1. A California statute barring issuance of commercial fishing
licenses to persons "ineligible to citizenship," which
classification included resident alien Japanese and precluded such
a one from earning his living as a commercial fisherman in the
ocean waters off the coast of the State,
held invalid
under the Federal Constitution and laws. Pp.
334 U. S.
412-422.
2. For purposes of decision by this Court, it may be assumed
that the object of the statute was to conserve fish in the coastal
waters of the State, or to protect citizens of the State engaged in
commercial fishing from the competition of Japanese aliens, or
both. P.
334 U. S.
418.
3. That the United States regulates immigration and
naturalization in part on the basis of race and color
classifications does not authorize adoption by a State of such
classifications to prevent lawfully admitted aliens within its
borders from earning a livelihood by means open to all other
inhabitants. Pp.
334 U. S.
418-420.
Page 334 U. S. 411
4. The Fourteenth Amendment and federal laws, 8 U.S.C. § 41,
embody a general policy that all persons lawfully in this country
shall abide "in any state" on an equality of legal privileges with
all citizens under nondiscriminatory laws. Pp.
334 U. S.
419-420.
5. Whatever may be the interest of the State or its citizens in
the fish in the 3-mile belt offshore, that interest does not
justify the State in excluding any or all aliens who are lawful
residents of the State from making a living by fishing in the ocean
off its shores, while permitting all other persons to do so. Pp.
334 U. S.
420-421.
6. Assuming their continued validity, cases sustaining state
laws barring land ownership by aliens ineligible to citizenship,
which rested on grounds peculiar to real property, cannot be
extended to control the decision in this case. P.
334 U. S.
422.
30 Cal. 2d
719,185 P.2d 805, reversed.
Petitioner brought an action in a state court for mandamus to
compel issuance to him of a commercial fishing license. A judgment
granting the writ was reversed by the State Supreme Court,
30 Cal. 2d
719, 185 P.2d 805. This Court granted certiorari. 333 U.S. 853.
Reversed, p.
334 U. S.
422.
Page 334 U. S. 412
MR. JUSTICE BLACK delivered the opinion of the Court.
The respondent, Torao Takahashi, born in Japan, came to this
country and became a resident of California in 1907. Federal laws,
based on distinctions of "color and race,"
Toyota v. United
States, 268 U. S. 402,
268 U. S.
411-412, have permitted Japanese and certain other
nonwhite racial groups to enter and reside in the country, but have
made them ineligible for United States citizenship. [
Footnote 1] The question presented is whether
California can, consistently with the Federal Constitution and laws
passed pursuant to it, use this federally created racial
ineligibility for citizenship as a basis for barring Takahashi from
earning his living as a commercial fisherman in the ocean waters
off the coast of California.
Page 334 U. S. 413
Prior to 1943, California issued commercial fishing licenses to
all qualified persons without regard to alienage or ineligibility
to citizenship. From 1915 to 1942, Takahashi, under annual
commercial fishing licenses issued by the State, fished in ocean
waters off the California coast, apparently both within and without
the three-mile coastal belt, and brought his fresh fish ashore for
sale. In 1942, while this country was at war with Japan, Takahashi
and other California residents of Japanese ancestry were evacuated
from the State under military orders.
See Korematsu v. United
States, 323 U. S. 214. In
1943, during the period of war and evacuation, an amendment to the
California Fish and Game Code was adopted prohibiting issuance of a
license to any "alien Japanese." Cal.Stats. 1943, ch. 1100. In
1945, the state code was again amended by striking the 1943
provision for fear that it might be "declared unconstitutional"
because directed only "against alien Japanese"; [
Footnote 2] the new amendment banned issuance
of licenses to any "person ineligible to citizenship," which
classification included Japanese. Cal.Stats. 1945, ch. 181.
[
Footnote 3] Because of this
state
Page 334 U. S. 414
provision barring issuance of commercial fishing licenses to
persons ineligible for citizenship under federal law, Takahashi,
who met all other state requirements, was denied a license by the
California Fish and Game Commission upon his return to California
in 1945.
Takahashi brought this action for mandamus in the Superior Court
of Los Angeles County, California, to compel the Commission to
issue a license to him. That court granted the petition for
mandamus. It held that lawful alien inhabitants of California,
despite their ineligibility to citizenship, were entitled to engage
in the vocation of commercial fishing on the high seas beyond the
three-mile belt on the same terms as other lawful state
inhabitants, and that the California code provision denying them
this right violated the equal protection clause of the Fourteenth
Amendment. The State Supreme Court, three judges dissenting,
reversed, holding that California had a proprietary interest in
fish in the ocean waters within 3 miles of the shore, and that this
interest justified the State in barring all aliens in general, and
aliens ineligible to citizenship in particular, from catching fish
within or without the three-mile coastal belt and bringing them to
California for commercial purposes.
30 Cal. 2d
719, 185 P.2d 805, 808. [
Footnote 4] To review this question
Page 334 U. S. 415
of importance in the fields of federal-state relationships and
of constitutionally protected individual equality and liberty, we
granted certiorari.
We may well begin our consideration of the principles to be
applied in this case by a summary of this Court's holding in
Truax v. Raich, 239 U. S. 33, not
deemed controlling by the majority of the California Supreme Court,
but regarded by the dissenters as requiring the invalidation of the
California law. That case involved an attack upon an Arizona law
which required all Arizona employers of more than five workers to
hire not less than eighty (80) percent qualified electors or
native-born citizens of the United States. Raich, an alien who
worked as a cook in a restaurant which had more than five
employees, was about to lose his job solely because of the state
law's coercive effect on the restaurant owner. This Court, in
upholding Raich's contention that the Arizona law was invalid,
declared that Raich, having been lawfully admitted into the country
under federal law, had a federal privilege to enter and abide in
"any state in the Union," and thereafter, under the Fourteenth
Amendment, to
Page 334 U. S. 416
enjoy the equal protection of the laws of the state in which he
abided; that this privilege to enter in and abide in any state
carried with it the "right to work for a living in the common
occupations of the community," a denial of which right would make
of the Amendment "a barren form of words." In answer to a
contention that Arizona's restriction upon the employment of aliens
was "reasonable," and therefore permissible, this Court
declared:
"It must also be said that reasonable classification implies
action consistent with the legitimate interests of the state, and
it will not be disputed that these cannot be so broadly conceived
as to bring them into hostility to exclusive Federal power. The
authority to control immigration -- to admit or exclude aliens --
is vested solely in the Federal government.
Fong Yue Ting v.
United States, 149 U. S. 698,
149 U. S.
713. The assertion of an authority to deny to aliens the
opportunity of earning a livelihood when lawfully admitted to the
state would be tantamount to the assertion of the right to deny
them entrance and abode, for, in ordinary cases, they cannot live
where they cannot work. And if such a policy were permissible, the
practical result would be that those lawfully admitted to the
country under the authority of the acts of Congress, instead of
enjoying in a substantial sense and in their full scope the
privileges conferred by the admission, would be segregated in such
of the states as chose to offer hospitality."
Truax v. Raich, supra, at
239 U. S.
42.
Had the
Truax decision said nothing further than what
is quoted above, its reasoning, if followed, would seem to require
invalidation of this California code provision barring aliens from
the occupation of fishing as inconsistent with federal law, which
is constitutionally declared to be "the supreme Law of the Land."
Const. art. 6, cl. 2. However,
Page 334 U. S. 417
the Court there went on to note that it had on occasion
sustained state legislation that did not apply alike to citizens
and non-citizens, the ground for the distinction being that such
laws were necessary to protect special interests either of the
state or of its citizens as such. The
Truax opinion
pointed out that the Arizona law, aimed as it was against
employment of aliens in all vocations, failed to show a "special
public interest with respect to any particular business . . . that
could possibly be deemed to support the enactment." The Court noted
that it had previously upheld various state laws which restricted
the privilege of planting oysters in the tidewater rivers of a
state to citizens of that state, and which denied to aliens within
a state the privilege of possessing a rifle and of shooting game
within that state; it also referred to decisions recognizing a
state's broad powers, in the absence of overriding treaties, to
restrict the devolution of real property to non-aliens. [
Footnote 5]
California now urges, and the State Supreme Court held, that the
California fishing provision here challenged falls within the
rationale of the "special public interest" cases distinguished in
the
Truax opinion, and thus that the state's ban upon
commercial fishing by aliens ineligible to citizenship is valid.
The contention is this: California owns the fish within three miles
of its coast as a trustee for all California citizens, as
distinguished from its noncitizen inhabitants; as such
trustee-owner, it has complete power to bar any or all aliens from
fishing in the three-mile belt as a means of conserving the supply
of fish; since migratory fish caught while swimming in the
three-mile belt are indistinguishable from those caught while
swimming in the adjacent high seas, the State, in
Page 334 U. S. 418
order to enforce its three-mile control, can also regulate the
catching and delivery to its coast of fish caught beyond the three
mile belt under this Court's decision in
Bayside Fish Co. v.
Gentry, 297 U. S. 422. Its
law denying fishing licenses to aliens ineligible for citizenship,
so the state's contention goes, tends to reduce the number of
commercial fishermen and therefore is a proper fish conservation
measure; in the exercise of its power to decide what groups will be
denied licenses, the State has a right if not a duty, to bar first
of all aliens, who have no community interest in the fish owned by
the State. Finally, the legislature's denial of licenses to those
aliens who are "ineligible to citizenship" is defended as a
reasonable classification, on the ground that California has simply
followed the Federal Government's lead in adopting that
classification from the naturalization laws.
First. The state's contention that its law was passed
solely as a fish conservation measure is vigorously denied. The
petitioner argues that it was the outgrowth of racial antagonism
directed solely against the Japanese, and that, for this reason
alone, it cannot stand.
See Korematsu v. United States,
supra, at
323 U. S. 216;
Kotch v. Board of River Pilot Comm'rs, 330 U.
S. 552,
330 U. S. 556;
Yick Wo v. Hopkins, 118 U. S. 356;
In re Ah Chong, 2 F. 733, 737. We find it unnecessary to
resolve this controversy concerning the motives that prompted
enactment of the legislation. Accordingly, for purposes of our
decision, we may assume that the code provision was passed to
conserve fish in the California coastal waters, or to protect
California citizens engaged in commercial fishing from competition
by Japanese aliens, or for both reasons.
Second. It does not follow, as California seems to
argue, that, because the United States regulates immigration and
naturalization in part on the basis of race and color
classifications, a state can adopt one or more of the same
classifications to prevent lawfully admitted aliens within
Page 334 U. S. 419
its borders from earning a living in the same way that other
state inhabitants earn their living. The Federal Government has
broad constitutional powers in determining what aliens shall be
admitted to the United States, the period they may remain,
regulation of their conduct before naturalization, and the terms
and conditions of their naturalization.
See Hines v.
Davidowitz, 312 U. S. 52,
312 U. S. 66.
Under the Constitution, the states are granted no such powers; they
can neither add to nor take from the conditions lawfully imposed by
Congress upon admission, naturalization and residence of aliens in
the United States or the several states. State laws which impose
discriminatory burdens upon the entrance or residence of aliens
lawfully within the United States conflict with this
constitutionally derived federal power to regulate immigration, and
have accordingly been held invalid. [
Footnote 6] Moreover, Congress, in the enactment of a
comprehensive legislative plan for the nationwide control and
regulation of immigration and naturalization, has broadly
provided:
"All persons within the jurisdiction of the United States shall
have the same right in every State and Territory to make and
enforce contracts, to sue, be parties, give evidence, and to the
full and equal benefit of all laws and proceedings for the security
of persons and property as is enjoyed by white citizens, and shall
be subject to like punishment, pains, penalties, taxes, licenses,
and exactions of every kind, and to no other."
16 Stat. 140, 144, 8 U.S.C. § 41. The protection of this section
has been held to extend to aliens as well as to citizens. [
Footnote 7] Consequently, the
section,
Page 334 U. S. 420
and the Fourteenth Amendment on which it rests in part, protect
"all persons" against state legislation bearing unequally upon them
either because of alienage or color.
See Hurd v. Hodge,
334 U. S. 24. The
Fourteenth Amendment and the laws adopted under its authority thus
embody a general policy that all persons lawfully in this country
shall abide "in any state" on an equality of legal privileges with
all citizens under nondiscriminatory laws.
All of the foregoing emphasizes the tenuousness of the state's
claim that it has power to single out and ban its lawful alien
inhabitants, and particularly certain racial and color groups
within this class of inhabitants, from following a vocation simply
because Congress has put some such groups in special
classifications in exercise of its broad and wholly distinguishable
powers over immigration and naturalization. The state's law here
cannot be supported in the employment of this legislative authority
because of policies adopted by Congress in the exercise of its
power to treat separately and differently with aliens from
countries composed of peoples of many diverse cultures, races, and
colors. For these reasons, the power of a state to apply its laws
exclusively to its alien inhabitants as a class is confined within
narrow limits.
Third. We are unable to find that the "special public
interest" on which California relies provides support for this
state ban on Takahashi's commercial fishing. As before pointed out,
California's claim of "special public interest" is that its
citizens are the collective owners of fish swimming in the
three-mile belt. It is true that this Court did long ago say that
the citizens of a state collectively own "the tide-waters . . . and
the fish in them, so far as they are capable of ownership while
running."
McCready v. Virginia, 94 U. S.
391,
94 U. S. 394.
Cf. United States v. California, 332 U. S.
19,
332 U. S. 38;
Toomer v. Witsell, 334 U. S. 385. The
McCready case upheld a Virginia law
Page 334 U. S. 421
which prohibited citizens of other states from planting oysters
in a Virginia tidewater river. Though the
McCready case
has been often distinguished, its rationale has been relied on in
other cases, including
Geer v. Connecticut, 161 U.
S. 519. That decision, where only the commerce clause
was involved, sustained a state law, that, in order to restrict the
use of game to the people of the state, prohibited the out-of-state
transportation of game killed within the state. On the other hand,
where Louisiana laws declared that the state owned all shrimp
within the waters of the state, but permitted ultimate sale and
shipment of shrimp for consumption outside that state's boundaries,
Louisiana was denied power under the commerce clause to require the
local processing of shrimp taken from Louisiana marshes as a
prerequisite to out-of-state transportation.
Foster-Fountain
Packing Co. v. Haydel, 278 U. S. 1. In the
absence of overriding federal treaties, this Court sustained a
state law barring aliens from hunting wild game in the interest of
conserving game for citizens of the state against due process and
equal protection challenges.
Patsone v. Pennsylvania,
232 U. S. 138.
Later, however, the Federal Migratory Bird Treaty Act of 1918, 40
Stat. 755, was sustained as within federal power despite the claim
of Missouri of ownership of birds within its boundaries based on
prior statements as to state ownership of game and fish in the
Geer case.
Missouri v. Holland, 252 U.
S. 416. The Court was of opinion that "To put the claim
of the State upon title is to lean upon a slender reed." P.
252 U. S. 434.
We think that same statement is equally applicable here. To
whatever extent the fish in the three-mile belt off California may
be "capable of ownership" by California, we think that "ownership"
is inadequate to justify California in excluding any or all aliens
who are lawful residents of the State from making a living by
fishing in the ocean off its shores while permitting all others to
do so.
Page 334 U. S. 422
This leaves for consideration the argument that this law should
be upheld on authority of those cases which have sustained state
laws barring aliens ineligible to citizenship from land ownership.
[
Footnote 8] Assuming the
continued validity of those cases, [
Footnote 9] we think they could not, in any event, be
controlling here. They rested solely upon the power of states to
control the devolution and ownership of land within their borders,
a power long exercised and supported on reasons peculiar to real
property. They cannot be extended to cover this case.
The judgment is reversed and remanded for proceedings not
inconsistent with this opinion.
Reversed.
[
Footnote 1]
The comprehensive laws adopted by Congress regulating the
immigration and naturalization of aliens are included in Title 8 of
the U.S.Code; for codification of laws governing racial and color
prerequisites of aliens to citizenship
see 8 U.S.C. § 703.
An act adopted by the first Congress in 1790 made "free white
persons" only eligible for citizenship. 1 Stat. 103. Later acts
have extended eligibility of aliens to citizenship to the following
groups: in 1870, "aliens of African nativity and . . . persons of
African descent," 16 Stat. 254, 256; in 1940, "descendants of races
indigenous to the Western Hemisphere," 54 Stat. 1137, 1140; in
1943, "Chinese persons or persons of Chinese descent," 57 Stat.
600, 601; and in 1946, Filipinos and "persons of races indigenous
to India," 60 Stat. 416. While it is not wholly clear what racial
groups other than Japanese are now ineligible to citizenship, it is
clear that Japanese are among the few groups still not eligible,
see Oyama v. California, 332 U. S. 633,
332 U. S. 635,
n. 3, and that, according to the 1940 census, Japanese aliens
constituted the great majority of aliens living in the United
States then ineligible for citizenship.
See concurring
opinion of MR. JUSTICE MURPHY in
Oyama v. California,
supra, 332 U.S. at
332 U. S. 650,
332 U. S.
665-666, nn. 20 and 22.
[
Footnote 2]
Report of the California Senate Fact-Finding Committee on
Japanese Resettlement, May 1, 1945, pp. 5-6.
[
Footnote 3]
As amended, the code section now reads:
"
Persons required to procure license: To whom issuable.
Every person who uses or operates or assists in using or operating
any boat, net, trap, line, or other appliance to take fish,
mollusks or crustaceans for profit, or who brings or causes fish,
mollusks or crustaceans to be brought ashore at any point in the
State for the purpose of selling the same in a fresh state, shall
procure a commercial fishing license."
"A commercial fishing license may be issued to any person other
than a person ineligible to citizenship. A commercial fishing
license may be issued to a corporation only if said corporation is
authorized to do business in this State, if none of the officers or
directors thereof are persons ineligible to citizenship, and if
less than the majority of each class of stockholders thereof are
persons ineligible to citizenship."
Cal. Fish and Game Code, § 990. In 1947, the code was amended to
permit "any person, not a citizen of the United States," to obtain
hunting and sport fishing licenses, both of which had been denied
to "alien Japanese" and to persons "ineligible to citizenship"
under the 1943 and 1945 amendments. Cal.Stats.1947, c. 1329,
Cal.Fish and Game Code §§ 427, 428.
[
Footnote 4]
The Superior Court first ordered issuance of a commercial
fishing license authorizing Takahashi to bring ashore "catches of
fish from the waters of the high seas beyond the State's
territorial jurisdiction." After appeal to the State Supreme Court
by the State Commission, the Superior Court amended its judgment so
as to order a commercial license authorizing Takahashi to bring in
catches of fish taken from the three-mile ocean belt adjacent to
the California coast as well as from the high seas. The State
Supreme Court held that the Superior Court was without jurisdiction
to amend its judgment after appeal, and accordingly treated the
amended judgment as void. California argues here that its State
Fish and Game Commission is authorized by statute to issue only one
type of commercial fishing license, namely, one permitting ocean
fish to be brought ashore whether caught within or without the
three-mile belt, that the Superior Court's first judgment ordering
issuance of a license limited to catches of high seas fish directed
the Commission to do something it was without authority to do, and
that, on this ground, we should affirm the state court's denial of
the requested license. The State Supreme Court did not, however,
decide the case on that ground, but ruled against petitioner on the
ground that the challenged code provision was valid under the
Federal Constitution, and that the Commission's refusal to grant a
license was required by its terms. Since the state court of last
resort relied solely upon federal grounds for its decision, we may
properly review its action here.
[
Footnote 5]
The opinion cited the following cases:
McCready v.
Virginia, 94 U. S. 391;
Patsone v. Pennsylvania, 232 U. S. 138;
Hauenstein v. Lynham, 100 U. S. 483; and
Blythe v. Hinckley, 180 U. S. 333.
[
Footnote 6]
Truax v. Raich, supra; Chy Lung v. Freeman,
92 U. S. 275,
92 U. S. 280;
see Hines v. Davidowitz, supra, at
312 U. S. 65,
312 U. S.
68.
[
Footnote 7]
Yick Wo v. Hopkins, supra, at
118 U. S. 369;
United States v. Wong Kim Ark, 169 U.
S. 649,
169 U. S. 696;
In re Tiburcio Parrott, 1 F. 481, 508, 509;
Fraser v.
McConway & Torley Co., 82 F. 257.
[
Footnote 8]
Terrace v. Thompson, 263 U. S. 197;
Porterfield v. Webb, 263 U. S. 225;
Webb v. O'Brien, 263 U. S. 313;
Frick v. Webb, 263 U. S. 326.
[
Footnote 9]
See Oyama v. California, 332 U.
S. 633,
332 U. S. 646,
332 U. S. 649,
332 U. S.
672.
MR. JUSTICE MURPHY, with whom MR. JUSTICE RUTLEDGE agrees,
concurring.
The opinion of the Court, in which I join, adequately expresses
my views as to all but one important aspect of this case. That
aspect relates to the fact that § 990 of the California Fish and
Game Code, barring those ineligible to citizenship from securing
commercial fishing licenses, is the direct outgrowth of antagonism
toward persons of Japanese ancestry. Even the most cursory
examination of the background of the statute demonstrates that it
was designed solely to discriminate against such persons in a
manner inconsistent with the concept of equal protection of the
laws. Legislation of that type is not entitled to wear the cloak of
constitutionality.
The statute in question is but one more manifestation of the
anti-Japanese fever which has been evident in California in varying
degrees since the turn of the century.
Page 334 U. S. 423
See concurring opinion in
Oyama v. California,
332 U. S. 633,
332 U. S. 650,
and dissenting opinion in
Korematsu v. United States,
323 U. S. 214,
323 U. S. 233.
That fever, of course, is traceable to the refusal or the inability
of certain groups to adjust themselves economically and socially
relative to residents of Japanese ancestry. For some years prior to
the Japanese attack on Pearl Harbor, these protagonists of
intolerance had been leveling unfounded accusations and innuendoes
against Japanese fishing crews operating off the coast of
California. These fishermen numbered about a thousand, and most of
them had long resided in that state. It was claimed that they were
engaged not only in fishing, but in espionage and other illicit
activities on behalf of the Japanese Government. As war with Japan
approached and finally became a reality, these charges were
repeated with increasing vigor. Yet full investigations by
appropriate authorities failed to reveal any competent supporting
evidence; not even one Japanese fisherman was arrested for alleged
espionage. Such baseless accusations can only be viewed as an
integral part of the long campaign to undermine the reputation of
persons of Japanese background, and to discourage their residence
in California.
See McWilliams, Prejudice (1944), ch.
VII.
More specifically, these accusations were used to secure the
passage of discriminatory fishing legislation. But such legislation
was not immediately forthcoming. The continued presence in
California of the Japanese fishermen without the occurrence of any
untoward incidents on their part served for a time as adequate and
living refutation of the propaganda. Then came the evacuation of
all persons of Japanese ancestry from the West Coast.
See
Korematsu v. United States, supra. Once evacuation was
achieved, an intensive campaign was begun to prevent the return to
California of the evacuees.
Page 334 U. S. 424
All of the old charges, including the ones relating to the
fishermen, were refurbished and augmented. This time, the Japanese
were absent, and were unable to provide effective opposition. The
winds of racial animosity blew unabated.
During the height of this racial storm in 1943, numerous
anti-Japanese bills were considered by the California legislators.
Several amendments to the Alien Land Law were enacted. And § 990 of
the Fish and Game Code was altered to provide that "A commercial
fishing license may be issued to any person other than an alien
Japanese." No pretense was made that this alteration was in the
interests of conservation. It was made at a time when all alien
Japanese were excluded from California, with no immediate return
indicated; thus, the banning of fishing licenses for them could
have no early effect upon the conservation of fish. Moreover, the
period during which this amendment was passed was one in which both
federal and state authorities were doing their utmost to encourage
greater food production for wartime purposes. The main desire at
this time was to increase, rather than to decrease, the catch of
fish. Certainly the contemporaneous bulletins and reports of the
Bureau of Marine Fisheries of California did not indicate the
existence of any conservation problem due to an excess number of
fishermen.
See Thirty-Eighth Biennial Report (July 1,
1944), pp. 33-36; Fish Bulletin No. 58, for the year 1940; Fish
Bulletin No. 59, for the years 1941 and 1942.
These circumstances only confirm the obvious fact that the 1943
amendment to § 990 was intended to discourage the return to
California of Japanese aliens. By taking away their commercial
fishing rights, the lives of those aliens who plied the fisherman's
trade would be made more difficult and unremunerative. And the
non-Japanese fishermen would thereby be free from the
competition
Page 334 U. S. 425
afforded by these aliens. The equal protection clause of the
Fourteenth Amendment, however, does not permit a state to
discriminate against resident aliens in such a fashion, whether the
purpose be to give effect to racial animosity or to protect the
competitive interests of other residents.
The 1945 amendment to § 900 which is now before us stands in no
better position than the 1943 amendment. This later alteration
eliminated the reference to "alien Japanese" and substituted
therefor "a person ineligible to citizenship." Adoption of this
change also occurred during a period when anti-Japanese agitation
in California had reached one of its periodic peaks. The
announcement of the end of the Japanese exclusion orders, plus this
Court's decision in
Ex parte Endo, 323 U.
S. 283, made the return to California of many of the
evacuees a reasonable certainty. The prejudices, the antagonisms
and the hatreds were once again aroused, punctuated this time by
numerous acts of violence against the returning Japanese Americans.
Another wave of anti-Japanese proposals marked the 1945 legislative
session. It was in this setting that the amendment to § 990 was
proposed and enacted in 1945.
It is of interest and significance that the amendment in
question was proposed by a legislative committee devoted to
Japanese resettlement problems, not by a committee concerned with
the conservation of fish. The Senate Fact-Finding Committee on
Japanese Resettlement issued a report on May 1, 1945. This report
dealt with such matters as the Alien Land Law, the Japanese
language schools, dual citizenship and the Tule Lake riot. And
under the heading "Japanese Fishing Boats" (pp. 5-6) appeared this
explanation of the proposed amendment to § 900:
Page 334 U. S. 426
"The committee gave little consideration to the problems of the
use of fishing vessels on our coast owned and operated by Japanese,
since this matter seems to have previously been covered by
legislation. The committee, however, feels that there is danger of
the present statute's being declared unconstitutional on the
grounds of discrimination, since it is directed against alien
Japanese. It is believed that this legal question can probably be
eliminated by an amendment which has been proposed to the bill
which would make it apply to any alien who is ineligible to
citizenship. The committee has introduced Senate Bill 413 to make
this change in the statute."
Not a word was said in this report regarding the need for the
conservation of fish or the necessity of limiting the number of
fishermen. The obvious thought behind the amendment was to attempt
to legalize the discrimination against Japanese alien fishermen by
dropping the specific reference to them.
The proposed revision was adopted. The trial court below
correctly described the situation as follows:
"As it was commonly known to the legislators of 1945 that
Japanese were the only aliens ineligible to citizenship who engaged
in commercial fishing in ocean waters bordering on California, and
as the Court must take judicial notice of the same fact, it becomes
manifest that, in enacting the present version of Section 990, the
Legislature intended thereby to eliminate alien Japanese from those
entitled to a commercial fishing license by means of description
rather than by name. To all intents and purposes, and in effect,
the provision in the 1943 and 1945 amendments are the same, the
thin veil used to conceal a purpose being too transparent. Under
each and both, alien Japanese are denied a right to a license to
catch fish on the high seas for
Page 334 U. S. 427
profit, and to bring them to shore for the purpose of selling
the same in a fresh state . . . this discrimination constitutes an
unequal exaction and a greater burden upon the persons of the class
named than that imposed upon others in the same calling and under
the same conditions, and amounts to prohibition. This
discrimination, patently hostile, is not based upon a reasonable
ground of classification and, to that extent, the section is in
violation of Section 1 of the Fourteenth Amendment to the
Constitution of the United States. . . ."
We should not blink at the fact that § 990, as now written, is a
discriminatory piece of legislation having no relation whatever to
any constitutionally cognizable interest of California. It was
drawn against a background of racial and economic tension. It is
directed in spirit and in effect solely against aliens of Japanese
birth. It denies them commercial fishing rights not because they
threaten the success of any conservation program, not because their
fishing activities constitute a clear and present danger to the
welfare of California or of the nation, but only because they are
of Japanese stock, a stock which has had the misfortune to arouse
antagonism among certain powerful interests. We need but unbutton
he seemingly innocent words of § 990 to discover beneath them the
very negation of all the ideals of the equal protection clause. No
more is necessary to warrant a reversal of the judgment below.
MR. JUSTICE REED, dissenting.
The reasons which lead me to conclude that the judgment of the
Supreme Court of California should be affirmed may be briefly
stated. As fishing rights have been treated traditionally as a
natural resource, in the absence of federal regulation, California
as a sovereign state has power to regulate the taking and handling
of
Page 334 U. S. 428
fish in the waters bordering its shores. [
Footnote 2/1] It is, I think, one of the natural
resources of the state that may be preserved from exploitation by
aliens. [
Footnote 2/2] The ground
for this power in the absence of any exercise of federal authority
is California's authority over its fisheries.
The right to fish is analogous to the right to own land, a
privilege which a state may deny to aliens as to land within its
borders.
Terrace v. Thompson, 263 U.
S. 197. [
Footnote 2/3]
It is closely akin to the right to hunt, a privilege from which a
state may bar aliens if reasonably deemed advantageous to its
citizens. [
Footnote 2/4] A state's
power has even been
Page 334 U. S. 429
held to extend to the exclusion of aliens from the operation of
pool and billiard halls when a city deemed them not as well
qualified as citizens for the conduct of a business thought to have
harmful tendencies.
Clarke v. Deckebach, 274 U.
S. 392. [
Footnote
2/5]
The Federal Government has not pursued a policy of equal
treatment of aliens and citizens. Citizens have rights superior to
those of aliens in the ownership of land and in exploiting natural
resources. [
Footnote 2/6] Perhaps
Congress, as a matter of immigration policy, may require that
states open every door of opportunity in America to all resident
aliens, but until Congress so determines as to fisheries, I do not
feel that the judicial arm of the Government should require the
states to admit all aliens to this privilege.
Certainly
Truax v. Raich, 239 U. S.
33, upon which the majority opinion appears to rely in
holding that the California statute denies equal protection in
attempting to classify aliens by putting restrictions on their
right to land fish, is not an authority for such a decision.
The
Page 334 U. S. 430
power of a state to discriminate against aliens on public works
and the exploitation of natural resources was recognized in that
case. [
Footnote 2/7] And, at the
very time that it was under consideration, this Court also had
before it
Heim v. McCall, 239 U.
S. 175. [
Footnote 2/8]
In that case, Heim attacked the constitutionality of a New York
statute which provided that,
"In the construction of public works by the state or a
municipality, or by persons contracting with the state or such
municipality, only citizens of the United States shall be employed;
and in all cases where laborers are employed on any such public
works, preference shall be given citizens of the state of New York.
[
Footnote 2/9]"
A unanimous court held that the statute, which was attacked on
the ground that it denied aliens their rights under the privileges
and immunities, due process, and equal protection clauses of the
Constitution, was a constitutional exercise of state power as
applied to the construction of New York City subways by private
contractors. [
Footnote 2/10]
Page 334 U. S. 431
The Constitution that permits the bar of aliens from public
works surely must permit their bar from state fishing rights. A
state has power to exclude from enjoyment of its natural resources
those who are unwilling or unable to become citizens.
If aliens, as I think they can, may be excluded by a state from
fishing privileges, I see no reason why the classification
established by California excluding only aliens ineligible to
citizenship is prohibited by the Constitution.
Terrace v.
Thompson, 263 U. S. 197,
263 U. S. 220.
Whatever we may think of the wisdom of California's statute, we
should intervene only when we conclude the state statute passes
constitutional limits.
MR. JUSTICE JACKSON joins in this dissent.
[
Footnote 2/1]
Bayside Fish Flour Co. v. Gentry, 297 U.
S. 422,
297 U. S.
425.
The statute,
see note 3
of the Court's opinion for the text seems obviously to cast no
burden on commerce.
A Washington statute similar to the one now before us was
considered in
Lubetich v. Pollock, 6 F.2d
237.
[
Footnote 2/2]
Even citizens of other states have been excluded by a state from
such opportunities.
McCready v. Virginia, 94 U. S.
391 (planting oyster beds). Fishing licenses
discriminating between residents and nonresidents are permissible.
Haavik v. Alaska Packers Ass'n, 263 U.
S. 510.
[
Footnote 2/3]
The right of an alien to own land is controlled by the law of
the state in which the land is located. Such was the rule of the
common law.
Collingwood v. Pace, 1 Vent. 413, 86 Eng.Rep.
262. That has long been the law of nations, 2 Vattell, Law of
Nations (1883) c. 8, § 114, and has been accepted in this country.
Chirac v.
Chirac, 2 Wheat. 259;
Levy v.
McCartee, 6 Pet. 102,
31 U. S. 113;
Hauenstein v. Lynham, 100 U. S. 483;
Blythe v. Hinckley, 180 U. S. 333,
180 U. S. 341.
Whether the philosophical basis of that power, or the power over
fish and game, is a theory of ownership or trusteeship for its
citizens or residents or conservation of natural resources or
protection of its land or coasts is not material. The right to
control the ownership of land rests in sovereign governments and,
in the United States, it rests with the individual states in the
absence of federal action by treaty or otherwise.
[
Footnote 2/4]
Patsone v. Pennsylvania, 232 U.
S. 138. In expressing the conclusion of a unanimous
Court, Mr. Justice Holmes phrased the rule as follows, pp.
232 U. S.
145-146. "It is to be remembered that the subject of
this whole discussion is wild game, which the state may preserve
for its own citizens if it pleases."
[
Footnote 2/5]
In that case, a unanimous Court, speaking through Mr. Justice
Stone, said, p.
274 U. S.
396:
"The objections to the constitutionality of the ordinance are
not persuasive. Although the Fourteenth Amendment has been held to
prohibit plainly irrational discrimination against aliens, . . . it
does not follow that alien race and allegiance may not bear in some
instances such a relation to a legitimate object of legislation as
to be made the basis of a permitted classification."
[
Footnote 2/6]
The United States limits the rights of aliens as compared with
citizens in land ownership in its territories, 8 U.S.C. §§ 71-86;
in disposition of mineral lands, 30 U.S.C. § 181; of public lands,
43 U.S.C. § 161; in engaging in coastwise trade, 46 U.S.C. §§ 11,
13; in operating aircraft, 49 U.S.C. §§ 176(c), 521.
It was deemed necessary to limit the benefits of the Emergency
Relief Appropriation Act of 1938 to aliens who had "filed a
declaration of intention to become an American citizen. . . ." 52
Stat. 809, 813.
[
Footnote 2/7]
239 U. S. 239 U.S.
33,
239 U. S.
39-40:
"The discrimination defined by the act does not pertain to the
regulation or distribution of the public domain, or of the common
property or resources of the people of the state, the enjoyment of
which may be limited to its citizens as against both aliens and the
citizens of other states. . . . The case now presented is not
within these decisions, or within those relating to the devolution
of real property . . . ; and it should be added that the act is not
limited to persons who are engaged on public work or receive the
benefit of public moneys. The discrimination here involved is
imposed upon the conduct of ordinary private enterprise."
[
Footnote 2/8]
Truax v. Raich, supra, was argued October 15, 1915, and
decided November 1, 1915;
Heim v. McCall, supra, was
argued October 12, 1915, and decided November 29, 1915.
[
Footnote 2/9]
239 U. S. 239 U.S.
175,
239 U. S.
176-177.
[
Footnote 2/10]
The problem of natural resources was not directly discussed in
the opinion. But it is clear that the Court was not unaware of the
relation of its decision to the natural resources cases.
See 239 U. S. 239 U.S.
175,
239 U. S. 194.
The fact that this case was before the Court at the same time as
Truax v. Raich, probably explains the careful reservation
of the natural resources and public works problems in that case.
See 239 U. S. 239 U.S.
33,
239 U. S.
39-40.