Felix Frankfurter

“ Poulos v. New Hampshire
Argued: Feb. 3, 1953. --- Decided: April 27, 1953
Mr. Justice FRANKFURTER, concurring in the result.
I am constrained to protest against the Court's discussion under first because it deals with an issue that is not here.
In no area of adjudication is the adage 'silence is golden' more pertinent, when there is no duty to speak, than in the series of problems to which a judicial reconciliation between liberty and order gives rise. It is more than a counsel of wisdom. When there is no duty to speak on such issues there is a duty not to speak. ”

“ It would trivialize that Clause to bar New Hampshire from determining that legal issues raised by denial of a license, under a constitutionally valid system, should not be adjudicated in the first instance in police courts or, in any event, should be determined in an appropriately designed procedure and not as a defense to a penal action. ”

“ In reaching this conclusion the New Hampshire Supreme Court did not construe the ordinance; it did not, in the technical meaning of the phrase, apply the statute. 'We see no reason', said that Court, 'for overruling the law as stated in this jurisdiction that a wrongful refusal to license is not a bar to a prosecution for acting without a license.' State v. Poulos, supra, 97 N.H. at page 354, 88 A.2d at page 861. What the Supreme Court of New Hampshire enforced was not a part of the licensing ordinance but the general procedural law of New Hampshire. ”