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January 25, 1954


Appeal, No. 94, March T., 1953, from judgment of Superior Court, April T., 1952, No. 170, affirming judgment of Court of Quarter Sessions of Allegheny County, Oct. Sessions, 1950, No. 764, in case of Commonwealth of Pennsylvania v. Steve Nelson, Judgment reversed; reargument refused April 27, 1954.


Victor Rabinowitz, of the New York Bar, with him Hymen Schlesinger and Louis F. McCabe, for appellant.

William F. Cercone, Assistant District Attorney, with him James F. Malone, Jr., District Attorney, for appellee.

William Allen Rahill and Julian E. Goldberg ; and Newell G. Alford, Jr., Herbert Monte Levy and Arthur Garfield Hays, of the New York Bar; filed a brief for the American Civil Liberties Union et al., amici curiae.

Before Stern, C.j., Stearne, Jones, Bell and Chidsey, JJ.

Author: Jones

[ 377 Pa. Page 60]


The appellant Nelson was convicted in the Court of Oyer and Terminer of Allegheny County on all twelve counts of an indictment charging him, inter alia, with an attempt to overthrow the government of the United States by force and violence contrary to the Pennsylvania Sedition Act of 1919, re-enacted as a part of

[ 377 Pa. Page 61]

Pennsylvania's Criminal Code of 1939: see Section 207 of the Act of June 24, 1939, P.L. 872, 18 PS § 4207. The prosecution's evidence consisted in large part of proof of the defendant's membership and official position in the Communist Party, his attendance at Party meetings and the introduction of a mass of documentary evidence consisting of books, papers and pamphlets advocating, teaching or promulgating Communist doctrine, found in the Party headquarters and bookstore in Pittsburgh of which the defendant was a supervising principal. The defendant's motions for a new trial and in arrest of judgment were denied by the court en banc in an opinion written by the trial judge. Nelson was thereupon sentenced to pay a fine of $10,000, the costs of prosecution (amounting in taxable items to $13,000) and to undergo imprisonment for a term of 20 years. On appeal from the judgment of sentence, the Superior Court affirmed per curiam: see 172 Pa. Superior Ct. 125, 151, 92 A.2d 431. Upon petition of the defendant, we allowed an appeal as our statute required us to do because of the constitutional questions involved: see Act of Assembly of June 24, 1895, P.L. 212, Sec. 7 (e), 17 PS § 190; also, Commonwealth v. Gardner, 297 Pa. 498, 499, 147 A. 527, and Commonwealth v. Caulfield, 211 Pa. 644, 61 A. 243.

In support of his motion for a new trial, the appellant, in addition to his contentions on constitutional grounds,*fn1 cites numerous instances of alleged trial error which raise serious questions as to whether his conviction resulted from a fair and impartial trial, --

[ 377 Pa. Page 62]

    one devoid of bias and prejudice. As the defendant has, at all times, admitted his membership and position in the Communist Party, obviously his views are so extremely unpopular with a vastly preponderant majority of the citizenry of our Country as to amount virtually to an anathema in the public mind. That very circumstance makes it especially incumbent upon a court, in reviewing the conviction of such a person for an alleged offense against the body politic, to scrutinize the record with utmost care to see that he received a trial that fully comports with our concept of traditional

[ 377 Pa. Page 63]

    due process -- quite apart from any question of trial error in the admission or rejection of evidence or in alleged excesses or deficiencies in the court's instructions to the jury.

Thus, the appellant charges that he was refused a reasonable postponement of the trial, which he sought in order to pursue his effort to obtain counsel, and was thereby denied due process of law, citing Powell v. Alabama, 287 U.S. 45; that the trial judge, who was an incorporator, officer and member of the executive committee of a local nonprofit corporation, known as "Americans Battling Communism", which had publicly demanded the defendant's indictment, deprived him of due process by refusing to disqualify himself, citing Tumey v. Ohio, 273 U.S. 510, 534, and Snyder's Case, 301 Pa. 276, 290, 152 A. 33; that the prosecutor in the information upon which the indictment was founded and chief witness against the defendant at the trial was a member of the same court in which the indictment was returned and the trial had; and that the district attorney indulged in improper, prejudicial and inflammatory remarks throughout the trial and, particularly, in his address to the jury. These and other matters of fundamental importance to a question of due process, if true, appear to have sufficient factual basis in the record to require that they be pondered conscientiously and well before being passed over as unsubstantial.

But, with any or all of that, we need not now be concerned. The appellant's principal and cogent contention is that the Pennsylvania Sedition Act was suspended by operation of law upon the enactment by Congress of Title I of the Act of June 28, 1940, c. 439, 54 Stat. 670, known as the Smith Act*fn2 which defines

[ 377 Pa. Page 64]

    sedition against the United States and prescribes punishments therefor. If the Pennsylvania Act was so superseded, then the defendant's conviction cannot be sustained. Accordingly, we are met at the outset with this question which was pressed timely in the trial court, was urged upon the Superior Court on appeal and has been stressed before us. In our opinion, the contention is well founded. Consequently, the motion in arrest of judgment should have been granted and the indictment quashed.

The question is obviously one of greatest importance. It not only revolves about a serious offense allegedly committed against the Government of the United States but it also calls for a consideration and understanding of the relationship between the Federal Government and the several States and the limitations upon the actions of each in respect of the other. As the question is basic to the appeal, our plain and immediate duty, therefore, is to decide it in accordance with what we take to be the applicable and controlling principles of law as declared by the Supreme Court of the United States. Article VI of the Federal Constitution provides that "This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding."

Under our federal system, as is generally known, there are functions of government which a State may not exercise because such matters have been committed, either expressly or impliedly, by the Constitution of the United States to the care of the Federal Government: see Tennessee v. Davis, 100 U.S. 257, 266. A State may not, for instance, set up its own postal

[ 377 Pa. Page 65]

    system, coin money, impose duties on imports or exports, declare war, make treaties or do a number of things which are exclusively within the federal province. There are, however, other matters with respect to which both the Federal Government and a State may concurrently legislate. But, even there, if the inference is reasonably deducible that it was the purpose of Congress by its enactment to pre-empt the particular field, State legislation on the same subject is automatically suspended. This is so regardless of the validity in general of the state statute which is simply superseded and, thus, rendered inefficacious so long as the federal statute endures.

The criteria for determining the congressional purpose in such connection may be evidenced in several ways as was indicated by the Supreme Court in Rice v. Sante Fe Elevator Corp., 331 U.S. 218, 230, where it was said that "The scheme of federal regulation may be so pervasive as to make reasonable the inference that Congress left no room for the States to supplement it. Pennsylvania R. Co. v. Public Service Comm'n, 250 U.S. 566, 569; Cloverleaf Butter Co. v. Patterson, 315 U.S. 148. Or the Act of Congress may touch a field in which the federal interest is so dominant that the federal system will be assumed to preclude enforcement of state laws on the same subject. Hines v. Davidowitz, 312 U.S. 52. Likewise, the object sought to be obtained by the federal law and the character of obligations imposed by it may reveal the same purpose. Southern R. Co. v. Railroad Commission, 236 U.S. 439; Charleston & W.C.R. Co. v. Varnville Co., 237 U.S. 597; New York Central R. Co. v. Winfield, 244 U.S. 147; Napier v. Atlantic Coast Line R. Co., supra. Or the state policy may produce a result inconsistent with the objective of the federal statute. Hill v. Florida, 325 U.S. 538."

[ 377 Pa. Page 66]

As was also recognized in the Rice case, supra, -- "It is often a perplexing question whether Congress has precluded state action or by the choice of selective regulatory measures has left the police power of the States undisturbed except as the state and federal regulations collide." But, the congressional purpose to preempt a particular field is not made to depend upon a positively expressed legislative intent to that end. Such purpose can as readily be evidenced objectively by what the circumstances reasonably indicate as being necessary for the complete and unhampered effectuation of the federal aims and objectives. "For when the question is whether a Federal act overrides a state law, the entire scheme of the statute must of course be considered and that which needs must be implied is of no less force than that which is expressed": Savage v. Jones, 225 U.S. 501, 533 (Emphasis supplied). So readily does the inference of federal pre-emption arise, when the National Government and a State enter the same field of legislative activity, that concurrent power to enforce the Eighteenth Amendment to the Federal Constitution was expressly included therein in order that it be not inferred that the power of the Federal Government in such regard was exclusive even though "each State possessed that power in full measure prior to the Amendment" and the Federal Government did not. Such was the observation made by Mr. Chief Justice Taft in speaking for the Supreme Court in United States v. Lanza, 260 U.S. 377, 381, when he said, -- "... the probable purpose of declaring a concurrent power to be in the States was to negative any possible inference that in vesting the National Government with the power of country-wide prohibition, state power would be excluded."

In Hines v. Davidowitz, 312 U.S. 52, the Supreme Court held Pennsylvania's Alien Registration Act of June 21, 1939, P.L. 652, 35 PS § 1801 et seq., to have

[ 377 Pa. Page 67]

    been suspended by Title III of the Act of Congress of June 28, 1940, c. 439, 54 Stat. 670, 673, cited as the "Alien Registration Act, 1940" although the federal statute contained no express declaration of congressional intent to supersede. (Incidentally, the Act of June 28, 1940, supra, whose Title III thus operated to suspend the Pennsylvania Alien Registration Act of 1939, is the same Act whose Title I, i.e., the Smith Act, is here involved as to its effect upon the Pennsylvania Sedition Act of 1939.) The grounds upon which the Supreme Court based its conclusion of federal preemption in the Hines case were (1) that the state legislation relating to local registration of nationals of foreign governments might involve international relations which, from the first, have called for broad national authority and (2) that such legislation dealt "with the rights, liberties, and personal freedoms of human beings", -- a field wherein the protection of such rights against unlawful invasion by a State depends ultimately upon the guarantees of the Fourteenth Amendment of the Federal Constitution. What Hines v. Davidowitz decided, as later appraised by the Supreme Court itself in Rice v. Santa Fe Elevator Corp., supra, was that "the [Alien Registration] Act of Congress... [touched] a field in which the federal interest is so dominant that the federal system will be assumed to preclude enforcement of state laws on the same subject."

On the basis of the Supreme Court decisions, the following propositions may, we believe, be reasonably postulated, -- (1) federal legislation can and sometimes does supersede state legislation even though cognate congressional intent has not been expressly declared; and (2) in the course of years there has grown up from many federal decisions on the subject of congressional statutory supersession of state legislation categories of situations in which such supersession

[ 377 Pa. Page 68]

    occurs. The answer, then, to the question of suspension of state legislation in a case such as the present depends upon whether the facts of the case fit the specifications of any of such categories.

One of the categories of supersession is when the field, in which both the Federal Government and the State have legislated, is of paramount importance to the Federal Government. What federal interest, in may be asked, could be more dominant than maintenance of the security of the Federal Government itself which the Smith Act was designed to vouchsafe against subversive political assaults? And what could be more hampering to the exercise of federal power in such connection than to have a State assume to prosecute what is in truth an affront to the National Government? We have already referred to the powers of the Federal Government derived through state concession, either expressly or impliedly, upon the adoption of the Constitution. But, wholly apart from that, the Federal Government has at all times possessed the inherent right to protect and defend itself against enemies domestic as well as foreign. The old saying that "Self preservation is the first law of nature" is as true of nations as it is of animal life. When, therefore, a State assumes to punish, as does the Pennsylvania statute here involved, sedition against the United States, it is intruding in a matter where the national interest is obviously paramount. It follows necessarily that the Federal Government's control of the field must be exclusive if it is to protect itself effectively and completely. And that means no sharing of the jurisdiction with the States.

The arrest of suspects by a State for indictment and trial on charges of sedition against the United States under a local statute could readily impair and even thwart the Federal Government's contemporaneous investigation of the alleged offenders. Indictees

[ 377 Pa. Page 69]

    under the Pennsylvania statute, for example, might well be but a part of a larger group spread over a number of States. The appropriate place for the indictment and trial of all such is best determined and selected by the Federal Government, alone, with its national jurisdiction and policies. And, Congress, in enacting the Smith Act, must have so recognized.

A state's jurisdiction of crime can extend only to acts committed within its borders. And, while the Pennsylvania statute proscribes sedition against either the Government of the United State or the Government of Pennsylvania, it is only alleged sedition against the United States with which the instant case is concerned. Out of all the voluminous testimony, we have not found, nor has anyone pointed to, a single word indicating a seditious act or even utterance directed against the Government of Pennsylvania. Indeed, it is difficult to conceive of an act of sedition against a State in our federated system that is not at once an act of sedition against the Government of the United States, -- the Union of the forty-eight component States. Conversely, the duty of suppressing sedition within a State rests directly upon the Federal Government by virtue of Article IV, Section 4, of the Constitution which charges the National Government with the duty of guaranteeing "to every State in this Union a Republican Form of Government." This positive constitutional mandate Congress undertook to carry out in the original Smith Act (54 Stat. 671) by expressly making it a crime for anyone to advocate, etc. the overthrow or destruction by force or violence of " any government in the United States" (Emphasis supplied). The same interdiction was expressed in the 1948 revision of the Smith Act (62 Stat. 808) as being applicable to the attempted overthrow or destruction of "the government of the United States or the government of any State, Territory, District or Possession

[ 377 Pa. Page 70]

    thereof, or the government of any political subdivision therein...." Federal pre-emption could hardly be more clearly indicated.

Nor is a State stripped of its means of self-defense by the suspension of its sedition statute through the entry of the Federal Government upon the field. There are many valid laws on Pennsylvania's statute books adequate for coping effectively with actual or threatened internal civil disturbances. As to the nationwide threat to all citizens, imbedded in the type of conduct interdicted by a sedition act, we are -- all of us -- protected by the Smith Act and in a manner more efficient and more consistent with the service of our national welfare in all respects.

The difference in the penalties respectively prescribed by the Smith Act and the Pennsylvania Sedition Act strongly argues that it was not the congressional purpose that, after enactment of the Smith Act, conflicting or disparate state statutes on the same subject should be called into play for the punishment of sedition against the United States. Under the Smith Act, as revised in 1948, the maximum sentences prescribed are six years and ten years depending upon the particular section of the Act under which conviction is had, i.e., Sec. 2384 or Sec. 2385 of Title 18 U.S.C. In the case now under review, Nelson received a sentence under the Pennsylvania statute of twenty years for his conviction of sedition against the United States. Such a disparity in the sentences prescribed for the same offense, if multiplied by further like instances from other States, could not help but confuse and hinder the attack on sedition which calls for uniform action on a national basis. Uniformity in the range of sentences imposable throughout the country for sedition against the Government of the United States is assured only by the exclusive use of the federal statute.

[ 377 Pa. Page 71]

If conviction under the state's statute for sedition against the Government of the United States were permitted to be operative in the face of the Smith Act, then double punishment for the same offense would be possible. Indeed, on the Commonwealth's theory, if each of the other forty-seven States had a Sedition Act like Pennsylvania's, one chargeable with sedition against the government of the United States could be indicted, convicted and punished in any or all of such States as were able to obtain service of their criminal process upon him, as well as by the Federal Government. In the present instance, after the appellant's conviction and sentence in the State Court, he, along with others, was indicted in the District Court of the United States for the Western District of Pennsylvania under the conspiracy section of the Federal Criminal Code*fn3 for conspiring to violate the Smith Act. All have since been tried and convicted, Nelson receiving a sentence of five years. The acts proven in the Federal Court to effectuate the alleged conspiracy consisted of practically the same matter as was offered against Nelson in the trial in the State Court. And, so, Nelson's offense has been independently passed upon by a Federal Court where it properly belongs. If the state conviction were to be upheld, the result would be that both the Federal Government and the State would punish the appellant for substantially the same alleged offense against the United States.

The court below cited United States v. Lanza, supra, which was concerned with the question of concurrent jurisdiction to enforce prohibition. That case obviously affords no support for the proposition that the Federal Government and the States have concurrent jurisdiction to punish sedition against the United States. The Eighteenth Amendment expressly provided

[ 377 Pa. Page 72]

    that "The congress and the several States shall have concurrent power to enforce this article by appropriate legislation." We have already seen the reason for that precautionary reservation to the States. Westfall v. United States, 274 U.S. 256, also cited by the court below, is wholly irrelevant. The manager of a state-bank member of the Federal Reserve was held to be criminally liable under both the Federal Reserve Act and the state law for his misapplication of the bank's funds. That was not a matter of the State punishing for a federal offense. The State's part was taking cognizance of and denouncing the separate affront to its own peace and dignity in the purely local offense of embezzlement while the Federal Government's concern was the vindication of the banking law to which the state bank was subject. Nor is Fox v. Ohio, 46 U.S. 410, authority for concurrent federal and state jurisdiction of the same offense. In that case there were two separate offenses, one federal and the other state. The counterfeiting was a crime against and constitutionally punishable solely by the Federal Government while the "imposture of passing a false coin" was "a private wrong" and a "cheat" punishable by the State.

Gilbert v. Minnesota, 254 U.S. 325 (1920), affords no basis for concluding that the Smith Act did not operate to suspend Pennsylvania's Sedition Statute. In the Gilbert case a state statute made it unlawful "'to interfere with or discourage the enlistment of men in the military or naval forces of the United States or of the State of Minnesota.'" The view of counsel for the State, which the Supreme Court adopted, was that "'The act... [did] not relate to the raising of armies for the national defense, nor to rules or regulations for the government of those under arms [a constitutionally exclusive federal power]. It [was] simply a local police measure, aimed to suppress a species of

[ 377 Pa. Page 73]

    seditious speech which the legislature of the State [had] found objectionable.'" As the Supreme Court further observed, -- "... the State knew the conditions which existed and could have a solicitude for the public peace, and this record justifies it. Gilbert's [anticonscription] remarks were made in a public meeting. They were resented by his auditors. There were protesting interruptions, also accusations and threats against him, disorder and intimations of violence. And such is not an uncommon experience. On such occasions feeling usually runs high and is impetuous; there is a prompting to violence and when violence is once yielded to, before it can be quelled, tragedies may be enacted. To preclude such result or a danger of it is a proper exercise of the power of the State." The irrelevancy of Gilbert v. Minnesota to a question such as is here presented was directly declared in Hines v. Davidowitz, supra, where the State's attorney general cited and relied upon the Gilbert case on the question of the suspension of Pennsylvania's Alien Registration Statute by the federal Alien Registration Act. In answer, the Supreme Court said (p. 67, fn. 18) that the Gilbert case was not "relevant to the issues here presented." On the basis of the foregoing, it seems clear that a State's exertion of its conceded power to punish a breach of the peace, as in the Gilbert case, does not carry with it the right to "conflict or interfere with, curtail or complement, the federal law, or enforce additional or auxiliary regulations": Hines v. Davidowitz, supra.

No question of federal supersession of a state statute was in issue in Dennis et al. v. United States, 341 U.S. 494, and, indeed, none could have been. The Dennis case was concerned exclusively with prosecutions under the Smith Act. No state statute was in any way involved. Nor was such question in issue when the Supreme Court upheld the validity of the

[ 377 Pa. Page 74]

    state statutes in Gitlow v. New York, 268 U.S. 652 (1925), and Whitney v. California, 274 U.S. 357 (1927). When the Gitlow and Whitney cases were before the Supreme Court, there was no federal statute proscribing sedition. The Sedition Act of 1918, contained in the Second Espionage Act (40 Stat. 553), had been repealed by Congress in 1921 (41 Stat. 1359, 1360) and it was not until the enactment of the Smith Act in 1940 that sedition was again made a federal crime. It is obvious, therefore, that a question of congressional supersession of a state statute in respect of the proscription of sedition against the United States could not have been raised between 1921 and 1940 and, naturally, none was raised or considered in either the Gitlow or the Whitney case. And, the same is equally true of Commonwealth v. Widovich, 295 Pa. 311, 145 A. 295 (1929), where appeals were dismissed and certiorari denied by the Supreme Court, sub nom., Muselin v. Pennsylvania, 280 U.S. 518 (1929); Commonwealth v. Lazar, 103 Pa. Superior Ct. 417, 157 A. 701, allocatur refused, 103 Pa. Superior Ct. xxv (1931), appeal dismissed, 286 U.S. 532 (1932); and Commonwealth v. Blankenstein, 81 Pa. Superior Ct. 340 (1923). The reason given by the Supreme Court for the dismissal of the appeals in the Widovich and Lazar cases was want of a substantial federal question. Certain it is that no question of federal supersession of the Pennsylvania Sedition Statute was or even could have been raised in those cases.

Unlike the Smith Act, which can be administered only by federal officers acting in their official capacities, indictment for sedition under the Pennsylvania statute can be initiated upon a information made by a private individual. The opportunity thus present for the indulgence of personal spite and hatred or for furthering some selfish advantage or ambition need only be mentioned to be appreciated. Defense of the

[ 377 Pa. Page 75]

Nation by law, no less than by arms, should be a public and not a private undertaking. It is important that punitive sanctions for sedition against the United States be such as have been promulgated by the central governmental authority and administered under the supervision and review of that authority's judiciary. If that be done, sedition will be detected and punished, no less, wherever it may be found, and the right of the individual to speak freely and without fear, even in criticism of the government, will at the same time be protected.

The pre-eminence of the National Government's interest in defending itself efficiently and effectively against sedition seems so evident as not to admit of any reasonable dispute. In enacting the Smith Act, Congress must have understood, and therefore have intended, that the federal legislation would supersede a state statute on the same subject. It will be recalled that in Hines v. Davidowitz one of the reasons for the supersession of the Pennsylvania Alien Registration Act by Title I of the Act of Congress of 1940 was that the state legislation affected "the rights, liberties, and personal freedoms of human beings...." Double and possibly multiple trials and punishments for the same offense would hardly do less. In De Jonge v. Oregon, 299 U.S. 353, 365, Mr. Chief Justice Hughes, speaking for a unanimous Court, wisely counseled that "The greater the importance of safeguarding the community from incitements to the overthrow of our institutions by force and violence, the more imperative is the need to preserve inviolate the constitutional rights of free speech, free press and free assembly in order to maintain the opportunity for free political discussion, to the end that government may be responsive to the will of the people and that changes, if desired, may be obtained by peaceful means. Therein lies the security of the Republic, the very foundation of constitutional

[ 377 Pa. Page 76]

    government." Surely, no more impressive admonition could have been given to the judiciary of our Country. If this counsel is to be heeded faithfully, it is essential that criminal sanctions for conduct hostile to our Federal Government be promulgated, imposed and controlled uniformly for the Nation as a whole. And that, only the central Government can accomplish.

The judgment is reversed and the indictment quashed.

Mr. Justice MUSMANNO and Mr. Justice ARNOLD took no part in the consideration or ...

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