Bob-Lo Excursion Co. v. Michigan
Opinion of the Court
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.
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.
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
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. Dev-ereaux 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
“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, theatres, 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.”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.
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.
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,
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 State of Michigan than to Dominion or Ontario interests or to those of the United States in regulating our foreign commerce.
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 con
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. Those conclusions were right.
The judgment is
Affirmed.
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.”
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.
Apparently no facilities are provided at the island for overnight guests.
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.
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.
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 10.
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.
The appropriate statutory citations are set forth in note 6.
Section 147 is as follows: “Any person being an owner, lessee, proprietor, manager, superintendent, agent or employe 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
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.
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, 382, n. 24.
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 (53 A. L. R. 183). Our conclusion is . . . that the Michigan civil rights act . . . is applicable to the business carried on by defendant . . . .” 317 Mich. 686, 695.
The court distinguished Meisner v. Detroit, Belle Isle & Windsor Ferry Co., 154 Mich. 545, 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 state civil rights act. 317 Mich. 686, 696.
The jurisdictional statement sought review of these Fourteenth Amendment questions, as well as the commerce clause issue. But appellant’s reply brief states: “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.
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.
B. 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.
It does not appear whether these sites are inhabited, but presumably a keeper of the lighthouse occupies some part of the reserved premises.
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 Endo, 323 U. S. 283.
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.
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. 341. Other cases upholding state regulation of foreign commerce are to the same effect. 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 Co. v. Cox Co., 291 U. S. 138, 158-159.
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 eases relating to two different vessels, the Consul,
Cf. Port Richmond Ferry v. Hudson County, 234 U. S. 317, 331-332.
Dissenting Opinion
with whom
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.
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
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.
Concurring Opinion
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.
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, 619, 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 the uniformity essential to its proper functioning. See Southern
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, 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, p. 94. Nothing short of at least “equality of legal right” (Missouri ex rel. Gaines v. Canada, 305 U. S. 337, 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.
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