10

Smith vs. Allwright et al.

poll tax. Every person who does so pay and who has the qualifications of age and residence is an acceptable voter for the primary. Art. 2955. As appears above in the summary of the statutory provisions set out in note 6, Texas requires by the law the election of the county officers of a party. These compose the county executive committee. The county chairmen so selected are members of the district executive committee and choose the chairman for the district. Precinct primary election officers are named by the county executive committee. Statutes provide for the election by the voters of precinct delegates to the county convention of a party and the selection of delegates to the district and state conventions by the county convention. The state convention selects the state executive committee. No convention may place in platform or resolution any demand for specific legislation without endorsement of such legislation by the voters in a primary. Texas thus directs the selection of all party officers.

Primary elections are conducted by the party under state statutory authority. The county executive committee selects precinct election officials and the county, district or state executive committees, respectively, canvass the returns. These party committees or the state convention certify the party's candidates to the appropriate officers for inclusion on the official ballot for the general election. No name which has not been so certified may appear upon the ballot for the general election as a candidate of a political party. No other name may be printed on the ballot which has not been placed in nomination by qualified voters who must take oath that they did not participate in a primary for the selection of a candidate for the office for which the nomination is made.

The state courts are given exclusive original jurisdiction of contested elections and of mandamus proceedings to compel party officers to perform their statutory duties.

We think that this statutory system for the selection of party nominees for inclusion on the general election ballot makes the party which is required to follow these legislative directions an agency of the state in so far as it determines the participants in a primary election. The party takes its character as a state agency from the duties imposed upon it by state statutes; the duties do not become matters of private law because they are performed by a political party. The plan of the Texas primary follows substantially

Smith vs. Allwright et al.

11

that of Louisiana, with the exception that in Louisiana the state pays the cost of the primary while Texas assesses the cost against candidates. In numerous instances, the Texas statutes fix or limit the fees to be charged. Whether paid directly by the state or through state requirements, it is state action which compels. When primaries become a part of the machinery for choosing officials, state and national, as they have here, the same tests to determine the character of discrimination or abridgement should be applied to the primary as are applied to the general election. If the state requires a certain electoral procedure, prescribes a general election ballot made up of party nominees so chosen and limits the choice of the electorate in general elections for state offices, practically speaking, to those whose names appear on such a ballot, it endorses, adopts and enforces the discrimination against Negroes, practiced by a party entrusted by Texas law with the determination of the qualifications of participants in the primary. This is state action within the meaning of the Fifteenth Amendment. *Guinn v. United States*, 238 U. S. 347, 362.

The United States is a constitutional democracy. Its organic law grants to all citizens a right to participate in the choice of elected officials without restriction by any state because of race. This grant to the people of the opportunity for choice is not to be nullified by a state through casting its electoral process in a form which permits a private organization to practice racial discrimination in the election. Constitutional rights would be of little value if they could be thus indirectly denied. *Lane v. Wilson*, 307 U. S. 268, 275.

The privilege of membership in a party may be, as this Court said in *Grovey v. Townsend*, 295 U. S. 45, 55, no concern of a state. But when, as here, that privilege is also the essential qualification for voting in a primary to select nominees for a general election, the state makes the action of the party the action of the state. In reaching this conclusion we are not unmindful of the desirability of continuity of decision in constitutional questions.⁸ However, when convinced of former error, this Court has never felt constrained to follow precedent. In constitutional questions, where correction depends upon amendment and not upon legislative action this Court throughout its history has freely exercised

⁸ Cf. *Pollock v. Farmers Loan & Trust Co.*, 157 U. S. 429, 652.

12

Smith vs. Allwright et al.

its power to reexamine the basis of its constitutional decisions. This has long been accepted practice,⁹ and this practice has continued to this day.¹⁰ This is particularly true when the decision believed erroneous is the application of a constitutional principle rather than an interpretation of the Constitution to extract the principle itself.¹¹ Here we are applying, contrary to the recent decision in *Grovey v. Townsend*, the well established principle of the Fifteenth Amendment, forbidding the abridgement by a state of a citizen's right to vote. *Grovey v. Townsend* is overruled.

Judgment reversed.

Mr. Justice FRANKFURTER concurs in the result.

⁹ See cases collected in the dissenting opinion in Burnet v. Coronado Oil & Gas Co., 285 U. S. 393, 410.

¹⁰ See e.g., United States v. Darby, 312 U. S. 100; overruling Hammer v. Dagenhart, 247 U. S. 251; California v. Thompson, 313 U. S. 109; overruling DiSanto v. Pennsylvania, 273 U. S. 34; West Coast Hotel Co. v. Parrish, 300 U. S. 379, overruling Adkins v. Children's Hospital, 261 U. S. 525; Helvering v. Producers Corp., 303 U. S. 376, overruling Gillespie v. Oklahoma, 257 U. S. 501 and Burnet v. Coronado Oil & Gas Co., 285 U. S. 393; Erie R. Co. v. Tompkins, 304 U. S. 64, overruling Swift v. Tyson, 16 Pet. 1; Graves v. New York ex rel. O'Keefe, 306 U. S. 466, overruling Collector v. Day, 11 Wall. 113, and New York ex rel. Rogers v. Graves, 299 U. S. 401; O'Malley v. Woodrough, 307 U. S. 277, overruling Miles v. Graham, 268 U. S. 501; Madden v. Kentucky, 309 U. S. 83, overruling Colgate v. Harvey, 296 U. S. 404; Helvering v. Hallock, 309 U. S. 106, overruling Helvering v. St. Louis Union Trust Co., 296 U. S. 39 and Becker v. St. Louis Union Trust Co., 296 U. S. 48; Nye v. United States, 313 U. S. 33, overruling Toledo Newspaper Co. v. United States, 247 U. S. 402; Alabama v. King & Boozer, 314 U. S. 1, overruling Panhandle Oil Co. v. Knox, 277 U. S. 218 and Graves v. Texas Co., 298 U. S. 393; Williams v. North Carolina, 317 U. S. 287, overruling Haddock v. Haddock, 201 U. S. 562; State Tax Commission v. Aldrich, 316 U. S. 174, overruling First National Bank v. Maine, 284 U. S. 312; Board of Education v. Barnette, 319 U. S. 624, overruling Minersville School District v. Gobitis, 310 U. S. 586.

¹¹ Cf. Dissent in Burnet v. Coronado Oil & Gas Co., 285 U. S. 393 at 410.

SUPREME COURT OF THE UNITED STATES.

No. 51.—OCTOBER TERM, 1943.

Lonnie E. Smith, Petitioner,
vs.
S. E. Allwright, Election Judge,
et al.

On Writ of Certiorari to
the United States Circuit
Court of Appeals for the
Fifth Circuit.

[April 3, 1944.]

Mr. Justice ROBERTS.

In Mahnich v. The Southern Steamship Co., No. 200 of the present term, I have expressed my views with respect to the present policy of the court freely to disregard and to overrule considered decisions and the rules of law announced in them. This tendency, it seems to me, indicates an intolerance for what those who have composed this court in the past have conscientiously and deliberately concluded, and involves an assumption that knowledge and wisdom reside in us which was denied to our predecessors. I shall not repeat what I there said for I consider it fully applicable to the instant decision, which but points the moral anew.

A word should be said with respect to the judicial history forming the background of *Grovey v. Townsend*, 295 U. S. 45, which is now overruled.

In 1923 Texas adopted a statute which declared that no negro should be eligible to participate in a Democratic primary election in that State. A negro, a citizen of the United States and of Texas, qualified to vote, except for the provisions of the statute, was denied the opportunity to vote in a primary election at which candidates were to be chosen for the offices of senator and representative in the Congress of the United States. He brought action against the judges of election in a United States court for damages for their refusal to accept his ballot. This court unanimously reversed a judgment dismissing the complaint and held that the judges acted pursuant to State law and that the State of Texas, by its statute, had denied the voter the equal protection secured by the Fourteenth Amendment. *Nixon v. Herndon*, 273 U. S. 536 (1927).

2

Smith vs. Allwright et al.

In 1927 the legislature of Texas repealed the provision con-
demned by this court and enacted that every political party in
the State might, through its Executive Committee prescribe the
qualifications of its own members and determine in its own way
who should be qualified to vote or participate in the party, except
that no denial of participation could be decreed by reason of
former political or other affiliation. Thereupon the State Execu-
tive Committee of the Democratic Party in Texas adopted a reso-
lution that white Democrats, and no other, should be allowed to
participate in the party's primaries.

A negro, whose primary ballot was rejected pursuant to the
resolution, sought to recover damages from the judges who had
rejected it. The United States District Court dismissed his action,
and the Circuit Court of Appeals affirmed; but this court reversed
the judgment and sustained the right of action by a vote of 5 to
4. *Nixon v. Condon*, 286 U. S. 73 (1932).

The opinion was written with care. The court refused to decide
whether a political party in Texas had inherent power to deter-
mine its membership. The court said, however: "Whatever in-
herent power a State political party has to determine the content
of its membership resides in the State convention", and referred
to the statutes of Texas to demonstrate that the State had left the
Convention free to formulate the party faith. Attention was
directed to the fact that the statute under attack did not leave
to the party convention the definition of party membership but
placed it in the party's State Executive Committee which could
not, by any stretch of reasoning, be held to constitute the party.
The court held, therefore, that the State Executive Committee
acted solely by virtue of the statutory mandate and as delegate
of State power, and again struck down the discrimination against
negro voters as deriving force and virtue from State action,—
that is, from statute.

In 1932 the Democratic Convention of Texas adopted a reso-
lution that "all white citizens of the State of Texas who are
qualified to vote under the Constitution and laws of the state
shall be eligible to membership in the Democratic party and as
such entitled to participate in its deliberations."

A negro voter qualified to vote in a primary election, except
for the exclusion worked by the resolution, demanded an absentee
ballot which he was entitled to mail to the judges at a primary

Smith vs. Allwright et al.

3

election except for the resolution. The county clerk refused to
furnish him a ballot. He brought an action for damages against
the clerk in a state court. That court, which was the tribunal
having final jurisdiction under the laws of Texas, dismissed his
complaint and he brought the case to this court for review. After
the fullest consideration by the whole court¹ an opinion was
written representing its unanimous views and affirming the judg-
ment. *Grovey v. Townsend*, 295 U. S. 45 (1935).

I believe it will not be gainsaid the case received the attention
and consideration which the questions involved demanded and
the opinion represented the views of all the justices. It appears
that those views do not now commend themselves to the court.
I shall not restate them. They are exposed in the opinion and
must stand or fall on their merits. Their soundness, however, is
not a matter which presently concerns me.

The reason for my concern is that the instant decision, over-
ruling that announced about nine years ago, tends to bring adju-
dications of this tribunal into the same class as a restricted rail-
road ticket, good for this day and train only. I have no assur-
ance, in view of current decisions, that the opinion announced
today may not shortly be repudiated and overruled by justices
who deem they have new light on the subject. In the present
term the court has overruled three cases.

In the present case, as in *Mahnich v. Southern S.S. Co.*, No.
200, the court below relied, as it was bound to, upon our previous
decision. As that court points out, the statutes of Texas have not
been altered since *Grovey v. Townsend* was decided. The same
resolution is involved as was drawn in question in *Grovey v. Town-
send*. Not a fact differentiates that case from this except the
names of the parties.

It is suggested that *Grovey v. Townsend* was overruled *sub
silentio* in *United States v. Classic*, 313 U. S. 299. If so, the
situation is even worse than that exhibited by the outright re-
pudiation of an earlier decision, for it is the fact that, in the
*Classic* case, *Grovey v. Townsend* was distinguished in brief and
argument by the Government without suggestion that it was
wrongly decided, and was relied on by the appellees, not as a
controlling decision, but by way of analogy. The case is not

1 The court was composed of Hughes, C. J., VanDevanter, McReynolds, Brandeis, Sutherland, Butler, Stone, Roberts and Cardozo, JJ.

4

Smith vs. Allwright et al.

mentioned in either of the opinions in the *Classic* case. Again and again it is said in the opinion of the court in that case that the voter who was denied the right to vote was a fully qualified voter. In other words, there was no question of his being a person entitled under state law to vote in the primary. The offense charged was the fraudulent denial of his conceded right by an election officer because of his race. Here the question is altogether different. It is whether, in a Democratic primary, he who tendered his vote was a member of the Democratic Party.

I do not stop to call attention to the material differences between the primary election laws of Louisiana under consideration in the *Classic* case and those of Texas which are here drawn in question. These differences were spelled out in detail in the Government's brief in the *Classic* case and emphasized in its oral argument. It is enough to say that the Louisiana statutes required the primary to be conducted by State officials and made it a State election, whereas, under the Texas statute, the primary is a party election conducted at the expense of members of the party and by officials chosen by the party. If this court's opinion in the *Classic* case discloses its method of overruling earlier decisions, I can only protest that, in fairness, it should rather have adopted the open and frank way of saying what it was doing than, after the event, characterize its past action as overruling Grovey v. Townsend though those less sapient never realized the fact.

It is regrettable that in an era marked by doubt and confusion, an era whose greatest need is steadfastness of thought and purpose, this court, which has been looked to as exhibiting consistency in adjudication, and a steadiness which would hold the balance even in the face of temporary ebbs and flows of opinion, should now itself become the breeder of fresh doubt and confusion in the public mind as to the stability of our institutions.

LAW LIBRARY
DEPARTMENT OF THE INTERIOR

✓0

No. 37.—OCTOBER TERM, 1944.

Tom Tunstall, Petitioner,

vs.

Brotherhood of Locomotive Firemen
and Enginemen, Ocean Lodge No. 76,
Port Norfolk Lodge No. 775, et al.

On Writ of Certiorari to
the United States Cir-
cuit Court of Appeals
for the Fourth Circuit.

[December 18, 1944.]

Mr. Chief Justice STONE delivered the opinion of the Court.

This is a companion case to No. 45, *Steele v. Louisville Railroad Co., Brotherhood of Locomotive Firemen and Enginemen and others*, decided this day, in which we answered in the affirmative a question also presented in this case. The question is whether the Railway Labor Act, 48 Stat. 1185, 45 U. S. C. §§ 151 *et seq.*, imposes on a labor organization, acting as the exclusive bargaining representative of a craft or class of railway employees, the duty to represent all the employees in the craft without discrimination because of their race. The further question in this case is whether the federal courts have jurisdiction to entertain a non-diversity suit in which petitioner, a railway employee subject to the Act, seeks remedies by injunction and award of damages for the failure of the union bargaining representative of his craft to perform the duty imposed on it by the Act, to represent petitioner and other members of his craft without discrimination because of race.

Petitioner, a negro fireman, employed by the Norfolk & Southern Railway, brought this suit in the District Court against the Railway, the Brotherhood of Locomotive Firemen and Enginemen and certain of its subsidiary lodges, and one of its officers, setting up, in all material respects, a cause of action like that alleged in the *Steele* case. The Brotherhood, a labor union, is the designated bargaining representative under the Railway Labor Act, for the craft of firemen of which petitioner is a member, and is accepted as such by the Railway and its employees.

Acting as such the Brotherhood gave to the Railroad the notice
of March 28, 1940, and later entered into the contract of February

DEC 22 1944

5

2 Tunstall vs. Brotherhood of Locomotive Firemen etc., et al.

18, 1941 and its subsequent modifications, all of which were the subject of our consideration in the *Steele* case. Petitioner complains of the discriminatory application of the contract provisions to him and other negro members of his craft in favor of "promotable", i. e. white, firemen, by which he has been deprived of his pre-existing seniority rights, removed from the interstate passenger run to which he was assigned and then assigned to more arduous and difficult work with longer hours in yard service, his place in the passenger service being filled by a white fireman.

He alleges that the contract was signed and put into effect without notice to him or other negro members of his craft, and without opportunity for them to be heard with respect to its terms, and that his protests and demands for relief to the Railway and the Brotherhood have been unavailing. Petitioner prays for a declaratory adjudication of his rights, for an injunction restraining the discriminatory practices complained of, for an award of damages and for other relief.

The District Court dismissed the suit for want of jurisdiction. The Circuit Court of Appeals for the Fourth Circuit affirmed, 140 F. 2d 35, on the ground that the federal courts are without jurisdiction of the cause, there being no diversity of citizenship and, insofar as the suit is grounded on the wrongful acts of respondents, it is not one arising under the laws of the United States, even though the union was chosen as bargaining representative pursuant to the Railway Labor Act. See *Gully v. First National Bank*, 299 U. S. 109, 112, 114.

For the reasons stated in our opinion in the *Steele* case the Railway Labor Act itself does not exclude the petitioner's cause of action from the consideration of the federal courts. Cf. *Switchmen's Union v. National Mediation Board*, 320 U. S. 297; *General Committee v. M.-K.-T. R. Co.*, 320 U. S. 323; *General Committee v. Southern Pacific Co.*, 320 U. S. 338; *Brotherhood of Railway & Steamship Clerks v. United Transport Service Employees*, 320 U. S. 715, 816, with *Texas & New Orleans Railroad Co. v. Brotherhood of Railway Clerks*, 281 U. S. 548; *Virginian Railway Co. v. System Federation*, 300 U. S. 515.

We also hold that the right asserted by petitioner which is derived from the duty imposed by the Railway Labor Act on the Brotherhood, as bargaining representative, is a federal right implied from the statute and the policy which it has adopted. It is

Tunstall vs. Brotherhood of Locomotive Firemen etc., et al. 3

the federal statute which condemns as unlawful the Brotherhood's conduct. "The extent and nature of the legal consequences of this condemnation, though left by the statute to judicial determination, are nevertheless to be derived from it and the federal policy which it has adopted." *Deitrick v. Greaney*, 309 U. S. 190, 200-201; *Board of County Commissioners v. United States*, 308 U. S. 343; *Sola Electric Co. v. Jefferson Co.*, 317 U. S. 173, 176-7; cf. *Clearfield Trust Co. v. United States*, 318 U. S. 363. The case is therefore one arising under a law regulating commerce of which the federal courts are given jurisdiction by 28 U. S. C. § 41(8), Judicial Code § 24(8); *Mulford v. Smith*, 307 U. S. 38, 46; *Peyton v. Railway Express Agency*, 316 U. S. 350; cf. *Illinois Steel Co. v. B. & O. R. Co.*, 320 U. S. 508, 510-511.

For the reasons also stated in our opinion in the *Steele* case the petitioner is without available administrative remedies, resort to which, when available, is prerequisite to equitable relief in the federal courts. *Goldsmith v. Board of Tax Appeals*. 270 U. S. 117, 123; *Porter v. Investors Syndicate*, 286 U. S. 461, 471; 287 U. S. 346; *Natural Gas Co. v. Slattery*, 302 U. S. 300, 309; *Atlas Ins. Co. v. Southern Inc.*, 306 U. S. 563.

We hold, as in the *Steele* case, that the bill of complaint states a cause of action entitling plaintiff to relief. As other jurisdictional questions were raised in the courts below which have not been considered by the Court of Appeals, the case will be remanded to that court for further proceedings.

Reversed.

Mr. Justice MURPHY concurs in the result for the reasons expressed in his concurring opinion in *Steele v. Louisville & Nashville R. R. Co.*

No. 70.—OCTOBER TERM, 1944.

Ex parte Mitsuye Endo. On Certificate from the United States Circuit Court of Appeals for the Ninth Circuit.

[December 18, 1944.]

Mr. Justice DOUGLAS delivered the opinion of the Court.

This case comes here on a certificate of the Court of Appeals for the Ninth Circuit, certifying to us questions of law upon which it desires instructions for the decision of the case. Judicial Code § 239, 28 U. S. C. § 346. Acting under that section we ordered the entire record to be certified to this Court so that we might proceed to a decision, as if the case had been brought here by appeal.

Mitsuye Endo, hereinafter designated as the appellant, is an American citizen of Japanese ancestry. She was evacuated from Sacramento, California, in 1942, pursuant to certain military orders which we will presently discuss, and was removed to the Tule Lake War Relocation Center located at Newell, Modoc County, California. In July, 1942, she filed a petition for a writ of habeas corpus in the District Court of the United States for the Northern District of California, asking that she be discharged and restored to liberty. That petition was denied by the District Court in July, 1943, and an appeal was perfected to the Circuit Court of Appeals in August, 1943. Shortly thereafter appellant was transferred from the Tule Lake Relocation Center to the Central Utah Relocation Center located at Topaz, Utah, where she is presently detained. The certificate of questions of law was filed here on April 22, 1944, and on May 8, 1944, we ordered the entire record to be certified to this Court. It does not appear that any respondent was ever served with process or appeared in the proceedings. But the United States Attorney for the Northern District of California argued before the District Court that the petition should not be granted. And the Solicitor General argued the case here.

The history of the evacuation of Japanese aliens and citizens of Japanese ancestry from the Pacific coastal regions, following

DEC 22 1944

2

Ex parte Mitsuye Endo.

the Japanese attack on our Naval Base at Pearl Harbor on December 7, 1941, and the declaration of war against Japan on December 8, 1941 (55 Stat. 795), has been reviewed in *Hirabayashi v. United States*, 320 U. S. 81. It need be only briefly recapitulated here. On February 19, 1942, the President promulgated Executive Order No. 9066, 7 Fed. Reg. 1407. It recited that

"the successful prosecution of the war requires every possible protection against espionage and against sabotage to national-defense material, national-defense premises, and national-defense utilities as defined in Section 4, Act of April 20, 1918, 40 Stat. 533, as amended by the Act of November 30, 1940, 54 Stat. 1220, and the Act of August 21, 1941, 55 Stat. 655 (U. S. C., Title 50, Sec. 104)."

And it authorized and directed

"the Secretary of War, and the Military Commanders whom he may from time to time designate, whenever he or any designated Commander deems such action necessary or desirable, to prescribe military areas in such places and of such extent as he or the appropriate Military Commander may determine, from which any or all persons may be excluded, and with respect to which, the right of any person to enter, remain in, or leave shall be subject to whatever restrictions the Secretary of War or the appropriate Military Commander may impose in his discretion. The Secretary of War is hereby authorized to provide for residents of any such area who are excluded therefrom, such transportation, food, shelter, and other accommodations as may be necessary, in the judgment of the Secretary of War or the said Military Commander, and until other arrangements are made, to accomplish the purpose of this order."

Lt. General J. L. De Witt, Military Commander of the Western Defense Command, was designated to carry out the duties prescribed by that Executive Order. On March 2, 1942, he promulgated Public Proclamation No. 1 (7 Fed. Reg. 2320) which recited that the entire Pacific Coast of the United States

"by its geographical location is particularly subject to attack, to attempted invasion by the armed forces of nations with which the United States is now at war, and, in connection therewith, is subject to espionage and acts of sabotage, thereby requiring the adoption of military measures necessary to establish safeguards against such enemy operations."

It designated certain Military Areas and Zones in the Western Defense Command and announced that certain persons might subsequently be excluded from these areas. On March 16, 1942,

Ex parte Mitsuye Endo.

3

General De Witt promulgated Public Proclamation No. 2 which contained similar recitals and designated further Military Areas and Zones. 7 Fed. Reg. 2405.

On March 18, 1942, the President promulgated Executive Order No. 9102 which established in the Office for Emergency Management of the Executive Office of the President the War Relocation Authority. 7 Fed. Reg. 2165. It recited that it was made "in order to provide for the removal from designated areas of persons whose removal is necessary in the interests of national security." It provided for a Director and authorized and directed him to

"formulate and effectuate a program for the removal, from the areas designated from time to time by the Secretary of War or appropriate military commander under the authority of Executive Order No. 9066 of February 19, 1942, of the persons or classes of persons designated under such Executive Order, and for their relocation, maintenance, and supervision."

The Director was given the authority, among other things, to prescribe regulations necessary or desirable to promote effective execution of the program.

Congress shortly enacted legislation which, as we pointed out in *Hirabayashi v. United States, supra*, ratified and confirmed Executive Order No. 9066. See 320 U. S. pp. 87-91. It did so by the Act of March 21, 1942 (56 Stat. 173) which provided:

"That whoever shall enter, remain in, leave, or commit any act in any military area or military zone prescribed, under the authority of an Executive order of the President, by the Secretary of War, or by any military commander designated by the Secretary of War, contrary to the restrictions applicable to any such area or zone or contrary to the order of the Secretary of War or any such military commander, shall, if it appears that he knew or should have known of the existence and extent of the restrictions or order and that his act was in violation thereof, be guilty of a misdemeanor and upon conviction shall be liable to a fine of not to exceed $5,000 or to imprisonment for not more than one year, or both, for each offense."

Beginning on March 24, 1942, a series of 108 Civilian Exclusion Orders¹ were issued by General De Witt pursuant to Public Proc-

1 Civilian Exclusion Orders Nos. 1 to 99 were ratified by General De Witt's Public Proclamation No. 7 of June 8, 1942 (7 Fed. Reg. 4498) and Nos. 100 to 108 were ratified by Public Proclamation No. 11 of August 18, 1942. 7 Fed. Reg. 6703.

4

Ex parte Mitsuye Endo.

lamation Nos. 1 and 2. Appellant's exclusion was effected by Civilian Exclusion Order No. 52, dated May 7, 1942. It ordered that "all persons of Japanese ancestry, both alien and non-alien" be excluded from Sacramento, California,² beginning at noon on May 16, 1942. Appellant was evacuated to the Sacramento Assembly Center on May 15, 1942, and was transferred from there to the Tule Lake Relocation Center on June 19, 1942.

On May 19, 1942, General De Witt promulgated Civilian Restrictive Order No. 1 (8 Fed. Reg. 982) and on June 27, 1942, Public Proclamation No. 8. 7 Fed. Reg. 8346. These prohibited evacuees from leaving Assembly Centers or Relocation Centers except pursuant to an authorization from General De Witt's headquarters. Public Proclamation No. 8 recited that "the present situation within these military areas requires as a matter of military necessity" that the evacuees be removed to "Relocation Centers for their relocation, maintenance and supervision", that those Relocation Centers be designated as War Relocation Project Areas, and that restrictions on the rights of the evacuees to enter, remain in, or leave such areas be promulgated. These restrictions were applicable to the Relocation Centers within the Western Defense Command³ and included both of those in which appellant has

² By Public Proclamation No. 4, dated March 27, 1942 (7 Fed. Reg. 2601) General De Witt had ordered that all persons of Japanese ancestry who were within the limits of Military Area No. 1 (which included the City of Sacramento) were prohibited "from leaving that area for any purpose until and to the extent that a future proclamation or order of this headquarters shall so permit or direct."

Prior to this Proclamation a system of voluntary migration had been in force under which 4,889 persons left the military areas under their own arrangements. Final Report, Japanese Evacuation from the West Coast (1943), p. 109. The following reasons are given for terminating that program:

> "Essentially, the objective was twofold. First, it was to alleviate tension and prevent incidents involving violence between Japanese migrants and others. Second, it was to insure an orderly, supervised, and thoroughly controlled evacuation with adequate provision for the protection of the persons of evacuees as well as their property."

Final Report, *supra*, p. 105.

³ Six War Relocation Centers and Project Areas were established within and four outside the Western Defense Command. See Final Report, *supra*, note 2, Part VI. Each one which was outside the Western Defense Command was designated as a military area by the Secretary of War in Public Proclamation No. WD1, dated August 13, 1942. That proclamation provided that all persons of Japanese ancestry in those areas were required to remain there unless written authorization to leave was obtained from the Secretary of War or the Director of the War Relocation Authority. 7 Fed. Reg. 6593. It

Ex parte Mitsuye Endo.

5

been confined—Tule Lake Relocation Center at Newell, California and Central Utah Relocation Center at Topaz, Utah. And Public Proclamation No. 8 purported to make any person who was subject to its provisions and who failed to conform to it liable to the penalties prescribed by the Act of March 21, 1942.

By letter of August 11, 1942, General De Witt authorized the War Relocation Authority⁴ to issue permits for persons to leave these areas. By virtue of that delegation⁵ and the authority conferred by Executive Order No. 9102, the War Relocation Authority was given control over the ingress and egress of evacuees from the Relocation Centers where Mitsuye Endo was confined.⁶

recited that the United States was subject to "espionage and acts of sabotage, thereby requiring the adoption of military measures necessary to establish safeguards against such enemy operations emanating from within as well as from without the national boundaries." And it also purported to make any person who was subject to its provisions and who failed to obey it liable to the penalties prescribed by the Act of March 21, 1942.

⁴ The letter of August 11, 1942, is printed in the Final Report, *supra*, note 2, p. 530. It recited that the delegation of authority was made pursuant to provisions of Public Proclamation No. 8, dated June 27, 1942. Later General De Witt described the supervision of Relocation Centers by the War Relocation Authority as follows:

> "The initial problem was one of security—the security of the Pacific Coast. The problem was met by evacuation to Assembly Centers followed by a transfer to Relocation Centers. The latter phase—construction, supply, equipment of Relocation Centers and the transfer of evacuees from Assembly to Relocation Centers had been accomplished by the Army. (While the Commanding General was made responsible for this latter phase of the program, in so doing, he was accomplishing a mission of the War Relocation Authority rather than strictly an Army mission.) The second problem—national in scope—essentially a social-economic problem, was primarily for solution by the War Relocation Authority, an agency expressly created for that purpose."

Final Report, *supra*, note 2, p. 246.

On February 16, 1944, the President by Executive Order No. 9423 transferred the War Relocation Authority to the Department of the Interior. 9 Fed. Reg. 1903. The Secretary of the Interior by Administrative Order No. 1922, dated February 16, 1944, authorized the Director to perform under the Secretary's supervision and direction the functions transferred to the Department by Executive Order No. 9423.

⁵ And see the delegation of authority contained in the Secretary of War's Proclamation WD1 of August 13, 1942, *supra*, note 3, respecting Relocation Centers outside the Western Defense Command.

⁶ The Commanding General retained exclusive jurisdiction over the release of evacuees for the purpose of employment, resettlement, or residence within Military Area No. 1 and the California portion of Military Area No. 2. See Final Report, *supra*, note 2, p. 242. As to the Relocation Centers situated within the evacuated zone, the Commanding General regulated "the conditions of travel and movement through the area." Id.

> "The Commanding General recognized fully that one of the principal responsibilities of War Relocation Authority was properly to control

6

Ex parte Mitsuye Endo.

The program of the War Relocation Authority is said to have three main features: (1) the maintenance of Relocation Centers as interim places of residence for evacuees; (2) the segregation of loyal from disloyal evacuees; (3) the continued detention of the disloyal and so far as possible the relocation of the loyal in selected communities.⁷ In connection with the latter phase of its work the War Relocation Authority established a procedure for obtaining leave from Relocation Centers. That procedure, so far as indefinite leave⁸ is concerned, presently provides⁹ as follows:

Application for leave clearance is required. An investigation of the applicant is made for the purpose of ascertaining "the probable effect upon the war program and upon the public peace and security of issuing indefinite leave" to the applicant.¹⁰ The

ingress and egress at Relocation Centers. The exercise of such control by Army authorities would have been tantamount to administering the Centers themselves. While the Commanding General retained exclusive control to regulate and prohibit the entry or movement of any Japanese in the evacuated areas, he delegated fully the authority and responsibility to determine entry to and departure from the Center proper." Id.

⁷ The functioning of Relocation Centers is described in the Final Report, *supra* note 2, Part VI and in Segregation of Loyal and Disloyal Japanese in Relocation Centers, Sen. Doc. No. 96, 78th Cong., 1st Sess., pp. 4-25.

⁸ Provision was also made for group-leave (or seasonal-work leave) and short term leave not to exceed 60 days. See Sen. Doc. No. 96, *supra*, note 7, p. 17.

⁹ The first leave procedure was contained in Administrative Instruction No. 22, dated July 20, 1942. It provided in short that any citizen of Japanese ancestry who had never resided or been educated in Japan could apply for a permit to leave the Relocation Center if he could show that he had a specific job opportunity at a designated place outside the Relocation Center and outside the Western Defense Command. Every permittee was said to remain in the "constructive custody" of the military commander in whose jurisdiction the Relocation Center was located. The permit could be revoked by the Director and the permittee required to return to the Relocation Center if the Director found that the revocation was necessary "in the public interest". The Regulations of September 26, 1942, provided more detailed procedures for obtaining leave. See 7 Fed. Reg. 7656. Administrative Instruction No. 22 was revised November 6, 1942. It was superseded as a supplement to the Regulations by the Handbook of July 20, 1943. The Regulations of September 26, 1942 were revised January 1, 1944. See 9 Fed. Reg. 154.

¹⁰ Handbook, § 60.6.6. Nine factors are specified each of which is "regarded by intelligence agencies as sufficient to warrant a recommendation that leave clearance be denied unless there is an adequate explanation". Sec. 60.10.2. These include, among others, a failure or refusal to swear unqualified allegiance to the United States and to forswear any form of allegiance to the Japanese Emperor or any other foreign government, power, or organization; a request for repatriation or expatriation whether or not subsequently retracted; military training in Japan; employment on Japanese naval vessels; three trips to Japan after the age of six, except in the case of seamen whose trips were confined to ports of call; an organizer, agent, member, or contributor to specified organizations which intelligence agencies consider subversive.

Ex parte Mitsuye Endo.

7

grant of leave clearance does not authorize departure from the Relocation Center. Application for indefinite leave must also be made. Indefinite leave may be granted under 14 specified conditions.¹¹ For example, it may be granted (1) where the applicant proposes to accept an employment offer or an offer of support that has been investigated and approved by the Authority; or (2) where the applicant does not intend to work but has "adequate financial resources to take care of himself" and a Relocation Officer has investigated and approved "public sentiment at his proposed destination", or (3) where the applicant has made arrangements to live at a hotel or in a private home approved by a Relocation Officer while arranging for employment; or (4) where the applicant proposes to accept employment by a federal or local governmental agency; or (5) where the applicant is going to live with designated classes of relatives.

But even if an applicant meets those requirements, no leave will issue when the proposed place of residence or employment is within a locality where it has been ascertained that "community sentiment is unfavorable" or when the applicant plans to go to an area which has been closed by the Authority to the issuance of indefinite leave.¹² Nor will such leave issue if the area where the applicant plans to reside or work is one which has not been cleared for relocation.¹³ Moreover, the applicant agrees to give the Authority prompt notice of any change of employment or residence. And the indefinite leave which is granted does not permit entry into a prohibited military area, including those from which these people were evacuated.¹⁴

11 Handbook, § 60.4.3.

12 Id.

¹³ *Id.* The War Relocation Authority also recommends communities in which an evacuee will be accepted, renders aid in finding employment opportunities, and provides cash grants, if needed, to assist the evacuee in reaching a specified destination and in becoming established there. The Authority has established eight area offices and twenty-six district offices to help carry out the relocation program.

¹⁴ *Sec.* 60.4.8 of the Handbook provides:

"Before any indefinite leave permitting any entry into or travel in a prohibited military area may issue, a written pass or authorization shall be procured for the applicant from the appropriate military authorities and an escort shall be provided if required by the military authorities. Such pass or authorization may be procured through the Assistant Director in San Francisco, or in the case of the Manzanar Relocation Center through the commanding officer of the military police at the center to the extent authorized by the Western Defense Command."

8

Ex parte Mitsuye Endo.

Mitsuye Endo made application for leave clearance on February 19, 1943, after the petition was filed in the District Court. Leave clearance¹⁵ was granted her on August 16, 1943. But she made no application for indefinite leave.¹⁶

Her petition for a writ of *habeas corpus* alleges that she is a loyal and law-abiding citizen of the United States, that no charge has been made against her, that she is being unlawfully detained, and that she is confined in the Relocation Center under armed guard and held, there against her will.

It is conceded by the Department of Justice and by the War Relocation Authority that appellant is a loyal and law-abiding citizen. They make no claim that she is detained on any charge or that she is even suspected of disloyalty. Moreover, they do not contend that she may be held any longer in the Relocation Center. They concede that it is beyond the power of the War Relocation Authority to detain citizens against whom no charges of disloyalty or subversiveness have been made for a period longer than that necessary to separate the loyal from the disloyal and to provide the necessary guidance for relocation. But they maintain that detention for an additional period after leave clearance has been

15 The leave clearance stated that it did not authorize departure from the Relocation Center. It added:

> "You are eligible for indefinite leave for the purpose of employment or residence in the Eastern Defense Command as well as in other areas; provided the provisions of Administrative Instruction No. 22, Rev., are otherwise complied with. The Provost Marshal General's Dept. of the War Department has determined that you, Endo Mitsuye are not at this time eligible for employment in plants and facilities vital to the war effort."

16 The form of a citizen's indefinite leave is as follows:

> "This is to certify that .................... a United States citizen, who has submitted to me sufficient proof of such citizenship, residing within .................... Relocation Area, is allowed to leave such area on .................... 19.., and subject to the terms of the regulations of the War Relocation Authority relating to the issuance of leave for departure from a relocation area and subject to restrictions ordered by the United States Army, and subject to any special conditions or restrictions set forth on the reverse side hereof, to enjoy leave of indefinite duration."

One of the grounds given by the District Court for denial of the petition for writ of *habeas corpus* was the failure of appellant to exhaust her administrative remedies. The Solicitor General and the War Relocation Authority do not invoke that rule here, since the issue which appellant poses is the validity of the regulations under which the administrative remedy is prescribed.

Ex parte Mitsuye Endo.

9

granted is an essential step in the evacuation program. Reliance for that conclusion is placed on the following circumstances.

When compulsory evacuation from the West Coast was decided upon, plans for taking care of the evacuees after their detention in the Assembly Centers, to which they were initially removed, remained to be determined. On April 7, 1942, the Director of the Authority held a conference in Salt Lake City with various state and federal officials including the Governors of the inter-mountain states. "Strong opposition was expressed to any type of unsupervised relocation and some of the Governors refused to be responsible for maintenance of law and order unless evacuees brought into their States were kept under constant military surveillance."¹⁷ Sen. Doc. No. 96, *supra*, note 7, p. 4. As stated by General De Witt in his report to the Chief of Staff:

> "Essentially, military necessity required only that the Japanese population be removed from the coastal area and dispersed in the interior, where the danger of action in concert during any attempted enemy raids along the coast, or in advance thereof as preparation for a full scale attack, would be eliminated. That the evacuation program necessarily and ultimately developed into one of complete Federal supervision, was due primarily to the fact that the interior states would not accept an uncontrolled Japanese migration."

Final Report, *supra*, note 2, pp. 43-44. The Authority thereupon abandoned plans for assisting groups of evacuees in private colonization and temporarily put to one side plans for aiding the evacuees in obtaining private employment.¹⁸ As an alternative the Authority "concentrated on establishment of Government-operated centers with sufficient capacity and facilities to accommodate the entire evacuee population." Sen. Doc. No. 96, *supra*, note 7, p. 4. Accordingly, it undertook to care for the basic needs of these people in the Relocation Centers, to promote as rapidly as possible the permanent resettlement of as many as possible in normal communities, and to provide indefinitely for those left at the Relocation Centers. An effort was made to segregate the loyal evacuees from the others. The leave program which we have dis-

17 Cf. the account of the meeting by General De Witt in the Final Report, *supra*, note 2, pp. 243-244.

18 And see the Fourth Interim Report of the Tolan Committee, H. R. Rep. No. 2124, 77th Cong., 2d Sess., p. 18.

10

Ex parte Mitsuye Endo.

cussed was put into operation and the resettlement program commenced.¹⁹

It is argued that such a planned and orderly relocation was essential to the success of the evacuation program; that but for such supervision there might have been a dangerously disorderly migration of unwanted people to unprepared communities; that unsupervised evacuation might have resulted in hardship and disorder; that the success of the evacuation program was thought to require the knowledge that the federal government was maintaining control over the evacuated population except as the release of individuals could be effected consistently with their own peace and well-being and that of the nation; that although community hostility towards the evacuees has diminished, it has not disappeared and the continuing control of the Authority over the relocation process is essential to the success of the evacuation program. It is argued that supervised relocation, as the chosen method of terminating the evacuation, is the final step in the entire process and is a consequence of the first step taken. It is conceded that appellant's detention pending compliance with the leave regulations is not directly connected with the prevention of espionage and sabotage at the present time. But it is argued that Executive Order No. 9102 confers power to make regulations necessary and proper for controlling situations created by the exercise of the powers expressly conferred for protection against espionage and sabotage. The leave regulations are said to fall within that category.

First. We are of the view that Mitsuye Endo should be given her liberty. In reaching that conclusion we do not come to the underlying constitutional issues which have been argued. For we conclude that, whatever power the War Relocation Authority may have to detain other classes of citizens, it has no authority to subject citizens who are concededly loyal to its leave procedure.

¹⁹ There were 108,503 evacuees transferred to Relocation Centers. Final Report, *supra*, note 2, p. 279. As of July 29, 1944, there were 28,911 on indefinite leave and 61,002 in the Relocation Centers other than Tule Lake. It was sought to assemble at Tule Lake those whose disloyalty was deemed to be established and those who persisted in a refusal to say they would be willing to serve in the armed forces of the United States on combat duty wherever ordered and to swear unqualified allegiance to the United States and forswear any form of allegiance to the Japanese Emperor or any other foreign government, power or organization. This group, together with minor children, totaled 18,684 on July 29, 1944. And see Hearings, Subcommittee on the National War Agencies Appropriation Bill for 1945, p. 611.

Ex parte Mitsuye Endo.

11

It should be noted at the outset that we do not have here a question such as was presented in *Ex parte Milligan*, 4 Wall. 2, or in *Ex parte Quirin*, 317 U. S. 1, where the jurisdiction of military tribunals to try persons according to the law of war was challenged in *habeas corpus* proceedings. Mitsuye Endo is detained by a civilian agency, the War Relocation Authority, not by the military. Moreover, the evacuation program was not left exclusively to the military; the Authority was given a large measure of responsibility for its execution and Congress made its enforcement subject to civil penalties by the Act of March 21, 1942. Accordingly, no questions of military law are involved.

Such power of detention as the Authority has stems from Executive Order No. 9066. That order is the source of the authority²⁰ delegated by General De Witt in his letter of August 11, 1942. And Executive Order No. 9102 which created the War Relocation Authority purported to do no more than to implement the program authorized by Executive Order No. 9066.

We approach the construction of Executive Order No. 9066 as we would approach the construction of legislation in this field. That Executive Order must indeed be considered along with the Act of March 21, 1942, which ratified and confirmed it (*Hirabayashi v. United States, supra*, pp. 87-91) as the Order and the statute together laid such basis as there is for participation by civil agencies of the federal government in the evacuation program. Broad powers frequently granted to the President or other executive officers by Congress so that they may deal with the exigencies of war time problems have been sustained.²¹ And the Constitution when it committed to the Executive and to Congress the exercise of the war power necessarily gave them wide scope for the exercise of judgment and discretion so that war might be waged effectively and successfully. *Hirabayashi v. United States, supra*, p. 93. At the same time, however, the Constitution is as specific in its enumeration of many of the civil rights of the individual as it is in its enumeration of the powers of his govern-

²⁰ Insofar as Public Proclamation No. WD 1, dated August 13, 1942, *supra*, note 3, might be deemed relevant, it is not applicable here since the Relocation Centers with which we are presently concerned were within the Western Defense Command.

²¹ See, for example, United States v. Chemical Foundation, 272 U. S. 1, 12; United States v. Curtiss-Wright Corp., 299 U. S. 304; Yakus v. United States, 321 U. S. 414; Bowles v. Willingham, 321 U. S. 503.

12

Ex parte Mitsuye Endo.

ment. Thus it has prescribed procedural safeguards surrounding the arrest, detention and conviction of individuals. Some of these are contained in the Sixth Amendment, compliance with which is essential if convictions are to be sustained. Tot v. United States, 319 U. S. 463. And the Fifth Amendment provides that no person shall be deprived of liberty (as well as life or property) without due process of law. Moreover, as a further safeguard against invasion of the basic civil rights of the individual it is provided in Art. I, Sec. 9 of the Constitution that "The Privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it." See Ex parte Milligan, supra.

We mention these constitutional provisions not to stir the constitutional issues which have been argued at the bar but to indicate the approach which we think should be made to an Act of Congress or an order of the Chief Executive that touches the sensitive area of rights specifically guaranteed by the Constitution. This Court has quite consistently given a narrower scope for the operation of the presumption of constitutionality when legislation appeared on its face to violate a specific prohibition of the Constitution.²² We have likewise favored that interpretation of legislation which gives it the greater chance of surviving the test of constitutionality.²³ Those analogies are suggestive here. We must assume that the Chief Executive and members of Congress, as well as the courts, are sensitive to and respectful of the liberties of the citizen. In interpreting a war-time measure we must assume that their purpose was to allow for the greatest possible accommodation between those liberties and the exigencies of war. We must assume, when asked to find implied powers in a grant of legislative or executive authority, that the law makers intended to place no greater restraint on the citizen than was clearly and unmistakably indicated by the language they used.

The Act of March 21, 1942, was a war measure. The House Report (H. Rep. No. 1906, 77th Cong., 2d Sess., p. 2) stated,

22 Stromberg v. California, 283 U. S. 359; Lovell v. Griffin, 303 U. S. 444; Hague v. Committee for Industrial Organization, 307 U. S. 496; Schneider v. State, 308 U. S. 147; Cantwell v. Connecticut, 310 U. S. 296.

23 United States v. Shreveport Grain & Elevator Co., 287 U. S. 77, 82; Interstate Commerce Commission v. Oregon-Washington R. & N. Co., 288 U. S. 14, 40; Ashwander v. Tennessee Valley Authority, 297 U. S. 288, 348; National Labor Relations Board v. Jones & Laughlin Steel Corp., 301 U. S. 1, 30; Anniston Mfg. Co. v. Davis, 301 U. S. 337, 351-352.

Ex parte Mitsuye Endo.

13

"The necessity for this legislation arose from the fact that the safe conduct of the war requires the fullest possible protection against either espionage or sabotage to national defense material, national defense premises, and national defense utilities." That was the precise purpose of Executive Order No. 9066, for, as we have seen, it gave as the reason for the exclusion of persons from prescribed military areas the protection of such property "against espionage and against sabotage". And Executive Order No. 9102 which established the War Relocation Authority did so, as we have noted, "in order to provide for the removal from designated areas of persons whose removal is necessary in the interests of national security." The purpose and objective of the Act and of these orders are plain. Their single aim was the protection of the war effort against espionage and sabotage. It is in light of that one objective that the powers conferred by the orders must be construed.

Neither the Act nor the orders use the language of detention. The Act says that no one shall "enter, remain in, leave, or commit any act" in the prescribed military areas contrary to the applicable restrictions. Executive Order No. 9066 subjects the right of any person "to enter, remain in, or leave" those prescribed areas to such restrictions as the military may impose. And apart from those restrictions the Secretary of War is only given authority to afford the evacuees "transportation, food, shelter, and other accommodations." Executive Order No. 9102 authorizes and directs the War Relocation Authority "to formulate and effectuate a program for the removal" of the persons covered by Executive Order No. 9066 from the prescribed military areas and "for their relocation, maintenance, and supervision." And power is given the Authority to make regulations "necessary or desirable to promote effective execution of such program." Moreover, unlike the case of curfew regulations (Hirabayashi v. United States, supra), the legislative history of the Act of March 21, 1942, is silent on detention. And that silence may have special significance in view of the fact that detention in Relocation Centers was no part of the original program of evacuation but developed later to meet what seemed to the officials in charge to be mounting hostility to the evacuees on the part of the communities where they sought to go.

14

Ex parte Mitsuye Endo.

We do not mean to imply that detention in connection with no phase of the evacuation program would be lawful. The fact that the Act and the orders are silent on detention does not of course mean that any power to detain is lacking. Some such power might indeed be necessary to the successful operation of the evacuation program. At least we may so assume. Moreover, we may assume for the purposes of this case that initial detention in Relocation Centers was authorized. But we stress the silence of the legislative history and of the Act and the Executive Orders on the power to detain to emphasize that any such authority which exists must be implied. If there is to be the greatest possible accommodation of the liberties of the citizen with this war measure, any such implied power must be narrowly confined to the precise purpose of the evacuation program.

A citizen who is concededly loyal presents no problem of espionage or sabotage. Loyalty is a matter of the heart and mind not of race, creed, or color. He who is loyal is by definition not a spy or a saboteur. When the power to detain is derived from the power to protect the war effort against espionage and sabotage, detention which has no relationship to that objective is unauthorized.

Nor may the power to detain an admittedly loyal citizen or to grant him a conditional release be implied as a useful or convenient step in the evacuation program, whatever authority might be implied in case of those whose loyalty was not conceded or established. If we assume (as we do) that the original evacuation was justified, its lawful character was derived from the fact that it was an espionage and sabotage measure, not that there was community hostility to this group of American citizens. The evacuation program rested explicitly on the former ground not on the latter as the underlying legislation shows. The authority to detain a citizen or to grant him a conditional release as protection against espionage or sabotage is exhausted at least when his loyalty is conceded. If we held that the authority to detain continued thereafter, we would transform an espionage or sabotage measure into something else. That was not done by Executive Order No. 9066 or by the Act of March 21, 1942, which ratified it. What they did not do we cannot do. Detention which furthered the campaign against espionage and sabotage would be one thing. But detention which has no relationship to that campaign is of a

Ex parte Mitsuye Endo.

15

distinct character. Community hostility even to loyal evacuees may have been (and perhaps still is) a serious problem. But if authority for their custody and supervision is to be sought on that ground, the Act of March 21, 1942, Executive Order No. 9066, and Executive Order No. 9102, offer no support. And none other is advanced.²⁴ To read them that broadly would be to assume that the Congress and the President intended that this discriminatory action should be taken against these people wholly on account of their ancestry even though the government conceded their loyalty to this country. We cannot make such an assumption. As the President has said of these loyal citizens:

> "Americans of Japanese ancestry, like those of many other ancestries, have shown that they can, and want to, accept our institutions and work loyally with the rest of us, making their own valuable contribution to the national wealth and well-being. In vindication of the very ideals for which we are fighting this war it is important to us to maintain a high standard of fair, considerate, and equal treatment for the people of this minority as of all other minorities." Sen. Doc. No. 96, *supra*, note 7, p. 2.

²⁴ It is argued, to be sure, that there has been Congressional ratification of the detention of loyal evacuees under the leave regulations of the Authority through the appropriation of sums for the expenses of the Authority. 57 Stat. 533, P. L. 139, 78th Cong., 1st Sess., approved July 12, 1943 and P. L. 372, 78th Cong., 2d Sess., approved June 28, 1944. It is pointed out that the regulations and procedures of the Authority were disclosed in reports to the Congress and in Congressional hearings. See, for example, Sen. Doc. No. 96, *supra*, note 7; Report and Minority Views of the Special Committee on Un-American Activities on Japanese War Relocation Centers, H. Rep. No. 717, 78th Cong., 1st Sess., pp. 23-26; Hearings, Subcommittee of the Senate Military Affairs Committee on S. 444, 78th Cong., 1st Sess., pp. 45-46; Japanese War Relocation Centers, Subcommittee Report on S. 444 and S. 101 and 111, 78th Cong., 1st Sess., pp. 4-5 *et seq.* And it is shown that the leave program of the Authority was mentioned both in the House and Senate committee hearings on the 1944 Appropriation Act (Hearings, Subcommittee of the House Committee on Appropriations, National War Agencies Appropriation Bill for 1944, 78th Cong., 1st Sess., pp. 698, 699, 710; Hearings of the Senate Subcommittee on Appropriations, National War Agencies Appropriation Bill for 1944, 78th Cong., 1st Sess., p. 382) and on the floor of the House prior to passage of the 1944 Act. 89 Cong. Rec. p. 5983-5985. Congress may of course do by ratification what it might have authorized. Swayne & Hoyt, Ltd. v. United States, 300 U. S. 297, 301-302. And ratification may be effected through appropriation acts. Isbrandtsen-Maller Co. v. United States, 300 U. S. 139, 147; Brooks v. Dewar, 313 U. S. 354, 361. But the appropriation must plainly show a purpose to bestow the precise authority which is claimed. We can hardly deduce such a purpose here where a lump appropriation was made for the overall program of the Authority and no sums were earmarked for the single phase of the total program which is here involved. Congress may support the effort to take care of these evacuees without ratifying every phase of the program.

16

Ex parte Mitsuye Endo.

Mitsuye Endo is entitled to an unconditional release by the War Relocation Authority.

*Second.* The question remains whether the District Court has jurisdiction to grant the writ of *habeas corpus* because of the fact that while the case was pending in the Circuit Court of Appeals appellant was moved from the Tule Lake Relocation Center in the Northern District of California where she was originally detained to the Central Utah Relocation Center in a different district and circuit.

That question is not colored by any purpose to effectuate a removal in evasion of the *habeas corpus* proceedings. It appears that appellant's removal to Utah was part of a general segregation program involving many of these people and was in no way related to this pending case. Moreover, there is no suggestion that there is no one within the jurisdiction of the District Court who is responsible for the detention of appellant and who would be an appropriate respondent. We are indeed advised by the Acting Secretary of the Interior²⁵ that if the writ issues and is directed to the Secretary of the Interior or any official of the War Relocation Authority (including an assistant director whose office is at San Francisco, which is in the jurisdiction of the District Court), the corpus of appellant will be produced and the court's order complied with in all respects. Thus it would seem that the case is not moot.

In *United States ex rel. Inness v. Crystal*, 319 U. S. 755, the relator challenged a judgment of court martial by *habeas corpus*. The District Court denied his petition and the Circuit Court of Appeals affirmed that order. After that decision and before his petition for certiorari was filed here, he was removed from the custody of the Army to a federal penitentiary in a different district and circuit. The sole respondent was the commanding officer. Only an order directed to the warden of the penitentiary could effectuate his discharge and the warden as well as the prisoner was outside the territorial jurisdiction of the District Court. We therefore held the cause moot. There is no comparable situation here.

The fact that no respondent was ever served with process or appeared in the proceedings is not important. The United States resists the issuance of a writ. A cause exists in that state of the

²⁵ In a letter dated October 13, 1944 to the Solicitor General and filed here.

Ex parte Mitsuye Endo.

17

proceedings and an appeal lies from denial of a writ without the appearance of a respondent. *Ex parte Milligan*, *supra*, p. 112; *Ex parte Quirin*, 317 U. S. 1, 24.

Hence, so far as presently appears, the cause is not moot and the District Court has jurisdiction to act unless the physical presence of appellant in that district is essential.

We need not decide whether the presence of the person detained within the territorial jurisdiction of the District Court is pre-requisite to filing a petition for a writ of *habeas corpus*. See *In re Boles*, 48 Fed. 75; *Ex parte Gouyet*, 175 Fed. 230, 233; *United States v. Day*, 50 F. 2d 816, 817; *United States v. Schlotfeldt*, 136 F. 2d 935, 940. But see *Tippitt v. Wood*, 140 F. 2d 689, 693. We only hold that the District Court acquired jurisdiction in this case and that the removal of Mitsuye Endo did not cause it to lose jurisdiction where a person in whose custody she is remains within the district.

There are expressions in some of the cases which indicate that the place of confinement must be within the court's territorial jurisdiction in order to enable it to issue the writ. See *In re Boles*, *supra*, p. 76; *Ex parte Gouyet*, *supra*; *United States v. Day*, *supra*; *United States v. Schlotfeldt*, *supra*. But we are of the view that the court may act if there is a respondent within reach of its process who has custody of the petitioner. As Judge Cooley stated in *In the Matter of Samuel W. Jackson*, 15 Mich. 417, 439-440:

> "The important fact to be observed in regard to the mode of procedure upon this writ is, that it is directed to, and served upon, not the person confined, but his jailer. It does not reach the former except through the latter. The officer or person who serves it does not unbar the prison doors, and set the prisoner free, but the court relieves him by compelling the oppressor to release his constraint. The whole force of the writ is spent upon the respondent;"

And see *United States v. Davis*, 5 Cranch C. C. 622, Fed. Cas. No. 14,926; *Ex parte Fong Yim*, 134 Fed. 938; *Ex parte Ng Quong Ming*, 135 Fed. 378, 379; *Sanders v. Allen*, 100 F. 2d 717, 719; *Rivers v. Mitchell*, 57 Ia. 193, 195; *People v. New York Asylum*, 57 App. Div. 383, 384; *People v. New York Asylum*, 58 App. 133, 134. The statute upon which the jurisdiction of the District Court in *habeas corpus* proceedings rests (Rev. Stat. § 752, 28 U. S. C. § 452) gives it power "to grant writs of habeas corpus for the

18

Ex parte Mitsuye Endo.

purpose of an inquiry into the cause of restraint of liberty.”²⁶ That objective may be in no way impaired or defeated by the removal of the prisoner from the territorial jurisdiction of the District Court. That end may be served and the decree of the court made effective if a respondent who has custody of the prisoner is within reach of the court’s process even though the prisoner has been removed from the district since the suit was begun.²⁷

The judgment is reversed and the cause is remanded to the District Court for proceedings in conformity with this opinion.

Reversed.

²⁶ The entire section provides:

"The several justices of the Supreme Court and the several judges of the circuit courts of appeal and of the district courts, within their respective jurisdictions, shall have power to grant writs of habeas corpus for the purpose of an inquiry into the cause of restraint of liberty. A circuit judge shall have the same power to grant writs of habeas corpus within his circuit, that a district judge has within his district; and the order of the circuit judge shall be entered in the records of the district court of the district wherein the restraint complained of is had."

The last clause was added by § 6 of the Act of February 13, 1925, 43 Stat. 940. But we find no indication that it was added to change the scope of jurisdiction in habeas corpus proceedings. On its face it is no more than a recording requirement.

²⁷ Cf. Rule 45(1) of this Court which provides: "Pending review of a decision refusing a writ of habeas corpus, the custody of the prisoner shall not be disturbed."

Mr. Justice MURPHY, concurring.

I join in the opinion of the Court, but I am of the view that detention in Relocation Centers of persons of Japanese ancestry regardless of loyalty is not only unauthorized by Congress or the Executive but is another example of the unconstitutional resort to racism inherent in the entire evacuation program. As stated more fully in my dissenting opinion in *Korematsu v. United States*, decided this day, racial discrimination of this nature bears no reasonable relation to military necessity and is utterly foreign to the ideals and traditions of the American people.

Moreover, the Court holds that Mitsuye Endo is entitled to an unconditional release by the War Relocation Authority. It appears that Miss Endo desires to return to Sacramento, California, from which Public Proclamations Nos. 7 and 11, as well as Civilian Exclusion Order No. 52, still exclude her. And it would seem to

Ex parte Mitsuye Endo.

19

me that the "unconditional" release to be given Miss Endo necessarily implies "the right to pass freely from state to state," including the right to move freely into California. *Twining v. New Jersey*, 211 U. S. 78, 97; *Crandall v. Nevada*, 6 Wall. 35. If, as I believe, the military orders excluding her from California were invalid at the time they were issued, they are increasingly objectionable at this late date, when the threat of invasion of the Pacific Coast and the fears of sabotage and espionage have greatly diminished. For the Government to suggest under these circumstances that the presence of Japanese blood in a loyal American citizen might be enough to warrant her exclusion from a place where she would otherwise have a right to go is a position I cannot sanction.

Mr. Justice ROBERTS.

I concur in the result but I cannot agree with the reasons stated in the opinion of the court for reaching that result.

As in *Korematsu v. United States*, No. 22 of this Term, the court endeavors to avoid constitutional issues which are necessarily involved. The opinion, at great length, attempts to show that neither the executive nor the legislative arm of the Government authorized the detention of the relator.

1. With respect to the executive, it is said that none of the executive orders in question specifically referred to detention and the court should not imply any authorization of it. This seems to me to ignore patent facts. As the opinion discloses, the executive branch of the Government not only was aware of what was being done but in fact that which was done was formulated in regulations and in a so-called handbook open to the public. I had supposed that where thus overtly and avowedly a department of the Government adopts a course of action under a series of official regulations the presumption is that, in this way, the department asserts its belief in the legality and validity of what it is doing. I think it inadmissible to suggest that some inferior public servant exceeded the authority granted by executive order in this case. Such a basis of decision will render easy the evasion of law and the violation of constitutional rights, for when conduct is called in question the obvious response will be that, however much the superior executive officials knew, understood, and approved the

20

Ex parte Mitsuye Endo.

conduct of their subordinates, those subordinates in fact lacked a definite mandate so to act. It is to hide one's head in the sand to assert that the detention of relator resulted from an excess of authority by subordinate officials.

2. As the opinion states, the Act of March 21, 1942, said nothing of detention or imprisonment, nor did Executive Order No. 9066 of date February 19, 1942, but I cannot agree that when Congress made appropriations to the Relocation Authority, having before it the reports, the testimony at committee hearings, and the full details of the procedure of the Relocation Authority was exposed in Government publications, these appropriations were not a ratification and an authorization of what was being done. The cases cited in footnote No. 24 of the opinion do not justify any such conclusion. The decision now adds an element never before thought essential to congressional ratification, namely, that if Congress is to ratify by appropriation any part of the programme of an executive agency the bill must include a specific item referring to that portion of the programme. In other words, the court will not assume that Congress ratified the procedure of the authorities in this case in the absence of some such item as this in the appropriation bill:—"For the administration of the conditional release and parole programme in force in relocation centers." In the light of the knowledge Congress had as to the details of the programme, I think the court is unjustified in straining to conclude that Congress did not mean to ratify what was being done.

3. I conclude, therefore, that the court is squarely faced with a serious constitutional question,—whether the relator's detention violated the guarantees of the Bill of Rights of the federal Constitution and especially the guarantee of due process of law. There can be but one answer to that question. An admittedly loyal citizen has been deprived of her liberty for a period of years. Under the Constitution she should be free to come and go as she pleases. Instead, her liberty of motion and other innocent activities have been prohibited and conditioned. She should be discharged.

No. 22.—OCTOBER TERM, 1944.

Fred Toyosaburo Korematsu,
Petitioner,

vs.

The United States of America.

On Writ of Certiorari to the
United States Circuit Court of
Appeals for the Ninth Circuit.

[December 18, 1944.]

Mr. Justice BLACK delivered the opinion of the Court.

The petitioner, an American citizen of Japanese descent was convicted in a federal district court for remaining in San Leandro, California, a "Military Area", contrary to Civilian Exclusion Order No. 34 of the Commanding General of the Western Command, U. S. Army, which directed that after May 9, 1942, all persons of Japanese ancestry should be excluded from that area. No question was raised as to petitioner's loyalty to the United States. The Circuit Court of Appeals affirmed,¹ and the importance of the constitutional question involved caused us to grant certiorari.

It should be noted, to begin with, that all legal restrictions which curtail the civil rights of a single racial group are immediately suspect. That is not to say that all such restrictions are unconstitutional. It is to say that courts must subject them to the most rigid scrutiny. Pressing public necessity may sometimes justify the existence of such restrictions; racial antagonism never can.

In the instant case prosecution of the petitioner was begun by information charging violation of an Act of Congress, of March 21, 1942, 56 Stat. 173, which provides that

"... whoever shall enter, remain in, leave, or commit any act in any military area or military zone prescribed, under the authority of an Executive order of the President, by the Secretary of War, or by any military commander designated by the Secretary of War, contrary to the restrictions applicable to any such area or zone or contrary to the order of the Secretary of War or any such military commander, shall, if it appears that he knew or should have known of the existence and extent of the restric-

1140 F. 2d (C. C. A. 9).

DEC 22 1944

2

Korematsu vs. United States.

Exclusion Order No. 34, which the petitioner knowingly and admittedly violated was one of a number of military orders and proclamations, all of which were substantially based upon Executive Order No. 9066, 7 Fed. Reg. 1407. That order, issued after we were at war with Japan, declared that "the successful prosecution of the war requires every possible protection against espionage and against sabotage to national-defense material, national-defense premises, and national-defense utilities. . . ."

One of the series of orders and proclamations, a curfew order, which like the exclusion order here was promulgated pursuant to Executive Order 9066, subjected all persons of Japanese ancestry in prescribed West Coast military areas to remain in their residences from 8 p.m. to 6 a.m. As is the case with the exclusion order here, that prior curfew order was designed as a "protection against espionage and against sabotage." In *Hirabayashi v. United States*, 320 U. S. 81, we sustained a conviction obtained for violation of the curfew order. The *Hirabayashi* conviction and this one thus rest on the same 1942 Congressional Act and the same basic executive and military orders, all of which orders were aimed at the twin dangers of espionage and sabotage.

The 1942 Act was attacked in the *Hirabayashi* case as an unconstitutional delegation of power; it was contended that the curfew order and other orders on which it rested were beyond the war powers of the Congress, the military authorities and of the President, as Commander in Chief of the Army; and finally that to apply the curfew order against none but citizens of Japanese ancestry amounted to a constitutionally prohibited discrimination solely on account of race. To these questions, we gave the serious consideration which their importance justified. We upheld the curfew order as an exercise of the power of the government to take steps necessary to prevent espionage and sabotage in an area threatened by Japanese attack.

In the light of the principles we announced in the *Hirabayashi* case, we are unable to conclude that it was beyond the war power of Congress and the Executive to exclude those of Japanese ancestry from the West Coast war area at the time they did. True,

Korematsu vs. United States.

3

exclusion from the area in which one's home is located is a far greater deprivation than constant confinement to the home from 8 p.m. to 6 a.m. Nothing short of apprehension by the proper military authorities of the gravest imminent danger to the public safety can constitutionally justify either. But exclusion from a threatened area, no less than curfew, has a definite and close relationship to the prevention of espionage and sabotage. The military authorities, charged with the primary responsibility of defending our shores, concluded that curfew provided inadequate protection and ordered exclusion. They did so, as pointed out in our *Hirabayashi* opinion, in accordance with Congressional authority to the military to say who should, and who should not, remain in the threatened areas.

In this case the petitioner challenges the assumptions upon which we rested our conclusions in the *Hirabayashi* case. He also urges that by May 1942, when Order No. 34 was promulgated, all danger of Japanese invasion of the West Coast had disappeared. After careful consideration of these contentions we are compelled to reject them.

Here, as in the *Hirabayashi* case, *supra*, at p. 99, "... we cannot reject as unfounded the judgment of the military authorities and of Congress that there were disloyal members of that population, whose number and strength could not be precisely and quickly ascertained. We cannot say that the war-making branches of the Government did not have ground for believing that in a critical hour such persons could not readily be isolated and separately dealt with, and constituted a menace to the national defense and safety, which demanded that prompt and adequate measures be taken to guard against it."

Like curfew, exclusion of those of Japanese origin was deemed necessary because of the presence of an unascertained number of disloyal members of the group, most of whom we have no doubt were loyal to this country. It was because we could not reject the finding of the military authorities that it was impossible to bring about an immediate *segregation* of the disloyal from the loyal that we sustained the validity of the curfew order as applying to the whole group. In the instant case, temporary exclusion of the entire group was rested by the military on the same ground. The judgment that exclusion of the whole group was for the same reason a military imperative answers the con-

4

Korematsu vs. United States.

tention that the exclusion was in the nature of group punishment based on antagonism to those of Japanese origin. That there were members of the group who retained loyalties to Japan has been confirmed by investigations made subsequent to the exclusion. Approximately five thousand American citizens of Japanese ancestry refused to swear unqualified allegiance to the United States and to renounce allegiance to the Japanese Emperor, and several thousand evacuees requested repatriation to Japan.²

We uphold the exclusion order as of the time it was made and when the petitioner violated it. Cf. *Chastleton Corporation v. Sinclair*, 264 U. S. 543, 547; *Block v. Hirsh*, 256 U. S. 135, 154-5. In doing so, we are not unmindful of the hardships imposed by it upon a large group of American citizens. Cf. *Ex parte Kawato*, 317 U. S. 69, 73. But hardships are part of war, and war is an aggregation of hardships. All citizens alike, both in and out of uniform, feel the impact of war in greater or lesser measure. Citizenship has its responsibilities as well as its privileges, and in time of war the burden is always heavier. Compulsory exclusion of large groups of citizens from their homes, except under circumstances of direct emergency and peril, is inconsistent with our basic governmental institutions. But when under conditions of modern warfare our shores are threatened by hostile forces, the power to protect must be commensurate with the threatened danger.

It is argued that on May 30, 1942, the date the petitioner was charged with remaining in the prohibited area, there were conflicting orders outstanding, forbidding him both to leave the area and to remain there. Of course, a person cannot be convicted for doing the very thing which it is a crime to fail to do. But the outstanding orders here contained no such contradictory commands.

There was an order issued March 27, 1942, which prohibited petitioner and others of Japanese ancestry from leaving the area, but its effect was specifically limited in time "until and to the extent that a future proclamation or order should so permit or direct." 7 Fed. Reg. 2601. That "future order", the one for violation of which petitioner was convicted, was issued May 3, 1942, and it did "direct" exclusion from the area of all persons

² Hearings before the Subcommittee on the National War Agencies Appropriation Bill for 1945, 608-726; Final Report, Japanese Evacuation from the West Coast, 1942, 309-327.

Korematsu vs. United States.

5

of Japanese ancestry, before 12 o'clock noon, May 9; furthermore it contained a warning that all such persons found in the prohibited area would be liable to punishment under the March 21, 1942 Act of Congress. Consequently, the only order in effect touching the petitioner's being in the area on May 20, 1942, the date specified in the information against him, was the May 3 order which prohibited his remaining there, and it was that same order, which he stipulated in his trial that he had violated, knowing of its existence. There is therefore no basis for the argument that on May 30, 1942, he was subject to punishment, under the March 21 and May 3rd orders, whether he remained in or left the area.

It does appear, however, that on May 9, the effective date of the exclusion order, the military authorities had already determined that the evacuation should be effected by assembling together and placing under guard all those of Japanese ancestry, at central points, designated as "assembly centers", in order "to insure the orderly evacuation and resettlement of Japanese voluntarily migrating from military area No. 1 to restrict and regulate such migration." Public Proclamation No. 4, 7 Fed. Reg. 2601. And on May 19, 1942, eleven days before the time petitioner was charged with unlawfully remaining in the area, Civilian Restrictive Order No. 1, 8 Fed. Reg. 982, provided for detention of those of Japanese ancestry in assembly or relocation centers. It is now argued that the validity of the exclusion order cannot be considered apart from the orders requiring him, after departure from the area, to report and to remain in an assembly or relocation center. The contention is that we must treat these separate orders as one and inseparable; that, for this reason, if detention in the assembly or relocation center would have illegally deprived the petitioner of his liberty, the exclusion order and his conviction under it cannot stand.

We are thus being asked to pass at this time upon the whole subsequent detention program in both assembly and relocation centers, although the only issues framed at the trial related to petitioner's remaining in the prohibited area in violation of the exclusion order. Had petitioner here left the prohibited area and gone to an assembly center we cannot say either as a matter of fact or law, that his presence in that center would have resulted in his detention in a relocation center. Some who did re-

6

Korematsu vs. United States.

port to the assembly center were not sent to relocation centers, but were released upon condition that they remain outside the prohibited zone until the military orders were modified or lifted. This illustrates that they pose different problems and may be governed by different principles. The lawfulness of one does not necessarily determine the lawfulness of the others. This is made clear when we analyze the requirements of the separate provisions of the separate orders. These separate requirements were that those of Japanese ancestry (1) depart from the area; (2) report to and temporarily remain in an assembly center; (3) go under military control to a relocation center there to remain for an indefinite period until released conditionally or unconditionally by the military authorities. Each of these requirements, it will be noted, imposed distinct duties in connection with the separate steps in a complete evacuation program. Had Congress directly incorporated into one Act the language of these separate orders, and provided sanctions for their violations, disobedience of any one would have constituted a separate offense. Cf. Blockburger v. United States, 284 U. S. 299, 304. There is no reason why violations of these orders, insofar as they were promulgated pursuant to congressional enactment, should not be treated as separate offenses.

The Endo case, decided today, graphically illustrates the difference between the validity of an order to exclude and the validity of a detention order after exclusion has been effected.

Since the petitioner has not been convicted of failing to report or to remain in an assembly or relocation center, we cannot in this case determine the validity of those separate provisions of the order. It is sufficient here for us to pass upon the order which petitioner violated. To do more would be to go beyond the issues raised, and to decide momentous questions not contained within the framework of the pleadings or the evidence in this case. It will be time enough to decide the serious constitutional issues which petitioner seeks to raise when an assembly or relocation order is applied or is certain to be applied to him, and we have its terms before us.

Some of the members of the Court are of the view that evacuation and detention in an Assembly Center were inseparable. After May 3, 1942, the date of Exclusion Order No. 34, Korematsu was under compulsion to leave the area not as he would choose but via

Korematsu vs. United States.

7

an Assembly Center. The Assembly Center was conceived as a part of the machinery for group evacuation. The power to exclude includes the power to do it by force if necessary. And any forcible measure must necessarily entail some degree of detention or restraint whatever method of removal is selected. But whichever view is taken, it results in holding that the order under which petitioner was convicted was valid.

It is said that we are dealing here with the case of imprisonment of a citizen in a concentration camp solely because of his ancestry, without evidence or inquiry concerning his loyalty and good disposition towards the United States. Our task would be simple, our duty clear, were this a case involving the imprisonment of a loyal citizen in a concentration camp because of racial prejudice. Regardless of the true nature of the assembly and relocation centers—and we deem it unjustifiable to call them concentration camps with all the ugly connotations that term implies—we are dealing specifically with nothing but an exclusion order. To cast this case into outlines of racial prejudice, without reference to the real military dangers which were presented, merely confuses the issue. Korematsu was not excluded from the Military Area because of hostility to him or his race. He was excluded because we are at war with the Japanese Empire, because the properly constituted military authorities feared an invasion of our West Coast and felt constrained to take proper security measures, because they decided that the military urgency of the situation demanded that all citizens of Japanese ancestry be segregated from the West Coast temporarily, and finally, because Congress, reposing its confidence in this time of war in our military leaders—as inevitably it must—determined that they should have the power to do just this. There was evidence of disloyalty on the part of some, the military authorities considered that the need for action was great, and time was short. We cannot—by availing ourselves of the calm perspective of hindsight—now say that at that time these actions were unjustified.

Affirmed.

Mr. Justice FRANKFURTER, concurring.

According to my reading of Civilian Exclusion Order No. 34, it was an offense for Korematsu to be found in Military Area

8

Korematsu vs. United States.

No. 1, the territory wherein he was previously living, except within the bounds of the established Assembly Center of that area. Even though the various orders issued by General DeWitt be deemed a comprehensive code of instructions, their tenor is clear and not contradictory. They put upon Korematsu the obligation to leave Military Area No. 1, but only by the method prescribed in the instructions, i.e., by reporting to the Assembly Center. I am unable to see how the legal considerations that led to the decision in *Hirabayashi v. United States*, 320 U. S. 81, fail to sustain the military order which made the conduct now in controversy a crime. And so I join in the opinion of the Court, but should like to add a few words of my own.

The provisions of the Constitution which confer on the Con-
gress and the President powers to enable this country to wage
war are as much part of the Constitution as provisions looking
to a nation at peace. And we have had recent occasion to quote
approvingly the statement of former Chief Justice Hughes that
the war power of the Government is "the power to wage war
successfully". *Hirabayashi v. United States, supra* at 93. There-
fore, the validity of action under the war power must be judged
wholly in the context of war. That action is not to be stigmatized
as lawless because like action in times of peace would be lawless.
To talk about a military order that expresses an allowable judg-
ment of war needs by those entrusted with the duty of conducting
war as "an unconstitutional order" is to suffuse a part of the
Constitution with an atmosphere of unconstitutionality. The re-
spective spheres of action of military authorities and of judges
are of course very different. But within their sphere, military
authorities are no more outside the bounds of obedience to the
Constitution than are judges within theirs. To recognize that
military orders are "reasonably expedient military precautions"
in time of war and yet to deny them constitutional legitimacy
makes of the Constitution an instrument for dialectic subtleties
not reasonably to be attributed to the hard-headed Framers, of
whom a majority had had actual participation in war. If a mili-
tary order such as that under review does not transcend the means
appropriate for conducting war, such action by the military is
as constitutional as would be any authorized action by the Inter-
state Commerce Commission within the limits of the constitu-
tional power to regulate commerce. And being an exercise of

Korematsu vs. United States.

9

the war power explicitly granted by the Constitution for safe-
guarding the national life by prosecuting war effectively, I find
nothing in the Constitution which denies to Congress the power
to enforce such a valid military order by making its violation an
offense triable in the civil courts. Compare *Interstate Commerce
Comm. v. Brimson*, 154 U. S. 447; 155 U. S. 3, and *Monongahela
Bridge v. United States*, 216 U. S. 177. To find that the Consti-
tution does not forbid the military measures now complained of
does not carry with it approval of that which Congress and the
Executive did. That is their business, not mine.

Mr. Justice ROBERTS.

I dissent, because I think the indisputable facts exhibit a clear
violation of Constitutional rights.

This is not a case of keeping people off the streets at night as was *Hirabayashi v. United States*, 320 U. S. 81, nor a case of temporary exclusion of a citizen from an area for his own safety or that of the community, nor a case of offering him an opportunity to go temporarily out of an area where his presence might cause danger to himself or to his fellows. On the contrary, it is the case of convicting a citizen as a punishment for not submitting to imprisonment in a concentration camp, based on his ancestry, and solely because of his ancestry, without evidence or inquiry concerning his loyalty and good disposition towards the United States. If this be a correct statement of the facts disclosed by this record, and facts of which we take judicial notice, I need hardly labor the conclusion that Constitutional rights have been violated.

The Government's argument, and the opinion of the court, in
my judgment, erroneously divide that which is single and indivis-
ible and thus make the case appear as if the petitioner violated a
Military Order, sanctioned by Act of Congress, which excluded him
from his home, by refusing voluntarily to leave and, so, knowingly
and intentionally, defying the order and the Act of Congress.

The petitioner, a resident of San Leandro, Alameda County,
California, is a native of the United States of Japanese ancestry
who, according to the uncontradicted evidence, is a loyal citizen
of the nation.

10

Korematsu vs. United States.

A chronological recitation of events will make it plain that the
petitioner's supposed offense did not, in truth, consist in his re-
fusal voluntarily to leave the area which included his home in
obedience to the order excluding him therefrom. Critical atten-
tion must be given to the dates and sequence of events.

December 8, 1941, the United States declared war on Japan.

February 19, 1942, the President issued Executive Order No.
9066,¹ which, after stating the reason for issuing the order as
"protection against espionage and against sabotage to national-
defense material, national-defense premises, and national-defense
utilities", provided that certain Military Commanders might, in
their discretion, "prescribe military areas" and define their ex-
tent, "from which any or all persons may be excluded, and with
respect to which the right of any person to enter, remain in, or
leave shall be subject to whatever restrictions" the "Military
Commander may impose in his discretion."

February 20, 1942, Lieutenant General DeWitt was designated
Military Commander of the Western Defense Command embrac-
ing the westernmost states of the Union,—about one-fourth of the
total area of the nation.

March 2, 1942, General DeWitt promulgated Public Proclama-
tion No. 1,² which recites that the entire Pacific Coast is "par-
ticularly subject to attack, to attempted invasion . . . and, in
connection therewith, is subject to espionage and acts of sabotage".
It states that "as a matter of military necessity" certain military
areas and zones are established known as Military Areas Nos. 1
and 2. It adds that "Such persons or classes of persons as the
situation may require" will, by subsequent orders, "be excluded
from all of Military Area No. 1" and from certain zones in Mili-
tary Area No. 2. Subsequent proclamations were made which,
together with Proclamation No. 1, included in such areas and
zones all of California, Washington, Oregon, Idaho, Montana,
Nevada and Utah, and the southern portion of Arizona. The or-
ders required that if any person of Japanese, German or Italian
ancestry residing in Area No. 1 desired to change his habitual
residence he must execute and deliver to the authorities a Change
of Residence Notice.

San Leandro, the city of petitioner's residence, lies in Military
Area No. 1.

17 Fed. Reg. 1407.

27 Fed. Reg. 2320.

Korematsu vs. United States.

11

On March 2, 1942, the petitioner, therefore, had notice that,
by Executive Order, the President, to prevent espionage and
sabotage, had authorized the Military to exclude him from certain
areas and to prevent his entering or leaving certain areas without
permission. He was on notice that his home city had been in-
cluded, by Military Order, in Area No. 1, and he was on notice
further that, at sometime in the future, the Military Commander
would make an order for the exclusion of certain persons, not de-
scribed or classified, from various zones including that in which
he lived.

March 21, 1942, Congress enacted³ that anyone who knowingly
"shall enter, remain in, leave, or commit any act in any military
area or military zone prescribed . . . by any military commander
. . . contrary to the restrictions applicable to any such area or
zone or contrary to the order of . . . any such military command-
der" shall be guilty of a misdemeanor. This is the Act under
which the petitioner was charged.

March 24, 1942, General DeWitt instituted the curfew for cer-
tain areas within his command, by an order the validity of which
was sustained in *Hirabayashi v. United States, supra*.

March 24, 1942, General DeWitt began to issue a series of ex-
clusion orders relating to specified areas.

March 27, 1942, by Proclamation No. 4,⁴ the General recited
that "it is necessary, in order to provide for the welfare and to
insure the orderly evacuation and resettlement of Japanese volun-
tarily migrating from Military Area No. 1 to restrict and regu-
late such migration"; and ordered that, as of March 29, 1942,
"all alien Japanese and persons of Japanese ancestry who are
within the limits of Military Area No. 1, be and they are hereby
prohibited from leaving that area for any purpose until and to
the extent that a future proclamation or order of this headquar-
ters shall so permit or direct.⁵

No order had been made excluding the petitioner from the area
in which he lived. By Proclamation No. 4 he was, after March
29, 1942, confined to the limits of Area No. 1. If the Executive

3 56 Stat. 173.

4 7 Fed. Reg. 2601.

5 The italies in the quotation are mine. The use of the word "voluntarily" exhibits a grim irony probably not lost on petitioner and others in like case. Either so, or its use was a disingenuous attempt to camouflage the compulsion which was to be applied.

12

Korematsu vs. United States.

Order No. 9066 and the Act of Congress meant what they said, to leave that area, in the face of Proclamation No. 4, would be to commit a misdemeanor.

May 3, 1942, General DeWitt issued Civilian Exclusion Order No. 34⁶ providing that, after 12 o'clock May 8, 1942, all persons of Japanese ancestry, both alien and non-alien, were to be excluded from a described portion of Military Area No. 1, which included the County of Alameda, California. The order required a responsible member of each family and each individual living alone to report, at a time set, at a Civil Control Station for instructions to go to an Assembly Center, and added that any person failing to comply with the provisions of the order who was found in the described area after the date set would be liable to prosecution under the Act of March 21, 1942, *supra*. It is important to note that the order, by its express terms, had no application to persons within the bounds "of an established Assembly Center pursuant to instructions from this Headquarters"... The obvious purpose of the orders made, taken together, was to drive all citizens of Japanese ancestry into Assembly Centers within the zones of their residence, under pain of criminal prosecution.

The predicament in which the petitioner thus found himself was this: He was forbidden, by Military Order, to leave the zone in which he lived; he was forbidden, by Military Order, after a date fixed, to be found within that zone unless he were in an Assembly Center located in that zone. General DeWitt's report to the Secretary of War concerning the programme of evacuation and relocation of Japanese makes it entirely clear, if it were necessary to refer to that document,—and, in the light of the above recitation, I think it is not,—that an Assembly Center was a euphemism for a prison. No person within such a center was permitted to leave except by Military Order.

In the dilemma that he dare not remain in his home, or voluntarily leave the area, without incurring criminal penalties, and that the only way he could avoid punishment was to go to an Assembly Center and submit himself to military imprisonment, the petitioner did nothing.

June 12, 1942, an Information was filed in the District Court for Northern California charging a violation of the Act of March 21, 1942, in that petitioner had knowingly remained within the

⁶⁷ Fed. Reg. 3967.

Korematsu vs. United States.

13

area covered by Exclusion Order No. 34. A demurrer to the information having been overruled, the petitioner was tried under a plea of not guilty and convicted. Sentence was suspended and he was placed on probation for five years. We know, however, in the light of the foregoing recitation, that he was at once taken into military custody and lodged in an Assembly Center. We further know that, on March 18, 1942, the President had promulgated Executive Order No. 9102⁷ establishing the War Relocation Authority under which so-called Relocation Centers, a euphemism for concentration camps, were established pursuant to cooperation between the military authorities of the Western Defense Command and the Relocation Authority, and that the petitioner has been confined either in an Assembly Center, within the zone in which he had lived or has been removed to a Relocation Center where, as the facts disclosed in Endo v. United States (No. 70 of this Term) demonstrate, he was illegally held in custody.

The Government has argued this case as if the only order outstanding at the time the petitioner was arrested and informed against was Exclusion Order No. 34 ordering him to leave the area in which he resided, which was the basis of the information against him. That argument has evidently been effective. The opinion refers to the Hirabayashi case, *supra*, to show that this court has sustained the validity of a curfew order in an emergency. The argument then is that exclusion from a given area of danger, while somewhat more sweeping than a curfew regulation, is of the same nature,—a temporary expedient made necessary by a sudden emergency. This, I think, is a substitution of an hypothetical case for the case actually before the court. I might agree with the court's disposition of the hypothetical case.⁸ The liberty of every American citizen freely to come and to go must frequently, in the face of sudden danger, be temporarily limited or suspended. The civil authorities must often resort to the expedient of excluding citizens temporarily from a locality. The drawing of fire lines in the case of a con-

⁷⁷ Fed. Reg. 2165.

⁸ My agreement would depend on the definition and application of the terms "temporary" and "emergency". No pronouncement of the commanding officer can, in my view, preclude judicial inquiry and determination whether an emergency ever existed and whether, if so, it remained, at the date of the restraint out of which the litigation arose. Cf. Chastleton Corp. v. Sinclair, 264 U. S. 543.

14

Korematsu vs. United States.

flagration, the removal of persons from the area where a pestilence
has broken out, are familiar examples. If the exclusion worked
by Exclusion Order No. 34 were of that nature the *Hirabayashi*
case would be authority for sustaining it. But the facts above
recited, and those set forth in *Endo v. United States, supra*, show
that the exclusion was but a part of an over-all plan for forceable
detention. This case cannot, therefore, be decided on any such
narrow ground as the possible validity of a Temporary Exclusion
Order under which the residents of an area are given an oppor-
tunity to leave and go elsewhere in their native land outside the
boundaries of a military area. To make the case turn on any such
assumption is to shut our eyes to reality.

As I have said above, the petitioner, prior to his arrest, was
faced with two diametrically contradictory orders given sanction
by the Act of Congress of March 21, 1942. The earlier of those
orders made him a criminal if he left the zone in which he re-
sided; the later made him a criminal if he did not leave.

I had supposed that if a citizen was constrained by two laws,
or two orders having the force of law, and obedience to one would
violate the other, to punish him for violation of either would deny
him due process of law. And I had supposed that under these
circumstances a conviction for violating one of the orders could
not stand.

We cannot shut our eyes to the fact that had the petitioner
attempted to violate Proclamation No. 4 and leave the military
area in which he lived he would have been arrested and tried and
convicted for violation of Proclamation No. 4. The two conflicting
orders, one which commanded him to stay and the other which
commanded him to go, were nothing but a cleverly devised trap to
accomplish the real purpose of the military authority, which was
to lock him up in a concentration camp. The only course by which
the petitioner could avoid arrest and prosecution was to go to that
camp according to instructions to be given him when he reported
at a Civil Control Center. We know that is the fact. Why should
we set up a figmentary and artificial situation instead of addressing
ourselves to the actualities of the case?

These stark realities are met by the suggestion that it is lawful
to compel an American citizen to submit to illegal imprisonment on
the assumption that he might, after going to the Assembly Center,
apply for his discharge by suing out a writ of habeas corpus, as
was done in the *Endo* case, *supra*. The answer, of course, is that

Korematsu vs. United States.

15

where he was subject to two conflicting laws he was not bound, in
order to escape violation of one or the other, to surrender his
liberty for any period. Nor will it do to say that the detention
was a necessary part of the process of evacuation, and so we are
here concerned only with the validity of the latter.

Again it is a new doctrine of constitutional law that one in-
dicted for disobedience to an unconstitutional statute may not
defend on the ground of the invalidity of the statute but must
obey it though he knows it is no law and, after he has suffered
the disgrace of conviction and lost his liberty by sentence, then,
and not before, seek, from within prison walls, to test the validity
of the law.

Moreover, it is beside the point to rest decision in part on the
fact that the petitioner, for his own reasons, wished to remain in
his home. If, as is the fact he was constrained so to do, it is indeed
a narrow application of constitutional rights to ignore the order
which constrained him, in order to sustain his conviction for vio-
lation of another contradictory order.

I would reverse the judgment of conviction.

Mr. Justice MURPHY, dissenting.

This exclusion of "all persons of Japanese ancestry, both alien
and non-alien," from the Pacific Coast area on a plea of military
necessity in the absence of martial law ought not to be approved.
Such exclusion goes over "the very brink of constitutional
power" and falls into the ugly abyss of racism.

In dealing with matters relating to the prosecution and progress
of a war, we must accord great respect and consideration to the
judgments of the military authorities who are on the scene and
who have full knowledge of the military facts. The scope of
their discretion must, as a matter of necessity and common sense,
be wide. And their judgments ought not to be overruled lightly
by those whose training and duties ill-equip them to deal intelli-
gently with matters so vital to the physical security of the nation.

At the same time, however, it is essential that there be definite
limits to military discretion, especially where martial law has
not been declared. Individuals must not be left impoverished
of their constitutional rights on a plea of military necessity that

16

Korematsu vs. United States.

has neither substance nor support. Thus, like other claims conflicting with the asserted constitutional rights of the individual, the military claim must subject itself to the judicial process of having its reasonableness determined and its conflicts with other interests reconciled. "What are the allowable limits of military discretion, and whether or not they have been overstepped in a particular case, are judicial questions." Sterling v. Constantin, 287 U. S. 378, 401.

The judicial test of whether the Government, on a plea of military necessity, can validly deprive an individual of any of his constitutional rights is whether the deprivation is reasonably related to a public danger that is so "immediate, imminent, and impending" as not to admit of delay and not to permit the intervention of ordinary constitutional processes to alleviate the danger. United States v. Russell, 13 Wall. 623, 627-8; Mitchell v. Harmony, 13 How. 115, 134-5; Raymond v. Thomas, 91 U. S. 712, 716. Civilian Exclusion Order No. 34, banishing from a prescribed area of the Pacific Coast "all persons of Japanese ancestry, both alien and non-alien," clearly does not meet that test. Being an obvious racial discrimination, the order deprives all those within its scope of the equal protection of the laws as guaranteed by the Fifth Amendment. It further deprives these individuals of their constitutional rights to live and work where they will, to establish a home where they choose and to move about freely. In excommunicating them without benefit of hearings, this order also deprives them of all their constitutional rights to procedural due process. Yet no reasonable relation to an "immediate, imminent, and impending" public danger is evident to support this racial restriction which is one of the most sweeping and complete deprivations of constitutional rights in the history of this nation in the absence of martial law.

It must be conceded that the military and naval situation in the spring of 1942 was such as to generate a very real fear of invasion of the Pacific Coast, accompanied by fears of sabotage and espionage in that area. The military command was therefore justified in adopting all reasonable means necessary to combat these dangers. In adjudging the military action taken in light of the then apparent dangers, we must not erect too high or too meticulous standards; it is necessary only that the action have some reasonable relation to the removal of the dangers of invasion, sabotage and espionage. But the exclusion, either tem-

Korematsu vs. United States.

17

porarily or permanently, of all persons with Japanese blood in their veins has no such reasonable relation. And that relation is lacking because the exclusion order necessarily must rely for its reasonableness upon the assumption that all persons of Japanese ancestry may have a dangerous tendency to commit sabotage and espionage and to aid our Japanese enemy in other ways. It is difficult to believe that reason, logic or experience could be marshalled in support of such an assumption.

That this forced exclusion was the result in good measure of this erroneous assumption of racial guilt rather than bona fide military necessity is evidenced by the Commanding General's Final Report on the evacuation from the Pacific Coast area.¹ In it he refers to all individuals of Japanese descent as "subversive," as belonging to "an enemy race" whose "racial strains are undiluted," and as constituting "over 112,000 potential enemies . . . at large today" along the Pacific Coast.² In support of this blanket condemnation of all persons of Japanese descent, however, no reliable evidence is cited to show that such individuals were generally disloyal,³ or had generally so conducted themselves in this area as to constitute a special menace to defense installations or war industries, or had otherwise by their behavior furnished reasonable ground for their exclusion as a group.

Justification for the exclusion is sought, instead, mainly upon questionable racial and sociological grounds not ordinarily within the realm of expert military judgment, supplemented by cer-

1 Final Report, Japanese Evacuation from the West Coast, 1942, by Lt. Gen. J. L. De Witt. This report is dated June 5, 1943, but was not made public until January, 1944.

2 Further evidence of the Commanding General's attitude toward individuals of Japanese ancestry is revealed in his voluntary testimony on April 13, 1943, in San Francisco before the House Naval Affairs Subcommittee to Investigate Congested Areas, Part 3, pp. 739-40 (78th Cong., 1st Sess.):

"I don't want any of them (persons of Japanese ancestry) here. They are a dangerous element. There is no way to determine their loyalty. The west coast contains too many vital installations essential to the defense of the country to allow any Japanese on this coast. . . . The danger of the Japanese was, and is now—if they are permitted to come back—espionage and sabotage. It makes no difference whether he is an American citizen, he is still a Japanese. American citizenship does not necessarily determine loyalty. . . . But we must worry about the Japanese all the time until he is wiped off the map. Sabotage and espionage will make problems as long as he is allowed in this area. . . ."

3 The Final Report, p. 9, casts a cloud of suspicion over the entire group by saying that "while it was believed that some were loyal, it was known that many were not." (Italics added.)

18

Korematsu vs. United States.

tain semi-military conclusions drawn from an unwarranted use of circumstantial evidence. Individuals of Japanese ancestry are condemned because they are said to be "a large, unassimilated, tightly knit racial group, bound to an enemy nation by strong ties of race, culture, custom and religion."⁴ They are claimed to be given to "emperor worshipping ceremonies"⁵ and to "dual citizenship."⁶ Japanese language schools and allegedly pro-Japanese organizations are cited as evidence of possible group disloyalty,⁷ together with facts as to certain persons being educated and residing at length in Japan.⁸ It is intimated that many of these individuals deliberately resided "adjacent to strategic points," thus enabling them "to carry into execution a tremendous program of sabotage on a mass scale should any considerable number of them have been inclined to do so."⁹ The need for protective

⁴ Final Report, p. vii; see also pp. 9, 17. To the extent that assimilation is a problem, it is largely the result of certain social customs and laws of the American general public. Studies demonstrate that persons of Japanese descent are readily susceptible to integration in our society if given the opportunity. Strong, The Second-Generation Japanese Problem (1934); Smith, Americans in Process (1937); Mears, Resident Orientals on the American Pacific Coast (1928); Millis, The Japanese Problem in the United States (1942). The failure to accomplish an ideal status of assimilation, therefore, cannot be charged to the refusal of these persons to become Americanized or to their loyalty to Japan. And the retention by some persons of certain customs and religious practices of their ancestors is no criterion of their loyalty to the United States.

⁵ Final Report, pp. 10-11. No sinister correlation between the emperor worshipping activities and disloyalty to America was shown.

⁶ Final Report, p. 22. The charge of "dual citizenship" springs from a misunderstanding of the simple fact that Japan in the past used the doctrine of jus sanguinis, as she had a right to do under international law, and claimed as her citizens all persons born of Japanese nationals wherever located. Japan has greatly modified this doctrine, however, by allowing all Japanese born in the United States to renounce any claim of dual citizenship and by releasing "Genesis, Exodus, and Leviticus: Genealogy, Evacuation, and Law," 28 Cornell L. Q. 414, 447-8, and authorities there cited; McWilliams, Prejudice, 123-4 (1944).

⁷ Final Report, pp. 12-13. We have had various foreign language schools in this country for generations without considering their existence as ground for racial discrimination. No subversive activities or teachings have been shown in connection with the Japanese schools. McWilliams, Prejudice, 121-3 (1944).

⁸ Final Report, pp. 13-15. Such persons constitute a very small part of the entire group and most of them belong to the Kibei movement—the actions and membership of which are well known to our Government agents.

⁹ Final Report, p. 10; see also pp. vii, 9, 15-17. This insinuation, based purely upon speculation and circumstantial evidence, completely overlooks the fact that the main geographic pattern of Japanese population was fixed many years ago with reference to economic, social and soil conditions. Limited

Korematsu vs. United States.

19

custody is also asserted. The report refers without identity to "numerous incidents of violence" as well as to other admittedly unverified or cumulative incidents. From this, plus certain other events not shown to have been connected with the Japanese-Americans, it is concluded that the "situation was fraught with danger to the Japanese population itself" and that the general public "was ready to take matters into its own hands."¹⁰ Finally, it is intimated, though not directly charged or proved, that persons of Japanese ancestry were responsible for three minor isolated shellings and bombings of the Pacific Coast area,¹¹ as well as for unidentified radio transmissions and night signalling.

The main reasons relied upon by those responsible for the forced evacuation, therefore, do not prove a reasonable relation between the group characteristics of Japanese-Americans and the dangers of invasion, sabotage and espionage. The reasons appear, instead, to be largely an accumulation of much of the misinformation, half-truths and insinuations that for years have been directed against Japanese-Americans by people with racial and economic prejudices—the same people who have been among the foremost advocates of the evacuation.¹² A military judgment

occupational outlets and social pressures encouraged their concentration near their initial points of entry on the Pacific Coast. That these points may now be near certain strategic military and industrial areas is no proof of a diametrical purpose on the part of Japanese-Americans. See McWilliams, Prejudice, 119-121 (1944); House Report No. 2124 (77th Cong., 2d Sess.), 59-93.

¹⁰ Final Report, pp. 8-9. This dangerous doctrine of protective custody, as proved by recent European history, should have absolutely no standing as an excuse for the deprivation of the rights of minority groups. See House Report No. 1911 (77th Cong., 2d Sess.) 1-2. Cf. House Report No. 2124 (77th Cong., 2d Sess.) 145-7. In this instance, moreover, there are only two minor instances of violence on record involving persons of Japanese ancestry. McWilliams, What About Our Japanese-Americans? Public Affairs Pamphlets, No. 91, p. 8 (1944).

¹¹ Final Report, p. 18. One of these incidents (the reputed dropping of incendiary bombs on an Oregon forest) occurred on Sept. 9, 1942—a considerable time after the Japanese-Americans had been evacuated from their homes and placed in Assembly Centers. See New York Times, Sept. 15, 1942, p. 1, col. 3.

¹² Special interest groups were extremely active in applying pressure for mass evacuation. See House Report No. 2124 (77th Cong., 2d Sess.) 154-6; McWilliams, Prejudice, 126-8 (1944). Mr. Austin E. Anson, managing secretary of the Salinas Vegetable Grower-Shipper Association, has frankly admitted that "We're charged with wanting to get rid of the Japs for selfish reasons. We do. It's a question of whether the white man lives on the Pacific Coast or the brown men. They came into this valley to work, and they stayed to take over. . . . They undersell the white man in the markets. . . . They work their women and children while the white farmer has to pay wages for his help. If all the Japs were removed tomorrow, we'd never miss

20

Korematsu vs. United States.

based upon such racial and sociological considerations is not en-
titled to the great weight ordinarily given the judgments based
upon strictly military considerations. Especially is this so when
every charge relative to race, religion, culture, geographical loca-
tion, and legal and economic status has been substantially discred-
ited by independent studies made by experts in these matters.¹³

The military necessity which is essential to the validity of the evacuation order thus resolves itself into a few intimations that certain individuals actively aided the enemy, from which it is inferred that the entire group of Japanese-Americans could not be trusted to be or remain loyal to the United States. No one denies, of course, that there were some disloyal persons of Japanese descent on the Pacific Coast who did all in their power to aid their ancestral land. Similar disloyal activities have been engaged in by many persons of German, Italian and even more pioneer stock in our country. But to infer that examples of individual disloyalty prove group disloyalty and justify discriminatory action against the entire group is to deny that under our system of law individual guilt is the sole basis for deprivation of rights. Moreover, this inference, which is at the very heart of the evacuation orders, has been used in support of the abhorrent and despicable treatment of minority groups by the dictatorial tyrannies which this nation is now pledged to destroy. To give constitutional sanction to that inference in this case, however well-intentioned may have been the military command on the Pacific Coast, is to adopt one of the cruelest of the rationales used by our enemies to destroy the dignity of the individual and to encourage and open the door to discriminatory actions against other minority groups in the passions of tomorrow.

No adequate reason is given for the failure to treat these Japanese-Americans on an individual basis by holding investigations and hearings to separate the loyal from the disloyal, as was done in the case of persons of German and Italian ancestry. See House Report No. 2124 (77th Cong., 2d Sess.) 247-52. It is asserted merely that the loyalties of this group "were unknown and time was of the essence."¹⁴ Yet nearly four months elapsed

them in two weeks, because the white farmers can take over and produce everything the Jap grows. And we don't want them back when the war ends, either." Quoted by Taylor in his article "The People Nobody Wants," 214 Sat. Eve. Post 24, 66 (May 9, 1942).

¹³ See notes 4-12, *supra*.

¹⁴ Final Report, p. vii; see also p. 18.

Korematsu vs. United States.

21

after Pearl Harbor before the first exclusion order was issued; nearly eight months went by until the last order was issued; and the last of these "subversive" persons was not actually removed until almost eleven months had elapsed. Leisure and deliberation seem to have been more of the essence than speed. And the fact that conditions were not such as to warrant a declaration of martial law adds strength to the belief that the factors of time and military necessity were not as urgent as they have been represented to be.

Moreover, there was no adequate proof that the Federal Bureau of Investigation and the military and naval intelligence services did not have the espionage and sabotage situation well in hand during this long period. Nor is there any denial of the fact that not one person of Japanese ancestry was accused or convicted of espionage or sabotage after Pearl Harbor while they were still free,¹⁵ a fact which is some evidence of the loyalty of the vast majority of these individuals and of the effectiveness of the established methods of combatting these evils. It seems incredible that under these circumstances it would have been impossible to hold loyalty hearings for the mere 112,000 persons involved—or at least for the 70,000 American citizens—especially when a large part of this number represented children and elderly men and women.¹⁶ Any inconvenience that may have accompanied an attempt to conform to procedural due process cannot be said to justify violations of constitutional rights of individuals.

I dissent, therefore, from this legalization of racism. Racial discrimination in any form and in any degree has no justifiable part whatever in our democratic way of life. It is unattractive in any setting but it is utterly revolting among a free people who have embraced the principles set forth in the Constitution of the United States. All residents of this nation are kin in some way

15 The Final Report, p. 34, makes the amazing statement that as of February 14, 1942, "The very fact that no sabotage has taken place to date is a disturbing and confirming indication that such action will be taken." Apparently, in the minds of the military leaders, there was no way that the Japanese-Americans could escape the suspicion of sabotage.

16 During a period of six months, the 112 alien tribunals or hearing boards set up by the British Government shortly after the outbreak of the present war summoned and examined approximately 74,000 German and Austrian aliens. These tribunals determined whether each individual enemy alien was a real enemy of the Allies or only a "friendly enemy." About 64,000 were freed from internment and from any special restrictions, and only 2,000 were interned. Kempner, "The Enemy Alien Problem in the Present War," 34 Amer. Journ. of Int. Law 443, 444-46; House Report No. 2124 (77th Cong., 2d Sess.), 280-1.

22

Korematsu vs. United States.

by blood or culture to a foreign land. Yet they are primarily and necessarily a part of the new and distinct civilization of the United States. They must accordingly be treated at all times as the heirs of the American experiment and as entitled to all the rights and freedoms guaranteed by the Constitution.

Mr. Justice JACKSON, dissenting.

Korematsu was born on our soil, of parents born in Japan. The Constitution makes him a citizen of the United States by nativity and a citizen of California by residence. No claim is made that he is not loyal to this country. There is no suggestion that apart from the matter involved here he is not law-abiding and well disposed. Korematsu, however, has been convicted of an act not commonly a crime. It consists merely of being present in the state whereof he is a citizen, near the place where he was born, and where all his life he has lived.

Even more unusual is the series of military orders which made this conduct a crime. They forbid such a one to remain, and they also forbid him to leave. They were so drawn that the only way Korematsu could avoid violation was to give himself up to the military authority. This meant submission to custody, examination, and transportation out of the territory, to be followed by indeterminate confinement in detention camps.

A citizen's presence in the locality, however, was made a crime only if his parents were of Japanese birth. Had Korematsu been one of four—the others being, say, a German alien enemy, an Italian alien enemy, and a citizen of American-born ancestors, convicted of treason but out on parole—only Korematsu's presence would have violated the order. The difference between their innocence and his crime would result, not from anything he did, said, or thought, different than they, but only in that he was born of different racial stock.

Now, if any fundamental assumption underlies our system, it is that guilt is personal and not inheritable. Even if all of one's antecedents had been convicted of treason, the Constitution forbids its penalties to be visited upon him, for it provides that "no attainder of treason shall work corruption of blood, or forfeiture except during the life of the person attainted." But here is an

Korematsu vs. United States.

23

attempt to make an otherwise innocent act a crime merely because this prisoner is the son of parents as to whom he had no choice, and belongs to a race from which there is no way to resign. If Congress in peace-time legislation should enact such a criminal law, I should suppose this Court would refuse to enforce it.

But the "law" which this prisoner is convicted of disregarding is not found in an act of Congress, but in a military order. Neither the Act of Congress nor the Executive Order of the President, nor both together, would afford a basis for this conviction. It rests on the orders of General DeWitt. And it is said that if the military commander had reasonable military grounds for promulgating the orders, they are constitutional and become law, and the Court is required to enforce them. There are several reasons why I cannot subscribe to this doctrine.

It would be impracticable and dangerous idealism to expect or insist that each specific military command in an area of probable operations will conform to conventional tests of constitutionality. When an area is so beset that it must be put under military control at all, the paramount consideration is that its measures be successful, rather than legal. The armed services must protect a society, not merely its Constitution. The very essence of the military job is to marshal physical force, to remove every obstacle to its effectiveness, to give it every strategic advantage. Defense measures will not, and often should not, be held within the limits that bind civil authority in peace. No court can require such a commander in such circumstances to act as a reasonable man; he may be unreasonably cautious and exacting. Perhaps he should be. But a commander in temporarily focusing the life of a community on defense is carrying out a military program; he is not making law in the sense the courts know the term. He issues orders, and they may have a certain authority as military commands, although they may be very bad as constitutional law.

But if we cannot confine military expedients by the Constitution, neither would I distort the Constitution to approve all that the military may deem expedient. That is what the Court appears to be doing, whether consciously or not. I cannot say, from any evidence before me, that the orders of General DeWitt were not reasonably expedient military precautions, nor could I say that they were. But even if they were permissible military procedures, I deny that it follows that they are constitutional. If, as the

24

Korematsu vs. United States.

Court holds, it does follow, then we may as well say that any military order will be constitutional and have done with it.

The limitation under which courts always will labor in examining the necessity for a military order are illustrated by this case. How does the Court know that these orders have a reasonable basis in necessity? No evidence whatever on that subject has been taken by this or any other court. There is sharp controversy as to the credibility of the DeWitt report. So the Court, having no real evidence before it, has no choice but to accept General DeWitt's own unsworn, self-serving statement, untested by any cross-examination, that what he did was reasonable. And thus it will always be when courts try to look into the reasonableness of a military order.

In the very nature of things military decisions are not susceptible of intelligent judicial appraisal. They do not pretend to rest on evidence, but are made on information that often would not be admissible and on assumptions that could not be proved. Information in support of an order could not be disclosed to courts without danger that it would reach the enemy. Neither can courts act on communications made in confidence. Hence courts can never have any real alternative to accepting the mere declaration of the authority that issued the order that it was reasonably necessary from a military viewpoint.

Much is said of the danger to liberty from the Army program for deporting and detaining these citizens of Japanese extraction. But a judicial construction of the due process clause that will sustain this order is a far more subtle blow to liberty than the promulgation of the order itself. A military order, however unconstitutional, is not apt to last longer than the military emergency. Even during that period a succeeding commander may revoke it all. But once a judicial opinion rationalizes such an order to show that it conforms to the Constitution, or rather rationalizes the Constitution to show that the Constitution sanctions such an order, the Court for all time has validated the principle of racial discrimination in criminal procedure and of transplanting American citizens. The principle then lies about like a loaded weapon ready for the hand of any authority that can bring forward a plausible claim of an urgent need. Every repetition imbeds that principle more deeply in our law and thinking and expands it to new purposes. All who observe the work of courts are familiar with what

Korematsu vs. United States.

25

Judge Cardozo described as "the tendency of a principle to expand itself to the limit of its logic."¹ A military commander may overstep the bounds of constitutionality, and it is an incident. But if we review and approve, that passing incident becomes the doctrine of the Constitution. There it has a generative power of its own, and all that it creates will be in its own image. Nothing better illustrates this danger than does the Court's opinion in this case.

It argues that we are bound to uphold the conviction of Korematsu because we upheld one in *Hirabayashi v. United States*, 320 U. S. 81, when we sustained these orders in so far as they applied a curfew requirement to a citizen of Japanese ancestry. I think we should learn something from that experience.

In that case we were urged to consider only the curfew feature, that being all that technically was involved, because it was the only count necessary to sustain Hirabayashi's conviction and sentence. We yielded, and the Chief Justice guarded the opinion as carefully as language will do. He said: "Our investigation here does not go beyond the inquiry whether, in the light of all the relevant circumstances preceding and attending their promulgation, the challenged orders and statute afforded a reasonable basis for the action taken in imposing the curfew." 320 U. S. at 101. "We decide only the issue as we have defined it—we decide only that the *curfew order* as applied, and at the time it was applied, was within the boundaries of the war power." 320 U. S. at 102. And again: "It is unnecessary to consider whether or to what extent such findings would support orders differing from the *curfew order*." 320 U. S. at 105. [Italies supplied.] However, in spite of our limiting words we did validate a discrimination on the basis of ancestry for mild and temporary deprivation of liberty. Now the principle of racial discrimination is pushed from support of mild measures to very harsh ones, and from temporary deprivations to indeterminate ones. And the precedent which it is said requires us to do so is *Hirabayashi*. The Court is now saying that in *Hirabayashi* we did decide the very things we there said we were not deciding. Because we said that these citizens could be made to stay in their homes during the hours of dark, it is said we must require them to leave home entirely; and if that, we are told they may also be taken into custody for deportation; and if

¹ Nature of the Judicial Process, p. 51.

26

Korematsu vs. United States.

that, it is argued they may also be held for some undetermined
time in detention camps. How far the principle of this case would
be extended before plausible reasons would play out, I do not know.

I should hold that a civil court cannot be made to enforce an
order which violates constitutional limitations even if it is a
reasonable exercise of military authority. The courts can exercise
only the judicial power, can apply only law, and must abide by
the Constitution, or they cease to be civil courts and become instru-
ments of military policy.

Of course the existence of a military power resting on force,
so vagrant, so centralized, so necessarily heedless of the individual,
is an inherent threat to liberty. But I would not lead people to
rely on this Court for a review that seems to me wholly delusive.
The military reasonableness of these orders can only be deter-
mined by military superiors. If the people ever let command of
the war power fall into irresponsible and unscrupulous hands, the
courts wield no power equal to its restraint. The chief restraint
upon those who command the physical forces of the country, in
the future as in the past, must be their responsibility to the
political judgments of their contemporaries and to the moral judg-
ments of history.

My duties as a justice as I see them do not require me to make
a military judgment as to whether General DeWitt's evacuation
and detention program was a reasonable military necessity. I do
not suggest that the courts should have attempted to interfere with
the Army in carrying out its task. But I do not think they may be
asked to execute a military expedient that has no place in law
under the Constitution. I would reverse the judgment and dis-
charge the prisoner.

No. 704.—OCTOBER TERM, 1945.

Irene Morgan, Appellant,

 appeal from the Supreme

 vs.

 Court of Appeals of the State

 Commonwealth of Virginia. of Virginia.

[June 3, 1946.]

Mr. Justice REED delivered the opinion of the Court.

This appeal brings to this Court the question of the constitu-
tionality of an act of Virginia,¹ which requires all passenger motor
vehicle carriers, both interstate and intrastate,² to separate with-
out discrimination³ the white and colored passengers in their
motor buses so that contiguous seats will not be occupied by
persons of different races at the same time. A violation of the
requirement of separation by the carrier is a misdemeanor.⁴ The
driver or other person in charge is directed and required to
increase or decrease the space allotted to the respective races as
may be necessary or proper and may require passengers to change
their seats to comply with the allocation. The operator's failure
to enforce the provisions is made a misdemeanor.⁵

These regulations were applied to an interstate passenger, this
appellant, on a motor vehicle then making an interstate run or
trip. According to the statement of fact by the Supreme Court
of Appeals of Virginia, appellant, who is a Negro, was traveling
on a motor common carrier, operating under the above-mentioned
statute, from Gloucester County, Virginia, through the District
of Columbia, to Baltimore, Maryland, the destination of the bus.
There were other passengers, both white and colored. On her
refusal to accede to a request of the driver to move to a back
seat, which was partly occupied by other colored passengers,
so as to permit the seat that she vacated to be used by white

1 Virginia Code of 1942, §§ 4097z to 4097dd inclusive. The sections are derived from an act of General Assembly of Virginia of 1930. Acts of Assembly, Va. 1930, p. 343.

2 Id., §§ 4097z, 4097m, 4097s; Morgan v. Commonwealth, 184 Va. 24, 39.

3 Id., § 4097aa.

4 Id., § 4097z; § 4097bb.

5 Id., § 4097bb.

2

Morgan vs. Commonwealth of Virginia.

passengers, a warrant was obtained and appellant was arrested, tried and convicted of a violation of Section 4097dd of the Virginia Code.⁶ On a writ of error the conviction was affirmed by the Supreme Court of Appeals of Virginia. 184 Va. 24. The Court of Appeals interpreted the Virginia statute as applicable to appellant since the statute "embraces all motor vehicles and all passengers, both interstate and intrastate."⁷ The Court of Appeals refused to accept appellant's contention that the statute applied was invalid as a delegation of legislative power to the carrier by a concurrent holding "that no power is delegated to the carrier to legislate.... The statute itself condemns the defendant's conduct as a violation of law and not the rule of the carrier." Id., at 38. No complaint is made as to these interpretations of the Virginia statute by the Virginia court.⁸

The errors of the Court of Appeals that are assigned and relied upon by appellant are in form only two. The first is that the decision is repugnant to Clause 3, Section 8, Article I of the Constitution of the United States,⁹ and the second the holding that powers reserved to the states by the Tenth Amendment include the

6 "4097dd. Violation by passengers; misdemeanor; ejection.—All persons who fail while on any motor vehicle carrier, to take and occupy the seat or seats or other space assigned to them by the driver, operator or other person in charge of such vehicle, or by the person whose duty it is to take up tickets or collect fares from passengers therein, or who fail to obey the directions of any such driver, operator or other person in charge, as aforesaid, to change their seats from time to time as occasions require, pursuant to any lawful rule, regulation or custom in force by such lines as to assigning separate seats or other space to white and colored persons, respectively, having been first advised of the fact of such regulation and requested to conform thereto, shall be deemed guilty of a misdemeanor, and upon conviction thereof shall be fined not less than five dollars nor more than twenty-five dollars for each offense. Furthermore, such persons may be ejected from such vehicle by any driver, operator or person in charge of said vehicle, or by any police officer or other conservator of the peace; and in case such persons ejected shall have paid their fares upon said vehicle, they shall not be entitled to the return of any part of same. For the refusal of any such passenger to abide by the request of the person in charge of said vehicle as aforesaid, and his consequent ejection from said vehicle, neither the driver, operator, person in charge, owner, manager nor bus company operating said vehicle shall be liable for damages in any court."

7 Morgan v. Commonwealth, supra, 37. Cf. Smith v. State, 100 Tenn. 494; Alabama & Vicksburg R. R. Co. v. Morris, 103 Miss. 511; Southern Ry. Co. v. Norton, 112 Miss. 302.

8 Compare Hebert v. Louisiana, 272 U. S. 312, 317; General Trading Co. v. Tax Comm'n, 322 U. S. 335, 337.

9 "Section 8. The Congress shall have Power . . . To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes;"

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power to require an interstate motor passenger to occupy a seat restricted for the use of his race. Actually, the first question alone needs consideration for if the statute unlawfully burdens interstate commerce, the reserved powers of the state will not validate it.¹⁰

We think, as the Court of Appeals apparently did, that the appellant is a proper person to challenge the validity of this statute as a burden on commerce.¹¹ If it is an invalid burden, the conviction under it would fail. The statute affects appellant as well as the transportation company. Constitutional protection against burdens on commerce is for her benefit on a criminal trial for violation of the challenged statute. Hatch v. Reardon, 204 U. S. 152, 160; Federation of Labor v. McAdory, 325 U. S. 450, 463.

This Court frequently must determine the validity of state statutes that are attacked as unconstitutional interferences with the national power over interstate commerce. This appeal presents that question as to a statute that compels racial segregation of interstate passengers in vehicles moving interstate.¹²

The precise degree of a permissible restriction on state power cannot be fixed generally or indeed not even for one kind of state legislation, such as taxation or health or safety.¹³ There is a recognized abstract principle, however, that may be taken as a postulate for testing whether particular state legislation in the absence of action by Congress is beyond state power. This is that the state legislation is invalid if it unduly burdens that commerce in matters where uniformity is necessary—necessary in the constitutional sense of useful in accomplishing a permitted purpose.¹⁴ Where uniformity is essential for the functioning of commerce, a state may not interpose its local regulation.¹⁵ Too true it is that

10 Case v. Bowles, No. 261 this Term, decided February 4, 1946, slip opinion p. 6.

11 Cf. Edwards v. California, 314 U. S. 160, 172, n. 1.

12 When passing upon a rule of a carrier that required segregation of an interstate passenger, this Court said, "And we must keep in mind that we are not dealing with the law of a State attempting a regulation of interstate commerce beyond its power to make." Chiles v. Chesapeake & Ohio Railway, 218 U. S. 71, 75.

13 Cf. Gwin, etc., Inc. v. Henneford, 305 U. S. 434, 439; Mitz v. Baldwin, 289 U. S. 346, 352; Welech Co. v. New Hampshire, 306 U. S. 79, 84.

14 Southern Pacific Co. v. Arizona, 325 U. S. 761, 766-71.

15 Cooley v. Board of Wardens, 12 How. 299, 319; The Minnesota Rate Cases, 230 U. S. 352, 402; Kelly v. Washington, 302 U. S. 1, 10.

4

the principle lacks in precision. Although the quality of such a principle is abstract, its application to the facts of a situation created by the attempted enforcement of a statute brings about a specific determination as to whether or not the statute in question is a burden on commerce. Within the broad limits of the principle, the cases turn on their own facts.

In the field of transportation, there have been a series of decisions which hold that where Congress has not acted and although the state statute affects interstate commerce, a state may validly enact legislation which has predominantly only a local influence on the course of commerce.¹⁶ It is equally well settled that, even where Congress has not acted, state legislation or a final court order is invalid which materially affects interstate commerce.¹⁷

¹⁶ Statutes or orders dealing with safety of operations: Smith v. Alabama, 124 U. S. 465 (Alabama statute requiring an examination and license of train engineers before operating in the state); Nashville, &c. Railway v. Alabama, 128 U. S. 96 (Statute requiring examination of railroad employees as to vision and color blindness); N. Y., N. H. & H. Railroad v. New York, 165 U. S. 628 (N. Y. statute forbidding the use of furnaces or stoves in passenger cars and requiring guard-posts on railroad bridges); Erb v. Morasch, 177 U. S. 584 (Municipal ordinance limiting speed of trains in city to 6 miles an hour); Atlantic Coast Line v. Georgia, 234 U. S. 280 (Georgia statute requiring electric headlights on locomotives); Morris v. Duby, 274 U. S. 135 (Weight restrictions on motor carriers imposed by order of Oregon highway commission); Sproles v. Binford, 286 U. S. 374 (Size and weight restrictions on trucks imposed by Texas statute); S. C. Hwy. Dept. v. Barnwell Bros., 303 U. S. 177 (Statute restricting weight and size of motor carriers); Maurer v. Hamilton, 309 U. S. 598 (Penna. statute forbidding the use of its highways to any vehicle carrying any other vehicle over the head of the operator of the vehicle); Terminal Assn. v. Trainmen, 318 U. S. 1 (Illinois statute requiring caboeses on freight trains).

Statutes or orders requiring local train service: Gladson v. Minnesota, 166 U. S. 427 (State statute requiring intrastate train to stop at county seat to take on and discharge passengers); Lake Shore & Mich. South. Railway v. Ohio, 173 U. S. 285 (Statute requiring three trains daily, if so many are run, to stop at each city containing over 3,000 inhabitants as applied to interstate trains); Atlantic Coast Line v. N. Car. Corp. Com'n, 206 U. S. 1 (Order regulating train service, particularly requiring train to permit connection with through trains at junction point); Mo. Pac. Ry. Co. v. Kansas, 216 U. S. 262 (Order directing the operation of intrastate passenger train service over specified route).

Statutes dealing with employment of labor—full crew laws: Chicago, R. I. & Pac. Ry. Co. v. Arkansas, 219 U. S. 453 (Arkansas full crew law applied to interstate trains); St. L. & Iron Mtn. Ry. v. Arkansas, 240 U. S. 518 (Arkansas full crew laws applied to switching crews); Missouri Pacific R. Co. v. Norwood, 283 U. S. 249 (Arkansas full crew laws applied to freight and switching crews).

¹⁷ Statutes or orders dealing with safety of operations: Kansas Southern Ry. v. Kaw Valley Dist., 233 U. S. 75 (Order requiring railroad to remove its bridges over river for flood control purposes); South Covington Ry. v.

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Because the Constitution puts the ultimate power to regulate commerce in Congress, rather than the states, the degree of state legislation's interference with that commerce may be weighed by federal courts to determine whether the burden makes the statute unconstitutional.¹⁸ The courts could not invalidate federal legislation for the same reason because Congress, within the limits of the Fifth Amendment, has authority to burden commerce if that seems to it a desirable means of accomplishing a permitted end.¹⁹

This statute is attacked on the ground that it imposes undue burdens on interstate commerce. It is said by the Court of Appeals to have been passed in the exercise of the state's police power to avoid friction between the races. But this Court pointed out years ago "that a State cannot avoid the operation of this rule by simply invoking the convenient apologetics of the police power."²⁰ Burdens upon commerce are those actions of a state which directly "impair the usefulness of its facilities for such

Covington, 235 U. S. 537 (Ordinances regulating the number of passengers to be carried in, the number of cars to be run and the temperature of an interstate street railway car invalid; those requiring rails on front and rear platform, ventilation and cleaning valid); Seaboard Air Line Ry. v. Blackwell, 244 U. S. 310 (Georgia Blow Post Law requiring train to blow whistle and slow down almost to a stop at each grade crossing where numerous grade crossings were involved. Cf. Southern Railway Co. v. King, 217 U. S. 524, where answer held insufficient to permit proof of burden of the statute on interstate commerce); Southern Pacific Co. v. Arizona, 325 U. S. 761 (Statute limiting number of cars in freight train to 70 and passenger cars to 14).

Statutes or orders requiring local train service: Illinois Central Railroad Co. v. Illinois, 163 U. S. 142 (Statute applied to require fast mail train to detour from main line in order to stop at station for the taking on and discharge of passengers); Cleveland, &c. Ry. Co. v. Illinois, 177 U. S. 514 (Ill. statute requiring interstate train to stop at each station); Mississippi R. R. Com. v. Illinois Cent. R. R., 203 U. S. 335 (Order of commission requiring interstate train to stop at small town); Atlantic Coast Line v. Wharton, 207 U. S. 328 (S. C. statute and railroad commission order requiring interstate train to stop at small town); St. Louis S. W. Ry. v. Arkansas, 217 U. S. 136 (Statute and order requiring delivery of freight cars to local shippers); Herndon v. Chi., Rock Island & Pac. Ry., 218 U. S. 135 (Statute requiring interstate train to stop at junction point); Chi., B. & Q. Ry. v. Wisconsin R. R. Com., 237 U. S. 220 (Wisconsin statute requiring interstate train to stop at villages containing 200 or more inhabitants); Missouri, Kans. & Tex. Ry. Co. v. Texas, 245 U. S. 484 (Order requiring trains to start on time and fixing time allowed for stops at junctions en route); St. Louis & S. F. Ry. v. Pub. Serv. Comm., 254 U. S. 535 (Order requiring through trains to detour through a small town); St. L.-S. F. Ry. v. Pub. Serv. Comm., 261 U. S. 369 (Order requiring that interstate trains be stopped at small town).

18 See Southern Pacific Co. v. Arizona, 325 U. S. at 770.

19 Compare United States v. Carolene Products Co., 304 U. S. 144, 146.

20 Kansas Southern Ry. v. Kaw Valley Dist., 233 U. S. 75, 79.

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traffic."²¹ That impairment, we think, may arise from other causes than costs or long delays. A burden may arise from a state statute which requires interstate passengers to order their movements on the vehicle in accordance with local rather than national requirements.

On appellant's journey, this statute required that she sit in designated seats in Virginia.²² Changes in seat designation might be made "at any time" during the journey when "necessary or proper for the comfort and convenience of passengers." This occurred in this instance. Upon such change of designation, the statute authorizes the operator of the vehicle to require, as he did here, "any passenger to change his or her seat as it may be necessary or proper."²³ An interstate passenger must if necessary repeatedly shift seats while moving in Virginia to meet the seating requirements of the changing passenger group. On arrival at the District of Columbia line, the appellant would have had freedom to occupy any available seat and so to the end of her journey.

Interstate passengers traveling via motors between the north and south or the east and west may pass through Virginia on through lines in the day or in the night. The large buses approach the comfort of pullmans and have seats convenient for rest. On such interstate journeys the enforcement of the requirements for reseating would be disturbing.

Appellant's argument, properly we think, includes facts bearing on interstate motor transportation beyond those immediately involved in this journey under the Virginia statutory regulations. To appraise the weight of the burden of the Virginia statute on interstate commerce, related statutes of other states are important to show whether there are cumulative effects which may make local regulation impracticable. Eighteen states, it appears, prohibit racial separation on public carriers.²⁴ Ten require sep-

21 Illinois Central Railroad Co. v. Illinois, 163 U. S. 142, 154.

22 The Virginia Code of 1942, section 67, defines a colored person, for the purpose of the Code, as follows: "Every person in whom there is ascertainable any negro blood shall be deemed and taken to be a colored person ..." Provisions for vital statistics make a record of the racial lines of Virginia inhabitants. Sections 1574 and 5099a.

23 § 4097bb.

24 Cal. Civ. Code (Deering), 1941. Sec. 51-54; Colo. Stat. Ann., 1935, Ch. 35, Sec. 1-10; Conn. Gen. Stat. (Supp. 1935), Sec. 1160b; Ill. Rev. Stat., 1945, Ch. 38, Sec. 125-128g; Ind. Stat. (Burns), 1933, Sec. 10-901, 10-902; Iowa

7

aration on motor carriers.²⁵ Of these Alabama applies specifically to interstate passengers with an exception for interstate passengers with through tickets from states without laws on separation of passengers.²⁶ The language of the other acts, like this Virginia statute before the Court of Appeals' decision in this case, may be said to be susceptible to an interpretation that they do or do not apply to interstate passengers.

In states where separation of races is required in motor vehicles, a method of identification as white or colored must be employed. This may be done by definition. Any ascertainable Negro blood identifies a person as colored for purposes of separation in some states.²⁷ In the other states which require the separation of the races in motor carriers, apparently no definition generally applicable or made for the purposes of the statute is given. Court definition or further legislative enactments would be required to clarify the line between the races. Obviously there may be changes by legislation in the definition.²⁸

The interferences to interstate commerce which arise from state regulation of racial association on interstate vehicles has long been recognized. Such regulation hampers freedom of choice in selecting accommodations. The recent changes in transportation brought about by the coming of automobiles does not seem of

Code, 1939, Sec. 13251-13252; Kan. Gen. Stat., 1935, Sec. 21-2424; Mass. Laws (Michie), 1933, Chap. 272, Sec. 98, as amended 1934; Mich. Stat. Ann., 1938, Sec. 28.343, 28.344; Minn. Stat. (Mason), 1927, Sec. 7321; Neb. Comp. Stat., 1929, Sec. 23-101; N. J. Rev. Stat., 1937, Sec. 10:1-2 to 10:1-7; N. Y. Civil Rights Law (McKinney), Sec. 40-41; Ohio Code (Throckmorton), 1940, Sec. 12940-12942; Pa. Stat. (Purdon), Tit. 18, Sec. 4654 to 4655; R. I. Gen. Laws, 1938, Ch. 606, Sec. 28-29; Wash. Rev. Stat. (Remington), 1932, Sec. 2686 (semble); Wis. Stat., 1943, Sec. 340.75.

25 Ala. Code, 1940, Tit. 48, Sec. 268; Ark. Stat., 1937 (Pope), Sec. 6921-6927, Acts 1943, p. 379; Ga. Code, 1933, Sec. 68-616; La. Gen. Stat. (Dart), 1939, Sec. 5307-5309; Miss. Code, 1942, Sec. 7785; N. C. Gen. Stat. 1943, Sec. 62-109; Okla. Stat. Ann., 1941, Tit. 47, 201-210; S. C. Code, 1942, Sec. 8530-1; Tex. Pen. Code (Vernon), 1936, Art. 1659; Va. Code, 1942, Sec. 4097z-4097dd.

26 Ala. Code 1940, Tit. 48, Sec. 268.

27 Ala. Code, 1940, Tit. 1, Sec. 2; Ark. Stat. (Pope), 1937, Sec. 1200 (separative coach law); Ga. Code (Michie Supp.), 1928, Sec. 2177; Okla. Const., Art. XXIII, Sec. 11; Va. Code (Michie), 1942, Sec. 67.

28 Compare Va. Code, 1887, Sec. 49, providing that those who had one-fourth or more Negro blood were to be considered colored. This was changed in 1910 (Acts, 1910, p. 581) to read one-sixteenth or more. It was again changed in 1930 by Acts, 1930, p. 97, to its present form, i. e., any ascertainable Negro blood. See note 22, supra.

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great significance in the problem. People of all races travel today more extensively than in 1878 when this Court first passed upon state regulation of racial segregation in commerce. The factual situation set out in preceding paragraphs emphasizes the soundness of this Court's early conclusion in Hall v. DeCuir, 95 U. S. 485.

The DeCuir case arose under a statute of Louisiana interpreted by the courts of that state and this Court to require public carriers "to give all persons travelling in that State, upon the public conveyances employed in such business, equal rights and privileges in all parts of the conveyance, without distinction or discrimination on account of race or color." Page 487. Damages were awarded against Hall, the representative of the operator of a Mississippi river steamboat that traversed that river interstate from New Orleans to Vicksburg, for excluding in Louisiana the defendant in error, a colored person, from a cabin reserved for whites. This Court reversed for reasons well stated in the words of Mr. Chief Justice Waite.²⁹ As our previous discussion dem-

29 95 U. S. at 489:

"It was to meet just such a case that the commercial clause in the Constitution was adopted. The river Mississippi passes through or along the borders of ten different States, and its tributaries reach many more. The commerce upon these waters is immense, and its regulation clearly a matter of national concern. If each State was at liberty to regulate the conduct of carriers while within its jurisdiction, the confusion likely to follow could not but be productive of great inconvenience and unnecessary hardship. Each State could provide for its own passengers and regulate the transportation of its own freight, regardless of the interests of others. Nay more, it could prescribe rules by which the carrier must be governed within the State in respect to passengers and property brought from without. On one side of the river or its tributaries he might be required to observe one set of rules, and on the other another. Commerce cannot flourish in the midst of such embarrassments. No carrier of passengers can conduct his business with satisfaction to himself, or comfort to those employing him, if on one side of a State line his passengers, both white and colored, must be permitted to occupy the same cabin, and on the other be kept separate. Uniformity in the regulations by which he is to be governed from one end to the other of his route is a necessity in his business, and to secure it Congress, which is untrammelled by State lines, has been invested with the exclusive legislative power of determining what such regulations shall be. If this statute can be enforced against those engaged in interstate commerce, it may be as well against those engaged in foreign; and the master of a ship clearing from New Orleans for Liverpool, having passengers on board, would be compelled to carry all, white and colored, in the same cabin during his passage down the river, or be subject to an action for damages, 'exemplary as well as actual,' by any one who felt himself aggrieved because he had been excluded on account of his color."

See Louisville, &c. Railway Co. v. Mississippi, 133 U. S. 587, 590-91.

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onstrates, the transportation difficulties arising from a statute that requires commingling of the races, as in the DeCuir case, are increased by one that requires separation, as here.³⁰ Other federal courts have looked upon racial separation statutes as applied to interstate passengers as burdens upon commerce.³¹

In weighing the factors that enter into our conclusion as to whether this statute so burdens interstate commerce or so infringes the requirements of national uniformity as to be invalid, we are mindful of the fact that conditions vary between northern or western states such as Maine or Montana, with practically no colored population; industrial states such as Illinois, Ohio, New Jersey and Pennsylvania with a small, although appreciable, percentage of colored citizens; and the states of the deep south with percentages of from twenty-five to nearly fifty per cent colored, all

A regulation of the number of passengers on interstate street cars was held invalid in South Covington Ry. v. Covington, 235 U. S. 537, 547. This Court said at 547-48:

"If Covington can regulate these matters, certainly Cincinnati can, and interstate business might be impeded by conflicting and varying regulations in this respect, with which it might be impossible to comply. On one side of the river one set of regulations might be enforced, and on the other side quite a different set, and both seeking to control a practically continuous movement of cars. As was said in Hall v. DeCuir, 95 U. S. 485, 489, 'commerce cannot flourish in the midst of such embarrassments.'"

30 South Covington, &c. Ry. Co. v. Kentucky, 252 U. S. 399, relied upon by appellee, does not decide to the contrary of the holding in Hall v. DeCuir. In that case a carrier corporation was convicted in the Kentucky courts of violation of a state statute that required it to furnish cars with separate compartments for white and colored. It operated street cars interstate over the lines of another corporation that owned tracks that were wholly intrastate. The Court of Appeals of Kentucky held the conviction good on the ground that the offending act was the operation of the intrastate railroad in violation of the state statute. It was said that the statute did not apply to an interstate passenger. S. C. & C. Street Ry. Co. v. Commonwealth, 181 Ky. 449, 454. The Court of Appeals referred, with continual approval, at that point to Chiles v. Chesapeake & Ohio Ry. Co., 125 Ky. 299, 304: "It is admitted that section 795-801 of the Kentucky Statutes, requiring all railroad companies to furnish separate coaches for transportation of white and colored passengers, and imposing upon the company and conductors a penalty for refusing or failing to carry out the provisions of the law, does not apply to appellant, who was an interstate passenger; it being conceded that the statute is only operative within the territorial limits of this State, and effective as to passengers who travel from one point within the State to another place within its border." This Court accepted this application of the state statute and said it "is not a regulation of interstate commerce." Page 403. Probably what was meant by the opinions was that under the Kentucky act the company with wholly intrastate mileage must operate cars with separate compartments for intrastate passengers.

31 Anderson v. Louisville & N. R. Co., 62 Fed. 46, 48; Washington, B. & A. Electric R. Co. v. Waller, 289 Fed. 598. See also Hart v. State, 100 Md. 595; Carrey v. Spencer, 36 N. Y. Supp. 886.

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with varying densities of the white and colored race in certain localities. Local efforts to promote amicable relations in difficult areas by legislative segregation in interstate transportation emerge from the latter racial distribution. As no state law can reach beyond its own border nor bar transportation of passengers across its boundaries, diverse seating requirements for the races in interstate journeys result. As there is no federal act dealing with the separation of races in interstate transportation, we must decide the validity of this Virginia statute on the challenge that it interferes with commerce, as a matter of balance between the exercise of the local police power and the need for national uniformity in the regulations for interstate travel. It seems clear to us that seating arrangements for the different races in interstate motor travel require a single, uniform rule to promote and protect national travel. Consequently, we hold the Virginia statute in controversy invalid.

Reversed.

Mr. Justice RUTLEDGE concurs in the result.

Mr. Justice JACKSON took no part in the consideration or decision of this case.

Mr. Justice BLACK concurring.

The Commerce Clause of the Constitution provides that "Congress shall have power . . . to regulate commerce . . . among the several States." I have believed, and still believe that this provision means that Congress can regulate commerce and that the courts cannot. But in a series of cases decided in recent years this Court over my protest has held that the Commerce Clause justifies this Court in nullifying state legislation which this Court concludes imposes an "undue burden" on interstate commerce.¹ I think that whether state legislation imposes an "undue burden" on interstate commerce raises pure questions of policy, which the Constitution intended should be resolved by the Congress.

Very recently a majority of this Court reasserted its power to invalidate state laws on the ground that such legislation put an

¹ Nippert v. Richmond, — U. S. —; Southern Pacific Co. v. Arizona, 325 U. S. 761; McCarrol v. Dixie Greyhound Lines, 309 U. S. 176; Gwin, White & Prince v. Henneford, 305 U. S. 434; Adams Mfg. Co. v. Storen, 304 U. S. 307.

11

undue burden on commerce. Nippert v. Richmond, supra; Southern Pacific Co. v. Arizona, supra. I thought then, and still believe, that in these cases the Court was assuming the role of a "super-legislature" in determining matters of governmental policy. Id., at 787, w. 4.

But the Court, at least for the present, seems committed to this interpretation of the Commerce Clause. In the Southern Pacific Co. case, the Court, as I understand its opinion, found an "undue burden" because a state's requirement for shorter trains increased the cost of railroad operations and thereby delayed interstate commerce and impaired its efficiency. In the Nippert case a small tax imposed on a sales solicitor employed by concerns located outside of Virginia was found to be an "undue burden" even though a solicitor for Virginia concerns engaged in the same business would have been required to pay the same tax.

So long as the Court remains committed to the "undue burden on commerce formula," I must make decisions under it. The "burden on commerce" imposed by the Virginia law here under consideration seems to me to be of a far more serious nature than those of the Nippert or Southern Pacific Company cases. The Southern Pacific Company opinion, moreover, relied in part on the rule announced in Hall v. DeCuir, 95 U. S. 485, which case held that the Commerce Clause prohibits a state from passing laws which require that "on one side of a State line . . . passengers, both white and colored, must be permitted to occupy the same cabin, and on the other be kept separate." The Court further said that "uniformity in the regulations by which . . . [a carrier] . . . is to be governed from one end to the other of his route is a necessity in his business" and that it was the responsibility of Congress, not the states, to determine "what such regulations shall be." The "undue burden on commerce formula" consequently requires the majority's decision. In view of the Court's present disposition to apply that formula, I acquiesce.

Mr. Justice FRANKFURTER concurring.

My brother Burton has stated with great force reasons for not invalidating the Virginia statute. But for me Hall v. DeCuir, 95 U. S. 485, is controlling. Since it was decided nearly seventy years ago, that case on several occasions has been approvingly

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cited and has never been questioned. Chiefly for this reason I concur in the opinion of the Court.

The imposition upon national systems of transportation of a crazy-quilt of State laws would operate to burden commerce unreasonably, whether such contradictory and confusing State laws concern racial commingling or racial segregation. This does not imply the necessity for a nationally uniform regulation of arrangements for passengers on interstate carriers. Unlike other powers of Congress (see Art. I, § 8, cl. 1, concerning "Duties, Imposts and Excises"; Art. I, § 8, cl. 4, concerning "Naturalization"; Art. I, § 8, cl. 4, concerning "Bankruptcies"), the power to regulate commerce does not require geographic uniformity. Congress may devise a national policy with due regard to varying interests of different regions. E. g., 37 Stat. 699, 27 U. S. C. § 122; Clark Distilling Co. v. West'n Md. Ry. Co., 242 U. S. 311; 45 Stat. 1084, 49 U. S. C. § 60; Whitfield v. Ohio, 297 U. S. 431. The States cannot impose diversity of treatment when such diverse treatment would result in unreasonable burdens on commerce. But Congress may effectively exercise its power under the Commerce Clause without the necessity of a blanket rule for the country.

Mr. Justice BURTON dissenting.

On the application of the interstate commerce clause of the Federal Constitution to this case, I find myself obliged to differ from the majority of the Court. I would sustain the Virginia statute against that clause. The issue is neither the desirability of the statute nor the constitutionality of racial segregation as such. The opinion of the Court does not claim that the Virginia statute, regulating seating arrangements for interstate passengers in motor vehicles, violates the Fourteenth Amendment or is in conflict with a federal statute. The Court holds this statute unconstitutional for but one reason. It holds that the burden imposed by the statute upon the nation's interest in interstate commerce so greatly outweighs the contribution made by the statute to the state's interest in its public welfare as to make it unconstitutional.

The undue burden upon interstate commerce thus relied upon by the Court is not complained of by the Federal Government, by any state, or by any carrier. This statute has been in effect

13

since 1930. The carrier concerned is operating under regulations of its own which conform to the statute. The statute conforms to the policy adopted by Virginia as to steamboats (1900), electric or street cars and railroads (1902-1904).¹ Its validity has been unanimously upheld by the Supreme Court of Appeals of Virginia. The argument relied upon by the majority of this Court to establish the undue burden of this statute on interstate commerce is the lack of uniformity between its provisions and those of the laws of other states on the subject of the racial separation of interstate passengers on motor vehicles.

If the mere diversity between the Virginia statute and comparable statutes of other states is so serious as to render the Virginia statute invalid, it probably means that the comparable statutes of those other states, being diverse from it and from each other, are equally invalid. This is especially true under that assumption of the majority which disregards sectional interstate travel between neighboring states having similar laws, to hold "that seating arrangements for the different races in interstate motor travel require a single, uniform rule to protect national travel." (Italics supplied.) More specifically, the opinion of the Court indicates that the laws of the 10 contiguous states of Virginia, North Carolina, South Carolina, Georgia, Alabama, Mississippi, Louisiana, Arkansas, Texas and Oklahoma require racial separation of passengers on motor carriers, while those of 18 other states prohibit racial separation of passengers on public carriers. On the precedent of this case, the laws of the 10 states requiring racial separation apparently can be invalidated because of their sharp diversity from the laws in the rest of the Union, or, in a lesser degree, because of their diversity from one another. Such invalidation, on the ground of lack of nation-wide uniformity, may lead to questioning the validity of the laws of the 18 states now prohibiting racial separation of passengers, for those laws likewise differ sharply from laws on the same subject in other parts of the Union and, in a lesser degree, from one another. In the absence of federal law, this may eliminate state regulation of racial separation in the seating of interstate passengers on motor vehicles

¹ Steamboats: Acts of 1900, p. 340; electric or street cars: Acts of 1902-1904, p. 990; railroads: Acts of 1902-1904, p. 987. Va. Code Ann., 1942, §§ 4022-4025; 3978-3983; 3962-3969.

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and leave the regulation of the subject to the respective carriers.

The present decision will lead to the questioning of the validity of statutory regulation of the seating of intrastate passengers in the same motor vehicles with interstate passengers. The decision may also result in increased lack of uniformity between regulations as to seating arrangements on motor vehicles limited to intrastate passengers in a given state and those on motor vehicles engaged in interstate business in the same state or on connecting routes.

The basic weakness in the appellant's case is the lack of facts and findings essential to demonstrate the existence of such a serious and major burden upon the national interest in interstate commerce as to outweigh whatever state or local benefits are attributable to the statute and which would be lost by its invalidation. The Court recognizes that it serves as "the final arbiter of the competing demands of state and national interests"² and that it must fairly determine, in the absence of Congressional action, whether the state statute actually imposes such an undue burden upon interstate commerce as to invalidate that statute. In weighing these competing demands, if this Court is to justify the invalidation of this statute, it must, first of all, be satisfied that the many years of experience of the state and the carrier that are reflected in this state law should be set aside. It represents the tested public policy of Virginia regularly enacted, long maintained and currently observed. The officially declared state interests, even when affecting interstate commerce, should not be laid aside summarily by this Court in the absence of Congressional action. It is only Congress that can supply affirmative national uniformity of action.

In *Southern Pacific Co. v. Arizona*, 325 U. S. 761, 768-769, 770, this Court speaking through the late Chief Justice said:

> "In the application of these principles some enactments may be found to be plainly within and others plainly without state power. But between these extremes lies the infinite variety of cases, in which regulation of local matters may also operate as a regulation of commerce, in which reconciliation of the conflicting claims of state and national power is to be attained only by some appraisal and accommodation of

² Southern Pacific Co. v. Arizona, 325 U. S. 761, 769.

15

the competing demands of the state and national interests involved.³

> "But in general Congress has left it to the courts to formulate the rules thus interpreting the commerce clause in its application, doubtless because it has appreciated the destructive consequences to the commerce of the nation if their [i. e. the courts'] protection were withdrawn, . . . and has been aware that in their application state laws will not be invalidated without the support of relevant factual material which will 'afford a sure basis' for an informed judgment.⁴ . . . Meanwhile, Congress has accommodated its legislation, as have the states, to these rules as an established feature of our constitutional system. There has thus been left to the states wide scope for the regulation of matters of local state concern, even though it in some measure affects the commerce, provided it does not materially restrict the free flow of commerce across state lines, or interfere with it in matters with respect to which uniformity of regulation is of predominant national concern." (Italics supplied.)

The above quoted requirement of a factual establishment of "a sure basis" for an informed judgment by this Court calls for a firm and demonstrable basis of action on the part of this Court. In the record of this case there are no findings of fact that demonstrate adequately the excessiveness of the burden, if any, which the Virginia statute has imposed upon interstate commerce, during the many years since its enactment, in comparison with the resulting effect in Virginia of the invalidation of this statute.⁵ The Court relies largely upon the recital of a nationwide diversity among state statutes on this subject without a demonstration of the factual situation in those states, and especially in Virginia. The Court therefore is not able in this case to make that necessary "appraisal and accommodation of the competing demands of the state and national interests involved"

³ See Parker v. Brown, 317 U. S. 341, 362; Di Santo v. Pennsylvania, 273 U. S. 34, 44.

⁴ Terminal Assn. v. Trainmen, 318 U. S. 1, 8.

⁵ Hall v. DeCuir, 95 U. S. 485, does not require the conclusion reached by the Court in this case. The Louisiana statute in the *DeCuir* case could have been invalidated, at that time and place, as an undue burden on interstate commerce under the rules clearly stated by Chief Justice Stone in *Southern Pacific Co. v. Arizona, supra*, and as applied in this dissenting opinion. If the *DeCuir* case is followed without weighing the surrounding facts it would invalidate today statutes in New England states prohibiting racial separation in seating arrangements on carriers, which would not be invalidated under the doctrine stated in the *Arizona* case.

16

which should be the foundation for passing upon the validity of
a state statute of long standing and of important local signifi-
cance in the exercise of the state police power.

The Court makes its own further assumption that the question
of racial separation of interstate passengers in motor vehicle
carriers requires national uniformity of treatment rather than
diversity of treatment at this time. The inaction of Congress is
an important indication that, in the opinion of Congress, this
issue is better met without nationally uniform affirmative regula-
tion than with it. Legislation raising the issue long has been,
and is now, pending before Congress but has not reached the floor
of either house.⁶ The fact that 18 states have prohibited in some
degree racial separation in public carriers is important progress
in the direction of uniformity. The fact, however, that 10 con-
tiguous states in some degree require, by state law, some racial
separation of passengers on motor carriers indicates a different
appraisal by them of the needs and conditions in those areas than
in others. The remaining 20 states have not gone equally far in
either direction. This recital of existing legislative diversity is
evidence against the validity of the assumption by this Court
that there exists today a requirement of a single uniform national
rule on the subject.

It is a fundamental concept of our Constitution that where
conditions are diverse the solution of problems arising out of
them may well come through the application of diversified treat-
ment matching the diversified needs as determined by our local
governments. Uniformity of treatment is appropriate where a
substantial uniformity of conditions exists.

⁶ See H. R. 8821, 75th Cong., 3d Sess., 83 Cong. Rec. 74; H. R. 182, 76th Cong., 1st Sess., 84 Cong. Rec. 27; H. R. 112, 77th Cong., 1st Sess., 87 Cong. Rec. 13.

No. 170.—OCTOBER TERM, 1945.

The Chickasaw Nation, Petitioner,

vs.

The United States.

} Petition for Certiorari to the
Court of Claims.

[November 5, 1945.]

*Per curiam:* The Chickasaw Nation asks certiorari to review a judgment of the Court of Claims, — Ct. Cls. —, dismissing its suit for moneys allegedly owing to it by the United States. Some of petitioner's claims were denied below, but others, totalling $22,858.78, were allowed. Against this amount the court below, applying § 2 of the Act of August 12, 1935, 49 Stat. 571, 596, offset a like amount which the court found to have been gratuitously expended by the United States for the benefit of the Nation. The findings listed various items of gratuity expenditures totalling $69,920.39. But the judgment did not specify which of these items were being applied as offsets to the claims allowed. Instead, all of the offset items were treated as commingled in a single gratuity fund upon which the Government might draw for the discharge of its obligations, as upon a bank account.

In *Seminole Nation v. United States*, 316 U. S. 286, 308, we pointed out that the gratuity items which have been used as statutory offsets to Indian claims against the Government should be specifically designated in the judgment. When that course is not followed, Indian claimants desirous of challenging the allowed offsets on appeal must be prepared to attack all the items which make up the fund, however much it may exceed their claims. Moreover, such a judgment, by leaving unidentified the particular gratuities which have been applied as offsets, necessarily adjudicates the validity for that purpose of all, since it makes all proportionately applicable as offsets. There is no reason why Indian claimants should be required in some subsequent suit to meet the defense that gratuity items whose offset was not necessary to the result in an earlier case have nevertheless been there finally adjudicated to be valid offsets, or why this Court, in reviewing the earlier judgment,

2

The Chickasaw Nation vs. United States.

should be required to pass on the validity of such items as offsets. When specified items of gratuity are allocated as offsets, other items, included in the findings but not applied as offsets, do not affect the judgment, their validity as offsets need not be reviewed on appeal, and they create no estoppel for future cases.

The gratuity items included among the findings below as available for offset are there described as "incorporated by reference" from findings in a "companion case" decided by the Court of Claims on the same day (Chickasaw Nation v. United States, — Ct. Cls.—, petition for certiorari denied October 15, 1945, No. 169 this term, infra p. —), in which none of the gratuities found were used, nothing having been found due from the United States on the claims there advanced. The petition before us makes no objection to this procedure, and in view of the failure to apply such items as offsets in the companion case, we assume that their validity as such was open to objection in the present suit. We only conclude that the judgment here should be in such form as not to compel unnecessary adjudication of such objections on appeal, or unnecessarily to foreclose consideration of such objections to the use of these items as offsets in some future litigation.

The petition for writ of certiorari is granted, limited to the question whether the particular gratuity items necessarily used as offsets should be designated by the judgment. The judgment is reversed and the cause remanded to the Court of Claims for further proceedings in conformity to this opinion.

So ordered.

v o

No. 411.—OCTOBER TERM, 1945.

The United States of America,

vs.

Judge Eugene Rice, District Judge

for the Eastern District of Okla-
homa.

On Certificate from the
United States Circuit Court
of Appeals for the Tenth
Circuit.

[April 22, 1946.]

In this case the Court of Appeals for the Tenth Circuit, acting
under § 239 of the Judicial Code, 28 U. S. C. § 346, has certified
a question of law upon which it desires the instruction of this
Court for the proper decision of the cause. The question is
whether that court may, by mandamus, review the judgment of
the District Court for Eastern Oklahoma ordering the remand
of a proceeding to the County Court of Okfuskee County, Okla-
homa, from which it had been previously removed to the district
court pursuant to § 3 of the Act of April 12, 1926, c. 115, 44 Stat.
239.

The certificate shows that proceedings were begun in the county
court by a petition for administration on the estate of Peter Micco,
a restricted Indian member of the Five Civilized Tribes in Okla-
homa. The county court granted the petition, and appointed ad-
ministrators. Section 3 of the Act of April 12, 1926, provides that
a party to a suit "in the state courts of Oklahoma to which a re-
stricted member of the Five Civilized Tribes in Oklahoma, or the
restricted heirs or grantees of such Indian are parties, . . . and
claiming or entitled to claim title to or an interest in lands allotted
to a citizen of the Five Civilized Tribes or the proceeds, issues,
rents, and profits derived from the same, may serve written notice
of the pendency of such suit upon the Superintendent for the Five
Civilized Tribes." The United States is afforded a specified time
after notice is given to appear in the suit, and after such appear-
ance, or the expiration of the time specified, it is provided that
"the proceedings and judgment in said cause shall bind the
United States and the parties thereto to the same extent as though

2

United States vs. Rice.

no Indian land or question were involved." The Act further provides that

"the United States may be, and hereby is, given the right to remove any such suit pending in a State court to the United States district court by filing in such suit in the State court a petition for the removal of such suit into the said United States district court, to be held in the district where such suit is pending, together with the certified copy of the pleadings in such suit. . . . It shall then be the duty of the State court to accept such petition and proceed no further in said suit. . . . The said copy shall be entered in the district court of the United States . . . and the defendants and intervenors in said suit shall within twenty days thereafter plead, answer, or demur to the declaration or complaint in said cause, and the cause shall then proceed in the same manner as if it had been originally commenced in said district court, and such court is hereby given jurisdiction to hear and determine said suit, and its judgment may be reviewed by certiorari, appeal, or writ of error in like manner as if the suit had been originally brought in said district court."

Following the service upon the Superintendent of the Five Civi-
lized Tribes of notice of the pendency of the suit in the county
court, the United States timely filed its petition in that court for
an order of removal, alleging that the proceeding was instituted to
obtain the appointment of an administrator for the estate of a
three-fourths blood Seminole Indian; that a portion of said estate,
comprising real and personal property is restricted under the laws
of the United States; that title to and interests in restricted land
are involved; that the heirs at law of Micco are restricted Indians
and wards of the United States.

Thereupon the county court made its order of removal, and a
transcript of the proceedings was filed in the district court. The
United States then filed its complaint in intervention in the dis-
trict court, praying a determination of the heirs of Peter Micco,
and of the specific parts of decedent's property which are re-
stricted and subject to the supervision of the Secretary of the
Interior. On motion of the administrators appointed by the
county court, the district court entered an order dismissing the
complaint in intervention without prejudice, and remanding the
proceeding to the county court for want of jurisdiction in the
district court. In re Micco's Estate, 59 F. Supp. 434. The
United States thereupon instituted this proceeding in the circuit

United States vs. Rice.

3

court of appeals by a petition for writ of mandamus, to direct
the district court to vacate its judgment dismissing the Govern-
ment's petition for intervention and remanding the proceeding.

The certificate of the circuit court of appeals, after stating that
the court is equally divided on two questions, first, whether the
judgment of remand is reviewable by mandamus, and, second,
whether the proceeding was removable under the provisions of
the Act of 1926, certified a single question for our consideration,
as follows: "May this court, by mandamus, review the judgment
of the United States district court for the eastern district of Okla-
homa, ordering the remand of the proceeding to the county court
of Okfuskee County, Oklahoma?" The certificate further re-
quested this Court to exercise is authority under § 239 of the
Judicial Code, "to require the entire record in the cause to
be sent up for its consideration and to decide the whole matter in
controversy." The Government has made a motion to like effect.

In considering these requests, it is to be noted that the only
matter pending in the court below to which the certified question
relates is the application filed in that court for mandamus, on
which the court has not acted. There is consequently no order
or judgment in the case which can be brought before this Court
by appeal. The practice established by statute, 28 U. S. C. § 436,
of answering questions certified to this court, or in some such
cases, of deciding the entire controversy on the whole record,
is plainly not within our original jurisdiction. As far as it is
within our appellate jurisdiction, our authority is defined wholly
by the statute, which provides that upon the presentation of the
certificate, this Court "may require that the entire record in the
cause be sent up for its consideration and thereupon shall decide
the whole matter in controversy in the same manner as if it had
been brought [here] by writ of error or appeal." But the only
manner in which we, as an appellate court, can decide a contro-
versy brought here by writ of error or appeal is by affirming,
reversing or modifying the order or judgment before us for
review. It may be doubted whether the statute contemplates
our going beyond the certified question, to decide a case or
controversy not within our original jurisdiction, and which, since
no inferior court has decided it, could not be brought here on
appeal. But we need not resolve the doubt as to our power here,
for as will presently appear, the answer which we give to the

4

United States vs. Rice.

question certified is dispositive of the whole case before the Circuit Court of Appeals, making it unnecessary to express an opinion on any other issue which the record might present, or to order the record to be filed here.

The Act of 1926, under which the cause, *In re Micco's Estate*, was removed from the Oklahoma county court, contains no provisions respecting remand or any mode of review of an order of remand. But its provisions must be read with those provisions governing removal of suits from state courts to federal district courts, and their remand, appearing in § 2 of the Judiciary Act of March 3, 1887 (24 Stat. 552, reenacted to correct errors in enrollment, August 13, 1888, 25 Stat. 433, and again reenacted and amended March 3, 1911, 36 Stat. 1094, as § 28 of the Judicial Code, 28 U. S. C. § 71), and in § 37 of the Judicial Code, 28 U. S. C. § 80. Section 80 authorizes remand of "any suit" removed from a state court to a district court where the latter finds that it is without jurisdiction. Section 2 of the Act of 1887, provided for the removal of diversity suits from state courts to federal circuit courts, now district courts, and, as corrected in 1888, contained a separate paragraph, in terms relating to "any cause" removed from a state court into a circuit court. This paragraph read:

> "Whenever any cause shall be removed from any State court into any circuit court of the United States, and the circuit court shall decide that the cause was improperly removed, and order the same to be remanded to the State court from when it came, such remand shall be immediately carried into execution and no appeal or writ of error from the decision of the circuit court so remanding such cause shall be allowed."

Before the Judiciary Act of March 3, 1875, 18 Stat. 470, 472, an order of remand was deemed to be not reviewable by appeal or writ of error because the order was not final. *Railroad Company v. Wiswall*, 23 Wall. 507; *In re Pennsylvania Company*, 137 U. S. 451. But § 5 of the Act of 1875 expressly authorized the review of an order of remand by appeal or writ of error "in any suit" removed from a state court. This provision was repealed by § 6 of the Act of 1887, *supra*, and to make doubly certain, § 2, *supra*, specifically prohibited appeals, with the added direction that the order of remand should "be immediately carried into execution." It thus appears that when the Act of 1926 was passed, the prac-

United States vs. Rice.

5

tice in removal cases was, as it had been established from the beginning, save for a brief interval under § 5 of the Act of 1875, that an order of remand was not appealable, and it is also clear that in 1926, as for forty years before, § 2 of the Act of 1887 required the remand of "any" removed cause to "be immediately carried into execution".

The enactment of § 3 of the 1926 Act, without more, did not confer upon the Government any right of appeal from an order remanding a cause removed under that Act. We cannot say that under the Act of 1926, standing alone, the right of appeal from an order of remand stands on any different footing than it did under any other statute authorizing removal before the enactment of the 1875 Act, or that the order of remand is any less final in the case of the Government than in the case of an individual. Each loses, by the order, such right as there may be to litigate the case in the federal courts on removal, but both retain such rights as they may have to continue the litigation in the state court or to bring an independent suit in the federal courts. To whatever extent the Government may be excluded from the operation of a statute in which it is not named, cf. *United States v. Stevenson*, 215 U. S. 190, 197 with *United States v. California*, 297 U. S. 175, 186, it is clear that the United States can not assert, by virtue of its sovereignty, a right of appeal which no statute has conferred, or which, if conferred, has been abolished. Not only was no such right of appeal conferred by the Act of 1926, but, we think, as will presently appear, that the provisions of § 2 of the Act of 1887 denying an appeal from an order remanding a case removed under the Act of 1926, denied the right to review by mandamus as well.

Before the enactment of the Act of 1875 it had been suggested that although orders of remand were not appealable, because non-final, they might be reviewed by mandamus. *Railroad Co. v. Wiswall*, 23 Wall. 507; see also *In re Pennsylvania Co.*, 137 U. S. 451, 453; *Employers Corp. v. Bryant*, 299 U. S. 374, 378. After the right of appeal from such an order was conferred in all removal cases by § 5 of the Act of 1875, the question arose whether there could be review by mandamus of an order denying a motion to remand. This was answered in the negative on the ground that the right to appeal given by the 1875 Act was limited to orders of remand. Hence resort could not be had to mandamus to per-

6

United States vs. Rice.

form the office of a writ of error which Congress had withheld
in the case of an order denying remand. Ex parte Hoard, 105
U. S. 578; Ex parte Harding, 219 U. S. 364; Ex parte Roe,
234 U. S. 70. In all these cases it was pointed out that the mode
of review of an order denying remand is by appeal from the
final judgment in the suit in which the remand is denied.

But it is urged that the mere failure of the 1926 Act to confer
on the Government a right of appeal from an order of remand
should not preclude review by mandamus, since, unlike the case
where the district court refuses to remand, an order denying the
right to have the removed cause tried in the district court could
not otherwise be reviewed in the federal courts. But this argu-
ment presupposes that the provisions of the 1887 Act, prohibiting
appeals from orders of remand, and directing the immediate execu-
tion of such order, do not apply to causes removed from the state
courts under the Act of 1926, a supposition which disregards the
plain purport of the words of the 1887 statute, and its legislative
history.

Section 5 of the Judiciary Act of 1875, which, for the first
time, authorized review of an order of remand by writ of error
or appeal, was, by its terms, made applicable generally to "any
suit" removed from a state court to a federal circuit (now dis-
trict) court. It authorized the circuit court to remand the cause
for want of jurisdiction, and provided that the order of remand
should be reviewable by appeal. This section was repealed by
§ 6 of the 1887 Act, and § 2 of that Act substituted for the re-
pealed provision governing appeals, a new provision, which was
in terms likewise extended to orders of remand "whenever any
cause shall be removed from any State court". Section 6, to-
gether with this substituted provision, explicitly withdrew the
right of appeal and writ of error in all cases in which it had been
previously allowed by Section 5, that is, in all cases removed from
state courts under any statute authorizing removal. See Employ-
ers Corp. v. Bryant, supra, 380-1.

Section 2 of the Act of 1887 thus expressly denied review by
appeal or writ of error from orders of remand which had pre-
viously been allowed by § 5 of the Act of 1875 in all cases removed
from state courts, but which before that Act had been deemed not
to be appealable because not final orders. But § 2 also coupled
with this prohibition the direction, made applicable in every case

United States vs. Rice.

7

removed from a state court, that "such remand shall be imme-
diately carried into execution". Reading and construing these
provisions together, this Court has consistently held, and it is no
longer open to doubt, that an order remanding a cause which is
subject to the prohibition against appeals of § 2 cannot be re-
viewed by mandamus. *In re Pennsylvania Co., supra, Employers
Corp. v. Bryant, supra.*

Congress, by the adoption of these provisions, as thus con-
strued, established the policy of not permitting interruption of
the litigation of the merits of a removed cause by prolonged liti-
gation of questions of jurisdiction of the district court to which
the cause is removed. This was accomplished by denying any
form of review of an order of remand, and, before final judgment,
of an order denying remand. In the former case, Congress has
directed that upon the remand the litigation should proceed in
the state court from which the cause was removed. It may be
arguable, as a matter of policy, that in giving the Government
the right to intervene and remove a cause from a state court, it
should also have been given the right, not allowed to private
litigants, to have orders of remand reviewed in the appellate
courts. But the Congressional policy of avoiding interruption
of the litigation of the merits of removed causes, properly begun
in state courts, is as pertinent to those removed by the United
States as by any other suitor, see *United States v. California,
supra*, 186, and we think it plain that the Act of 1926 did not con-
fer any such right of review, and that the Act of 1887 intended
to withhold it in all cases of removal from state courts.

As we have already indicated, and as the legislative history
shows, these provisions of the Act of 1887 were intended to be
applicable not only to remand orders made in suits removed
under the Act of 1887, but to orders of remand made in cases
removed under any other statutes, as well. Cole v. Garland, 107
Fed. 759, dismissed on appeal 183 U. S. 693, approved in *Gay v.
Ruff*, 292 U. S. 25, 29, n. 5; see also *Employers Corp. v. Bryant,
supra*, 380-1. It was so held with respect to the Act of 1926 in
*United States v. Fixico*, 115 F. 2d 389.

Nothing in the Act of 1926 purports to impair or restrict the
application of § 2 of the 1887 Act, thus construed, to orders of
remand made under 28 U. S. C., § 80, in cases removed under
the 1926 Act. Congress, in enacting the 1926 Act, not only

8

United States vs. Rice.

failed to include in it any provision modifying what had been
for forty years the established practice of denying review of
orders remanding causes removed from state courts, but it must
be taken to have been aware of the universality of that practice,
and to have been content that, as established by the 1887 Act,
it should apply to cases removed under the 1926 Act. Statutory
language and objective, thus appearing with reasonable clarity,
are not to be overcome by resort to a mechanical rule of construc-
tion, whose function is not to create doubts, but to resolve them
when the real issue or statutory purpose is otherwise obscure.
United States v. California, supra, 186.

The certified question will be answered "No", and the Gov-
ernment's motion that we order up the entire record may ac-
cordingly be denied.

So ordered.

Mr. Justice JACKSON took no part in the consideration or de-
cision of this case.

No. 411.—OCTOBER TERM, 1945.

The United States of America,

*vs.*

[April 22, 1946.]

Mr. Justice DOUGLAS, with whom Mr. Justice BLACK and Mr.
Justice RUTLEDGE concur, dissenting.

The Act of April 10, 1926, 44 Stat. 239, has two main pur-
poses. It provides the machinery for bringing in the United
States where the property interests of a restricted Indian of the
Five Civilized Tribes are being litigated in either the federal or
the state courts. This was done so that all interested parties
might be concluded by one proceeding and titles to these Indian
lands stabilized.¹ H. Rep. No. 322, 69th Cong., 1st Sess., p. 2.
In case the proceeding is brought in a state court, the United
States is given "the right to remove" the suit to the federal
court by filing in the state court a petition for removal. The Act
provides that when such petition is filed it shall be "the duty
of the State court to accept such petition and proceed no further
in said suit." The right to remove is unqualified. It rests in
the sole discretion of the United States, which is given the choice
of the forum. As stated in the House Report, *supra*, p. 2:

"Section 3 provides only where the interest of a restricted
Indian of the Five Civilized Tribes is being litigated in the
State courts that service may be had upon the Government,
and the Government is given the right to choose the forum in
which the suit may be tried and may transfer such case to the
United States district court upon motion in the event that
the Government chooses to do so."

¹ Prior to the 1926 Act the United States could not be bound by a pro-
ceeding affecting restricted Indian lands. After the matter had been liti-
gated, the United States could still institute an independent suit and annul
the prior decree entered in the suit to which it was not a party. Sunderland
v. United States, 266 U. S. 226.

2

United States vs. Rice.

But it is said that this special Act, passed in 1926, is governed by the general removal Act of March 3, 1887, 24 Stat. 552, Judicial Code § 28, 28 U. S. C. § 71, which disallows appeals from orders remanding causes removed from state courts. I do not agree.

(1) The 1926 Act contains none of the qualifications written into the general removal acts.

(2) The 1926 Act is an independent statute dealing with a highly specialized problem and limited as to parties and subject matter. The mischief at which the general removal acts were aimed is not present here. They were concerned with eliminating litigious interruptions of private litigation by prolonged disputes over the jurisdiction of the court to which the cause was removed. But the United States is not in a position of a private litigant. The United States has a special function to perform in these Indian cases. It represents the public interest. Heckman v. United States, 224 U. S. 413, 437-444. It alone is given the "right to remove". If the cause is remanded, it alone can seek review. It should be remembered that the 1926 Act provides a procedure whereby the United States can be bound by a suit instituted by another. It is fair to infer that when the United States was subjected to that risk, Congress intended that it should have a right, if it so elected, to have the cause heard and determined by its own courts. The "right to chose the forum in which the suit may be tried" (H. Rep., supra) can hardly have any other meaning.

(3) The 1887 Act in its operation was not applicable to the United States. It provided for removal by defendants. They alone could remove. The right of removal was therefore not available to the United States. It could not be a defendant in a state court, since it had not consented to be sued there. That was well settled at the time. For in 1896 the Court stated, "The United States, by various acts of Congress, have consented to be sued in their own courts in certain classes of cases; but they have never consented to be sued in the courts of a State in any case." Stanley v. Schwalby, 162 U. S. 255, 270. It seems clear then that the prohibition against review of orders of remand contained in the 1887 Act was not aimed at the United States. I think, therefore, that it should require an explicit provision in the 1926

United States vs. Rice.

3

Act to conclude that the United States was now to be bound by an Act heretofore inapplicable to it. It has long been held that if the United States is to be deprived of a right or a remedy by the general terms of a statute, "the language must be clear and specific to that effect." United States v. Stevenson, 215 U. S. 190, 197; United States v. American Bell Tel. Co., 159 U. S. 548, 554; United States v. Herron, 20 Wall. 251, 263; Dollar Savings Bank v. United States, 19 Wall. 227, 239. This seems to me to be a clear case for the application of that rule.

If Congress had said that orders of remand under the 1926 Act should not be reviewed, mandamus of course would not lie. But since there is no such prohibition, mandamus is available to compel the District Court to perform its duty. Railroad Co. v. Wiswall, 23 Wall. 507; In re Pennsylvania Co., 137 U. S. 451, 453.

# Americans as Governors of Natives in the Pacific

JOHN USEEM

*Reprinted from The Journal of Social Issues, August, 1946*

A common belief of American society is that persons who are honest, educated, practical, and civic-minded make good public officials. The Navy in its selection of civil affairs officers for the Pacific sought these qualities. They were defined in such terms as personal integrity, ability demonstrated by holding executive positions in business and government, prominence in the professions, advanced academic degrees, and eminence in the community. Thus the prevailing American norms of what constitutes a competent official were fulfilled; the chosen military government officers represented a fairly typical cross-section of "successful" Americans. This paper is an analysis of how such a group react when governing the native peoples of Micronesia.

Unfortunately, our present scientific knowledge of the governing process is quite limited. There is a paucity of social-psychological constructs which can be used in the analysis of the roles played by the administrators. We have yet to examine systematically the character structure of persons operating within various kinds of bureaucratic organizations, the usages, mores and personal factors which shape the interaction between officials, how decisions are made and transformed into programs, etc.¹ This case study is designed to explore the relationship of the character structure of American civil affairs officers to their actions as governors of natives.²

The supervision of a society about which we knew very little, initiated in the midst of combat by a group with meager experience in administration of natives, meant that mistakes would be common. As noted in a prior report,³ the United States entered the war with no plan for the administration of occupied areas and while models were improvised which conformed to American ideals, they called for types of behavior which were seldom achieved in operation.

¹For a pioneer study, see Alexander Leighton, *The Governing of Men*, 1945.

²This report shares some of the methodological shortcomings common to recent studies of character structure. The mind-set of a group is an evanescent quality; its derivations are complex, and causal connections are difficult to establish. Moreover, the range of variations within a group requires more rigid controls than have so far been employed. Hence this inquiry, like its predecessors, may be classified as suggestive rather than conclusive. Three years of observation and participation in military government during the war enabled the writer to gain insight into the civil affairs officer and the American occupational policies in the Pacific. See further, John Useem, "The American Pattern of Military Government in Micronesia," *The American Journal of Sociology*, Vol. 51; No. 2, 1945.

³John Useem, "Governing the Occupied Areas of the South Pacific," *Applied Anthropology*, Vol. 4, No. 3, 1945.

1

The purpose in appraising these limitations is not to offer a post mortem critique but rather to ascertain what personal components are essential for effective governing in a cross-cultural situation. We are now directing and shall continue to direct civil affairs in Micronesia and other occupied areas. The task has merely begun.

## Training in Military Government

In the preparation of officers for their role, much emphasis was placed on proper training. The war-time schools of military government offered numerous courses in the social sciences. They were given in several of the nation's leading universities by highly competent scholars. These courses brought to the attention of the neophyte governors the principles of sound public administration, how other colonial governments operated, and the anthropological approach to culture.

The material was readily assimilated by the officers who were, on the average, quite intelligent and anxious to learn. But what was acquired was primarily a new manner of speech and an awareness of a subject rather than a new mode of behavior. Thus, indoctrination inculcated among civil affairs officers the verbal habit of referring to culture as relative, but failed to develop skill in discerning what it was relative to. The stress on culture patterns built up an expectation of a cohesive social system. Military governors were confused when the society they encountered lacked a single, integrated native culture. The changes in Micronesia, stemming from three centuries of acculturation under Spanish, German, and Japanese sponsorship, had produced social diversities which could not be put into one unified schema.¹ Hence each governor arbitrarily constructed his own frame of reference; to some, native society meant the disorganized social order operative at the time of the island's capture; to others, the ancestral social structure of the pre-colonial era; and to still others, the style of life found among "primitives" elsewhere. Thus culture relativity became an objective way of expressing a subjective evaluation and the selected pattern often distorted rather than clarified social reality.

To comprehend social behavior, it is necessary to know not only the master values but also the range of acceptable variations. It requires understanding of both the prescribed forms of conduct and the condoned means of deviation. Civil affairs officers regarded those Micronesians whose ways most resembled the arbitrarily hypothesized native pattern as a superior type and variants were viewed

as inferior and less trustworthy. Differences in temperament proved especially disturbing to officials who expected personality homogeneity mirroring the stereotyped cultural forms. The reactions of a people to a new type of crisis cannot be forecast solely on the basis of past adjustments. The crisis facing the Micronesians was unprecedented; it not only dislocated the old but also precipitated the introduction of distinctly new elements. For the first time in Micronesian history, total devastation and armed conflict accompanied the substitution of rulers. American governors readily noted the significance of the physical destruction but failed to grasp the traumatic effects produced by the sudden and unexpected collapse of the social order, which was assumed to be imperishable. Nor was there general appreciation of how Americans appeared to the natives. The islanders genuinely feared the invaders and had no way of discovering in advance what was expected of them. Realizing that drastic changes had to be made to meet the crisis, a variety of new modes of action were attempted and older ones were superseded. Administrators were bewildered by the apparently unpatterned forms and sought to force natives to conform to their conceptions of the "right" patterns.

Notwithstanding the awareness of a native culture, the logic used in analyzing actual situations reflected Western conceptions of human nature. In personal relationships, governors looked for emotional responses equivalent to their own and when they were not forthcoming, were amused, annoyed, or angered. Officers would tell a joke but the politely listening native failed to laugh, or would cover his mirth, for it is impolite to laugh out loud in the presence of superiors. The story teller would repeat, thinking that the point had been missed, and eliciting the same response, decide Micronesians had no sense of humor. In the case of a death in a Truk community, there were no outward manifestations of sorrow beyond inactivity, no rites were performed at the burial and no crying occurred among the bereaved, which led the officer in charge to wonder if these natives were "really human." Governors were shocked at the refusal of Japanese adults to care for children not their own, assuming that helpless infants "naturally" evoke adult compassion. A native who committed murder was punished by the American administration for his offense, but not his family. The group's mores called for destruction of all family members and their hysterical outbursts, "Why don't you kill us?" were incomprehensible to the Americans. Equally bewildering to the governors was the local confusion over the status of the members of the offender's household who, by the island's conventions, should no longer socially exist. Into native cultural forms, Western modes of thought were projected and used as guiding principles in governing. Officials readily identified such social systems as the clan and yet ignored native social organization in programs.

¹John Useem, "The Changing Structure of a Micronesian Society," *American Anthropologist*, Vol. 47, No. 4, 1945.

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## Inner Workings of Micronesian Society

Democratic processes are an inherent part of Micronesian society, but the means of expressing the collective will and the relationship of leaders to followers do not resemble Western ways. Our democratic practices are based on the belief that elections are prerequisite to securing representative leadership and that leaders chosen by large majorities command the respect and exercise a strong influence on their followers. Elections were held in the South Pacific. But the only eligible candidate on one Carolinian Island was the individual at the top of the ancestral social hierarchy. This headman won the election unanimously but his power was completely circumscribed. He could make no decisions without the unanimous approval of other high ranking members of the group and his authority was confined to certain honorific functions. In another instance, the same individual won succeeding elections—several having been called by military government in the hope of deposing him and electing an abler official. Though invariably re-elected as the formal leader, he was thereafter ignored by his group except on ceremonial occasions. The real leadership in this case lodged in a strong personality who by tradition could not hold high office but who was expected to take charge of specific projects. Among another group, the elected were not regarded as leaders for they had been chosen by ordinary people and genuine chiefs could come only by appointment from above. Elected native officials were assigned duties they could not carry out and would appeal to military government to help them make their "followers" obey. Americans also expected the chosen native officials to make known the sentiments of their followers in the formulation of policies. Military government officers were baffled by the complete acceptance of proposed plans and then the seemingly unpredictable ways in which they were "misinterpreted" and modified in execution. Administrators were irritated with this technique by which native leaders overtly acquiesce but skillfully alter imposed regulations to fit the wishes of the community. To offset this, a variety of counter-measures were tried; commanders penalized the community by withdrawing privileges and even essentials, or ousted the native representatives—holding one "democratic" election after another, or ignored the native leadership and issued orders directly to each individual only to become involved in an infinite complexity of details. In this and other social relationships, few grasped the mental processes of a society accommodated to a subordinate status.

The relationship of the rulers to the ruled revealed inner contradictions in the Americans' conception of their role. The military viewed themselves as liberators. The inhabitants, it was proclaimed, were to be given their freedom once more. Yet the liberated could be free only in a spiritual sense. A military force must have security in the midst of war and could not permit the local

4

inhabitants to reside or act in any manner they wished. Military necessity thus meant that native affairs had to be regulated in all the major concerns of life, far more stringently than they had been under the Japanese South Seas Bureau. The proffered self-government under such circumstances was like that form peculiar to a student body in an American school—native society was free to decide providing it made the "right" decisions and free to act as long as its actions were confined to unimportant details or in accord with the interests of the occupying force. Even in those areas where security was not involved, the issuance of regulations was common practice. A military organization is structured to impose orders by command from above, not to form regulations by discussion between superordinate and subordinate. A Japanese official who criticized American administration in a council meeting, after being invited to "offer suggestions," was convicted of subversive activity. Six Micronesian officials in another instance who opposed requiring women to do coolie labor around the home of a high ranking officer were imprisoned. (That the local custom called upon women to perform only certain types of work and that they had never had prior rulers order them to serve as common laborers were regarded as irrelevant.) Americans had "liberated" the islanders and they should therefore "volunteer" to undertake any task assigned to them.

In principle, Micronesians were regarded as racial equals. This thesis was observed as a sentiment but in specific relationships, other attitudes were disclosed. "Equality" implied to some administrators that Micronesians were of the same quality as white Americans. A doctor, observing Kanakas waving to the friendly greetings of a passing truckload of GI colored troops, admonished them: "Niggers are the lowest class of people in America and it will lower you to act friendly with them." There were governors who interpreted equality of status as equating natives with ordinary Americans. An officer who observed the writer driving a jeep filled with islanders expressed his incredulity at this intermingling and suggested that natives should be permitted to ride only with enlisted men. Most common was the belief that basically the natives were a "lower class of people" who were innately inferior. Signs of inventiveness were viewed with amazement. Few were able to understand how a Micronesian could improve on American machinery. An engineer was dumbfounded by a native community which used simple equipment to duplicate easily his prized engineering feat in the construction of water wells. Surprise was general when natives readily learned to speak English, operate electric generators, moving picture projectors and the like.

These paradoxes in roles gave rise to a great deal of "double-talk" which involved a rather strained type of logic and made for mixed emotional reactions

5

toward the natives. Americans wanted to be appreciated and thought of as generous donors of a better life. This yearning found expression in the perennial questions: "Do they really like us?" "Do they think we treat them better than the Japs did?" On the other hand, it was felt that natives would, and properly should, be humble and deeply grateful. Americans were nonplussed upon learning the pre-war levels of living were high and Japanese administration admired. Chamorros upset Americans by asking for what they wanted and regarding what they received as normal grants which the superior who has, by custom, gives to the inferior who has not. Civil affairs officers resented the direct manner in which the requests were made and the failure of the recipients to thank them lavishly for the "humanitarian" gifts. Coterminous was the feeling that the natives were enemy nationals and, therefore, unworthy of more than minimal care. They were a nuisance to the war effort and should be shunted out of the way. Their property was legitimate booty which could be taken as souvenirs, rationalized in the phrase, "It's all Jap stuff anyway." Private possessions were looted and destroyed without consent or indemnity.

Americans are well-meaning but the consequences of our well-intended actions are not envisioned. Personal friendliness was thought to overcome all social barriers. A civil affairs officer impetuously offered several dollars to a woman shopping at the trade store. She obviously wanted and needed items beyond her budget. But this generous gesture caused her great shame for it implied to the community that the American regarded her as one who extended "favors." The native woman wept upon receipt of the gift and was fearful to reject it. Her tears were interpreted as gratitude. She subsequently carried her complaint to the chief who asked that the American soldier take the money back. This request aroused intense resentment among the staff who felt that the inhabitants who were obviously in need of aid were behaving in an unfriendly and arrogant manner. By the same process Americans were dismayed to discover that their amiable slaps on the back, shouts of greeting, and attempts to teach married women dance steps which they had expressed a desire to learn evoked discontent and complaints.

## American Provincialism in the Pacific

Coordinate with the limited comprehension of the inner workings of Micronesian societies was the lack of insight into our own cultural compulsives and motivations. Habits of thought and action acquired in American society persisted. Even when the circumstances did not call for efficiency, speed and hard work, these types of activity were evidenced. Civil affairs officers never questioned why they felt impelled to work rapidly and incessantly, but did resent

6

natives who labored slowly, or intermittently or not at all. One labor officer proposed a fine to be levied against workers caught "loafing" on the job. Another used coercion to encourage volunteer workers to report on time and every day.

In accord with American standards of judgment, governors employed an instrumental test in evaluating native institutions. The measure of good government in American society is whether or not it accomplishes something. Seldom is governing conceived as an ongoing social process intrinsic to intergroup relationships. The complete solution of a problem served as a major index of the success of civil affairs administration. Americans are accustomed to think in terms of direct, quick action and presume that an undesirable social condition should be corrected. Governors viewed any social situation as controllable. Because of our skill in handling material things, we feel equally confident of our ability to order social relationships. It was common procedure for the executive officer to issue a directive altering the rules of conduct and thereafter expect the prescribed changes to be complied with at once. The new regulation would pass down the chain of command, finally to be received by some enlisted man or native who had no conception of its purpose or how it might be carried out. But the order was official and, technically, something had to be done. There would follow then a flurry of action to preserve the fiction that something was being done and the matter would be dropped as new orders came forth calling for other activities.

Because no social organization is totally satisfactory and because of a desire to improve native life, there was no end of change. The total situation did not lend itself to a complete resolution of social differences and the attempt to eliminate them produced new complications, often as great as the old ones. A society which had experienced extensive disorganization under the impact of war needed stability and a chance to readjust as a prelude to embarking on a new way of life. The frequent changes upset the natives who clung to each succeeding routine in the hope that it was final.

Differentiation in our culture is accompanied by competition. Americans are so habituated to competing that although the situation called for cooperation, rivalry was in evidence between civil affairs units. When collectively engaged in rebuilding a native village, labor and supplies were hoarded from each other. Equipment vitally needed by one section was withheld by another which had no possible use for it. The attitude of striving for the top positions was manifest in the disesteem placed on playing a subordinate role in the bureau. Some individuals could not be motivated to act unless made the "head" of a unit where their activities were publicly labeled as their personal accomplishments.

7

Allied with the sense of personal rivalry is an anxiety over the disclosure to outsiders of inadequacies. A civil officer filled in an accurate report on local morale; his commanding officer returned it with the comment that before it would be forwarded to higher echelons it had to be corrected; the nature of the correction to be made was indicated by the cryptic note: "The morale of this unit is always high." A junior staff member who submitted a factual but critical account of a program to be sent on to supreme headquarters, received the following order from his superior: "Very interesting, file it in your office." Whenever news was received that an inspecting party was due to arrive, all other activities ceased during the preparation for the visit. The attempt was made to simulate what did not exist and to put on a show of perfection, covering up shortcomings which might evoke criticism. A typical example of this occurred when some of the highest ranking military commanders in the Pacific visited an atoll. The island commander who was otherwise totally indifferent to the natives tried to play games with the children as though this were his daily routine. Captured supplies which had been partially destroyed by GI looters were carefully hidden. The camp was made as immaculate as humanly possible, all children were required to attend school and every workman had to be at work, the whole population dressed up in the best clothing procurable, and each member of the civil affairs group was expected to be engaged in making some vital decision at the moment the dignitaries passed through his division. Such play-acting is the end product of a felt need to be recognized as being successful.

Perhaps the most distinctive feature of American society is the absence of cultural integration. The psychological counterpart of diversity is lack of an integrated policy. Illustrative of its carry-over into administrative actions were the conflicting rules enforced. On one island a group of Japanese civilians employed by the Public Welfare Department had been directed to pick up each day food from a stockpile some distance outside the camp and to haul it by truck to the food distribution units within the camp. But the workers were barred from leaving the camp by a regulation of the Public Safety Department to the effect that no Japanese were to go through the main gate. There was no other gate passable by truck. To reconcile the two sets of orders, the M.P. guard at the main gate made the civilians abandon their truck, walk out through another gate, and then return to the main gate to pick up their vehicle. The original intention of the Safety Department's new rule had been to reduce traffic, but the net effect was to disrupt the Welfare Department's feeding program and to increase the congestion. Such uncoordinated regulations would be disentangled by ready compromises as the needs demanded. Officials would violate their own ordinances and still insist that they were nevertheless in effect. The natives involved would be informed that one set of rules did not count in one instance

8

or another, much to their confusion. In larger issues, there was equal diversity. Each officer made his own policy and devised various means of offsetting those he did not approve. Within civil affairs staffs there were sharp differences in outlook ranging from a welfare-oriented to a police-oriented administration. The only official policy from Washington was—do not undertake any activity which would necessarily commit the United States to any post-war position. A congressional committee after surveying the Pacific recommended—teach the American way of life but do not disturb native institutions.

It would, however, be an over-simplification to presume that the attributes outlined in this paper and others like them produce only ineffectual types of behavior. In context, some formed the basis of actions which overcame many of the most urgent problems. The zeal for results made possible the provision of basic necessities within a very short period. Eagerness to accomplish objectives made for early decisions, quick actions and rapid developments. Incessant work produced facilities not found in any comparable area under the jurisdiction of other powers. The self-evident friendliness and sympathy aroused in the natives a genuine desire to cooperate. There were no cases of sabotage and numerous ones of native self-sacrifice. Islanders willingly performed unfamiliar, disagreeable work and, in some instances, refused to accept wages out of gratitude for American generosity. Respect and affection for Americans were manifested in many ways; native children emulated Americans and there was—and still is—a general desire to remain under the rule of the United States.

Despite the mounting appreciation of the new rulers, there has been no diminution in the bewilderment among the native populations as to their new governors. Their appreciation of the American as a person is paralleled by an uncertainty about what the administrators really want and how they intend to attain their goals. This is not fear of a hidden motive behind the exterior of friendliness, but a confusion over the actions of their governors. In the initial phase of acquaintanceship, natives sought to discover the patterns of American behavior. This gave way to a resignation that Americans are pro-native but beyond understanding and unpredictable. To protect themselves Micronesians rely on a device they early developed for getting along with their supervisors—a dual social order; within their own group the old forms of living persist and are shielded as much as possible from outside controls, and in their inter-relationships with the rulers they adjust to each specific situation by submission. Occasionally an individual or small group protests or even resists. But such occurrences are rare, for the Micronesian realizes that it is his destiny to be subordinate and this status involves adjusting outwardly to the wishes of the Governor.

## How To Cope With Our Shortcomings

The issue of the adequacy of American administration in the Pacific, there-

9

fore, is not that of a colonial power which has exploited its dependent peoples, nor is it one of cultural imperialism. Rather is it a question of the kind of administrators who serve as governors of native peoples. The American governor in Micronesia serves honestly, faithfully, and energetically, but uncertain as to the means and the ends. Ordinarily, we are not disturbed over such incongruities as those depicted in this report for they are not perceived as a whole or their total impact on other societies comprehended. Even when the consequences of our actions are explicitly pointed out the incidents are viewed as isolated—and somewhat humorous. This is not surprising for a society accustomed to any set of actions regards them as normal—whether or not they are rational or internally coherent. Individuals raised in such a society are not disturbed for patterns are lived not intellectualized.

Recognizing the kind of persons American society produces and uses as governors in occupied areas, the question then becomes, how might we proceed to cope with our shortcomings? It is conceivable that under another set of circumstances the personality make-up of governors would be of less significance. If the United States possessed a well-defined policy, a territorial organization with effective top leadership and a bureaucratic structure which minutely regulated conduct, the personal qualities of the administrator might be of secondary importance. But without these, the personality of the governor weighs heavily in civil affairs.

It seems likely that the present characteristics of Americans will be even more accentuated in the future as our culture becomes more secular, differentiated, competitive, etc. The qualities prerequisite for achieving success within our society are not the same as those which make for successful governors of dependent populations. An education in civil affairs along traditional lines is a patent medicine which will soothe but not cure; as a remedy it will be as effective as all-purpose drugs in healing the sick. Appraisal of the ways in which trained military government officers operate in the field indicates that it is easy to inculcate verbal symbols but these leave untouched habits of thought and action ingrained in the course of a lifetime. How then may these deeper personality traits be reoriented to make for more effective governors? Education, if it is meaningful, should be given only to those who can be receptive to it. This entails the selection of future officials not in terms of their position in the social hierarchy but rather with regard to their proven potential skill as administrators. There are now some methods for ascertaining general abilities, temperament and personality traits which would make possible the elimination of the obviously unfit. The techniques devised by the Office of Strategic Services in screening

10

personnel and some of those used in socio-drama are the most promising and are worthy of application.¹

The preparation of the fit must be more than mere exposure to classroom lectures. It calls for an educational program which takes into account the American character structure and seeks to reorient it for the rule of governor of native peoples. This entails a type of administration which recruits, trains and retains the kind of staff required. Such methods are not utopian but feasible; they are, in part, used now by other nations engaged in similar enterprises and even in some areas of American life. Surely, as a nation we can afford to invest in this enterprise the kind of efforts which might enable us not only to declare, but also to achieve, our goals.

¹See "A Good Man is Hard to Find," *Fortune*, Vol. 33, No. 3, 1946.

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The Anthropologist's Dilemma

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# THE ANTHROPOLOGIST'S DILEMMA

WILLIAM SEAGLE

THE SAVAGERY of contemporary civilization, which has reached the verge of atomic destruction, has encouraged what has come to be called the "anthropological attitude." That curious miracle, the man of the twentieth century, is to be regarded with the same detachment as his head-hunting forebears. But it is impossible to cultivate the anthropological attitude without becoming curious about the history of primitive man himself, and before long the sad philosopher is driven to browse in the byways of anthropological literature, whereupon confusion and dismay rapidly overtake him.

Whoever is driven to take refuge in the sanctuary of anthropology soon discovers that he is on an open battlefield where the carnage is terrific, no quarter being asked or given. Though the anthropologists have done a good deal to substitute knowledge for conjecture and have exploded many myths about primitive institutions, they are not altogether unmitigated blessings. Perhaps it is not unjust to regard them as Greeks bearing gifts. That idyllic time when it was possible to give an account of primitive social institutions by means of a few picturesque quotations from Herodotus and Tacitus is, alas, no more. There is modern cultural anthropology—an embarrassment of riches. It has become fashionable to ridicule the tyro who ventures to speculate upon human origins with little or no knowledge of its mysteries. The professional guild is likely to speak of him rather contemptuously as a "hearsay" anthropologist. To be an anthropologist in good standing, it is necessary to have had firsthand contact with at least one primitive tribe, presumably so that it may thereafter represent for the particular anthropologist the whole of humanity.

It is almost a century since anthropology was born as a by-product of the imperialism which sent explorers, colonial administrators, and missionaries into the remote corners of the globe. Reflecting the optimistic Victorian civilization in which it was born, cultural anthropology in its early decades was dominated by the concept of unilinear evolution. The great exponents of this school, such as Spencer,

Tylor, Frazer, and Morgan, drew a beautiful and harmonious picture of an astounding progress by which humanity had uniformly advanced through various stages of savagery and barbarism to achieve the civilization which was the glory of Western culture. There were invented the classic evolutionary triad of economic stages —hunting, pastoral life, and agriculture—through which humanity had successively passed. The history of the family was traced from primitive promiscuity to civilized monogamy. The emphasis was entirely on the cultural "origins" of existing institutions and a basic postulate of "human nature."

The modern "critical" anthropologists, who constitute the reigning school, had no great difficulty in demolishing the pretty schemes of the early evolutionists, as more and more primitive peoples were brought under the range of observation. They showed the influence of sudden and catastrophic changes. They promoted "diffusion" as a great rival of unilinear evolution. The theory of diffusion assumed that material and cultural inventiveness was rare. One people simply borrowed from another. Egypt became the cradle of all civilization. The critical anthropologists introduced also the concept of "convergence," by which they attempted to show that institutions originally different in nature had come to resemble each other. They destroyed the classic triad of economic stages by showing that many peoples were both pastoral and agricultural, that primitive agriculture practiced with a digging stick was vastly different from civilized agriculture practiced with a plough; by way of anticlimax, they attempted to show that many of the most primitive peoples were not promiscuous but monogamous, in other words, that the family was part of the original constitution of society.

Having destroyed the evolutionary anthropologists, the critical anthropologists have since been engaged in destroying each other. Indeed, the critical anthropologists are so critical that they have destroyed not only each other but themselves. Probably no other group of social scientists are so frequently engaged in revising their own views; while this process is commendable in itself, it argues, when carried to excess, a weakness in the pretensions of any science, a confusion of methods and aims. It comes to about this: the more primitive peoples anthropologists bring under observation, the less we know about primitive man and the history of humanity.

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A highly geared critical anthropologist will believe in one theory this year and another the next. The divergence of theories as to the origins of any social institutions is often so bewildering that the poor hearsay anthropologist begins to despair. When he has plumbed as deeply as he can the great anthropological mysteries of primitive promiscuity and primitive communism, the priority of mother right over father right, the origins of exogamy, the leverage, and the couvade, he finds himself wishing that the anthropologists would assemble periodically in international congresses and adopt one or another theory by majority vote. In fact, however, the critical anthropologist is no longer really interested in the origins of institutions. In such a quest he is in danger of losing caste and exposing himself to attack by his suspicious and vigilant colleagues. The social historian interested in origins will do better to visit the zoo and the nursery rather than attend an anthropological seminar.

The critical anthropologist has gone to the opposite extreme from the early evolutionists. He is so dominated by the dread taboo of unilinear evolution that he is unwilling to make any generalizations at all—even valid ones—particularly when these may involve the correlation of social institutions with primitive economic culture. Almost the only unquestionable correlation that is admitted by the most critical of anthropologists is that South Sea Islanders will not build igloos, nor Eskimos eat coconuts. The critical anthropologist is quite unable to see cultural progress in any ascending line, even a zigzag line or a spiral curve. There may be improvements in material organization; the aeroplane may be regarded as more complex and higher in the stage of evolution than the oxcart, but there is no increasing complexity and adaptability in cultural traits and no time sequences in social developments whereby one social institution necessarily precedes another because of certain limitations of human mentality and material culture. "Survivals" from previous stages of cultural development are particularly taboo, because they may explain a certain lack of uniformity under similar conditions. In short, the most critical anthropologists are averse to considering those factors which substantiate any evolutionary trend, even multilinear. Thus the possibility of multiple origins implicit in the concept of convergence, which is not without a degree of validity, although it has

The Anthropologist's Dilemma

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been overworked, is employed primarily to break down the early evolutionism.

While the critical anthropologist has resorted to diffusion to undermine evolutionary constructions, he has not invoked the gospel in an attempt to save them by showing that under given conditions similar internal developments would take place except for the same diffusionary influences. Culture is tough, and social changes are not accepted anywhere as readily as changes in a spear, shield, canoe, or ax. The transformation of a culture through borrowing is always fundamentally an evolutionary process. It is never a borrowing without interest. Diffusionism has been pushed to such absurd extremes that, in contrast, evolutionism seems an unassailable dogma. Material and cultural traits, like cholera and typhus and other infections, have been seen moving across mighty continents and limitless seas and oceans to reach the remotest primitive peoples. Culture is a virus rather than a spontaneous creation of many people. Diffusionism is the characteristic anthropological theory of an age of unparalleled triumphs in the development of means of transportation and communication. It is too bad that these were unknown among primitive peoples.

Moreover, the critical anthropologists seem to proceed on the assumption that the lowest of the present primitive peoples of the world really represent the primal condition of mankind. *Primitive* is taken to be synonymous with *primeval*, although it is obvious that even the lowest surviving primitive peoples represent a high state of development, or may even constitute degenerate survivals from more advanced peoples. The term *primitive* is employed with a latitude so wide that it covers the multitude of preliterate peoples, although many of these, despite the absence of writing, have developed beyond the points reached in the early history of some of the culture peoples. But by failing to distinguish between primitive "primitive" peoples and advanced "primitive" peoples, like some African tribes, the critical anthropologists are enabled to destroy any generalization by showing that it is not true of all primitive peoples, and also to put an effective stop to any speculations on origins which raise problems that cannot be settled by a knowledge of present primitive peoples. Thus the critical anthropologists, who quite justly speak contemp-
tuously of the early anthropologists as assemblers of anthropological

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curiosities, have themselves become assemblers of such curiosities. They are always able to marshal a few anomalous developments which contradict any general tendencies of social development.

Yet, on the positive side, the critical anthropologists pride them-
selves that they are historically minded. Critical anthropology is
historical anthropology: paradoxically, the peoples without history
are to be subjected to the historical method. In accordance with the
credo of anthropology for anthropology's sake, each primitive people
is to be studied in the configuration of its own culture, and its social
institutions are to be described with the same objectivity as its pottery.
The pursuit of the history of the Ewe, the Akamba, the Tasmanians,
the Blackfeet needs no more justification than the history of the Baby-
lonians, the Egyptians, the Greeks, or the Romans, of whose culture
the modern world is the heir. The only qualification of this historical
atomism is the mapping of "culture centers," by which is meant the
location of centers of diffusion for various cultural traits or complexes.
But this aspect of diffusionism, while it expands the base of culture
study and gives it a superficial appearance of universality—for some
of the culture centers have radii which are almost whole continents—
does not really give meaning to cultural anthropology. The traits
whose spread has been traced with any degree of plausibility belong
to the domain of material rather than social culture. It is true that
bolder prewar German anthropologists, who were not too afraid of
theory, traced the radiation of cultures which are identified by refer-
ence to such social criteria as totemism and mother right or father
right, but these ambitious schemes are, in the first place, unconvincing,
for it is precisely with regard to social institutions that diffusion is
most difficult to demonstrate, and, in the second place, because, even
if objections on this score be waived, they still lack any psychological
depth or penetration. The motivation of cultural phenomena is what
gives significance to history and establishes a sense of continuity and
spiritual rapport between primitive and modern peoples.

Cultural anthropology has thus arrived at a stalemate. While
the investigation of the material culture of primitive man has made
marked progress, the study of his social institutions has brought only
confusion, because the anthropologist has been unable to choose be-
tween the tribe and humanity—the two horns of his fatal dilemma.
The classical evolutionist glorified the rampant individualism of his

own culture by giving it the highest place in the evolutionary series. The critical anthropologist, more on the defensive, upholds really the same individualism by abolishing all series and stages. Individualism is still all that humanity has ever known and all that it can ever know. Both the evolutionary and the critical anthropologists have hitched themselves to the *status quo*. Consider, for example, the almost incredible energy and zeal with which critical anthropologists have attacked the possibility of the existence of primitive communism.

In fact, cultural anthropology seems to have suffered a cruel fate. Anthropology, which has always followed the flag, seems destined to become the unblushing handmaiden of imperialism. Where it has not been merely a scientific excuse for travel, its study has been pursued chiefly as an aid to colonial administration. Anthropology, it is argued, has a duty in relation to the white man's burden. The colonial administrator must know the cultural institutions of the primitive peoples whose fate is in his hands. The anthropologist can come to his assistance by studying the populations of Asia, Africa, and the New World, as well as those of the remotest isles of the Pacific in order to render less painful their adjustment to the demands of Western civilization. Presumably an anthropologist is to be attached to the office of each colonial administrator in the same way that a psychiatrist is now attached to a criminal court. Doubtless an anthropological board of strategy is destined to become an adjunct of the United Nations. Naturally this theory of painless imperialism is a good talking point in getting funds from foundations for the purpose of anthropological research and in justifying international "trusteeship." But, alas, it will not be long before anthropology will have to discover a new mission, for all the anthropologists in the world cannot save the native races from ultimate extinction. There is no better proof of this than the feverish activity of anthropologists in gathering their material. They know that the primitive peoples whose jungles have been invaded by TNT and DDT will disappear too rapidly to leave much time for field work. The day is not far off when all anthropologists will be "hearsay" anthropologists. Then, perhaps, freed from preoccupation with the tribe, some anthropological genius will arise to create a scientific Genesis, a new myth for humanity.

The Anthropologist's Dilemma

61

Business Regulation

Judicial Action

SECTION I

15 LW 1125

THE UNITED STATES
LAW WEEK

(REGISTERED U.S. PATENT OFFICE)

A National Survey of Current Law

SUMMARY and ANALYSIS
of Current Legal Developments

Washington, D. C.

February 18, 1947

Vol. 15, No. 35

Excess Profits Relief Provision May
Not Be Applied to Increase Carryover

¶ The U. S. Tax Court upholds the argument of the Commissioner of Internal Revenue that Section 721 of the Internal Revenue Code is a tax-limiting section and not an income-reallocating section for excess profits tax purposes. The court holds that a taxpayer with an excess profits tax carryover for 1941 may not invoke the "abnormal income" provision of Section 721 and thus increase the amount of the carryover.

Although in the instant case there was no excess profits tax, it is implicit in the Tax Court's opinion that Section 721 does not have the effect of reducing the amount of excess profits net income for the purpose of computing the excess profit carryover to another year. (Page 2450, Col. 3)

False Label Must Accompany Drugs to
Hold Shipper Under Food and Drug Act

¶ Already hampered in its enforcement activities by the Supreme Court's denial of certiorari last week in the Phelps Dodge case, 15 LW 3301, the Food and Drug Administration now finds itself faced with another circuit court decision which may cut across the entire field of criminal enforcement of the Food, Drug, and Cosmetic Act.

The latest ruling holds that an information alleging that drugs were shipped to a consignee 71 days before false printed matter was shipped to the same consignee does not charge the ship-

per with an offense under Section 331(a) of the Act, which requires that labels must "accompany" the drugs in interstate commerce. Whether or not the consignee may be held under another section of the statute for exhibiting the drugs and false labels together after they arrived at their destination, the Ninth Circuit Court of Appeals states that the shipper may not be held under an information which does not even allege that the labels were to be placed with the drug or used together with it by the consignee. (Page 2457, Col. 2)

Supreme Court: Railroad Trainees
Held Not Employees Under Wage Act

¶ Accepting the unchallenged finding that the railroads receive no "immediate advantage" from any work done by trainees for brakeman and fireman positions, the Supreme Court unanimously holds that such trainees are not "employees" entitled to the benefits of the Fair Labor Standards Act.

The Court recognizes that "such a holding may open up a way for evasion of the law," but states that "it will be time enough to pass upon such evasions when it is contended that they have occurred."

Mr. Justice Jackson, concurring separately, bases his conclusion on the findings by the lower courts of "a good faith understanding of the parties following a long-established custom of an industry whose labor relations have long

For Table of Contents of This Issue See Fourth Page

Contents Copyright, 1947, by The Bureau of National Affairs, Inc.
Rights of redistribution or reproduction belong to copyright owner.

been subject to collective bargaining." (Page 4255)

In additional opinions the Court holds:

*Judgments*—North Carolina Supreme Court's denial of a deficiency judgment to a mortgagee under that state's anti-deficiency judgment statute is res judicata of a subsequent suit on the same cause of action in a federal district court. (Page 4247)

*Indians*—Ute Indians may not recover from the Government for the sale of lands made available to them by Executive Order since the President neither had authority nor did he intend to convey compensable interest in such lands and subsequent statute did not give rise to right to compensation. (Page 4260)

*Criminal Law*—An employee who assisted in operating an illicit still was properly convicted of violating the federal alcohol tax laws since the jury could properly infer that a person who actively helps to operate a secret distillery knows that he is aiding in the violation of the revenue laws. (Page 4258)

For full text of opinions, see Section 4.

## Belo-Type Wage Contracts Are Before Supreme Court

*¶* The Belo decision, 10 LW 4455, in which the Supreme Court upheld the validity of an employment contract guaranteeing a specified weekly wage and stating an hourly rate lower than the employees' previous average hourly earnings, should receive a narrow construction or even be overruled, according to contentions presented to the Court by the Wage and Hour Division.

Counsel for the employer urges that the contract involved was copied from that approved in the Belo decision, although conceding that the employees could not receive more than the guaranteed weekly wage until they worked more than 84 hours in any one week. To the argument of the employer that the contract specifies a regular rate of pay above the minimum prescribed by the Fair Labor Standards Act, the Government submits that the regular rate is the rate actually paid for time regularly spent in working, notwithstanding the contract designation of a different rate. (Page 3305.)

## Expense of Employee Retirement Plan Not Reimbursable to U. S. Contractor

*¶* The contracting officer's findings that wages paid to a cost-plus contractor's employees were adequate and that increased compensation in

the form of payments by the contractor to an employee retirement income plan were excessive are sustained by the War Department Board of Contract Appeals, which holds that the burden shifts to the contractor to prove such findings erroneous.

Under T.D. 5000, 9 LW 2111, the Board rules, excessive or unreasonable payments in cash, stock, or other property, ostensibly for services, are not reimbursable items of cost, and the War Department must place great reliance upon the judgment of the contracting officer that the retirement payments constituted excessive compensation and were neither incident to nor necessary for the performance of the contract work. (Page 2453, Col. 3)

## ICC Justifies Granting of Partial Exemption from Commerce Act Rules

*¶* The duty and responsibility of the Interstate Commerce Commission to regulate and supervise matters relating to safety of operation of motor carriers subject to the Interstate Commerce Act require that compliance with the Commission's safety regulations be demanded even of motor carriers which are granted exemptions from the Interstate Commerce Act, according to a recent decision of the ICC.

In granting an exemption to a motor contract carrier transporting explosives in limited operations for a single shipper, the Commission distinguishes earlier decisions in which it held that exemptions or denial of exemptions should be complete and not partial. In those cases, it states, the Commission was not directly confronted with the issue of public safety to which Congress gave such specific attention when framing the provisions of the Act. In the light of this congressional intent, the Commission rules, authority to grant partial exemption may be inferred although there is no specific provision therefor in the statute. (Page 2451, Col. 2)

## National Lodge President May Not Bar Use of His Name by Local Unit

*¶* The scope of the New York Civil Rights Law is limited by the New York Supreme Court, which refuses to enjoin a local unit of a national fraternal organization from using the name and title of its national president on an announcement of a dance, even though the local is not in good standing with the national organization. The Civil Rights Law was not, in the court's opinion, intended to permit a person holding a well-known official position to object

when his name is mentioned solely in connection with that position.

One who takes an office, the court reasons, must be deemed to have agreed to any reasonable public use of his name and title. The New York Civil Rights Law, the opinion reads, should be construed strictly, and at common law an individual had no protection against a legal, nonlibelous, nonfraudulent mention of his name. (Page 2455, Col. 2)

## Supreme Court to Determine Right Of Foreign Nationals to Sue APC

*¶* Two cases reaching contrary conclusions under the Trading With the Enemy Act will be reviewed by the Supreme Court. In one, certiorari had been denied, but is granted on rehearing, apparently in view of the subsequent lower court contrary decision. Both cases tender the issue of a foreign national's right to sue the Alien Property Custodian under Section 9 (a) of the Trading With the Enemy Act to recover vested property. The Court of Appeals for the District of Columbia upheld this right, while the Second Circuit Court of Appeals relegated the alien to a suit in the Court of Claims.

Among the 21 cases denied review are cases under the Emergency Price Control Act and the federal income tax laws. Other cases denied review deal with tire rationing and federal ap-pellate practice.

*For subject-matter summary of Court's orders, see page 3308; for journal of Court's proceedings, see page 3309.*

## Classification vs. Exemption Construed in Carrier's Tariff

*¶* A motor common carrier may not charge a higher rate for shipment of a commodity which is included within the tariff's governing classification if the particular commodity is also included within the general description contained in a lower-rated exception clause, the Interstate Commerce Commission rules, unless the commodity is specifically named in the governing classification.

"A generic description in the exceptions must be given a broad application, despite a more specific description in the classification," the Commission states in ruling that a higher-rated classification on "alcohol not denatured" does not specifically govern a shipment of grain alcohol. The use of the same description in the exceptions will be considered as also including the particular commodity, the opinion points

out, and the exception clause will govern the applicable rate. (Page 2451, Col. 3)

## State Receiver Not Entitled to Funds Due Foreign National

*¶* The appointment of a receiver of an Austrian cooperative society after Executive Order No. 8389, 9 LW 2765, under the Trading With the Enemy Act, was made applicable to Austrian nationals prohibited the transfer to the receiver of funds held by an American organization, whether the transfer was by judicial process, or by voluntary act, according to the Federal District Court for Southern New York.

In granting a summary judgment in favor of the Alien Property Custodian against the receiver of the Austrian society, which was entitled to receive funds from the American Society of Composers, Authors and Publishers, the court relies principally on General Ruling No. 12, 10 LW 2703, in which the Secretary of the Treasury ruled that any unlicensed transfer of funds was null and void and that no transfer of such funds by judicial process created a greater right than the owner of the funds could have conferred by voluntary act prior to the issuance of a license under Executive Order No. 8389. (Page 2455, Col. 1)

## Court Enjoins Municipal Bond Issue On Plea of City's Largest Taxpayer

*¶* The rarely used power of a federal court to enjoin imposition of a municipal tax is successfully invoked by a city's largest taxpayer to restrain temporarily the issuance of municipal bonds by means of which the city proposed to construct a waterworks system. The taxpayer, which owned 28 percent of the area of the city and would be required to pay 46 percent of the construction cost, is granted the injunction by the Tenth Circuit Court of Appeals to permit the testing of the levy's constitutionality, since, according to the court, the taxpayer will receive no benefits from the waterworks system.

Conceding that imposition of a general tax which benefits the community as a whole is usually constitutional even where no direct benefits are received, the court nevertheless finds that the instant case "poses a serious constitutional question." It grants the injunction to avoid the irreparable injury which the taxpayer would suffer if the bonds were issued and the tax levy were subsequently found to be unconstitutional.

Circuit Judge Huxman dissents. He states: "The Fourteenth Amendment's all-enfolding

February 18, 1947

15 LW 1126

February 18, 1947

106716

15 LW 1127

["15 LW 3316", "THE UNITED STATES LAW WEEK", "(Section 3)", "2-18-47", "as reimbursement for what patent owner actually incurred.", "Conclusions: (1) Patent owner is not entitled to recover because of its conduct in seeking to recover patent infringement and covenants relating to invention of former chief engineer in this litigation; (2) patents in this litigation are invalid because they are imputed directly by several courts; (3) judgment on accounting is invalid because they are imputed directly by several courts. Award of a judgment without precedent and having no effect on the outcome of this litigation.", "No. 950. Sanitary District of Chicago v. Activated Sludge, Inc. et al.; petition for certiorari filed January 31, 1947, by Ernst Buehler, Edwin Recovery, Holding Co. v. Activated Sludge, Inc. et al., and Allen H. Gardner, Washington, D.C.", "## Public Contracts", "### 861", "Contract to furnish Government dried eggs—Brunch—Failure of contractor to have eggs ready for delivery by specified date. No. 950. Sanitary District of Chicago v. Activated Sludge, Inc. et al.; petition for certiorari filed January 31, 1947, by Ernst Buehler, Edwin Recovery, Holding Co. v. Activated Sludge, Inc. et al., and Allen H. Gardner, Washington, D.C.", "No. 950. Sanitary District of Chicago v. Activated Sludge, Inc. et al.; petition for certiorari filed January 31, 1947, by Ernst Buehler, Edwin Recovery, Holding Co. v. Activated Sludge, Inc. et al., and Allen H. Gardner, Washington, D.C. (1947).", "No. 951. S. Priebe & Sons, Inc. v. United States. No. 450. No. 451. No. 452. No. 453. No. 454. No. 455. No. 456. No. 457. No. 458. No. 459. No. 460. No. 461. No. 462. No. 463. No. 464. No. 465. No. 466. No. 467. No. 468. No. 469. No. 470. No. 471. No. 472. No. 473. No. 474. No. 475. No. 476. No. 477. No. 478. No. 479. 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No. 702. No. 703. No. 704. No. 705. No. 706. No. 707. No. 708. No. 709. No. 710. No. 711. No. 712. No. 713. No. 714. No. 715. No. 716. No. 717. No. 718. No. 719. No. 720. No. 721. No. 722. No. 723. No. 724. No. 725. No. 726. No. 727. No. 728. No. 729. No. 730. No. 731. No. 732. No. 733. No. 734. No. 735. No. 736. No. 737. No. 738. No. 739. No. 740. No. 741. No. 742. No. 743. No. 744. No. 745. No. 746. No. 747. No. 748. No. 749. No. 750. No. 751. No. 752. No. 753. No. 754. No. 755. No. 756. No. 757. No. 758. No. 759. No. 760. No. 761. No. 762. No. 763. No. 764. No. 765. No. 766. No. 767. No. 768. No. 769. No. 770. No. 771. No. 772. No. 773. No. 774. No. 775. No. 776. No. 777. No. 778. No. 779. No. 780. No. 781. No. 782. No. 783. No. 784. No. 785. No. 786. No. 787. No. 788. No. 789. No. 790. No. 791. No. 792. No. 793. No. 794. No. 795. No. 796. No. 797. No. 798. No. 799. No. 800. No. 801. No. 802. No. 803. No. 804. No. 805. No. 806. No. 807. No. 808. No. 809. No. 810. No. 811. No. 812. 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THE COMMITTEE REPORTER, MAY, 1947

5

## ARGENTINE JEWISH LEADER VISITS AJC OFFICES IN NY

Enrique Schuster, an outstanding leader of the Argentine Jewish community, is in New York and has visited offices of the American Jewish Committee. President of the Association for the Advance-ment of the He-brew Culture,

which publishes Jewish cultural materials in Spanish. Mr. Schuster is also a leading Argentinian industrialist and economist. He is honorary president of the Religious Jewish Educational Society and a member of the Argentinian Jewish Congregation.

Active in the fight against intolerance in his country, Mr. Schuster is studying public relations methods used in the United States to combat bigotry.

ENRIQUE SCHUSTER

# Roots of Anti-Semitism Revealed In Study of Psychoanalysts' Cases

What is anti-Semitism? Where does it come from, how does it develop and what role does it play in the psychological make-up of the individual anti-Semite?

At least a partial answer to these questions has been provided by the department of scientific research of the American Jewish Committee, in a paper by Drs. Nathan W. Ackerman and Marie Jahoda, entitled, "Toward a Dynamic Interpretation of Anti-Semitic Attitudes." The paper outlines the preliminary results of a study conducted by the department in cooperation with some 30 practicing psychoanalysts in New York. Based on case histories of patients treated by these analysts, the study is an attempt to discover which factors in the development of an individual create a predisposition to an anti-Semitic outlook.

Anti-Semites, the study found, are

fundamentally weak, immature, dependent and unhappy persons whose prejudice against Jews results from dissatisfaction with themselves coupled with envy for others. They lack direction and confidence, fear failure and avoid competition. Insecure and pursued by a feeling of "not belonging," they are often unhappy in their marital relationships and seem unable to maintain intimate friendships.

## Defense Against Self-Hate

The violence of the individual's anti-Semitism, the study found, is directly related to the depth of sickness of the personality. Anti-Semitism plays the role of a defense against self-hate. The incomplete person finds a spurious relief in expressing hatred against Jews, and a spurious satisfaction in the false feeling that he is a member of the dominant group in society.

Thus, anti-Semitism becomes, for the sick personality, a compensation for his unrealized desire for power, status, money, social advantage and privileges of all sorts. The hatred effects no cure for the weak, anxiety-ridden anti-Semite, but results rather in a worsening condition and a decreased ability to cope with social realities.

## Jewish Stereotype

The stereotype of the Jew that has developed over a number of centuries serves as a suitable screen upon which the sick personality can project its aggressions, because this picture of the Jew is at the same time highly elaborate and highly inconsistent. The stereotype classifies the Jew as both success and failure, capitalist and communist, clannish and "pushing," high-minded and base, powerful and defenseless. The researchers found that the anti-Semite invariably saw the Jew in terms either of his own weakness or the qualities he envied in others.

Drs. Ackerman and Jahoda, co-directors of the project, are recognized authorities on the psychiatric investigation of prejudice. Dr. Jahoda is a member of the staff of the AJC's department of scientific research; Dr. Ackerman is a practicing psychiatrist, director of the Council Child Development Center and chief psychiatrist at the Jewish Board of Guardians. The department is directed by Dr. Samuel Flowerman. Dr. Max Horkheimer is research consultant, with Dr. Paul F. Lazarsfeld as associate.

## Goldmann Appointed Quota Committee Head To Plan Community Shares in JDA Campaign

Plans have been completed for a nation-wide campaign, involving hundreds of communities from coast to coast, to rally the fullest support for the $6,000,-000 campaign of the Joint Defense Appeal, according to Donald Oberdorfer of Atlanta, national chairman.

Following a series of meetings during the past few weeks, the national executive committee has approved a program designed to obtain contributions from Welfare Fund communities that will be commensurate with 1947 needs. In many cases this will call for doubling and even tripling previous gifts, Mr. Oberdorfer said.

A special committee on quotas, under the chairmanship of Sidney Goldmann of Trenton, a member of the AJC national executive committee, has been appointed

to establish "fair share" contributions from all Jewish communities. This follows a procedure adopted by other national organizations and accepted among Welfare Fund communities as a practical plan for apportioning community responsibility to all worthy Jewish causes. Mr. Oberdorfer explained. Other AJC members serving on the quota committee are Max H. Block, chairman of the Seattle chapter; Edward A. Norman of New York, AJC secretary, and Judge Benjamin J. Scheinman of Los Angeles.

Mr. Oberdorfer said that new members are constantly being added to the JDA national council and national executive committee. He announced the recent addition to the executive committee of Reuben Oppenheimer of Baltimore.

Serving on the JDA quota committee are, left to right, Max H. Block; Sidney Goldmann, chairman; Edward A. Norman and Judge Benjamin J. Scheinman.

6

## GRAY DISCUSSES DP PLIGHT ON NEW YORK RADIO FORUM

HERMAN GRAY

Professor Herman A. Gray, member of the foreign affairs committee of the American Jewish Committee, appeared with Leo J. Margolin of the Citizens Committee on Displaced Persons on a radio forum on "The Situation of the

DP's and American Obligations" over Station WEVD in New York, April 11.

Professor Gray, a faculty member at the New York University Law School, gave facts and figures on the displaced persons and the urgent need for the United States to assume leadership in providing new homes for them. He spoke not only of humanitarian necessities, but of the economic drain which the DP's constitute in their present situation, and the contributions that their talents and energies can make to the countries which take them in.

Chairman of the AJC subcommittee on restitution, Prof. Gray recently visited the DP camps in Central Europe on a special mission for the American Jewish Committee.

## Problems of Community Relations Workers Analyzed at CRC Conference in Milwaukee

Problems of the professional Jewish community relations executives were discussed by representatives of four national Jewish agencies and professionals from 15 community councils at a three-day session of the Community Relations Conference in Milwaukee, April 18, 19 and 20.

The conference held planned discussions on adapting programs of national scope to the community level.

A major problem discussed at the sessions, over which Robert E. Segal, CRC president and director of the Boston Jewish Community Council, presided, was the impact of international events on Jewish public relations in the United States. Dr. John Slawson, AJC executive vice-president, took an active part in the extended discussion of this topic.

A full report on the campaign to permit immigration into the United States of America's fair share of displaced persons was delivered by George J. Hexter, AJC executive assistant. Dr. S. Andhil Fineberg, director of the AJC's community service department, spoke on the relationship of fund raising and allocation of funds to national and local community relations agencies, and to the activities of local professionals.

Both Dr. Slawson and Dr. Fineberg participated in a session on anti-hatred

legislation and group libel laws, and opposed the latter as ill-advised. Mrs. Dorothy M. Nathan of the AJC community service department discussed the problems of the Bureau for Intercultural Education. The subject of opinion polls and polling techniques was treated by Dr. Samuel Flowerman, director of the American Jewish Committee's department of scientific research.

Substantial progress was recorded in the report of the Training Bureau for Jewish Communal Service, in whose sponsorship the Committee is participating together with a number of other organizations. Also discussed at the conference were local techniques in community relations, the local community movement and the relationship of the Jewish community to other minority groups.

## Blaustein's Work Lauded In Baltimore Sun Article

Recognition of the role played by Jacob Blaustein, AJC executive committee chairman, in the struggle to assure the protection of fundamental human rights throughout the world, is contained in an article in the April 16 *Baltimore Evening Sun*.

Mr. Blaustein's activity, in association with Judge Joseph M. Proskauer, AJC president, at the San Francisco Conference of the United Nations, is cited. The article reviews his work on the treaties with Axis-satellite nations and at conferences in London and Paris, and refers to his membership, together with Judge Proskauer, former Governor Herbert H. Lehman and Judge Samuel I. Rosenman and others, on the governing board of the Consultative Council of Jewish Organizations, accredited to the U.N. Economic and Social Council.

## Wolfsohn to Head Paris Office

*(Continued from Page 1)*

was admitted to the State bar in the same year and practiced law in Chicago until 1934, when he was appointed Superintendent of Reports for the State of Illinois.

After joining the Department of the Interior, Mr. Wolfsohn served on the board of directors of the Jewish Community Center of Washington, D. C. He was formerly secretary of the Zionist Organization of Chicago and a member of the administrative committee of the Zionist Organization of America.

## Book Review:

### Refugees in America

"America has been enriched incalculably by the thousands of artists, scientists, scholars, engineers and craftsmen who found refuge here." This is the conclusion of Professor Maurice R. Davie's book, *Refugees in America*, recently published by Harper's.

Subtitled "The Report of the Committee for the Study of Recent Immigration from Europe," the scholarly volume is the result of a two-year nationwide survey, made possible by the cooperative effort of many organizations and interested individuals. Professor Davie, who directed the investigation, is chairman of the department of sociology of Yale University and an outstanding authority on migration.

In the years 1933 to 1944, some 250,000-300,000 refugees came to the United States. *Refugees in America* describes these people in great detail: economic and cultural backgrounds, general attitudes, specific efforts since arrival, where they have settled, what they have accomplished. A comprehensive resumé of the many services offered to immi-

grants by voluntary private agencies is also included.

Throughout the long, authoritative account, fact after fact comes to light to document the author's final conclusion that these recent refugees "have had a beneficial effect upon this country out of proportion to their numbers."

Immigrants also bring loyalty and devotion to the land that offers them freedom. This is poignantly revealed in the many personal life-histories written by the refugees themselves, in answer to the thousands of questionnaires sent out by the Committee. An eighty-one-year-old Austrian living in San Francisco expressed it simply. "My wife and I," he wrote, "are now ready to apply for citizenship. My daughter is a little worried because I can't speak English well, and she thinks I will not get my citizenship. But I'll say to the judge, 'I love America.'"

*Refugees in America* is more than a compendium of facts. It is a cogent, timely argument in the current discussion regarding United States policy towards refugees and displaced persons.