Bob-Lo Excursion Company v. People of the State of Michigan Motion and Brief for the NAACP, American Civil Liberties Union, and National Lawyers Guild as Amici Curiae

    Srij.tmm' (Emtrf of f e  United States
October Term, 1947

No. 374

BOB-LO EXCURSION COMPANY,
Appellant,

vs.

THE PEOPLE OF THE STATE OF MICHIGAN,
Appellee.

A P P E A L  PR O M  T H E  S U P R E M E  CO U RT OP M IC H IG A N

MOTION AND BRIEF FOR THE NATIONAL ASSOCIA­
TION FOR THE ADVANCEMENT OF COLORED PEOPLE, 
AMERICAN CIVIL LIBERTIES UNION, AND NATIONAL 

LAWYERS GUILD AS AMICI CURIAE.

T hurgood  M arsh a ll ,
O sm ond  F r a e n k e l ,
O. J o h n  R ogge,

Counsel for Amici Curiae.

M arian  W y n n  P erry , 
E dward R . D udley , 
F r a n k l in  H. W il l ia m s ,

Of Counsel.



I N D E X

PAGE

M otion  ___________________________________________________  1

Motion for Leave to File Brief as Amici Curiae___  1

B r i e f _____ ________________________________________________  3

Opinions Below ___________________________  3

Statute Involved ___________________________  3

Question Presented____________________________ 3

Constitutional Provision and Statute Involved____  4
Statement of tlie Case________________________ 4

A r g u m e n t  :

I—Analysis of appellant’s claim of unconstitu­
tionality _______________________________  5

II—The Michigan Civil Rights Statute may consti­
tutionally be applied to the appellant herein___ 6

The State of Michigan may in the absence of 
federal legislation remove obstacles to the 
free flow of interstate and foreign commerce.. 11

Conclusion ________________________________  14



11

Table of Cases
PAGE

Civil Eights Cases, 109 U. S. 3-------------------------------  7
Cooley v. Port Wardens, et al., 12 How. 299-------------  6
Edwards v. California, 314 U. S. 160----------------------- 9
Ex Parte Endo, 323 I T .  S. 283____________________  10
Gilman v. Philadelphia, 3 Wall. 713------------------------  11
Hall v. DeCuir, 95 IT. S. 485____________________ 6, 7,8
Hirabayashi v. United States, 320 U. S. 81----------------  10
Illinois C. E. Co. v. Illinois, 163 U. S. 142_______ ___  13
In Be Drnmond Wren, 4 D. L. R. (1945) 674--------------  13
Korematsu v. United States, 323 U. S. 214--------------  10
Monongahela Navigation Co. v. U. S., 148 U. S. 312----- 11
Morgan v. Virginia, 328 U. S. 373------------6, 7, 8,10,13,14
Railway Mail Association v. Corsi, 326 U. S. 88--------- 9
Sands v. Manistee Eiver Improvement Co., 123 U. S. 288 11
Southern Pacific v. Arizona, 325 U. S. 761_________ 7
Steele v. L. & N. R. Co., 323 U. S. 192_______________ 10
Tunstall v. Brotherhood of Locomotive Firemen & En- 

ginemen, 323 U. S. 210________________________ 10
Wisconsin v. Duluth, 96 U. S. 379--------------------------- 11

Other Authority

Dowling, Interstate Commerce and State Power-Re­
vised Version, 47 Col. Law Rev. 547 (1947)_______ 7

Statutes.

Racial Discrimination Act, Session Laws of Province of 
Ontario, 1944, Chapter 51--------------------------------  12

United Nations Charter, Article 55, Article 56_______ 13
U. S. Constitution, Article I, Section 8 (3)----------------  4
Michigan Statutes Annotated (1946), Sections 28.343_ 4



Supreme ( to r t  nf tljr Itutrft ^tatrs
October Term, 1947

No. 374

B ob-L q E xcursion  C o m pa n y ,
Appellant,

vs.

T h e  P eo ple  op t h e  S tate of M ic h ig a n ,
Appellee.

A PPEA L  PR O M  T H E  S U P R E M E  CO U RT OP M IC H IG A N

MOTION AND BRIEF FOR THE NATIONAL ASSOCIA­
TION FOR THE ADVANCEMENT OF COLORED PEOPLE, 
AMERICAN CIVIL LIBERTIES UNION, AND NATIONAL 

LAWYERS GUILD AS AMICI CURIAE.

Motion for Leave to File Brief as Amici Curiae.
To the Honorable the Chief Justice of the United States 

and the Associate Justices of the Supreme Court of the 
United States:
The undersigned, as counsel for and on behalf of the 

National Association for the Advancement of Colored 
People, the American Civil Liberties Union, and the 
National Lawyers Guild, respectfully move that this Honor­
able Court grant'them leave to file the accompanying brief 
as amici curiae.



2
Consent of the attorney for the appellant and the attor­

ney for the appellee to the filing of this brief has been 
obtained.

Special reasons in support of this motion are set forth 
in the accompanying brief.

T hukgood M a rsh a ll ,
O sm ond  F r a e n k e l ,
0 .  J o h n  R ogge,

Counsel for Amici Curiae.



© o u r !  n f  tty H tt t f r f c  S t a t e s
October Term, 1947

No. 374

B ob-L o E xcu rsio n  C o m pa n y ,

vs.
Appellant,

T h e  P eo ple  of t h e  S tate of M ic h ig a n ,
Appellee.

A PPEA L  FR O M  T H E  S U P R E M E  COU RT O F M IC H IG A N

BRIEF FOR THE NATIONAL ASSOCIATION FOR THE 
ADVANCEMENT OF COLORED PEOPLE, AMERICAN 
CIVIL LIBERTIES UNION, AND NATIONAL LAWYERS 

GUILD AS AMICI CURIAE.

O pinions Below.

S ta tu te  Involved.

The opinion below and the statute involved are set forth 
in full in the record and in the briefs for both parties filed 
herein.

Q uestion Presented.

The Specification of Errors urged by appellant is sum­
marized by it as follows: “ The questions here presented to

3



4

the Court are in reality but one, viz: the Michigan Civil 
Bights Statute is either unconstitutional as violating the 
commerce clause of the Federal Constitution, or at least 
may not constitutionally be applied to defendant when en­
gaged in its foreign commerce business.” 1

Constitutional Provision and Statute Involved.
The United States Constitution Article I, section 8, (3) 

provides: “ Congress shall have power . . .  (3) to regulate 
commerce with foreign Nations, and among the several 
states . . . ”

The Michigan Civil Rights Statute provides:
“ All persons within the jurisdiction of this state 

shall be entitled to full and equal accommodations, 
advantages, facilities and privileges of inns, hotels, 
restaurants, eating houses, barbershops, billiard 
parlors, stores, public conveyances on land and water, 
theatres, motion picture houses, public educational 
institutions, in elevators, on escalators, in all methods 
of air transportation and all other places of public 
accommodation, amusement, and recreation, where 
refreshments are or may hereafter be served, subject 
only to the conditions and limitations established by 
law and applicable alike to all citizens and to all citi­
zens alike, with uniform prices” (Act No. 117, Pub. 
Acts 1937; Stat. Ann. 1946, Cum. Supp. Sec. 28.343).

Statement of the Case.
The appellant herein is a private corporation for profit 

organized “ to lease, own and operate amusement parks in 
Canada and to charter, lease, own and operate excursion 
steamers and ferry boats in interstate and foreign com­
merce, together with dock and terminal facilities pertaining 
thereto . . . ” (R. 5).

1 Appellant’s brief, page 4.



5

In June, 1945, its agents compelled a Negro, the com­
plaining- witness, to disembark from one of its ships while 
at the wharf in Detroit and denied her accommodations on 
its ship solely because of her race or color. It is admitted 
that the refusal to carry the complaining witness as a pas­
senger was pursuant to an established policy of the appel­
lant not to permit Negroes to be passengers on its boats 
(R. 10,11).

The trip in question was one of the usual trips made by 
appellant’s steamers from Detroit to Bob-Lo Island in 
Canadian waters. During the trip the boats are part of the 
time in Canadian waters and part of the time in United 
States waters. Appellant does not carry any passengers 
from Canada to the island but carries only passengers from 
Michigan to the island on round-trip tickets.

Because of the refusal to carry the complaining witness 
as a passenger on one of its steamers solely because of her 
race or color, appellant was prosecuted and convicted under 
the Michigan Civil Rights Statute. The conviction was 
affirmed by the Supreme Court of Michigan and on appeal to 
this Court probable jurisdiction was noted.

ARGUMENT.

I.
Analysis of appellant’s claim of unconstitutionality.

The argument of appellant is divided into two points (a) 
appellant is engaged in foreign commerce; (b) the Michi­
gan Civil Rights Statute involved may not constitutionally 
be applied to appellant when engaged in sncli foreign com­
merce on account of the commerce clause of the Federal 
Constitution.



6

The Supreme Court of Michigan held that appellant in 
the instant case was engaged in foreign commerce (R. 39), 
The real contention of appellant is that since it is engaged in 
“ foreign commerce” it is subject only to possible regula­
tion by Congressional action and that in the absence of Con­
gressional action regulating them it is free to exclude pas­
sengers solely because of race or color. Of course, the tech­
nical position of the appellant is that for the above reasons 
it is not subject to liability under the Michigan Civil Rights 
Statute.

The appellant relies almost entirely upon the decisions of 
this Court in Hall v. DeCuir 2 and Morgan v. Virginia.3

II.
The Michigan Civil Rights Statute may constitu­

tionally be applied to the appellant herein.

It is the contention of the appellant that in the absence 
of specific federal legislation the question of the selection 
of passengers is left to the unrestrained will of appellant. 
The position of appellant on this point is in direct oppo­
sition to a long line of decisions of this Court which affirm 
the doctrine set forth in the case of Cooley v. Port Wardens, 
et al., 12 How. 299, that the granting to Congress of the 
power to regulate interstate and foreign commerce did not 
of itself deprive the states from exercising authority over 
this subject matter.

Where a state statute is challenged as violating the 
commerce clause each case must be considered on its own 
facts with this Court as the final arbiter as to whether the

2 95 U. S. 485.
3 328 U. S. 373.



7

particular statute violates the commerce clause.4 In the 
absence of an affirmative showing of a burden on interstate 
or foreign commerce there can not be a violation of the 
commerce clause. Where the facts of the particular case 
establish a “ burden” on interstate or foreign commerce, 
this Court must then weigh the interests of the state and 
the national interests.5

It is the policy of appellant of excluding all Negroes 
from its ships which obstructs the free flow of passengers 
in commerce. On the other hand, the Michigan statute pro­
hibiting such a policy is an aid to the free flow of commerce.

In the instant case the interest of the State of Michigan 
in enforcing its civil rights statute is in furtherance of the 
purpose of the national interests. The purpose of the 
Michigan Civil Eights Act is to prohibit individuals and 
corporations carrying on businesses of public accommoda­
tion therein mentioned from doing what the state is pro­
hibited from doing under the Fourteenth Amendment to the 
Constitution.6

The appellant herein relies on Hall v. DeCuir and 
Morgan v. Virginia, and insists that on the basis of these 
two cases this court must hold that the Michigan Civil

4 Southern Pacific v. Arizona, 325 U. S. 761; Morgan v. Virginia, 
328 U. S. 373; see also Dowling, Interstate Commerce and State 
Power—Revised Version, 47 Col. Law Rev. 547 (1947).

5 Ibid.
6 The Michigan Civil Rights Act, originally enacted in 1885, is 

designed to implement the Fourteenth Amendment in areas where 
the Civil Rights Cases, 109 U. S. 3, specifically held the federal 
government could not act. Thus the acts of appellants prohibited by 
the Michigan act are those of which this Court stated individuals 
“must be amenable therefor to the laws of the state where the 
wrongful acts are committed,” at p. 17.



8

Eights Statute involved in this case cannot constitutionally 
be applied to it.

In the case of Hall v. DeCuir, the Louisiana statute pro­
hibited segregation on common carriers because of race, but 
this court found that the statute violated the commerce 
clause because the carrier operated between Louisiana and 
Mississippi, which latter state might subsequently adopt a 
regulatory statute differing from the one in Louisiana. 
However, since the decision in Hall v. DeCuir, this court has 
consistently followed the rule that each case must be consid­
ered on its own facts and that state statutes regulating com­
merce will only be declared unconstitutional as in violation 
of the commerce clause where the facts in the particular 
case clearly demonstrate the existence of a burden on inter­
state or foreign commerce and that the burden is inconsis­
tent with national interests.

In the case of Morgan v. Virginia, this Court made an 
independent examination of the effect of the statute to de­
termine whether it unduly burdened commerce. The statute 
requiring the segregation on motor carriers and requiring 
the driver of the vehicle to shift passengers according to 
race was compared with the varying types of statutes in 
existence in states bordering Virginia, as well as other 
states in which the carrier operated. This Court also ex­
amined the statutes of those states which also made varying 
definitions of the word “ Negro.” After considering these 
factors this Court found that the Virginia statute did place 
an unreasonable burden on interstate commerce. On the 
other hand, in the instant case the Michigan statute removes



9

all possible burdens of this type by prohibiting segregation 
and such a statute is clearly not a burden on commerce but 
an aid to the free flow of commerce.

If a state statute which requires a carrier to provide its 
passengers with separate accommodations according to their 
race and color is void as applied to interstate carriers be­
cause it puts an unconstitutional burden on them, to say 
that a state statute which in effect prohibits such a burden 
is likewise a burden on interstate commerce is clearly a 
non sequitur.

This Court has always fully protected goods moving in 
interstate commerce from discriminatory regulations by 
carriers and states. There is a higher national interest in­
volved in protecting the “ right of persons to move freely 
from state to state” than is present in cases concerning the 
movement of goods.7

7 See concurring opinions in Edwards v. California, 314 U. S. 160.
In upholding a section of the New York Civil Rights Act, Mr. 

Justice R e e d , speaking for the majority of the court, stated, “We 
see no constitutional basis for the contention that a state cannot pro­
tect workers from exclusion solely on the basis of race, color or creed 
by an organization, functioning under the protection of the state, 
which holds itself out to represent the general business needs of 
employees”. Railway Mail Association v. Corsi, 326 U. S. 88, 94. 
And in a concurring opinion in the same case, Mr. Justice F r a n k ­

f u r t e r  stated, “Certainly the insistence by individuals on their pri­
vate prejudices as to race, color or creed, in relations like those now 
before us, ought not to have a higher constitutional sanction than 
the determination of a State to extend the area of non-discrimination 
beyond that which the Constitution itself exacts;” Ibid, at page 98.



10
In determining the relative weights of state and national 

interests as to “ state safety regulations” of interstate car­
riers, this Court has followed its rule of considering each 
case on its own merits and has thereby upheld such regula­
tory statutes as those involved in the full train crew laws 
while declaring invalid state laws limiting the number of 
cars on railroad trains.

On the question as to who shall be transported in inter­
state commerce and the manner in which passengers shall 
be transported, there is also a recognizable difference in the 
type of statute involved in the Morgan case and the type of 
statute involved in this case. The national interests in­
volved in the method of handling passenger traffic are two­
fold: (1) there is the over-all national interest of free flow 
of commerce, and (2) there is the national interest that no 
distinction because of race, color or national origin shall be 
permitted in areas subject to national control.

Despite the absence of a requirement for equal protec­
tion of the laws in the Fifth Amendment, our national gov­
ernment is prohibited from making distinctions on the basis 
of race and color since such distinctions are considered ar­
bitrary and inconsistent with the requirements, of due 
process except where national safety and the perils of war 
render such measures necessary.8

8 Hirabayashi v. United States, 320 U. S. 81; Korematsu v. United 
States, 323 U. S. 214; Ex parte Endo, 323 U. S. 283; and see also: 
Steele v. Louisville & Nashville R. Co., 323 U. S. 192; Tunstall v. 
Brotherhood of Locomotive Firemen & Enginemen, 323 U. S. 210.



11

The State of Michigan may in the absence of 
federal legislation remove obstacles to the free 
flow of interstate and foreign commerce.

By delegating to the federal government the power to 
regulate interstate and foreign commerce, the several states 
intended to keep the channels of commerce “ open and free 
from obstruction . . . imposed by the state or otherwise.” 9 
It was not intended, and such delegation has never been 
construed by this Court, to remove from the states all power 
to act in relation to interstate commerce, hut rather to give 
the federal government the power “ to remove such obstruc­
tions when they exist and to provide . . . against occurrence 
of the evil and the punishment of offenders.” 10

That the states may improve navigable waters by the 
erection of docks and the removal of obstructions to com­
merce is unquestioned. Thus, in Monongahela Navigation 
Co. v. U. 8.,11 this Court said of the action taken under state 
authority to build locks improving the river that ‘ ‘ The legis­
lature of the state creating this corporation . . . has come 
in aid of Congress.” 12

Similarly, in Sands v. Manistee River Improvement 
Company,13 this Court found that a state statute organizing 
a corporation and authorizing it to collect tolls for the cut­
ting of channels and removal of obstructions in a navigable 
river did not conflict with the power of Congress to regulate 
such waters in the absence of Congressional action. The 
Court reiterated the principle that the constitutional pro-

9 Gilman v. Philadelphia, 3 Wall, 713, 725.
i°

11 148 U. S. 312.
12 Ibid., 334. See also Wisconsin v. Duluth, 96 U. S. 379. 
13123 U. S. 288.



12
visions “ did not contemplate that such navigation might 
not be improved by the removal of obstructions.” 14

The free flow of commerce, which the federal government 
has an interest to maintain and a right to regulate, can be 
hampered as well by the discriminatory refusal of a carrier 
to transport as by physical obstructions. Since the states 
may, in the absence of federal action, enact laws and author­
ize the erection of docks, dams, locks and other physical 
improvements, and may remove obstructions in the form of 
adverse currents, shallow channels, log jams, etc., in aid 
of interstate and foreign commerce, the state may likewise 
act “ in aid of Congress” to remove the obstruction to com­
merce caused by appellant’s absolute refusal to transport 
Negroes.

The simple fact is that only by compliance with the 
Michigan Civil Eights Act can commerce be freed; only in 
securing compliance with this or a similar statute can com­
merce be increased by the transportation of additional 
classes of persons, and all this will be done in furtherance 
of commerce, rather than in obstruction of it.

The appellant placed much emphasis upon the “ foreign” 
or “ international” nature of their enterprise to substanti­
ate their claim of exemption from the anti-discrimination 
provisions of the Michigan Civil Rights Act. Quite the op­
posite result flows, however, from the international aspects 
of this case from that desired by the company. In the first 
place, the province of Ontario has had an anti-discrimina­
tion law since 1944 15 forbidding publication of discrimina­
tory advertisements, notices, symbols or emblems, and in 
1945 an Ontario court held that the participation of Canada

14 Ibid.
15 Racial Discrimination Act, Session Laws 1944, Chap, 51.



13

in the United Nations had unalterably fixed the public policy 
of Ontario and the Dominion in opposition to racial discrim­
ination 16. The requirements of the Michigan Civil Rights 
Act are, therefore, in conformity with the provisions of 
Ontario statutes and common law and no burden is placed 
upon the appellant by the requirement that it not discrim­
inate against prospective passengers.

Furthermore, all that appellant is asked to do under the 
Michigan Civil Rights Act is to cooperate in carrying out 
the obligations of this country under the United Nations 
Charter of which both the United States and the Dominion 
of Canada are signatories. Thus, Articles 55 and 56 of the 
United Nations Charter provide that each member of the 
United Nations shall take joint and separate action to pro­
mote “ universal respect for and performance of human 
rights and fundamental freedoms for all, without distinc­
tion as to race, sex, language or religion” .

In view of the decision of this Court defining the nature 
of burdens upon commerce, under the facts in this case, no 
burden is imposed. Thus, it cannot be said that the provi­
sions of state law forbidding discrimination “ impair the 
usefulness of [the] facilities” 17 of a carrier which passes 
between two ports only, each of which is in a country pledged 
by the United Nations Charter to oppose racial discrimina­
tion. Furthermore, it cannot be said that the anti-dis­
crimination provision in any way “ infringes the require­
ments of national uniformity” 18 of the United States, in the 
light of the provisions of the United Nations Charter.

18 In re Drummond, Wren, 4 D. L. R. (1945) 674.
17 Illinois Central R. Co. v. Illinois, 163 U. S. 142, 154.
18 Morgan v. Virginia, 328 U. S. 373, 385.



14

Conclusion.
This Court in the light of its recent decisions should de­

termine that the Michigan Civil Rights Act far from being 
unconstitutional (1) is in fact an aid to the free flow of com­
merce ; and, (2) is in keeping with the national interest not to 
discriminate, because of race, creed or national origin. Thus 
segregation statutes similar to the one involved in the 
Morgan case are unconstitutional while statutes similar to 
the Michigan one are valid.

It is therefore respectfully submitted that the appeal 
should be dismissed.

Respectfully submitted,

T htjrgood M a rshall ,
O sm ond  F r a e n k e l ,
O. J o h n  R ogge,

Counsel for Amici Curiae.

M arian  W y n n  P erry ,
E dward R. D u d ley ,
F r a n k l in  H. W il l ia m s ,

Of Counsel.

»212 [6362]
L awyers P ress, I nc., 165 William St., N. Y. C.7 ;  ’Phone: BEekman 3-2300