1. Appellant, a Michigan corporation engaged chiefly in the
round-trip transportation of passengers from Detroit to Bois Blanc
Island, Canada, was convicted in a criminal prosecution under the
Michigan Civil Rights Act for refusing passage to a Negro solely
because of color.
Held: in view of the special local interest attaching
to appellant's business in the particular circumstances of this
case, such application of the state Act to the appellant, although
engaged in foreign commerce, did not contravene the Commerce Clause
of the Federal Constitution. Pp.
333 U. S.
29-40.
2. A decision of the highest court of the State that, as a
matter of local law, the state statute was applicable to
appellant's business is binding here upon review. P.
333 U. S.
33.
3. Appellant's transportation of passengers between Detroit,
Michigan, and Bois Blanc Island, Canada, is foreign commerce within
the scope of Art. I, § 8 of the Federal Constitution. P.
333 U. S.
34.
4.
Hall v. DeCuir, 95 U. S. 485, and
Morgan v. Virginia, 328 U. S. 373,
distinguished. Pp.
333 U. S.
39-40.
317 Mich. 686, 27 N.W.2d 139, affirmed.
Appellant's conviction in a criminal prosecution for violation
of the Michigan Civil Rights Act was affirmed by the Supreme Court
of the State. 317 Mich. 686, 27 N.W.2d 139. Upon appeal to this
Court,
affirmed, p.
333 U. S.
40.
Page 333 U. S. 29
MR. JUSTICE RUTLEDGE delivered the opinion of the Court.
Bois Blanc Island is part of the Province of Ontario, Canada. It
lies just above the mouth of the Detroit River, some fifteen miles
from Michigan's metropolis upstream. The island, known in Detroit
by the corruption "Bob-Lo," has been characterized as that city's
Coney Island.
Appellant owns almost all of Bois Blanc in fee. [
Footnote 1] For many years, it has operated
the island, during the summer seasons, as a place of diverse
amusements for Detroit's varied population. Appellant also owns and
operates two steamships for transporting its patrons of the
island's attractions from Detroit to Bois Blanc and return. The
vessels engage in no other business on these trips. [
Footnote 2] No freight, mail, or express is
carried; the only passengers are the patrons bent on pleasure, who
board ship at Detroit;
Page 333 U. S. 30
they go on round-trip one-day limit [
Footnote 3] tickets which include the privilege of landing
at Bois Blanc and going back by a later boat. [
Footnote 4] No intermediate stops are made on
these excursions.
In conducting this business of amusement and transportation,
appellant long has followed the policy, by advertisement and
otherwise, to invite and encourage all comers except two classes.
One is the disorderly; the other, colored people. [
Footnote 5] From the latter exclusion, this
case arises.
In June of 1945, Sarah Elizabeth Ray, the complaining witness,
was employed by the Detroit Ordnance District. She and some forty
other girls were also members of a class conducted at the Commerce
High School under the auspices of the ordnance district. The class
planned an excursion to Bois Blanc for June 21 under the district's
sponsorship.
On that morning, thirteen girls with their teacher appeared at
appellant's dock in Detroit to go on the outing. All were white
except Miss Ray. Each girl paid eighty-five cents to one of the
group, who purchased round-trip tickets and distributed them. The
party then passed
Page 333 U. S. 31
through the gate, each member giving in her ticket without
question from the ticket taker. They then checked their coats, went
to the upper decks. and took chairs.
Shortly afterward Devereaux, appellant's assistant general
manager, and a steward named Fox appeared and stated that Miss Ray
could not go along, because she was colored. At first, she
remonstrated against the discrimination, and refused to leave. But
when it appeared she would be ejected forcibly, she said she would
go. Devereaux and Fox then escorted her ashore, saying the company
was a private concern and could exclude her if it wished. They took
her to the ticket office and offered to return her fare. She
refused to accept it, took their names, and left the company's
premises. There is no suggestion that she or any member of her
party was guilty of unbecoming conduct. Nor is there any dispute
concerning the facts.
This criminal prosecution followed in the Recorder's Court for
Detroit, for violation of the Michigan civil rights act [
Footnote 6] in the discrimination
practiced against Miss Ray. Jury trial being formally waived, the
court, after hearing evidence and argument, found appellant guilty
as charged and sentenced it to pay a fine of $25. [
Footnote 7] On appeal, the Supreme Court of
Michigan affirmed the judgment, holding the statute applicable to
the circumstances presented by the case and valid in that
application, as against the constitutional and other objections put
forward. 317 Mich. 686, 27 N.W.2d 139. In due course, probable
jurisdiction was noted here. Judicial Code, § 237(a).
Page 333 U. S. 32
The Michigan civil rights Act, § 146, enacts:
"All persons within the jurisdiction of this state shall be
entitled to full and equal accommodations, advantages, facilities
and privileges of inns, hotels, restaurants, eating houses, barber
shops, billiard parlors, stores, public conveyances on land and
water, theaters, motion picture houses, public educational
institutions, in elevators, on escalators, in all methods of air
transportation and all other places of public accommodation,
amusement, and recreation, where refreshments are or may hereafter
be served, subject only to the conditions and limitations
established by law and applicable alike to all citizens and to all
citizens alike, with uniform prices. [
Footnote 8]"
By § 147, any owner, lessee, proprietor, agent or employee of
any such place who directly or indirectly withholds any
accommodation secured by § 146, on account of race, creed or color,
becomes guilty of a misdemeanor, punishable as the section states,
and liable to a civil action for treble damages. [
Footnote 9]
Page 333 U. S. 33
The Michigan statute is one of the familiar type enacted by many
states before and after this Court's invalidation of Congress'
similar legislation in the
Civil Rights Cases,
109 U. S. 3.
[
Footnote 10] The Michigan
Supreme Court held the statute applicable to appellant's business
over its objection that, as a matter of local law, it is not a
"public conveyance" within the meaning of § 146. [
Footnote 11] We accept this conclusion of
the state court as a matter of course. That court also impliedly
rejected appellant's
Page 333 U. S. 34
constitutional objections based upon alleged denial of due
process of law and equal protection of the laws under the
Fourteenth Amendment, issues now eliminated from the case.
[
Footnote 12]
We have therefore only to consider the single and narrow
question whether the state courts correctly held that the commerce
clause, Art. I, § 8, of the Federal Constitution does not forbid
applying the Michigan civil rights act to sustain appellant's
conviction. We agree with their determination.
There can be no doubt that appellant's transportation of its
patrons is foreign commerce within the scope of Art. I, § 8.
[
Footnote 13]
Lord v.
Goodall Steamship Co., 102 U. S. 541;
cf. Edwards v. California, 314 U.
S. 160. Appellant's vessels sail to and from a port or
place in foreign territory wholly under another nation's
sovereignty. They cross the international boundary, which is the
thread of the Detroit River, several times in the course of each
short
Page 333 U. S. 35
trip. Appellant necessarily complies with federal regulations
applicable to foreign commerce, including those governing customs,
immigration, and navigation matters. It likewise satisfies similar
regulations of the Canadian authorities. [
Footnote 14]
Of course, we must be watchful of state intrusion into
intercourse between this country and one of its neighbors. But if
any segment of foreign commerce can be said to have a special local
interest, apart from the necessity of safeguarding the federal
interest in such matters as immigration, customs, and navigation,
the transportation of appellant's patrons falls in that
characterization. It would be hard to find a substantial business
touching foreign soil of more highly local concern. Except for the
small fenced-off portion reserved for the lighthouse and three
cottage sites, [
Footnote 15]
the island is economically and socially, though not politically, an
amusement adjunct of the city of Detroit. Not only customs and
immigrations regulations of both countries, but physical barriers
prevent intercourse, both commercial and social, between Canadians
and appellant's patrons, except as the former may come first by
other means to Detroit, then go to the island from American soil on
appellant's vessels, and return from the holiday by the same
roundabout route.
Page 333 U. S. 36
The record indicates there are no established means of access
from the Canadian shore to the island. There is no evidence of even
surreptitious entry from the Canadian mainland. Appellant's vessels
not only are the sole meas of transportation to and from the
island, but carry only its own patrons of Bois Blanc's recreational
facilities. These travel exclusively on round-trip tickets for
passage beginning and ending on American soil. They are principally
residents of Detroit and vicinity. All go aboard there and return
the same day. None goes from the island to the Canadian bank of the
river. The only business conducted at the island is the operation
of appellant's recreational and accessory facilities, which
apparently do not include provision for overnight guests. No other
persons than appellant's patrons come to the island, or have a
right to come, from Canada's mainland or elsewhere, or go from the
island to Detroit.
The sum of these facts makes Bois Blanc an island in more than
the geographic sense. They insulate it and appellant's business
done in connection with it from all commercial or social
intercourse and traffic with the people of another country usually
characteristic of foreign commerce, in short, from the normal flow
and incidents of such commerce. Since the enterprise is conducted
in this highly closed and localized manner with Canada's full
consent, no detraction whatever from that friendly neighbor's
sovereignty is implied by saying that the business itself is
economically and socially an island of local Detroit business,
although so largely carried on in Canadian waters. As now
conducted, apart from presently applicable Canadian and federal
regulations and until Canada or Congress or both countries by
treaty see fit to add others, the business is of greater concern to
Detroit and the Michigan than to Dominion or Ontario interests or
to those of the United States in regulating our foreign
commerce.
Page 333 U. S. 37
The regulation in this application contains nothing out of
harmony, much less inconsistent, with our federal policy in the
regulation of commerce between the two countries, nor, so far as we
are advised, with Canadian law and policy. [
Footnote 16] Appellant urges, however, that
Canada might adopt regulations in conflict with Michigan's civil
rights act, thus placing it in an inescapable dilemma if that act
may be applied to its operations. Conceding the possibility, we
think the state is right in viewing it as so remote that it is
hardly more than conceivable. The same thing, we think, is true of
the possibility that Congress might take conflicting action.
If, therefore, in any case, a state may regulate foreign
commerce, the facts here would seem clearly to justify Michigan's
application of her civil rights act. It is far too late to maintain
that the states possess no regulatory powers over such commerce.
From the first meeting of Congress, they have regulated important
phases of both foreign and interstate commerce, particularly in
relation to transportation by water, with Congress' express
consent. [
Footnote 17]
Page 333 U. S. 38
And, without such consent, for nearly a hundred years they have
exercised like power under the local diversity branch of the
formula announced in
Cooley v. Board of
Wardens, 12 How. 299. [
Footnote 18]
See Union Brokerage Co. v.
Jensen, 322 U. S. 202;
Kelly v. Washington, 302 U. S. 1, and
authorities cited in both cases. Indeed, the
Cooley
criterion has been applied so frequently in cases concerning only
commerce among the several states that it is often forgotten that
that historic decision dealt indiscriminately with such commerce
and foreign commerce. [
Footnote
19]
Page 333 U. S. 39
Appellant hardly suggests that the power of Congress over
foreign commerce excludes all regulation by the states. But it
verges on that view in regarding
Hall v. DeCuir,
95 U. S. 485,
supplemented by
Morgan v. Virginia, 328 U.
S. 373, and
Pryce v. Swedish-American Lines, 30
F. Supp. 371, as flatly controlling this case. We need only say
that no one of those decisions is comparable in its facts, whether
in the degree of localization of the commerce involved, in the
attenuating effects, if any, upon the commerce with foreign nations
and among the several states likely to be produced by applying the
state regulation, or in any actual probability of conflicting
regulations by different sovereignties. None involved so completely
and locally insulated a segment of foreign or interstate commerce.
[
Footnote 20] In none was
the business affected merely an adjunct of a single locality or
community, as is the business here so largely. And in none was a
complete exclusion from passage made. The
Pryce case, of
course, is not authority in this Court, and we express no opinion
on the problem it presented. The regulation of traffic along
the
Page 333 U. S. 40
Mississippi River, such as the
Hall case comprehended,
and of interstate motor carriage of passengers by common carriers,
like that in the
Morgan case, are not factually comparable
to this regulation of appellant's highly localized business, and
those decisions are not relevant here.
It is difficult to imagine what national interest or policy,
whether of securing uniformity in regulating commerce, affecting
relations with foreign nations, or otherwise, could reasonably be
found to be adversely affected by applying Michigan's statute to
these facts, or to outweigh her interest in doing so. Certainly
there is no national interest which overrides the interest of
Michigan to forbid the type of discrimination practiced here. And,
in view of these facts, the ruling would be strange indeed, to come
from this Court, that Michigan could not apply her long-settled
policy against racial and creedal discrimination to this segment of
foreign commerce, so peculiarly and almost exclusively affecting
her people and institutions.
The Supreme Court of Michigan concluded
"that holding the provisions of the Michigan statute effective
and applicable in the instant case results only in this --
defendant will be required in operating its ships as 'public
conveyances' to accept as passengers persons of the negro race
indiscriminately with others. Our review of this record does not
disclose that such a requirement will impose any undue burden on
defendant in its business in foreign commerce."
317 Mich. 686, 694, 27 N.W.2d 139, 142. Those conclusions were
right.
The judgment is
Affirmed.
[
Footnote 1]
A small fenced-off tract at one end is reserved for lighthouse
purposes, and three small cottage lots. Appellant is a Michigan
corporation, authorized by its charter to
"lease, own and operate amusement parks in Canada, and to
charter, lease, own and operate excursion steamers and ferry boats
in interstate and foreign commerce, together with dock and terminal
facilities pertaining thereto,"
as well as to acquire, own, use and dispose of real and personal
property "as may be necessary or convenient in connection with the
aforesaid business of the company."
[
Footnote 2]
The record shows that, at times during the season, appellant
uses these ships to provide excursion trips for residents of the
Province of Ontario, but these excursions are kept entirely
separate from those between Detroit and Bois Blanc, and we are
concerned with no question relating to them.
[
Footnote 3]
Apparently no facilities are provided at the island for
overnight guests.
[
Footnote 4]
The company fixes its own rates. The usual round-trip charge is
85�, except for Saturday nights and Sundays, when a higher rate
applies. Special excursions at times are arranged for churches,
Sunday schools, clubs, lodges, etc., for which the regular charge
is paid by the passenger but the company allows the organization a
discount which permits it to make a profit. The discounts are not
uniform.
[
Footnote 5]
Appellant's assistant general manager, Devereaux, testified:
"The defendant adopted the policy of excluding so-called
'Zoot-suiters,' the rowdyish, the rough, and the boisterous, and it
also adopted the policy of excluding colored."
Appellant printed on the back of each ticket: "Right reserved to
reject this ticket by refunding the purchase price." The record
contains no evidence of any exclusion or policy of exclusion of
others than disorderly or colored persons.
[
Footnote 6]
Mich. Penal Code §§ 146-148, as amended by Act No. 117,
Mich.Pub. Acts 1937, Mich.Comp.Laws (Supp. 1940) §§ 17115-146 to
17115-148, Mich.Stat.Ann. (1946 Cum.Supp.) §§ 28.343-28.346. These
sections of the Penal Code reenacted and broadened the application
of Act No. 130, Mich.Pub. Acts 1885.
See notes
8 and |
8 and S. 28fn10|>10.
[
Footnote 7]
Appellant's motion for "directed" verdict of not guilty was
denied, as was also its motion after judgment for a new trial. The
trial court filed a written opinion which is unreported.
[
Footnote 8]
The appropriate statutory citations are set forth in
note 6
[
Footnote 9]
Section 147 is as follows:
"Any person being an owner, lessee, proprietor, manager,
superintendent, agent or employee of any such place who shall
directly or indirectly refuse, withhold from or deny to any person
any of the accommodations, advantages, facilities, and privileges
thereof or directly or indirectly publish, circulate, issue,
display, post, or mail any written or printed communications,
notice, or advertisement to the effect that any of the
accommodations, advantages, facilities, and privileges of any such
places shall be refused, withheld from, or denied to any person on
account of race, creed, or color, or that any particular race,
creed, or color is not welcome, objectionable, or not acceptable,
not desired, or solicited, shall, for every such offense, be deemed
guilty of a misdemeanor, and, upon conviction thereof, shall be
fined not less than twenty-five dollars or imprisoned for not less
than fifteen days, or both such fine and imprisonment, in the
discretion of the court, and every person being an owner, lessee,
proprietor, manager, superintendent, agent, or employee of any such
place, and who violates any of the provisions of this section,
shall be liable to the injured party, in treble damages sustained,
to be recovered in a civil action:
Provided, however, That
any right of action under this section shall be unassignable."
No suggestion is made that the phrase "on account of race, creed
or color" does not apply to the withholding and denying provisions
of the section, as well as those relating to publishing, etc., the
notices or advertisements specified.
Section 148 of the Act forbids discrimination because of race,
creed, or color in selecting grand and petit jurors.
[
Footnote 10]
These cases were decided in 1883. The Michigan statute was
enacted originally in 1885. Seventeen other states have similar,
and, in many instances, substantially identical, legislation. The
statutory citations are given in
Morgan v. Virginia,
328 U. S. 373,
328 U. S. 382,
n. 24.
[
Footnote 11]
Appellant urged that it was not a common carrier, a public
utility, or a "public conveyance" within the specific terms of §
146. The state supreme court said:
"There is no escape from the conclusion that defendant herein is
engaged in the business of operating 'public conveyances' by water,
and the Michigan statute provides: 'All persons within the
jurisdiction of this state shall be entitled to full and equal
accommodations' afforded by such conveyances. The Michigan
enactment has been held constitutional.
Bolden v. Grand Rapids
Operating Corp., 239 Mich. 318, 214 N.W. 241. Our conclusion
is . . . that the Michigan civil rights act . . . is applicable to
the business carried on by defendant. . . ."
317 Mich. 686, 695, 27 N.W.2d 139, 143.
The court distinguished
Meisner v. Detroit, Belle Isle &
Windsor Ferry Co., 154 Mich. 545, 118 N.W. 14, in which
appellant's corporate predecessor was held not liable in tort for
breach of an alleged duty as a common carrier of passengers, by
pointing out that no right apparently had been asserted in that
case grounded on the civil rights act. 317 Mich. 686, 696, 27
N.W.2d 139.
[
Footnote 12]
The jurisdictional statement sought review of these Fourteenth
Amendment questions, as well as the commerce clause issue. But
appellant's reply brief stats:
"The cause before us is a business case arising under the
Michigan Civil Rights Act and the Commerce Clause, not one arising
under the [federal] Civil Rights Act and the 14th Amendment."
And we were given to understand at the oral argument, in
response to specific inquiry, that the only issue on which decision
was sought as of that time was the commerce clause question.
The Michigan Supreme Court did not refer explicitly in its
opinion to appellant's Fourteenth Amendment contentions, but the
record shows they were presented to that court in the assignments
of error on appeal, and were therefore necessarily rejected by its
affirmance of the judgment of the Recorder's Court.
[
Footnote 13]
Until the case reached this Court, apparently, the state had
maintained that foreign commerce was not involved, and the trial
court so held, although the ruling was hedged with the further one
that, if it was erroneous, still the state's power to apply the
civil rights act was not nullified by the commerce clause.
[
Footnote 14]
E.g., on arrival at Bois Blanc, all passengers who land
pass through Canadian customs and immigration inspection. Prior to
the late war, on returning to Detroit, similar inspections were
made by United States authorities. During the war the latter
inspection was suspended, appellant filing a bond to indemnify the
Treasury against loss of revenue and expenses arising from any free
importation of dutiable goods from Bois Blanc or Canada and an
agreement with the Immigration Service not to bring in aliens
ineligible for entry.
[
Footnote 15]
It does not appear whether these sites are inhabited, but
presumably a keeper of the lighthouse occupies some part of the
reserved premises.
[
Footnote 16]
The Province of Ontario enacted in 1944 its Racial
Discrimination Act, Session Laws 1944, c. 51.
Federal legislation has indicated a national policy against
racial discrimination in the requirement, not urged here to be
specifically applicable in this case, of the Interstate Commerce
Act that carriers subject to its provisions provide equal
facilities for all passengers, 49 U.S.C. § 3(1), extended to
carriers by water and air, 46 U.S.C. § 815, 49 U.S.C. §§ 484, 905.
Cf. Mitchell v. United States, 313 U. S.
80. Federal legislation also compels a collective
bargaining agent to represent all employees in the bargaining unit
without discrimination because of race. 45 U.S.C. § 151
et
seq. Steele v. Louisville & Nashville R. Co.,
323 U. S. 192;
Tunstall v. Brotherhood of Locomotive Firemen &
Enginemen, 323 U. S. 210. The
direction of national policy is clearly in accord with Michigan
policy.
Cf. also Hirabayashi v. United States,
320 U. S. 81;
Korematsu v. United States, 323 U.
S. 214;
Ex parte Mitsuye Endo, 323 U.
S. 283.
[
Footnote 17]
It is hardly necessary to recall again that, by the Act of
August 7, 1789, the First Congress declared that pilotage in bays,
inlets, rivers, harbors, and ports of the United States should
continue to be regulated in conformity with existing state laws or
others thereafter enacted until further action by Congress. 1 Stat.
54. Congress on occasion has modified such state legislation,
e.g., by the Act of March 2, 1837, 5 Stat. 153, making it
lawful for vessels navigating waters constituting the boundary
between two states to take on pilots qualified under the laws of
either.
[
Footnote 18]
In
Olsen v. Smith, 195 U. S. 332, the
Court sustained a Texas statute regulating pilotage of a British
vessel coming from a foreign port. The contention that the state
was without power to legislate in this field was disposed of in one
sentence.
"The unsoundness of this contention is demonstrated by the
previous decisions of this court, since it has long since been
settled that, even although state laws concerning pilotage are
regulations of commerce, 'they fall within that class of powers
which may be exercised by the states until Congress has seen fit to
act upon the subject' [citing the
Cooley and other
cases]."
195 U.S. at
195 U. S. 341.
Other cases upholding state regulation of foreign commerce are to
the same effect.
Pacific Mail Steamship Co. v.
Joliffe, 2 Wall. 450;
Wilson v. McNamee,
102 U. S. 572;
Anderson v. Pacific Coast S.S. Co., 225 U.
S. 187.
Cf. Clyde Mallory Lines v. Alabama,
296 U. S. 261, and
cases cited;
Pigeon River Improvement, Slide & Boom Co. v.
Charles W. Cox Ltd., 291 U. S. 138,
291 U. S.
158-159.
[
Footnote 19]
The Court's opinion in that case deals expressly but
indiscriminately with both types of commerce. And, from the record
and arguments of counsel, it seems clear that both were actually
involved. There were two cases relating to two different vessels,
the
Consul, which was engaged in coastwise trade between
Philadelphia and New York, and the
Undine, which appears
to have been engaged exclusively in foreign commerce. The
destination, whether foreign or domestic, of the
Undine is
not shown by the record, which merely states that it sailed "from
the port of Philadelphia to a certain port not within the river
Delaware. . . ." But, from the specific "addition" by counsel for
argumentative purposes, 12 How. at 302-303, of the facts that the
Consul held a federal coasting license and was bound from
one domestic port to another, plus the omission of any reference in
argument or in the record to a similar license for the
Undine (when such a reference would have supported the
additional argument), the inference seems justified that the
Undine had sailed for a foreign port. Moreover counsel
argued that both ships were engaged in foreign commerce, although
only the
Consul was engaged in coastwise trading.
[
Footnote 20]
Cf. Port Richmond Ferry v. Hudson County, 234 U.
S. 317,
234 U. S.
331-332.
MR. JUSTICE DOUGLAS, concurring.
The case is, I think, controlled by a principle which cuts
deeper than that announced by the Court, and which is so important
that it deserves to be stated separately.
Page 333 U. S. 41
Hall v. DeCuir, 95 U. S. 485, and
Morgan v. Virginia, 328 U. S. 373,
presented phases of the problem of segregation. The former held
unconstitutional a Louisiana law forbidding steamboats (which plied
the Mississippi) from segregating passengers according to race. The
latter held unconstitutional a Virginia law requiring segregation
of passengers on interstate motor buses. It was held that diverse
regulations of that character by the several States through which
the traffic moved would be an undue or unreasonable burden on
interstate commerce. But the question here is a simpler one. It is
whether a State can prevent a carrier in foreign commerce from
denying passage to a person because of his race or color. For this
is a case of a discrimination against a Negro by a carrier's
complete denial of passage to her because of her race.
It is unthinkable to me that we would strike down a state law
which required all carriers -- local and interstate -- to transport
all persons regardless of their race or color. The common law duty
of carriers was to provide equal service to all, a duty which the
Court has held a State may require of interstate carriers in the
absence of a conflicting federal law.
Missouri Pacific R. Co.
v. Larabee Flour Mills Co., 211 U. S. 612,
211 U. S. 619,
211 U. S.
623-624. And the police power of a State under our
constitutional system is adequate for the protection of the civil
rights of its citizens against discrimination by reason of race or
color.
Railway Mail Assn. v. Corsi, 326 U. S.
88. Moreover, in this situation, there is no basis for
saying that the Commerce Clause itself defeats such a law. This
regulation would not place a burden on interstate commerce within
the meaning of our cases. It does not impose a regulation which
discriminates against interstate commerce or which, by specifying
the mode in which it shall be conducted, disturbs and uniformity
essential to its proper functioning.
See
Southern
Page 333 U. S. 42
Pacific R. Co. v. Arizona, 325 U.
S. 761;
Morgan v. Virginia, supra. I see
nothing in the Commerce Clause which places foreign commerce on a
more protected level.
There is in every case, of course, a possibility that Congress
may pass laws regulating foreign or interstate commerce in conflict
with regulations prescribed by a State. Or, in the case of foreign
commerce, the national government might act through a treaty.
Inconsistent State law would then give way to any exercise of
federal power within the scope of constitutional authority. But I
am aware of no power which Congress has to create different classes
of citizenship according to color so as to grant freedom of
movement in the channels of commerce to certain classes only.
Cf. Edwards v. California, 314 U.
S. 160,
314 U. S.
177-181. The federal policy reflected in Acts of
Congress indeed bars any such discrimination (
see Mitchell v.
United States, 313 U. S. 80), and
so is wholly in harmony with Michigan's law. And no treaty reveals
a different attitude.
Moreover, there is no danger of burden and confusion from
diverse state laws if Michigan's regulation is sustained. If a
sister State undertook to bar Negroes from passage on public
carriers, that law would not only contravene the federal rule, but
also invade a "fundamental individual right which is guaranteed
against state action by the Fourteenth Amendment."
Mitchell v.
United States, supra, at
313 U. S. 94.
Nothing short of at least "equality of legal right" (
Missouri
ex rel. Gaines v. Canada, 305 U. S. 337,
305 U. S. 350)
in obtaining transportation can satisfy the Equal Protection
Clause. Hence, I do not see how approval of Michigan's law in any
way interferes with the uniformity essential for the movement of
vehicles in commerce. The only constitutional uniformity is
uniformity in the Michigan pattern.
Page 333 U. S. 43
If a State's law made a head-on collision with the policy of a
foreign power whose shores were reached by our vessels, a different
problem might be presented. But no such conflict is present
here.
MR. JUSTICE BLACK, who joins in the opinion of the Court,
concurs also in this opinion.
MR. JUSTICE JACKSON, with whom THE CHIEF JUSTICE agrees,
dissenting.
This Michigan statute undoubtedly is valid when applied to
Michigan intrastate commerce, just as a Congressional enactment of
like tenor would undoubtedly be valid as to commerce among the
states and with foreign countries. The question here, however, is
whether the Michigan statute can validly be applied to that
commerce which is set apart by the Constitution for regulation by
the Congress.
The sphere of a state's power has not been thought to expand or
contract because of the policy embodied in a particular regulation.
A state statute requiring equality of accommodations for white and
Negro passengers was held invalid as applied to interstate
commerce.
Hall v. DeCuir, 95 U. S.
485. On the same principle, a state statute requiring
segregation was held invalid as applied to interstate commerce.
Morgan v. Virginia, 328 U. S. 373.
Heretofore, the Court steadily has held that the failure of
Congress to enact a law on this specific subject does not operate
to expose interstate commerce to the burden of local rules, no
matter what policy in this highly controversial matter a state
sought to advance. It would seem to me that the constitutional
principles which have been so apparent to the Court that it would
not permit local policies to burden national commerce are even more
obvious in relation to foreign commerce.
Page 333 U. S. 44
Certainly if any state can enforce regulations concerning
embarkation and landing, it can, in effect, control much that
pertains to the foreign journey. To determine what persons and
commodities shall be taken abroad is to control what persons and
commodities may become the subject of foreign commerce, and that is
to control the lifeblood of the commerce itself. These are
identical with matters in which this commerce is subject to control
by federal and foreign governments. The Federal Government takes
active control of the inbound movement of goods by virtue of its
customs service and of the movement of persons by virtue of its
immigration service across these boundaries. The Canadian
government does the same on the outbound crossing of the
international line. It does so in this case, and it does so even if
the bulk of the travelers do not go very far or stay very long, and
are merely amusement-bent.
The wholesome and amiable situation detailed in the Court's
opinion is made possible only by international relations wholly
controlled by the Federal Government. It alone can effectively
protect or foster this kind of commerce, and it alone should be
allowed to burden it. If we are to concede this power over foreign
commerce to one state, it would seem that it could logically be
claimed by every state which has a port, border, or landing field
used by foreign commerce.
The Court admits that the commerce involved in this case is
foreign commerce, but subjects it to the state police power on the
ground that it is not very foreign. It fails to lay down any
standard by which we can judge when foreign commerce is foreign
enough to become free of local regulation. The commerce involved
here is not distinguishable from a great deal of the traffic across
our Canadian and Mexican borders, except perhaps in volume.
Communities have sprung up on either side whose social
Page 333 U. S. 45
and economic relations are interdependent, but are conducted
with scrupulous regard for the international boundary. Localities
on either side of the line may develop in reliance on a certain
reciprocity and stability of policy which has characterized two
nations for years, when they cannot rely on similar stability or
farsightedness in local policy.
It seems to me no adequate protection of foreign commerce from a
multitude and diversity of burdening and capricious local
regulations that this Court may stand ready, as in this case, to
apply itself to an analysis of the traffic involved and determine
in each case whether the local interest in it is sufficiently
strong and the foreign element is sufficiently weak so that we will
permit the regulation to stand. We do not, and apparently cannot,
enunciate any legal criteria by which those who engage in foreign
commerce can predict which classification we will impose upon any
particular operation, and we lay down no rule other than our
passing impression to guide ourselves or our successors. All is
left to case-by-case conjecture. The commerce clause was intended
to promote commerce, rather than litigation.
I believe that, once it is conceded, as it is in this case, that
the commerce involved is foreign commerce, that fact alone should
be enough to prevent a state from controlling what may, or what
must, move in the stream of that commerce.