a word, institutions of local government have always -been a major aspect of our'system, and their responsible and responsive operation is today of increasing importance to the quality of life of more and more of our citizens.” Avery v. Midland County, 390 U. S., at 481.

It is clear to me that none of the factors relied upon by the Court today can, singly or in combination, justify this variation. Obviously no other local apportionment ■ scheme can possibly present the same combination of factors relied on by the Court today. In that sense this decision can have little or no precedential value. Nevertheless, I cannot help but regret even this small departure from the basic constitutional concept of one man, one vote.

       All of the population figures and percentage deviations are:

        District Population* Number. of Representatives Percentage** Deviations

      Stony Point 12,114 1 0.3
      Haverstraw 23,676 2 . 2.5
      Orangetown 52,080 4 —7.1
      Clarkstown 57,883 5 4.8
      Ramapo 73,051 6 —0.2
      *1969 Population data.
      **( — ) refers to “underrepresented.”

       Petitioners also attack the plan’s use of .multi-member districts. However, they have not shown that these multi-member districts, by themselves, operate to impair the voting strength of particular racial or political elements of the Rockland County voting population, see Burns v. Richardson, 384 U. S. 73, 88 (1966).

       Naturally, we express no opinion on the* contention that, in future years, the Rockland County plan may produce substantially greater deviations than presently exist. Such questions can be answered if and when they arise.


author: Mr. Justice Blackmun

text:
    UNITED STATES et al. v. MITCHELL et al.
    No. 798.
    Argued April 20, 1971
    Decided June 7, 1971
    Blackmun, J., delivered the opinion for a unanimous Court.

      William Terry Bray argued the cause for- the United States et al. With him on the brief were Solicitor General Griswold, Assistant Attorney General Walters, Matthew J. Zinn, and Crombie J. D. Garrett.'

      Paul K. Kirkpatrick, Jr., argued the cause and filed a brief for respondent Mitchell. Patrick M. Schott argued the cause and filed a brief for respondent Angello.
   Mr. Justice Blackmun

delivered the opinion of the Court.

The petition here, arising from two cases Below, presents the issue whether a married woman domiciled in the community property State of Louisiana is personally liable for federal income tax on half the community income realized during the existence of the community de- ' spite the exercise of her statutory right of exoneration. The-issue arises in the .context, in one case, of a divorce, and, in the other, of the husband’s death.

I

Mrs.. Mitchell and Mrs. Sims: The Commissioner of Internal Revenue determined deficiencies against Anne Goyne Mitchell and Jane Isabell Goyne Sims for the tax years 1955-1959, inclusive. These were for federal income tax and for additions to tax under § 6651 (a) (failure to file return), § 6653 (a) (underpayment due to negligence or intentional disregard of rules and regulations), and § 6654 (underpayment of estimated tax) of the Internal Revenue Code of 1954, 26 U. S. C. §§ 6651 (a), 6653 (a), and 6654. Mrs. Sims is the sister of Mrs. Mitchell. The determinations as to her were made under § 6901 as Mrs. Mitchell’s transferee without consideration.

Anne Goyne and Emmett Bell Mitchell, Jr., were married in 1946. They lived in Louisiana. In July 1960, however, they began to live separately and apart. In August 1961 Mrs. Mitchell sued her husband in state court for separation. Upon his default, she was granted this relief. A final decree of divorce was entered in October 1962. In her separation suit. Mrs. Mitchell prayed that she be allowed to accept the community of acquets and gains with benefit of inventory. However, taking advantage of the privilege granted her by Art. 2410 of the Louisiana Civil Code, she formally renounced the community on September 18, 1961. As a consequence, she received neither a distribution of community property nor a property settlement upon dissolution of her marriage. This renunciation served to exonerate her of “debts contracted during the marriage.”

Mrs. Mitchell earned $4,200 as a teacher during 1955 and 1956. From these earnings tax was withheld. Mr. Mitchell enjoyed taxable income during the five years in question. All income realized by both spouses during this period was community income.

Mrs. Mitchell had little knowledge of her husband’s finances. She rarely knew the balance in the family bank account.. She possessed a withdrawal privilege on that account, and occasionally exercised it. Her husband was in charge of the couple’s financial affairs and did not usually consult his wife about them. She was aware of fiscal irresponsibility on his part. She questioned him each year about tax returns. She knew returns were required, but relied on .his assurances that he was filing timely returns and paying the taxes due. She signed no return herself and assumed that he had signed her name for her. In July 1960 she learned that, in fact, no returns had ever been filed for 1955-1959.

The deficiencies determined against Mrs. Mitchell were based upon half the community income. The Commissioner sought to collect the deficiencies from property Mrs. Mitchell inherited from her mother in 1964 and immediately transferred, without consideration, to Mrs. Sims.

Mrs. Mitchell sought redetermination in the Tax Court. Judge Forrester held that under Louisiana community property law Mrs. Mitchell possessed an immediate vested ownership interest in half the community property income and was personally responsible for the tax on her share. He also ruled that this tax liability was not affected by her Art. 2410 renunciation. Mitchell v. Commissioner, 51 T. C. 641 (1969).

On appeal, the Fifth Circuit reversed, holding that by the renunciation Mrs. Mitchell avoided any federal income tax liability on the community income. Mitchell v. Commissioner, 430 F. 2d 1 (CA5 1970). Judge Simpson dissented on the basis of Judge Forrester’s opinion in the Tax Court. 430 F. 2d, at 7.

Mrs. Angello. Throughout the calendar years 1959-1961 Mrs. Angello, who. was then Frances Sparacio, lived with her husband, Jack Sparacio, in Louisiana. Community income wás realized by the Sparacios during those years, but neither the husband nor the. wife filed any returns. In 1965 the District Director made assessments against them for taxes, penalties, and interest, filed a notice of lien, and addressed a notice of levy to the Metropolitan Life Insurance Company, which had a policy outstanding on Mr. Sparacio’s life. The insured died, in March 1966 and the notice of levy (for that amount of tax and interest resulting from imputing to Mrs. Sparacio half the community’s income for the tax years in question) attached to the proceeds of the policy. The widow, who was the named beneficiary, sued the Metropolitan in state court to recover the policy proceeds. The United States intervened to assert and protect its lien. The case was then removed to federal court. The Metropolitan paid the proceeds into the court registry and was dismissed from the case. •

Each side then moved for summary judgment. Judge Christenberry granted the Government’s motion and denied Mrs. Angello’s. Despite the absence of any formal renunciation by Mrs. Angello under Art. 2410, the Government did not contend that she had accepted any benefits of the community. On appeal, the Court of Appeals reversed, relying on the same panel’s decision in the Mitchell case. Angello v. Metropolitan Life Ins. Co., 430 F. 2d 7 (CA5 1970). Judge Simpson again dissented.

We granted certiorari in both cases, 400 U. S. 1008 (1971), on a single petition filed under our Rule 23 (5).

II

Sections 1 and 3 of the 1954 Code, 26 U. S. C. §§ 1 and 3, as have all of their predecessors since the Revenue Act of .1917, impose a tax on the taxable income “of every individual.” The statutes, however, have not specified what that phrase includes.

Forty years ago this Court had occasion to consider the phrase in the face of various state community property laws and of §§ 210 and 211 of the Revenue Act of 1926. A husband and wife, residents of the State of Washington, had income in 1927 consisting of the husband's salary and of amounts realized from real and personal property of the community. The spouses filed separate returns for 1927 and each reported half the community income. Mr. Justice Roberts, in speaking for a unanimous Court (two Justices not participating) upholding this tax treatment, said:

“These sections lay a tax upon the net income of every individual. The Act goes no farther, and furnishes no other standard or definition of what constitutes an individual’s income. The use of the word 'of' denotes ownership. It would be a strained construction, which, in the absence of further definition by Congress, should impute a broader significance to the phrase.” Poe v. Seaborn, 282 U. S. 101, 109 (1930).

The Court thus emphasized ownership. It looked to the law of the State as to the ownership of community property and of community income. It concluded that in Washington the wife has “a vested property right in the community property, equal with that of her husband; and in the income of the community, including salaries or wages of either husband or wife, or both.” Id., at 111. It noted that, in contrast, in an earlier case, United States v. Robbins, 269 U. S. 315 (1926), the opposite result had been reached under the then California law. But;

“In the Robbins case, we found that' the law of California, as construed by her own courts, gave the wife a mere expectancy and that the property rights of the husband during the life of the community were so complete that' he was in fact the owner.” 282 U. S., at 116.

In companion cases the Court came to the same conclusion, as it had reached in Seaborn, with respect to the community property laws of Arizona, Texas, and Louisiana. Goodell v. Koch, 282 U. S. 118 (1930); Hopkins v. Bacon, 282 U. S. 122 (1930); Bender v. Pfaff, 282 U. S. 127 (1930). In the Louisiana case it was said:

“It the test be, as we have held it is,, ownership of the community income, this case is probably the strongest of those presented to us, in favor of the wife’s ownership of one-half of that income.” 282 U. S., at 131.

The Court then reviewed the relevant Louisiana statutes and the power-of disposition possessed by each spouse. It noted that, while the husband is the manager of the affairs of the marital partnership, the limitations upon the wrongful exercise of his power over community property are more stringent than in many other States. It concluded:

“Inasmuch, therefore, as, in Louisiana, the wife has a present vested interest in community property equal to that of her husband, we hold that the spouses are entitled to file separate returns, each treating one-half of the community income as income of each ‘of’ them as an ‘individual’ as those words are used in §§ 210 (a) and 211 (a) of the Revenue Act of 1926.” 282 U. S., at 132.

Two months later the Court arrived at the same conclusion with respect to California community property law and federal income tax under the 1928 Act, with the Government conceding the effectiveness, in this respect, of amendments made to the California statutes since the Robbins decision. United States v. Malcolm, 282 U. S. 792 (1931). Significantly, the Court there answered in the affirmative, citing Seaborn, Koch, and Bacon, the following certified question:

“Has the wife under § 161 (a) of the Civil Code of California such an interest in the community income that she should separately report and pay tax on one-half of such income?” 282 U. S., at 794.

This affirmative answer to a question phrased in terms of “should,” not “may,” clearly indicates that the wife had the obligation, not merely the right, to report half the community income.

The federal courts since Malcolm consistently have held that the wife is required to report half the community income and that the husband is taxable only on the other half. Gilmore v. United States, 154 Ct. Cl. 365, 290 F. 2d 942 (1961), rev’d on other grounds, 372 U. S. 39 (1963); Van Antwerp v. United States, 92 F. 2d 871 (CA9 1937); Simmons v. Cullen, 197 F. Supp. 179 (ND Cal. 1961); Dillin v. Commissioner, 56 T. C. 228 (1971); Kimes v. Commissioner, 55 T. C. 774 (1971); Hill v. Commissioner, 32 T. C. 254 (1959); Hunt v. Commissioner, 22 T. C. 228 (1954); Freundlich v. Commissioner, T. C. Memo. 1955-177; Cavanagh v. Commissioner, 42 B. T. A. 1037, 1044 (1940), aff’d, 125 F. 2d 366 (CA9 1942). - There were holdings from the Fifth Circuit to this apparent effect with respect to Louisiana taxpayers. Commissioner v. Hyman, 135 F. 2d 49, 50 (1943); Saenger v. Commissioner, 69 F. 2d 633 (1934); Smith v. Donnelly, 65 F. Supp. 415 (ED La. 1946). See Henderson’s Estate v. Commissioner, 155 F. 2d 310 (CA5 1946), and Gonzalez v. National Surety Corp., 266 F. 2d 667, 669 (CA5 1959).

Thus, with respect to community income, as with respect to other income, federal income tax liability follows ownership. Blair v. Commissioner, 300 U. S. 5, 11-14 (1937). See Hoeper v. Tax Comm’n, 284 U. S. 206 (1931). In the determination of ownership, state law controls. “The state law creates legal interests., but the federal statute determines when and how they shall be taxed.” Burnet v. Harmel, 287 U. S. 103, 110 (1932); Morgan v. Commissioner, 309 U. S. 78, 80-81 (1940); Helvering v. Stuart, 317 U. S. 154, 162 (1942); Commissioner v. Harmon, 323 U. S. 44, 50-51 (1944) (Douglas, J., dissenting); see Commissioner v. Estate of Bosch, 387 U. S. 456 (1967). The dates of the cited cases indicate that these principles are long established in the law of taxation.

Ill

This would appear to foreclose the issue for the present cases. Nevertheless, because respondents and the Court of Appeals stress the evanescent nature of the wife’s interest in community property in Louisiana, a review of the pertinent Louisiana statutes and decisions is perhaps in order.

Every marriage contracted in Louisiana “superinduces of right partnership or community of acquets or gains, if there be no stipulation to the contrary,” La. Civ. Code Ann., Art. 2399 (1971). . “This partnership or community consists of the profits of all the effects of which the husband has the administration and' enjoyment, either of right or in fact, of the produce of the reciprocal industry and labor of both husband and wife, and of the estate which they may acquire during the marriage, either by donations made jointly to them both, or by purchase, or in any other similar way, even although the purchase be only in the name of one of the two and not of both, because in that case the period of time when the purchase is made is alone attended to, and not the person who made the purchase. . . .” Art. 2402. The debts contracted during the marriage “enter into the partnership or community of gains; and must be acquitted out of the common fund . . . Art. 2403. “The husband is the head and master of the partnership or community of gains; he administers its effects, disposes of the revenues which they produce, and may alienate them by an onerous title, without the consent and permission of his wife.” Also “he may dispose of the movable effects by a gratuitous and particular title, to the benefit of all persons.” Art. 2404. The same article, however, denies him the power of conveyance, “by a gratuitous title,” of community immovables, or of the whole or a quota of the movables, unless for the children; and if the husband has sold or disposed of the common property in fraud of the wife, she has an action against her husband's heirs. At the dissolution of a marriage “all effects which both husband and wife reciprocally possess, are presumed common effects or gains . . . .” Art. 2405. At dissolution, “The effects which compose the partnership or community of gains, are divided into two equal portions between the husband and thé wife, or between their heirs . . . Art. 2406. “It is understood that, in the partition of the effects of the partnership' or community of gains, both husband and wife are to be equally liable for their share of the debts contracted during the marriage, and not acquitted at the time of its dissolution.” Art. 2409. Then the wife and her heirs or assigns may “exonerate themselves from the debts contracted during the marriage, by renouncing the partnership or community of gains.” Art. 2410. And the wife “who renounces, loses every sort of right to the effects of the partnership or community of gains” except that “she takes back all her effects, whether dotal or extradotal.” Art. 2411.

The Louisiana court has described and forcefully stated the -nature of the community interest. In Phillips v. Phillips, 160 La. 813, 825-826, 107 So. 584, 588 (1926), it was said:

“The wife’s half interest in the community property is not a mere expectancy during the marriage; it is not transmitted to her by or in consequence of a dissolution of the community. The title for half of the community property is vested in the wife the moment it is acquired by the community or by the spouses jointly, even though it' be acquired in the name of only one of them. . . . There are loose expressions, appearing in some of the. opinions rendered by this court, to the effect that the wife’s half interest in the community property is only an expectancy, or a residuary interest, until the community is dissolved- and liquidated. But that is contrary to the provisions of the Civil Code . . . and is contrary to the rule announced in every decision of this court since the error was first committed . . . .”

Later, in Succession of Wiener, 203 La. 649, 14 So. 2d 475 (1943), a state inheritance tax case, the court, after referring to Arts. 2399 and 2402 of the Civil Code, said:

“That this community is a partnership in which the husband and wife own equal shares, their title thereto vesting at the very instant such property is acquired, is well settled in this state . . . .”
“The conclusion we have reached in this ease is.in keeping with .the decision of the United States Supreme Court in the case of Bender v. Pfaff, supra, where that court recognized that under the law of Louisiana the wife is not only vested with the ownership of half of the community property from the moment it is acquired, but is likewise the owner of half of the community income. . . .” 203 La., at 657 and 662, 14 So. 2d, at 477 and 479.

After reviewing joint tenancy and tenancy by the entirety known to the common law, the court observed:

“In Louisiana, the situation is entirely different, for here the civil law prevails, and the theory of the civil law is that the acquisition of all property during the marriage is due to the joint or common efforts, labor, industry, economy, and sacrifices of the husband and wife; in her station the wife is just as much an agency in acquiring this property as is her husband. In Louisiana, therefore, the wife's rights in and to the community property do not rest upon the mere gratuity of her husband; they are just as great as his and are entitled to equal dignity. . . . She is the half-partner and owner of all acquisitions made during the existence of the community, whether they be property or income. . . .
“It is true that in weaving this harmonious commercial partnership around the intimate and sacred marital relationship, the framers of our law and its codifiers saw fit, in their wisdom, to place the hus-„ band at the head of the partnership, but this did not in any way affect the status of the property or the wife’s ownership of her half thereof. . . . And the husband was made the managing partner of the community and charged with the administration of its effects, as well as with the alienation of its effects and revenues by onerous title, because he was deemed the best qualified to act.” 203 La., at 665-667, 14 So. 2d, at 480-481.

The court then outlined in detail the various protections afforded by Louisiana law to the wife and concluded:

“It is obvious, therefore, that the wife’s interest in the community property in Louisiana does not spring from any fiction of the law or from any gift or act of generosity on the part of her husband but, instead, from an express legal contract of partnership entered into at the time of the marriage. There is no substantial difference between her interest therein and the interest of an ordinary member of a limited or ordinary partnership, the control and management of whose affairs has, by agreement, been entrusted to a managing partner. The only real difference is that the limitations placed on the managing partner in the community partnership are fixed by law, while those placed on the managing partner in an ordinary or limited partnership are fixed by convention or contract.” 203 La., at 669, 14 So. 2d, at 481-482.

The husband thus is the manager and agent of the Louisiana community, but his powers as manager do not serve to defeat the ownership rights of the wife.

These principles repeatedly have found expression in Louisiana cases. United States Fidelity & Guaranty Co. v. Green, 252 La. 227, 232-233, 210 So. 2d 328, 330 (1968); Gebbia v. City of New Orleans, 249 La. 409, 415-416, 187 So. 2d 423, 425 (1966); Azar v. Azar, 239 . La. 941, 946, 120 So. 2d 485, 487 (1960); Messersmith v. Messersmith, 229 La. 495, 507, 86 So. 2d 169, 173 (1956) ; Dixon v. Dixon’s Executors, 4 La. 188 (1832).

This Court recognized these Louisiana community property principles in the Wiener estate's federal estate tax litigation. Fernandez v. Wiener, 326 U. S. 340 (1945). There the inclusion in the decedent’s gross estate of the entire community property was upheld for ■ purposes of the federal estate tax which is an excise tax. Mr. Chief Justice Stone noted the respective interests of the spouses when, in the following language, he spoke of the effect of death:

“As we have seen, the death of the husband of the Louisiana marital community not only operates to transfer his rights in his share of the community to his heirs or those taking under his will. It terminates his expansive and sometimes profitable control over the wife’s share, and for the first time brings her half of the property into her full and exclusive possession, control and enjoyment. The cessation of these extensive powers of the husband, even though they were powers over property which he never ‘owned,’ and the establishment in the wife of new powers of control over her share, though it was always hers, furnish appropriate occasions for the imposition of an excise tax.
“Similarly, with the death of the wife, her title or ownership in her share of the • community property ends, and passes to her heirs or other appointees. More than this, her death, by ending the marital community, liberates her husband’s share from the restrictions which the existence of the community had placed upon his control of it. •. . .
“This redistribution of powers and restrictions upon power is brought about by death notwithstanding that the rights in the property subject to these powers and restrictions were in every sense ‘vested’ from the moment the community began. . . 326 U. S., at 355-356.

Thus the Louisiana statutes and cases also seem to foreclose the claims advanced by the respondents.

IV

Despite all this, despite the concession that the wife’s interest in the community property is not a mere expectancy, and despite the further concession that she has a vested title in, and is the owner of, a half share of the community income, respondents take the position that somehow the wife’s interest is insufficient to make her liable for federal income tax computed on that half of the community income.

It is said that her right to renounce the community and to place herself in the same position as if it had never existed is substantive; that the wife is not personally liable for a community debt; that it is really the community as an entity, not the husband or the wife, that, owns the property; and that Seaborn and it's companion cases were concerned only with the right to split income, not with the. obligation so to do. It is also said that the wife’s dominion over the community property is nonexistent in Louisiana; that the husband administers. the community’s affairs as he sees fit; that he is not required to account to the wife, even for mismanagement, unless he enriches his estate at her expense by fraud; that she has no way to terminate the community other than by suit for separation, and then only by showing mismanagement on his part that threatens her separate estate; that her status is imposed by law, as contrasted with a commercial partnership where status is consensual; that she has no legal right to obtain the information necessary to file a tax return or to obtain the funds with which to pay the tax'; and that Robbins authorizes taxing the whole of the community income to the husband. The same arguments, however, were advanced in Seaborn, 282 U. S., at 103-105, and in its companion cases, 282 U. S., at 119, 123, and 128, and were unavailing there, 282 U. S., at 111-113. They do not persuade us here. Specifically, the power to renounce, granted by Article 2410, is of no comfort to the wife-taxpayer. As Judge Forrester aptly expressed it, 51 T. C., at 646, Mrs. Mitchell’s renunciation “came long after her liabilities for the annual income-taxes here in issue had attached.” Further, “[t]his right of the wife to renounce or repudiate must not be misconstrued as an indication that she had never owned and possessed her share, for that fact was not denied; but she did have, under the principles of community property, the right to revoke her ownership and possession. . . .” 1 W. deFuniak, Principles of Community Property § 218, p. 621 (1943). .

The results urged by the respondents might follow, of course, in connection with a tax or other, obligation the collection of which is controlled by state law. But an exempt status under state law does not bind the federal collector. Federal law governs what is exempt from federal levy.

Section 6321 of the 1954 Code imposes a lien for the income tax “upon all property and rights to property . . . belonging to” the person liable for the tax. Section 6331 (a) authorizes levy “upon all property and rights to property . . . belonging to such person .'. . .” What is exempt from levy is specified in § 6334 (a). Section 6334 (c) provides, “Notwithstanding any other law of the United States, no property or rights to property shall be exempt from levy other than the property specifically made exempt by subsection (a).” This language is specific and it is clear and there is no room in it for automatic exemption of property that happens to be exempt from state levy under state lawi United States v. Bess, 357 U. S. 51, 56-57 (1958); Shambaugh v. Scofield, 132 F. 2d 345 (CA5 1942); United States v. Heffron, 158 F. 2d 657 (CA9), cert. denied, 331 U. S. 831 (1947); Treas. Reg. § 301.6334-1 (c). See Birch v. Dodt, 2 Ariz. App. 228, 407 P. 2d 417 (1965). As a consequence, state law which exempts a husband’s interest in community property from his premarital debts does not defeat collection of his federal income tax liability for premarital tax years from his interest in the community. United States v. Overman, 424 F. 2d 1142, 1145 (CA9 1970); In re Ackerman, 424 F. 2d 1148 (CA9 1970). The result as to Mrs. Mitchell and Mrs. Angello is no different.

It must be conceded that these cases are “hard” cases and exceedingly unfortunate for the two women taxpayers. Mrs. Mitchell loses the benefit of her inheritance from her mother, an inheritance that ripened after the dissolution of her marriage. Mrs. Angello loses her beneficiary interest in her deceased husband’s life insurance policy. This takes .place with each wife not really aware of the community tax situation, and not really in a position to ascertain the details of the community income. The law, however, is clear. The taxes were due. They were not paid. Returns were not even filed. The “fault,” if fault there be, lies with the four taxpayers and flows from the settled principles of the community property system. If the wives were to prevail here, they would have the best of both worlds. .

The remedy is in legislation. An example is Pub. L. 91-679 of January 12, 1971, 84 Stat. 2063, adding to the Code subsection (e) of § 6013 and the final sen- ■ tence of § 6653 (b). These amendments afford relief to an innocent spouse, who was a party to a joint return, with respect to. omitted income and fraudulent underpayment. Relief of that kind is the answer to the respondents’. situation.

The judgment in each case is reversed.

It is so ordered.

       Art. 2410. “Both the wife and her heirs or assigns have the privilege of being able to exonerate themselves from the debts contracted during the marriage, by renouncing the partnership or community of gains.”

       Accord, with respect to Texas, law, Ramos v. Commissioner, 429 F. 2d 487 (CA5 1970).

       Internal Revenue Code of 1939, §§ 11 and 12; Revenue Act of 1938, §§ 11 and 12, 52 Stat. 452, 453; Revenue Act of 1936, §§ 11 and 12, 49 Stat. 1653; Revenue Act of 1934, §§ 11 and 12, 48 Stat. 684; Revenue Act of 1932, §§ 11 and 12, 47 Stat. 174; Revenue Act of 1928, §§ 11 and 12, 45 Stat. 795, 796; Revenue Act of 1926, §§ 210 and 211, 44 Stat. 21; Revenue Act of 1924, §§ 210 and 211, 43 Stat. 264, 265; Act of March 4, 1923, 42 Stat. 1507; Revenue Act of 1921, §§ 210 and 211, 42 Stat. 233; Revenue Act of 1918, §§ 210 and 211, 40 Stat. 1062; Revenue Act of 1917, §§ 1 and 201, 40 Stat. 300, 303.

       Angello Brief 2.

       Angello Brief 2, 9.

       Of course, as Baron Rolfe long ago observed, hard cases “are apt to introduce bad law.” Winterbottom v. Wright, 10 M. & W. 109, 116, 152 Eng. Rep. 402, 406 (1842).


author: Per Curiam. Mr. Justice Marshall, Mr. Justice Stewart,

text:
    CONNELL v. HIGGINBOTHAM et al.
    No. 79.
    Argued November 19, 1970
    Decided June 7, 1971

      Sanford Jay Rosen argued the cause for appellant. With him on the brief were Tobias Simon and Melvin L. Wulf.

      Stephen Marc Slepin argued the cause for appellees. With him on the brief were Rivers Buford, Jr., and James W. Market.

   Per Curiam.

This is an appeal from an action commenced in the United States District Court for the Middle District of Florida challenging the constitutionality of §§ 876.05-876.10 of Fla. Stat. (1965), and the various loyalty oaths upon which appellant’s employment as a school teacher was conditioned.- The three-judge U. S. District Court declared three of the five clauses contained in the oaths to be unconstitutional, and enjoined the State from conditioning employment on the taking of an oath including the language declared unconstitutional. The appeal is from that portion of -the District Court decision which upheld the remaining two clauses in the oath: I do hereby solemnly swear or affirm (1) “that I will support the Constitution of the United States and of the State of Florida”; and (2) “that I do not believe in the overthrow ' of the Government of- the United States or of the State of Florida by force or violence.”

On January 16, 1969, appellant made application for a teaching position with the Orange County school system. She was interviewed by the principal of Callahan Elementary School, and on January 27, 1969, appellant was employed as a substitute classroom teacher in the fourth grade of that school. Appellant was dismissed from her teaching position on March 18, 1969, for refusing to sign the loyalty oath required of all Florida public employees, Fla. Stat. § 876.05.

The first' section of the oath upheld by the District Court, requiring all applicants to pledge to support the Constitution of the United States and of the State of Florida, demands no more of Florida public employees than is required of all state and federal officers. U. S. Const., Art, VI, cl. 3. The validity of this section of the oath would appear settled. See Knight v. Board of Regents, 269 F. Supp. 339 (1967), aff’d per curiam, 390 U. S. 36 (1968); Hosack v. Smiley, 276 F. Supp. 876 (1967), aff’d per curiam, 390 U. S. 744 (1968); Ohlson v. Phillips, 304 F. Supp. 1152 (1969), aff’d per curiam, 397 U. S. 317 (1970).

The second portion of the oath, approved by the District Court, falls within the ambit of decisions of this Coúrt proscribing summary dismissal from public employment without hearing or inquiry required by due process. Slochower v. Board of Education, 350 U. S. 551 (1956). Cf. Nostrand v. Little, 362 U. S. 474 (1960); Speiser v. Randall, 357 U. S. 513 (1958). /That portion of the oath, therefore, cannot stand.

Affirmed in part, and reversed in part.

Mr. Justice Marshall,

with whom Mr. Justice Douglas and Mr. Justice Brennan join,

.concurring in the result. '

I agree that Florida may require state employees to affirm that they “will support the Constitution of the United States and of the State of Florida.” Such a forward-looking, promissory oath of constitutional support does not in my view offend the First Amendment’s com-, mand that the grant or denial of governmental benefits cannot be made to turn on the political viewpoints or affiliations of a would-be beneficiary. I also agree that Florida may not. base its employment deeisiotis, as -to state teachers or any other hiring category, oti an applicant’s willingness vel non to affirm “that I do.nbt believe - in the overthrow of the Government of the United States or of the State of Florida by force or violence.”

However, in' striking down the latter Oath, the Court has left the clear implication that its objection runs, .not-against Florida’s determination to exclude those who “believe in the overthrow,” but only against the State’s decision to regard unwillingness to take the oath as conclusive, irrebuttable proof of the proscribed belief. Due procéss may rightly be invoked to condemn Florida’s mechanistic approach to the question of pro. f. But in my view it simply does' not matter what kind of evidence .,a State can muster to show that a job applicant “believe [s] • in the overthrow.” For state action injurious to an individual cannot be justified on account of the nature of the individual’s beliefs, whether he “believe[s] in the overthrow” or has any other . sort of belief. “If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion . . . Board of Education v. Barnette, 319 U. S. 624, 642 (1943).

I would strike down Florida’s “overthrow” oath plainly and simply on the ground that belief as such cannot be the predicate of governmental action.

Mr. Justice Stewart,

concurring in part and dissenting in part.

The Court upholds as clearly constitutional the first clause of the oath as it comes to us from the three-judge District Court: “I will support the Constitution of the United States and of the State of Florida . . . .” With this ruling I fully agree.

As to the second contested clause of the oath, “I do not believe in the overthrow of the Government of the United States or of the State of Florida by force or violence,” I would remand to the District Court to give the parties an opportunity to get from the state courts an authoritative construction of the meaning of the clause. If the clause embraces the teacher’s philosophical or political beliefs, I think it is constitutionally infirm. Baird v. State Bar of Arizona, 401 U. S. 1, 9-10 (concurring opinion); Board of Education v. Barnette, 319 U. S. 624, 642; Cantwell v. Connecticut, 310 U. S. 296, 303-304. If, on the other hand, the clause does no more than test whether the first clause of the oath can be taken “without mental reservation or purpose of evasion,” I think it is constitutionally valid. Law Students Civil Rights Research Council, Inc. v. Wadmond, 401 U. S. 154, 163-164. The Florida courts should, therefore, be given an opportunity to construe the clause before the federal courts pass on its constitutionality. See Fornaris v. Ridge Tool Co., 400 U. S. 41, 43-44; Reetz v. Bozanich, 397 U. S. 82, 85-87; Railroad Comm’n v. Pullman Co., 312 U. S. 496, 498-501.

The Supreme Court of Florida has explicitly held that the various clauses of- the oath are severable. Cramp v. Board of Public Instruction, 137 So. 2d 828, 830-831.

       The clauses declared unconstitutional by the court below required the employee to swear: (a) “that I am not a member of the Communist Party”; (b) “that I have not and will not lend my aid, support, advice, counsel or influence to the Communist Party”; and (c) “that I am not a member of any organization or party which believes in or teaches, directly or indirectly, the overthrow of the Government of the United States or of Florida by force or violence.”


author: Per Curiam.

text:
    JOHNSON v. MISSISSIPPI
    No. 5485.
    Argued April 21, 1971
    Decided June 7, 1971

      Stephen W. Porter argued the' cause for petitioner. With him on the brief was Richard B. Ruge.

      G. Garland Lyell, Jr., Assistant Attorney General of Mississippi, argued the cause for respondent. With him on the brief was A. F. Summer, Attorney General.
   Per Curiam.

Petitioner, a defendant in a criminal proceeding in the Circuit Court of Grenada County, Mississippi, was summarily convicted of criminal contempt-by Judge Marshall Perry of that court.

The alleged contempt occurred on January 23, 1967. It occurred after Judge ..Perry directed .the bailiffs and deputies to keep all people entering the courtroom from walking between the space reserved for jurors-and .county officers and the judge, while jurors were.being called, A deputy attempted to route petitioner around the área in question whereupon, according to the orders adjudging petitioner in contempt, he said:

“What the Hell do you mean go around.
“Said Johnson, defendant; then continued to stand and look around over the room, disrupting the court proceedings.”

Judge Perry, however, did not take instant action ón the alleged contempt but only had petitioner removed from the courtroom. The nqxt day, January 24, he ordered that process issue against petitioner directing him to' appear February 1, 1967, an action he later rescinded. On January 27,. 1967, petitioner, an active civil rights worker, asked through his attorney that Judge Perry recuse himself, asserting: .

“a. That Judge Perry is personally prejudiced against the defendant and against the civil rights organizations he represents.
“b. That Judge Perry is personally prejudiced against the lawyers’ organization defending Mr. Johnson, namely the Lawyers’ Committee For Civil Rights .Under Law.”

The motion was supported by two affidavits of lawyers that Judge Perry, through charges made to grand juries in his courtroom, revealed deep prejudice against civil rights workers and civil rights lawyers.

No hearing was ever granted on that motion.

When petitioner was removed from the courtroom on January 23, 1967, his lawyer, one Rowe, objected to Judge Perry’s action. Judge Perry ordered Rowe arrested and charged with criminal contempt. On January 31, 1967, a federal court in Mississippi issued a temporary restraining order enjoining trial of the contempt charge against Rowe; and we áre advised that that charge has never been further prosecuted.

On February 1, 1967, petitioner filed a petition for removal of the contempt proceedings in his case to the federal court. On November 14, 1968, that court remanded the case to Judge Perry’s court. Thereupon Judge Perry ordered that , a $1,000 bond be posted guaranteeing petitioner’s -appearance on January 27, 1969, to answer the contempt charge.

On January 22, 1969, petitioner and others filed suit in the federal court to enfoin trials of either Negroes or women in the Circuit Court of Grenada County until such time as Negroes and women were not systematically excluded from juries. Judge Perry was named as a defendant. The federal court held a hearing on January 24, 1969, and on January 25, 1969, temporarily enjoined Judge Perry from discrimination “by reason of race, color, or sex” in jury selections.

' Two days later, January 27,1969, Judge Perry adjudged petitioner in contempt and sentenced him to four months, and set bail at $2,000 pending appeal. He denied petitioner’s request for a hearing on the merits and for an opportunity to show why Judge Perry should recuse himself. On appeal the Supreme Court of Mississippi affirmed the contempt but reduced the sentence to one month. 233 So. 2d 116. The case is here on a petition for a writ of certiorari which we granted. 400 U. S. 991.

Instant action may be necessary where the misbehavior is in the presence of the judge and is known to him, and' where immediate corrective steps áre needed to restore order and maintain the dignity and authority of the court. Cooke v. United States, 267 U. S. 517, 534; Harris v. United States, 382 U. S. 162, 165. The contempt power is within the judge’s “arsenal of authority”- which we recently described in Illinois v. Allen, 397 U. S. 337. But there was no iristant action here, a week expiring before removal of the case to the federal court was sought.

Moreover, from this record we cannot be sure that Judge Perry was personally aware of the contemptuous action when it occurred. The State’s version of what happened is described as follows in its motion that petitioner show cause why he should not be punished for contempt:

“[T]he Sheriff and Deputy Sheriff, Howard Hayward seized Robert Johnson and immediately carried him before the Circuit Judge, Marshall Perry, and related to the Judge what had transpired.” (Italics added.)

As we said in In re Oliver, 333 U. S. 257, 275-276,

“If some essential elements of the offense are not personally observed by the judge, so that he must depend upon statements made by others for his knowledge about these essential elements, due process requires . . . that the accused be accorded notice and a fair hearing . . . .”

And see In re Savin, 131 U. S. 267, 277.

It would, therefore, seem that a fair hearing would entail the opportunity to show that the version of the event related to the judge was inaccurate, misleading, or incomplete.

We mention this latter point because our remand will entail a hearing before another judge. In concluding that Judge Perry should have recused himself, we do not rely solely on the affidavits filed by the lawyers reciting intemperate remarks of Judge Perry, concerning civil rights litigants. Beyond all that was the fact that Judge Perry immediately prior to the adjudication of contempt was a defendant in one of petitioner’s civil rights suits and a losing party at that.' From that it is plain that he was so enmeshed in matters involving petitioner as to make it most appropriate for another judge to sit. Trial before “an- unbiased judge” is essential , to due process. Bloom v. Illinois, 391 U. S. 194, 205; Mayberry v. Pennsylvania, 400 U. S. 455, 465.

We accordingly reverse the judgment below and remand the case for proceedings not inconsistent with this opinion.

Reversed and remanded.