Attorney General of Texas v. Entz Memorandum in Response to Cross-Petition for Writ of Certiorari of Respondents

    No. 533

October Term* 1947.

T o r  AO T a KAHASHJ, PETITIONER

V .

F ish and Game Commission-, Lee F. Payne, as 
Chairman Thereof. et ad.

ON W RIT Ob' V bS im O llA R I TO 'THE SUPREME COURT OF 
THE STATE OF CALIFORNIA

BRIEF FOR THE UNITED STATES AS AMICUS CURIAE

■ • /  .r  -

.. "

.  V f  K *  /  ?  N

'  .  v , < *  ‘  'f. \  T  ;

VH  ,  *  J ”  \  % J  ■* ■

-  ’ '  -

/  ' ' ' ' ■ ■ ■ .

'
' ' A-

/  J, -> i  ^  r^ i  ^ . s ' ,  f ? ' ; / ? 
“J 4 ' - ,  V\. u j -  f c ' /

.  Y  X  /  C  , !. - I ; ;

, - \
;  \ '•*

^  -;V ?  ^ v N l v o  ^ " 2 %  i \ - ' .



I N D E X
CITATIONS

Cases: lage
Bayside Fish Co. v. Gentry, 297 II. S. 422------------- -----------  12, 13
Bridges v. California, 314 U. S. 252---------------------------------  18
Buchanan v. Warley, 245 U. S. 60-----------------------------------  5, 11
Chae Chan Ping v. United States, 130 U. S. 581----------------  22
Chy Lung v. Freeman, 92 U. S. 275---------------------------------  19, 22
Clarke v. Deckebach, 274 U. S. 392--------------------------------   8
Colyer v. Skeffington, 265 Fed. 17-.,'--------------------------------  18
Crane v. New York, 239 IT. S. 195----------------    9
Fay v. New York, 332 U. S. 261--------------------------------------  19
Follett v. McCormick, 321 U. S, 573---------------------------------  6
Fong Yue Ting v. United States, 149 U. S. 698------------  15, 18, 22
Foster-Fountain Packing Co. v. Haydel, 278 U. S. 1------- - -  12, 14
Geer v. Connecticut, 161 U. S. 519------------------------------------ 12, 13
Hague v. Congress for Industrial Organization, 307 U. S.

496__________________________________________________  14
Head Money Cases, 112 U. S. 580------------------------------------  ( 22
Heim v. McCall, 239 U. S. 175------------------------- - 9
Henderson v. Mayor of City of New York, 92 IT. S. 259- 15, 19, 22
Hill v. Texas, 316 U. S. 400---------------------------------------------  5
Hines v. Davidowitz, 312 U. S. 52--------------------------15, 16, 17, 22
Holmes v. Jennison, 14 Pet. 540-------------------------------------  15
Home Insurance Company v. Dick, 281 U. S. 397------------ ■- 18
Jamison v. Texas, 318 U. S. 413-------------------------------------- 15
Korematsu v. United States, 323 U. S. 214------------------------  5, 23
Kotch v. Pilot Commissioners, 330 IT. S. 552---------------------  7, 15
Lacoste v. Department of Conservation, 263 IT. S. 545---------  12
Lane v. Wilson, 307 IT. S. 268----------------------------------------- 10
Mahler v. Eby, 264 U. S. 32____________________________ 22
Marsh v. Alabama, 326 IT. S. 501------------------------------------  15
McCready v. Virginia, 94 U. S. 391---------------------------------  9, 14
Missouri v. Holland, 252 U. S. 416---------------------------------- 12, 13
Murdock v. Pennsylvania, 319 IT. S. 105--------------------------- 6
Oyama v. California, 332 IT. S. 633------- ------------------------ - 3, 19
Ozawa v. United States, 260 U. S. 178------------------------------  8
Patsone v. Pennsylvania, 232 U. S. 138-------------------- 9, 12, 13, 14
People v. Compagnie Generate Transailantique, 107 IT. S. 59. _ 19
Plessy v. Ferguson, 163 IT. S. 537------------------------------------  5
Railway Mail Association v. Corsi, 326 U. S. 88---------------  6
Silz v. Hesterberg, 211 IT. S. 31------------------------------------  - 12, 13
Skiriotes v. Florida, 313 IT. S. 69------------------------------------  12
Strauder v. West Virginia, 100 IT, S. 303---------------------- 5

783536—48----1 <i)



IX

Cases—Continued Page
Tiaco v. Forbes, 228 IT. S. 549___________________________  22
Toyota v. United States, 268 U. S. 402___________________  3
Truax v. Raich, 239 U. S. 33____ ___________________5, 7, 17,18
Tucker v. Texas, 326 U. S. 517__ _______________ ________  15
Turner v. Williams, 194 IT. S. 279_______________________  22
United States ex rel. Volpe v. Smith, 289 U. S. 422________  22
United States v. Belmont, 301 U. S. 324__________________ 15
United States v. Carotene Products Co., 304 IT. S. 144_______ 6
United States v. Pink, 315 IT. S. 2 0 3 . .__________________  15
United States v. Thind, 261 IT. 8. 204____________________  3
United States v. Wong Kim Ark, 169 U. S. 649____________  21
Wong Wing v. United States, 163 IT. S. 228_______________  22
Yano, Estate of, 188 Cal. 645____ _______________________  19
Yick Wo v. Hopkins, 118 U. S. 356__________________5, 7,18, 21
Yu Cong Eng v. Trinidad, 271 U. S. 500_________________  7

Constitution and Statutes:
Fourteenth Amendment________________________________ 6,14,15
Fifteenth Amendment__________________________________  10
Act of March 26, 1790, 1 Stat. 103_____________ _________ 2
Civil Rights Act of April 9, 1866 (c. 31, 14 Stat. 27)______ 21
Civil Rights Act of 1870 (16 Stat. 140, 144)_____________ 21, 23
Act of July 14, 1870, 16 Stat. 254_____________________ ... 2
Nationality Act of 1940, 54 Stat. 1137___________________  2
Act of December 17, 1943, 57 Stat. 600__ _______________ 2
Act of July 2, 1946, 60 Stat. 416________________________  2
United States Code, Title 8:

Sec. 41 (R. S. 1977)____________________________  16, 19, 21
100-246__________. . . __________________________ 16
154-157— ________________      16
501, et seq___________________________    16
703_____________________     2

Fish and Game Code of California, as amended in 1943
(Cal. Stats. 1943, ch. 1100)_________________ _______ 3, 9

Fish and Game Code of California, as amended in 1945
(Cal. Stats. 1945, ch. 181), Sec. 990________ 1, 4, 6, 8, 9,15, 20

Miscellaneous:
Congressional Globe, 41st Cong., 2d Sess., pp. 1536, 3658.. 22
Flack, Adoption of the Fourteenth Amendment, pp. 219, 221.. 22
Reitzel, The Immigration Laws of the United States— An

Outline, 32 Va.'L. Rev. 1099, 1106-1112___ _______ ____  18
Report of a fact-finding committee on the subject of Japa­

nese resettlement, May 1, 1945_______________________  3



J  it ife Jkjntmi; Gjmtrt af Ihe Kititei J&aits
October Term, 1947 

No. 533

Torao Taka hashi, petitioner

V .

F ish and Game Commission, Lee F. P ayne, as 
Chairman T hereof, et al.

ON WRIT OF CERTIORARI TO THE SUPREME COURT OF 
THE STATE OF CALIFORNIA

BRIEF FOR THE UNITED STATES AS AMICUS CURIAE

This ease involves the constitutionality of Sec­
tion 990 of the Fish and Game Code of Califor­
nia, as amended in 1945 (Cal. Stats. 1945, ch. 181) 
to provide that commercial fishing licenses may be 
issued only to persons other than those “ ineligible 
to citizenship.”  The Government is submitting 
this brief because the constitutional questions pre­
sented have substantial national importance, af­
fecting the civil rights of many persons and 
groups residing within the United States. In our 
view, Section 990, in so far as it prohibits licensing 
of persons ineligible to citizenship, is invalid on 
three separate grounds :

(i)



2

1. It denies petitioner the equal protection of 
the laws, in violation of the Fourteenth Amend­
ment.

2. It constitutes an unwarranted limitation 
upon petitioner’s privilege—derived from federal 
law—to enter and remain within the United States 
and any State.

3. It is in conflict with provisions of the Civil 
Rights Act of 1870.

I

In adopting eligibility for citizenship as a 
standard governing issuance of commercial fishing 
licenses, California has incorporated in its laws 
a classification based primarily on race and color. 
The nationality law enacted by the first Congress 
on March 26, 1790, restricted eligibility for citi­
zenship to “ free white persons.”  1 Stat. 103. 
This provision was not enlarged until after the 
Civil War, when the Act of July 14, 1870, ex­
tended eligibility “ to aliens of African nativity 
and to persons of African descent.”  16 Stat. 
254, 256. A  third racial group, descendants of 
races indigenous to the Western Hemisphere, was 
added by the Nationality Act of 1940. 54 Stat. 
1137, 1140. In 1943, “ Chinese persons or persons 
of Chinese descent”  were included as a fourth 
eligible racial group. 57 Stat. 600, 601. And, in 
1946, Filipinos and persons of races indigenous to 
India were made eligible. 60 Stat. 416. These 
statutory provisions have been codified in Section 
703 of Title 8 of the United States Code.



3

The wisdom or constitutionality of these enact­
ments need not concern us here. It is important 
only to recognize that Congress, in defining the 
groups eligible for citizenship, has drawn lines 
based on race and color. This Court, in construing 
the naturalization laws, has noted that Congress 
has employed a “  racial and not an individual 
test.”  Ozawa v. United States, 260 U. S. 178, 
197. In Toyota v. United States, 268 U. S. 402, 
412, the Court observed that “ it has long been the 
national policy [as to naturalization] to maintain 
the distinction of color and race.”  See also 
United States v. Thind, 261 U. S. 204. The point 
need not be labored, for in Oyama v. California, 
332 U. S. 633, decided at this Term, the Court 
held that an identical classification appearing in 
California’s Alien Land Law involved a racial 
discrimination.

The parties and the state courts in this case 
have been much occupied with the question 
whether the challenged provision in Section 990 is 
“  anti-Japanese. ” 1 Quite apart from its merits,

1 In 1943 Section 990 was amended to read: “ A  commercial 
fishing license may be issued to any person other than an alien 
Japanese.” (Cal. Stats. 1943, ch. 1100.) At the 1943 session 
o f the California legislature, the Senate appointed a fact­
finding committee on the subject o f Japanese resettlement, 
which filed its Keport. on May 1, 1945 (R. 17). (A  copy of 
this Report has been lodged with the Clerk of this Court.) 
With respect to fishing by Japanese, the Committee reported 
as follows (pp. 5-6) :

The committee gave little consideration to the prob­
lems o f the use o f fishing vessels on our coast owned and



4

the controversy on this question seems entirely un­
necessary to the decision of this ease. The Su­
preme Court of California, in sustaining the 
validity of Section 990, considered it important 
that when the 1945 amendment to the section was 
passed, the federal naturalization laws prohibited 
not only Japanese but also Hindus and Malayans 
from becoming citizens of the United States (R. 
40-42). We have difficulty, however, in perceiv­
ing how this can meet the fundamental constitu­
tional objections to the provision. The racial 
barrier erected by the statute is no less unconsti­
tutional because it shuts out not merely Japanese 
but other so-called Asiatic races as well. The 
difficulty with Section 990, as amended in 1945, is 
not so much that it applies, or was intended to 
apply, principally against Japanese, but rather 
that it draws a line which, in substance and effect, 
is based on race and color. A  measure which is 
bad because it unjustifiably discriminates against 
one racial group is not made better because it also

operated by Japanese, since this matter seems to have 
previously been covered by legislation. The committee, 
however, feels that there is a danger o f the 'present stat­
ute being declared unconstitutional, on the grounds of 
discrimination, since it is directed against alien Japa­
nese. It is believed that this legal question can probably 
be eliminated by an amendment which has been proposed 
to the bill which would make it apply to any alien who 
is ineligible to citizenship. The committe has intro­
duced Senate Bill 413 to make this change in the statute.

Senate Bill 413 was passed, thus resulting in Section 990 in 
its present form (R. 17).



5

discriminates against other such groups. I f  peti­
tioner were a Malayan, his attack on the constitu­
tionality of Section 990 would surely have no less 
merit.

Clearly, then, Section 990 draws a line based on 
race and color. We do not contend, of course, 
that the presence of such an element of discrimi­
nation in a state statute terminates inquiry into 
its validity. It does, however, impose an obliga­
tion upon the State to show justification sufficient 
to overcome the prima facie invalidity of a racial 
discrimination.

It is hardly necessary to review the controlling 
principles of adjudication in this field. This 
Court proceeds on the premise that “ our Consti­
tution is color-blind.” 2 Distinctions based on 
race or color alone cannot ordinarily withstand 
constitutional scrutiny.3 The Court’s approach 
to racial discriminations was described in Kore- 
matsu v. United States, 323 U. S. 214, 216, as 
follows:

all legal restrictions which curtail the civil 
rights of a single racial group are immedi­
ately suspect. That is not to say that all 
such restrictions are unconstitutional. It

2 This descriptive phrase is no less accurate because it is 
taken from a dissenting opinion. See Mr. Justice Harlan in 
Plessy v. Ferguson, 163 U. S. 537,559.

3 See, e. g., Buchanan v. Warley, 245 U. S. 60; Tick Wo v. 
Hopkins, 118 IT. S- 356; Truax v. Raich, 239 U. S. 33; IHll v. 
Texas, 316 U. S. 400; Strauder v. West Virginia, 100 U. S. 
303.



6

is to say that courts must subject them to 
the most rigid scrutiny. Pressing public 
necessity may sometimes justify the exist­
ence of such restrictions; racial antagonism 
never can.

Mindful that the Fourteenth Amendment was 
principally intended “ to prevent state legislation 
designed to perpetuate discrimination on the basis 
of race or color”  (Railway Mail Association v. 
Cor si, 326 U. S. 88, 94), the Court will make the 
most searching inquiry into the sufficiency of any 
grounds asserted as justification for invasion of 
fundamental civil rights. See Murdoch v. Penn­
sylvania, 319 U. S. 105,115; Follett v. McCormick, 
321 U. S. 573, 577; Marsh v. Alabama, 326 U. S. 
501, 509; United States v. Carolene Products Co., 
304 U. S. 144,152-153, n. 4.

That Section 990 involves a racial discrimina­
tion with respect to a basic constitutional right 
can hardly he doubted. Because he is a Japanese, 
petitioner Takahashi has been denied the right to 
earn a livelihood by pursuing his accustomed call­
ing. Petitioner is not an amateur who fishes for 
sport or pleasure. Fishing on the high seas has 
been his occupation since 1915. And it is the 
right to earn a living in this way—perhaps the 
only way he knows—that petitioner complains has 
been denied him by Section 990. It is settled that 
the Constitution prohibits discriminations against 
persons, on the grounds of race or ancestry, which



7

prevent them from engaging in a business or oc­
cupation. See Yick Wo v. Hopkins, 118 U. S. 
356; Truax v. Raich, 239 IT. S. 33; Yu Cong Eng 
v. Trinidad, 271 IT. S. 500; cf. Kotch v. Pilot Com­
missioners, 330 IT. S. 552. In Truax v. Raich, 
supra, at 41, the Court held that a State’s police 
power

does not go so far as to make it possible 
for the State to deny to lawful inhabitants, 
because of their race or nationality, the 
ordinary means of earning a livelihood. 
It requires no argument to show that the 
right to work for a living in the common 
occupations of the community is of the very 
essence of the personal freedom and op­
portunity that it was the purpose of the 
Amendment to secure. [Citations omitted.] 
I f  this could be refused solely upon the 
ground of race or nationality, the prohibi­
tion of the denial to any person of the 
equal protection of the laws would be a 
barren form of words.

And in the Kotch case, supra, at 556, the Court 
said:

An example [of denial of equal protection 
of the laws] would be a law applied to deny 
a person a right to earn a living or hold any 
job because of hostility to his particular 
race, religion, beliefs, or because of any 
other reason having no rational relation to 
the regulated activities.

783536- 48- -2



8

Mr. Justice Rutledge, writing in dissent for him­
self and Justices Reed, Douglas, and Murphy, 
stated:

Classification based on the purpose to he 
accomplished may be said abstractly to be 
sound. But when the test adopted and ap­
plied in fact is race or consanguinity, it 
cannot be used constitutionally to bar all 
except a group chosen by such a relation­
ship from public employment. That is not 
a test; it is a wholly arbitrary exercise of 
power.

(330 U. S. at 565-566.)
We come, next, to the question whether the 

racial discrimination embodied in Section 990 can 
be justified—or, to put it in a slightly different 
way, whether there is any rational and constitu­
tionally supportable basis for making denial off 
commercial fishing licenses hinge upon the appli­
cants’ eligibility or ineligibility for citizenship. 
The line drawn by Section 990, it must be empha­
sized, is not between aliens and citizens. In sup­
port of the reasonableness of distinguishing be­
tween citizens and aliens generally, it has some­
times been suggested that aliens as a class are less 
familiar with the laws and customs of this country 
than are citizens, and that their status as aliens 
may be regarded as signifying a lesser degree of 
attachment to our principles and institutions. See 
Clarke v. Deckebach, 274 U. S. 392, 394. What­
ever may be said as to the persuasiveness of these



9

arguments in other contexts, they are wholly irrel­
evant here. The line here is not between aliens 
and citizens but between two types of aliens, 
depending upon their eligibility for citizenship.4 
And there is wholly lacking any indication that 
eligibility for citizenship, as prescribed by fed­
eral law, bears any rational relation to conserva­
tion, or to the police power, or to any other inter­
est which a State may properly protect in estab­
lishing standards governing issuance of fishing 
licenses.

The 1945 amendment to Section 990 can hardly 
be justified as a conservation measure. Nothing 
in its provisions or in its legislative background 
and history has been cited to support such a claim. 
It limits neither the number of licenses nor the 
amount of fish which licensees can take. Both the 
1945 amendment and its 1943 precursor were en­
acted irija period during the war when both fed­
eral and State authorities were doing everything 
possible to enlarge food production to meet ever- 
increasing needs. It is unnecessary to repeat here 
the impressive evidence assembled by petitioner 
to refute the assertion that the discrimination

4 For this reason, cases like Heim v. McCall, 239 U. S. 115, 
and Crane v. New York, 239 U. S. 195 (statute distinguishing 
between aliens and citizens for employment on public works), 
Patsone v. Pennsylvania, 232 U. S. 138 (statute prohibiting 
aliens from killing wild game), and McCready v. Virginia, 
94 U. S. 391 (statute prohibiting non-residents of state from 
planting oysters in its territorial waters), are not controlling 
here.



10

made by Section 990 was intended as a conserva­
tion measure. (Brief, pp. 24-32.) But even if 
it be assumed that conservation was the purpose 
of the statute, no rational connection has been 
shown to exist between the effectuation of such a 
purpose and the exclusion of certain groups, iden­
tifiable solely on the basis o f race or color. This 
Court has said of the Fifteenth Amendment that 
it “  nullifies sophisticated as well as simple-minded 
modes of discrimination.”  Lane v. Wilson, 307 
U. S. 268, 275. No sophistication is necessary to 
preeeive the discrimination here.

It is argued, however, that California, in adopt­
ing “ eligibility to citizenship”  as a classification, 
has merely followed the lead of Congress; and that 
if  it is proper for Congress to draw such a line 
for naturalization purposes, it is surely not im­
proper for a State to adopt the same line for its 
purposes. We are not here concerned with the 
extent to which the power of Congress over im­
migration and naturalization is subject to con­
stitutional limitations. Assuming that power to 
be “ plenary”  and not subject to requirements of 
equal protection of the laws, it does not neces­
sarily follow that a classification which can be 
upheld as an exercise of such power by Congress 
is valid when adopted by a State in exercising an­
other and wholly different power. The classifica­
tion adopted by the State must be judged on its 
own merits by constitutional standards appropri­
ate in determining the validity of State enact­



11

ments. It could hardly be contended that the 
ordinance invalidated by this Court in Buchanan 
v. Warley, 245 U. S. 60, for example, would have 
been less unconstitutional if it had involved a 
discrimination based not expressly upon race but 
upon “ eligibility to citizenship.”

Nor can the discrimination involved in Section 
990 be justified by any peculiar relationship of the 
State to wild fish and game. The opinion of the 
Supreme Court of California asserts that “ the 
state is the owner of the fish in coastal waters 
and may regulate the taking of them for private 
use.”  (R. 36.) The argument implicit in this 
assertion seems to be that, in dealing with fish 
and game, the State is in effect unrestrained by 
any constitutional limitations. In our view, how­
ever, the constitutionality of Section 990 is not 
enhanced by the circumstance that the subject- 
matter of the regulation is fishing. We think the 
statute stands on precisely the same constitutional 
footing as if  it involved a license to engage in the 
laundry business or any other occupation or activ­
ity which California has a right to regulate in the 
public interest.

It should be noted, moreover, that petitioner 
explicitly disavows any claim “ to take fish in 
which the State of California has or can rightly 
claim a proprietary interest”  (Br. p. 10). But 
even if petitioner had asserted a right to fish, 
not on the high seas outside the territorial juris­
diction of California, but in waters within such



12

jurisdiction, we submit that Section 990 would be 
equally invalid if  it were applied to deny him 
such right.5 The respondent’s argument relies on 
expressions in a number of opinions, beginning 
with Geer v. Connecticut, 161 U. S. 519, in which 
this Court has spoken of a State as in some sense 
the owner of animals ferae naturae found within 
its borders. See Silz v. Hester!)erg, 211 IT. S. 31; 
Patsone v. Pennsylvania, 232 IT. S. 138; Lacoste 
v. Department of Conservation, 263 IT. S. 545; 
Foster-Fountain Packing Co. v. Haydel, 278 U. S. 
1; Bayside Fish Co. v. Gentry, 297 IT. S. 422. The 
fictional basis of any characterization of the State 
as having a “ proprietary interest”  was demon­
strated by Mr. Justice Holmes in Missouri v. 
Holland, 252 IT. S. 416, 434:

The State as we have intimated founds 
its claim of exclusive authority upon an 
assertion of title to migratory birds, an as­
sertion that is embodied in statute. Ho 
doubt it is true that as between a State 
and its inhabitants the State may regulate 
the killing and sale of such birds, but it 
does not follow that its authority is ex­
clusive of paramount powers. To put the 
claim of the State upon title is to lean 
upon a slender reed. Wild birds are not

5 The power of a State to regulate fishing in navigable 
waters is based upon its governmental authority, and not upon 
its ownership o f the fish; and even this power is qualified 
and depends upon the absence o f any conflict with federal 
regulations. See Skiriotes v. Florida, 313 IT. S. 69, 75, and 
cases cited.



13

in the possession of anyone; and possession 
is the beginning of ownership. The whole 
foundation of the State’s rights is the 
presence within their jurisdiction of birds 
that yesterday had not arrived, tomorrow 
may be in another State and in a week a 
thousand miles away.

A  State’s unquestionably valid interest in con­
servation has been held to support, as against at­
tack on due process grounds, general regulations 
designed to eliminate certain methods of process­
ing fish after their capture. Bayside Fish Com­
pany v. Gentry, 297 U. S. 422. Similarly, the 
same interest has been held under the Commerce 
Clause to justify various general limitations on 
the capture, possession, and transportation out of 
the State of wild game. Geer v. Connecticut, 161 
U. S. 519; Silz v. Hesterberg, 211 U. S. 31; Pat- 
sone v. Pennsylvania, 232 U. S. 138; Bayside Fish- 
Company v. Gentry, supra. In each case, how­
ever, the decision was based, not on any notion 
that the State in dealing with fish and game was 
beyond constitutional restriction, but rather on an 
evaluation of the legitimate interest of the State 
in conservation, as a factor affording rational 
justification for the regulation. In other cases 
this Court has shown no reluctance in rejecting 
an asserted claim of State authority where it was 
found either to conflict with a paramount federal 
right or to infringe constitutional prohibitions. 
Thus, in Missouri v. Holland, supra, the State’s as­



14

sertion of exclusive control over wild game did not 
prevail against paramount federal authority under 
the treaty-making power. And in Foster-Foun­
tain Packing Co. v. Haydel, 278 U. S. 1, the Court 
struck down, as a prohibited interference with 
interstate commerce, restrictions on the extra- 
State transportation of shrimp.6

To describe a State’s interest as “ proprietary”  
rather than “ governmental,”  or to characterize 
the right to fish as a “ privilege,”  cannot, serve to 
relieve a State from the duty imposed by the 
Fourteenth Amendment to refrain from unjusti­
fiable racial discriminations. In other contexts, 
this Court has declared that a State may not 
exercise even its rights of proprietorship so as to 
infringe the civil rights of those subject to its juris­
diction. Thus, in Hague v. Congress for Indus­
trial Organization, 307 U. S. 496, 516, it was 
stated (opinion of Roberts, J.) that the un­
doubted powers of a municipality over the use of 
parks, streets, and public buildings owned by it 
could not “ be made the instrument of arbitrary

6 See, also, McCready v. Virginia, 94 TJ. S. B91; and Patsone 
v. Pennsylvania, 232 U. S. 138. The latter case upheld a 
Pennsylvania statute which prohibited any alien to kill 
wild game. The case apparently involved hunting lor sport 
rather than as a means of livelihood. The Court, on the 
record before it, regarded the statute as genuinely aimed 
at the conservation o f wild game, stating that “ this court has 
no such knowlege of local conditions as to be able to say that 
it [the state legislature] was manifestly wrong” in conclud­
ing that “ resident unnaturalized aliens were the peculiar 
source o f the evil that it. desired to prevent.” (232 U. S. at 
144-145.)



15

suppression of free expression of views on na­
tional affairs.”  See also Jamison v. Texas, 318 
U. S. 413; Marsh v. Alabama, 326 U. S. 501; 
Tucker v. Texas, 326 U. S. 517; cf. Kotch v. Pilot 
Commissioners, 330 U. S. 552.

II

Quite apart from its inability to measure up to 
the requirements of the equal protection clause of 
the Fourteenth Amendment, Section 990, as 
amended in 1945, constitutes an invalid incursion 
in the field of immigration and naturalization—in 
which federal regulatory authority is, of course, 
supreme. Hines v. Davidowitz, 312 U. S. 52; 
Fong Yue Ting v. United States, 149 U. S. 698; 
Henderson v. Mayor of City of New York, 92 U. S. 
259; Holmes v. Jennison, 14 Pet. 540, 570. This 
Court stated in Hines v. Davidowitz, supra, at 
65-66:

Legal imposition of distinct, unusual and 
extraordinary burdens and obligations upon 
aliens * * * bears an inseparable rela­
tionship to the welfare and tranquility of 
all the states, and not merely to the wel­
fare and tranquility of one. * * * And
specialized regulation of the conduct of an 
alien before naturalization is a matter 
which Congress must consider in discharg­
ing its constitutional duty “ To establish an 
Uniform Rule of Naturalization * *

Cf. United States v. Belmont, 301 U. S. 324, 331; 
United States v. Pink, 315 U. S. 203, 222-223.



16

In the exercise of its constitutional powers, Con­
gress has enacted, in Title 8 of the United States 
Code, a comprehensive and integrated system of 
immigration and naturalization laws. These pro­
visions define with particularity the terms and 
conditions on which aliens are permitted to enter 
and remain within this country. Congress has 
prescribed who may enter the country and under 
what conditions (Sections 100-246), who shall be 
deported and for what causes (Sections 154-157), 
and who shall be entitled to apply for citizenship 
and under what terms (Section 501 el seq.). 
Title 8 further provides specific protection of the 
civil rights of aliens while residing within our 
borders (Section 41; see Point III , infra, pp. 
21-23).

We do not here contend that Section 990 is in­
valid merely because it is a State regulation 
affecting aliens. As stated in Hines v. Davidowitz, 
supra, p. 67, there is no “ infallible constitutional 
test”  or “ exclusive constitutional yardstick”  for 
determining the validity of a State regulation 
within a field in which the power of Congress is 
supreme. The primary function of this Court is 
to decide whether, upon evaluation of all the rel­
evant factors, the State regulation “ stands as an 
obstacle to the accomplishment and execution of 
the full purposes and objectives of Congress.”  
Hid. In considering such an issue, the Court will 
be mindful that

it is of importance that this legislation is
in a field which affects international rela-



17

tions, the one aspect of our government 
that from the first has been most generally- 
conceded imperatively to demand broad 
national authority. Any concurrent state 
power that may exist is restricted to the 
narrowest of limits; the state’s power 
here is not bottomed on the same broad 
base a,s is its power to tax. And it is also 
of importance that this legislation deals 
with the rights, liberties, and personal free­
doms of human beings, and is in an entirely 
different category from state tax statutes or 
state pure food laws regulating the labels 
on cans.

Hines v. JDavidowitz, supra, at p. 68.
In Point I, supra, we have argued that Section 

990 denies petitioner the equal protection of the 
laws, and in support of that contention have cited 
Truax v. Raich, 239 IJ. S. 33. But that case goes 
even further. In its opinion, the Court stated 
(p. 42) :

The authority to control immigration—to 
admit or exclude aliens—is vested solely in 
the Federal Government. Fong Yue Ting 
v. United States, 149 U. S. 698, 713. The 
assertion of an authority to deny to aliens 
the opportunity of earning a livelihood 
when lawfully admitted to the State would 
be tantamount to the assertion of the right 
to deny them entrance and abode, for in 
ordinary cases they cannot live where they 
cannot work. And, if  such a policy were 
permissible, the practical result would be 
that those lawfully admitted to the country



18

under the authority of the acts of Congress, 
instead of enjoying in a substantial sense 
and in their full scope the privileges con­
ferred by the admission, would be segre­
gated in such of the States as chose to 
offer hospitality.

Petitioner was admitted to the United States 
lawfully, pursuant to authority granted by Con­
gress. He thereby obtained “ the privilege of en­
tering and abiding in the United States, and hence 
of entering and abiding in any State in the 
Union.”  Truax v. Raich, supra, at 39. Congress 
has not limited the right of immigration solely to 
those who are eligible for citizenship.7 As a 
peaceful, law-abiding resident alien, petitioner is 
entitled to the full and equal protection of the 
laws, which is “ a pledge of the protection of equal 
laws.”  Yick Wo v. Hopkins, 118 U. S. 356, 369. 
The protection which the Constitution affords to 
civil rights extends to all persons within the coun- 
try, without distinction as to their nationality. 
Fong Yue Ting v. United States, 149 U. S. 698, 
724; Home Insurance Company v. Dick, 281 U. S. 
397, 411; Yick Wo v. Hopkins, supra; Bridges v. 
California, 314 U. S. 252; Colyer v. Skeffington, 
265 Fed. 17, 24 (D. Mass.). And, in securing the 
rights of resident aliens, Congress has taken af­
firmative action by translating these general con­

^7 The relevant statutory provisions are collected in Reitzel, 
The Immigration Laws of the United States—An Outline, 
32 Va. L. Rev. 1099,1106-1112.



19

stitutional safeguards into specific statutory 
commands. R. S. 1977; 8 U. S. C. sec. 41. Cf. 
Fay v. New York, 332 U. S. 261, 282-283.

By imposing an unjustifiable limitation on peti­
tioner’s capacity to earn a livelihood, California 
has placed a substantial restriction on the exercise 
of his right—derived from Congress—to enter and 
abide in the United States and any State. The 
probable effect of Section 990 is to deter alien 
Japanese fishermen from entering and remaining 
in the State, and this, as petitioner argues, rnay 
well have been its principal purpose. See the con­
curring opinions of Mr. Justice Black and Mr. 
Justice Murphy in Oyama v. California, 332 U. S. 
633 at 649, 657; cf. Estate of Yano, 188 Cal. 645, 
658. Such a restraint on the exercise of a right 
conferred by federal law is no less invalid because 
it is not an absolute prohibition. State taxes and 
other exactions upon the landing of immigrants 
have been held invalid even though they fell far 
short of excluding aliens entirely. Henderson v. 
Mayor of City of New York, 92 U. S. '259; Chy 
Lung v. Freeman, 92 U. S. 275; People v. Com- 
pagnie Generate Transatlantique, 107 U. S. 59. In 
invalidating a California statute imposing fees 
upon immigrants arriving from foreign ports, this 
Court said (Chy Lung v. Freeman, supra, at 280) :

The passage of laws which concern the ad­
mission of citizens and subjects of foreign 
nations to our shores belongs to Congress, 
and not to the States. It has the power to



20

regulate commerce with foreign nations: 
the responsibility for the character of those 
regulations, and for the manner of their 
execution, belongs solely to the national 
government. I f  it be otherwise, a single 
State can, at her pleasure, embroil us in 
disastrous quarrels with other nations.

The invalidity of Section 990 as an intrusion 
upon national authority is further emphasized by 
the fact that its prohibition against issuance of 
commercial fishing licenses is directed only against 
aliens who are ineligible for citizenship. That 
such aliens cannot, under present federal laws, 
qualify for citizenship affects in no way either the 
legality of their entry into the United States or 
their right to remain within this country and to 
enjoy the equal protection of its laws. In pre­
cluding such aliens from citizenship, Congress has 
placed no stigma upon them and has passed no 
judgment as to their morals or good character. 
Congress has merely, for reasons which it deemed 
sufficient and proper, denied to such persons the 
privilege of becoming American citizens. By bar­
ring these aliens from one of the common occupa­
tions, California has burdened them with a 
substantial civil disability, solely because of their 
status under the federal naturalization laws. 
There is no reason to believe that Congress in­
tended that such consequences should flow from its 
action in denying some aliens the privilege of 
citizenship.



21

III

A third ground for invalidation of Section 990 
is that it is in conflict with Section 16 of the Civil 
Rights Act of 1870 (16 Stat. 140, 144), now ap­
pearing as Section 1977 of the Revised Statutes 
(8 II. S. C. Sec. 41). This section provides as 
follows:

All persons within the jurisdiction of the 
United States shall have the same right in 
every State and Territory to make and en­
force contracts, to sue, be parties, give evi­
dence, and to the full and equal benefit of 
all laws and proceedings for the security of 
persons and property as is enjoyed by white 
citizens, and shall be subject to like punish­
ment, pains, penalties, taxes, licenses, and 
exactions of every kind, and to no other.

There can be no doubt that the protection of 
this statute extends to aliens as well as to citizens. 
Yick W o v. Hopkins, 118 U. S. 356, 369; United 
States v. Wong Kim Ark, 169 IT. S. 649, 696. The 
provisions of R. S. 1977 find their origin in Sec­
tion 1 of the Civil Rights Act of April 9, 1866 
(c. 31, 14 Stat. 27), which provided for the pro­
tection of civil rights of Negroes. Four years 
later, Congress enacted Section 16 of the Civil 
Rights Act of 1870, which extended similar pro­
tection to all persons within the jurisdiction of the 
United States. The legislative history of the Civil 
Rights Act of 1870 shows that it was intended to



22

confer upon aliens the same civil rights which had 
already been guaranteed to Negroes. Congres­
sional Globe, 41st Cong., 2d Sess., pp. 1536, 3658; 
Flack, Adoption of the Fourteenth Amendment, 
pp. 219, 221.

The constitutional validity of E. S. 1977, as ap­
plied to aliens, does not rest solely upon the power 
of Congress to enforce the Fourteenth Amend­
ment. This Court has indicated several sources 
of the power of Congress to control the admission 
and residence of aliens. Turner v. Williams, 194 
U. S. 279, 290; Hines v. Davidowitz, 312 U. S. 52, 
62-66. It may be founded on the power to reg­
ulate foreign commerce (cf. Head Money Cases, 
112 IT. S. 580, 591; Henderson v. Mayor of City 
of New York, 92 IT. S. 259, 270-274), or on the 
power to conduct the foreign relations of the 
United States (ef. Chy Lung v. Freeman, 92 U. S. 
275, 279-280; Fong Yue Ting v. United States, 
149 U. S. 698, 711, 712), or it may arise as an inci­
dent of the sovereignty of the United States (cf. 
Chae Chan Ping v. United. States, 130 U. S. 581, 
602-609; Fong Yue Ting v. United States, 149 
U. S. 698, 705, 711; Wong Wing v.1 United States, 
163 U. S. 228, 231; Tiaco v. Forles, 228 U. S. 549, 
556-557; Mahler v. F ly, 264 U. S. 32, 39).

Whatever its basis, there can be no doubt as to 
the supreme power of Congress to “ prescribe the 
terms and conditions upon which aliens may enter 
or remain in the United States.”  United States



23

ex rel. Volpe v. Smith, 289 U. S. 422, 425. The 
Civil Bights Act of 1870 constitutes a legitimate 
exercise of that power. It commands that aliens 
shall have “ the same right in every State and Ter­
ritory * * * to the full and equal benefit of
all laws and proceedings for the security of per­
sons and property as is enjoyed by white citizens, 
and shall he subject to like punishment, pains, 
penalties, taxes, licenses, arid exactions of every 
kind, and to no other.”  (Italics added.)

Congress has thus forbidden any State to im­
pose unwarranted discriminations upon resident 
aliens, simply because they are aliens. We do 
not argue that aliens and citizens must be treated 
identically for every purpose. We do argue that 
if a distinction is drawn, it must be justified by 
considerations of “ pressing public necessity”' (ef. 
Korematsu v. United States, 323 U. S. 214, 216) 
upon which the State bases its action. It may 
well be that legitimate State interests, such as 
conservation of its resources or maintenance of 
the peace, may in some situations justify different 
treatment of aliens. It is clear that “ racial an­
tagonism never can.”  Korematsu v. United 
States, supra.

CONCLUSION

It is respectfully submitted that Section 990 of 
the Fish and Game Code of California, in so far 
as it prohibits issuance of licenses to persons in­
eligible to citizenship, is unconstitutional, and



24

that the judgment of the Supreme Court of Cali­
fornia should be reversed.

Tom C. Clark,
Attorney General. 

P hilip B. P erlman,
Solicitor General. 

P hilip Elman ,
James L. Mokrisson, 

Special Assistants to the Attorney General.
A pril 1948.

U. S. GOVERNMENT PRINTING O FF IC E : <848