Opinion
No. 19,771.
Decided February 13, 1962. Rehearing denied March 5, 1962.
From a judgment holding Colorado Anti-Discrimination Act invalid as applied to flight personnel of interstate air carrier, the Commission and applicant for employment bring error.
Affirmed.
1. CIVIL RIGHTS — Anti-Discrimination Act — Legislative Intent. C.R.S. '53, 80-24-2 (5), provides that Anti-Discrimination Act shall apply to persons "employing six or more employees within the State."
2. CONSTITUTIONAL LAW — Interstate Commerce — Uniformity of Regulation — Power of States. In those area of interstate commerce which by their nature require uniformity of regulation by a single authority, the states are without power to act even though the Congress has not legislated on the subject.
3. Interstate Commerce — Regulation — When State May Act. In areas of interstate commerce which do not require uniformity of regulation and where the matters are in substantial degree of local concern, the states may act, but once the Congress legislates on the subject it pre-empts the field, and the states are thereafter without power to act.
4. Statutes — Burden on Interstate Commerce — Validity. An attempt by a state to apply a statute imposing burdens or restrictions upon persons engaged in areas of interstate commerce in which only the Congress has power to act, or in which it may pre-empt the field, contravenes the plenary power of the Congress to regulate interstate commerce and will be held invalid.
5. CIVIL RIGHTS — Racial Discrimination — Interstate Carrier — Uniformity of Regulation. Racial discrimination by an interstate carrier is a subject which must be free from diverse regulation by the several states and governed uniformly if at all, by the Congress of the United States.
6. CONSTITUTIONAL LAW — Interstate Commerce — Uniformity of Regulation — Power of States. A state may not impose a burden which materially affects interstate commerce in an area where uniformity of regulation is necessary.
7. CIVIL RIGHTS — Interstate Carriers — Racial Discrimination — Regulation — National Uniformity. The Supreme Court of the United States having clearly indicated that as to interstate carriers the regulation of racial discrimination is a matter in which there is a "need for national uniformity," the states are without jurisdiction to act in that area.
Error to the District Court of the City and County of Denver, Hon. William A. Black, Judge.
Mr. DUKE W. DUNBAR, Attorney General, Mr. FRANK E. HICKEY, Deputy, Mr. CHARLES S. THOMAS, Assistant, for plaintiff in error Anti-Discrimination Commission.
Mr. T. RABER TAYLOR, for plaintiff in error Marlon D. Green.
Messrs. HOLLAND HART, Mr. PATRICK M. WESTFELDT, Mr. WILLIAM C. McCLEARN, Mr. WARREN L. TOMLINSON, for defendant in error.
The following counsel were permitted to appear and file briefs as Amici Curiae:
Mr. BURKE MARSHALL, Assistant Attorney General of the United States, Mr. HAROLD H. GREENE, Mr. DAVID RUBIN, Assistants,
Mr. ARNOLD FORSTER of the New York Bar, General Counsel, Mr. PAUL HARTMAN, of the New York Bar, Mr. SOL RABKIN, of the New York Bar, Associate Counsel, Messrs. DONALDSON, HOFFMAN GOLDSTEIN, of the Colorado Bar, Counsel, Anti-Defamation League of B'nai B'rith.
Mr. EDWIN J. LUKAS, of the New York Bar, General Counsel, Mr. THEODORE LESKES, of the New York Bar, Associate Counsel, Mr. CHARLES ROSENBAUM, of the Colorado Bar, Counsel, American Jewish Committee.
Mr. MANDEL BERENBAUM, Mr. LOUIS G. ISAACSON, Mr. JOSEPH MOSKO, Mr. JAMES TADETSKY, Mr. STANTON ROSENBAUM, Mr. WALTER M. SIMON, Mr. ANTHONY F. ZARLENGO, Mr. WILLIAM S. POWERS.
MARLON D. GREEN filed a complaint before the Colorado Anti-Discrimination Commission in which he alleged that the Continental Airlines violated the Colorado Anti-Discrimination Act of 1957 by refusing to employ him as an airline pilot on or about July 8, 1957, because he is a Negro. It was further alleged that Continental Airlines violated the said act in that its forms of application for employment as a pilot contain at least two specifications prohibited by the act, namely, attachment of a photograph and requiring the applicant to state his race.
After a hearing before the Commission it ordered that: "The Respondent (Continental) shall give to the Complainant (Green) the first opportunity to enroll in its training school in its next course, and the priority status of the Complainant shall be fixed as of June 24, 1957."
On review of the commission's order the district court held that the Colorado Anti-Discrimination Act, in so far as it purported to regulate the employment of flight crew personnel of an interstate air carrier, was invalid as creating a burden upon interstate commerce. The trial court entered a judgment ordering the dismissal of Green's complaint before the commission. Green and the commission are here by writ of error seeking reversal of the judgment.
In 1937 the General Assembly enacted the following statutes — (now C.R.S. '53, 5-1-2, 5-1-3 and 5-1-8):
" 5-1-2: NAVIGATION OF AIRCRAFT: The public safety requiring and the advantage of uniform regulation making it desirable in the interest of aeronautical progress that aircraft operating within this state should conform with respect to design, construction and airworthiness to the standards now, or hereafter to be prescribed by the United States government with respect to navigation of aircraft subject to its jurisdiction, it shall be unlawful for any person to navigate an aircraft within the state unless it is licensed and registered by the department of commerce of the United States in the manner prescribed by the lawful rules and regulations of the United States government the in force.
" 5-1-3: LICENSE FOR NAVIGATION: The public safety requiring and the advantages of uniform regulations making it desirable in the interest of aeronautical progress that a person engaging within this state in navigating aircraft designated in section 5-1-2 in any form of navigation for which license to operate such aircraft would be required by the United States government shall have the qualifications necessary for obtaining and holding the class of license required by the United States government. It shall be unlawful for any person to engage in operating such aircraft within this state in any form of navigation unless he have such a license.
"5-1-8: INTERPRETATION: This article shall be so interpreted and construed as to effect its general purpose and to make uniform the law of those states which enact it and to harmonize as far as possible, with federal laws and regulations on the subject of aeronautics."
Thus in 1937 the legislature gave recognition to federal laws and regulations in the realm of aeronautics.
The Colorado Anti-Discrimination Act of 1957 provides in C.R.S. '53, 80-24-2 (5):
"'Employer' shall mean the state of Colorado or any political subdivision or board, commission, department, institution or school district thereof, and every other person employing six or more employees within the state; * * *"
80-24-6 (2) provides that it shall be an unfair employment practice, "For an employer to refuse to hire, to discharge, to promote or demote, or to discriminate in matters of compensation against, any person otherwise qualified, because of race, creed, color, national origin ancestry."
Continental Airlines, among other defenses not necessary to consider, raises the question of whether the Anti-Discrimination Commission has any jurisdiction over the subject matter of the action.
It is admitted that Continental is a commercial carrier by air; that it operates pursuant to a certificate of public convenience and necessity issued by the Civil Aeronautics Board. The company provides air transportation for passengers, freight, and United States mail between the states of Colorado, Texas, Oklahoma, New Mexico, Kansas, Missouri, Illinois and California. Continental was admittedly engaged in interstate commerce, and it was further agreed that the particular employment sought by Green involved interstate operations.
Continental contends that the Colorado statute under which these proceedings were instituted, as applied to the facts of this case, is unconstitutional and void under Article I, Sec. 8, clause 3 of the Constitution of the United States which provides: "The Congress shall have power * * * To regulate commerce with foreign nations, and among the several states, and with the Indian tribes." Congress has pre-empted the field of law concerning racial discrimination in the interstate operations of carriers (generally and specifically with relation to employment of interstate operating personnel) and has thereby precluded exercise of authority by the several states in this field.
The trial court adjudged in effect that the Colorado Anti-Discrimination Act cannot constitutionally be extended to cover the hiring of flight crew personnel of an interstate air carrier; that if said Act be applied to the hiring contracts of interstate air carriers it would unconstitutionally burden interstate commerce and would amount to an invasion of field pre-empted by the United States under (a) The Railroad Labor Act; (b) the Civil Aeronautics Act; and (c) Federal executive orders dealing with discrimination by employers contracting with the federal government. The trial court entered judgment setting aside the findings of the commission and dismissing Green's complaint.
The United States and certain other groups interested in the subject matter of controversy were granted leave to file briefs as amici curiae. In the brief filed by the Assistant Attorney General of the United States, argument is advanced under separate captions as follows:
"I. The Commission's assertion of jurisdiction herein does not unconstitutionally burden commerce.
"II. Colorado is not precluded by federal legislative or executive action from applying its anti-discrimination policy to the hiring practices of interstate air carriers."
Counsel for Green, in substance, made the same argument on the question of whether the State of Colorado has jurisdiction to regulate the hiring practices of those engaged in interstate air transportation.
With reference to the above stated propositions Continental presents lengthy argument under the following captions:
"1. The Colorado Anti-Discrimination Act May Not Constitutionally be Applied to Flight Crew Personnel of an Interstate Air Carrier.
"A. Application of the Colorado Anti-Discrimination Act to the Facts of This Case is Unconstitutional as a Burden on Commerce.
"B. Acts of Congress have Pre-empted the Subject Matter of this Litigation, Thereby Precluding Action by the States."
Although additional arguments on other matters are contained in the briefs, they were not determined in the trial court. The only question resolved was that of jurisdiction. The trial court determined that the act was inapplicable to employees of those engaged in interstate commerce, and the judgment was based exclusively on that ground.
The first question to be resolved on this writ of error is whether the Colorado Anti-Discrimination Act may be applied to flight crew personnel of an interstate air carrier. If the question is answered in the negative other arguments directed to the merits of the action, and questions relating to the validity of the act when tested by provisions of the Colorado Constitution, are academic and of no materiality to the issue to be determined.
The trial court entered extensive Findings of Fact, Conclusions of Law Judgment. As set forth in the appendix to the brief of Continental, this document consists of thirty-eight printed pages. It is very apparent that the learned trial judge gave careful consideration to the numerous decisions of the Supreme Court of the United States which bear upon the issue. Many of them are analysed in the judgment entered by the court. The findings, conclusions and judgment of the trial court might well be adopted in toto as the opinion of this court. However in the interest of brevity we will do no more than mention a few decisions which we think control the result.
From the numerous opinions written by the United States Supreme Court dealing with the legality of state regulation of those engaged in interstate commerce, two basic propositions have been firmly established, to wit:
(1) In those areas of interstate commerce which by their nature require uniformity of regulation by a single authority, the states are without power to act even though Congress has not legislated on the subject; and
(2) In areas of interstate commerce which do not require such uniformity of regulation and in which the states may act because the matters are in some substantial degree of local concern; once the Congress does legislate upon the subject, it pre-empts the field and the states are thereafter without power to act.
An attempt by the state to apply a statute imposing burdens or restrictions upon persons engaged in either of the foregoing areas of interstate commerce will be set aside and held for naught as contravening the plenary power of the Congress to regulate interstate commerce. Cooley v. Port Wardens of Philadelphia, 12 How. 299, 13 L. Ed. 996; Southern Pacific Co. v. Arizona, 325 U.S. 761, 65 S.Ct. 1515; Minnesota Rate Cases, 230 U.S. 352, 33 S.Ct. 729. This power in Congress is "complete in itself, may be exercised to its utmost extent, and acknowledges no limitations, other than as are prescribed in the Constitution." Gibbons v. Ogden, 9 Wheat 1, 6 L. Ed. 23.
Racial discrimination by an interstate carrier is a subject which must be free from diverse regulation by the several states and governed uniformly, if at all, by the Congress of the United States. Whatever our private notions may be on the subject, the opinions of the U.S. Supreme Court have established the rule.
In Hall v. DeCuir, 95 U.S. 485, 24 L. Ed. 547, (1877), the court had before it a Louisiana statute which prohibited discrimination in passenger accommodations within the state. The defendant, owner of a passenger steamship which traveled the Mississippi River between Louisiana and Mississippi, had refused certain accommodations to a Negro and was sued by her. The court concluded that the statute as applied to those engaged in the transportation of passengers among the states was unconstitutional. The court said, inter alia:
"But we think it may safely be said that state legislation which seeks to impose a direct burden upon interstate commerce, or to interfere directly with its freedom, does encroach upon the exclusive power of Congress. The statute now under consideration in our opinion, occupies that position."
In Morgan v. Virginia, 328 U.S. 373, 66 S. Ct. 1050, a statute of the State of Virginia required segregation of white and colored passengers for both intrastate and interstate motor vehicle carriers. An interstate passenger who was a Negro challenged the validity of the statute as placing a burden on interstate commerce. The court held that the statute as applied to interstate carriers was unconstitutional. Hall v. DeCuir, supra, was approved in the following language: "The factual situation set out in preceding paragraphs emphasizes the soundness of this court's early conclusion in Hall v. DeCuir."
Counsel seeking reversal of the judgment of the trial court attempt in various ways to discredit the opinion of Hall v. DeCuir. It is asserted in the brief filed by the United States as amicus curiae that Hall v. DeCuir was "handed down seventy-six years prior to Brown v. Board of Education, 247 U.S. 483"; that the case has "long been eroded and devitalized" and that it "has no vitality today." The Supreme Court of the United States has not so indicated. Brown v. Board of Education, supra, did not involve interstate commerce. As recently as 1960 Hall v. DeCuir was cited with approval in Huron Portland Cement Company v. City of Detroit, 362 U.S. 440, in which the United States Supreme Court said: "But a state may not impose a burden which materially affects interstate commerce in an area where uniformity of regulation is necessary. Hall v. DeCuir, 95 U.S. 485."
Our attention is invited to the fact that the United States does not consider Hall v. DeCuir to be "devitalized" in those matters in which application of the doctrine for which it is authority will promote a result sought by the government. On September 2, 1960, the United States appearing by counsel, who are on the brief in the instant case, filed a brief as amici curiae with the Supreme Court of the United States in Boynton v. Virginia, 364 U.S. 454, in which we find the following: "Thus, even in the absence of congressional action, the Commerce Clause, of its own force, requires invalidation of unreasonable state-imposed burdens on interstate commerce. See Morgan v. Virginia, 328, 373; Hall v. DeCuir, 95 U.S. 485. * * *"
Thus it will be seen that counsel for the United States, appearing here as amicus curiae, attempts like the Roman god Janus to face both ways.
The State of Colorado either does or does not have power to legislate concerning racial discrimination by employers engaged in interstate commerce. The authority of the state does not come into existence in the event the exercise thereof will produce a result which may tend to promote a particular cause and the disappear or become promote a particular cause and then disappear or become impotent when the exercise thereof may lead to a different result. Jurisdiction to function does not depend upon what results will flow from the exercise of regulatory power.
The Supreme Court of the United States has clearly indicated that with reference to interstate carriers the regulation of racial discrimination is a matter in which there is a "need for national uniformity," and that the states are without jurisdiction to act in that area. Morgan v. Virginia, supra.
The judgment is affirmed.
MR. JUSTICE FRANTZ, MR. JUSTICE McWILLIAMS and MR. JUSTICE PRINGLE dissent.