BOB-LO EXCURSION CO. v. MICHIGAN
No. 374
Supreme Court of the United States
Argued December 16-17, 1947.—Decided February 2, 1948
333 U.S. 28
Edmund E. Shepherd, Solicitor General of Michigan, argued the cause for appellee. With him on the brief were Eugene F. Black, Attorney General, and Daniel J. O‘Hara, Assistant Attorney General.
Briefs of amici curiae in support of appellee were filed by William Maslow, Shad Polier, Jerome C. Eisenberg
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.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.2 No freight, mail or express is carried; the only passengers are the patrons bent on pleasure, who board ship at Detroit;
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.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
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 act6 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 $25.7 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. In due course probable jurisdiction was noted here.
“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
We have therefore only to consider the single and narrow question whether the state courts correctly held that the commerce clause,
There can be no doubt that appellant‘s transportation of its patrons is foreign commerce within the scope of
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,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.
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.
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.
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 Pacific 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, 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
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.
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.