ft
U k^
NATIONAL DEFENSE MIGRATION
HEARINGS
BEFORE THE
SELECT COMMITTEE INVESTIGATING
NATIONAL DEFENSE MIGRATION
HOUSE OF REPRESENTATIVES
SEVENTY-SEVENTH CONGEESS
SECOND SESSION
PURSUANT TO
H. Res. 113
A RESOLUTION TO INQUIRE FURTHER INTO THE INTER-
STATE MIGRATION OF CITIZENS, EMPHASIZING THE
PRESENT AND POTENTIAL CONSEQUENCES OF THE
MIGRATION CAUSED BY THE NATIONAL DEFENSE
PROGRAM, THE EFFECTS OF MIGRATION ON
THE VARIOUS AGRICULTURAL PROGRAMS,
AND THE DEVELOPMENT OF ECONOMIC
CONDITIONS CREATING STRANDED
COMMUNITIES AND AREAS OF
POTENTIAL MIGRATION
PART 26
WASHINGTON HEARINGS
JANUARY 19, 1942
CONSTITUTIONAL RIGHTS OF DESTITUTE CITIZENS OF
THE UNITED STATES TO MOVE FROM STATE
TO STATE— THE EDWARDS CASE
Printed for the use of the Select Committee Investigating
National Defense Migration
(Utmgress of tI|B Pmteb: plates
HOUSE COMMITTEE INVESTIGATING
NATIONAL DEFENSE MIGRATION
piaaljmgttm, |=L (ft.
To the Addressee:
You will note the omission of Part 26
from this mailing.
Part 26 contains a complete record of the
litigation in the so-called "Edwards case,"
appealed from the courts of California
to the United States Supreme Court and
decided by that Court on November 24, 1941.
The case dealt with the "Constitutional
rights of destitute citizens of the United
States to move from State to State." The
Supreme Court decision affected statutes
in 27 States other than California — statutes
which, in effect, set up immigration bar-
riers at State lines.
Persons or organizations interested in
this subject may obtain a copy of Part 26
by writing the committee or through the
Superintendent of Documents, Washington, D. C.
1
NATIONAL DEFENSE MIGRATION
HEARINGS
BEFORE THE
SELECT COMMITTEE INVESTIGATING
NATIONAL DEFENSE MIGEATION
HOUSE OF REPRESENTATIVES
SEVENTY-SEVENTH CONGRESS
SECOND SESSION
PURSUANT TO
H. Res. 113
A RESOLUTION TO INQUIRE FURTHER INTO THE INTER-
STATE MIGRATION OF CITIZENS, EMPHASIZING THE
PRESENT AND POTENTIAL CONSEQUENCES OF THE
MIGRATION CAUSED BY THE NATIONAL DP:FENSE
PROGRAM, THE EFFECTS OF MIGRATION ON
THE VARIOUS AGRICULTURAL PROGRAMS,
AND THE DEVELOPMENT OF ECONOMIC
CONDITIONS CREATING STRANDED
COMMUNITIES AND AREAS OF
POTENTIAL MIGRATION
PART 26
WASHINGTON HEARINGS
JANUARY 19, 1942
CONSTITUTIONAL RIGHTS OF DESTITUTE CITIZENS OF
THE UNITED STATES TO MOVE FROM STATE
TO STATE— THE EDWARDS CASE
Printed fori the use of the Select Committee Investigating
National Defense Migration
UNITED STATES
GOVERNMENT PRINTING OFFICE
WASHINGTON : 1942
SELECT COMMITTEE INVESTIGATING NATIONAL DEFENSE
MIGRATION
JOHg H. TOLAN, California, Chairman
Tlli^ni?'a-P'' ' ■ / I d A XtT~rr PTTBTT5
JOHN J. SPARKMAN, Alabama FRANK C. OSMERS, Jr., New Jersey
Robert K. Lamb, Staff Director
Leonard A. Thomas, Counsel
CONTENTS
Page
Narrative summary of progress of Edwards case 9969
Exhibit No. 1. Transcript of the Record:
Record from Justice's Court of Marysville Township,
County of Yuba:
Complaint 9974
Demurrer and points and authorities upon demurrer, _ 9974
Amended demurrer 9976
Copy of docket entries 9977
Notice of appeal 9977
{Statement on appeal and order approving- same 9977
Proceedings in Superior Court for the County of Yuba:
Memorandum opinion by Steel, J 9979
Judgment on appeal 9979
Petition for appeal, assignment of errors, and prayer
for reversal • 9980
Order allowing appeal and waiving cost bond 9981
Appellant's designation of record 9981
Statement of points to be relied upon and designation
as to record 9982
Exhibit No. 2. Brief for Kern County Branch of American
Civil Liberties Union, as amicus curiae 9983
The word "indigent" as used in the statute is too indefinite
to supply a reasonable test under police power 9983
Exclusion of citizens of the United States from entering
a State is contrary to the due-process clause of the
fourteenth amendment , 9984
Exhibit No. 3. Statement as to jurisdiction by counsel for
appellant 9986
Exhibit A. Memorandum opinion by Steel, J 9990
Exhibit No. 4. Appellant's brief _ 9991
' I. Opinion below 9991
II. Jurisdiction, 9991
III. Statement of the case 9991
IV. Specification of errors 9991
Point I. The California statute violates the com-
merce clause of the United States Constitu-
tion 9992
Point II. The statute is void on its face and
operates to deprive the appellant of liberty
without due process of law and to deny him
the equal protection of the laws 9998
Exhibit No. 5. Appellee and respondent's brief 10004
I. Preliminary statement 10004
II. Section 2615 of the Welfare and Institutions Code of
California is constitutional because it constitutes
a valid exercise of the police power of the State __ 10004
m
IV CONTENTS
Exhibit No. 5 — Continued. Page
III. Reply to appellant's brief 10007
IV. Conclusion.. 10008
Appendix: Comparative public assistance data —
January 1940 10010
Exhibit No. 6. Reargument ordered 10011
Exhibit No. 7. Brief of the Attorney General of the State of
California on behalf of appellee 10012
The response of the Attorney General to the request of
the Court 10012
The issue presented in the case 10012
The statute does not reflect the actual policy of the State
of California with respect to indigents from other
States — California's actual policy and problem 10013
Welfare and Institutions Code Section 2615 — History
and background 10014
Administrative interpretation of Welfare and Institutions
Code Section 2615 10015
Judicial interpretation of Welfare and Institutions Code
Section 2015 ------ 10016
Conclusions re interpretation of Welfare and Institutions
Code Section 2615 10020
Restatement of the issue presented to the court 10022
The constitutionality of Section 2615 10022
(a) Reference to authority in point 10022
(b) Section 2615 does not contravene the due process
clause of the fourteenth amendment to the
Constitution of the United States 10024
(c) Section 2615 does not contravene the commerce
clause of the Constitution of the United States. 10025
(d) Section 2615 of the Code does not contravene the
privileges and immunities clause of Article IV,
Section 2 of the United States Constitution 10028
(e) Section 2615 of the Code does not contravene the
privileges and immunities clause of the four-
teenth amendment 1 0030
Conclusion 10030
Exhibit No. 8. Supplement to brief of the Attorney General,
of the State of California on behalf of appellee 10032
Exhibit 1. Statement of S. G. Rubinow, Administrator,
California State Relief Administration, on the problem
of interstate migration as it affects the California State
Relief Administration 10032
Exhibit 2. Resolutions of the California State Legislature
re Transient Problem 1933-40 10040
Exhibit 3. Section 2615, Welfare and Institutions Code, as
related to other previsions of the Welfare and Institu-
tions Code of which it is a part 10044
Exhibit 4. Legislative history of Section 2615, Welfare
and Institutions Code 10046
Exhibit 5. Policies established by the counties of the
State of California with reference to eligibility for public
assistance and with reference to the amount of property
a person is permitted to have while receiving public
assistance 1 0048
CONTENTS V
Exhibit No. 8 — Continued.
Exhibit 6. Record of prosecutions in the counties of the
State of California under section 2615 of the Welfare Pago
and Institutions Code 10052
Exhibit 7. Summary of public assistance 10062
Exhibit 8. Summary of statutory operations in California
under Welfare and Institutions Code and State Relief
Administration statutes with particular reference to
employability and residence policies 10064
Exhibit 9. Summary of policies and regulations of the
State Relief Administration with respect to "hardship
and destitution" within the meaning of the various
State relief administration statutes 10068
Exhibit 10. Collection of cases in other States based on
statutes similar to California's Welfare and Institutions
Code, section 2615 10071
Exhibit 11. Collection of cases based on statutes authoriz-
ing the removal of poor and indigent persons from one
county to another or from one State to another, includ-
ing quotation from the dissenting opinion in the Chirillo
case from New York 10074
Exhibit 12. Collection of cases in the United States
Supreme Court discussing the rights of a State with re-
spect to paupers and persons likely to become a public
ch arge 10078
Exhibit 13. Collection of cases discussing the term "in-
digent," et cetera .__ 10085
Exhibit No. 9. Supplemental points and authorities filed by
the Attorney General of the State of California on behalf of
appellee 10088
Exhibit No. 10. Brief of John H. Tolan for the Select Com-
mittee of the House of Representatives of the United States,
appointed pursuant to House Resolution No. 63, April 22,
1940, to investigate interstate migration of destitute citizens,
as amicus curiae 10091
I. Preliminary statement 10091
II . Privileges and immuni ties provision 1 0094
III. Interstate commerce clause 10098
IV. Equal protection of the laws 10104
V. Conclusion 10106
VI. Appendices 10108
Chart No. 1. Comparative analysis of State
statutes prohibiting the migration of poor,
aged, infirm, and indigent persons across State,
county, and municipal boundaries 10109
Chart No. 2. Comparative analysis of State
statutes concerning settlement laws and pro-
visions for interstate cooperation 10113
Typical State an Emigratory law 10114
Typical State settlement law 10115
Typical State statute providing for interstate
cooperation 10116
Exhibit No. 11. Supplemental statement of John H. Tolan,
amicus curiae 10117
VI CONTENTS
Exhibit No. 12. Supplement to brief of John H. Tolan, Page
amicus curiae 10118
Introductory statement 10118
Migration is a dominant characteristic of American life__ 10119
Migration generally proceeds from areas of lesser to areas
of greater economic opportunity 10121
As a process of economic adjustment migration benefits
receiving areas as well as sending areas, and thereby
enhances the national welfare 10124
Migrants have initiative, youth; are highly employable 10126
Within recent years widespread unemployment and desti-
tution have affected migrants with special severity 10128
Migrants have been treated as criminals and vagrants,
and attempts have been made to bar their entrance
into certain States 10131
The plight of the migrant as a national problem has been
recognized by private and public bodies and by the
Federal Government 10135
The ncnresident is generally excluded from public aid 10139
The national-defense program calls for the free mobility
of the able-bodied population 10142
Conclusion 10143
Appendices 10145
A. Charts showing residence requirements for settle-
ment in the various States 1931-40 10146
B. Copy of opinion of U. S. Webb, former attorney
general of California, on the legality of border
patrol 10148
C. Copies of articles from the files of the Los Angeles
Herald-Express relating to the border patrols at
the California State line during 1935-37 10150
D. Copies of Assembly bills (California) No. 2459
and 1356__. ___ 10156
E. Copies of articles from the files of the Florida
Times-Union and New York Times relating to
the border patrols at the Florida State line
1934-37 10159
F. Copy of executive order of Gov. Edwin C.
Johnson, Colorado, dated April 20, 1936 10162
G. Copies of articles from the files of the Denver
Rocky Mountain News relating to the border
patrols at the Colorado State line 1936 10163
H. Opinion of Stephens, District Judge, in the matter
of John Langan v. James E. Davis, as chief of
police of the city of Los Angeles, March 17,
1936 10169
I. Opinion of Burr, Judge, in the matter of Adams
County v. Burleigh County, Supreme Court of
North'Dakota, 1940 10173
J. Excerpt on California Border Patrol from Cali-
fornia State Relief Administration, Transients in
California, San Francisco, 1936, pp. 2437266___ 10177
K. Compilation of all State antiirigratory legislation,
including exclusion laws and removal statutes. _ 10188
CONTENTS VII
Exhibit No. 13. Oral statement of Samuel Slaff, counsel for Page
appellant, before the Supreme Court of the United States__ 10204
Exhibit No. 14. Oral statement of John H. Tolan, amicus
curiae, before the Supreme Court of the United States 10214
Exhibit No. 15. Oral statement of W. T. Sweigert, assistant
attorney general of the State of California, before the
Supreme Court of the United States 10218
Exhibit No. 16. Decision of November 24, 1941, of the
Supreme Court of the United-States 10227
Concurring opinion of Mr. Justice Douglas 10229
Concurring opinion of Mr. Justice Jackson 10231
9970 THE EDWARDS CASE
he had last been employed by the Works Progress Administration.1
The law under which the Administration operates contains a provision
that —
the agency providing the employment shall determine whether such persons are
able to perform the work on work projects to which they can be assigned and no
person shall be employed or retained for employment on any such project whose
work habits are such or work record shows that he is incapable of performing
satisfactorily the work to which he may be assigned on the project (54 Stat. 611,
Public Resolution 88, 76th Cong., 3d sess.).
The Court unanimously rejected the statute, but rendered three
opinions. The principal opinion, read by Justice Byrnes, his first
since taking his seat on the Court in October 1940, held that this
legislation was not a valid exercise of the police power of the State
of California, in that it imposes an unconstitutional burden upon
interstate commerce. Separate concurring opinions were read by
Justice Jackson and Justice Douglas, who was joined by Justices
Black and Murphy, holding that the legislation violated the privi-
leges_ and immunities clause of the fourteenth amendment. The
decision affected the validity of similar statutes in 27 other States.
The committee has followed this litigation with extreme interest,
particularly so because it was an attempt to halt the flow of migration
into the State. By reason of its investigation, the committee has
long been convinced that the problems arising from the migration of
destitute citizens, and more recently those of our citizens seeking
employment in defense industries, are national in scope and do not
permit of diverse treatment by the 48 State governments. This
conviction of the committee has been entirely justified by the decision
of Justice Byrnes, who stated that "the relief of the needy has become
the common responsibility and concern of the whole Nation", and
no State can isolate itself "from difficulties common to all of them."
He went on to cite the words of the late Justice Cardozo that the
Constitution "was framed upon the theory that the peoples of the
several States must sink or swim together, and that in the long run
prosperity and salvation are in union and not division." Each
member of the committee as a body interested in these problems, and
as a thoughtful American, has rejoiced in this Supreme Court decla-
ration that such an un-American exclusion act be invalidated.
The Edwards case came to the attention of the committee in the
summer of 1940, shortly after its creation by the House of Repre-
sentatives. In hearings held in San Francisco in September 1940
R. W. Henderson, Esq., of Bakersfield, Calif., presented for the
record copy of a brief which the Kern County branch of the American
Civil Liberties Union had filed as amicus curiae, when the validity
of this statute was before the Superior Court of the State of Cali-
fornia in and for the county of Yuba. Edwards had been convicted
on February 17, 1940, in the justice's court of Marysville Township,
county of Yuba, of a violation of the aforementioned statute, having
been charged with and found guilty of bringing his wife's brother-in-
law, Frank Duncan, from Spur, Tex., to Marysville, Calif. The case
was appealed to the Superior Court of the State of California. On
June 26, 1940, the Superior Court upheld the judgment of the justice's
1 The name of the Works Process Administration was changed to Work Projects Administration July 1,
1939, by Reorganization Plan No. 1.
NATIONAL DEFENSE MIGRATION 9971
court, and Edwards petitioned that an appeal be allowed to the
Supreme Court of the United States.
The facts involved, stipulated and agreed to by the parties to the
action and as found by the Supreme Court, were as follows:
Fred F. Edwards is a citizen of the United States and a resident of
the State of California. In December 1939 he left his home in Marys-
ville, Calif., for Spur, Tex., with the intention of bringing back to
Marysville his wife's brother,1 Frank Duncan, a citizen of the United
States and a resident of the State of Texas. When he arrived in
Texas, Edwards learned that Duncan had last been employed by the
Works Progress Administration. Edwards thus became aware of the
fact that Duncan was an indigent person and he continued to be
aware of it throughout the period involved in this case. The two
men agreed that Edwards should transport Duncan from Texas to
Marysville in Edwards' automobile. Accordingly, they left Spur on
January 1, 1940, entered California by way of Arizona on January 3,
and reached Marysville on January 5. When he left Texas, Duncan
had about $20. It had all been spent by the time he reached Marys-
ville. He lived with Edwards for about 10 days until he obtained
financial assistance from the Farm Security Administration. During
the 10-day interval he had no employment.
Probable jurisdiction of the appeal was noted by the Supreme Court
of the United States on December 16, 1940. Subsequently, the
case was reached for oral argument before the Court on Monday,
April 28, 1941. Prior to the oral argument, the complete record of the
committee was made available to Samuel Slaff, Esq., counsel for the
American Civil Liberties Union, which was prosecuting the appeal on
behalf of Edwards.
Spurred by his profound interest in migrating American citizens,
and with the unanimous consent of the members of the committee, the
chairman, Hon. John H. Tolan, himself a resident of and Representa-
tive from the Seventh California Congressional District, sought, and
by special leave obtained, permission of the Supreme Court to appear
before it on the oral argument, as amicus curiae, for the purpose of
rendering what assistance he could to the Court by presenting the
pertinent findings of the committee in connection with the interstate
migration of destitute citizens.
Oral arguments were presented on April 28 and 29 by Mr. Samuel
Slaff and by Mr. John H. Tolan, as amicus curiae, for Edwards. No
representative of the county of Yuba, nor of the State of California,
appeared before the Court at this time. On May 5, 1941, the Court
ordered a reargument of the case for Monday, October 13, 1941, at the
same time requesting the attorney general of the State of California to
appear either in person or by his representative to present the views of
the State with particular reference to the judicial or administrative
interpretation by State authorities of the statute involved.
In view of the order for reargument, the chairman respectfully
requested that he be given permission to again appear as amicus
curiae and to file a brief on behalf of the committee. The Court
graciously granted this request.
1 Actually, Frank Duncan was Mrs. Edwards' brother-in-law. Mrs. Edwards and Mrs. Duncan are
sisters.
9972 THE EDWARDS CASE1
As a result, and with the earnest cooperation of Irwin W. Silverman,
Esq., whose services were made available to the committee through
the courtesy of John T. Vance, law librarian of the Library of Congress,
a brief analyzing the legal problems involved was prepared and pre-
sented to the Court. Through the efforts of Leonard A. Thomas,
counsel, and Herbert Roback, member of the staff of the committee,
an analysis was prepared of material bearing on the economic and
social aspects of the case in connection with migration. This, too,
was filed with the Court as a supplementary brief.
On October 21, 1941, the case was reargued before the Supreme
Court by Mr. Samuel Slaff, Mr. John H. Tolan, and W. T. Swcigert,
assistant attorney general, representing the Hon. Earl Warren,
attorney general of the State of California. And on November 24,
1941, the Court rendered the aforementioned decision.
Mr. Chairman, it might be of interest to the committee to know
that Fred Edwards is now employed by the California State Depart-
ment of Agriculture as a fruit inspector in a cannery at San Jose,
Calif., whilst Frank Duncan is employed in national defense production
in a chemical plant at Pittsburg, Calif.
Mr. Chairman, the Edwards case not only struck down a statute
which operated to demean the status of citizens of the United States,
but the decision points the way to a reexamination of all measures by
which our State and Federal governments are attempting to solve the
problems of our migrating citizens. In order that the Congress should
have before it the complete record of this litigation when it considers
these problems, I should like to offer for the record of this committee,
and request that the same be accepted as committee exhibits, the
following documents:
1. Copy of transcript of record, filed with the Supreme Court of the
United States on November 20, 1940.
2. Copy of original brief of American Civil Liberties Union, as
amicus curiae, btfore Superior Court of the State of California.
3. Copy of statement as to jurisdiction, filed with Supreme Court on
November 20, 1940.
4. Copy of appellant's brief, by Samuel Slaff, dated February 17,
1941.
5. Copy of appellee and respondent's brief, by district attorney of
Yuba County, Calif.
6. Copy of order of the Supreme Court directing reargument and
requesting appearance of attorney general of California.
7. Copy of brief of the attorney general of the State of California on
behalf of appellee.
8. Copy of supplement to brief of the attorney general of the State of
California on behalf of appellee.
9. Copy of further supplement to brief of the attorney general of the
State of California on behalf of appellee.
10. Copy of brief of John H. Tolan for the Select Committee of the
House of Representatives of the United States, appointed pur-
suant to House Resolution No. 63, April 22, 1940, to Investi-
gate Interstate Migration of Destitute Citizens, as amicus curiae.
11. Copy of supplemental statement of John H. Tolan, amicus curiae.
12. Copy of supplement to brief of John H. Tolan, amicus curiae.
13. Oral statement of Samuel Slaff, attorney for appellant, before the
Supreme Court of the United States.
NATIONAL DEFENSE MIGRATION 9973
14. Oral statement of Hon. John H. Tolan, amicus curiae, before the
Supreme Court of the United States.
15. Oral statement of W. T. Sweigert, assistant attorney general of the
State of California, before the Supreme Court of the United
States.
16. Copy of decision of November 24, 1941, of the Supreme Court.
The Chairman. We accept this material for the record. 1 should
like to say that we, as members of a committee of the Congress of the
United States deeply interested in this subject, are highly pleased with
the recent decision of the United States Supreme Court. It clarifies
the status and rights of the individual under a democratic form of
government and is in line with recommendations made by this com-
mittee in its general report (H. Kept. 369) and in its first interim
report (H. Rept. 1286).
By its construction of our present laws, the Supreme Court has
simplified this part of the work of our committee, and we feel that it
has given to the country a clearer conception of the rights of the indi-
vidual— especially his right of freedom of movement across State lines,
as well as his right to do business across State fines.
9974
THE EDWARDS CASE
Exhibit No. 1.
TRANSCRIPT OF RECORD
Supreme Court of the United States. October Term, 1940. No. 588. Fred F.
Edwards, Appellant, vs. The People of the State of California. Appeal from the
Superior Court of the State of California in and for the County of Yuba.
Filed November 20, 1940
INDEX
Original
Record frrm Justice's Court of Marysville
Township, County of Yuba 1
Complaint 3
Demurrer and points and authorities upon
demurrer 5
Amended demurrer 12
Copy of docket entries 14
Notice of appeal 15
Statement on appeal and order approving
same 16
Original
Proceedings in Superior Court for the County
of Yuba 19
Memorandum opinion by Steel, J 19
Judgment on appeal 21
Petition for appeal 22
Assignment of errors 23
Order allowing appeal and waiving cost
bond 26
Citation (omitted in printing) 28
Designation of record 45
Clerk's certificate (omitted in printing) 46
Statement of points to be relied upon and desig-
nation as to printing record 47
[fols. 1-3] In the Justice's Court of Marysville Township, County of Yuba
The People of the State of California, Plaintiff,
Against
Fred F. Edwards, Defendant.
Complaint — Filed February 7, 1940
Before L. J. Mulvany Justice of the Peace.
J. E. Barton being duly sworn upon oath, accuses Fred F. Edwards of a Mis-
demeanor to wit: Violation of Sec. 2615 Welfare and Institutions Code of the State
of California, (Stats. 1933, Ch. 761 & Amendments thereto) committed as follows,
to-wit: that on or about the 3rd day of January, 1940, and within the limits of the
County of Yuba, in the State of California, the said defendant Fred F. Edwards
did then and there wilfully and unlawfully bring and/or assist in bringing into the
State of California an indigent person, to-wit, Frank Duncan, who is not and was
not at said time a resident of the State of California, being at said time a resident
of Spur, Dixon County, Texas, and the said defendant knowing said Frank
Duncan to be an indigent person;
All of which was and is contrary to the form, force and effect of the Statute in
such case made and provided, and against the peace and dignity of the people of
the State [fol. 4] of California.
J. E. Barton.
Subscribed and sworn to before me at the County of Yuba, the 7th day of
February, 1940. L. J. Mulvany, Justice of the Peace, Marysville
Township, Yuba County, California. (Seal.)
[File endorsement omitted.]
[fol. 5] In the Justice's Court of Marysville Township, County of Yuba
Demurrer — Filed February 17, 1940
Defendant demurs to the complaint herein upon the following grounds:
I
The facts stated in said complaint do not constitute a public offense.
II
The Court has no jurisdiction of the offense charged in said complaint.
NATIONAL DEFENSE MIGRATION 9975
III
The complaint contains matters which, if true, would constitute a legal justi-
fication or excuse of the offense charged, or other legal bar to the prosecution.
IV
That more than one offense is charged in said complaint and the same are not
connected together in their commission and are not of the same class of crime
or offense as is excepted by the provisions of Section 954 of the Penal Code of
California.
V
The complaint does not substantially conform to the requirements of Sections
950, 951 and 952 of the Penal Code of California, or to any of said sections.
Wherefore, defendant demands that said complaint be dismissed.
[fol. 6] Philip Adams, W. M. Collins, Attorneys for Defendant.
We, the undersigned attorneys for defendant, do hereby certify that the above
and foregoing demurrer is well taken in point of law and is not interposed for
purposes of delay.
Philip Adams, W. M. Collins, Attorneys for Defendant.
[fol. 7] Points and Authorities in Support of Demurrer
Inasmuch as the statute declares it to be a crime for a person to bring or assist
in bringing an indigent person into the State it makes it a crime for him to aid,
abet, encourage, assist or advocate by action, speech or press the exercise by
the indigent person of a lawful right guaranteed to him by the Federal and State
constitutions, namely, the freedom of movement or locomotion. It therefore
contravenes freedom of speech and press and is void as contrary to public policy.
We submit, therefore that the statute is invalid, void and unconstitutional in
the following respects, to- wit: —
1. The statute as construed and as applied to defendant is void inasmuch as
it attempts to regulate commerce between the States in violation of the "com-
merce clause" of Section 8 of Article I of the Constitution of the United States.
2. The statute as construed and as applied to defendant is void as it attempts
to regulate the migration of persons within and between the States in violation
of the provisions of Section 9 of Article I of the Constitution of the United States.
3. The statute as construed and as applied to defendant is void as it is in
substance an ex-post facto law or retrospective statute forbidden by the provisions
of Section 9 of Article I of the Constitution of the United States and Section 16
of Article I of the California constitution.
4. The statute as construed and as applied to defendant is void as a denial of
free speech and press guaranteed by [foL_8] the provisions of the 1st Amendment
of the Federal constitution and the provisions of the 14th Amendment which
prohibits a state from interfering with the exercise thereof.
5. The statute as construed and as applied to defendant is void as it punishes
and denies free speech and press guaranteed by the provisions of Section 9 of
Article I of the California constitution and by the 1st Amendment of he federal
constitution, which liberties are guaranteed by the 14th Amendment free from
interference by the State.
6. The statute as construed and as applied to defendant is void inasmuch as it
denies to defendant freedom of speech, press, and movement or locomotion with-
out due process of law and denies to him the equal protection of the law in viola-
tion of the due process clause and the equal protection clause of the 14th Amend-
ment of the federal constitution and Section 13 of the California constitution.
7. The statute as construed and as applied to defendant is void as it abridges
the privileges and immunities (freedom of speech, press and movement) in viola-
tion of Section 1 of the 14th Amendment of the federal constitution and in viola-
tion of the provisions of Section 2 of Article IV of the federal constitution.
8. The statute as construed and as applied to defendant is void inasmuch as it
amounts to a denial of the right to assemble, and to petition the government for
redress, in violation of the 1st Amendment of the federal consitution, [fol. 9] and
in violation of the provisions of Section 10 of Article I of the California constitu-
tion which right is protected from state interference under the due process and
equal protection clauses of the 14th Amendment of the fedeial constitution.
9976 THE EDWARDS CASE
9. The statute as construed and as applied to defendant is void inasmuch as
any punishment it inflicts for aiding another person to exercise a guaranteed con-
stitutional right would amount to a cruel and unusual punishment forbidden by
Section G of Article I of the California constitution and by Section 10 of Article I
of the federal constitution and by implication by the 14th amendment of the
federal constitution.
10. The statute as construed and as applied to defendant is void as being
contrary to public policy inasmuch as it punishes a person for assisting or advocat-
ing the exercise of a lawful action guaranteed free from interference by the state
and federal constitutions, namely, freedom of speech, press, and movement.
1 1 . The statute as construed and as applied to defendant is void as in violation
of the provisions of Section 21 of Article I of the California constitution.
12. The statute is void inasmuch as a violation thereof is made punishable as
a misdemeanor under Section 19 of the Penal Code of California which provides
for the assessment of a fine and imprisonment, or both, and inasmuch as it applies
to corporations as well as to individuals it is necessarily void since a corporation
cannot be jailed.
[fol. 10] 13. Because of non-user since its original enactment the "Doctrine of
desuetude" applies and the statute is a dead letter.
14. The statute is invalid and void because it violates the provisions of Section
24 of Article IV of the California constitution in that it embraces more than one
subject and the subject is not expressed in its title.
15. The statute is void and invalid as a local or special law violative of the pro-
visions of Section 25 of Article IV of the California constitution, subdivision 19,
and for the further reason that it lacks a uniform operation and hence violates
Section 11 of Article I of the California constitution.
16. The statute is void inasmuch as it is vaeue, indefinite, uncertain and
ambiguous in that it does not appear therein or therefrom how a corporation to
which if applies can be sent to jail for a violation thereof.
17. The statute as construed and as applied to defendant is void in that it is
an unreasonable, arbitrary and oppressive expression of police power not based
upon any emergency condition that threatens the public health, safety or morals
or endangers the peace or safety of the state.
18. The statute as construed and as applied to defendant is void as an unlawful
interference with family relationships since it prevents a person from providing
for and assisting members of his family in domestic economy.
Respectfully submitted, Philip Adams, W. M. Collins, Attorneys for
Defendant,
[fol. 11] [File endorsement omitted]
[fol. 12] In the Justice Court of Marysville Township County op Yuba
Amended Demurrer — Filed February 17, 1940
Defendant demurs to the complaint herein upon the following grounds, amend-
ing and supplementing his original demurrer herein.
Defendant refers to and incorporates herein as fully as though set forth in
full, all of the grounds set forth in his original demurrer filed in this action.
II
That the statute upon which this complaint is founded is unconstitutional and
void, upon the grounds and for the reasons set out in the Point* and Authorities
set forth, and attached to, the original demurrer in this action. Said points and
authorities are referred to and incorporated in this Amended Demurrer as full}'
as though copied herein at full length.
Wherefore, defendant demands that said complaint be dismissed.
Philip Adams, Attorney for Defendant.
Stipulation
It is hereby stipulated by and between the attorneys for the plaintiff and
defendant in this action of the People of [fol. 13] the State of California against
Fred F. Edwards, that the within Amended Demurrer may be filed and received
NATIONAL DEFENSE MIGRATION 9977
by the court with like effect as though all of the matters therein had been con-
tained in the original Demurrer.
Joseph L. Heenan, District Attorney of Yuba County, Attorney for the
Plaintiff. Philip Adams, Attorney for Defendant.
Receipt is hereby acknowledged of a copy of the Original Demurrer, a copy of
the Points and Authorities, and of the Amended Demurrer in this action, this 17th
day of February, 1940.
Joseph L. Heenan, District Attorney of Yuba County.
[File endorsement omitted.]
[fol. 14] In the Justice's Court op Marysville Township, County op Yuba
Copy of Docket Entries
Complaint of J. E. Barton, Charging Misdemeanor Viol., Sec. 2615, Stats. 1933
Ch. 761 Amend. Committed at Yuba County, Jan. 3rd., 1940, Joseph L. Heenan,
Philip Adams.
Feb. 7. Complaint filed warrant of arrest issued and delivered to Sheriff McCoy.
Feb. 9. Arrainged, rights explained, time set to plea, Feb. 13, 4 P. M. out on
$1000.00 Bail Bond.
Feb. 13. Time set to plea Feb. 17, 1940, 10 A. M.
Feb. 17. Demurrer filed, demurrer over-ruled.
Trial held, witness Fred F. Edwards and Frank Duncan.
The Court found Fred F. Edwards guilty as charged.
Edwards waived time.
The Court sentenced Edwards to serve six months in the Yuba County
Jail, sentence suspended.
L. J. Mulvany, J. P.
Feb. 17. Amended demurrer filed.
Feb. 1 7. Verbal notice to appeal entered.
F'>b. 23. Notice of Appeal filed.
Mar. 1. Statement on appeal filed.
[fol. 15] In the Justice's Court of Marysville Township, County of Yuba
Notice op Appeal
To the Clerk of the above-entitled Court, to the Plaintiff above-named and to
Joseph L. Keenan, Esq., District Attorney of Yuba County, Attorney for Plaintiff:
Please take notice that Fred F. Edwards, the defendant above-named, hereby
appeals to the Superior Court of the State of California, in and for the County of
Yuba, from that certain judgment of conviction and sentence of imprisonment
for six months in the County Jail suspended under certain conditions, rendered
and entered against him and recorded in the above-entitled action by this court
on February 17, 1940, and from the whole thereof, on questions of fact and law
and each of them. This notice is given in addition to oral notice of appeal given
in open court on said 17th day of February, 1940.
Dated: February 19, 1940.
Philip Adams,
Attorney for Defendant.
[fol. 16] In the Justice's Court of Marysville Township, County of Yuba
Statement on Appeal and Order Approving Same
I
Defendant having been convicted of a violation of Section 2615 of the Welfare
and Institutions Code of the State of California, appeals from said judgment and
specifies as grounds on which he intends to rely upon this appeal as follows:
The facts stated in said complaint and the evidence adduced, as shown in the
stipulation herein, does not constitute a public offense because the said statute is
void as being in conflict with the Constitution of the State of California and the
United States Constitution. The grounds on which said statute is unconstitu-
60396 — 42— pt. 26 2
9978 THE EDWARDS CASE
tional are fully set forth in the demurrer and amended demurrer heretofore filed
in this action on February 17, 1940, and these said grounds are referred to and
incorporated herein as fully as though set out in full.
Appellant further appeals from the order of the court in overruling this demurrer
at the time of trial.
II
It is stipulated and agreed to between the parties to this action that the facts
involved in this case are as follows:
The appellant, Fred F. Edwards, a citizen of the United States, and a resident
of the State of California, left Marysville, California, on December 21, 1939, for
Spur, Texas. The object of his trip was to bring his wife's brother, Frank Duncan,
a citizen of the U. S. and resident of Texas, back to Marysville. Appellant arrived
at Spur, Texas, on December 24, 1939, and learned that Duncan then had no job
[fol. 17] and had last been employed by the W. P. A. Appellant at that time
learned that Duncan was an indigent person and at all times mentioned herein,
appellant knew Duncan to be indigent. It was agreed between Duncan and
appellant that appellant would drive Duncan from Spur, Texas, to Marysville,
California, in appellant's car. Appellant and Duncan left Spur, Texas, on Jan-
uary 1, 1940, entered California from Yuma, Arizona, on January 3, 1940, and
arrived jn Marysville on January 5, 1940. At the time Duncan arrived in Marys-
ville he was without funds and lived at appellant's home until he was given
assistance by the Farm Security Administration about ten days after his arrival
in Marysville. Duncan had no employment after his arrival in California, until
after he was given assistance by the Farm Security Administration. Duncan had
about Twenty Dollars ($20.00) when he left Spur, Texas; this money was all
spent before his arrival in Marysville.
Dated: February 23, 1940.
Joseph L. Keenan, District Attorney of Yuba County, Attorney for
Plaintiff. Philip Adams, Attorney for Appellant, Fred F. Edwards.
fol. 18] Order
I hereby certify that the above Statement on Appeal has been settled and
approved by me this 1st day of March, 1940.
L. J. Mulvany,
Justice of the Peace.
NATIONAL DEFENSE MIGRATION 9979
[fol. 19] In the Superior Court of California
In and for the County of Yuba
The People of the State of California, Plaintiff and Respondent
vs.
Fred F. Edwards, Defendant and Appellant.
Memo Opinion — Filed June 25, 1940
The defendant and appellant herein was convicted in the Justice Court of a
misdemeanor, to wit: a violation of Section 2615 of The Welfare and Institutions
Code of this State which reads as follows:
"2615. Willful act a misdemeanor. Every person, firm, or corporation or
officer or agent thereof that brings or assists in bringing into the State any indigent
person who is not a resident of the State, knowing him to be an indigent person,
is guilty of a misdemeanor."
'I he case is before this Court on a stipulation of facts and the question presented
the validity of the statute under which the defendant was adjudged guilty.
The issue as to the constitutionality of this statute has been exhaustively
argued in the briefs filed, including briefs of amicus curiae, and it appears that the
higher courts have not as yet had occasion to pass upon such a statute as the one
here involved. In the numerous decisions cited, dicta [fol. 20] is to be found
which strongly suggests that such legislation may be violative of the Privileges
and Immunities clause of the 14th Amendment in restricting the right of citizens
to pass freely from state to state as well as violative of other provisions of the
United States Constitution and the California Constitution.
The Court regards the question as close and in view of that, as a trial court,
it is constrained to uphold the statute as a valid exercise of the Police Power of
the State of California.
The question is of importance to the public, considering times and conditions,
and should be finally settled by the higher courts. I he present holding of this
Court makes possible a further appeal to and review by the courts of higher
jurisdiction.
The judgment will therefore be affirmed and it is so ordered.
Warren Steel, Judge.
Dated: June 24th, 1940.
[File endorsement omitted.]
[fol. 21] In Superior Court of California
In and for the County of Yuba
Judgment on Appeal — Filed June 27, 1940
This cause having been called and coming on for hearing on the statements
and records on appeal, on arguments of counsel for both Appellants and Kespond-
ent heretofore submitted on written briefs, and being then submitted and taken
under advisement, and all and singular the law and premises having been fully
considered, and the opinion of the Court herein having been made and filed;
Whereupon it is ordered, adjudged and decreed by the Court that the judg-
ment of conviction and the order overruling the demurrer and amended demurrer
of the Justice's Court of Marysville Township, County of Yuba, State of Cali-
fornia, in the above-entitled cause, be and the same are hereby affirmed.
Dated this 26 day of June, 1940.
Warren Steel, Judge of the Superior Court.
[File endorsement omitted.]
9980 THE EDWARDS CASE
[fol. 22] Supreme Court of the United States
[Title omitted]
Petition for Appeal, Assignment of Errors and Prayer for Reversal —
Filed September 21, 1940
Considering himself aggrieved by the final judgment and decision of the Superior
Court of the County of Yuba, State of California, in the above-entitled cause,
the petitioner hereby prays that an appeal be allowed to the Supreme Court of
the United States.
Summary Statement of the Case
The validity of a statute of the State of California within the meaning and
intent of Section 237 (a) of the Judicial Code of the United States is drawn in
question upon the ground that said statute is repugnant to the Constitution of the
United States. The statute in question was enacted by Chapters 369 and 464,
Statutes of California, on June 21, 1937, and is Section 2615 of the Welfare and
Institutions Code of California, and reads as follows:
"Section 2615: Wilful Act a Misdemanor. Every person, firm or corporation,
or officer or agent thereof that brings or assists in bringing into the State any
indigent [fol. 23] person who is not a resident of the State, knowing him to be an
indigent person, is guilty of a misdemeanor. (1937.)
The appellant was convicted in the Justice's Court of Marysville Township,
Yuba County, California, of a violation of the foregoing statute, having been
charged with and found guilty of bringing his wife's brother from Spur, Texas,
to Marysville, California.
This conviction was appealed to the Superior Court of the State of California,
for Yuba County and that court affirmed the conviction of the Justice's Court.
The judgment and decision of the Superior Court was made and entered on the
26th day of June, 1940, and is a final judgment by the highest court of the State
of California in which a decision could be had in this proceeding. Said judgment
and decision of the Superior Court rejected the contentions of appellant that the
statute under which he was charged, and for violation of which he was found
guilty, was and is on its face and as applied and enforced in the case of appellant
void and repugnant to the Constitution of the United States.
Assignment of Errors
The appellant assigns the following errors in the proceedings in this case:
1. The Superior Court erred in its judgment and decision in that it failed to
rule and decide that Section 2615 of the Welfare and Institutions Code of Cali-
fornia was and is repugnant to the Constitution of the United States and Article
[fol. 24] I, Section 8 thereof, as an attempt by the State of California to regulate
commerce among the several States.
2. The Superior Court erred in affirming the judgment of conviction because
said judgment deprived appellant of his liberty without due process of law, in
violation of Section 1 of Amendment XIV of the United States Constitution, in
that Section 2615 of the Welfare and Institutions Code of California, on its face
and as applied and enforced against the appellant, violates said Section 1 of
Amendment XIV of the United States Constitution.
3. The Superior Court erred in its decision and judgment in failing to adjudge
Section 2615 of the Welfare and Institutions Code of California, on its face and
as enforced and applied to appellant, to be unconstitutional and to deprive
appellant of due process of law by denying him freedom of speech, press, movement,
residence, and bv punishing appellant for assisting another to exercise the latter's
constitutional rights or privileges.
4. The Superior Court erred in affirming the judgment of conviction because
the statute under which appellant was convicted abridges the privileges or im-
munities of citizens of the United States in violation of Section 1 of Amendment
XIV, and Article IV, Section 2, of the United States Constitution in that, by
making it a misdemeanor to bring or assist in bringing into the State of California
one known to be indigent, it limits, abridges or denies the right or privilege of
unhindered movement from one place to another.
[fol. 25] 5. The Superior Court erred in affirming the judgment of convictioii
because Section 2615 of the Welfare and Institutions Code of California and ap-
pellant's conviction thereunder constituted a denial to him of due process and of
equal protection of the laws in violation of Section 1 of Amendment XIV of the
United States Constitution, in that under the statute in question one who brings-
NATIONAL DEFENSE MIGRATION 9981
or'assists infringing a person known to be indigent into California is guilty of a
misdemeanor while neither under said statute nor under any other California
statute is it a crime for an indigent person to come into California and no penalty
attaches to him upon entrance in California.
Prayer for Reversal
For which errors appellant prays that the judgment of the Superior Court of
the State of California, in and for the County of Yuba, dated June 26, 1940, in
the above-entitled cause, be reversed, and a judgment rendered in favor of the
appellant, and for costs.
Samuel Slaff, Philip Adams, Wayne M. Collins, Attorneys for Appellant.
[File endorsement omitted.]
[fol. 26] Supreme Court of the United States
Order Allowing Appeal and Waiving Cost Bond — Filed September 21, 1940
Whereas, the appellant in the above-entitled matter having prayed for the allow-
ance of an appeal in this cause to the Supreme Court of the United States from the
judgment made and entered in the above-entitled matter by the Superior Court
of the State of California, in and for the County of Yuba, on the 26th day of June,
1940, and from each and every part thereof; and
Whereas, the appellant having presented his petition for appeal, assignment or
errors, prayer for reversal, and statement as to jurisdiction, pursuant to the
statutes and rules of the Supreme Court of the United States in such cases made
and provided;
Now, therefore, it is ordered that an appeal be, and the same is, hereby allowed
to the Supreme Court of the United States from the Superior Court of the State of
California, in and for the County of Yuba, in the above-entitled cause, as provided
by law; and
It is further Ordered that the clerk of the Superior Court of the State of Cali-
fornia, in and for the County of Yuba, shall prepare and certify a transcript of
the record, proceedings, and judgment in this cause and transmit the same to the
Supreme Court of the United States so that he shall have the same in said Supreme
Court within sixty days of this date; and
It is further ordered that the filing of a bond as security [fol. 27] for costs on
appeal is hereby waived.
Dated this 21st day of September, 1940.
Warren Steel, Judge of the Superior Court of the State of California, in
and for the County of Yuba.
[File endorsement omitted.]
[fols. 28-44] Citation in usual form, filed Sept. 21, 1940, omitted in printing.
[fol. 45] In Superior Court of Yuba County
Appellant's Designation of the Record, Proceedings and Evidence To Bb
Contained in the Record on Appeal — Filed September 24, 1940
Appellant, defendant in the above-entitled action, designates the following
portions of the record, proceedings and evidence to be contained in the record on
appeal in the above-entitled action:
(1) The Justice's Court Complaint
(2) Demurrer of Defendant
(3) Points and Authorities in Support of Demurrer
(4) Amended Demurrer
(5) Copy of Docket in Justice's Court
(6) Notice of Appeal to Superior Court
(7) Statement on Appeal to the Superior Court
(8) The opinion of the Superior Court affirming judgment of conviction in the
Justice's Court
(9) Judgment on Appeal in the Superior Court
(10) Petition for Appeal and the Order Allowing said Appeal
9982 THE EDWARDS CASE
(11) Citation on Appeal with acknowledgement of service
(12) Statement as to Jurisdiction
(13) This Designation
Samuel Slaff, Philip Adams, Wayne M. Collins.
[File endorsement omitted.]
[fol. 46] Clerk's Certificate to foregoing transcript omitted in printing.
[fol. 47] Supreme Court of the United States
Statement of Points to be Pelied Upon and Designation as to Record —
Filed December 5, 1940
The appellant states that he believes the entire record to be necessary for the
consideration of the case and further states that the points upon which he intends
to relv are as follows:
1. The statute under which appellant was convicted (Welfare and Institutions
Code of the State of California, Section 2615) is unconstitutional on its face, and
is construed and applied in this case, in that it violates Section 8 of Article I of
the United States Constitution by assuming to regulate commerce among the
several states.
2. The aforesaid statute, on its face and as construed and applied in this case,
violates Section I of the XlVth amendment to the Constitution of the United
States in that it:
(a) Abridges the privileges and immunities of the citizens of the United States,
of whom appellant is one.
(b) Deprives appellant of his liberty without due process of law.
(c) Denies to appellant the equal protection of the laws.
(d) Punishes the exercises of freedom of speech, of press, of movement and of
residence.
[fol. 48] (e) Punishes appellant for assisting an indigent in the latter's exercise
of his constitutional rights or privileges.
(f) Punishes appellant for bringing or assisting in bringing an indigent, not a
resident of California, into California while entrance into California by the self
same indigent is no crime under the aforesaid statute or any California statute.
(g) Is so broad and inclusive in its terms as to penalize bringing or assisting
in bringing an indigent, not a resident of the state, into California no matter how
worthy or proper the purpose, motive or intent may have been in bringing the
indigent into California.
3. The aforesaid statute, on its face and as construed and applied in this case,
violates Article IV, Sec. 2, sub-division 1 of the United States Constitution.
4. The Superior Court erred in failing to reverse the judgment of conviction
of appellant.
Dated, December 4, 1940.
Samuel Slaff, 70 Pine Street, New York, N. Y., Attorney for Appellant.
United States of America,
City, County & State of New York, ss:
Celia Sheff, being duly sworn, deposes and says: that on the 4th day of Decem-
ber, 1940 affiant enclosed in an envelope the above designation of the record and
statement of points upon which appellant intends to rely and sealed said [fol. 49]
envelope and addressed the same as follows, to wit: "Joseph L. Heenan, Esq.,
District Attorney, Yuba County, Marysville, California" and on said day depos-
ited the same so addressed and with the postage thereon fully prepaid in a Post-
office box regularly maintained by the United States Government at 70 Pine
Street, Borough of Manhattan, City and County of New York.
The affiant is over the age of 21 years.
Celia Sheff.
Sworn to before me this 4th day of December, 1940. John W. Dooley,
Notary Public, Bronx County* N. Y.
[fol. 50] [File endorsement omitted.]
[Endorsed on Cover:] File No. 44,937 California, Superior Court, County of
Yuba, Term No. 588. Fred F. Edwards, Appellant, vs. The People of the State
of California. Filed November 20, 1940. Term No. 588 O. T. 1940.
NATIONAL DEFENSE MIGRATION 9983
Exhibit No. 2
BRIEF FOR KERN COUNTY BRANCH OF AMERICAN CIVIL
LIBERTIES UNION, AS AMICUS CURIAE
In the Superior Court of the State of California in and for the County
of Yuba
People, Plaintiff and Respondent, vs. Fred F. Edwards, Defendant and
Appellant
Our sole contention in this case is that the statute for a violation of which
appellant was convicted is invalid. Section 2615 of the Welfare and Institutions
Code reads as follows:
"2615. Willful act a misdemeanor. Every person, firm, or corporation, or
officer, or agent thereof that brings or assists in bringing into the State any
indigent person who is not a resident of the State, knowing him to be an indigent
person, is guilty of a misdemeanor."
Under any possible construction of the statute it is an unlawful interference
with foreign commerce. The statute applies to bringing indigents into the State,
whether from foreign countries or from other States. The complaint does not
specify whether the indigents were brought in from Mexico by way of the Pacific
Ocean or from a State adjoining California.
Article I, section 8, subdivision 3 of the Constitution of the United States pro-
vides "Congress shall have power — to regulate commerce with foreign nations,
and amona; the several States, and with the Indian Tribes."
In The State v. S. S. Constitution (42 Calif. 572), the court said:
"Whatever doubts may originally have existed in respect to the concurrent
power of Congress and the several States over this subject, it is now well settled
that when Congress undertakes by its legislation to regulate a particular branch
of our foreign commerce, its authority in this respect is paramount, and is exclu-
sive of all action by the several States on that particular subject."
The court in this case cites and follows the earlier case of People v. Raymond
(34 Calif. 495). In that case a State statute imposing a tax was held unconstitu-
tional because in conflict with Federal legislation upon the same subject. Since
the decision of the Steamship Constitution case Congress has fully covered the
subject of the admission of undesirable aliens (U. S. Code, title 8, sec. 133).
"The following classes of aliens shall be excluded from admission into the
United States: * * * (B) Paupers * * * (I) Persons likely to become
public charges" (Gegiow v. Uhl 239 U. S. 3).
Whatever else may be said concerning the statute, it is difficult to see any
weakness in the above argument.
II. THE WORD "INDIGENT" AS USED IN THE STATUTE IS TOO INDEFINITE TO SUPPLY
A REASONABLE TEST UNDER POLICE POWER
The dictionaries and the courts have loosely stated that the word "indigent" is
synonymous with "pauper," "poor person," or "needy person." For illustrations
of the definitions of these terms see the note to Peabody v. Town of Holland (98
A. L. R. 866). (See also 48 Cor. Jur. 428, Test and Notes.)
The word "pauper" seems to be more definite in its meaning than the word
"indigent." However, even the word "pauper" has not a sufficiently definite
meaning to guide us in cases of this kind. In the case above cited from A. L. R.
it was held that the condition of the person relieved did not of itself establish his
right to poor relief, and that he could not be classed as a pauper until relief had
been granted by the popular constituted legal authority.
It has been said that adult persons of sound mind cannot be made paupers
against their will and to constitute pauper supplies the supplies must have been
applied for or received with a full knowledge of their nature {Bucks-port v. dish-
ing (69 Me. 224); Sheboygan Co. v. Sheboygan Falls (130 Wis. 93, 109 N. W.
1030).)
Families of absent soldiers in the service of the United States when standing
in need of assistance do not incur the disability of paupers by receiving supplies
from the cities or towns where such soldiers reside at the time of their enlistment
(Veesey v. China (50 Me. 518), and Amos v. Smith (51 Me. 602).)
9984 THE EDWARDS CASE
It has frequently been said (see cases last above cited) that one cannot be
made a pauper against his will. In this sense the word "pauper" is limited to
those entitled to receive and actually receive poor relief, but even in such cases
all persons receiving poor relief are not paupers. See two cases last above cited.
Tlie word "indigent" or indigent person includes those who are not paupers. It
has heen held that a Confederate soldier who from poverty or from age or in-
firmity is unable to provide for himself js within a statute relating to relief of
"indigent persons" although he has a parent or child able and willing to support
him and does not come within the statute making provisions for paupers (Clark v.
Walton (137 Ga. 277, 73 S. E. 293)).
In the case of Goodall v. Briqhl (11 Cal. App. (2) 540) the court was called
upon to construe the phrase "indigent persons in need of hospitalization." It
was he'd that a person who had not sufficient means after providing for those
dependent upon him to pav the charges of commercial hospitalizat on was entitled
to hospitalization under the statute.
1 he word "indigent" occurs several times in the Welfare and InsMtutions Code.
It ><• nowhere defined. Section 2500 of that code provides as follows:
"2500. Persons to whom duty extends. — Every county and every city and
county shall relieve and support all incompetent, poor, indigent persons and those
incapacitated by age, disease, or accident, lawfully resident therein, when such
persons are not supported and relieved by their relatives or friends, or by their
own means, or by State hospitals, or private institutions."
"Indigent persons" are but one class of those who are to receive relief. In
Gcqiow v. Vhl (239 U. S. 3), the Federal immigration statutes provided "for the
exclusion of paupers" and persons "likely to become public charges." The aliens
arrived at the port of San Francisco intending to go to Port1 and, Oreg., to seek
employment. The Commissioner of Immigration found that due to the con-
gestion of the labor market at Portland the immigrants would probably not
secure employment and he therefore held that they were likely "to become public
charges." The Supreme Court of the United States ordered the aliens admitted,
saying that the conditions of the labor market could not justify a finding that
persons were likely to become public charges. The Supreme Court also pointed
out tint the word "pauper" is to be distinguished from a person likely to become
a public charge.
If the State may constitutionally exclude persons on the ground that their
admission will injuriously affect the pub'ic health, peace, or welfare, the words
"indigent pet sons" are not sufficiency definite to bring the class so described
within the class which thus may be excluded.
III. EXCLUSION OF CITIZENS OF THE UNITED STATES FROM ENTERING A STATE IS CON-
TRARY TO THE DUE-PROCESS CLAUSE OF THE FOURTEENTH AMENDMENT
Sir William Blackstone said in his Commentaries of the Law of England,
book T, of the Rights of Persons, pages 134 (p. 86 of vol. I, Cooley's edition):
"II. Next to personal security, the law of England regards, asserts, and pre-
serves, the personal liberty of individuals; this personal liberty consists in the
power of locomotion, of changing situation, or moving one's person to whatsoever
place one's own inclination may direct, without imprisonment or restraint, unless
by due course of law."
Willoughby, in his treaties on The Constitution of the United States puts it
succinctly as follows:
"By the mere act of taking up residence within a State, which the State cannot*
prevent, a Federal citizen, ipso facto, becomes a citizen of the State * * *
The Federal Constitution fixes that once for all" (vol. I, p. 345).
The carriage of a person from one State to another is interstate commerce
whether it be free or for hire (Cammenetli v. U. S. (242 U. S. 470)).
The Arizona alien-labor law forbidding an employer of eight or more persons
to employ over a certain percentage of aliens, was held to violate the fourteenth
amendment in Trvnx v. Rnich (239 U. S. 531).
A statute of the State of Nebraska forbidding the teaching of foreign languages
was held to vioTate the right of teachers to pursue a lawful calling (Meyer v.
Nebraska (262 U. S. 390).
"The liberty mentioned in that amendment [the fourteenth! means the right
of the citizen to live and work where he will" (Allgeyer v. Louisiana (165 U. S.
578, 589)).
NATIONAL DEFENSE MIGRATION 9985
In Hague v. C. I. O. (101 F. (2d) 774, 307 U. S. 496), the mayor of Jersey City
objected to citizens of other States agitating in New Jersey. The "Federal courts
heid that citizens of New York had the same right as the citizens of New Jersey.
The Articles of Confederation provided (art. IV):
"The better to secure and perpetuate mutual friendship and intercourse among
the people of the different States in this Union, the free inhabitants of each of
these States, paupeis, vagabonds, and fugitives from justice excepted, shall be
entitled to all privileges and immunities of free citizens in the several States."
The founding fathers, however, omitted all exceptions save and except that the
Constitution provided for the extradition of fugitives from justice.
The Constitution of the United States was adopted to do away with the petty
rivalries and jealousies between the several States. In recent years the spirit
of localism has revived. "Trade-at-home campaigns" have become almost as
militant as "Buy American." In New York it was proposed that a certain percent
of pari-mutual employees must be citizens of New York. John Kieran, whose
voice on Information Please is known to every radio addict, commented as
follows in the New York Times of March 13, 1940:
"How far can we go in that direction? If it's a fundamentally sound principle
it should be carried out in all directions. Get after the lawyers who go to court
in New York City but live in New Jersey. Shoo away the writers who sell stories
in New York City but live amid the wild reaches of Connecticut. Check upon
the big butter and egg men, the salesmen in shoe stores, the butchers and bakers
and candlestick makers. If there are too many undesirable aliens from New
Jersey working in a big New York department store, heave, out the excess of
interlopers and throw the president of the concern into the calaboose. If the
New York newspaper has an excess of reporters residing in Connecticut, picket
the printery.
"After that's settled, the residential employment struggle can get down to
ordinances protecting residents of one city against invaders from a nearby city
and finally it would be a street-to-street struggle * * *. A man would have
to live in the street in which he worked."
In. Fortune for February 1940, in an article entitled "The U. S. A. * * *
This Enigmatic, Paradoxical, the Greatest Nation on Earth * * *. What Is
the Secret of Its Wealth?", the author points out that the vast extent of our
country and the absence of economic barriers among the several States and
between the different sections have given this country its unique position. "If
the political boundaries of our States coincided with the economic boundaries,
then the area now known as the United States would be far less potent, far less
rich than it is. Then New England would be struggling for food, and in the
Northwest an automobile would be as rare as in other agricultural countries that
have difficulty accumulating foreign exchange * * *.
"This action is like that within a huge retort in which dissimilar substances
mix and compound to create a new substance greater than the sum of its com-
ponent parts. That new substance is what we know as the U. S. A. This is why
the United States has become great * * *.
"And it is significant that all the serious problems that now confront the United
States are problems of abundance, not poverty. They are problems of maintain-
ing a high standard of living; of an overwhelming desire to keep democracy and
make it work, even at the price of suffering."
We may become annoyed with the influx of the populations of other States.
In our annoyance we may slap out at somebody who has contributed to this influx.
If, however, we understand the underlying forces in American civilization, we
will realize that no petty attempt to punish someone for bringing undesirables
into this State will solve any problem. Students of constitutional law will under-
stand that the principles that have actuated America's development as a single
nation have now become part of our fundamental law and that our constitutional
system will not tolerate the provincial spirit which has stimulated the statute in
question, or the inaccurate language in which it has been phrased.
Respectfully submitted.
Kern County Branch of American Civil Liberties Union,
By R. W. Henderson, Attorney.
9986 THE EDWARDS CASE
Exhibit No. 3.
STATEMENT AS TO JURISDICTION
Supreme Court of the United States. October Term, 1940. No. 17. Fred F.
Edwards, Appellant, vs. The People of the State of California. Appeal From
the Superior Court of the County of Yuba, State of California. Samuel Slaff,
Philip Adams, Wayne M. Collins, Counsel for Appellant.
In compliance with Rule 12 of this Court, the appellant herewith submits his
statement showing that the appeal in the above-entitled cause is properly before
this Court.
Opinion Below
The opinion of the Superior Court of the State of California, in and for the
County of Yuba, is not officially reported. A copy of the memorandum of opinion
of the Superior Court is attached hereto as Exhibit "A".
Jurisdiction
(1) Statutory Provisions Sustaining Jurisdiction.
The jurisdiction of this Court is invoked under Section 237 (a) and Section 237
(b) of the Judicial Code of the United States, as amended by the Acts of February
13, 1925, January 31, 1928, and April 26, 1928.
(2) State Statute Drawn Into Question and Decision as to Its Validity.
The appellant contended in the court below that Section 2615 of the Welfare
and Institutions Code of the State of California (under which statute the appellant
was charged and for a violation of which he was convicted) was repugnant to the
Constitution of the United States in that, on its face and as applied to and enforced
against the appellant, said statute in contravention of the Constitution of the
United States and the Fourteenth Amendment thereto, deprived him of his liberty
and property without due process of law, abridged his privileges or immunities as
a citizen of the United States and denied him the equal protection of the laws.
He further contended that said statute is repugnant to Article I, Section 8, Sub-
division 3, of the Constitution of the United States in that it is an attempt by
the State of California to regulate commerce among the several States.
The decision of the court below was in favor of the validity of said statute.
The statute, in its entirety, reads as follows:
"Section ?615: Wilful Act a Misdemeanor. Every person, firm or corpo-
ration, or officer or agent thereof that brings or assists in bringing into the
State any indigent person who is not a resident of the State, knowing him
to be an indigent person, is guilty of a misdemeanor (1937)."
This statute was enacted bv the Legislature of the State of California in
Chapters 369 and 464, Statutes of California, on June 21, 1937.
(3) Finality of Judgment.
The judgment forming the basis of the appeal herein is final both in form and
in substance, and disposes of all the elements of the controversy in the court
below. The judgment affirms the legality of the conviction of appellant, and
upholds the sentence imposed on appellant of six months in jail.
(4) Judgment of the Highest Court.
The judgment of the Superior Court of the State of California, in and for the
County of Yuba, is that of the highest court in which, under the laws of the
State of California, such judgment could be had in the case, and constitutes a
fin? 1 judgment of said court, within the meaning of Section 237 (a) of the Judicial
Code (28 U. S. C. A. Section 344).
This case originated as a criminal prosecution against the appellant, in the
Justice's Court of Marysville Township, County of Yuba, State of California.
The said statute under which the appellant was charged, and for a violation of
which he was convicted, provides by its terms that any person violating any
provision of said statute shall be deemed guilty of a misdemeanor.
Under the provisions of .Section 1425 of the Penal Cor'e of the State of Cali-
fornia, jurisdiction for the prosecution of misdemeanor is lodged in the Justice's
Court. Under Section 1466 of said Penal Code, an appeal from the Justice's
Court lies to the Superior Court.
The California courts have ruled that no appeal or review will lie from a
decision by the Superior Court reviewing a decision of a Justice's Court.
Berkeley v. Cunnyngham, 218 Cal. 714;
McLean v. Freiberger, 215 Cal. 1;
Johnston v. Wolf, 208 Cal. 286.
NATIONAL DEFENSE MIGRATION 9987
(5) Appeal Timely Taken.
The judgment on appeal by the Superior Court from which this appeal is
taken, was entered on the 26th day of June, 1940. On the 21st day of Septem-
ber, 1940, the appellant filed with said Superior Court his petition for appeal,
accompanied by his assignment of errors and the within "Statement as to Juris-
diction." On the 21st day of September, 1940, the Honorable Warren Steel,
Judge of the said Superior Court, made and entered his order allowing the within
appeal to the Supreme Court of the United States.
(6) Constitutional Question Timely and Sufficiently Raised.
The appellant has asserted consistently in the courts below the claim that the
statute under which he was charged, and for a violation of which he was con-
victed, offends against constitutional liberty in that it denies him freedom of
speech, press, movement, residence, denies him the equal protection of the laws,
deprives him of liberty and property without due process, abridges his privileges
or immunities as a United States citizen and further, is an attempt to regulate
interstate commerce, all in violation of the Constitution of the United States.
The constitutional question was first raised by demurrer to the complaint,
which was urged on the occasion of appellant's first appearance before the trial
court. (Clerk's transcript, page — .) This plea was filed by the appellant prior
to the introduction of any evidence. Said demurrer was overruled and appellant
entered his plea of not guilty. The facts in the case were not in dispute and
were stipulated to by appellant and appellee in the trial court.
The appellant appealed from the sentence of the Justice's Court to the Superior
Court, raising anew the same Federal constitutional issues. (Clerk's transcript,
page .)
The Superior Court, after expressly considering these constitutional objections
which were argued at length in briefs filed on behalf of the appellant, rejected the
objections and upheld the statute in its entirety, though urging that the matter,
in view of its public importance, should be finally settled by a higher court.
(7) Nature of the Case.
The facts in the case are not in dispute. In the statement on appeal to the
Superior Court, it was stipulated between the parties hereto that the facts in-
volved in this case were as follows:
"The Appellant, Fred F. Edwards, a citizen of the United States and a
resident of the State of California, left Marysville, California, on December
21, 1939, for Spur, Texas. The object of this trip was to bring his wife's
brother, Frank Duncan, a citizen of the United States and Texas, back to
Marysville. Appellant arrived at Spur, Texas, on December 24, 1939, and
learned than Duncan then had no job and had last been employed by the W. P.
A. Appellant at that time learned that Duncan was an indigent person and at
all times mentioned herein, appellant knew Duncan to be indigent. It was
agreed between Duncan and appellant that appellant would drive Duncan
from Spur, Texas, to Marysville, California, in appellant's car. Appellant
and Duncan left Spur, Texas, on January 1, 1940, entered California from
Yuma, Arizona, on January 3, 1940, and arrived in Marysville on January 5,
1940. At the time Duncan arrived in Marysville he was without funds and
lived at appellant's home until he was given assistance by the Farm Security
Administration about ten days after his arrival in Marysville. Duncan had
no employment after his arrival in California, until after he was given assist-
ance by the Farm Security Administration. Duncan had about twenty dollars
($20.00) when he left Spur, Texas; this money was all spent before his arrival
at Marysville."
The Federal Constitutional Questions Involved are Substantial and a Decision
is Necessary to Settle a Federal Question not heretofore Determined by this
Court.
The questions involved in this case are whether a State may, consistent with the
United States Constitution, under the guise of an indigency law:
(a) Make it a crime for one to assist an indigent person in the exercise of the
latter's constitutional rights or privileges.
(b) Regulate commerce among the several States.
(c) Deny one bringing or assisting in bringing an indigent person into California
due process and the equal protection of the laws by making that act a crime
when the entrance into California by the indigent is no crime under any California
statute.
(d) Abridge one's privileges or immunities as a United States citizen by crim-
inally penalizing his movement from State to State.
9988 THE EDWARDS CASE
(e) Deprive one of due process by criminally penalizing his freedom of speech,
press and movement and by making an act innocent in nature and character a
crime. ,->,,.,
A. An indigent person has a constitutional right or privilege to enter California.
The basic privileges of citizens of the United States are those which 'arise out of
the nature and essential character of the national government' and 'among the
rights and privileges of national citizenship * * * are the right to pass
freely from State to State,' Twining v. New Jersey, 211 U. S. 78, 97.
See also:
U. S. Constitution, Article IV, Section 2;
Crandall v. Nevada, 5 Wall. 35, 48-9;
The Slaughter-House Cases, 16 Wall. 36;
Williams v. Fears, 179 I]. S. 270.
Liberty under the Fourteenth Amendment includes freedom of movement and
residence, and the right to work where one wills.
"The liberty mentioned in that amendment (the 14th) means * * *
the right of the citizen * * * to live and work where he will * * *."
Allgeyer v. Louisiana, 165 U. S. S. 578, 589.
See also:
Meyer v. Nebraska, 262 U. S. 390, 399.
Freedom of movement from place to place and freedom of residence is basic
not only in the due process portion of Section I of the Fourteenth Amendment
but in that portion of the same Section which provides:
"All persons born or naturalized in the United States and subject to the
jurisdiction thereof, are citizens of the United States and of the State wherein
they reside."
The foregoing not only defines the rights of citizens remaining within the con-
fines of one State but it gives them the right to leave that State, move to another
and become citizens of the last.
"* * * a citizen of the United States can, of his own volition, become
a citizen of any State of the Union, by a bona fide residence therein, with
the same rights as other citizens of that State."
The Slaughter-House Cases, 16 Wall. 36, 80.
The~movement of an indigent person into California and his residence there
cannot be prescribed. He has a constitutional right and privilege to enter Cali-
fornia. The appellant, therefore, cannot be punished for the alleged crime of
assisting him in the exercise of that constitutional right and privilege. De Jonge
v. Oregon, 299 U. S. 353.
B. The statute contravenes the power of the Federal Government to regulate
interstate commerce. The carriage of persons from one State to another is
interstate commerce whether it be free or for hire. Gibbons v. Ogden, 9 Wheaton
1; Caminetti v. U. S., 242 U. S. 470; U. S. v. Burch, 226 Fed. 974; Gooch v. U. S.,
297 U. S. 124. The migration of persons across State lines has had constitutional
support from the first. Gibbons v. Ogden, 9 Wheaton 1.
The effect of this statute is to penalize immigration into California, not by
penalizing the immigrant but the one who brings him. And the standard of
guilt is the economic condition of the immigrant and the knowledge of that con-
dition by the carrier. A carrier who brings into the State a person who later
becomes indigent cannot be compelled to remove him. City of Bangor v. Smith,
83 Me. 422, 22 Atl. 379. Nor may he constitutionally be held guilty of a crime
in bringing him within the State. Economic insulation of geographical or political
areas can have no constitutional sanction within the framework of a national
government.
Baldwin v. Seelig, 294 U. S. 511, 523.
The transit and movement of persons across State boundaries is subject to the
regulation of the Federal government under its power over interstate commerce
and no State may constitutionally encroach on that power in that field.
County of Mobile v. Kimball, 102 U. S. 691;
Gloucester v. Pennsylvania, 114 U. S. 196;
The Lottery Cases, 188 U. S. 321;
NATIONAL DEFENSE MIGRATION 9989
Hoke v. U. S., 227 U. S. 308;
Caminelti v. U. S., 242 U. S. 470;
Mayor v. McNeeley, 274 U. S. 676;
Helson v. Kentucky, 279 U. S. 245.
C. It is no violation of law under the California statutes for an indigent to enter
the State. But the statute in question makes it a crime to aid an indigent person
to come into the State. Certainly a statute which, in substance, renders a person
an accessory to a crime when in fact the act of the principal is not made a crime,
denies due process and the equal protection of the laws. One who assists another
in the exercise of a constitutional right cannot on that account be branded a
criminal. De Jonge v. Oregon, supra.
D. The appellant is a citizen of the United States. As a citizen of the United
States he has the privilege or immunity of moving freely from one State to another.
Twining v. New Jersey, Crandall v. Nevada, Williams v. Fears, and Allgcyer v.
Louisiana, supra. The statute in question abridges that privilege or immunity
by making such movement criminally punishable when it is in furtherance of the
entrance of an indigent person into California; and it thereby raises a Federal
quest ion under the Fourteenth Amendment, and also under Article IV, Section 2,
Subdivision 1, of the U. S. Constitution.
E. The statute, by fair definition of its terms, prohibits one from encouraging
a person whom one knows to be indigent to enter the State. "Bring", among
other definitions, means to "cause to come" and "to cause to pass from a place
into another". Spoken or written words addressed to a known indigent person
which result in inducing him to come to California constitute a crime under the
terms of the statute, which would seem to render the statute void, as abridging
the liberties of speech and press in violation of the Fourteenth Amendment.
Lovcll v. Griffin, 303 U. S. 444;
Hague v. C. I. 0., 307 U. S. 496.
Not only is a Federal question raised with respect to the denial of freedom of
speech and press by this statute but it is also raised by the denial of due process to
the app( llant in criminally penalizing his movement from one State into another
when such movement is under the circumstances of the instant case.
In addition, the act with which appellant was charged cannot constitute a
crime. The statute ignores motive, purpose, or intent. It is arbitrary and un-
reasonable in that an act, innocent in nature and character is made a crime. Nor
can statutory fiat create a crime from the act of assisting another in the exercise
of the latter's constitutional rights. De Jonge v. Oregon, supra. The Federal
question is thus raised of the denial to appellant of due process and equal pro-
tection of the laws.
California obviously seeks here to prevent indirectly what it cannot prevent
directly; it attempts to prevent indigent persons from taking up residence in
California by intimidating those who would assist them. There can be no legal
objection to a reasonable requirement of a fixed period of residence within the
State as a pre-requisite to eligibility for relief. That State may not, however,
bar one whom it may consider a potential relief recipient from entrance; and
similarly it may not make him who aids his entrance a criminal. This case
presents a question which affects a most basic of American rights; the right of
American citizens to move without let or hindrance throughout the country. So
peculiarly national a question calls for determination by the one court which
speaks not for one State or section but for the whole country.
Conclusion
Wherefore, it is respectfully submitted that the appellant in the above
entitled cause comes properly within the jurisdiction of this Court.
Samuel Slaff,
Philip Adams,
Wayne M. Collins,
Attorneys for Appellant.
9990 THE EDWARDS CASE
Exhibit "A". — Opinion Delivered by Superior Court of the State of
California, in and for the County of Yuba, Upon Rendering of Judg-
ment of June 26, 1940
No. 621
The People of the State of California, Plaintiff and Respondent,
vs.
Fred F. Edwards, Defendant and Appellant
Memo. Opinion
The defendant and appellant herein was convicted in the Justice Court of a
misdemeanor, to wit: a violation of Section 2615 of The Welfare and Institutions
Code of this State which reads as follows :
"2615. Willful act a misdemeanor. Every person, firm, or corporation or
officer or agent thereof that brings or assists in bringing into the State any indigent
person who is not a resident of the State, knowing him to be an indigent person,
is guilty of a misdemeanor."
The case is before this Court on a stipulation of facts and the question pre-
sented the validity of the statute under which the defendant was adjudged guilty.
The issue as to the constitutionality of this statute has been exhaustively
argued in the briefs filed, including briefs of amicus curiae, and it appears that the
higher courts have not as yet had occasion to pass upon such a statute as the
one here involved. In the numerous decisions cited, dicta is to be found which
strongly suggests that such legislation may be violative of the Privileges and
Immunities clause of the 14th Amendment in restricting the right of citizens
to pass freely from state to state as well as violative of other provisions of the
United States Constitution and the California Constitution.
The Court regards the question as closed and in view of that, as a trial court,
it is constrained to uphold the statute as a valid exercise of the Police Power of the
State of California.
The question is of importance to the public, considering times and conditions,
and should be finally settled by the higher courts. The present folding of this
Court makes possible a further appeal to and review by the courts of higher
jurisdiction.
The judgment will therefore be affirmed and it is so ordered.
(Signed) Warren Steel,
Judge.
Dated: June 24th, 1940.
(Endorsed) Statement as to Jurisdiction. Filed Sep. 21, 1940. W. M. Strief,
Clerk, by A. Conley, Deputy Clerk.
NATIONAL DEFENSE MIGRATION 9991
Exhibit No, 4-
Supreme Court of the United States. October Term, 1940. No. 17. Fred F.
Edwards, Appellant, vs. The People of the State of California. Samuel Slaff,
Counsel for Appellant. Philip Adams, Wayne M. Collins, Of Counsel. Dated,
New York, February 17, 1941.
APPELLANT'S BRIEF
I. Opinion Below
The opinion of the Superior Court of Yuba County, California, appears at
pages loAl 1 of the record; it is not officially reported.
II. Jurisdiction
Jurisdiction of this Court is invoked under Section 237 (a) of the Judicial Code,
as amended (U. S. C. Title 28, Section 344 (a)). The judgment of the Superior
Court of Yuba County is of the highest court in California in which, under the
laws of that State, judgment could be had in this case.
III. Statement of the Case
The facts were stipulated (R. 9) on the appeal below as follows:
"The Appellant, Fred F. Edwards, a citizen of the United States and a resi-
dent of the State of California, left Marysville, California, on December 21,
1939, for Spur, Texas. The object of this trip was to bring his wife's brother,
Frank Duncan, a citizen of the United States and resident of ' Texas, back
to Marysville. Appellant arrived at Spur, Texas, on December 24, 1939,
and learned that Duncan then had no job and had last been employed by the
WPA. Appellant at that time learned that Duncan was an indigent person
and at all times mentioned herein, appellant knew Duncan to be indigent.
It' was agreed between Duncan and appellant that appellant would drive
Duncan from Spur, Texas, to Marysville, California, in appellant's car.
Appellant and Duncan left Spur, Texas, on January 1, 1940, entered Cali-
fornia from Yuma, Arizona, on January 3, 1940, and arrived in Marysville
on January 5, 1940. At the time Duncan arrived in Marysville he was
without funds and lived at appellant's home until he was given assistance by
the Farm Security Administration about ten days after his arrival in Marys-
ville. Duncan had no employment after his arrival in California, until after
he was given assistance by the Farm Security Administration. Duncan had
about twenty dollars ($20.00) when he left Spur, Texas; this money was all
spent before his arrival at Marysville."
Edwards was found guilty (R. 7) of violating Section 2615 of the Welfare and
Institutions Code of California which holds:
"Wilful Act a Misdemeanor. Every person, firm or corporation, or officer
or agent thereof that brings or assists in bringing into the State any indigent
person who is not a resident of the State, knowing him to be an indigent
person, is guilty of a misdemeanor." (R. 12)
A sentence of six months was suspended (R. 7). On appeal the Superior Court
affirmed the conviction (R. 11).
IV. Specification of Errors
The appellant assigns the following errors in the record and proceedings below:
1. The statute under which appellant was convicted (Cal. Welfare and Institu-
tions Code, Section 2615) is repugnant to the Commerce Clause (Section 8 of
Article I) of the Constitution of the United States.
2. Section 2615 of California's Welfare and Institutions Code is void on its face,
is in violation of Section 1 of the Fourteenth Amendment and operates to deprive
appellant of liberty without due process of law and to deny him the equal pro-
tection of the laws.
i The words "resident of" were omitted through typographical error from the statement of facts on page 5
in the Statement as to Jurisdiction.
9992 THE EDWARDS CASE
Point I
THE CALIFORNIA STATUTE VIOLATES THE COMMERCE CLAUSE OF THE UNITED STATES
CONSTITUTION
The interstate movement of people in the United States is no latter-day phe-
nomenon. It is a characteristic of our population as old as the nation itself. It is
the basic factor which has given the United States the physical size it now pos-
sesses. It has been the dominant factor in the development of a broad national
culture resulting from the blending and intermixture of diverse regional and state
cultures. It underlies our development as a nation rather than as a group of
separate parochial provinces.
The American people still possess — as they always have — a quality of extraor-
dinary geographic mobility.2 The twentieth century in this country has wit-
nessed simultaneous and parellelling west-east and east-west migrations and a
less sharp but definite movement between the north and south.3 This character-
istic American m.obility has increased steadily since 1S90,4 so that by now the
resident of almost any state in the Union is little more a state-man than was
Defoe's "True-born Englishman" an Englishman. By 1930 every state except
California had lost by migration more than 15% of the population born within it
and every state, with five exceptions,5 had more than 100,000 residents of other
state origin. Twenty-three per cent of this country's native population — twenty-
five million, of whom twenty-two million were native whites — were then living
outside the states in which they were born.6
Internal migration in the United States has been well epitomized as "a process
of social osmosis".7 Just as the impelling force in the osmotic process is the factor
of pressure, so, too, the fundamental driving force in the migration process is the
pressure of differences — or at least the apparent differences — in the economic
opportunity of diverse sections of the nation. For it is undeniable that the under-
lying bases of internal migration are predominantly economic.8
The economic emphasis may shift from one of "pull" to one of "push" from
period to period — as witness the contrast between the 'twenties and the 'thirties — ■
but the fundamental economic motive remains. During the 'twenties people
migrated, not necessarily because of an impelling need to better themselves but
because they were attracted by places of greater economic opportunity, the pull
of greener pastures. By contrast, the basic force in the movement of the 'thirties
was the necessity to find employment — the push from areas more severely stricken
than others by the strains imposed on the national economy.9 The droughts,
mechanized farm cultivation, the cumulative effects of low cotton prices in the
post-war period and in 1932 were all strong factors in the population movement
of the 'thirties to California and the west.10 Coupled with these were: general
unemployment; regional differences in employment, wage levels and patterns of
seasonal labor requirements; mechanization of agriculture as well as industry;
soil erosion; and similar causes.11 In addition the pressure resulting from the
circumstance that the highest birth rates occurred in the regions where economic
opportunity was lowest,12 together with the damming up of the normal flow of
• Blankenship, Charles F. and Safier, Fred, A Study of Medical Problems Associated icith Transients, IS,
U. S. Public Health Service, Public Health Bulletin No. 25$; Webb, John N. and Brown, Malcolm, Migrant
Families. 126. WPA Division of Social Research, Monograph XVIII, 1938.
3 Blankens'iip and Saner, op. cit., 18.
• National Resources Committee (1938). The Problems of a Changing Population, 112.
' Maine, Vermont, Delaware, Utah, and Nevada.
• National Resources Committee, op. cit., 85; Ryan, Philip E., Migration and Social Welfare (Russell Sage
Foundation, 1940), 24.
7 Thompson, Warren S., Research Memorandum on Internal Migration in the Depression, 7, Social Science
Research Council.
• Ryan, op. cit., 12; Webb and Brown op. cit., 4, 5: A study of 4,247 migrant families indicates that 69%
migrated because of varying types of economic dislress at home, 25% because of personal distress — and in
this 25% were 11% who miorated because of ill health.
• Webb and Brown, op. cit., 4, 5: Webb, John N., The Transient Unemployed, 58-59, WPA Division of
Social Research, Monograph III. 1935.
10 Webb, John N., The Transient Unemployed, 58; Webb and Brown, op. cit., c. 1: Migratory Labor: A
Sncinl Problem, 19 Fortune, No. 4, p. 94; Taylor Paul S.and Rowel], Edward J., Refugee Labor Migration to
California, 1937, Monthly Labor Review of the Bureau of Labor Statistics, U. S. Dept. of Labor, August
1938 iss'ie.
11 Preliminary Report of the Select Committee to Investigate the Interstate Migration of Destitute Citizens,
House of Representatives, 76th Cong., 3rd Sess.. p. 27. (Hereafter cited as "Select Committee, Preliminary
Renort.")
" nouse of Representatives, Interstate Migration: Hearings Before the Select Committee to Investigate the
Interstate Migration of Destitute Citizen*. 76th Cong., 3rd Sess.. Part I, New York City Hearings (hereafter
cited as "Select Committee, Hearings, Part I"), Testimony of Dr. Frank Lorimer, p. 25.
NATIONAL DEFENSE MIGRATION 9993
population in the earlier period of the depression because of the fears of the risk
involved in making any move ultimately caused wide population movements.18
Due to the depression and now as a consequence of the increased development of
industry because of the defense program the movement of the impoverished is
greater than ever before.14
There is, of course, nothing inherently undesirable about migration. The
history of our nation bears witness to that. On the contrary, serious damage
would result and the entire economic structure of the country would be adversely
affected to a marked degree if the flexibility resulting from the mobility of labor
were destroyed or seriously impaired.15
It is necessary to evaluate California's statute in the light of the effect of that
statute and similar statutes on the national economy in order to come to a valid
conclusion as to whether the interstate commerce involved in the movement of
persons is a matter which a state may validly regulate as has California. For if
California may legislate in this fashion, the same power must be lodged in each of
the other forty-seven states. For the purpose of such evaluation, it is well to
examine the general categories into which may be grouped those who participate
in interstate movements of population.
In the main, present day migrants fall generally into two classes; the- migratory-
casual workers who furnish the mobile labor supply necessary in the national
economy and the transient unemployed.16 There is a small class of economically
self-sufficient persons who move from one part of the country to another for rea-
sons of comfort, health, social prestige, etc., as well as a larger number of more or
less economically self-sufficient persons who move regularly in interstate com-
merce, as "white-collar" commuters, travelling salesmen, professionals, business
executives, etc. The California statute under consideration is not aimed at such
persons; hence it is unnecessary to consider their problems — although the unequal
status of "indigents" raises the question of equal protection.
Each of the two classes of migrant has definite characteristics as well as a special
niche in the national economy.
"The migratory-casual worker is a necessary adjunct to those highly seasonal
or intermittent industries that cannot, or will not, support a resident labor
force." 17 The wheat harvest, from central Texas to the Canadian border and
west to the Pacific; the apple harvest in Oregon and Washington; the citrus fruits
in the Southwest and Florida; the prunes, peaches and other soft fruits along the
Pacific Coast; the berries of the Mississippi Valley and on Puget Sound; the lettuce,
peas, beans, melon, spinach, onion and similar truck crops in the Southwest, in
Washington and along the Eastern Seaboard; the sugar beets of Colorado, Cali-
fornia, Montana and Michigan; the cotton of Texas, Oklahoma, Arizona and
California; railroad right-of-way maintenance and construction; construction of
dams, levees, roads, tunnels and power and pipe lines; the oil and gas fields; the
logging industry — these are among the most important of productive processes
which require a mobile labor supply, the migratory-casual worker.18 "On the
economic side, the migratory-casual worker is the result of (1) the progression of
the seasons, which provides an irregular sequence of employment over a large
area, and (2) the pool of unemployment, which rises and falls with business con-
ditions, but which is never completely drained." I9
Interstate migration is a clearly defined characteristic of the migratory-casual
worker 20 — with approximately equal mobility among agricultural, industrial and
combination agricultural and industrial workers.21 Set out in the Appendix are
three maps showing routes of travel of one hundred typical agricultural migratory-
casual workers and one hundred typical industrial laborers of the same type.21
The interstate movement characteristic of these workers is clearly evident from
these maps.
13 Ibid., p. 29.
14 Select Committee, Preliminary Report, op. cit., 19.
18 Ryan, op. cil., 31; for example, if there were no migration between 1930 and 1960, the natural increase in
population in the South and in Utah, Idaho, and the Dakotas would be 50%. The resultant effect on the
economy of those areas would be disastrous since they are definitely unable to support such an increased
population. Select Committee, Hearings, Part I: Op. cit., 24— Lorimer.
i« Coyle, David Cushman, Depression Pioneers, 5-6, WPA Social Problems, No. 1 (1939).
17 Webb, John N., The Migratory-Casual Worker, 1, WPA Division of Social Research, Monograph VII,
1937. Select Committee Hearings, Part I, op. cit., 216— Testimony of David C. Adie, Commissioner of
Social Welfare, New York State.
i* Webb, John N., The Migratory Casual Worker, 6-7.
>• Ibid., XV-XVI.
» Ibid., 24.
»> Ibid,, 24.
« Ibid., 28, 29, 32. '
60396— 42— pt. 26 3
9994 THE EDWARDS CASE
The transient unemployment — the other characteristic American migrant —
make up the bulk of the approximately 3,000,000 people who move annually from
farms to towns and cities and vice versa, the more than 1,000,000 farm families
which move from one farm to another each year,23 and the large number who move
principally between urban centers. Over two million workers, three-quarters of
whom are occasional migrants and twenty-five percent habitual migrants (the
latter are principally migratory-casual laborers) cross state lines yearly to work
or in the search for employment;24 if the non-working members of the family were
included in the total the number would be even greater. Even those who have
been employed for substantial periods of time find it necessary to cross state
lines to obtain further employment.25 The routine, customary population mo-
bility of sound economic periods becomes "mobility in trouble" in a period of
depression.26 Both, of course, constitute interstate commerce.
The transient unemployed are largely composed of families seeking permanent
settlement.27 These people have not migrated in search of relief payments.29
As a class, they are loath to accept relief and "the vast majority of them are
anxious to avoid being supported at public or private expense."29 In fact their
dislike of accepting it is often a contributing factor in inducing migration.30
Illustrative of the characteristics of those migrants who enter California are
the facts that of 289,299 migrants "in need of manual employment" coming into
the state by motor vehicle via Border Stations between June 16, 1935 and March 1,
1938, 242,898, or over 80%, entered as members of family units.31 They averaged
over four persons per motor vehicle.32 The great majority are of native, white
stock;33 many are descendants of the oldest families in the Eastern and South-
eastern states.34
Migrants, as a class, have in the main more than the average amount of initia-
tive, 35 are "above the average family on relief",36 and "frequently were among the
most enterprising and energetic members of their former communities." 37 Their
economic heads are significantly younger than those of the general population or
resident relief families.38 Those California has received have been "ambitious
and energetic",39 anxious and able to work.40 The occupational structure of those
coming into California has corresponded closely to the occupational composition
and numerical distribution of the entire population.41 Fifty-four percent of those
migrant families moving to California had close personal contacts there (relatives,
friends, etc.), and almost another 20% had other definite contacts; 42 22% selected
California in the hope that their health would benefit from the climate.43
These, then, comprise the bulk of the people who, being non-residents of Cali-
fornia, come into that state. The act of bringing or assisting in bringing almost
any one of these people into California has been made a crime by that state.44
M Taylor, Carl C; Wheeler, Helen W.; and Kirkpatrick, E. L., Disadvantaged Classes in American Agri
culture, U. S. Department of Agriculture, p. 5.
'* Ryan, op. cit., 25.
15 Select Committee Hearings, Part I, op. cit., 216-217— Adie.
» Webb and Brown, op. cit., XXI; 42-43.
" House of Representatives: Hearings Before the Select Committee to Investigate the Interstate Migration
of Destitute Citizens; Vol. I of the Transcript of the Committee's San Francisco Hearings (hereafter referred
to as Select Committee San Francisco Transcript), Testimony of Gov. Culbert L. Olson of California, Sept.
24, 1940, p. 75. Select Committee Hearings, Part I, op. cit., 340.
>* Webb, The Transient Unemployed, 63: Inadequate relief accounted for but one to three percent of de-
pression migration among unattached persons and two to four percent among heads of family groups. West-
field, Albert, Michigan Migrants, WPA Division of Research (March, 1939), 2-3; Webb and Brown, op. cit.,
51; Coyle, op. cit., 5-6.
2' Select Committee, Preliminary Report, op. cit., 9; see also; Coyle, op. cit., 5-6.
M Select Committee, Preliminary Report, op. cit., 28.
31 Taylor and Rowell, Refugee Labor Migration to California, 1937, op. cit., Table 3, p. 6.
52 Ibid.
33 Ibid., 5; Select Committee, Preliminary Report, op. cit., 9; Select Committee Hearings, Part I, op. cit.,
340— Lett; Webb and Brown, op. cit., XXVII.
34 Select Committee, Preliminary Report, op. cit., 9.
35 Select Committee, Preliminary Report, op. cit., 9.
36 Webb and Brown, op. cit., 126.
37 Ryan, op. cit., 10.
38 Webb and Brown, op. cit., 97-98.
39 Coyle, op. cit., 6.
<o Webb and Brown, op. cit., cc. V, VI; A study of 5,426 economic heads of migrant families indicates
56% employable, 33% employable with handicaps, and only 11% unemployable, of whom more than half
were women with dependent children requiring their full time.
41 Select Committee, San Francisco Transcript, Testimony of Varden Fuller, U. S. Bureau of Agricultural
Economics, p. 122.
« Webb and Brown, op. cit., 18-19.
43 Ibid., 21.
44 It should be noted that while the law, on its face, is aimed only at the one who brings an indigent into
the state or assists in bringing in such a person, it is actually aimed at the indigents themselves. As noted
above (p. 10) most of them come in as members of family groups in cars driven by one of them. A law
which makes the driver of the car a criminal under those circumstances is certainly effectively aimed at
all the passengers as well.
NATIONAL DEFENSE MIGRATION 9995
For it is clear that practically all migratory-casual labor and transient-unem-
ployed fall within the classification of "indigent persons".
The term indigent is defined 45 as:
1. Wanting; lacking; void; free; destitute.
2. Destitute of property or means of comfortable subsistence; needy; poor; in want;
necessitous. Syn.- — impecunious, penniless, poverty-stricken.
The term does not necessarily involve the receipt of public relief; that is an
occasional incident but not a requisite of the status. It includes employables,46
does not exclude the possession of some property 47 and encompasses that portion
of the laboring population which is self-supporting only when employed.48
The migratory-casual worker "is on the margin of subsistence most of the
time." 49 The yearly net earnings 50 of the migratory-casual workers studied by
Webb establishes clearly the "indigence" of this necessary part of the nation's
labor supply. Migratory-casual agricultural workers averaged annual earnings
of $110 in 1933 and $124 in 1934; industrial migratory-casual workers averaged
$257 in 1933 and $272 in 1934, while workers who engaged in both agricultural
and industrial employment averaged $223 in 1933 and $203 in 1934.51
With respect to the main body of migrants, "it is from the ranks of those at
or near the relief level that the bulk of migration arises".52 Yet this group repre-
sents only a small fraction of the great portion of the American population whose
economic condition places them within the category of "indigents".
One-third of all American families and single individuals during 1935-193&
received annual incomes of less than $780; 5S the average income of this group
amounted to $471 a year. 54 The next third of America's families and individuals
had incomes ranging from $780 to $1450.55 The average income of this group
was $1,076 and the average annual income of the foregoing two-thirds of American
families and single individuals was $773.50. Since "with the masses of the popu-
lation the income derived from investments is negligible",56 by definition and cold
economic fact a goodly portion of even America's employed population and a major
portion of her migrants and unemployed are indigent.
The existence of the statute in question and the conviction of Edwards by a
state which casts a wide net for prosperous visitors 57 poses sharply the question
whether those whose only crime is to be poor and needy are to be denominated
"outlaws of commerce" 58 and barred by a state from interstate transportation
and movement-
There can, of course, be no question that the passage of persons from state to
state constitutes interstate commerce.59 The protection of their freedom of
passage is readily found in the commerce clause 60 whether they be carried by
common carrier or otherwise and whether free or for hire.61
Whether this statute arises from a fear that economic dislocation may be
aggravated by increased cost to the state for relief for some indigents 62 or from
46 Webster's New International Dictionary, Second Ed. (Unabridged) 1935, G. & C. Merriam Co., Pub-
lishers. See also Funk & Wagnall's New Standard Dictionary of the English Language (19S6). "Indigent
(1) Destitute of property or mans of comfortable subsistence; needy; poor (2) lacking; wanting." See also:
Black's Law Dictionary, Second Edition.
<" Cal. Welfare & Institutions Code, Sec. 2505 (Deering, 1937); R. 9.
« Cal. Welfare & Institutions Code, Sec. 2600, 2601; R. 9; In re Hybart, 119 N. C. 359.
<s Ooodal v. Brite, 11 Cal. App. (2d) 540, 549; City and County of San Francisco v. Collins, 216 Cal. 187,
190; Calkins v. Newton, 36 Cal. App. (2d) 262, 265; Peo. v. Supervisors, 121 N. Y. 345, 350; Lander County v.
Humboldt County, 21 Nev. 415, 417-18.
49 Webb, The Migratory-Casual Worker, X.
«° Net earnings are earnings after such deductions, or their equivalent, as are made by employers for
housing, meals, transportation, etc.
h Webb, The Migratory-Casual Worker, XVII.
J2 Select Committee, Preliminary Report, op. cit., 28.
«3 National Resources Committee, Consumer Incomes in the United States — Their Distribution in 1935-36,
8-9.
i* Ibid., 9.
m Ibid., 9.
«6 Leven, Moulton and Warburton, America's Capacity to Consume, 26.
5? In 1939 out-of-state tourists spent $193,000,000 in California; the state treasury receives over $10,000,000
annually in taxes from travelers and tourists. Select Committee San Francisco Transcript, op. cit., testi-
mony of Gov. Culbert L. Olson, of California, p. 87.
ss Hipoiite Egg Co. v. U. S., 220 U. S. 45, 58.
s» Gibbons v. Ogden, 9 Wheat. 1; Hoke v. U. S., 227 U. S. 308; Gooch v. U. S., 297 U. S. 124; U. S. v. Miller,.
17 F. Supp. 65: Covington and Cincinnati Bridge Co. v. Kentucky, 154 U. S. 204.
60 Justice Stone, dissenting in Colgate v. Harvey, 296 U. S. 404, 446.
«i Caminetti v. U. S., 242 U. S. 470; U. S. v. Burch, 226 Fed. 974.
62 California has raised its residence period and three years residence is now required in order to be eligible
for relief. Welfare & Institutions Code, See. 2555a (Deering, 1937). The Governor of California has testified
that "Pressure groups in this state have seized upon the migrant problem as a means of lowering all relief
standards." Select Committee San Francisco Transcript, op. cit., testimony of Gov. Culbert L. Olson,
p. 85.
9996 THE EDWARDS CASE
other reasons, California may not constitutionally build a Chinese wall to insu-
late itself now from the people of America whose successive influxes 63 have
resulted in her position.64 The purpose of Section 2615 of California's Welfare
and Institutions Code, like the purpose of any act, however framed, may be
found in its natural and reasonable effect.65 The natural and reasonable effect
of this statute is to deter, impede and bar the movement of indigent persons into
California and when in that state, to compel their removal at such times as it
pleases the authorities. California has here attempted to set up a statutory
border patrol which differs in form but not in principle from the physical border
patrols previously established by that state, as well as by Florida and Colorado.68
It is obvious that California authorities have at hand "an instrument of compul-
sion peculiarly effective as against the poor and the ignorant, its most likely
victims." f'7 Speaking of a similar power Freund says: "Such a power (the
power to remove persons likely to become chargeable), in addition to being
liable to the grossest abuse, is so inconsistent with the freedom of migration in
pursuit of livelihood, that it can probably not be maintained under our con-
stitutional limitations." 68
A natural tendency of this statute is to intimidate, under threat of criminal
prosecution, not only one who would or might otherwise transport an indigent
migrant, but also the migrants themselves.69 Its consequence is thus frequently
to leave the latter substantially helpless to move with the effect of compelling
them to remain at their place of origin where employment for them is wanting
and opportunity lacking. If the movement of indigent migrants into a state may
be barred or impeded because of fear of the creation of a potential burden which
may subsequently fall on the residents of that state, or for any such reason, why
then may not migration out of a state be restrained where the depopulation thus
occasioned would increase the burden of governmental indebtedness to those re-
maining or might have similar results.70 Certainly there is no valid distinction
whatever between the two types of action. If the principle of freezing of popu-
lation in areas of origin is constitutionally sound, there is legal sanction for the
growth of an economic condition of virtual peonage, chaining people to that part
of the land where accident of birth has first placed them.
In its practical operation this statute — by impeding the free movement of em-
ployables across state lines — interposes a barrier against the competition of the
labor of non-residents with that of residents. This Court has but recently held:
"The freedom of commerce which allows the merchants of each state a regional
or national market for their goods is not to be fettered by legislation, the actual
effect of which is to discriminate in favor of intrastate businesses, whatever may
be the ostensible reach of the language." 71 Certainly the absence of capital
cannot legitimately serve to fetter the indigent merchant of his own labor or deny
him a regional or national market for his services.72
Poverty is not a "moral pestilence".73 These migrants are not improper sub-
jects of commerce; 74 these upon whom California seeks to place a statutory quar-
•3 In the period 1920-1930 two and a quarter million people were added to California's population due
principally to migration from other states. Hearings Before a Subcommittee of the Committee on Education
and Labor, U. S. Senate, 76th Cone., 3rd Sess., Part 59, California Agricultural Background, Exhibit 9360,
p. 21861. Of its five and a half million people, only two million were born within the state, two and a half
million were born elsewhere in the United States and a million were born abroad. National Resources
Committee 0938), The Problems of a Changing Population, 108.
«< As of 1929 California had the highest per capita income of farm population in the United States, the
fifth highest per capita income of non-farm population, the fourth highest over-all per capita income in
the country, and the fourth highest aggregate income in the nation. Leven, Moulton and Warburton,
America's Capacity to Consume, 40-48.
«» Henderson v. Mayor, 92 U. S. 259, 2C8; Bailey v. Alabama, 219 U. S. 219, 244; Truax v. Raich, 239 U. S.
33, 40.
w National Resources Committee, The Problems of a Changing Population, 88; McWilliams, Carey,
Factories in the Field, 310-311; New York Times: Feb. 5, 1936, p. 2, col. 5; Feb. 8, 1936, p. 18, col. 3; Feb. 9,
1936. Sec. 4, p, 11, col. 6; Apr. 19, 1936, Sec. 2, p. 2, col. 6: Oct. 25, 1936, Sec. 4, p. 10, col. 8.
The Statute is a convenient method of forcing the return of an entire group of migrants by arresting and
sentencing the driver of the automobile and then suspending sentence on condition that all leave the state.
New York Times: Nov. 5, 1939, p. 1, col. 3; "In the first court action to rid Kings County of indigents
from the midwest a penniless family of eight was ordered to return to Missouri.
William Georce, cotton picker of Corcoran, Calif., chose to return to Arbyrd, Mo., with his widowed
aunt and her six children rather than serve a six months' jail sentence.
California law makes it a misdemeanor to bring indigents into the State."
•7 Bailey v. Alabama. 219 U. S. 219, 245.
«« Freund, Ernst, The Police Power (1904), 258.
•» See Footnote 44, p. 12.
" Freund, op. cit., 530.
" Best and Co., Inc. v. Maxwell, 85 L. ed. Adv. Ops. 1940-1941, 274, 275.
ii Baldwin v. Seelig, 294 U. S. 511. 527.
"3 Mayor of New York v. Miln, 11 Pet. 102, 142.
74 Asbell v. Kansas, 209 U. S. 251; Baldwin v. Seelig, supra, 525.
NATIONAL DEFENSE MIGRATION 9997
antine of "untouchable" are not contagiously diseased. Their only illness is an
economic one. If this law were valid why could not California constitutionally
require one who entered the state to have $100, $1,000 or $10,000 — or a minimum
income? Why could not a carrier be required to assure itself of the financial
solvency of its passengers before transporting them to the state or remove them
from the state in the event of their impoverishment subsequently.75
"Migration is not only a constitutional right of every American citizen; it is an
economic necessity in the American economic system. This country is an eco-
nomic unit with a predominantly national market. Industries, investments,
goods, and labor respond to this economic and legal fact by crossing State lines
at will." 78 Migration is essential to relieve potentially disastrous population
pressures.77 Extensive migration is necessary to alleviate effectively the chronic
depression of the farming population of the Southeast.78 A mobile labor supply
is a requirement of industries throughout state after state which cannot support
a resident labor force.79 The national defense program requires 80 fluidity of move-
ment of workers from state to state; some migration to California has already
been absorbed by national defense 81 but the program will require more.82 The
entire subject of migration and its problems is national in scope.83
Interstate trade, the redistribution of population from marginal and submar-
ginal areas, the right to migrate in pursuit of livelihood, freedom of opportunity,
freedom of passage from state to state, the needs of national industry, the re-
quirements of national defense — these are not merely local, internal affairs and
matters on which the state may have some power to affect interstate commerce.84
These are matters affected with a vital national interest; they are the very fabric
of national unity. Whether by the statute in question California seeks to bar
the passage of indigents directly or indirectly her action in either event invades
the power of the national government over interstate commerce.
If California is to be permitted to use the economic condition of the indigent
migrant and the knowledge of that condition as a standard of guilt and a lash to
drive him away and to drive away aid from him and thus immobilize and set up a
barrier against the non-resident indigent, every state in the Union may do likewise
and America may be converted into forty-eight economic concentration camps.
But geographic and economic disinheritance by any state in this nation of any
person or group whose basic crime is economic kinship with millions of other
Americans has not yet achieved the dignity of constitutional benediction. "Let
such an exception be admitted, and all that a state will have to do in times of
stress and strain is to say that its farmers and merchants and workmen must be
protected against competition from without, lest they go upon the poor relief lists
or perish altogether. To give entrance to that excuse would be to invite a speedy
end of our national solidarity. The Constitution was framed under the dominion of
a political philosophy less parochial in range. It was framed upon the theory
that the peoples of the several states must sink or swim together, and that in the
long run prosperity and salvation are in union and not division." 85
7« City of Bangor v. Smith. 83 Me. 422.
76 Select Committee Preliminary Report, op. cit., 18: Chairman John H. Tolan, quoting with approval
Dr. Rupert Vance. See also: Ryan, op. cit., 26.
77 Select Committee Hearings, Part I, op. cit., 24 — Lorimer.
78 National Resources Committee, The Problems of a Changing Population, 113.
79 Webb, John N., The Migratory-Casual Worker, op. cit., 1.
80 Select Committee, Preliminary Report, op. cit., 11.
81 Select Committee San Francisco Transcript, Vol. I, op. cit., Testimony of Varden Fuller, Associate
Agricultural Economist, U. S. Bureau of Agricultural Economics, p. 127 et seg.
82 Select Committee Preliminary Report, op. cit., 11.
8' Ibid., 16, 17; Select Committee Hearings, Part I, op cit.. 2, 219, 380; Select Committee San Francisco
Transcript, Vol. I, p. 95 — Olson. Ryan, op, cit., 90: "The following federal agencies, among others, have an
interest in the problems growing out of population mobility: Department of Agriculture: Bureau of Agri-
cultural Economics, Farm Credit Administration, Farm Security Administration, Federal Surplus Com-
modities Corporation, Forest Service, Soil Conservation Service; Department of Commerce: Bureau of
the Census; Department of Justice: Bureau of Parole, Bureau of Prisons; Department of Labor: Bureau
of Labor Statistics, Children's Bureau, Division of Labor Standards, Wage and Hour Division, Women's
Bureau; Executive Office of the President: Central Statistical Board, National Resources Planning Board
(formerly National Resources Committee); Federal Works Agency: United States Housing Authority,
Works Projects Administration (formerly Works Progress Admin.); Federal Security Agency: National
Youth Admit.istration, Office of Education, Public Health Service, Social Security Board, United States
Employment Service; Interdepartmental Committee to Coordinate Health and Welfare Activities.
M Cooky v. Board of Wardens, 12 How. 299; Baldwin v. Seelig, 294 U. S. 511; Leisy v. Hardin, 135 U. S. 100.
•» Baldwin v. Seelig, 294 U. S. 511, 523.
9998 THE EDWARDS CASE
Point II
THE STATUTE IS VOID ON ITS FACE AND OPEKATES TO DEPRIVE THE APPELLANT OF
LIBERTY WITHOUT DUE PROCESS OF LAW AND TO DENY HIM THE EQUAL PROTEC-
TION OF THE LAWS
No argument has been made or can be made by appellee that the act of the
appellant in assisting Duncan presents any greater problem to the state than
Duncan's act in coming into California. The statute is patently designed to
accomplish by indirection that which the state has doubts as to its ability to
accomplish directly.
This Court has pointed out in De Jonge v. Oregon 86 that it is beyond the power
of the state to make a crime of assisting another in the exercise of his constitutional
rights. Thus the problem here posed resolves itself down to whether the indigent,
Duncan, could have been constitutionally barred from California, solely because of
his indigency, without being deprived of liberty without due process.
It is apparent not only from the statute's substance but also from its setting
that California seeks to prevent non-resident indigent persons from achieving a
"settlement" there. But California's mere legislative preference for handling a
possible relief situation by seeking to exclude potential relief recipients is insuffi-
cient to justify a statute which "diminishes the exercise of rights so vital to the
maintenance of democratic institutions." 87
"The framers were not unaware that under the system which they created
most governmental curtailments of persona] liberty would have the support of a
legislative judgment that the public interest would be better served by its cur-
tailment than by its constitutional protection." 88 While "this court has never
attempted to define with precision the words 'due process of law' * * *
there are certain immutable principles of justice which inhere in the very idea of
free government. * * *" 89 Whatever local interest, if any, there may be in
the exclusion of poor persons, it is insufficient to justify a statute, the effect of
which is to exclude or hamper the entrance of those who, because of the economic
insecurity common to the great mass of the population, may conceivably require
public assistance at some near or distant time. California may not invoke "the
convenient apologetics of the police power" 90 to support a statute which goes
beyond "the verge of the law".91
It is rooted deep in our concept of a democratic republic that "the ultimate
foundation of a free society is the binding tie of cohesive sentiment." 92 In con-
trast to what can be observed in the nondemocratic states of the world where
such ties are imposed by fiat from above, in the United States the development of
such cohesive sentiment is a process which grows and spreads horizontally among
our people.
The law involved here sets up a concrete barrier against the free movement of
our peoples, one of the most important means "which may serve to gather up the
traditions of a people, transmit them from generation to generation, and thereby
create that continuity of a treasured common life which constitutes a civiliza-
tion." 93 It sets up that barrier upon a completely untenable and fictitious dis-
tinction based upon possession or lack of wealth. It denies to the poor man the
protection of the laws which it grants to the rich man. It is, to be sure, not the
function of the judiciary to usurp the legislative power, but it is equally true that
the power of the legislature is not untrammelled when it cuts across basic rights.
A state may not make individual economic security the touchstone of the right to
individual liberty under our Constitution.
The right to free movement has "preserved for generation after generation,
what Adams calls the American dream, 'the belief in the value of the common man,
and the hope of opening every avenue of opportunity to him.' " 94 But California
seeks to prevent the common man from exercising the rights which may be exer-
cised by one whose sole distinction rests in the number of dollars he possesses.
This is within neither the letter nor the spirit of our Constitution.95
e« 299 U. S. 353, 357. 362 et seq.
& Schneider v. Irvington, 308 U. S. 147. 161.
88 Justice Stone, dissentine in Minersviile School District v. Gobitis, 310 U. S. 586, 604-605.
89 Holden v. Hardy, 169 U. S. 366, 389.
80 Kansas City Southern Ry. Co. v. Kaw Valley Drainage District, 233 U. S. 75, 79.
»i Pennsylvania Coal Co. v. Mahon, 260 U. S. 393. 416.
92 Minersviile School District v. Gobitis, 310 U. S. 586, 596.
93 Ibid., 596; cf. National Resources Committee, Problems of a Changing Population, op. tit., 243.
84 Ryan, op. tit., 5.
•5 cf. Frankfurter, Felix, Law and Politics, 199.
NATIONAL DEFENSE MIGRATION 9999
In connection with the commerce clause we have heretofore discussed the
nation's economic need for the free movement of population. The national need
has its counterpart in the necessities of the individual. In the complex structure
of our modern society it is indispensable to individual liberty that one have the
right to seek economic opportunity wherever it may exist.
"The right to move unhindered from one place to another is as much an element
of freedom as the right to stay where you are. If a man is to make the best use of
his faculties, he must be free to take himself and his belongings from where he is to
where he wants to be. Mobility is more and more essential to freedom in our
modern industrial system, where local industrial conditions are continually
changing, and where everyone must be able to follow his trade and open up new
markets for his personal skill or his products." 96
True as this was over thirty years ago, it is even more true today. Coextensive
with the individual's right to free discussion "to shape the destiny of modern
industrial society" 97 is his right to seek out the opportunity of fitting into a niche
in that same society. His right to free expression by speech and press, free assem-
bly and free worship are liable to become more academic than real without their
implementation by the equally free economic opportunity which is possible within
the framework of our system — when unimpeded by laws such as this. It is as
necessary to the individual that he have the opportunity to seek freely for new
employment as it is to the nation to have a supply of mobile, shifting labor to
meet the complex demands of its economic make-up. In truth, the two are
complementary to one another.
"Today with changing technology and local depletion of mine, forest, and soil,
the people must constantly be moving from old jobs to new. It is the necessary
price of progress." 98 That is not only the necessary price of progress but also the
necessary prerequisite to progress.
This Court has pointed out that the admitted authority of the 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." 89 Can it then be said that it is possible for the state to deny to per-
sons the ordinary means of earning a livelihood by the expedient of barring them
from becoming lawful inhabitants of the state merely because of their economic
status? Is it consistent with the cornerstone of our democracy to deny to
economically underprivileged what the state grants to the economically privileged?
The Court has declared that "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 opportunity that it was the purpose of the
(14th) Amendment to secure." 10° Implicit in the right to work for a living in
the common occupations of the community is the right to go any place where
those occupations may require one to go to in order to exercise that right. The
individual's right to work is any empty one when no work exists at the place
where he is and he is barred by law from going to the place where he believes
it to exist.
Freedom of movement and of residence must be a fundamental right in a demo-
cratic state. This Court has already said: "The liberty mentioned in that amend-
ment (the fourteenth) means * * * the right of the citizen * * * to
live and work where he will." 101 Subsequently it held the "right to establish a
home" 102 to be "without doubt" 103 embraced within the term liberty. In Wil-
liams v. Fears, 179 U. S. 270, 274, Chief Justice Fuller stated: "undoubtedly
* * * the right to remove from one place to another according to inclination
is an attribute of personal liberty * * * and * * * is a right secured
by the 14th Amendment." 104 Even an alien, once admitted to the United States,
has the right of "entering and abiding in any state in the Union" 105 regardless of
his personal financial condition or the state of the labor market.108 Patently, a
citizen of the United States can have no lesser right.107
88 Hobson, J. A.. The Crisis of Liberalism, 99.
« Thornhill v. Alabama, 310 tj. S. 88. 103.
»« Coyle, op. cil., 7.
»» Trnax v. Raich, 239 _U. S. 33, 41.
»°o Ibid.. 41.
mi Algeyer v. Louisiana, 165 U. S. 578, 589.
i»2 Meyer v. Nebraska, 262 U. S. 390, 399.
"J Ibid.
>°* Sep also: Stimson, F. J., The American Constitution as it Protects Private Rights, 99.
«5 Truar v. Raich, 239 U. S. 33, 39.
I"" Gegiow v. Uhl, Commissioner, 239 U. S. 3.
i»7 Joseph v. Randolph, 71 Ala. 499, 504 et seq.
10000 THE EDWARDS CASE
"For all the great purposes for which the Federal Government was formed we
are one people, with one common country. We are all citizens of the United
States, and as members of the same community must have the right to pass and
repass through every part of it without interruption, as freely as in our own
States." 108 It has been reiterated that the right to pass freely from one state
to another is a privilege of federal citizenship protected by the Fourteenth
Amendment.109
Whether freedom of movement and residence be within the aegis of the "privi-
leges or immunities" clause of the Fourteenth Amendment or be embraced within
the term liberty in the "due process clause" of that Amendment, it is a right
essential to a united nation. The liberty of the individual to move and live within
the geographic limits of his government which, in the truest sense, he constitutes
is a basic constitutional right. The right is the more necessary and precious to
those who must migrate because of economic compulsions. The dispossessed
and economically disinherited must have the legally guaranteed minimal right of
freedom of movement; — the same right to seek the improvement of their fortunes,
to seek health, to change their social environment, as those more fortunately
situated. The concept of liberty in any just, ordered democratic society must
include those rights. No democracy can afford, without denying itself, to permit
the legal status of the individual's "liberty" to fluctuate with his economic
condition.
The artificial basis which California attempts to set up as the sole test of
whether the appellant may assist another into the state — the latter's financial
status — violates every concept of fundamental constitutional liberties. It serves
to deprive appellant of his liberty without due process of law as well as to deny
to him the equal protection of the laws.
The protection of this form of government may not be minified by reasons of
temporary economic expediency. "Those who would enjoy the blessings of
liberty must, like men, undergo the fatigues of supporting it." "° The Fourteenth
Amendment is no fair weather protection of the liberties of persons. Its operation
is not limited to times of economic security when there is no pressure upon states
to curtail liberty. It furnishes a "guaranty against any encroachment by the
states upon the fundamental rights which belong to every citizen as a member
of society.111
Conclusion
The judgment appealed from should be reversed and the complaint dismissed.
Respectfully submitted,
Samuel Slafp,
Counsel for Appellant.
Philip Adams,
Wayne M. Collins,
Of Counsel.
>os Crandall v. Nevada, 6 Wall. 35, 48-9.
»">» Slaughter House Cases, 16 Wall. 36, 80; Twining v. New Jersey, 211 U. S. 78, 97: Hague v. C. I. O., 101
F. (2d) 774, 780.
ho Paine, Thomas, Complete Works, Vol. 2, 135.
Hi U. S. v. Cruikshank, 92 U. S. 542. 554.
Appendix
(See maps opposite)
NATIONAL DEFENSE MIGRATION
10001
10002
THE EDWARDS CASE'
NATIONAL DEFENSE MIGRATION
10003
10004 THE EDWARDS CASE
Exhibit No. 5.
In the Supreme Court of the United States. October Term, 1940. No. 588.
Fred F. Edwards, Appellant, vs. The People of the Stale of California, Appellee
and Respondent. Appellee and Respondent's Brief. Charles A. Wetmore,
Jr., Marysville, California, Counsel for Appellee and Respondent. Joseph L.
Heenan, District Attorney of Yuba County, Arthur S. Powell, Deputy District
Attorney of Yuba County, Marysville, California, Of Counsel.
APPELLEE AND RESPONDENT'S BRIEF
Preliminary Statement
Respondent accepts as correct the statement of the case made in appellant's
brief.
The question presented is whether or not the California statute making it a
misdemeanor for any person who brings or assists in bringing into this State
any indigent person who is not a resident of the State, knowing him to be an
indigent person, is valid. We also agree with appellant's re-statement of the
question involved as practically amounting to whether or not a State can actually
exclude paupers from coming into the State. It certainly must be admitted
that if a State cannot constitutionally exclude paupers from its boundaries it
cannot constitutionally prohibit persons from bringing paupers into the State,
and, accordingly our argument will be directed largely to this question.
Appellant has cited no direct holding either by this Court or by any other
federal court on the question involved, and we believe that none exists. How-
ever, we submit that this Court on numerous occasions has repeatedly and over
a long period of 37ears stated by way Of strong dictum that a State may close
its borders to the interstate movement of paupers. We submit that this right
of States to protect themselves against the influx of paupers is one of the inherent
rights of a State not delegated by the Constitution of the United States or any
amendment thereof.1
II
Section 2615 of the Welfare and Institutions Code of California Is
Constitutional Because It Constitutes a Valid Exercise of the
Police Power of the State
We submit that Section 2615 of the Welfare and Institutions Code of Cali-
fornia which makes it a misdemeanor for any person who brings or assists in
bringing into the State an indigent person who is not a resident of the State,
knowing him to be an indigent person, is a valid exercise of the police power of
the State.
It would appear from its very nature the police power reserved to the States
under the Constitution cannot be given any limited or specific definition but
consists of the power to regulate the relative rights and duties of all within the
State's jurisdiction so as to guard the public morals, the public safety, the public
health, and the common good or what is more usually referred to as the general
welfare of the people therein.
The Government of the United States being one of enumerated powers, those
not granted by the Constitution to the Federal Government are necessarily
reserved to the States.2 The police power, an inherent attribute of State sover-
eignty,3 was never surrendered to the Federal Government. The Supreme
Court of the United States has always recognized this fundamental right as
existing with the States.4
We submit that the Supreme Court earlv recognized in the case of The Mayor
etc. of New York v. Miln (1837), 11 Pet. 102, 9 L. Ed. 648, the right of a State
to exclude paupers from its boundaries under its police power. Section 1 of the
State statute in the Miln case provided that the master of any ship arriving
in the port of New York from any country out of the United States, or from
i Home Building & Loan Ass'n v. Blaisdell, 54 S. Ct. 231, 290 U. S. 398.
2 Supra, note 1.
3 State of Ohio v. Helvermq, Ohio, 292 U. S. 360, 78 L. Ed. 1307.
* Jacobson v. Mass., 197 U. S. 11, 25 S. Ct. 358, 49 L. Ed. 643; Slaughter House Cases (1873), 16 Wall. 36, 21
L. Ed. 395; House v. Mayes (1910), 219 U. S. 270, 55 L. Ed. 213, 31 S. Ct. 234; Pierce v. New Hampshire (1847),
6 How. 554, 12 L. Ed. 279.
NATIONAL DEFENSE MIGRATION 1000*5
■any other of the United States than the State of New York, should within twenty-
four hours after the arrival of such ship, report in writing to the mayor of the
city the name, place of birth, age and occupation of every person brought as a
passenger on the ship with a penalty of $75.00 for each person not so reported.
The defendant, a ship master who was sued under this statute, contended that
the law was a regulation of commerce and therefore void. The Supreme Court
■sustained the constitutionality of the statute on the grounds that the object of
the statute was to prevent the State of New York from being burdened with
paupers, and that the purpose of the required report was to enable the city to
take necessary steps preventing persons coming into the State from becoming
chargeable as paupers. The Court held the statute valid as a proper exercise
of the police power to control and exclude paupers. Justice Barbour in deliver-
ing the opinion of the Court stated:
"Now, in relation to the section in the act before us, that is obviously
passed with a view to prevent her citizens from being oppressed by the
support of multitudes of poor persons, who come from foreign countries
without possessing the means of supporting themselves. There can be no
mode in which the power to regulate the internal police could be more ap-
propriately exercised."
Justice Barbour further stated:
"We think it as competent and as necessary for a State to provide pre-
cautionary measures against the moral pestilence of paupers, vagabonds, and
possible convicts, as it is to guard against the physical pestilence which may
arise frcm unscund and infectious articles imported, or from a ship, the crew
of which may be laboring under an infectious disease."
It is unfortunate that Section 2 of the statute which provided that the master
of the vessel should be bound in sureties in a sum not to exceed $300.00 for every
passenger in order that the city be saved harmless from the possible maintenance
of such persons was not actually passed upon. It was not counted upon in the
original declaration which was demurred to and certified to the Circuit Court and
finally before the Supreme Court.5 Section 2 of the New York statute was clearly
anti-pauper legislation, and although Justice Barbour's opinion seems to consider
the lact as a whole, nevertheless, Section 1 which merely required the report of
the master as to all his passengers was the only section actually before the Court,
and the consideration of which was necessary to the decision. Hence, what, but
for a limited certification, would have been a direct holding on the right of a State
to exclude paupers fi under its police power is relegated to the status of very strong
dictum. We urge that in \iew of the unequivocal opinion of the Court in the
Miln case there can be little doubt that had the last mentioned issue been squarely
before the Court its validity would likewise have been favorably passed upon.
Due to the confusion ovf>r the actual issue involved in the Miln case, it was cited
by Justice Grier in his opinion in the Passenger Cases, 7 How. 283, 12 L. Ed. 775,
as being an express holding upon the question.
Following the Miln case the Supreme Court on numerous occasions reiterated
the right of a State in the exercise of its police power to exclude paupers from its
limits.7
In conformity with earlier dicta to the effect that the exclusion of paupers from
a State was a valid exercise of State police power, this Court finally had occasion
to make a direct holding that the exclusion of immigrant paupers from the
United States was a valid exercise of the federal police power. In the case of
Kaoru Yamataya v. Fisher (better known as the "Japanese Immigrant Case"),
189 U. S. 86, the United States immigration officers refused to allow plaintiff,
a Japanese citizen, to enter the United States on the ground that she was a pauper
and therefore came within the provisions of the Immigration Act of 1901 which
provided for the exclusion of, among others, paupers or persons likely to become a
public charge. Plaintiff contended that this statute was invalid as it conflicted
with a treaty with Japan which treaty provided that all Japanese citizens had full
liberty to enter, travel or reside within the United States. However, the treaty
expressly excepted from its operation any regulations relating to "police and public
» See concurring opinion of Justice Thompson in the Miln case.
• It is to be noted that the opinion in the Miln case purports to uphold the exclusion of: (a) Paupers from
without the U. S. (b) Paupers from other states of the tj. S. Various Acts of Congress subsequently pro-
hibited the immigration of alien paupers.
» Hannibal & St. Joseph R. R. Co. v. Uusen (1878), 95 U. S. 465, 24 L. Ed. 527; In re Ah Fong (1874), 3 Saw.
144, 1 Fed. Cases 213; Henderson v. Wickham (1875), 92 U. S. 259, 23 L. Ed. 543; Chy Lung v. Freeman (1876),
92 TJ. S. 275, 23 L. Ed. 550; Passenger Cases, supra; Plumly v. Mass. (1894), 155 U. S. 461; Missouri K. and T.
Ry. v. Haber (189S), 169 U. S. 613.
10008 THE EDWARDS CASE
security". Consequently, the issue squarely before the Court was whether or not
the statute was a valid police regulation. The Supreme Court held that the
statute was a valid exercise of the police power, and Mr. Justice Harlan, in
delivering the opinion of the Court, stated:
"A statute excluding paupers or persons likely to become a public charge is
manifestly one of police and public security."
In the "Japanese Immigrant Case" the Supreme Court necessarily held that
the exclusion of paupers was a police measure properly to be exercised by the
Federal Government. Surely, if such exclusion of paupers in immigration is a
valid federal police measure, it would also follow that the same exclusion by
the States would be but the States' exercise of the same kind of power and valid
under the reservation of such power by the several States under the Constitution.
Section 2615 of the California Welfare and Institutions Code is a 'reenactment
of the identical statute which was originally passed by the California legislature
in 1901 (Cal. Stats. 1901, p. 636, Sec. 3) reenacted in 1933 (Cal. Stats. 1933, p.
2010, Sec. 13) and finally placed in the Welfare and Institutions Code by the
legislature in 1937 where it has since remained. Thus, California has for forty
years realized the need for police legislation against the immigration of paupers,
although events of the last ten years have made this problem increasingly acute
because of the attraction to California of paupers from other States because of
higher relief benefits, old age pensions, etc. However, the Supreme Court of
California never had an opportunity to pass upon this statute, although it was
indicated at an earlier date that such a statute would be a valid exercise of the
State's police power.8
Many other States have statutes similar to the California statute 9 but their
validity has never been passed upon by the Supreme Court.
Inasmuch as the police power of a State consists in its power to regulate the
health, safety, morals and general welfare of all within its jurisdiction, we submit
that the California statute comes within all of these general classifications.10
Although in 1901 when the statute under consideration was originally enacted
there was no acute pauper emigration to California, the last decade has developed
a problem from this source staggering in its proportions.
A social problem in the south and southwest for over half a century, the "poor
white" tenants and share croppers, following reduction of cotton planting,
droughts and adverse conditions for small scale farming, swarmed into California.
These unfortunate people were usually destitute when they arrived. Their
ordinary routine has been, upon coming to California, first to go on Federal
Relief for one year and then on to State and County Relief rolls indefinitely.
After they earn a little money in the harvests they send back home transportation
for their relatives, generally the aged and infirm, and these immediately become
and continue public charges. They avoid our cities and even our towns by
crowding together in the open country and in camps under living conditions
shocking both as to sanitation and social environment. Underfed for many
generations they bring with them the various nutritional diseases of the South.
Their presence here upon public relief, with their habitual unbalanced diet and
consequently lowered body resistance, means a constant threat of epidemics.
Venereal diseases and tuberculosis are common with them and on the increase.
The increase of rape and incest are readily traceable to the crowded conditions in
which these people are forced to live. Petty crime among them has featured
the criminal calendars of every community into which they have moved. As
proven by experience in agriculture strikes, they are readily led into riots by
agitators although it must be said they stubbornly resist all subservient influences,
being loyal Americans whose only wish is for a better chance in life. Their
coming here has alarmingly increased our taxes and the cost of welfare outlays,
old age pensions, and the care of the criminal, the indigent sick, the blind and
the insane. Therefore, how can it be said that California should not have the
power in the protection of the safety, health, morals and welfare of its people, to
bar proven paupers among these indigents from our State? Should the States
that have so long tolerated and even fostered the social conditions that have
reduced these people to their state of poverty and wretchedness, be able to get
rid of them bv low relief and insignificant welfare allowances and drive them into
8 State v. S. S. Constitution (1872), 42. Cal. 578.
« State v. Cornish (1890), 66 N. H. 329. 21 A. 170; Pitkin County (1893), 3 Colo. App. 328, 33 Pac. 143; Super,
of Poor of Newaygo v. Nelson (1899), 42 N. W. 797; Coe v. Smith (1841), 24 Wend. 341.
' io St. Louis & S. F. R. R. Co. v. Mitthews. 165 U. S. 1, 41 L. Ed. 611, 17 S. Ct. 243; Mountain Timber Co.
v. Washington, 243 U. S. 219, 61 L. Ed. 685, 37 S. Ct. 260; Home Bldg. & Loan Ass'n v. Blaisdell, 290 IT. S.
398, 54 S. Ct. 231. 78 L. Ed. 413.
NATIONAL DEFENSE MIGRATION 10007
California to become our public charges upon our immeasurably higher standard
■of social services? Naturally, when these people can live on relief in California
better than they can by working in Mississippi, Arkansas, Texas or Oklahoma,
they will continue to come to this State.
Ill
Reply to Appellant's Brief
Appellant first contends that the California statute violates the Commerce
clause of the Constitution of the United States u on the ground that the passage
of persons frcm State to State is interstate commerce and consequently a State
statute designed to obstruct the free passage of persons into a State is an at-
tempted regulation of commerce and as such is null and void. We agree with
appellant's declaration that the movement of persons from one State to another
constitutes interstate commerce under the early definition laid down by Mr.
Chief Justice Marshall in the famous case of Gibbons v. Ogden, 9 Wheaton 1,
wherein it was stated that commerce is "intercourse."
However, we heartily disagree with appellant's further contention that because
a State statute happens to affect interstate commerce that it is necessarily void.
We submit that the commerce clause is subject to a valid exercise of a State's
police power and if a statute is a proper police measure it is valid even though
interstate commerce may be incidentally affected.12 This right was early recog-
nized by the Court in Hannibal and St. Joseph R. R. Co. v. Husen, 95 U. S. 465,
wherein the Court stated:
"We admit that the deposit in Congress of the power to regulate foreign
commerce and commerce among the States was not a surrender of that
which may properly be denominated police power."
The Court then went on to add:
"It may also be admitted that the police powers of a State justify the
adoption of precautionary measures against social evils. Under it, a State
may legislate to prevent the spread of crime or pauperism or disturbances
of the peace. It may exclude from its limits convicts, paupers, idiots and
lunatics, and persons likely to become a public charge, as well as persons
afflicted by contagious or infectious diseases."
This Court has also taken the position that such State regulation of paupers
is not violative of the commerce clause by simply declaring that paupers, indi-
gents, and vagabonds are not legitimate subjects of interstate commerce. In
the License Cases, 5 How. 504, 12 L. Ed. 256, the Court stated:
"It is to be remembered that disease, pestilence and pauperism are not
subjects of commerce.
* * * They are not things to be regulated and trafficked in, but to be
prevented as far as human foresight or human means can guard against them."
Again in the Passenger Cases, 7 How. 283, 12 L. Ed. 702, the Court said:
"But I have said the States have a right to turn off paupers, vagabonds and
fugitives from Justice, and * * * When Congress shall legislate — if it
be not disrespectful for one who is a member of the judiciary to suppose
so absurd a thing of another department of the government — to make
paupers, vagabonds, suspected persons and fugitives from justice subjects
of admission into the United States, I do not doubt it will be found and
declared should it ever become a matter for judicial decision, that such
persons are not within the regulating power which the United States has
over commerce. Paupers, vagabonds, and fugitives never have been sub-
jects of rightful national intercourse, or of commercial regulation, except in
the transportation of them to distant colonies to get rid of them, or for
punishment as convicts."
Thus, the Supreme Court has consistently declared that the exclusion of
paupers by a State is not violative of the commerce clause.
ii U. S. Const. Article I, Sec. 8. CI. 3.
12 Bayside Fish Flour Co. v. Gentry, 297 U. S. 422, 59 S. Ct. 513; Great Northern R. Co. v. Washington, 300
U. S. 154, 81 L. Ed. 573, 57 S. Ct. 397; Denver & R. G. R. Co. v. Denver, 250 U. S. 241, 63 L. Ed. 958, 39
S. Ct. 450.
10008 THE EDWARDS CASE
Appellant also contends that the California statute violates the due process
and equal protection clauses of the 14th Amendment of the Constitution of the.
United States. Our answer to this contention is that the 14th Amendment is
subject to a valid exercise of the police power of the States, as the passage of this
amendment did not effect a surrender of this power to the Federal Government.
Justice Field in his opinion in the case of Barbier v. Connolly, 113 U. S. 27, 5 S. Ct.
357, very clearly brought out this proposition when he stated:
"But neither the Amendment, broad and comprehensive as it is, nor any
other amendment was designed to interfere with the power of the State,
sometimes termed its 'police power', to prescribe regulations to promote the
health, peace, morals, education and good order of the State, develop its
resources and add to its wealth and prosperity."
And in Louisville & N. R. Co. v. Melton, 218 U. S. 36, 30 Sup. Ct, 676, the Court
said:
"That the 14th Amendment was not intended to and does not strip the
states of the power to exert their lawful police authority is settled, and re-
quires no reference to authorities."
It is true that the 14th Amendment protects the life, liberty and property of
persons within the boundaries of the United States, but as the Supreme Court has
explicitly and repeatedly reiterated this protection is subject to reasonable police
regulation by the States.13 It may be said that the great majority of our laws,
whether State or national, in some way restrict our liberty, but as they are neces-
sary limitations and are for the common good, it cannot be contended that they
are invalid.
IV
Conclusion
The State of California does not wish to shirk or evade the responsibilities of
taking care of its own indigents, but does not desire and is not in a position
to shoulder the burden of caring for the indigents from a great many of her sister
States, expecially from the regions of the Great Plains and the South.
California has already been doing far more than her share of providing for her
own indigents as well as for the general influx of indigents from other States. The
amount of aid extended through State and county public assistance agencies in
California has risen from $82,820,943.46 for the period of June, 1936, to July,
1937, to $138,160,668.26 for the period of January, 1940, to February, 1941. 14
During the period from July 1, 1935, through 1939 inclusive, more than 350,000
migrants whose breadwinners were in need of manual employment entered
the State of California by automobiles at border checking stations maintained by
the Department of Agriculture.15 That the total number of migrants who have
entered California during this period was far in excess of this figure is evident when
it is realized that no count has been made of persons in need of manual employ-
ment entering the State by bus, as coach passengers on railroad trains, or as riders
on freight trains.16
In the decr.de 1930-1940 the ret migration into this State, that is, arrivals less
departures, has been more than 1,200,000 persons, according to the best available
estimates.
However, there is no evidence of any commensurate increase in the available
gainful occupations or employment in California during the past decade. In
agriculture, there has been no substantial increase in the number of persons
gainfully occupied as farmers or laborers, in 1940 as compared to 1930.
The 25 percent increase in California's population over the decade has not been
compensated by a relatively greater increase in employment, and every factory
employment showed less than a 15 percent increase in employment, over 1929
during the peak year of 1937.17 Any near future increase in employment due
to defense industries in this State will necessarily be temporary.
is Nebbia v. New York, 291 U. S. 502. 78 L. Ed. 940 54 S. Ct. 505: Lacoste v. Department of Conservation,
263 U. S. 545, 68 L. Ed. 437, 44 S. Ct. 186; Keller p. United States, 213 U. S. 138, 29 S. Ct. 470, 53 L. Ed. 737.
M Summary of Public Assistance. February, 1941, State of California Department of Public Welfare.
is Migrants — A National Problem — and Its Impact on California. California State Chamber of Commerce,
May, 1940.
«• Ibid
" Ibid, 10.
NATIONAL DEFENSE MIGRATION 10009
In such areas as the Sacramento and San Joaquin Valleys, where the resident
population of entire counties has been increased by 40 or 50 percent within a
five-year period, with more than half of this increase concentrated within a
two-year period, there have developed some acute problems of housing, health and
sanitation, education of children, hospitalization, and relief.18
The outlays of many counties for education, sanitation, and hospitalization
increased during this five-year period from 100 per cent to 300 per cent.19
One of the consequences of the large influx of indigents into California ffom
the other States has been to increase the combined county and local district tax
levies approximately 100 per cent in the five southern San Joaquin Valley counties,
50 per cent in the six adjacent valley agricultural counties to the north, 55 per cent
in Los Angeles County, and 38 per cent over the remainder of the State.20
Further evidence of the dependency of the recent indigents upon relief in the
various counties in the State is furnished by an analysis of the heads of families
on the State unemployment relief rolls, as of February, 1939. 21
In Madera County, for example. 55 per cent of the heads of families on the
State relief rolls during February, 1939, had been in the State less than five years.
In Tulare County the comparative percentage was 52 per cent. In Merced and
Kern counties it was approximately 46 per cent. In Stanislaus County it was 45
per cent, and in Yuba County 38 per cent.22
Although adequate data are not available on the average earnings of unskilled
workers either prior or following the influx, it would seem obvious that the impact
of the migration has been to reduce average earning per worker.
The State of California has higher relief benefits and old age pensions than any
other State in the union,23 and consequently, indigents are encouraged to depart
from the State of their origin and trek to this State in the hope of bettering them-
selves. On the other hand, many of the sister States keep their relief and old age
benefits extremely low in order to encourage their indigents to leave the State and
go elsewhere, usually to California.
For example, payments to general relief cases during the month of January,
1940, amounted to $31.35 per case in California, as compared to $4.86 in Arkansas,
$4.96 in Oklahoma, and $7.08 in Texas.24
Average monthly payments to recipients of old-age aid in California were
$38.C0 per case, compared to $6.00 in Arkansas, $8.91 in Texas, and $17.58
in Oklahoma.25
Aid to dependent children averaged $43.94 per family in California, compared
to $8.12 in Arkansas and $12.24 in Oklahoma. Texas has no such program.26
It should also be noted that the California figures included only cash payments
provided to the various groups mentioned and do not include any estimate of the
value of surplus commot ities provided in addition to cash.
Thus, it appears that California by her humanitarian policy of better providing
for indigents than have thj other States has in turn been made to suffer by such
course through the less ge> erous policies of many of her sister States.
In the event the California statute is not upheld, persons, agents, corporations,
etc., will be allowed to continue bringing in and assisting in bringing into this
State more indigents from the other States, with the result that the relief burden
will become prohibitive, wages for unskilled labor will continue downward due to
the oversupply of such labor, and the State itself will eventually become bankrupt.
Finally, we submit that the Supreme Court has repeatedly laid down the funda-
mental rule that there exists a presumption in favor of the constitutionality of a
legislative enactment,27 and has laid down the additional principle that the pre-
sumption of constitutionality of a statute dealing with a subject clearly within
the scope of the police power prevails in the absence of some factual foundation of
record for declaring it to be unreasonable.28
is Special Tabulation by California Taxpayers' Asociation.
i» Ibid,
so Ibid.
» Data Furnished by the Division of Planning and Research of the California State Relief Administration .
» Ibid.
" See Table 1, Appendix.
« Ibid.
»» Ibid.
»» Ibid.
27 Butterjield v. Stranahan, 192 U. S. 470, 48 L. Ed. 525, 24 S. Ct. 349; Powell v. Pennsylvania, 127 U. 8-
i'i 32 L. Ed. 253, 8 S. Ct. 992; Fletcher v. Peck, 6 Cranch 87, 3 L. Ed. 162.
" O'Gorman & Young v. Hartford F. Ins. Co., 282 U. S. 251, 75 L. Ed. 324, 51 S. Ct. 130.
60396 — 42— pt. 26-
10010
THE EDWARDS CASE
We further submit that appellant has failed to meet the burden of showing
that the California statute is invalid.
The judgment appealed from should be affirmed.
Dated, Marysville, California.
April 21, 1941.
Respectfully submitted,
Joseph L. Heenan,
District Attorney of Yuba County.
Arthur S. Powell,
Deputy District Attorney of Yuba County,
Of Counsel.
(Appendix follows.)
Appendix
Charles A. Wetmore, Jr.,
Counsel for Appellee and Respondent.
Comparative public assistance data — January 1940
General relief '
W. P. A.»
State
Number
of cases
Obliga-
tions in-
curred
Average
amount
per case
Persons
em-
ployed
Earnings
Average
per per-
son
160, 534
12, 039
24, 349
2,886
3,768
29, 112
35, 955
13, 100
15, 400
$5, 033, 304
193, 569
349, 936
41, 258
18, 328
424, 001
461, 076
65, 000
109, 000
$31. 35
16.08
14.37
14.30
4.86
14.56
12.82
4.96
7.08
86, 096
14, 498
25, 608
5,821
42, 132
25, 325
76, 757
45, 906
88, 680
$5, 379, 000
872, 000
1, 501, 000
337, 000
1, 789, 000
1, 259, 000
4, 061, 000
1, 878, 000
3, 638, 000
$62. 48
Oregon _
60.15
58.61
57.89
42.46
Kansas - - ... .- -- -
49.71
52.91
Oklahoma3...
Texas3
40.91
41.02
State
Old-age assistance
Number
of re-
cipients
Obliga-
tions in-
curred
Average
per per-
son
Aid to dependent children
Number
of
families
Obliga-
tions in-
curred
Average
per
family
California...
Oregon
Washington
Arizona
Arkansas...
Kansas
Missouri
Oklahoma. .
Texas
134, 740
20, 521
39, 098
7,848
18, 464
26, 236
79,280
70, 546
119, 900
$5, 120, 596
437, 740
861, 880
211,677
110,806
505, 407
1, 307, 863
1, 240, 373
1, 068, 107
$38. 00
21.33
22.04
26.97
6.00
19.26
16.50
17.58
8.91
14,513
1,918
4,811
2,482
4,051
6,139
9,902
17, 482
0
$637. 644
76, 560
143, 654
79,912
32, 904
175, 212
231, 635
213, 896
0
$43.94
39.92
29.86
32.20
8.12
28.55
23.39
12.24
0
1 Includes cases receiving hospitalization and for burial only, not previously reported.
2 W. P. A. and other federal agencies, December, 1939.
3 Estimated.
Source: January issue of Public Assistance — Social Security Board.
NATIONAL DEFENSE MIGRATION 10011
Exhibit No. 6.
ORDER OF SUPREME COURT DIRECTING REARGUMENT
Order of the Supreme Court directing reargument and requesting the appearance
of the attorney general of the State of California. Fred F. Edwards, Appellant,
vs. The People of the State of California. Monday, May 5, 1941. No. 588
REARGUMENT ORDERED
The case is set for oral argument on Monday, October 13, next, and the At-
torney General of the State of California is requested to appear either in person
or by his representative to present the views of the State with particular reference
to the judicial or administrative interpretation by State authorities of the statute
involved.
10012 THE EDWARDS CASE
Exhibit No. 7.
In the Supreme Court of the United States. October Term, 1941. No. 17.
Fred F. Edwards, Appellant, vs. The People of the State of California, Ap-
pellee and Respondent. Earl Warren, Attorney General of the State of Cali-
fornia, W. T. Sweigert, Assistant Attorney General of the State of California,
Hiram W. Johnson, 3rd, Deputy Attorney General of the State of California,
600 State Building, San Francisco, California, Attorneys for Appellee
BRIEF OF THE ATTORNEY GENERAL OF THE STATE OF CALIFOR-
NIA ON BEHALF OF APPELLEE
The Response of the Attorney General to the Request of the Court
The Attorney General of California responds to the request of this Honorable
Court made under date of May 5, 1940 that he appear either in person or by his
representative to present the views of the State with particular reference to the
judicial or administrative interpretation by State authorities of the statute in-
volved, to wit, section 2615 of the Welfare and Institutions Code of California,
making it a misdemeanor for any person, firm or corporation to bring or assist
in bringing into the State any indigent person, not a resident of the State, know-
ing such person to be indigent.
In connection with our response to the Court's request, we present this brief,
together with a separate reference Supplement containing such particular infor-
mation as might assist the Court in the determination of the case.
This brief presents a summary of the administrative and judicial interpreta-
tion of the statute by State courts and authorities, as far as the statute can be
said to have been interpreted by them, also a summary of the history of the
statute and its relation to other statutes and administrative rules pertaining to
relief of both resident and non-resident persons, and also an expression of the
views of the Attorney General respecting the interpretation and validity of the
section.
References are made to the separate Supplement for such detail as the Court
may wish to pursue. In the separate Supplement particular information is
collected under the headings set forth in the Index to Supplement.
We have set forth as Exhibit No. 1, pp. 1-24 of the Supplement, the full text
of the Rubinow statement, prepared by the Bureau of Statistics of the State
Relief Administration, on The Problem of Interstate Migration As It Affects
the California State Relief Administration, because this statement gives the best
factual summary of the problem which we have found, and we believe it will
interest and assist the court.
The Issue Presented in the Case
We agree with the view of counsel for appellant and the statement of the
District Attorney of Yuba County in his brief for appellee (Appellee's Brief , page 1)
that this case presents the issue of the constitutionality of section 2615 of the
Welfare and Institutions Code of the State of California under the Constitution
of the United States.
However, for reasons hereinafter set forth, we are of the opinion that the issue
cannot be stated as broadly as counsel for appellant and the District Attorney
have agreed.
In Appellant's Brief (page 20) it is stated that "* * * the problem here
posed resolves itself down to whether the indigent, Duncan, could have been
constitutionally barred from California, solely because of his indigency, without
being deprived of liberty without due process". In the District Attorney's brief
(page 2) he states "we also agree with appellant's restatement of the question as
practically amounting to whether or not a State can actually exclude paupers from
coming into the State".
We are of the opinion that there is a material distinction between absolute
exclusion of indigents from the State and a limited provision designed to prohibit-
other persons from bringing, or assisting in bringing, indigents into the State, and
we will shortly explain our reasons for making this distinction.
' NATIONAL DEFENSE MIGRATION 10013
The Statute Does Not Reflect the Actual Policy op the State of Cali-
fornia With Respect to Indigents From Other States — California's
Actual Policy and Problem
Truly, California has been developed as a result of the westward movement of
population through the years; it has been the beneficiary of an influx from other
parts of the nation of brain, of brawn, of heart, of initiative, of ambition. Cali-
fornia is not unmindful of its history, its heritage in this respect, nor is California
unaware of the possibilities that still may be realized in the State from this source.
California has never practiced a policy inconsistent with this acknowledgment
or based upon any attitude toward citizens of sister states, other than an attitude
of warn? friendship, especially for those who have little to bring to California except
their health, and the character and hope that build cities and states and nations.
No greater proof of this truth could be found than the fact that, although this
particular law has been on the statute books of the State in one form or another
for more than three quarters of a century (Supp., Ex. 4, pp. 43-47), and although
it is patterned on similar laws long in force in twenty-seven other states of the
Union (53 Harv. L. Rev., p. 1033, n. 15), California has resorted to its provisions,
so far as our research has disclosed, only thirteen times in all those years. (Supp.,
Ex. 6, pp. 58-86.)
We believe that the Court will indulge this diversion from purely legal con-
siderations because a certain just pride may be taken in the fact that, notwith-
standing California has borne a heavier share of the abnormal migration of recent
years than any other State (Supp., Ex. 1, pp. 11-16), the problem at times reach-
ing points of grave crisis, and notwithstanding this particular law has been avail-
able at all times, California authorities have resorted to it but rarely, and even
then only in two counties of the State, besides the county involved in the pending
case, counties that were being pressed at the time almost beyond endurance by the
exigencies of the problem. (Supp., Ex. 1, pp. 13-14.) (See also District Attor-
ney's Brief for Appellee, p. 16.)
This quite clearly indicates that, prescinding entirely from the availability and
validity of a penal statute like section 2615 of the Welfare and Institutions Code,
California has in practice preferred to deal with the problem as far as humanly
possible by other means more adaptable to the circumstances of individual cases
of migratory indigency. (Supp., Ex. 1, pp. 6-8.)
These policies and practices have been based upon the principle that indigence
in migration has become a condition, not a theory, and that, however over-
whelmed the State or the counties might be, such persons, particularly families,
must be accepted and cared for to such extent as might be at all consistent with
the welfare of the states and counties and the welfare of the persons involved.
(Supp., Ex. 1, pp. 6-8.)
For example, the various counties of the State, administering aid to indigent
persons, have always had the power to extend such emergency relief to dependent
nonresidents as the respective boards of supervisors deem necessary (Wei. & Inst.
Code, sec. 2501; Supp., Ex. 3, p. 38), notwithstanding the residence restrictions
otherwise applicable (Wei. & Inst. Code sees. 2555, 2556; Supp., Ex. 3, pp. 39-40),
and the power to provide transportation for indigents to other counties or states
when such indigents will thereby cease to become public charges, or when friends
or relatives of such indigents agree to assume the cost and expense of the care and
maintenance of such indigents, or when the indigents are legally public charges
in the places to which they are so transported. (Wei. & Inst. Code, sees. 206,
2502; Supp., Ex. 3, pp. 37, 38.)
Likewise, the State Relief Administration, which has since 1933 administered
relief of hardship and destitution due to unemployment, has modified its rules
realistically to extend aid to non-residents when necessary by reason of the un-
availability of federal funds for transient migrants. (Supp., Ex 8, pp. 100, 102.)
It is estimated that between July, 1933 and June, 1940 more than 300,000
persons received aid within one year after they had come to California, i. e., more
than 32% of an estimated total migration of 957,000 persons to California during
the period, and it is further estimated that the State Relief Administration,
operating under the various State Relief Administration statutes, expended for
these 300,000 non-residents a total of approximately $13,000,000 during the
period, consisting of State Relief Administration funds and funds granted to the
State Relief Administration by the Federal Emergency Relief Administration.
(Supp., Ex. 1, pp. 12-13.)
These grants from the Federal Emergency Relief Administration, between 1933
and 1936, amounted to $8,978,713.18. (Supp., Ex 8, p. 101.) The balance of
$4,021,286.82 represented actual State funds.
10014 THE EDWARDS CASE
The above figures do not include whatever portion of the more than quarter
billion dollars (Supp. Ex. 7, pp. 87-93), expended by the counties of the State for
indigent aid, general relief, needy aged, needy blind, needy children, under the
Welfare and Institutions Code, may have been expended for emergency relief to
non-residents, no segregated report for such aid to non-residents being available.
Nor do the above figures include a total of $12,418,617 expended directly by the
Federal Farm Security in California for aid to needy agricultural migrants during
the period 1938 to date. (Supp., Ex. 8, p. 105.)
The total of actual State funds expended by the State Relief Administration
during the period 1933 to June, 1940, for the relief of hardship and destitution due
to unemployment, was approximately $160,000,000, exclusive of administrative
costs. (Supp., Ex. 7, pp. 92-93.) So, we may say that approximately 2>2%
of State funds expended for relief by the State Emergency Relief Administration
during the period was for aid to non-resident transient indigents.
As the District Attorney of Yuba County has pointed out in his brief (District
Attorney's Brief, pp. 16-18), California is second to no state in the Union when it
comes to consideration, generosity even, for those persons who stand, unfor-
tunately, in need of relief for any reason, whether unemployment, old age or child
helplessness. (See also Supp., Ex. 7, p. 87.)
The rate of relief per case in California, as the District Attorney points out in a
table set forth in the appendix to his brief, runs an average amount per case of
$31.35 as compared with the next highest state, $16.08, and as compared with
$7.08 in Texas, the state from which the alleged indigent, Duncan, was brought by
Edwards, the defendant in the pending case.
Certainly, this does not indicate that California during this period was com-
mitted to any actual policy of exclusion from California of indigent persons from
other states or that it has attempted to build a "Chinese wall" around the State
or set up a "statutory border patrol" as suggested by counsel for appellant.
(Appellant's Brief, pp. 14, 15.)
This situation does indicate, however, that California has been faced and is
faced with a problem of great importance to its citizens, not only because of the
expense involved, but because of those health, moral and crime problems inevitably
attendant upon an abnormal influx of persons unable to maintain themselves
(Supp., Ex. 1, pp. 4, 5, 20), problems rendered more complex because of the state
and county residence requirements ordinarily applicable in the administration of
relief. (Supp., Ex. 8, pp. 94-100.)
We have set forth in the Supplement to this brief (Ex. 2, pp. 25-35) a series of
Resolutions adopted by the California legislature referring to the seriousness of the
migrant problem in California and calling upon the Federal Government to recog-
nize its existence by aid to the State and by means of federal legislation.
Welfare and Institutions Code Section 2615 — History and Background
We have set forth in the Supplement to this brief the detail respecting the legis-
lative history of section 2615. (Supp., Ex. 4, pp. 43-47.)
It has been in the Welfare and Institutions Code in its present form since 1937,
the year of the adoption of the code. Prior to 1937 the section existed in substan-
tially the same form from 1933, in an act to provide for the aid and relief of dindi-
gents. Prior to 1933 the statute existed from 1901, in an earlier act to provide
for the maintenance and support of indigents and other persons, in form similar
to the present section, except that the misdemeanor was described as the "* * *
bringing or leaving "within, or aiding in the bringing into or the leaving within, of
any pauper or poor or indigent or incapacitated or incompetent person, as hereto-
fore mentioned, in any county or city and county in the State of Califor-
nia * * *". (Supp., Ex. 4, p. 45.) Prior to 1901, however, and from 1860,
and up to 1937, without express repeal until that year, a section substantially
similar to the present section existed as section 18 of an act pertaining to county
infirmaries for the relief of the indigent, specifically referring to the bringing of poor
or indigent persons into the State from any place without the State, and fixing a
penalty in the form of a fine. (Supp., Ex. 4, p. 46.)
We have also set forth in the supplement to this brief the detail respecting the
Welfare and Institutions Code of which section 2615 is a part. (Supp., Ex. 3,
pp. 36-42.) The Welfare and Institutions Code brought together in 1937 a number
of statutes dealing with State institutions and general welfare, and the Code, as
set forth in the supplement, gives the plan and rules for institutional and relief
work long existing in California, the scheme of which was county responsibility
for the general relief of indigent persons, supplemented by State aid to counties
NATIONAL DEFENSE MIGRATION 10015
for needy children, aged persons and needy blind, and further supplemented by
State maintenance of various hospitals and institutions.
In 1933, however, as depression and unemployment persisted alarmingly,
California sets up a further and separate system "for the relief of hardship and des-
titution due to and caused by unemployment" and this sytem, operating as the
State Relief Administration, under statutes separate from the Welfare and Insti-
tutions Code, extended direct relief pursuant to these statutes and the rules estab-
lished thereunder. This State system for the administration of relief, and its
relationship to the county system of relief operating under the Welfare and
Institutions Code, is described in the Supplement to this brief, Exhibit 8, pp.
97-106.
Administrative Interpretation of Welfare and Institutions
Code Section 2615
No rule specifically interpreting section 2615 exists in any administrative agency
of the State, in neither the Department of Social Welfare, which has supervisory
powers over the administration of poor relief by public agencies under the Welfare
and Institutions Code (Wei. & Inst. Code sec. 113), nor in any of the counties,
administering aid to indigents under that Code (Wei. & Inst. Code sec. 2500,
Supp., Ex. 3, p. 37) nor in the State Relief Administration, administering State
relief under the various State Relief Administration statutes. (Supp., Ex. 8,
p. 97.)
However, the various counties of the State have adopted certain rules of policy
and practice pertinent to the interpretation of the term "indigent person" as used
in the Welfare and Institutions Code of which section 2615 is a part.
Also, the State Relief Administration has adopted rules of policy and practice
pertinent to the interpretation of the term "hardship and destitution due to and
caused by unemployment" as used in the State Relief Administration statutes.
Before referring to these rules, we wish to point out certain statutory provisions
pertinent to the interpretation of the term "indigent person" as used in the
Welfare and Institutions Code.
Section 2615 is contained in Division IV of the Code entitled, "Indigent Per-
sons". In the supplement to this brief, Ex. 3, pages 36-42, we have set forth the
sections of that Division related in any way to section 2615.
Section 2500 provides that every county "shall relieve and support all in-
competent, poor, indigent persons and those incapacitated by age, disease or
accident, lawfully resident therein, when such persons are not supported and
relieved by their relatives or friends, or by their own means, or by State hospitals
or private institutions".
As already mentioned, counties are given power to give emergency relief to
dependent non-residents (Wei. & Inst. Code sec. 2501) and power to incur ex-
pense for transportation of indigents to other counties or states under certain
conditions. (Wei. & Inst. Code sees. 206, 2502.)
Section 2505 of the Code provides that "work may be required of an indigent,
who is not incapacitated by reason of age, disease or accident, as a condition of
relief".
Sections 2550, 2555 and 2556 of the Code provide that in order to be entitled
to aid a person must have resided in the State for three years and in the county for
one year. Prior to 1931 this requirement was one year in the State and three
months in the county. (See Supp., Ex. 8, pp. 94-95.)
Section 2576 of the Code provides that "if any indigent has living within this
state a spouse, parent or adult child, and such kindred or any of them, or any
group of them has sufficient financial ability to support the indigent, he shall not
be entitled to aid under this chapter, except such emergency aid as may be ex-
tended hereunder pending a determination of responsibility for his support.
* * *" (See Supp., Ex. 8, p. 96.)
Section 2600 of the Code provides that the board of supervisors of any county
"may establish its own policies with reference to the amount of property, if any,
a person shall be permitted to have while receiving public assistance, to the end
that so far as it is possible an applicant for public relief shall be required to apply
his own property to his support", and section 2601 provides that the board of
supervisors may require transfer of the indigent's property as security.
Under the foregoing section 2600, the various counties of the State have set up
ordinances or rules or policies respecting property and we have set these forth for
each county of the State in the Supplement to this brief, Ex. 5, pages 48-57.
10016 THE EDWARDS CASE
These policies vary in detail and in the amount of property permitted to a relief
applicant but an examination of the ordinances and rules will show that they are
all based upon the statutory direction that a relief applicant must apply so far as
possible his own property to his support, i. e., the applicant must be destitute of
means or property to provide for his support and those dependent on him.
The State Relief Administration, operating since 1933 independently of Welfare
and Institutions Code provisions and appropriating since then a total of
$223,884,767.35 (Supp., Ex. 8, p. 99) for relief of hardship and destitution due to
unemployment, and the administration thereof, likewise has established certain
rules pursuant to the various statutes. (Supp., Ex. 9, pp. 107-114.)
From the first it adopted a policy of limiting its direct relief to "employable"
persons, leaving the unemployables to the counties, upon the theory that "hard-
ship and destitution" was not "due to and caused by unemployment", if the
applicant was unemployable, a policy supported by an opinion of the Attorney
General in 1935. (See Supp., Ex. 8, p. 100.)
From the first the State Relief Administration also followed its own rule re-
quiring one year residence in the State as a condition of State relief, but this rule
was made in view of the fact that between 1933 and 1936 grants from the Federal
Emergency Relief Administration made possible a Federal Transient Service in
California to meet the needs of transients, i. e.t those not having the one-year
residence for State relief. (See Supp., Ex. 8, p. 100.)
On September 6, 1935, the so-called FERA ceased its policy of maintaining the
Federal Transient Service and, faced with this emergency, the State Relief Ad-
ministration adopted various rules to meet the needs of non-resident transients,
generally providing for emergency relief from State funds pending verification of
their legal residence, and for a short period requiring that recipients of such relief
indicate in advance a willingness to return to place of residence when verified.
(See Supp., Ex. 8, pp. 101-103.)
In 1940, however, the State legislature placed the first statuton'' restriction on
use of State funds for relief by providing in substance that henceforth all applicants
to the State Relief Administration must have resided in the State for three years,
and later in 1940 increased this requirement to five years. (See Supp., Ex. 8,
p. 103.)
Since 1938 some relief to transients has been available from the Federal Govern-
ment through the Farm Security Administration, which has applied its funds di-
rectly to the relief of "employable persons of agricultural background lacking
state residence", this federal agency having expended approximately $12,000,000
for this purpose from 1938 to date. (See Supp., Ex. 8, p. 104.)
We have set forth in the supplement to this brief a summary of the Rules of the
State Relief Administration interpreting the term "hardship and destitution"
due to and caused by unemployment as used in the State Relief Administration
statutes. (Supp., Ex. 9, pp. 107-114.)
Briefly, the basic rule is "lack of resources for support of any member of the
family group, including inability of responsible relatives to support". (Supp.,
Ex. 9, p. 108.) The applicant is expected "to use to its fullest extent any avail-
able financial resource of any member of the family for support prior to the receipt
of relief from this agency". (Supp., Ex. 9, p. 108.) More particular rules are
set forth in the supplement. (Ex. 9, pp. 107-114.)
Judicial Interpretation of Welfare and Institutions Code Section 2615
No court of the State of California has ever specifically interpreted section 2615
except the Superior Court of Yuba County, exercising appellate jurisdiction in the
instant case over the inferior Justice's Court of that county, and except certain
Justice's Courts in two other counties in the twelve other prosecutions under the
section, those prosecutions being referred to hereinafter.
However, the courts of California have interpreted the term "indigent person".
In Alexander v. Superior Court of Los Angeles County, 29 Cal. App. (2nd) 538,
84 Pac. 1061 (1938), a mandate proceeding to compel permission for plaintiff to
sue without prepayment of jury fees on the theory that he was a pauper, the Court
posed the question as follows:
"May the trial court make an order permitting a party who is not an indi-
gent to prosecute an action before a jury without the prepayment of jury fees?"
The Court then said:
"This question must be answered in the negative. The law is settled in
California that only an indigent person has a right to prosecute a civil action
in forma pauperis. (Gomez v. Superior Court, 134 Cal. App. 19, 20 (24 Pac.
NATIONAL DEFENSE MIGRATION 10017
(2d) 859); Jenkins v. Superior Court, 98 Cal. App. 729, 730 (277 Pac. 757).
Indigent means destitute of property (Funk & W agnail's Practical Standard
Dictionary (1938) 586); lacking in what is requisite (vol. V, The Oxford
English Dictionary (1933) 213). In the present case from petitioner's own
testimony it appears that he was not indigent, since he was at the time in
receipt of an average monthly income of from $110 to $115 and therefore,
applying the rule of law above stated, was not entitled to prosecute his
action in forma pauperis."
(Petition for hearing in the Supreme Court denied bv the Supreme Court,
January 30th, 1939.)
In Goodall v. Brite, 11 Cal. App. (2nd) 540, 549, 54 Pac. (2nd) 510, 515 (1936),
discussing the class of persons that might be hospitalized in county maintenance
hospitals, the Court said:
"If it were necessary we could find another satisfactory reason for the
admission of this class of patients to the county hospital. It is admitted that
indigent persons are to be admitted when in need of hospitalization. As far
as we know the term 'indigent' has not been defined in California in so far as
its use in connection with admission to county hospitals is concerned. It has
been defined in other states chiefly in connection with the admission of the
indigent insane to hospitals. The term when thus used has been held to include
persons with insufficient means to pay for hospitalization after providing for
those who legally claim their support. (Depue v. District Court of Columbia,
45 App. D. C. 54 (Ann. Cas. 1917E, 414); In re Hybart, 119 N.C. 359 (25 S.E
963) ; Massachusetts Gen. Hospital v. Inhabitants of Belmont, 233 Mass. 190
(124 N.E. 21); People v. Board of Supervisors, 121 N.Y. 345 (24 N.E. 830).)
Applying this definition to the instant case, we hold that the word 'indigent',
when used in connection with admission to county hospitals, includes an
inhabitant of a county who possesses the required qualifications of residence,
and who has insufficient means to pay for his maintenance in a private hospital
after providing for those who legally claim his support."
' (Petition for hearing in the Supreme Court denied by the Supreme Court,
March 30th, 1936.)
In San Francisco v. Collins, 216 Cal. 187, 190, 13 Pac. 2d 912 (1932), involving
the validity of a proposed bond issue of the City of San Francisco to make provi-
sion for the "indigent sick and dependent poor", as permitted by section 4041.16
of the Political Code (now section 200, Welfare and Institutions Code; Supp.,
Ex. 3, p. 37) and for "all pauper, incompetent, poor, indigent persons and those
incapacitated by age, disease or accident, lawfully resident therein, when such
persons are not supported and relieved by their relatives and friends, or by their
own means, or by state hospitals or other state or private institutions", as required
of counties and cities and counties by Stats. 1933, p. 2005 (now section 2500,
Wei. & Inst. Code; Supp., Ex. 3, p. 37), the Supreme Court of the State said:
"There can be no question as to the applicability of the first statute, giving
power to a County, and the second statute, imposing a duty on the county or
city and county, to the existing situation, where large numbers of persons
have become indigent through unemployment. The statutes are neither in
terms nor spirit limited to the relief of chronic or permanent paupers, or any
other class of poor persons, but extend to every person coming within the
terms of the statute dependent upon public assistance for the necessities of
life."
Webster's New International Dictionary defines "indigent" as "destitute of
property or means of comfortable subsistence; needy; poor; in want; necessitous";
and defines "destitute" as "not possessing the necessities of life; in a condition of
extreme want; without possession of resources"; and defines "pauper" as "a
person destitute of means except such as are derived from charity; specif, one who
receives aid from public poor funds; a very poor person".
The terms being practically interchangeable, we refer to People v. Selby, 26 Cal.
App. 796, 148 Pac. 807 (1915), a criminal prosecution under section 270 of the
Penal Code of California making it a felony for a husband to wilfully abandon
and leave his wife "in a destitute condition", in which the court defined the term
as used in this criminal statute as follows: (p. 801)
"The statute upon which the information is based was obviously intended
to cover those cases where the husband, without just cause, has willfully
10018 THE EDWARDS CASE
abandoned his wife and left her without means or resources and in a condi-
tion of absolute want — a condition in which she is unable to procure for her-
self the ordinary or common necessaries essential to the sustenance of life.
This is, indeed, the natural meaning of the word 'destitute' or 'destitution'
and the sense in which it is undoubtedly used in the statute. The uncontra-
dicted evidence clearly shows that the wife in this case was not left in a
'destitute condition' by the defendant. Immediately upon the separation
between herself and husband taking place, she was received into the family
of a relative and there taken care of. Moreover, she had credit at a general
merchandising store, where, according to the owner of the store, she was
privileged to obtain merchandise on her own credit.
She did not, nor did any other witness, testify that, after the separation,
she was at any time deprived of the necessaries of life. The only proof
upon that matter was that the defendant did not provide those necessaries.
While it was, of course, his duty to furnish her with such necessaries, it was
no crime for him not to do so if she was actually in want of them even though
he might have abandoned her within the meaning of the statute. (See
State v. Thornton, 232 Mo. 298, (32 L. R. A. (N. S.) 841, 844, 134 S. W. 519).)"
In People v. Yates, 114 Cal. App. (Supp.) 782, 789, a prosecution under section
270 of the Penal Code of California of a father for having "wilfully omitted to
furnish necessary food, clothing, shelter or medical attention or other remedial
care for his child", the Court said: (p. 789)
"Appellant attacks the constitutionality of this statute on the ground that
it is uncertain and defines as a crime acts which can only rest upon conjecture
and hypothesis. The same provision applies to all children, whether born
or unborn. If it is uncertain as to one it must be as to the other. The
language requiring the furnishing of 'necessary food, clothing, shelter or
medical attendance' has been in this section since it was first enacted in
1872, and it seems never to have been attached for uncertainty, nor do we
find any fatal uncertainty in it. In the nature of things no specific and
precise rule can be made on the subject. The statute points out certain
kinds of care and requires the father to furnish them as necessary. The
necessity is capable of ascertainment bv proof to be submitted to the jury.
In Ex parte Daniels (1920), 183 Cal. 636, 646 (21 A. L. R. 1172, 192 Pac.
442), the Supreme Court held that a statute making it unlawful to drive a
motor vehicle at an unreasonable or unsafe speed was not void for uncertainty.
The provisions of section 270 are at least as certain as the statute there up-
held."
In the Supplement to this brief, Ex. 13, pp. '151-6, we have collected authorities
construing the term "indigent" and we are of the opinion that the term has a well
known and accepted meaning as a person who is destitute of property or means
of comfortable subsistence, for himself and those whom he is legally obligated to
support, and that it would be impractical to further define the term in a statute
designed to deal with such a condition.
Going a bit further under the head of judicial interpretation in California, we
refer to State v. S. S. Constitution, 42 Cal. 578, 10 Am. Rep. 303 (1872).
This case involved a State statute requiring a report to the State Commissioner
of Emigrants of every passenger arriving from foreign ports and requiring a bond to
be given for every such passenger to secure the state and counties against expense
for the relief of such person.
In this case the master of the vessel failed and refused to provide such a bond,
claiming that the persons involved were persons in the prime of life, in the full
possession of their faculties, perfectly sound in body and mind, neither paupers,
vagabonds or criminals, and in all respects competent to earn a livelihood.
The Court held that the statute was not a proper exercise of any police power of
the state because its requirements applied to all foreign passengers, without regard
to whether they were such as could reasonably be expected to become paupers,
vagabonds, criminals, sick or infirm, and that this was too broad and not in a
proximate degree germane to the subject.
However, the Court conceded the power of the State to "provide police and
sanitary regulations to prevent the people of this state from becoming chargeable
with the support and maintenance of persons imported from foreign countries,
who either then were, or were soon after, to become a public charge", and said:
(page 584)
"* * * If it were conceded that this was the real purpose of the statute
and that its provisions are reasonably adapted, and were intended to secure
NATIONAL DEFENSE MIGRATION 10019
this result, and this only, there would be an end to the argument; for in all the
numerous adjudications which have been had in respect to the power of the
several States to interfere with commerce under the clauses of the Constitu-
tion above referred to, it has never been doubted that a State has the power,
by proper police and sanitary regulations, to exclude from its limits paupers,
vagabonds, and criminals, or sick, diseased, infirm, and disabled persons, who
were liable to become a public charge, or to admit them only on such terms
as would prevent the State from being burdened with their support. To sur-
render this power would be to abandon one of the highest prerogatives of
local self-government, one of the chief functions of which is to preserve the
public health and repress crime. * * *"
The Court then considered the question, assuming the statute to be no police or
sanitary regulation, whether it could be, nevertheless, considered a valid enactment
under the rule that, in the absence of congressional action in the field of commerce,
a state might adopt regulations of a local nature, but the Court held that the
statute was not local in character and that, therefore, the statute was not sustain-
able upon that theory.
In Ex parte Ah Fo'ok, 49 Cal. 402 (1874) the Court considered a statute author-
izing the State Commissioner of Immigration to ascertain whether there were among
the passengers of vessels arriving from a foreign port persons who were "lunatic,
idiotic, deaf, dumb, crippled, infirm, or paupers likely to become a public charge, or
convicted criminals, or lewd or debauched women'' and authorizing the Commis-
sioner to either exclude such persons or require a bond from the owner or agent of
the vessel to secure the State and counties against an expense resulting from the
infirmities or vices of such persons.
The case involved certain Chinese passengers excluded by the Commissioner
upon finding them to be lewd and debauched women and the Court held that the
statute was not in contravention of the United States-Chinese Treaty of 1868, con-
taining a most favored nation clause covering visiting Chinese subjects, because
as the Court pointed out: (page 405)
"* * * Otherwise, we should be prohibited from excluding criminals or
paupers — a power recognized by all the writers as existing in every inde-
pendent State. We can but think, that to give to the general language of
the treaty a construction which would deprive both the State and United
States Government of this power of self-protection would be a departure
from the evident meaning and purpose of the high contracting parties."
The Court further held that the power of the Commissioner to determine
whether particular individuals come within the provisions of the statute was not
a denial of due process under the Fourteenth Amendment because the operation
of health or quarantine laws must necessarily be prompt and summary and
statutes clothing officers with such powers have never been held to be unconsti-
tutional.
Under the head of judicial interpretation we wish to refer to the thirteen actual
prosecutions in California under section 2615 of the Code, pointing out to the
Court that all of these cases were disposed of by the justices of the peace pre-
siding over inferior county courts, and that none of them was ever reviewed,
except the instant Edwards case, by any California court having appellate juris-
diction over these justice courts.
These prosecutions, instituted by representatives of the local county welfare
departments, may also be considered as administrative interpretations of the
section, at least by the three minor officials involved.
However, so far as we have been able to determine, these minor officials were
acting on their own initiative, or that of the local welfare department, rather
than pursuant to any general State rule or policy.
We have set forth in the supplement to this brief the docket and case histories
of these cases, with as much detail and completeness as possible. (Supp., Ex.
6, pp. 58-86.)
There have been only thirteen actual prosecutions under the section, including
the pending case, all of them within three of the fifty-eight counties in the State,
Yuba (1), Kern (1), Tulare (11), and all during the period October 30, 1939 to
February 7, 1940.
This was a time of near crisis in the migrant problem, particularly for these
counties. (Supp., Ex. 1, pp. 13-14.)
In all of the cases prosecuted, the complaint was signed by a representative
of the local county welfare department, except the instant case, in which it was
signed by a representative of the State Controller's Office.
10020 THE EDWARDS CASE
Of the thirteen cases in which complaints were signed, four (Kelly case, Supp.,
Ex. 6, p. 79; Woodward case, Supp., Ex. 6, p. 64; Ramos case, Supp., Ex. 6, p.
68, and Crisp case, Supp., Ex. 6, p. 69) never reached the stage of service of
warrant and arrest, and in one (Rankin- Morris case, Supp., Ex. 6, p. 75) a plea
of not guilty was entered but no further action taken.
The remaining eight cases were all disposed of upon a plea of guilty by the
defendant, a six-months sentence imposed but suspended, generally upon certain
conditions. (Edwards (instant) case — no condition; George case, Supp., Ex. 6,
p. 59 — reimbursement of county for expense of returning indigents; Vaughn-
Henson case, Supp., Ex. 6, p. 80 — defendants to leave county and State; Ochoa
case, Duncan case, Anderson cases, Supp., Ex. 6, pp. 83, 80, 74 — defendants to
take the indigents back to origin; Cook case, Jones case, Supp., Ex. 6, pp. 65,
70 — defendants to leave State and the indigents back to origin.)
Of the thirteen cases, five (Edwards (instant) case, George case, Crisp case, Cook
case and Ochoa case) did not involve any family relationship requiring support of
the indigents by the defendant; three (Anderson case, Duncan case and Kelly case)
may have involved such relationship but fact is not definitely ascertainable and
the Kelly case never reached the stage of service of warrant; two (Ramos case and
Woodward case) did involve such relationship between the defendant and the indi-
gents but never reached the stage of service of warrant; two (Rankin- Morris case
and Jones-Ensminger case) involved such relationship between one of the defend-
ants and the indigents; one (Vaughn- Henson case) involved such relationship
between each of the defendants to some of the indigents.
Of the thirteen cases, three (Edwards (instant) case, George case, Cook case)
involved the receipt of aid prior to entry into the State and the remaining ten
may have involved such a situation but the fact is not definitely ascertainable.
Of the thirteen cases, all involved application for aid upon or shortly after
arrival in California. (See for further particulars, Supp., Ex. 6, pp. 58.)
Conclusions Re Interpretation of Welfare and Institutions Code
Section 2615
Having referred to airavailable data in the nature of administrative or judicial
interpretation in California, we wish to set forth what we believe to be the con-
clusions to be drawn therefrom with respect to the interpretation of the section.
1. The term "indigent person", as used in the statute, means a person destitute
of property or means of comfortable subsistence, without the necessities of life or
resources therefor, for himself and those to whom he owes a legal duty of support,
and, therefore, in need of public aid.
The term excludes those who have resources for the decent support of them-
selves and their families, either funds, or property that can readily be resorted to,
or available credit, or relatives legally bound to support them and able and will-
ing to do so, or friends able and willing to do so.
The term is not limited to persons who are physically or mentally incapacitated
but is broad enough to include persons who from any cause are in a destitute
condition.
This we believe to be the settled, well understood and accepted meaning of the
term in California, as disclosed by administrative and judicial authority. Further,
this is in accord with the settled meaning of the term in common usage and under
the authorities in other jurisdictions, many of which we have collected in the
Supplement to this brief. (Supp., Ex. 13, pp. 151-6.)
2. The statute contemplates that the condition of indigency shall exist at the
time the person is brought into the State and is not in terms, or within reasonable
construction, pointed to a class of persons who merely may become, or who may
be said to be likely to become, indigent persons at some future time, unless the
circumstances are such as to reasonably support a finding of present indigency.
3. The statute does not purport to exclude indigent persons from the State. Rather,
the offense consists in the act of bringing, or assisting in bringing non-resident
indigents into the State with knowledge of indigency.
4. A reasonable construction of the statute would, therefore, be that a person,
though indigent himself, could not be guilty of the offense of bringing, or assisting
in bringing, other indigent persons into the State, if such other indigents were
persons whom he was under a legal obligation to support, e.g., parent, wife or children.
Any other construction, notwithstanding the broad terms of the statute,
would be tantamount to excluding the accused solely by reason of his indigency,
an offense unknown in the State and deliberately avoided by the legislature in
NATIONAL DEFENSE MIGRATION 10021
the framing of the statute. For, within the fair meaning of the law of California
and of all states which impose mutual obligations of support upon parents,
children and spouses (see for support laws of California, Supp., Ex. 8, p. 96),
they are one in this respect and the entry of an indigent father with his indigent
wife and children is one and inseparable from the entry of the father, himself,
and we cannot reasonably assume that the legislature, in framing this statute,
contemplated such a result in view of its definition of the offense, not as the
entry into the State of non-resident indigent persons, but as the bringing, or
assisting in bringing, of non-resident indigent persons into the State. In such a
case the indigent father does not, in our opinion, "bring or assist in bringing"
indigent persons into the State within the meaning of this statute.
This approach to the construction of section 2615 has strikingly similar prece-
dent in Church of the Holy Trinity v. United States, 143 U. S. 457, 459, 465, 472
(1891), wherein the Supreme Court of the United States, after a most thorough
discussion, held that a federal statute, which prohibited the prepayment of
transportation for, or the assisting or encouraging in any way of, the importation
or migration of any alien or foreigner into the United States under contract or
agreement to perform labor or service of any kind therein, should not be applied
to a contract between a religious society and an alien religious minister where-
under the latter was to enter the United States and perform service for the society
at New York as its rector and pastor. The Court pointed out that, notwith-
standing the broad terms of the statute, the legislature should not be assumed
to have intended such a result when framing a statute really designed to stay
the influx of certain kinds of cheap unskilled labor into the United States.
5. It follows that the offense of bringing, or assisting in bringing, a non-resident
indigent into the State would be committed, within the meaning of the statute,
only when the accused brought, or assisted in bringing, into the State, a non-
resident indigent person to whom he owed no legal duty of support and as to
whom he was a mere volunteer, whatever his motives may have been.
We believe this construction of the statute is related to the mischief which the
legislature must have had in mind in the framing of this statute, i. e., the more
or less promotional bringing into the State of non-resident indigent persons.
An example of such situation is the operation of labor contractors, private
employment services and other recruiting agencies, referred to in the survey filed
by the Governor of California at the Hearings before the Select Committee of
the House of Representatives, San Francisco, September 24-25, 1940, Part 6,
pp. 2232, 2243, as well as other cases of bringing, or assisting in bringing, of non-
resident indigents into the State, where the relationship between the accused and
the indigents is merely that of volunteer, as in the case now before this Court.
This statute does not involve any particularly shocking aberration on the part
of the legislature of California and, even from a very practical aspect, the bring-
ing, or assisting in bringing into the State of a person known to be destitute by
one owing no duty of support to such person is, not only an offense against the
State under the terms of this statute, but may be, and most often is, a wrong
against the indigent person under prevailing conditions which make it almost
impossible for one to become quickly adjusted in a new community.
On the one hand, it would seem that one, who assumes the responsibility of
bringing or assisting in bringing into the State a non-resident and unrelated
indigent person, should extend his solicitude for such person to the point of real
effectiveness by providing such means of support as would at least remove that
person from the basic indigency and destitution contemplated by the statute.
On the other hand, there is no offense committed against any California statute
by the entry of an indigent person, himself, or, as we believe, with his family,
into California, however inadvisable that may be in particular cases both from
the viewpoint of California's welfare and the welfare of the indigent himself.
If it be said that it is physically impossible for an indigent person, alone or
with his family, to realize the amibition of coming to California without aid from
others, then, surely, we must see, as the indigent person must also see, that aid
which begins and ends with transportation to California is in reality no aid at
all, and that the true alternative lies either in the patient awaiting of such aid
as would be more than nominal, aid that would remove him from a condition of
actual indigency upon entry into California, or in the patient accumulation by
himself of such minimum resources as would remove him from such condition and
make it possible for him, not only to enter California, as he has the legal right to
do, but to care for himself for a reasonable time during the difficult period of
adjustment in a new community.
10022 THE EDWARDS CASE
The practical effect of this statute, therefore, even if consistently enforced,
would be, not the exclusion of indigent persons from Caifornia to any appreciable
extent or in any true sense of the term, but merely the punishment of those who
knowingly go out of their way to impose upon the State and its counties and also
upon the indigent person, without doing anything themselves to really aid the
indigent.
6. Lastly, the statute in terms requires that the accused shall have had "knowl-
edge" of the indigency. Some similar statutes in the other states require an
intent to make the indigent person a charge upon the state or county but we are
of the opinion that this difference is unimportant because "knowledge" of the
"indigency" embraces a presumed further knowledge that the indigent person
must necessarily resort to public aid, and a general, if not specific, intent, that
such result will follow.
At this point we wish to refer to a case cited by counsel for appellant in his
brief at page 20, De Jonge v. Oregon, 299 U. S. 353, 357, 362 (1936), in support
of his statement that it is beyond the power of the State to make a crime of
assisting another in the exercise of his constitutional rights.
That case involved the reversal by this court of the conviction of the defendant
under one of the sections of the Criminal Syndicalism Law of Oregon for having
assisted at a meeting called by the Communist Party, which was a public, orderly
meeting for a lawful purpose and at which meeting neither criminal syndicalism
nor any doctrine of incitement to violence was taught or advocated. The ruling
of this court was upon the ground that, the meeting itself being nothing more
than the lawful exercise of the right of free speech, defendant could not be guilty
of any offense for assisting in the conduct of the meeting.
There is nothing in that opinion inconsistent with the power of a state to define
as an offense the act of bringing, or assisting in bringing, an indigent person into
the state when the state in the exercise of its police power reasonably determines
that such act of bringing or assisting in bringing an indigent person into the state
is, in itself, and apart from the possible right of such indigent to enter the state
himself, related to a problem affecting the health, morals or general welfare of the
state, i. e., the stimulation of an influx into the state of destitute persons without
necessity therefor and contrary to the natural course of migration to the state.
Restatement of the Issue Presented to the Court
Having stated our conclusions concerning the interpretation of section 2615,
we restate what we believe to be the issue presented to the Court.
The issue is, not the power of the State to exclude indigent persons, for the
legislature of California has not attempted to exercise such power in this statute,
but is merely the power of the State to define as an offense the act of bringing, or
assisting in bringing, indigent persons into the State with knowledge of such
indigency and without such relationship toward the indigents as would impose
the legal bond of care and support.
This, in turn, suggests the more fundamental issue of whether the State has
the power to recognize the effect of an influx of destitute or indigent persons into
the State upon the health, morals and general welfare of the State and to deter-
mine how far it will legislate, short of absolute exclusion of indigents, in order to
alleviate to some extent the burden of indigency in the State.
Here, the State has seen fit merely to prohibit others from bringing, or assisting
in bringing, indigent, destitute persons into the State, wilfully and without legal
necessity therefor, the legislature apparently having determined that such act,
in itself, is related to the problem at hand, and that its prohibition is an appropriate
means of controlling the problem and the limit to which the legislature deems it
wise to go.
Evidently, this was done upon the theory that, although the legislature was
willing to allow immigration of indigent persons into the State to follow a normal
course, it was desirous of preventing, in the interest of the welfare of the state, such
an artificial promotion and stimulation of the influx as would increase the migration
and render its effect more serious and acute.
The Constitutionality of Section 2615
(a) reference to authority in point
Before discussing the various specifications of unconstitutionality, upon which
appellant relies, we wish to refer to such authority as we have found to be either
precisely or closely in point with the pending case.
NATIONAL DEFENSE MIGRATION 10023
We have set forth in the Supplement to this brief, Supp., Ex. 10, pp. 115-120,
a collection of cases from other jurisdictions which involved statutes identical
with or substantially the same as section 2615.
The courts of Connecticut, New York, Vermont, Michigan, New Hampshire
and Ohio, considering similar statutes in cases involving the bringing of indigents
from outside the State, have upheld convictions (Conn., New York, Vermont,
New Hampshire) or have reversed convictions upon grounds other than un-
constitutionality. (Ohio, Michigan.)
See:
Barkhamsted v. Parsons, 3 Conn. 1 (1819) (Supp. Ex. 10, p. 115);
Windfield v. Mapes, 4 Denio 571; 17 N. Y. C. L. 676 (1847) (Supp. Ex. 10,
p. 116);
Dover v. Wheeler, 51 Vt. 160 (1878) (Supp. Ex. 10, p. 116);
Poor v. Nelson, 42 N. W. 797 (Mich., 1889) (Supp. Ex. 10, p. 117);
State v. Cornish, 66 N. H. 329; 21 Atl. 180 (1890), (Supp. Ex. 10, p. 117)-
Risner v. The State, 55 Ohio App. 151; 9 N. E. (2nd) 151 (1937), (Supp '
Ex. 10, p. 118).
In New York, Illinois and Colorado the courts have upheld convictions under
similar statutes in cases involving transportation from one county to another
within the state.
See:
Thomas v. Ross & Shaw, 8 Wend. 671; 11 N. Y. C. L. 509 (1832), (Supp.
Ex. 10, p. 115);
Williams v. Franklin, 39 111. 21 (1865), (Supp. Ex. 10, p. 116);
Commissioner v. Law, 3 Colo. App. 328; 33 Pac. 143 (1893), (Supp. Ex. 10,
p. 118).
In the Risner case, supra, Ohio (1937), the case turned upon the sufficiency of
the evidence to show that the person brought from Kentucky to Ohio was a "poor
or indigent person" within the meaning of the statute, and the court defined this
term as follows:
"Applying these definitions to the provisions of section 2555, General Code,
it is clear that the words 'poor or indigent' modifying the word 'person' are
either synonymous as indicating those who are entirely destitute and help-
less and therefore dependent on public charity, or that the word 'poor' is
used in the technical sense as indicating one who is actually receiving public
aid, and the word 'indigent' is used in the nontechnical sense as meaning one
destitute and a proper subject for public aid."
We have found no case in which a statute similar to section 2615 has been held
to be unconstitutional.
We have also set forth in the Supplement to this brief a collection of cases based
on statutes authorizing removal of poor or indigent persons from one county to
another or from one state to another. (Supp., Ex. 11, pp. 121-124.)
The courts of Minnesota, Illinois, Connecticut and Pennsylvania have upheld
statutes providing for the removal of poor or indigent persons from one county
to another on the basis of settlement or residence, and North Dakota has ruled
against removal to a point outside the state upon the ground that the particular
statute only provided for removal within the state.
See:
Lovell v. Seeback, 45 Minn. 465; 48 N. W. 23 (1891), (Supp., Ex. 11, p. 121);
Town of Bristol v. Town of Fox, 159 111. 500; 42 N. E. 887 (1896), (Supp.,
Ex. 11, p. 122);
Harrison v. uilbert, 71 Conn. 724; 43 Atl. 190 (1899), (Supp., Ex. 11, p.
123);
In re Barnes, 119 Pa. (Sup. Ct.) 553; 18 Atl. 718 (1935), (Supp., Ex. 11,
p. 123);
Anderson v. Miller, 120 Pa. (Sup. Ct.) 463; 182 Atl. 742 (1936), (Supp.,
Ex. 11, p. 124);
Hillborn v. Briggs, 226 N. W. 737 (N. D. 1929), (Supp., Ex. 11, p. 123);
Overseers of Gilpin v. Overseers of Park, 11 Atl. 791 (Pa. 1888), (Supp.,
Ex. 11, p. 121).
In addition to the above cases, we wish to invite the Court's attention to the
recent case, In re Chirillo, 283 N. Y. 417, 28 N. E. (2nd) 895 (1940), (Supp., Ex.
11, pp. 124-133).
10024 THE EDWARDS CASE
Chirillo, a naturalized citizen of the United States, lived in Ohio but moved to
New York. A New York statute provided that a person, who was cared for at
the expense of the state, or a public welfare district, and who belonged to or had
friends willing to support or aid in supporting him in any other sti te or county,
might be removed by the State Department of Social Welfare to such state or
county, provided that in the judgment of the department the interest of the state
and the welfare of such person will be thereby promoted. If the person refuses to
go, the Department may apply to the county judge for an order of removal to the
state legally responsible for and willing to support him. (Public Welfare Law of
New York, Sec. 71.)
The point upon which the decision in the above case turned was whether the
appeal to the appellate court presented solely the question of the constitutionality
of the statute.
A majority of the New York Court of Appeals took the view that the question
of constitutionality could not be considered on appeal because that question
depended upon the construction of the statute, which question was raised by
appellant, and that the Court of Appeals was, therefore, without jurisdiction
to act at all, and dismissal of the appeal was ordered.
This view of the majority four justices prevented an express determination by
the New York Court of Appeals of the constitutionality of the New York statute,
but a minority of three justices took the view that the Court of Appeals did have
jursidiction to determine the constitutionality of the statute, discussed the
constitutional question exhaustively, and held that the statute was valid not-
withstanding appellant's contention that it violated the due process and equal
protection clauses of the Fourteenth Amendment, the commerce clause, the
privileges and immunities clause of Article IV, Section 2, and the privileges and
immunities clause of the Fourteenth Amendment.
This dissenting opinion, which does not, like so many dissents, oppose the
majority opinion but discusses points not considered at all by the majority, is so
related to the pending question that we have set forth for the convenience of this
court considerable quotation from the opinion, Supplement Exhibit 11, p. 124-133
(B) SECTION 2615 DOES NOT CONTRAVENE THE DUE PROCESS CLAUSE OF THE FOUR-
TEENTH AMENDMENT TO THE CONSTITUTION OF THE UNITED STATES
The contention that this statute contravenes the due process clause of the
Fourteenth Amendment cannot be sustained, unless it can be said that the statute
has no relation to the public welfare of the people of the State.
In Nebbia v. New York, 291 U. S. 502, 525 (1933) this Court said:
"The Fifth Amendment, in the field of federal activity, and the Fourteenth
as respects state action, do not prohibit governmental regulation for the pub-
lic welfare. They merely condition the exertion of the admitted power, by
securing that the end shall be accomplished by methods consistent with due
process. And the guaranty of due process, as has often been held, demands
only that the law shall not be unreasonable, arbitrary or capricious, and
that the means selected shall have a real and substantial relation to the object
sought to be attained."
The fact that legislation of this kind has been long in force upon the statute
books of many states and assumed to be an appropriate method of dealing with
the problem of migratory indigency is in itself strong proof of its reasonableness
as an exercise of the police power of a state.
In Coler v. Corn Exchange Bank, 250 N. Y. 136; 164 N. E. 882 (1928), Justice
Cardozo, upholding a statutory seizure of property of a husband absconding from
a wife and child likely to become paupers, said:
"The Fourteenth Amendment, itself a historical product, did not destroy
history for the states and substitute mechanical compartments of law all
exactly alike. If a thing has been practiced for two hundred years by com-
mon consent, it will need a strong case for the Fourteenth Amendment to
affect it. Jackman v. Rosenbaum Co., 260 U. S. 22, 31; 43 Sup. Ct. 9.
"This background of tradition gives the setting of the statute and the
method of approach when today its validity is challenged."
The influx of transient indigent persons into the state not only taxes the re-
sources of the citizens of the state in order to meet an actual condition, which
from every instinct of humanity must to some degree be met, but it affects hous-
ing, moral, health and working conditions within the state.
NATIONAL DEFENSE MIGRATION 10025
"Rejected applicants continue to be a part of the economic structure of
the county or state in which they are present and therefore affect the social
and economic conditions in the state."
See:
Rubirow Survey, Supp. Ex. 1, p. 20;
Resolutions of the Legislature, Supp. Ex. 2, pp. 25-35.
We have already pointed out that the act of wilfully bringing, or assisting in
bringing, indigent persons into the State, without any bond of legal support, is, in
itself, an act amounting to the promotion and stimulation of an influx of in-
digency, over and beyond the natural course of migration, an act, in itself, re-
lated to the social and economic problem of the State, and, therefore, a proper
subject for legislative prohibition in the exercise of the State's police power.
(C) SECTION 2615 DOES NOT CONTRAVENE THE COMMERCE CLAUSE OF THE CONSTITU-
TION OF THE UNITED STATES
Upon this point we invite the attention of the Court to the constantly reiterated
statement of this Court, in cases involving state statutes claimed to contravene
the commerce clause, that the states have the power to exclude paupers, and
those likely to become such, in the exercise of the police power and for the purpose
of defending themselves from the conditions that result from an influx of such
persons into the state.
For the convenience of this Court we have collected excerpts from these cases
in the Supplement to this brief, Supp. Ex. 13, p. 134. These cases are:
Mayor of New York v. Miln, 11 Peters 102, 141-2, 147-8, 153b, 153, 153n,
155; 36 U. S. 71 (1837) (Supp. Ex. 12, p. 134);
Prigg v. Pennsylvania, 16 Peters 539, 41 U. S. 536, 624 (1842) (Supp.
Ex. 12, p. 140);
License Cases — Thurlow v. Massachusetts, 5 Howard 504, 46 U. S. 590,
596 (1847) (Supp. Ex. 12, p. 141);
Passenger Cases- — Smith v. Turner and Morris v. Boston, 7 Howard 283;
48 U. S. 300, 424-426 (1849), (Supp. Ex. 12, p. 141);
Henderson v. The Mayor of New York, 92 U. S. 259, 275 (1875) (Supp.
Ex. 12, p. 144);
Chy Lung v. Freeman, 92 U. S. 275, 280 (1875), (Supp. Ex. 12, p. 145);
Railroad Company v. Husen, 95 U. S. 465, 470, 472-3 (1877), (Supp.
Ex. 12, p. 146);
Plumley v. Massachusetts, 155 U. S. 461, 478 (1894), (Supp. Ex. 12, p. 147);
Missouri, Kansas & Texas R. R. Co. v. Haber, 169 U. S. 613 (1897), (Supp.
Ex. 12, p. 147);
See also:
Japanese Immigrant Case — Kaoru Yamamatu v. Fisher, 189 TJ. S. 86, 97
(1902) (Exclusions by federal statute within police power clause of
treaty), (Supp. Ex. 12, p. 148.)
See also:
Sweeney v. State Board of Public Assistance, 36 Fed. Supp. 171 (Dist. Ct.,
Pa. 1940) (Supp. Ex. 12, p. 149).
It is true that some of these cases struck down the particular state statutes
involved upon the ground that they were not limited to the exclusion or control
of paupers, and like persons, but applied to all immigrants in such manner as to
indicate that they were not true police measures. Prigg, Passenger, Henderson,
Chy Lung and Husen cases.)
It is also true that in other of these cases the reference to paupers, although
in support of the principle of the decision, was dicta in view of the particular facts
before the Court. (License, Plumley, Haber ca-.es.)
In all of them, however, the Court stressed the power of a state to protect
itself from an influx of persons without means of supporting themselves; the
heavy charge of maintaining such persons; the likelihood of health, moral and other
injurious conditions resulting therefrom; the similarity of so-called pauper laws
to quarantine laws; the power of the state to determine what class of persons
may injuriously affect the state or bring the burden of a numerous pauper popu-
lation; and the power of the state to enact necessary statutes limited to these
objects.
60396— 42— pt. 26 5
10026 THE EDWAEDS CASE
The statute before the Court in the pending case is so well within the dicta of
the above cases that it is not necessary for this Court to apply such dicta to its
full extent, because: (1) Section 2615 does not exclude indigents at all; (2) it
merely prohibits acts of other persons which tend to promote and stimulate the
influx of paupers, which, according to the above dicta, could be absolutely ex-
cluded: (3) it does not, in our opinion, even prohibit such acts when the indigents
are within the family ties of legal support; (4) it refers only to a limited class of
persons, indigents, i. e., persons who at the time of entry into the State are desti-
tute of property or resources, of their own, or of responsible relatives, or provided
by friends, with which to support themselves and families, and dependent, there-
fore, on public aid.
Certainly, no distinction can be made between such "indigent person" and the
"pauper" referred to by the Court.
We do not propose to enter upon any lengthy analysis of the development
of the interpretation of the commerce clause by this court with respect to its
negative implications pertaining to state action; or with respect to whether the
commerce clause is exclusive of, or concurrent with, state action and, if concurrent,
in what particular classifications of legislation; or with respect to whether state
legislation is to be judged according to its purpose or its effect, or both.
We merely invite the attention of the Court to the line of cases in this Court
which, we believe, state the principle applicable to the pending case, commenting
more particularly upon several cases deemed important because of the close
fact analogy or because of the recentness of the statement of the rule concerning
the permissible filed of state action.
The line of cases, holding that the several states have the power, in the absence
of federal action and notwithstanding possible effect on interstate commerce, to
pass local quarantine, and other regulatory laws, applicable to merchandise,
carriers or persons moving in interstate commerce, as a means of protecting the
local health, safety and welfare, includes cases like the following:
Morgan's S. S. Co. v. Louisiana Board of Health, 118 U. S. 455 (1886),
upholding, in the absence of federal action, state statute requiring fee of vessels
entering ports pursuant to state quarantine system.
Compaigne Francois v. Louisiana Board of Health, 186 U. S. 380 (1902),
upholding, in the absence of federal action, state statute authorizing exclusion
of all persons, healthy or not, from a state locality of contagion, irrespective of
interstate movement of persons.
Eicholz v. Public Service Commission, 306 U. S. 268 (1938),
upholding, in the absence of federal action, rule requiring an interstate carrier
to accept no intrastate business without intrastate license, on ground state could
protect its legitimate interests through interstate commerce directly affected.
Willson v. Blackbird Creek Marsh Co., 2 Peters 244, 250 (1829),
upholding, in the absence of federal action, state statute authorizing damming
of navigable interstate inlet where designed to eliminate marsh menace to health
of inhabitants of state.
Plumley v. Massachusetts, 155 U.S. 461 (1894),
upholding, in absence of federal action, state statute prohibiting sale of artificially
colored oleomargarine upon ground of protection of public from deception and
upon same principle empowering state to exclude paupers. (See Supp. Ex. 12,
p. 147.)
Whitefield v. Ohio, 297 U.S. 431, 439 (1936),
upholding state statute prohibiting the sale of convict-made goods apparently
on ground that state could protect itself against an economic evil, regardless
of the Act of Congress lifting the bar of the original package rule in such case.
One of the most interesting of this line of cases is Bradley v. Public Utilities
Comm. of Ohio, 289 U.S. 92, 95, 96 (1932), in which this Court upheld the denial
by the Ohio Commission of a certificate to an interstate motor carrier for use of
a state highway, where the denial was upon the ground that the particular high-
way was already so badly congested by established motor vehicles that the
proposed service would create a hazard to the safety of the public upon the
highways. The court said:
"Protection against accidents, as against crime, presents ordinarily a
local problem. Regulation to ensure safety is an exercise of the police
power. It is primarily a state function, whether the locus be private property
or the public highways. Congress has not dealt with the subject. Hence,
even where the motor cars are used exclusively in interstate commerce,
a State may freely exact registration of the vehicle and an operator's license,
NATIONAL DEFENSE MIGRATION 10027
Hendrick v. Maryland, 235 U.S. 610, 622; Clark B. Poor, 274 U.S. 554, 557;
Sprout v. South Bend, 277 U.S. 163, 169; may require the appointment of
an agent upon whom process can be served in an action arising out of oper-
ation of the vehicle within the State, Kane v. New Jersey, 242 U.S. 160;
Hess v. Pawloski, 274 U.S. 352, 356; and may require carriers to file con-
tracts providing adequate insurance for the payment of judgments recovered
for certain injuries resulting from their operations. Continental Baking
Co. v. Woodring, 286 U.S. 352, 365-366. Compare Packard v. Banton,
264 U.S. 140; Sprout v. South Bend, 111 U.S. 163, 171-172; Hodge Co. v.
Cincinnati, 284 U.S. 335, 337. The State may exclude from the public
highways vehicles engaged exclusively in interstate commerce, if of a size
deemed dangerous to the public safety, Morris v. Duby, 274 U.S. 135, 144;
Sproles v. Binford, 286 U.S. 374, 389-390. Safety may require that no
additional vehicle be admitted to the highway. The Commerce Clause
is not violated by denial of the certificate to the appellant, if upon adequate
evidence denial is deemed necessary to promote the public safety. Compare
Hammond v. Schappi Bus Line, 275 U.S. 164, 170-171."
So, in the pending case, it may be said that section 2615 of the Code is obviously
based upon the legislative determination that the relief "highways" of the state
are already so badly congested that acts of persons producing a further influx
of destitute persons, i.e., over and above the normal immigration of the indigents
themselves, will create a hazard to the health, safety and welfare of the estab-
lished inhabitants of the state.
The most recent of this line of cases is California v. Thompson, 61 Sup. Ct.
930, April 28, 1941, in which the court considered a California statute requiring
every transportation agent to procure a license from the State Railroad Com-
mission, pay a license fee therefor, and file a bond for the faithful performance
of transportation contracts.
The Court, holding that the statute was not a revenue measure but a valid
police measure, and overruling Di Santo v. Pennsylvania, 273 U.S. 34, said:
"As this Court has often had occasion to point out, the Commerce Clause,
in conferring on Congress power to regulate commerce, did not wholly
withdraw from the states the power to regulate matters of local concern
with respect to which Congress has not exercised its power, even though
the regulation affects interstate commerce. * * *
*******
"The present case is not one of prohibiting interstate commerce or licensing
it on conditions which restrict or obstruct it. Cf. Crutcher v. Kentucky,
141 U. S. 47, 11 S. Ct. 851, 35 L. Ed. 649; Dahnke-Walkcr Co. v. Bondurant,
257 U. S. 282, 42 S. Ct. 106, 66 L. Ed. 239. For here the regulation is applied
to one who is not himself engaged in the transportation but who acts only as
broker or intermediary in negotiating a transportation contract between the
passengers and the carrier. The license required of those engaged in such
business is not conditioned upon any control or restriction of the movement
of the traffic interstate but only on the good character and responsibility of
those engaged locally as transportation brokers.
"Fraudulent or unconscionable conduct of those so engaged which is
injurious to their patrons, is peculiarly a subject of local concern and the
appropriate subject of local regulation. In every practical sense regulation
of such conduct is beyond the effective reach of Congressional action. Unless
some measure of local control is permissible, it must go largely unregulated.
In any case until Congress undertakes its regulation we can find no adequate
basis for saying that the Constitution, interpreted as a working instrument
of government, has foreclosed regulation, such as the present, by local
authority.
*******
"If there is authority in the state, in the exercise of its police power, to
adopt such regulations affecting interstate transportation, it must be deemed
to possess the power ^o regulate the negotiations for such transportation
where they affect ma cers of local concern which are in other respects within
state regulatory power, and where the regulation does not infringe the na-
tional interest in maintaining the free flow of commerce and in preserving
uniformitv in the regulation of the commerce in matters of national concern.
See Hartford Accident & Indemnity Co. v. Illinois, 298 U. S. 155, 56 S. Ct
685, 80 L. Ed. 1099."
10028 THE EDWARDS CASE
We believe that section 2615 of the Code is well within the rule established by
the foregoing authorities.
1. It does not in terms exclude any indigent person, nor does it in effect exclude
any indigent family.
2. It applies only to other persons, whether citizens of California or any other
state, who, as volunteers and without any tie of legal support to the indigent,
knowingly bring, or assist in bringing, indigent persons into the State.
3. Such act of stimulating, promoting or assisting an influx of destitute persons,
over and above a normal entry of indigents themselves, is, in itself, related to a
local problem affecting the health, safety, welfare and economic resoures of the
state.
4. The statute, in its reference to indigent persons, contemplates only a limited
class of persons, i. e., persons so destitute of means for the support of themselves
and their families as to be dependent on public aid.
5. Congress has not acted in the field of regulating the movement of such persons
between states but has merely made available some funds to assist in their care
after arrival, and even in this respect the aid consists merely in the permissive use
by certain Federal agencies of such appropriations as may be available, there being
no permanent or comprehensive Federal plan for the purpose. (See Supp. Ex. 8,
pp. 100, 105.)
Congress has acted to exclude alien "paupers", "professional beggers", "va-
grants", "persons likely to become a public charge" and "persons whose ticket
or passage is paid for by the money of another, or who are assisted by others to
come * * *," (USC A, Tit. 8, Sec. 3) but has not provided any similar legisla-
tion for interstate migration.
(D) SECTION 2615 OF THE CODE DOES NOT CONTRAVENE THE PRIVILEGES AND IM-
MUNITIES CLAUSE OF ARTICLE IV, SECTION 2 OF THE UNITED STATES CONSTITU-
TION
It is first necessary to bear in mind the true meaning of the constitutional pro-
vision: "The Citizens of each State shall be entitled to all Privileges and Im-
munities of Citizens in the several States."
In the Slaughter-House Cases, 83 U. S. 36, 75 (1872) the Court, reviewing the
various constitutional provisions claimed to be contravened by the Louisiana
slaughter-house monopoly statute there involved, refers to Art. IV, Sec. 2 of
the Constitution and holds that it was intended to be the same as Article IV of
the Articles of Confederation.
The Court said:
"There can be but little question that the purpose of both these provisions
is the same, and that the privileges and imm.unities intended are the same
in each. In the article of .Confederation we have some of these specifically
mentioned, and enough perhaps to give some general idea of the class of
civil rights meant by the phrase."
Article IV of the Articles of Confederation was substantially the same as the
present constitutional provision except that it contained a specific clause to the
effect that "* * * the people of each state shall have ingress and regress to
and from any other state * * *."
But, the Articles of Confederation expressly excepted "pavpers, vagabonds and
fugitives from justice" from those inhabitants of each state entitled to all privileges
and immunities of the citizens of the several states.
That Article IV, Section 2 of the Constitution was drawn with reference to
the corresponding clause of the Articles of Confederation and was intended to
perpetuate the limitations of the former is declared to be settled law in United
States v. Wheeler, 254 U. S. 281, 296 (1920).
In the words of Pinckney, who was a signer of the Constitution, Article IV,
Section 2 of the Constitution was "formed exactly upon the principles of the
fourth article of the present confederation."
Farrand, Records of the Federal Convention (1911) Vol. I— III, p. 112, 445.
It is clear, therefore, that any fundamental privilege and immunity of ingress
and regress to the states, implied in Art. IV, Sec. 2 of the Constitution, must be
read in the light of the implied exception with respect to "paupers, vagabonds
and fugitives from justice."
This construction of the constitutional provision is of the utmost importance
and must have been deliberately planned by the framers because, otherwise, the
then long established custom, and the present general policy, of the several states,
NATIONAL DEFENSE MIGRATION 10029
to set up residence or settlement restrictions in their poor laws and relief statutes
would be of questionable validity.
These residence or settlement provisions invariably restrict state aid and
relief of indigents, the unemployed, the aged and the incapacitated, to residents
of the state and discriminate against transient or recently arrived citizens of
other states.
If it be held that under Article IV, Section 2 of the Constitution, states may
not control ingress into the state of paupers (i. e., persons so destitute of means
of support as to be dependent on public aid), who enter the state as citizens of
other states, then, logically and for the same reason, the state could not withhold
from such class of persons, solely on the ground of non-residence, those rights
and privileges of public aid and relief which the state deems proper to extend to
its own citizens.
This would, indeed, be a most amazing result, a result contrary to the practice
of the states and the views of state courts upon the subject.
In People v. Lyons, 30 N. E. (2nd) 46, 51 (1940), the Supreme Court of Illinois
considered the contention of a relief applicant that the residence condition, with
which he had not complied, was a denial of due process and equal protection
under both the State and the United States Constitution. The Court said:
«<* * * jn particular, the classification of beneficiaries such as paupers,
while not only permissible, but also necessary, must none the less be reason-
able. In re Opinion of the Justices, supra. The judiciary will not inter-
fere with such classification when made unless it is clearly unreasonable.
Punke v. Village of Elliott, supra.
"Since there is no legal obligation upon the State, or any governmental
unit, in the absence of legislative action, to support its poor, it follows,
necessarily, that a large degree of discretion rests upon the State when it
elects to furnish relief. The Pauper's Act has long imposed a burden upon
local governments which, in recent years, has become increasingly heavy.
The enactment under consideration reflects the attempt of our General
Assembly to ameliorate the burden by reducing it to the care of those indi-
viduals who have resided a minimum of three years in a particular gov-
mental unit. The manifest legislative intent is to furnish relief to residents
of local communities who, by reason of unemployment or otherwise, are
destitute and in necessitous CTCiimstances. Section 16 thus nvrrors an
intention to assure relief to such citizens by discouraging a steady influx of
unfortunate transients from other jurisdictions settling in Illinois for the
primary purpose of qualifying as future recipients of the State's benevolence.
Apparently, the legislature concluded that the absence of any restrictions as
to residence, or a less onerous requirement, might induce unemployed resi-
dents of and destitute persons from other States to avail themselves of the
more generous provisions of our laws. In short, section 16 as amended in
1939, represents a legitimate attempt to prevent Illinois and our local govern-
mental units from becoming a haven of the transient poor seeking the most
advantageous statutory provisions granted those requiring assistance and,
perhaps, thereby reducing the aid to which permanent residents of Illinois
should justly have first claim. It cannot be said as a matter of law that the
• period of residence bears an unreasonable relation to the subject of poor
relief."
There is, however, another reason why the appellant in the pending case cannot
avail himself of this particular constitutional provision.
It has long been the interpretation of Article IV, Section 2, that it does not
create the rights which it calls "privileges and immunities", nor does it profess
to control the power of the state governments over the rights of their own citizens.
In the Slaughter-House cases, supra, at p. 77, the Court, speaking of Article IV,
Section 2, said:
"Its sole purpose was to declare to the several States, that whatever those
rights, as you grant or establish them to your own citizens, or as you limit
or qualify, or impose restrictions on their exercise, the same, neither more
nor less, shall be the measure of the rights of citizens of other States within
your jurisdiction."
In Estate of Johnson, 139 Cal. 532, 535-6, (1903) the Supreme Court of Cali-
fornia, holding valid, despite claim of invalidity under this article, an exemption
from state inheritance tax of "nephews and nieces when residents of the state",
10030 THE EDWARDS CASE
followed the decisions of the United States Supreme Court to the effect that this
article does not operate to strike down a state statute but operates merely to
extend the privileges and immunities of the statute to citizens of other states
notwithstanding the limitations of the statute.
Therefore, even if Article IV, Section 2, applied to paupers and indigent per-
sons dependent on public aid, and even if section 2615 could be held to deprive
noncitizen indigent persons of a right of ingress accorded to citizen indigent
persons, the statute would not be for that reason void. The only result would be
that the noncitizen indigent, ie., Duncan in the pending case, could assert his
right to ingress to the state in a proper case, if he was being in fact deprived of
Buch piivilege.
Edwards, the appellant in the pending case, however, is not a citizen of another
state, but a citizen of California; he has not been deprived of ingress for indigency
or any other reason. He is not, therefore, of the class of persons that might be
injured by this statute, at least as far as the privileges and immunities clauses of
Article IV, Section 2, or of the Fourteenth Amendment are concerned, and cannot
raise the question of its invalidity under those provisions.
Red River Valley Co. v. Craig, 1S1 U. S. 548, 558; Estate of Johnson, supra,
p. 534.
(E) SECTION 2615 OF THE CODE DOES NOT CONTRAVENE THE PRIVILEGES AND
IMMUNITIES CLAUSE OF THE FOUR1EENTH AMENDMENT.
This provision of the Constitution to the effect that "no state shall make or
enforce any law which shall abridge the privileges and immunities of citizens of
the United States" has long been limited, and most recently by Madden v. Ken-
tucky, 309 U. S. 83, 90 (1939), overruling Colgate v. Harvey, 296 U. S. 404 (1935),
to the protection of rights peculiar to national citizenship, as distinct from the
fundamental or natural rights inherent in State citizenship.
See also:
Hague v. CIO, 307 U. S. 496, 519-20 (Justice Stone); Conf. p. 512 (Justice
Roberts) .
The right of persons to move across state boundaries is not referable to the
privileges and immunities clause of the Fourteenth Amendment.
In Colgate v. Harvey, 296 U. S. 404, 443-444 (dissenting opinion of then Justice
Stone), the dissenting justice pointed out that Crandall v. Nevada, 6 Wall. 35,
(which was noted in Twining v. New Jersey, 211 U. S. 78, 97 (1908)) has been
overruled by Helson v. Kentucky, 279 U. S. 245, 251 (1929) in so far as it referred
the subject of interstate movement to the privileges and immunities clause
rather than to the commerce clause.
Moreover, even if the privileges and immunities clause of the Fourteenth
Amendment covers the right of ingress and egress between states, it does not,
when read in the light of the exception implied in Article IV, Section 2, in respect
to paupers and in the light of the reiterated pronouncements of the Supreme
Court with respect to paupers, apply to ingress and egress of paupers, persons so
destitute as to be dependent on public aid.
Lastly, as we have heretofore pointed out in our comment upon the privileges
and immunities clause of Article IV, Section 2, appellant in the pending case is in
no position to assert the invalidity of section 2615 of the Code under these par-
ticular constitutional provisions because he has not been deprived of any privilege
or immunity thereby secured, even if it be assumed that an indigent resident of
another state could rely upon them in a proper case.
Conclusion
We trust that this brief, and the separate supplement filed herewith, will be
helpful to the Court in its determination of the important constitutional questions
here involved.
Our main purpose has been to assist the Court by providing the background
necessary for an understanding of the policy and purpose of the State of California
concerning the subject to which section 2615 of the Code relates.
We feel that this Court will be in a better position to approach the question
without resort to appellant's hasty imputation to California of the hard and
selfish purpose of preventing "the common man from exercising the rights which
NATIONAL DEFENSE MIGRATION 10031
may be exercised by one whose sole distinction rests in the number of dollars he
possesses."
Rather, let it be said that the State policy of California concerning a serious
problem and the very limited purpose of the State in the enactment of section
2615 of the Code are not only consistent with, but proof of, the fact that Califor-
nia's only purpose has been to restrain its characteristic generosity and friendliness
by practical solicitude for the welfare of its own citizens and those of sister states.
It is possible that future Congressional action or further State consideration
may solve this problem in a more idealistic manner.
Until then, however, all things considered and section 2615 of the Code under-
stood in the light of its true purpose and actual effect, there is, we most respect-
fully submit, no constitutional ground upon which the Court should strike this
law from the statute books of California.
Dated, San Francisco, California, October 10, 1941.
Earl Warren,
Attorney General of the State of California,
W. T; SwEIGERT,
Assistant Attorney General of the State of California.
Hiram W. Johnson, 3rd,
Deputy Attorney General of the State of California.
Attorneys for Appellee,
10032 THE EDWARDS CASE
Exhibit No. 8.
In the Supreme Court of the United States. October Term, 1941. No. 17.
Fred F. Edwards, Appellant, vs. The People of the State of California, Appellee
and Respondent. Earl Warren, Attorney General of the State of California;
W. T. Sweigert, Assistant Attorney General of the State of California; Hiram
W. Johnson, 3rd, Deputy Attorney General of the State of California, 600
State Building, San Francisco, California; Attorneys for Appellee.
SUPPLEMENT TO BRIEF OF THE ATTORNEY GENERAL OF THE
STATE OF CALIFORNIA ON BEHALF OF APPELLEE
Exhibit 1. — Statement of S. G. Rubinow, Administrator, California State Relief
Administration, Prepared by Bureau of Statistics, California State Relief Ad-
ministration, E. M. Cooper, Chief.*
The Problem op Interstate Migration as It Affects the California
St vie Relief Administration
functions of the state relief administration
The State Relief Administration of California is the agency of the State which
administers unemployment relief to the employable unemployed who are not
cared for under the program of the Federal Work Projects Administration.
The State relief administration extends aid to the unemployed entirely from
State funds and through its own offices located throughout the State. The
county welfare departments of the State of California do not enter directly into
the picture of unemployment relief.
The State relief administration was first created as the State emergency relief
administration in the spring of 1933 to distribute funds of the Reconstruction
Finance Corporation to the county agencies. The Governor appointed an
emergency relief administrator as the executive officer of the agency and an
emergency relief commission to aid the administrator in determining relief
policies.
In July 1933, the Federal Emergency Relief Administrator appointed the State
emergency relief administration as the executive body to administer the distribu-
tion of Federal funds in California. The State emergency relief administration
continued to act in that capacity until Federal funds were withdrawn and the
Work Projects Administration created in 1933. (sic) Since that time the State
emergency relief administration (now the State relief administration) has cared
for the unemployed for whom security wage employment is not available on
projects of the Work Projects Administration, either because of ineligibility to
the Work Projects Administration or because of lack of sufficient quota by the
Work Projects Administration.
The State relief administration is also the State agency which administers a
number of other Federal programs in California. It is the certifying agency of
persons eligible to Work Projects Administration and National Youth Adminis-
tration. It supervises enrollment of boys in the Civilian Conservation Corps in
California. It conducted the college student aid and emergencv education pro-
grams prior to the establishment of the National Youth Administration. To-
gether with the Work Projects Administration and the Federal Surplus Commod-
ity Corporation, it has distributed millions of dollars worth of surplus commodi-
ties in California. It operates the school lunch program for needy children. The
State relief administration now administers the Federal stamp plan (food and
cotton) in California which is gradually expanding and taking tne place of the
surplus commodity distribution program.
The State relief administration and the transient programs. — In the depths of the
1932 and 1933 depression California localities were overburdsned with care of
their own residents needing aid and were legally not responsible for those persons
who did not meet the residence requirements under the State's Indigent Act, the
most important provision of which required 3 years of independent residence in
the State before application for relief.
"In the small cities, transients were frequently forced to move on by the police.
In the large cities, some shelter and food were given by public agencies but the
missions and other religious types of agencies gave most of this limited assistance.
•Note: This Survey was introduced as an exhibit at p. 2871 of the Hearings (Los Angeles, September
28, 1940) before the Select Committee to Investigate the Interstate Migration of Destitute Citizens, House
of Representatives, held pursuant to H. Res. 63 and H. Res. 491, Seventy-sixth Congress, Third Session.
NATIONAL DEFENSE MIGRATION 10033
Conditions were wretched. 'Flop houses' were overcrowded, food was poor, and
sanitary facilities were inadequate. Transients and homeless residents were
treated alike in the shelters, men and boys mingled, and there was no separation
of the diseased from the healthy. Those not accommodated in the shelters often
found a night's lodging in the city jails or a longer residence in the 'shanty towns'
and 'jungles' that sprang up on the outskirts of the cities. Families and single
men lived partly on the limited public charity available and partly from begging
and 'panhandling,' or even from petty theft." l
In response to such conditions prevailing throughout the country, the Federal
Government accepted responsibility for the care of persons who had been in the
State less than 1 year through the Federal Emergency Relief Act of 1933.
"Financed with Federal funds, a transient program was established by the
State relief administration beginning in September 1933. Conforming to Fed-
eral policy, the first task was to provide sufficient shelters in the various cities to
accommodate the homeless, and then to establish work camps to which were sent
transients who agreed to accept care and a nominal cash wage in exchange for
work on useful public projects. Families were cared far through work and direct
relief provided by family bureaus located in the cities. By April 1935, the system
of transient units throughout the State included 17 family service bureaus, 39
camps for men and boys, and 17 shelters. In addition, the Transient Division
supervised 18 camps for homeless residents of California.
"Although the program sought by means of work, education, and recreation
to rehabilitate the transient men, their persistent tendency to move on from
shelters and camps nullified much of the constructive effort. This could not be
stopped because of the ease with which the men could find temporary shelter in
the cities under assumed names. Many of the boys also continued migration
even after being enrolled in one of the boys' camps. Only the families showed
stability, lacking inducements to travel on and generally remaining in the cities.
"Health problems were common among the transients, particularly venereal
diseases among the men. Mental and emotional disturbances also were a com-
mon result of the unstable conditions accompanying migration. Temporarily, at
least, the camp program restored most of the men to more normal living habits.
"The transient program was liquidated between September and December 1935,
in accordance with Federal policy to either return transients to their States of
residence for employment by the Works Progress Administration, or to absorb
as many as possible on the projects of the California Works Progress Adminis-
tration. The acceptance of new applicants was sharply curtailed during this
period when attempts were made to deal individually with each case already under
care. However, many men continued to leave camps and shelters for the road.
As a result of this circumstance plus the influx of transients from other States
during the usual winter migration, and the loss of employment by many transients
engaged in seasonal agricultural work, the uncared-for population increased con-
siderably. By the end of the year, 'jungles' and 'shanty towns,' begging and
'panhandling' were once more in evidence. Although they were on a smaller scale
than in 1933, they still were serious symptoms of what appears to be a chronic
transient problem in California." 2
Further important details concerning the nature and size of the transient pro-
gram in California are presented in a "Review of Activities of the State Relief
Administration of California, 1933-35," chapters VIII and IX, pages 167 to 200.
LEGISLATION AND RELIEF POLICIES CONCERNING RESIDENCE
Under the Federal Emergency Relief Act of 1933, the Federal Emergency Relief
Administration established a transient division to extend grants to States for
transient relief, providing assistance to persons lacking 1 year's residence in the
State of application for aid. Individuals who had been in a given State more
than 1 year were considered a responsibility of that State under the Federal
Emergency Relief Act of 1933.
For a number of years, to be eligible for indigent aid through the county welfare
departments of California, a person had to have 3 years of independent residence,
that is, he must have resided in California for three years or more intending to
establish his home here; and during this period he must not have received any
public or private assistance other than from legally responsible relatives.
Cooperating with the Federal relief programs the State relief commission, ap-
pointed by the Governor, established a 1-year residence rule for aid to the unem-
ployed from State funds. This conformed with the Federal plan of accepting as
i Review of activities of the State Relief Administration of California, 1933-35, p. 28.
* Review of Activities, op. cit., pp. 28-29.
10034 THE EDWARDS CASE
a Federal responsibility those persons who lacked 1 year's residence, leaving to
the State responsibility for persons of more than 1 year's residence.
In its relief activities, California, therefore, established a transient program
separate from its resident program. Persons were cared for under the resident
program out of State and Federal funds if they had been in California for 1 year
or more. Those persons who had been in the State for less than 1 year were
cared for out of Federal funds under the transient program which was liquidated
in 1935.
However, since the State Emergency Relief Administration still had a residue
of the Federal funds granted to California for this purpose, persons who had less
than 1 year's residence continued to be accepted for aid by the Stats Relief Ad-
ministration. Effort was made to verify legal residence and, upon receipt of
authorization from the State of residence, these persons were returned thereto.
If the relief recipient refused to return to his State of residence, aid in California
was discontinued unless good social reasons existed for the continuance of aid.
If a family was without residence in any State, aid was continued indefinitely as
long as the family was otherwise eligible for aid from the State relief administra-
tion.
In January 1936, this policy was amended to the effect that aid was discontinued
to persons upon their refusal to return to legal residence after it had been verified.
In the fall of 1937, with the establishment of the Farm Security Administration
grant program, persons lacking 1 year's residence in California and unwilling to
return to their place of legal settlement, were referred to the Farm Security
Administration for aid. The State relief administration thus extended only tem-
porary aid pending verification of legal residence and return thereto. The Farm
Security Administration gave more complete aid to persons lacking 1 year's resi-
dence. The Farm Security Administration adopted the policy of transferring
cases to the State relief administration upon the completion of 1 year's physical
residence in California.
In June 1938 the State relief administration policy became more restrictive.
Nonresidents were accepted for aid only if they indicated in advance a willingness
to return to legal residence when such residence was verified.
In January 1939 the latter provision was rescinded. Applicants for relief were
not required to indicate willingness to return to legal residence in order to receive
aid. However, efforts were made to verify legal residence and to return these
persons. In March 1939 the Farm Security Administration agreed to continue
aid to persons receiving aid under the Farm Security Administration grant pro-
gram after completion of 1 year's residence; and not to refer them to the State
relief administration.
At approximately the same time the State relief administration again decided
not to extend aid to persons lacking 1 year's residence unless the family indicated
at the time of application willingness to return to its place of legal residence.
This policy was again adopted because of lack of adequate funds for operation of
the various State relief administration programs.
In February 1940 the California Legislature, in enacting an appropriation bill
for the State relief administration, included several residence provisions in the act.
The new law denied relief to persons who had not resided continuously in Cali-
fornia for a period of at least 3 years, unless such persons had, previous to Febru-
ary 2, 1940, already received aid from the State relief administration or Work
Projects Administration. It also specified that nonresidents could be transported
to their place of legal settlement with funds available from this appropriation.
However, persons once returned to legal residence could not again enter California
and receive aid from the State relief administration.
Under this act, the relief commission restricted aid to nonresidents to a maxi-
mum of 30 days. The attorney general has interpreted the law to mean that
transportation of a nonresident may not be furnished if his legal residence is in
Alaska, Hawaii, Puerto Rico, or a foreign country.
In May 1940, the California Legislature, in another appropriation bill again
amended the residence requirements in the preceding relief appropriation act.
The present act states that none of the appropriation may be extended for the
relief of any person who "has not either lived continuously in this State for 5 years,
if he began to live in the State of California after June 1, 1940, or lived contin-
uously in the State of California for 3 years, if he began to live in the State of
California on or before June 1, 1940." With respect to aid to nonresidents the
following provision was adopted: "* * * the appropriation shall be available
for relief pending transportation, but not to exceed 30 days, and for the costs of
NATIONAL DEFENSE MIGRATION 10035
transportation of a nonresident to any State in which he resides. Every non-
resident, who has once received assistance under this subdivision * * * shall
not be granted further assistance from the appropriation made by this act."
At the present time, therefore, the State relief administration may not grant
aid, other than temporary aid pending return to legal residence, to new applicants
who have not resided in California for 3 years or more if they started to reside
here prior to June 1, 1940. Persons entering the State after June 1, 1940, may
not receive aid for 5 years after the date of entrance.
An illustration of the problems facing the State Belief Administration and
County Welfare Departments of California in attempting to work out policies
concerning the transient problem is contained in the following letter recently
received in reply to an attempt to verify legal residence of a transient applicant
for aid in San Diego County.
United Provident Association,
Oklahoma City, Okla., September 11, 1940.
Re Smith — John, Mary.
Mrs. Kathryn Cox,
Social Service Supervisor, State Relief Administration,
Bex 310, San Diego, Calif.
My Dear Mrs. Cox: Please refer to your letter of August 24, 1940, regarding
the above-named family.
The information which we have secured during this investigation indicates that
the John and Mary Smith family have legal settlement in Oklahoma City. You
may return them, at your expense, any time prior to August 1, 1941, when their
settlement will terminate.
Mr. and Mrs. Smith's son, George Smith, is employed on the Work Projects
Administration program. He is unable to send funds for transportation for
his parents.
Please advise Mr. Smith that the facilities available for relief in Oklahoma are
very inadequate. If Mr. Smith is an able-bodied man and capable of doing manual
labor, he would not be eligible for assistance through the United Provident Asso-
ciation or the Salvation Army since these two agencies assist families where the
wage earner is temporarily incapacitated. Neither of these agencies accept unem-
ployment cases. Unemployment cases are cared for by the County Welfare Board.
That agency has thousands of families on its rolls. Its case load is so large and
funds so limited that each family receives a maximum of $2 or $3 a month. In
addition, county welfare board cases receive United States Government food
stamps redeemable in Federal surplus commodities but these are inadequate for
subsistence. Mr. Smith would not be eligible for relief from the American Red
Cross unless he is a veteran with a service-connected disability. The only other
type of relief available in Oklahoma to able-bodied persons is the Work Projects
Administration. At this time the Work Projects Administration rolls are offici-
ally closed. There are approximately twenty-eight hundred men in this county
who are certified for Work Projects Administration employment, but who have
never been assigned to work. Before new applications are taken and new certifi-
cations are made, this surplus must be absorbed. If Mr. Smith desires to return
to Oklahoma City after being informed of the existing relief conditions in this
community, you have our permission to send him here.
Very truly yours,
(Miss) Marie Dorney,
Case worker.
THE VOLUME AND COST OF AID TO NONRESIDENTS
California has had the largest share of the Federal transient population in the
United States. During the Federal transient program, between 1933 and 1935,
10 to 13 percent of the national total of persons under care were aided each month
in California. The peak number was 38,815 persons under care on February 15,
1935. Table I shows the number of persons cared for under the California tran-
sient program as reported to the Federal Emergency Relief Administration the
middle of each month during 1934 and 1935. It will be noted that at the peak
February 15, 1935, the 38,815 individuals included 23,309 persons from 6,652
families and 15,506 unattached persons.
(Table 1 eliminated.)
Following the liquidation of the Federal transient program in 1935, the number
of transient cases receiving aid from the State relief administration has been rela-
tively small as a result of the policies concerning aid to nonresidents. At the
10036 THE EDWARDS CASE
present time, therefore, the State Relief Administration is giving temporary aid
to only 475 transient cases including 1,660 persons.
With the inauguration of the Farm Security Administration grant program,
the major portion of nonresidents in need of assistance have been cared for under
this program. At the present time, approximately 4,5C0 cases are being given aid
under this grant program of the Farm Security Administration.
During the period July 1933 to June 1940, it is conservatively estimated that
more than 300,000 persons received aid within 1 year after they had come to
California. This number represents more than 32 percent of the estimated
total migration to California of 957,000 persons during the years 1933 to 1939
according to estimates of the Division of Farm Population and Rural Welfare of
the United States Department of Agriculture, Bureau of Agricultural Economics.
To these 300,000 persons, aid has been extended from State and Federal funds
approximating $13,000,000, exclusive of administrative costs. At the present
time, expenditures from State funds for aid and transportation to transient cases
approximate $750,000 a year.
Data concerning the size of the transient case load during each month and the
amount of relief extended to these cases are presented in Table II.
(Table 2 eliminated.)
The fact that persons who have been in the State more than a year, but are still
recent migrants, have had a marked effect upon the State relief administration
case load, is indicated by an examination of case-load data for individual county
offices of the State relief administration since 1937. * * *
In view of the fact that a large proportion of those migrating to California were
last employed in agriculture, and an even higher proportion turned to agriculture
in California for employment, it would be expected that in recent years the State
relief administration case load in agricultural counties would have risen more rap-
idly than in urban counties. This is strikingly the case. The end of February
may be taken as representative of the peak of the total State relief administration
case load. At the end of February 1937. the total State relief administration
case load consisted of 70,397 cases, while at the end of February 1940 it consisted
of 112,354 cases, an increase of 60 percent. The combined case loads for the four
urban counties — San Francisco, Alameda, Los Angeles, and San Diego — totaled
42,419 at the end of February 1937 and 62,901 at the end of February 1937, an '
increase case load for eight counties of the predominantly agricultural San Joaquin
Vallev- — San Joaquin, Stanislaus, Fresno, Madera, Tulare, Kern, Kings — rose
from 5.447 at the end of February 1937 to 20,007 at the end of February 1940,
an increase of 267 percent.
The sharp disproportionate rise in the State relief administration case load in
agricultural counties is also the result of another and important type of migration,
intrastate migration as contrasted to interstate migration. Migration within
the State, entirely apart from migration from outside of the State, is necessary
to meet peak requirements for labor by several California industries, particularly
agriculture. These occur at different dates in different areas. From the attached
chart showing individual county case loads, it may be seen that the various
counties reached their peak in case load on varying dates. Similarly the low
points in case load are also staggered. The fact that relief case loads in the agri-
cultural counties of California tend to be more transitory and less stable than in
the urban counties is also indicated by comparative figures indicating average
differences between peak and low case loads. For the 3 years 1937, 1938, and
1939, in the above-mentioned agricultural counties, the average low point in case
load was 66 percent of the average peak, whereas in the four urban counties it
was 24 percent of the average peak. Typical patterns of migration within the
State of California are shown in one of the appended documents — Migratory
Labor in California.
Table 3 shows by months the number of cases closed by the State relief adminis-
tration through the return of transient cases to their States of legal residence for
the period December 1935 through June 1940. During this period 25,213 cases,
including approximately 83,200 persons, were returned to legal residence at a
cost of approximately $600,000. (These figures are included in the number of
cases aided and in the relief extended data presented above.)
(Table 3 eliminated.)
The above figures pertain only to relief extended to cases during their first
year of residence in California. If one were to consider aid extended to recent
migrants to the State after they had met the State relief administration residence
requirement, the volume of relief extended would be considerably greater. For
example, in February 1939, 26 percent of the State relief administration case
NATIONAL DEFENSE MIGRATION 10037
load consisted of cases and persons who had been in California for less than 3
years. A distribution of the State relief administration case load at that time
according to length of residence in California is presented in table 4.
(Table 4 eliminated.)
The fact that the present transient case load represents a small proportion of
the total load of the State relief administration does not mean that the problem
resulting from recent migration into California is now neligible. The State
relief administration's transient case load is small because —
1. Legislation prohibits State relief administration aid to persons who do not
meet the present residence requirements.
2. 1 he Farm Security Administration is giving aid to a number of persons who
have no legal residence in California.
3. Most of the persons who migrated to California during the middle of the
past decade, when the largest migration occurred, now have California residence
and are not classed as transients.
Additional information on the aspects of the migrant problem in California is
available in other material presented with this statement to the House Committee
on Interstate Migration. -This material includes "Review of Activities of the
State Relief Administration of California," "Migratory Labor in California," and
"Transients in California "
CHARACTERISTICS OF TRANSIENT APPLICANTS FOR RELIEF, 1936
During the last quarter of 1936, the State relief administration collected in-
formation on the background and characteristics of transient persons x'eceiving
aid from the State relief administration.
Questionnaires were filled out by case workers for a sample group of applicants
throughout the State. Data were tabulated from 1,961 questionnaires. A sum-
mary of the information gathered follows:
Ihe transient applicants came largely from the West Central States and from
Illinois. The table on page A shows not only the last State in which the transient
applicant lived for 1 year or more but also the length of time from the date of
beginning their migration to the date of application for relief in California. It
will be noted that more than 15 percent of the applicants came from Oklahoma,
with Texas and Missouri contributing the next largest proportions — 7.5 percent.
The other West Central States of Arkansas, Nebraska, and Kansas also con-
tributed significantly. The East Central State of Illinois was the State of origin
of 6 percent of the applicants. Outside of the Central States, the States of
origin of other significant numbers of these transient applicants were New York,
Colorado, and California's neighboring States of Arizona, Washington, Oregon,
and Utah.
The table on page A1 also indicates that most of the transients included in the
survey did not leave their homes to come directly to California because 62 per-
cent of the applicants had left their homes 3 months or more prior to the date of
their applications for aid in California, and 50 percent had been traveling 4 months
or more before they applied for aid in this State. One out of every eight of the
applicants had been on the road for 1 year or more before the date of their appli-
cation for aid from the State relief administration.
It is particularly significant to note from table 6 that 1,845, or 94 percent, of
the applicants were native-born American citizens. The nationality of these
recent migrants to California is presented in table 6.
(Table 6 eliminated.)
The table on pages 2886-7 shows by State of origin the industry in which the
applicants had previously been employed. Of the 1,961 persons 525, or 27
percent, had an agricultural background, and 292, or 15 percent, had formerly
been in domestic and personal service. The manufacturing, construction, and
trade industry groups each contributed approximately 10 percent to this group
of migrants entering California and seeking aid.
It may be noted that, although agriculture as a whole contributed only 27 per-
cent to the total number of applicants, in the four West South Central States of
Arkansas, Louisiana, Oklahoma, and Texas, it contributed 43 percent; and 50
percent of the persons who had come from Oklahoma had agricultural backgrounds.
The table on pages 2888-9 shows the occupational classifications of the 1,961
transients included in the survey. The previous table indicated that 525 per-
sons had an agricultural background. Of these, 421 were reported as unskilled
farm workers. In addition to these, 267 workers were reported as unskilled non-
1 This tabie as submitted was illegible. It was removed and placed in the committee file.
10038 THE EDWARDS CASE
farm workers. Therefore, a total of 688 persons or 35 percent of the number
included in the survey were reported as unskilled workers. The skilled trades,
the semiskilled trades, and the domestic and personal services each contributed
in the nicghborhood of 13 percent. There were 149 or 7.5 percent of the appli-
cants reported as professional and kindred workers.
The reasons for starting migration, as stated by the 1,961 transient cases
applying for relief, are shown in table 9 according to their occupational classifica-
tions". Approximately one-half left their homes seeking work in general with
no specific place of settlement in mind. The fact that 50 percent of the applicants
took 4 months or more before reaching California is a reflection of this fact.
(Table 9 eliminated.)
About one out of eight reported that they had left home seeking work in a
definite place and about the same proportion indicated that they had started their
migration because of health problems.
The figures show that approximately 5 percent indicated that they had left
home because of the drought. However, this figure should be considered in rela-
tion to the two reasons immediately following, "seeking work in general" and
"seeking work in a definite place," since the drought-may have been the causal
factor in many of the cases of these persons leaving their homes to seek work.
It will be rioted that in the group of farm operators, owners, and workers. 13
percent reported that they had left home as a result of the drought, but an addi-
tional 68 percent indicated that they had left seeking work, or because the location
was unhealthy. To what extent the drought entered into these latter cases is
unknown.
In interpreting the above statements it should be noted that the four reasons
above mentioned contributed in about the same degree in the case of nonagri-
cultural persons as it did in the case of the farm workers.
Table 10 shows the number of times the transients applying for relief had
entered California. In 1,388 of the 1,961 instances, this was the first time that
these persons had come to California. This represented 70 percent of the cases.
An additional 20 percent had been in California once before. The few persons who
reported that they had entered California numerous times previously were, in all
probability, following the crops as agricultural laborers.
(Table 10 eliminated.)
Table 11 inrbcates that in 1,604 of the 1,961 cases the head of the family was a
man and in 357 cases the head of the family was a woman. Of the 1,604 male
heads, 1,217, or approximately 75 percent, were persons who were classed as
physically capable of doing a full day's work and sufficiently skilled in their
occupations to be normally satisfactory to private employers. Of the 357 women
heads, 201, or about 55 percent, were classed in this category of group 1 employ-
ables.
(Table 1 1 eliminated.)
Table 12 shows, according to sex of the head of the family, the size of the house-
hold of the cases included in the survey. It is significant to note that of all cases
included in the survey, 22 percent were single men and 8 percent were single
women.
(Table 12 eliminated.)
WHAT HAPPENS TO REJECTED APPLICANTS
It is necessary to be aware of the consequences of the rejection of applicants for
relief for reasons other than financial ineligibility. Rejected applicants continue
to be a part of the economic structure of a county or State in which they are
present and therefore affect the social and economic conditions in the State.
Persons who are in need but who are denied public aid for technical reasons
continue to subsist through the sale of personal belongings, through borrowing,
through reducing the quantity and quality of their food, through doing without
necessarv clothing and shelter, and through acceptance of jobs at, substandard
wages which tend to reduce the general wage scale and the general standard of
living.
The State relief administration is aware of many individual situations where
persons continue to subsist through the above methods after having been rejected
by a relief agency. A sample survey was made to determine what happened to
persons rejected for technical reasons after the passage of restricted unemployment
relief legislation in February 1940. In addition to changing residence require-
ments, the legislation denied relief to certain aliens, limited the maximum amount
of aid which could be extended to a particular family, and required deductions of
all outside income of all family members, in determining relief grants.
NATIONAL DEFENSE MIGRATION 10039
As a result of this legislation, cases which heretofore had been eligible for aid
became ineligible and other applications which previously would have been
accepted were rejected. The State Relief Administration surveyed 148 cases in
San Diego County who were denied relief as a result of the new legislation, and
77 cases whose relief grants were reduced thereby. The 148 cases consisted of 71
cases whose applications for aid were rejected, and 77 cases which had been
receiving aid but which were closed as a result of the new legislation.
Of the applicants rejected, 25 of the 71 cases had found it necessary to move,
and it was impossible to secure additional information concerning them. Of the
remaining 46 cases, the major adjustment forced upon the family concerned their
food. Twenty families, or 43 percent, found it necessary to eliminate fresh milk
from their diets, or substitute canned milk therefor, reduce, and sometimes
eliminate, meat from the diets, increase the consumption of starches, etc. It
should be noted that a majority of the members of these 20 families were children.
Medical surveys in this area have indicated that diet changes caused by lack of
sufficient funds have often resulted in the occurrence of rickets, pellagra, scurvy,
secondary anemia and other diseases of malnutrition which tend to make the
patient susceptible to more serious diseases such as tuberculosis.
Rent was in arrears in 35 percent of the families interviewed. In 28 percent
of the cases utilities were delinquent. In 41 percent of the cases there was a need
for clothing. In one out of every four cases medical care was needed. It was
obvious that the refusal of relief intensified the problems of many of the cases which
had applied for aid. In a few instances the applicants have continued to get
along through inadequate part-time jobs at meager wages.
The cases to whom relief was discontinued as a result of the new legislation
show a very similar pattern. In 6 of the 77 cases the family found it necessary
to move since they were unable to meet their rent. Detailed interviews were
taken in the remaining 71 cases. Twenty-eight, or 36 percent, were behind in
their rent. In 3 instances utilities had been discontinued and in 16 cases the
payment of utilities was already delinquent. Two-thirds of the former relief
recipients needed additional clothing. The situation in relation to diet was more
serious, with numerous reductions in the quantity and quality of food. Eleven
of the families indicated that they were unable to manage 3 meals daily. In 9
cases special diets had previously been prescribed because of illness but the family
had been unable to purchase the needed food.
A few examples will illustrate what has occurred to several of the cases surveyed.
Family A consisted of a man, his wife and three minor children. Their applica-
tion for aid was rejected because of lack of 3-year residence in California. At
time of application the family had exhausted all means of support, having bor-
rowed $100 on a car 2 months prior to application. Since termination of employ-
ment a month prior to application, the family lived entirely on credit, accumu-
lating a $26 grocery bill. The rent was V/i months in arrears and gas and light
bills were delinquent. It was not possible to purchase milk and vegetables for
the minor children and their diet consisted chiefly of beans and potatoes. Credit
for groceries was being discontinued. At the time of the survey the family was
being pressed for their back rent and had absolutely no idea as to how they would
manage in the future.
Case B consisted of a man, his wife and three minor children. Their applica-
tion for aid was rejected by the State relief administration because of lack of
residence. After rejection, the man secured some odd jobs as a laborer, but his
total earnings during approximately a month and a half were about $52. It
became necessary for the eldest child, a 17-year-old daughter, to leave home be-
cause of the crowded condition and the lack of finances, and to move in with
friends in El Centro. The mother of the family at the time of the interview was
pregnant and expecting confinement shortly. Prenatal care had not been
received. No medical arrangements had been made. The family was unable
to buy the proper foods and was using canned milk entirely. All members of
the family were in need of clothing. The head of the family had no prospects of
employment.
Example C. The case was that of a man 52 years old, temporarily separated
from his wife and child because of their financial situation and because of their
ineligibility for relief on the basis of residence requirements. The family had
come to California from Texas 9 months previously and had refused to return
and was therefore rejected by the State relief administration. When the man
lost his job, his wife and child went to live with her father, having been forced to
move. The wife's father's resources were limited because of the irregularity of
agricultural work and his family of six. The only work "C" had had during 2>4
10040 THE EDWARDS CASE
months was four davs of labor during which he earned $12. With this he paid
part of his rent, sent $6 to his family and reduced his grocery bill from $8.70 to
$5.48. At the time of the interview "C" was sharing a one-room lean-to with
another man and was eating one meal a day, consisting largely of potatoes,
beans, and canned milk, which had been his diet for several months.
Exhibit 2 — Resolutions of the California State Legislature Re Transient Problem
1933-40
Senate Concurrent Resolution No. 5 (Statutes, 1933, p. 2813, Chapter 9, Resolutions):
"Whereas, Indigent, nonresident, transient unemployed seek in California
a haven during the winter months and burden the relief agencies and welfare
facilities of the counties of the State beyond the ability of the latter properly
to care for them, to the detriment of the needy and unemployed residents of
our counties; and
Whereas, There is dire need for an expansion of the California labor camp
relief program to furnish relief to fifteen thousand men instead of the seven
thousand at present provided for and if this is done the county relief facilities
will thereby be relieved of their present burden to the extent of such increase;
and
Whereas, The available funds of the State, including moneys derived from
private sources, are inadequate to care for this increase and the additional
sum of $587,785 will be required; and
Whereas, The Government of the United States through the Emergency
Relief and Construction Act of 1932 has made available to the States the sum
of three hundred million dollars to be used in furnishing relief and work relief
to needy and distressed people and in relieving the hardship resulting from
unemployment, which sum has been appropriated to be loaned to the gover-
nors of the soveral States upon their application and is to bo repaid to the
Government of the United States by making annual deductions, beginning
with the fiscal year 1935, from regular apportionments made from future
Federal authorizations in aid of the States for the construction of highways
and rural post roads; now, therefore, be it
Resolved by the Senate of the State of California, the Assembly thereof con-
curring, That the Governor is hereby requested to apply to the Reconstruction
Finance Corporation under the provisions of subdivision (c) of section 1 of
Title I of the Emergency Relief and Construction Act of 1932 for the sum of
$587,785 to be used for an expansion of California labor camps, and be it
further
Resolved, That the Secretary of the Senate be and he is hereby directed to
transmit a copy of this resolution to the Governor."
Assembly Joint Resolution No. 11 (Statutes 1937, p. 2710; Chapter 23, Resolutions) :
"Whereas, Natural interstate migrations of persons and families in search
of employment are greatly extended during times of general unemployment or
by reason of a calamity such as a drought, and conditions during the last five
years have greatly increased the unsettled population in the United Sl.ates
and states with mild climates and good wages inevitably receive a dispro-
portionate amount of such unsettled population; and
Whereas, It is to be expected as a continuing condition that underem-
ployed transient individuals and families will be found in disproportionate
numbers in several States and that public support and care will inevitably
be required from time to time for a substantial percentage of such individuals
and families regardless of residence laws: and
Whereas, During the operation of the Federal transient relief program in
California this State had under care through this program 12 percent of all
of the transient cases receiving aid in the United States and 16 percent of
all of the families receiving aid, although the population of California was
only 4.7 percent of the population of the United States; and
Whereas, During the eighteen-ir.onth period, February 1, 1934, to August
31, 1935, the average number of transient cases receiving care in California
Note: See also substantially similar resolution memorializing: Federal Government for loans for relief
purposes, Senate Concurrent Resolution No. 4 (Statutes, 19SS, p. 284^,; Chapter 12, Resolutions); also similar
reco!ution memorializing Federal Government to act re deportation of alien unemployed, Assembly Joint
Resolution No. 32 (Statute 1935, p. 25$?; Chapter 55, Resolutions); also similar resolution memorializing Fed-
eral Government not to rescind any relief rules with the effect of increasing burdens on California counties.
Assembly Joint Resolution No. 66 (Statutes 1935, p. 2712; Chapter 11,3, Resolutions).
NATIONAL DEFENSE MIGRATION 10041
was 17,245 and on February 15, 1935, there were 22,158 such cases receiving
relief; and
Whereas, During the period July 1, 1936, to November 30, 1936, auto-
mobiles entering California with families obviously seeking employment
carried 55,372 individuals, 42,469 of whom were from the drought States and
a considerable additional of families and individuals seeking employment
entered by other means of transportation; and
Whereas, There has not been and is not sufficient seasonal or permanent
employment for transients entering the State and there have at all times
during the past calendar year, and now are, under care by the State Relief
Administration and employed by the Works Progress Administration large
numbers of persons for whom neither temporary nor permanent employment
has been or is available; and
Whereas, It would be financially impossible for the State of California
to continuously extend such aid as is needed for transient individuals and
families in California and even though emergency aid is extended to transient
families, women, girls, and boys, pending verification of legal residence, some
States in verifying residence advise that no State Aid of any kind is available
and that limitations of Federal security wage program quotas preclude
assistance from that source; and
Whereas, The emergency aid now extended costs in excess of $500,000'
per year and this sum covers only a minor portion of the sustenance and
health needs of transient persons and families in California and extensive
sickness and health problems exist to such a degree that some counties have
overcrowded every available public hospital and health facility; now, there-
fore, be it
Resolved, by the Assembly and the Senate of the State of California, jointly,
That the Legislature of State of California respectfully urges the President
of the United States and the Congress to take cognizance of the problem of
care of the unsettled population of the Nation as a national matter and make
provision for an appropriation to be used to reimburse States for care of
persons and families needing public assistance in States other than the States
of their residence and making provision for the continuance of such aid to the
recipient thereof after residence has been established in a State other than
the State of origin."
Senate Joint Resolution No. 5 (Statutes 19S8, Extra Session; page 171, Chapter 26):
Whereas, The problem of relief for indigent non-residents of the State of
California has reached alarming proportions; and
Whereas, There has been introduced in Congress H. R. 9256, by Congress-
man Voorhis providing for aid by the Federal Government to States which
can and will meet the requirements of said act: and
Whereas, Said bill provides for the return of unemployable indigent
transients to the State of their legal settlement at Federal expense, and gives
the Social Security Board power to determine the State of legal settlement;
and
Whereas, Said bill provides for Federal reimbursement to States and
counties of moneys spent for relief and medical care of nonresidents; and
Whereas, The provisions of said bill require that eligibility for relief
thereunder is contingent upon registration for work with the United States
Employment Service or an affiliated State employment service; and
Whereas, While no State is required to come under the terms of the bill,
the provisions thereof are peculiarly applicable to the State of California
because of the fact that this State, by reason of its higher relief standards,
has encouraged the migration of indigents into this State; and
Whereas, The enactment of this bill would be of peculiar benefit to the
State of California; now, therefore, be it
Resolved by the Senate and Assembly of the State of California, jointly, That
the President and the Congress of the United States are hereby memorialized
and requested to enact said H. R. 9256; and be it further
Resolved, That the Governor transmit copies of this resolution to the
President of the United States, the Vice President, the Speaker of the House
of Representatives, and to the members of the delegation from California,
in the Congress."
60396 — 42— pt. 26-
10042 THE EDWARDS CASE
Assembly Joint Resolution No. 25 (Statutes 1939, p. 3209; Chapter 72, Resolutions):
"Whereas, Natural interstate migrations of persons and families in search
of employment are greatly extended during times of general unemployment
or by reason of a calamity such as a drought, and conditions during the last
five years have greatly increased the unsettled population in the United States
and States with mild climates and good wages inevitably receive a dispro-
portionate amount of such unsettled population:
Whereas, It is to be expected as a continuing condition that underem-
ployed transient individuals and families will be found in disproportionate
numbers in several States and that public support and care will inevitably
be required from time to time for a substantial percentage of such individuals
and families regardless of residence laws; and
Whereas, During the operation of the Federal transient relief program in
California this State had under care through this program 12 percent of all
of the transient cases receiving aid in the United States and 16 percent of all
of the families receiving aid, although the population of California was only
4.7 percent of the population of the United States; and
Whereas, During the eighteen-month period, February 1, 1934, to August
31, 1935, the average number of transient cases receiving care in California
was 17,243 and on February 15, 1935, there were 22,158 such cases receiving
relief; and
Whereas, During the period July 1, 1936, to November 30, 1936, automo-
biles entering California with families obviously seeking employment carried
55,372 individuals, 42,469 of whom were from the drought States and a con-
siderable additional number of families and individuals seeking employment
entered by other means of transportation; and
Whereas, The number of transients entering California for the purpose
of employment has increased even more rapidly since 1936; and
Whereas, There has not been and is not sufficient seasonal or permanent
employment for transients entering the State and there have at all times
during the past calendar year, and now are, under care by the State Relief
Administration and employed by the Works Progress Administration large
numbers of persons for whom neither temporary nor permanent employ-
ment has been or is available; and
Whereas, It would be financially impossible for the State of California
to continuously extend such aid as is needed for transient individuals and
families in California and even though emergency aid is extended to transient
families, women, girls and boys, pending verification of legal residence, some
States in verifying residence advise that no State aid of any kind is available
and that limitations of Federal security wage program quotas preclude
assistance from that source; and
Whereas, The emergency aid now extended costs in excess of $500,000 per
year and this sum covers only a minor portion of the sustenance and health
needs of transient persons and families in California and extensive sickness
and health problems exist to such a degree that some counties have over-
crowded every available public hospital and health facility; now, therefore,
be it
Resolved, by the Assembly and the Senate of the State of California, jointly,
That the Legislature of the State of California respectfully urges the President
of the United States and the Congress to take cognizance of the problem of
cire of the unsettled population of the Nation as a national matter and
make provision for an appropriation to be used to reimburse States for care
of persons and families needing public assistance in States other than the
States of their residence and making provision for the continuance of such
aid to the recipient thereof after residence has been established in a State
other than the State of origin; and be it further
Resolved, That the chief clerk of the Assembly is directed to send a copy of
this resolution to the President and Vice President of the United States, to
the Speaker of the House of Representatives, to each member in Congress
from California and to the Administrator of the Federal Works Progress
Administration."
Senate Joint Resolution No. 14 (Statutes 1939, p. 3246, Chapter 109, Resolutions):
"Whereas, There is pending in the Congress of the United States a bill
known as the 'Voorhis Bill,' designed to provide Federal financial aid for the
care of destitute nonresidents, and to secure uniform residence requirements
among the States; and
NATIONAL DEFENSE MIGRATION 10043
Whereas, Passage of this measure is of vital importance to the State of
California because it receives disproportionately a heavy influx of destitute
farmers; and
Whereas, California is financially and otherwise unable to shoulder the
relief burden imposed by such influx in the absence of Federal financial aid
and uniform residence requirements among the States; now, therefore, be it
Resolved by the Senate and Assembly of the State of California, jointly, That
the Legislature of this State hereby memorializes the President and Congress
of the United States to consider and enact said Voorhis Bill into law and that
the members of the Senate and of the House of Representatives from Cali-
fornia are hereby urged and requested to use all honorable means in the
furtherance of the enactment of such legislation ; and be it further
Resolved, That copies of this resolution be forthwith transmitted to the
President of the United States, the President of the Senate, the Speaker of
the House of Representatives and the members of the House and Senate
from the State of California."
Senate Joint Resolution No. 3, Statutes 1940, Extraordinary Session; Chapter 13,
Resolutions) :
Whereas, In view of the fact that we live in a Christian Nation and a
civilized community, it is incumbent on the citizens of California to be con-
cerned for the welfare of their neighbors who find themselves in the humble
position of requiring aid to meet the necessities of life; and
Whereas, To add to our responsibilities for the care of poor persons have
come many thousands of immigrants to California from the cold of the North,
the drouth and dust bowl areas of the Middle West, and the flooded areas
of the South; and
Whereas, The taxpayers of the State of California have been called upon
to aid and assist in assimilating this influx of unfortunate American citizens
who have migrated to our State in desperation and are in dire need ; and
Whereas, The taxpayers of the State of California have uncomplainingly
up to the present time taken care of this situation as best they know how and
to the limit of their ability, at a cost of many millions of dollars annually; and
Whereas, The State of California paid to the Federal Government between
the years of 1933 and 1938 inclusive, more than $1,131,000,000 in taxes; and
Whereas, The State of California rectived from the Federal Government
from all sources in return $952,000,000 — California having paid nearly two
hundred million dollars more in taxes than it received from the Federal
Government during that period; and
Whereas, During that same period Oregon paid to the Federal Govern-
ment approximately $50,000,000 in taxes and received more than $228,000,000
in return from the Federal Government — receiving over 4J4 times what it
paid in; and
Whereas, Nevada paid approximately $15,000,000 to the Federal Govern-
ment during that same period and received in excess of $98,000,000 in return,
or in excess of 6}i times its payment to the Federal Government, and neither
of these States received an appreciable amount of immigrants nor are they
carrying the local load that California is carrying, on account of the large
number of persons receiving Old Age Assistance in our State; now, therefore,
be it
Resolved by the Senate and Assembly of the State of California, jointly, That
the President of the United States, the Congress of the United States, the
Federal Security Administrator and the Commissioner of the Work Projects
Administration are hereby respectfully urged and implored to come to the
aid of California and give immediate attention and favorable action to our
just cause at this crucial moment when it is necessary to call an extraordinary
session of the Legislature to appropriate additional funds for relief; and be
it further
Resolved, That the Governor of the State of California is hereby requested
to transmit copies of this resolution to the President of the United States, the
Congress of the United States, the Federal Security Administrator and the
Commissioner of the Work Projects Administration ; and be it .
Resolved, That the Governor of the State of California and the State Relief
Administrator are requested immediately to take steps to prosecute this
resolution to a successful conclusion.
10044 THE EDWARDS CASE
Exhibit 3. — Section 2615, Welfare and Institutions Code, as Related to Other
Provisions of the Welfare and Institutions Code of Which It Is a Part
The Welfare and Institutions Code, Statutes 1937, Chapter 369, "An Act to
establish a Welfare and Institutions Code, thereby consolidating and revising
the law relating to and providing for protection, care, and assistance to children,
aged persons, and others specially in need thereof, and to repeal certain acts and
parts of acts specified herein, declaring the urgency thereof, and providing that
this act shall take effect immediately", merely assembled in code form a number
of existing general laws on the subjects of welfare and institutions.
The code consists of seven main divisions,
I. Administration of Welfare and Institutions; dealing with the organization
of the State Department of Social Welfare, the State Department of Institutions,
and with local or county administration of welfare work;
II. Children ; dealing with delinquents and wards of the juvenile courts, orphans
and other needy children, and institutions for child care and home finding agencies;
III. Aged Persons; dealing with the old age security law, and institutions and
boarding homes for aged persons;
IV. Indigent Persons; dealing with county institutions for the indigent and
countv aid and relief to indigents;
V. Physically Handicapped Persons; dealing with aid to and institutions for
the needy blind;
VI. Mentally Irresponsible Persons; dealing with commitments to county and
private institutions;
VII. Indians; dealing with administration of federal funds and suits in behalf of
Indians.
The provisions of the Welfare and Institutions Code applicable to indigent
persons are sections 200-221 of Division I and sections 2400 to 2615 of Division IV.
The only sections in Division I, Chapter 3, Local Administration, which are in
any way pertinent to section 2615 are the following:
Sec. 200: "Under such limitations and restrictions as are prescribed by law,
and in addition to jurisdiction and powers otherwise conferred, the boards of
supervisors in each county may provide for the care and maintenance of the
indigent sick or dependent poor of the county, and for that purpose may
levy the necessary property or poll taxes, or both."
Sec. 206: "The board may provide for transporting the needy sick to and
from hospitals to which they may be sent by authority of the board, and may
provide for transporting indigents to other counties or States when such,
indigents will thereby cease to become public charges, or when friends or
relatives of such indigents agree to assume the cost and expense of the care
and maintenance of such indigents, or when such indigents are legally public
charges in the places to which they are so transported."
The sections in Division IV, Indigent Persons, which are in any way pertinent
to section 2615 are the following:
Sec. 2500: "Every county and every city and county shall relieve and
support all incompetent, poor, indigent persons and those incapacitated by
age, disease, or accident, lawfully resident therein, when such persons are
not supported and relieved by their relatives or friends, or by their own means,
or by State hospitals or other State or private institutions."
Sec. 2501: "Every county may give such emergency relief to dependent
nonresidents as the respective boards of supervisors deem necessary."
Sec. 2502: "If no other funds are available for the purpose, a county may
incur all necessary expenses in transporting a nonresident indigent to another
State or county when information at hand reasonably tends to show that the
person has a legal residence in such State or county."
Sec. 2503: "Whenever the respective boards of supervisors deem it best
for the welfare of a family or in the public interest that an indigent remain in
a county not responsible for his support, the county responsible for the support
of the indigent may agree to support him in the county not so responsible;
but no indigent supported in this manner shall be deemed to have acquired
a residence in the nonresponsible county. Such agreement shall be made
by the responsible county with the nonresponsible county, and a record or
copy thereof shall be sent to and filed in the office of the State Department of
Social Welfare."
Sec. 2504: "If a dispute occurs between counties as to the responsibility
for an indigent, either county may submit the dispute to the State Department
of Social Welfare. The decision of the department thereon shall be final."
NATIONAL DEFENSE MIGRATION 10045
Sec. 2505: "Work may be required of an indigent, who is not incapacitated
by reason of age, disease, or accident, as a condition of relief. Such work
shall be created for the purpose of keeping the indigent from idleness and
assisting in his rehabilitation and the preservation of his self-respect."
Sec. 2550: "Except as otherwise provided in this chapter, a person, in
order to be entitled to aid, shall be a resident of the State and of the county
wherein application is made."
Sec. 2551: "The provisions of this article relating to residence are appli-
cable in determining residence for the purposes of this chapter only
Sec. 2552: "The residence is the place where one remains when not called
elsewhere for labor or other special or temporary purpose, and to which he
returns in seasons of repose."
Sec. 2553: "The residence of an unmarried minor child is the residence
of the father, while he has legal custody of the minor, or if he has not such
legal custody, the residence of the mother while she remains unmarried and
has the legal custody of the minor.
The residence of an orphan is that of the last deceased person who had his
legal custody.
The residence of a dependent child who has been declared free from the
custody and control of his parent or parents, by order of the juvenile court,
is not changed by change of the residence of the parent or parents."
Sec. 2554: "Neither the domicile nor residence of the husband shall be
deemed to be the domicile or residence of the wife if they are living separate
and apart and in such case each may have a separate domicile or residence
dependent upon proof of the fact and not upon legal presumptions."
Sec. 2555: "A resident of the State of California is a person who comes
within all the following descriptions:
(a) Who has lived continuously in the State for a period of three years
with the intent to make it his home.
(b) Who, during the three-year period aforementioned, has not received
any public or private relief or support from friends, charitable organizations,
or relatives other than legally responsible relatives; but time spent in a
public institution or on parole therefrom shall not be counted in determining
the matter of residence in this or another State.
(c) Who has not lost his residence by remaining away from this State for
an uninterrupted period of one year. Absence from the State for labor or
other special or temporary purpose does not occasion loss of residence."
Sec. 2556: "A person who is a resident of California within the meaning
of this chapter is a lawful resident of the county wherein he applies for aid if he
has resided therein continuously for one year immediately preceding his
application for assistance. If the applicant has no such residence, the county
wherein he last resided continuously for one year immediately preceding his
application shall be responsible for his support. If the applicant has no
such year's residence within three years preceding application, that county
shall be responsible for his support wherein he was present for the longest
time during the three-year period. Time spent in a public institution or on
parole therefrom or in a private charitable institution shall not in any case
be counted in determining the matter of county residence."
Sec. 2576: "If any indigent has living within this State a spouse, parent, or
adult child, and such kindred or any of them, or any group of them has
sufficient financial ability to support the indigent, he shall not be eligible for
aid under this chapter, except such emergency aid as may be extended here-
under pending a determination of responsibility for his support. Upon
failure of such kindred to support the indigent, the county may extend aid,
and such kindred in the order above named and to the extent of their ability
shall reimburse the county for the support of the indigent by paying to the
county the sums per month or per day fixed by the board of supervisors for
such aid. In any case where such kindred are unable to pay the entire charge
for such support, they shall reimburse the county to such an extent as may be
determined under the provisions of this section.
The board of supervisors shall, in the case of aid granted by institutional
care, fix a reasonable charge therefor, which shall be the measure of reimburse-
ment to the county, and the existence of the order fixing the charge shall
constitute prima facie evidence of its reasonableness."
Sec. 2577: "Upon failure of the kindred, referred to in section 2576, to
perform their duty to support the indigent, the board of supervisors shall
request the district attorney of the county to proceed against such kindred in
the order of their responsibility for support. Upon such request the district
10046 THE EDWARDS CASE
attorney shall promptly commence and prosecute proceedings for the ascer
tainment and enforcement of the liability and responsibility of the kindred."
Sec. 2600: "The board of supervisors of any county may establish its own
policies with reference to the amount of property, if any, a person shall be
permitted to have while receiving public assistance, to the end that so far as
it is possible an applicant for public relief shall be required to apply his own
property to his support."
Sec. 2601: "As a condition to the grant or continuation of aid to an indigent
the board of supervisors may require as security for the moneys so expended
that the applicant transfer or grant to it such property or interest in property
as the applicant has, or such portion thereof or estate therein or lien thereon
as the board specifies. Such property shall be managed by the board of
supervisors and the net income thereof shall be applied to the reimbursement
of the county for the aid granted and any surplus in excess of such reimburse-
ment shall be paid to the indigent. In the case of any estate, interest, or
lien in such property held by the board, or any right of management trans-
ferred thereto, the board shall have all the powers of an attorney in fact for
the indigent as to such estate, interest, or lien and may sell, lease, or transfer
the same, defend and prosecute all suits concerning it, pay all just claims
against it and be reimbursed out of the proceeds, and do all things necessary
for the protection, preservation, and management thereof. Any such estate,
interest, or lien shall be held by the board subject to the claim of the county
for reimbursement for aid granted to the applicant or for moneys expended
in its management, preservation, or protection, and such reimbursement
shall constitute a preferred claim against such estate, interest or lien."
Exhibit 4. — Legislative history of Section 2615, Welfare and Institutions Code
Present Section 2615, Welfare and Institutions Code of California (Stats. 1937,
p. 1406), reads:
"Wilful act a misdemeanor. Every person, firm, or corporation, or officer
or agent thereof that brings or assists in bringing into the State any indigent
person who is not a resident of the State, knowing him to be an indigent
person, is guilty of a misdemeanor."
The section, however, was not a new statute in 1937 but was based upon a
similar statute in effect prior to the adoption of the Welfare and Institutions Code
and which was repealed at the time of the codification of the welfare and insti-
tution laws.
It should be noted that section 2 of the Welfare and Institutions Code itself
provides that, in so far as its provisions are substantially the same as existing
statutory provisions relating to the same subject matter, they shall be construed
as restatements and continuations thereof, and not as new enactments.
This former statute was "An Act to provide for the aid and relief of indigents"
(Stats. 1933, Chapter 761, p. 2005).
Section 12 of this act was identical in terms with present section 2615, Welfare
and Institutions Code, except that following the words, "indigent person", were
the words "as described in this act".
The Act of 1933, itself, described indigents in section 1 thereof (the predecessor
of present sections 2500 and 2505, Welfare and Institutions Code) as follows:
"Every county and every city and county shall aid and relieve all able
bodied indigent persons and those indigents incapacitated by age, disease
or accident, when such indigent persons are not supported and relieved by
their relatives, or friends or by public or private institutions. Work may be
required of an able bodied indigent as a condition of relief. Such work
shall be created for the purpose of keeping the indigent from idleness and
assisting in his rehabilitation and the preservation of his self respect."
The residence provisions of this Act of 1933 were the same as the present
Welfare and Institutions Code sections 2555 and 2556, i. e., three years in the
State and one year in the county.
Section 12 of the Act of 1933 was in turn based upon a somewhat similar statute,
"An Act to provide for the maintenance and support, in certain cases, of indigent,
incompetent, and incapacitated persons (other than persons adjudged insane and
confined within the state hospitals), becoming a public charge upon the counties
or cities and counties within the State of California, and for the payment thereof
NATIONAL DEFENSE MIGRATION 10047
into a fund for the maintenance and support of such persons" (Stats. 1901, p. 636,
Chap. CCX), section 3 of which read:
"Every person, firm, or corporation, or the officers, agents, servants or
employees of any person, firm or corporation, bringing into or leaving within,
or procuring the bringing into or leaving within, or aiding in the bringing
into or the leaving within, of any pauper or poor or indigent or incapacitated
or incompetent person as hereinbefore mentioned, in any county or city and
county in the State of California, wherein such person is not lawfully settled
or not lawfully residing, as herein defined, knowing him to be such pauper,
poor, indigent, or incapacitated or incompetent person, shall be guilty of a
misdemeanor."
The Act of 1901 described indigents in section 1 thereof as follows:
"Every county and every city and county shall relieve and support all
pauper, incompetent, poor, indigent persons and those incapacitated by age,
disease or accident, lawfully resident therein, when such persons are not
supported and relieved by otheir relatives or friends, or by their own means,
or by state hospitals or other state or private institutions."
The Act of 1901 contained no time provision for the establishment of residence
in the State as a condition to relief, but did contain a provision for removal of
such persons as had not resided in the county for three months, section 4 reading
as follows:
"If any person shall become chargeable as a pauper, or poor, or indigent,
or incapacitated, or incompetent person as herein designated, in any county,
or city and county, who did not reside therein (as herein specified) at the
commencement of three months immediately preceding his becoming so
chargeable, but did at that time reside (as herein specified) in some other
county, or city and county in this state, it shall be the duty of the county
clerk of said first mentioned county or city and county to send written notice
by mail or otherwise to the county clerk of the county or city and county
in which such person so resided, requesting the proper authorities of such
county or city and county to remove such person forthwith, and to pay the
expenses accruing or to accrue, in taking care of such person; and such
county or city and county, wherein such person resided at the commence-
ment of the three months immediately preceding such person's becoming
chargeable as a poor, indigent, or incapacitated, or incompetent person as
herein designated, shall pay to the county or city and county so taking
care of such person all reasonable charges for the same, and such amount
may be recovered by suit in any court of competent jurisdiction by such
county or city and county."
In 1927, however, this Act of 1901 was amended to provide as a condition to
relief that a person must have resided in the State for one year (Stats. 1927, p.
430), and in the year 1931 was further amended to provide as a condition to
relief that a person must have resided in the State for three years and in the
county for one year (Stats. 1931, p. 145).
An early statute (Stats. 1860, p. 213), "An Act to authorize the Establishment
of County Infirmaries for the Relief of the Indigent * * *", an act which
dealt with blind, lame, old, sick, impotent, or decrepit persons, or persons in
any way disabled or enfeebled, so as to be unable by their own work to maintain
themselves, contained provisions similar to present section 2615, as follows:
"Sec. 17. If any person shall transport, remove, or bring, or cause to be
transported, removed, or brought, any poor or indigent person from any
city or county in this State, to any other city or county in this State, with-
out lawful authority, and there leave such poor or indigent person, with
intent to make such city or county chargeable with the support of such
pauper, each and every person so offending, shall forfeit and pay the sum
of one hundred dollars, for each and every such offense, for the use of the
indigent of the city or county in which such pauper shall be left, to be recov-
ered by action of debt, in the name of the State of California, before any
court of competent jurisdiction."
"Sec. 18. If any person shall willfully and without lawful authority, bring
or cause to be brought into this State, any poor or indigent person or lunatic,
without a protector, from any place without this State, and there leave, or
attempt to leave such person, with intent to make the city or county, or city
10048 THE EDWARDS CASE'
and county in which such person shall be left or attempted to be left, charge-
able with the support or maintenance of such person, each and every person
so offending, sha1! forfeit and pay not less than one hundred nor more than
six hundred dollars, for every such person left or attempted to be left, to be
recovered in the name of the State of California, in the action of debt, before
any court of competent jurisdiction, for the use of the city or county wherein
such poor or indigent person or lunatic shall be left or attempted to be left,
as aforesaid; and any person or persons, guilty of either of the offenses
specified in this section, shall be obliged to convey such poor or indigent
person or lunatic person, out of this State, or shall give bond to the State
of California, with security, to be approved of by the Treasurer of such city
or county, for the maintenance of such poor or indigent person or lunatic;
provided, however, that in every county, wherein the poor are supported in
a county infirmary, the penalties which may be collected under this act,
shall be appropriated for the benefit of such county infirmary."
This act was not exnressly repealed until the adoption of the Welfare and
Institutions Code in 1937.
Exhibit 5.- — Policies established by the counties of the State of California with
reference to eligibility for public assistance and with reference to the amount of
property a person is permitted to have while receiving public assistance
In the Welfare and Institutions Code of the State of California it is provided:
"Section 2500:
Every county and every city and county shall relieve and support all
incompetent, poor, indigent persons and those incapacitated by age, disease,
or accident, lawfully resident therein, when such persons are not supported
and relieved bv their relatives or friends, or by their own means, or by State
hospitals or other State or private institutions."
"Section 2600:
The board of supervisors of any county may establish its own policies with
reference to the amount of property, if any, a person shall be permitted to
have while receiving public assistance, to the end that so far as it is possible
an applicant for public relief shall be required to apply his own property to his
support."
In granting public assistance, the following policies have been established by the
respective counties of California with respect to eligibility and ownership of
property:
San Diego County (Population 289,348)
No aid shall be given to anyone capable of self-support and for whom regular
work is available. No one is entitled to aid other than emergency aid who owns
real or personal property valued at $300.00 or more, unless aid is approved by
Board of Supervisors. (Administrative Code of the County of San Diego).
Life Insurance policies in excess of $125.00 cash surrender value must be cashed
and used for living expenses before aid is given. (Manual, Department of Public
Welfare) .
San Bernardino County (Population 161,108)
No person is eligible for "indigent aid who owns real property, the assessed
value of which is $3000. or more, or owning personal property, the market value of
which exceeds $250.; nor to any person having cash or negotiable securities in
excess of $50.00; cash surrender value of any insurance policy is considered as
cash. Also no person is eligible for aid who owns, or is purchasing an automobile,
the market value of which combined with other personal property exceeds $250.
(Rules and regulations of County Welfare Department) .
Tulare County (Population 107,152)
No one is eligible for assistance who owns merchantable personal property,
except household furniture of a Wal value of less than $200. and the tools or imple-
ments of his trade, occupation or profession of a value of less than $200., or who
owns real estate wherein the applicant has an eauity of $10000. or over, or who
has insurance policies exceeding $200. (Resolution of Board of Supervisors) of
June 20, 1941. Prior to the resolution same definition was used according to
letter from County Welfare Department) .
NATIONAL DEFENSE MIGRATION 10049
Kern County (Population 135,124)
No "indigent aid" is given to a family in which there is an employable person.
Applicants for assistance are expected to use any available financial resources of
any member of the family for support prior to receipt of relief. Ownership of
insurance by head of the family group not exceeding the face value of $500. is
allowed. Relief may not be extended to anyone who possesses or whose family
possesses an unencumbered automobile or truck having a value of more than
$250., unless the vehicle is a necessity. Ownership of an automobile the value of
less than $50.00 is permitted.
No aid is granted to any person who owns real property of an assessed value of
$3000. or more; if the value is less than $3000, aid will not be granted unless the
property is used as a home, and in that event if the value is more than $1000. and
less than $3000. all property over $1000. valuation must be converted into
resources for the care of the person.
No one is entitled to aid who possesses personal property in the form of liquid
assets, or who possesses personal belongings, clothing, furniture or ether assessable
property of the value of over $250. (Manual of Policies, Kern County Welfare
Department) .
Marin County (Population 52,907)
Anyone having funds in excess of $25.00, or owning an automobile with a value
in excess of $250.00, unless there is a necessity for the automobile is not eligible for
"Indigent Aid". The only restriction as to real property is that applicant must
execute a lien for reimbursement in favor of County. Only in exceptional cases is
ownership allowed in excess of
$1000.00 for men;
500.00 for women;
1500.00 for man and wife. when there are children.
Mendocino County (Population 27,864)
No one is eligible for "indigent aid" who owns personal property in excess of
$500., or who possesses cash or negotiable securities the value of which is in excess
of the monthly aid to be granted. All liquid personal assets must be exhausted.
No person may be considered indigent and in need, the gross relief income of whose
immediate family living within the home, is in excess of the monthly County in-
digent aid budget for such case. No person is eligible to aid if the family unit
includes a member physically able to work, and who is available for work.
(Rules and Regulations of County Welfare Department).
Stanislaus County (Population 74,866)
Applicant for aid may not own a home of the assessed valuation of over $2000.,
or who has personal property over the value of $300. If the latter is cash, person
is ineligible if cash is more than $50. If real property is not used as home, owner
is not eligible for aid unless property is not salable. A family may not own an
automobile over the value of $250., nor may there be in the family an employable
member, or an income of more than the budgetary needs based on a subsistence
level which includes enough food for health, adequate housing, sanitation, mini-
mum clothing, fuel, utilities and other essentials. Recipients are not allowed to
possess any insurance. (Stanislaus County Welfare Department Manual).
San Francisco (Population 634,536)
No one is eligible for "indigent aid" who owns real property of any value not
used as a home. If used as a home no aid is granted if assessed valuation is over
$3000.
No one is eligible for aid who has any personal property, except that the follow-
ing are not considered in estimating personal property: personal effects, furniture,
trade equipment, automobile, insurance policies of a total loan value of less than
$100. (Rules and Regulations of Public Welfare Department.)
Tuolumne County (Population 10,887)
As a general rule no assistance is extended to anyone possessing any money, who
is steadily employed, or who has property of an assessed valuation of more than
$500. (Letter from Welfare Department, Sept. 2, 1941.)
10050 THE EDWARDS CASE
Alameda County (Population 513,011)
No one is eligible for assistance who has liquid assets that can be converted or
who has cash funds more than sufficient for a normal working basis for the family.
Aid is not denied because of the possession of a small amount of cash. Insurance
policies must be surrendered for cash or borrowed on where recipient has large
amount of equity.
Real property not used as a home must be liquidated. Ownership of real prop-
erty of a reasonable value and used as a home does not render one ineligible to
receive aid.
Kings County (Population 35,168)
No ordinance or resolutions by the Board of Supervisors have been passed nor
are there any rules by the Supervisors setting forth eligibility to aid as an indigent
person. The matter of determining eligibility for aid to needy persons or indigents
has been left to the Welfare Department which accepts the common definition of
indigent person given by Webster's and other dictionaries. (Letter from Welfare
Department, September 2, 1941).
Lassen County (Population 14,479)
By instruction from the Board of Supervisors The Welfare Department certifies
as eligible for County Indigent Aid those persons who are destitute of property
and without means of comfortable subsistence; they must be needy, poor and
actually in want; resources of all kinds are to be consumed insofar as possible.
The term "indigent" during the last four years has meant an unemployable per-
son who is unable to provide for his or his familv's support. (Letter from Welfare
Department, Aug. 23, 1941).
Sonoma County (Population 69,052)
Before a person is eligible for County aid, he must be unemployable and must
have used his resources for the support of himself and his family as far as possible.
(Letter from Welfare Department, Aug. 28, 1941).
Yolo County (Population 27,243)
By rules laid down by the Board of Supervisors indigents are unemployable
persons, whether as the result of physical or social reasons, whose resources are
not sufficient to cover their basic needs. These are defined as food, adequate
clothing and shelter (including heat and utilities) at a subsistence level. Property
which supplies a basic need may be owned and retained; such as a home. (Letter
from Welfare Department, Sept. 3, 1941).
Trinity County (Population 3,970)
To qualify for assistance, a person must be unemployed, have little or no income,
and have no relatives or other resources from which he can obtain a livelihood.
(Letter from Welfare Department, Aug. 29, 1941).
Humboldt County (Population 45,812)
The general policy is to assist any and all individuals who have no available
resources for the necessities of life. (Letter from Department of Public Welfare,
Aug. 26, 1941).
Merced County (Population 46,988)
Assistance is given to all persons who are in need, destitute, and without other
means of support. (Letter from Department of Public Welfare, Aug. 26, 1941),
Butte County (Population 42,840)
Indigent aid is given to persons found to be in need of assistance, based on the
meaning given in Webster's Unabridged Dictionary, defining "indigent" as
needy; poor. (Letter from Department of Public Welfare, Aug. 22, 1941).
Imperial County (Population 59,470)
Relief is limited "to actual indigents and persons physically and financially
unable to care for themselves." (Quoting from letter of District Attorney,
Sept. 12, 1941.)
NATIONAL DEFENSE MIGRATION 10051
Solano County (Population 49,118)
To determine whether a person is eligible for "Indigent Aid" the Welfare De-
partment uses the standard food budget as set forth for State Child Aid cases by
the State Department of Social Welfare. This budget sets up the minimum of
food required for subsistence. In the event the applicant's income is not sufficient
to supply this minimum, aid is granted so as to supply, together with the other
income, the basic needs for housing, utilities, food, and clothing.
Nevada County (Population 19,283)
Each case is governed on its own merits, limited to families in which there is no
employable member. (Letter from Welfare Department, Aug. 22, 1941.)
Santa Clara County (Population 174,949)
In determining indigency, the Welfare Commission determines if the applicant
has sufficient resources to cover the basic needs of clothing, housing and food. The
amount necessary for food is determined by the Okey-Huntington budget, which
sets up certain basic food requirements for persons classified in age groups.
Deficiency in resources to supply the basic requirements is provided for by the
County.
In the following counties, no set ordinances have been passed nor are there any
written rules or regulations setting forth eligibility to assistance, each case being
treated on its individual merits.
Tehama County (Population 14,316)
(Letter from Department of Public Welfare, Sept. 13, 1941).
Yuba County (Population 17,034)
(Letter from District Attorney, Aug. 23, 1941).
Glenn County (Population 12,195)
(Letter from Welfare Department, Aug. 22, 1941).
Fresno County (Population 178,565)
(Letter from Department of Public Welfare, Aug. 26, 1941).
Riverside County (Population 105,524)
(Letter from Bureau of Welfare and Relief, Aug. 26, 1941).
Napa County (Population 111,782)
(Letter from Welfare Department, Aug. 26, 1941).
San Mateo County (Population 28,000)
(Letter from Welfare Department, Aug. 22, 1941).
Eldorado County (Population 13,229)
(Letter from Social Welfare Department, Sept. 8, 1941).
Lake County (Population 8,069)
(Letter from County Welfare Department, Aug. 22, 1941).
Sierra County (Population 3,025)
(Letter from Welfare Department, Sept. 3, 1941).
Placer County (Population 28,108)
(Letter from Welfare Department, Sept. 6, 1941).
10052 THE EDWARDS CASE
San Luis Obispo County (Population 33,246)
(Letter from Welfare Department, Aug. 26, 1941).
Mono County (Population 2,299)
County does not require that a person be entirely destitute (Letter from
Welfare Department, Aug. 22, 1941).
Shasta County (Population 28,800)
(Letter from Welfare Department, Sept. 5, 1941).
Del Norte County (Population 4,745)
(Letter from Welfare Department, Sept. 19, 1941).
Exhibit 6. — Record of prosecutions in the counties of the State of California under
section 2615 of the Welfare and Institutions Code, State of California
INTRODUCTION
On May 19, 1941, the State Department of Social Welfare advised that section
2615 of the Welfare and Institutions Code has not been applied generally through-
out the State, and that the Department had not taken part in any prosecutions,
confining itself to settlement of disputes between counties as to the question of
residence of an applicant for county assistance as an incompetent, poor, indigent
person. The Department was aware of prosecutions in only three counties,
nam el y, Kings, Tulare and Yuba (the instant case).
The counties involved were contacted with a view to obtaining all date con-
cerning the cases, with particular reference to the persons alleged to be indigents.
What information was available is set forth herein, together with pertinent
data received from the Farm Security Administration, United States Department
of Agriculture, concerning the defendants or the alleged indigents.
KINGS COUNTY
People v. Willie George
Criminal No. 1370, In the Justice's Court of Corcoran Township, County of
Tulare; G. W. Squire, Justice of the Peace; Docket 12, Page 170.
Complaint sworn to by Ora D. Strong on October 30, 1939 charged that Willie
George on or about October 19, 1939 "did wilfully and unlawfully bring into the
State of California certain indigent persons, to wit, Beulah George, Raymond
George, Rose Ann George, DorothyjDan George, Clara May George, James George,
not at that time residents of the State of California, and knowing them to be
indigent persons."
Docket entries as follows:
"Oct. 30, 1939 Complaint filed and warrant issued.
Nov. 2, 1939 Defendant in court and duly arraigned. Complaint was read
to him and he was informed of all his legal rights.
Nov. 2, 1939 Defendant waived further time in which to enter a plea and
entered a plea of "guilty as charged".
Nov. 2, 1939 Wherefore, it is the judgment of the Court that the defendant
is guilty of the crime of misdemeanor, and that for said offense
the said defendant be imprisoned in the County Jail for a
term of 180 days, sentence suspended on condition that the
said defendant reimburses the Welfare Department in the
amount necessary to defray the expense of returning the fol-
lowing named persons to Missouri: Beulah George, Raymond
George, Rose Ann George, Dorothy Dan George, Clara May
George and James George."
The following information has been received from the office of the District
Attorney and the Welfare Department of Kings County concerning this case:
The complaint was sworn to by Ora D. Strong, Tulare County Welfare Director,
who was also present at the time judgment was pronounced. In fact the sentence
made by the Court was that recommended by Mr. Strong. The Welfare De-
partment of Kings County advanced to defendant Willie George the necessary
funds for transportation of the alleged indigents to Missouri. The defendant
NATIONAL DEFENSE MIGRATION 10053
took these persons back to Missouri and then returned to California, but has never
reimbursed the Welfare Department for the funds so expended by it.
Beulah George, a widow, was the aunt of defendant, the remainder of the
alleged indigents were her children, ranging in age from 12 years to eight months.
The family resided in Missouri before coming to California, where child aid of
$56.00 per month had been given, but was discontinued, due to lack of cooperation.
At the time of a visit in October to Missouri by defendant, a resident of California,
Beulah George persuaded defendant to take her and her children to California.
They arrived in Kings County on October 19, 1939. Shortly thereafter applica-
tion was made to the County Welfare Department by Beulah George for assistance,
which was refused because of lack of residence. At that time Mrs. George stated
to O. D. Strong, County Welfare Director, that she came to California because
she heard this State granted a larger amount of aid for orphan children; that she
had no means of subsistence; that she owned no property of any kind prior to
leaving Missouri.
After the applicant had been rejected by the County Welfare Department,
application for assistance was made by Beulah George to the Farm Security
Administration, which granted assistance by providing groceries and two cash
vouchers prior to her return to Missouri with her children.
YUBA COUNTY
People v. Fred Edwards
This is the instant case and supplementing the facts set forth in the record,
we have ascertained as follows:
J. E. Barton, Special Investigator in the office of the State Controller, who
signed the complaint in the above entitled action, made a report on February 13,
1940, to Mr. J. M. Roberts, Administrative Assistant to the State Controller, in
which the following facts appeared:
The records of the Farm Security Administration, U. S. Department of Agri-
culture, reveal that the alleged indigent Frank Duncan applied for assistance on
January 11, 1940, six days after arrival in the County of Yuba. The case was
accepted by that agency and prenatal care was extended to Mrs. Duncan, hos-
pitalization for the birth of a child on January 26, 1940 was granted and further
medical care was extended after the birth.
Fred Edwards made the statement to J. E. Barton and Lyle Piatt, State Relief
Administration County Case Supervisor, that he made the trip to Texas for the
express purpose of bringing Frank Duncan and his family to California, knowing
that Duncan was not a resident of California, was unemployed in Texas, and
would be unemployed and without adequate resources upon entering California.
Mrs. Duncan was a sister of Mrs. Edwards, 'wife of the defendant.
TULARE COUNTY
In this county eleven complaints were filed by A. H. Kincaid, Special Investi-
gator to the District Attorney, whose duty it was to investigate cases wherein
peisons were unlawfully receiving assistance from the County Welfare Depart-
ment, and who at present is employed in the same duties in the Welfare Depart-
ment. In seme instances prosecutions were commenced as the result of informa-
tion obtained when applications for assistance by destitute people were made
to the County Welfare Department. In other instances, reports were received
from various persons that a family of destitute people had recently arrived,
which lead to investigations. In both instances, upon ascertainment that these
persons were without means of subsistence and were in need of assistance and had
recently arrived in the State, the names of several members of the family were
ascertained and complaints were filed under section 2615 against the person who
had brought these people into the State.
The only information obtainable from either the Welfare Department or the
District Attorney's office concerning the background of these prosecutions was
secured fiom A. H. Kincaid, who signed the complaints. He had no written
memoranda but was able to recall from memory various facts that were involved
in a number of the prosecutions. These are set forth hereafter in connection
with each case.
10054 THE EDWARDS CASE
People v. Fred E. Woodward
Criminal No. 12,144, In the Justice's Court of Tulare Township, County of
Tulare; Docket 36, Folio 295. Ward G. Rush, Esq., Justice of the Peace.
Complaint sworn to by A. H. Kincaid on January 24, 1940, charged that Fred
E. Woodward, on or about the 3rd day of December, 1939, in violation of Sec.
2615 of the Welfare Code "did wilfully bring into the State of California certain
indigent persons, to-wit: Mrs. Fred E. Woodward and four children, all of said
indigent persons not being residents of the State and said defendant well knowing
said persons to be indigent."
Docket entries as follows:
"1940
Jan. 24 Complaint filed.
Jan. 24 Warrant issued."
(No further action was ever taken)
A. H. Kincaid, who signed the complaint, advised that the Mrs. Fred E. Wood-
ward and four children alleged to be indigents were the wife and four minor
children of defendant.
The following information was obtained from the Farm Security Administration,
U. S. Department of Agriculture, concerning defendant, as shown by its records as
of September, 1941:
"Woodward, Fred E.
Family composition: Frederick E., head, age 46; Jannie, wife, age 38; Doris,
daughter, age 13 years; Lois, daughter, age 9 years; Geneva, daughter, age 7;
Freddie, son, age 3; Vida, son, age 1. The family has been known to this agency
only in Tulare County and has received aid in the following months; December
1939 through May 1940; July 1940; December 1940 through May 1941. The
client is a citizen and formerly lived at Mortilton, Arkansas. He left there in
November 1939 and entered California the following month. Before coming to
this state he had been engaged in the jewelry business."
People v. John Cook
Criminal No. 10,213, in the Justice's Court of Visalia Township, County of
Tulare, Docket 25, Folio 33. Gareth W. Houk, Justice of the Peace.
Complaint sworn to by A. H. Kincaid, Dec. 14, 1939, charged that John Cook on
or about Sept. 21, 1939, in violation of Sec. 2615 of the Welfare Code "did wilfully
bring into the State of California certain indigent persons, to-wit: Mrs. Lela
Benge, Lela May Benge, Rosemary Benge, J. B. Benge, William Edward Benge,
Jackie Benge, and Jimmy Benge, all of said indigent persons not being residents of
the State and said John Cook well knowing said persons to be indigent." The
warrant fixed bail at $500.
Docket entries as follows:
"Defendant pleads guilty and waives time for judgment.
"Wherefore, It is by this Court ORDERED AND ADJUDGED that for
said offense, you the said defendant be imprisoned in the County Jail for a term
of six (6) months, suspended for two years on condition that the defendant
return with his family to Oklahoma and take with him all the parties set forth
in the within complaint, and not return for said two year period. Said defendant
is to leave with said parties on. or before the 21st day of December, 1939, at 12
noon.
"Done in Open Court this 16th day of December, 1939.
"Gareth W. Hauk"
The following information was received from the Farm Security Administration,
U.S. Department of Agriculture, concerning Lela Benge and her six minor children
as shown by its records:
"Benge, Lela
On September 26, 1939 the family composition was as follows: Lela, head
age 29 (widow); Lela May, daughter, age 11; Rose Mary, daughter, age 10
J. B., son, age 7; William Ed, son, age 5; Jackie, son, age 2; Jimmie, son, age 1
Aid was extended from September through December, 1939, and February
through May, 1940. All grants were made in Tulare County. The family are
citizens and formerly lived in Miama, Oklahoma, where the client's husband
had done farm work until his death in May, 1939. According to Mrs. Benge's
statement, the family had received 'general relief in Oklahoma. No work
history was given for her."
NATIONAL DEFENSE MIGRATION 10055
Information from A. H. Kincaid, who signed the complaint, reveals that the
alleged indigent, Mrs. Lela Benge, was the widowed mother of the remaining
alleged indigents, all of whom were minor children. There was no family rela-
tionship between defendant and the alleged indigents.
People v. Frank Ramos
Criminal No. 11,904, In the Justice's Court of Tulare Township, County of
Tulare; Docket 36, Folio 155.
Ward G. Rush, Esq., Justice of the Peace.
Complaint sworn to by A. H. Kincaid on November 20, 1939, charged that
Frank Ramos, on or about the 8th dajr of May, 1939, in violation of Sec. 2615
of the Welfare Code "did wilfully bring into the State of California certain in-
digent persons, to-wit: Ponciano Borazo, Jim Borazo, Julia Ramos, Alice Ramos,
Betty Ramos and Rudolph Ramos, all of said indigents not being residents of
the State of California and said defendant well knowing said persons to be
indigent. Docket entries as follows:
"1939
Nov. 20 Complaint filed.
" 20 Warrant issued ($500 bail).
Dec. 27 Warrant returned and filed."
The following information was received in September 1941 from the Farm;
Security Administration, U. S. Department of Agriculture concerning Frank.
Ramos as shown by its records:
Ramos, Frank R.
On June 6, 1939 the family composition was as follows: Frank, head, age 38;
Dolores, wife, age 138; Ponciano, son, age 15; Eufrasio, son, 13 years; Julia,
daughter, 10 years; Alegandra, daughter, age 9; Betty, daughter, 5 years; Rudolph,
son, 1 year. The family received aid continuously from June 1939 to the present,
except for September, 1940. Mr. Ramos is a citizen of Mexico and the Visalia
Office recently reported that his command of the English language is very slight,
limiting his employability. This accounts for the long and continuous record of
aid. Ihe general health of the family is poor and the youngest child, Rudolph,
is blind, deaf and dumb, which has been a further handicap to the client, inasmuch
as he has had to remain at home to care for the others."
A. H. Kincaid, who signed the complaint, advised that the alleged indigents
Ponciano Borazo and Jim Borazo were step-children of defendant and that Julia,
Alice, Betty and Rudolph Ramos, the remaining alleged indigents, were children
of the defendant Frank Ramos and that all of the alleged indigents were minors.
People v. Booker Crisp
The complaint was filed by A. H. Kincaid on January 19, 1940, in the Justice's
Court of Alpaugh Township, Lemuel L. Ellis, Justice, charging Booker Crisp
with violating Sec. 2615 of the Welfare Code by wilfully bringing an indigent,
Clara Tell, into the State on or about the 1st day of October, 1939.
Although the complaint was filed with Justice of the Peace Lemuel L. Ellis,
there were no further proceedings.
According to information received from A. H. Kincaid, who signed the com-
plaint, defendant brought Clara Tell and her eleven minor children into Tulare
County and then left her and the children. There was no family relationship
between defendant and Clara Tell, the alleged indigent.
The Welfare Department of Tulare County has been granting aid to Clara Tell
for six of her children under the provisions of the Welfare and Institutions Code
for Aid to Needy Children since July, 1941.
The following information was received from the Farm Security Administration
with respect to defendant Booker Crisp:
"Crisp, Booker
Famity composition: Booker, head, age 25; Ethel, wife, age 30; Mary, niece,
age 4. The client was known to us only in Tulare County and aid has been ex-
tended in July and August, 1941. The family has been migrating between
California and Arizona following the cotton crops, since 1933. They are citizens
but do not have state residence in either California or Arizona."
10056 THE EDWARDS CASE
People v. L. D. Jones, W. K. Jones and William Ensminqer
Criminal No. 10,197, In the Justice's Court of Visalia Township, County of
Tulare, Docket 25, Folio 17.
Gareth W. Houk, Justice of the Peace.
Complaint sworn to by A. H. Kincaid on Nov. 29, 1939, charged that L. D.
Jones, W. K. Jones, and William Ensminger on or about the 8th day of November,
1939, in violation of Sec. 2615 of the Welfare Code "did wilfully bring into the
State of California certain indigent persons, to-wit: Andrew Atkins, Minnie
Atkins, Frank Ensminger, Mary Ensminger, Leon Ensminger, Ivry Ensminger,
Bobby Ensminger, and Dolores Ensminger, all of said indigent persons not being
residents of this State and said defendants well knowing said persons to be in-
digents."
Deckel entries as follows:
"Warrants returned this 30th day of November, 1939. Defendants, L. D.
Jones and W. K. Jones, present in court and duly arranged. Complaint read
to each of them and they are informed of their right and give their true names
as L. D. Jones and W. K. Jones. Defendants, L. D. Jones and W. K. Jones
plead guilty and waive time for pronouncing sentence.
"Whefefore, It is by this Court ordered and adjudged, that for said offense,
you, L. D. Jones and W. K. Jones, the said defendants be imprisoned in the
County Jail of said Tulare County for a period of six (6) months, suspended for
two years on condition defendants immediately return to their homes in Okla-
homa and also return all parties named as indigents in the complaint on file
therein to their homes in Oklahoma at once and have some police officer or official
in their home town advise the Court of their arrival there. Said defendants
and said indigents are to remain out of the State of California for a period of two
years.
Done in Open Court this 30th day of November, 1939.
"Gareth W. Houk
Justice of the Peace"
The following information was received from the Farm Security Administra-
tion U. S. Department of Agriculture concerning defendant, William Ensminger,
as shown by its records as of September, 1941:
"Ensminger, William
On July 5, 1940 the family composition was as follows: William F., head, age
43 (divorced) Mary, daughter, 13 years; Leon, son, age 15; Iver, son, age 10;
Dolores, daughter, 5 years. Aid was granted in Riverside, Tulare and Kern
Counties and extended in the following months:
1939: March, April, August, October, November, December.
1940: January, February, July.
1941: January, February, August.
"The family left Tulsa, Oklahoma, in April 1939 and entered California on
August 10, 1939. The client is a citizen and reported six months work out of
12 months previous to July 1940, indicating his willingness and ability to work.
The family had previously been in California for a few months in 1938.
Our records do not show that Minnie Atkins received assistance from this agency.
However, there is a brief mention of her in the case record for William Ensminger.
According to this information, Mrs. Atkins was Mr. Ensminger's former wife.
In September, 1939, Minnie Atkins, her present husband, Charles Atkins, and
Mrs. Atkins' five children by her first marriage left Oklahoma to migrate to
California. They got as far as Texas, where they were involved in an auto
accident in which Mrs. Atkins was critically injured and confined to a hospital
for two months. Charles Atkins was apprehended for some charge and returned
to Oklahoma, where he was sent to the McAlester Penitentiary. When Mr.
Ensminger heard of the plight of his former wife and their children, he made
plans to assist them to reach California. He contacted Mrs. Atkins' brothers,
Lawrence D. and William K. Jones, legal residents of California, who were taking
a trip to Oklahoma. They took Mr. Ensminger as far as Texas and planned to
pick up Mrs. Atkins and the two younger children on the return trip. Mr.
Ensminger and the three older children hitch-hiked back to California. After
the Atkins family reached California, Mr. Ensminger deserted Mrs. Atkins and
the children. Mrs. Atkins was still very ill as a result of the accident and applied
to the County Welfare Department for assistance. She also wanted transporta-
tion back to her legal residence in Oklahoma as soon as she was able to travel."
NATIONAL DEFENSE MIGRATION 10057
From the records of the Farm Security Administration the following informa-
tion was obtained on two cases receiving assistance from that agency:
■" Jones, William K. Jr.
Family composition: William K. Jr. 28 years; Wife, Myrtis, 21 years; Josalee,
daughter, 2 years. They have been known to this agency in Imperial, Tulare,
and Santa Clara Counties. Aid was extended in the following months:
1938 — March, May, August, September, October, November.
1939 — January, February, March, June, July, August, November.
1940 — January, March, April, May, June, July.
1941 — January, February, March.
The family stated that they had formerly lived in Hollis, Oklahoma and left
there in 1936. In July 1939, Mr. Jones stated that he had worked six months
out of the previous year, indicating that he was employable.
"Jones, Lawrence Dee
Family composition: Lawrence, 30 years; Wife, Eddie, 18 years. They have
been known to this agency in Imperial, Tulare and Santa Clara Counties. Aid
was extended in the following months:
1938 — March, May, June, July, August, September, October, November,
December.
1939 — January, March, May, June, July, August, October.
1940 — January, February, April, J.uly.
1941 — January, March.
The family stated that they had formerly lived in Hollis, Oklahoma and left
there in 1937. They lived in'California for eight months in 1938 and re-entered
the state in January, 1939. In June 1939 the client reported six months agricul-
tural work for the previous year, indicating that he was employable."
People v. Lester Anderson and Johnnie Anderson
Criminal No. 2802, in the Justice's Court of Orosi Township, County of Tulare.
Docket 14; Folio 9. E. C. Archer, Justice of the Peace.
Complaint sworn to by A. H. Kincaid, November 15, 1939, charged that
Lester Anderson and Johnnie Anderson on or about October 20, 1939, "did wil-
fully bring into the State of California certain indigent persons, to wit, Perly
Anderson, Marie Anderson, Le Roy Anderson, Iva May Anderson, Howard
Anderson and Albert Anderson, all of said indigents not being residents of the
State and said defendants well knowing said persons to be indigents."
Docket entries as follows:
"Nov. 15, 1939. Said defendants, each for himself, pleaded guilty as charged
and received time for judgment. . . .
"Ordered and adjudged, that for said offense, you, the said defendant Lester
Anderson and Johnnie Anderson each be imprisoned in the Industrial Road
Camp of said Tulare County for a term of six (6) months.
"It is Ordered, however, that sentence be suspended and defendants admitted
to probation for two years only on the following terms and conditions.
"(First) That on or before the first day of December, 1939, said defendants
transport or cause to be transported back to the State from which they came,
the State of Oklahoma, the indigent persons named in the complaint filed herein,
to wit, Perly Anderson, Marie Anderson, Le Roy Anderson, Iva May Anderson,
Howard Anderson and Albert Anderson.
"(Second) That defendants herein during said term of 2 years comply with all
the provisions of the Welfare Code of California and also with all other laws of
this state.
"Done in Open Court this 15th day of November, 1939.
"E. C. Archer, J. P."
The alleged indigents were returned to Oklahoma according to advice from the
office of the District Attorney.
No further definite information was obtained concerning either the alleged
indigents or the defendants.
60396— 42— pt. 26-
10058 THE EDWARDS CASE
People v. Lee Rankin and Myrtle Morris
Criminal No. 2803, In the Justice's Court of Orosi Township, County of Tulare;
Docket 14, Folio 8. E. C. Archer, Justice of the Peace.
Complaint sworn to by A. H. Kincaid, November 16, 1939, charged that Lee-
Rankin and Myrtle Morris on or about the 1st day of August, 1939, in violation
of Sec. 2615 of the Welfare Code "did wilfully bring into the State of California
certain indigent persons, to-wit: Dorothy Morris, Billie Morris, and Howard
Morris, all of said indigents not being residents of the State and said defendants
well knowing said persons to be indigents."
Docket entries as follows:
"Nov. 17, 1939. Each of said defendants pleaded not guilty and waived their
statutory rights as to trial within 30 days, and released on their own recognizance,
pending further action herein.
"On motion of complaint herein date of trial continued indefinitely with under-
standing case may be set for trial on motion of Complainant or District Attorney."
A. H. Kincaid, who signed the complaint, has advised that the alleged indigents
were all minor children of defendant Myrtle Morris and that there was no family
relationship between defendant Lee Rankin and defendant Myrtle Morris or be-
tween defendant Lee Rankin and the alleged indigents.
The defendant Myrtle Morris, on behalf of her children, has been receiving
assistance from the Tulare County Welfare Department since January, 1941 pur-
suant to the provisions of the Welfare and Institutions Code for Aid to Needy
Children.
The following information has been received from the Farm Security Adminis-
tration concerning Lee Rankin as shown by its record.
"Rankin, Lee
Family composition: Lee, 34 years, wife, Pearl, 30 years; Randall, son, 10 years;
James, son, 7 years; Tohn William, son, 3 years; Lee, son, 15 months. They have
been known to this agency in Kern and Tulare Counties and aid has been extended
in the following months:
1938 — September and December.
1939 — Augast, October, November and December.
1940 — January, February, March, May.
1941 — January.
The family stated that they had formerly lived in Rogers County, Oklahoma,
leaving there in July 1939 and entering California the following month. Pre-
viously they had been in California for three months in 1938."
Other information pertinent to the case is as follows:
According to the Farm Security Administration, U. S. Department of Agricul-
ture, a family composed as follows: Myrtle Morris, 33 years; Dorothy, a daughter,
14 years; Billie, a daughter, 9 years; and Howard, a son, 7 years; arrived in Cali-
fornia on August 1, 1939 and received aid continuously from that Administration
from August, 1939, through August, 1940. The family lived in Texas up to
March, 1939, and in Oklahoma between March and August.
People v. Buddy Duncan
Criminal No. 11,983, In the Justice's Court of Tulare Township, County of
Tulare; Docket 36, Folio 234. Ward G. Rush, Esq., Justice of the Peace.
"Complaint sworn to by A. H. Kincaid on Dec. 19, 1939, charged that Buddy
Duncan, on or about April 29, 1939, in violation of Sec. 2615 of the Welfare Code
"did wilfully bring into the State of California certain indigent persons, to-wit:
Lydia Duncan, Inez Duncan, Billie Duncan, Wanda Duncan and Joe Wayne
Duncan all of said indigent persons not being residents of the State and said defend-
ant well knowing said persons to be indigent."
Docket entries as follows:
"1939
Dec. 19 Complaint filed.
" 19 Warrant issued; Bail $1000.
" 20 Deft, in court — duly arrainged — informed of all his legal rights —
plead 'guilty' remanded to the custody of the Sheriff.
" 23 Deft, released on his own recognizance to appear in Court Wednes-
day, December 27th, 1939.
27 Deft, in Court to receive sentence, whereupon the Court pronounced
judgment as follows:
NATIONAL DEFENSE MIGRATION 10059
It is hereby ordered and adjudged that you the said defendant serve six months
in the County jail of Tulare County, said sentence being suspended for a period
of one year, upon condition that you return to the place from whence they came,
Lydia Duncan, Inez Duncan, Billie Duncan, Wanda Duncan and Joe Wayne
Duncan or to the State of Arizona."
No information is available from Tulare County authorities concerning the
defendant or the alleged indigents.
However, the Farm Security Administration has furnished information on a
case receiving assistance from that agency in which the names of the alleged
indigents appear, and which is as follows:
"Duncan, Lanny
Family composition: Lanny, 46 years; Wife, Lyda, 40 years; Riley, son, 21
years; Billy, 19 years; Doris, daughter, 13 years; Jo Wayne, son, 4 years. They
have been known to this agency in Imperial, Santa Clara, San Joaquin, and Tulare
Counties and aid has been extended in the following months:
1938 — February, May, June.
1939 — June, August, September, October, November, December.
1940 — January through September and November and December.
The family stated that they had formerly lived in Pontotoc, Oklahoma, leaving
there in February 1938. In October 1939 the two oldest boys reported six months
work and the father, Lanny, reported two months work in the previous year."
People v. Ray Kelly
Criminal No. 11,984, In the Justice's Court of Tulare Township, Couty of
Tulare; Docket 36, Folio 235. Ward G. Rush, Esq., Justice of the Peace.
Complaint sworn to by A. H. Kincaid on Dec. 19, 1939 charged that Roy
Kelly, on or about Dec. 28, 1939, in violation of Sec. 2615 of the Welfare Code
"did wilfully bring into the State of California certain indigent persons, to-wit:
Lannie Duncan, all of said indigent persons not being residents of the State of
California and said defendant well knowing said persons to be indigent."
Docket entries as follows:
1939
"Dec. 19 Complaint filed.
" 19 Warrant issued; Bail $1,000.
" 27 Warrant returned and filed."
(Warrant was never served)
No information is available from Tulare County authorities concerning the
alleged indigent or the defendant.
The Farm Security Administration has submitted a report on a case receiving
assistance from that agency in which the name of the alleged indigent Lannie
Duncan appears. This report is as follows:
"Duncan, Lanny
Family composition: Lanny, 46 years; wife, Lyda, 40 years; Riley, son, 21
years; Billy, 19 years; Doris, daughter, 13 years; Jo Wayne, son, 4 years. They
have been known to this agency in Imperial, Santa Clara, San Joaquin, and Tulare
Counties and aid has been extended in the following months:
1938 — February, May, June.
1939 — June, August, September, October, November, December.
1940 — January through September and November and December.
The family stated that they had formerly lived in Pontotoc, Oklahoma, leaving
there in February, 1938. In October 1939 the two oldest boys reported six months
work and the father, Lanny, reported two months work in the previous year."
10060 THE EDWARDS CASE
People v. John Vaughn and Rose Henson
Criminal No. 1152, In the Justice's Court of Tipton Township, County of
Tulare; Docket 4, Folio 300.
F. J. Klindera, Justice of the Peace.
Complaint sworn to by A. H. Kincaid on November 10th, 1939, charged that
John Vaughn and Rose Henson on or about September 27, 1939, "did wilfully
bring into the State of California certain indigent persons, to-wit: Robert Lee
Henson, Pearline Henson, Percy Henson, Fred Henson, Mrs. John Vaughn, and
said defendant John Vaughn's two children, all of said indigent persons not being
residents of this State and said defendant knowing said persons to be indigents."
Docket entries as follows:
"Nov. 10, 1939. Complaint filed warrant issued. Defendants J. Vaughn and
Rose Henson, brought into court by A. H. Kincaid, informed of their rights waived
time of pronouncing judgment and plead guilty; judgment of this Court that
defendant Vaughn serve 6 months in Tulare Co. Industrial Camp reimburse the
County for all relief received. Defendant Rose Henson to serve 6 months in
Co. Jail Camp and jail sentence suspended on condition the defendants leave
county and State on or before Nov. 15 and they are not to return to Tulare Co.
or State of Calif, for period of two years and advise this Court on their arrival in
State of Oklahoma."
We have been advised by A. H. Kincaid that the defendant Rose Henson was
the mother of the alleged indigents Robert Lee Henson, Pearline Henson, Percy
Henson, and Fred Henson, and that defendant John Vaughn was the husband of
Mrs. John Vaughn, one of the alleged indigents, and that the two children of John
Vaughn, alleged to be indigents, were minors. There was no family relationship
between John Vaughn and Rose Henson.
At the time of the arrest of John Vaughn he had recently completed his fourth
trip between California and Oklahoma in a period of from three to four weeks and
had brought people into ihe State wiih him on each trip who were destitute and
without means of subsistence.
The following information was received from the Farm Security Administra-
tion as shown by its records as of September, 1941 :
"Henson, Rosie M.
On September 16, 1940 the family composition was as follows:
Rosie M. head, 41 years; Percy, son, 19 years; Perline, daughter, 17 years;
Robert Lee, son, 8 years. According to a recent report, the son Percy has left
the home. The family has been known to this agency only in Tulare County, and
aid was extended in the following months:
1940: September, December;
1941: January, February, March, April, May, August.
According to the client's statement, they are citizens and left Muldrow, Okla-
homa, on May 16, 1940, entering California on May 19, 1940. They have resided
here since that time and there is nothing in our records that would indicate that
they are not law-abiding citizens. On April 15, 1941 Rosie Henson reported
over 90 days farm work in the past year, indicating that she is wiling to work and
employable. The family had previously lived in California for a few weeks in
1939. They received aid in October, 1939 for one month in Tulare County, the
son, Fred Henson, age 22, acting as case head. At that time he reported three
months agricultural work in the previous year."
People v. Richard Ochoa
Criminal No. 11,905. In the Justice's Court of Tulare Township, County of
Tulare; Docket 36, Folio 156.
Ward G. Rush, Esq., Justice of the Peace.
Complaint sworn to by A. H. Kincaid, November 20, 1939, charged that on or
about May 8, 1939, in violation of Sec. 2615 of the Welfare Code, Richard Ochoa
"did wilfully bring into the State of California certain indigent persons, to-wit:
Ponciano Borazo, Jim Borazo, Julia Ramos, Alice Ramos, Betty Ramos and
Rudolph Ramos, all of said indigents not being residents of the State of California
and said defendant well knowing said persons to be indigents."
NATIONAL DEFENSE MIGRATION 10061
Docket entries as follows:
"Date
1939
Nov. 20 Complaint filed
" 20 Warrant issued
Dec. 27 The above named deft, appearing in Court on this day, and being
informed of all his legal rights waived all legal rights and plead
guilty. Waived time for pronouncing Judgt., whereupon, the
Court pronounces Judgment as follows:
It is the Judgment of the sentence of the Court that you, the said Deft.,
serve six months in the Co. Jail of Tulare County. Committment to be
withheld for a period of one year upon the following terms and conditions:
The first condition is, that you gather up all these people whom you brought to
this State from the State of Arizona, and take them back to the place from
whence they came, and this must be done within the next ten days.
Warrant filed.
Done in Open Court this 27th day of Dec. 1939.
(Signed) Ward G. Rush,
Justice of the Peace, said Township."
March 13, 1940
Defendant being present in Court, represented by his Attorney, R. W.
Henderson, and upon being questioned by the Court, said defendant
admitted in Open Court that he had not complied with the Order of
Court heretofore made, on December 27th, 1939, in that said defendant
had failed, neglected, and refused to return certain indigents to the
place from whence they come, and which said defendant had brought
to California from the State of Arizona; and good cause appearing
therefor, the Order of Court heretofore made suspending the issuance
of Commitment is hereby revoked and set aside, and it further appear-
ing to the Court that Committment should issue in the above entitled
cause,
Now, therefore, it is hereby ordered and adjudged that Commitment
issue in accordance with the judgment heretofore entered on December 27th, 1939.
Done in Open Court this 13th day of March, 1940.
(Signed) Ward G. Rush,
Justice of the Peace, said Township.
March 13
Committment issued."
Defendant was committed on March 13, 1940. A Petition for Writ of Habeas
Corpus was filed in the Superior Court of the State of California and a Writ was
issued on March 26, 1940. The Petition was submitted on briefs and later
denied on May 3, 1940.
Immediately thereafter a Petition for Writ of Habeas Corpus was filed in the
District Court of Appeal (Fourth Appellate District), State of California. The
Writ was issued but defendant was released on parole before the Sheriff of Tulare
County could be served, and the Petition was not acted upon further.
A. H. Kincaid, the signer of the complaint, has advised that the alleged indi-
gents Ponciano Borazo and Jim Borazo were stepbrothers of the wife of the de-
fendant Richard Ochoa, and that the remaining alleged indigents Julia Ramos,
Betty Ramos and Rudolph Ramos were the brother and sisters of defendant's
wife. All of the alleged indigents were minor children.
The following information was received from the Farm Security Adminis-
tration concerning defendant:
"Ochoa, Richard (Ricardo)
Family composition: Ricardo, 21 years; Wife, Bessie, 20 years; Lola, daughter,
2 years. They have been known to this agency only in Tulare County and aid
was extended in the following months:
1939 — June," July, December
1940 — January, February, March, August.
The family had previously lived in Gilbert, Arizona and left in May 1939,
entering California the same month. On June 6, 1939 Mr. Ochoa reported
three months agricultural work in the previous year and was seeking agricultural
work at that time, indicating that he was employable. In December 1939
10062
THE EDWARDS CASE
Mr. Ochoa was sentenced to six months in the Tulare County Jail for transport-
ing the indigent family of Frank Ramos into California. Sentence was sus-
pended on condition that he return the Ramos family to Arizona. Later, when
it was found that the Ramos family was still living in California, Mr. Ochoa was
required to serve his sentence."
Exhibit 7. — Summary of Public Assistance
Persons Receiving Aid and Amount of Aid Extended Through State and County
Public Assistance Agencies in California from July 1, 1932 to June 30, 1940
Number of persons assisted and amounts expended by the State and counties in
Payment of Old Age Security {aid to the needy aged) from July 1, 1933 to June 30,
1940, pursuant to sections 2000 to 2360 Welfare and Institutions Code
Number of
Persons
Total Amount
of Aid
Average
Per Person
During
Last Month
of Period
July 1932 to June 1933
July 1933 to June 1934
July 1934 to June 1935
July 1935 to June 1936
July 1936 to June 1937
June 1937 to July 1938
July 1938 to June 1939
July 1939 to June 1940
1 30, 555
1 37, 967
'46,419
1 2 31,447
3 79,113
3 118,034
3 131,968
3 141, 792
$1,811,819.23
2, 068, 999. 27
2, 480, 487. 06
» 1,651, 628. 76
23, 730, 593. 00
38, 758, 845. 00
49,011,577.00
57, 685, 814. 00
$20. 00
20.14
31.35
32.33
32.45
37.95
1 Total number during period.
i Incomplete.
» Number of persons assisted during last month of period.
Source: Biennial Reports, Department of Social Welfare, State of California; July 1, 1936-June 30, 1938;
June 30, 1940.
Since July, 1936, pursuant to the Social Security Act the Federal Government
reimburses the State to the extent of one-half of the aid granted, not to exceed
$15.00 per individual; the State and the county of residence each contribute one-
half of the balance of the grant to each person.
Number of children assisted and amounts expended in aid to orphans and other needy
children in counties and institutions from July 1, 1932 to June 30, 1940, pursuant
to sections 1500 to 1630 Welfare and Institutions Code
Number of
Persons
Total Amount
of Aid
July 1932 to June 1933
July 1933 to June 1934
July 1934 to June 1935
July 1935 to June 1936
July 1936 to July 1937.
July 1937 to June 1938
July 1938 to June 1939
July 1939 to June 1940
i 38, 565
i 45, 674
' 50, 220
' 2 48, 715
3 23, 071
3 30, 896
38, 679
42, 359
$2,043,261.52
2, 296, 053. 61
2,541,488.82
2 2, 510, 412. 16
4,017,977.00
5, 533, 344. 00
7, 344, 452. 00
8, 760, 467. 00
1 Total number during period.
2 Incomplete.
3 Number of persons assisted during last month of period.
Source- Biennial Reports, Department of Social Welfare, State of California; July I, 1936-June 30, 1938;
July 1, 1938-June 30, 1940.
Since July 1, 1936 pursuant to the Social Security Act, the Federal Govern-
ment has reimbursed the State and counties for part of the aid granted as shown
above. Prior to January 1, 1940 this reimbursement was to the extent of one-
third of the amount of assistance up to $18 for one child and to one-third up to
$12 for each additional child. Since that date Federal contribution is one-half
of the grant as qualified above.
NATIONAL DEFENSE MIGRATION
10063
Number of persons assisted and amounts expended by the State and counties in pay-
ment of aid to the needy blind from July 1, 1932 to June 30, 1940, pursuant to
Sections 3000 to 3091, Welfare and Institutions Code
July
July
Julv
July
July
July
July
July
1932 to
1933 to
1934 to
1935 to
1936 to
1937 to
1938 to
1939 to
June 1933.
June 1934.
June 1935.
June 1936.
July 1937.
June 1938.
June 1939.
June 1946.
Number of
persons
i 4, 737
i 6, 070
' 7, 412
2 5, 849
3 4,761
3 5, 682
3 6, 479
> 7,161
Total amount
of aid
$455, 367. 94
545,546.17
661,526.00
8 537,201.66
1,908,344.00
2. 900, 792. 00
3,531,142.00
3,968,034.00
Average
per person
during last
month of
period
$33. 08
33.78
35.21
35.82
47.86
48.03
48.02
Total number during period.
2 Incomplete.
3 Number of persons assisted during last month of period.
Source: Biennial Reports, Department of Social Welfare, State of California; July 1, 1936-June 30, 1938;
July 1, 1938-June 30, 1940.
Since July 1, 1936 the Federal Government has been participating and assisting
by grants to the State for blind aid, pursuant to the Social Security Act. Between
July 1, 1936 and June 30, 1938 the Federal Government contributed $1,687,747.14
for assistance and $84,389 for administration expenses.
Prior to January 1, 1940 the Federal Government contributed one-half of the
grants up to $30 per month; since that date it contributes one-half up to $40 per
month.
Number of persons assisted and amounts expended by the counties in payment of
county indigent aid pursuant to Sections 2500 to 2615, Welfare and Institution»
Code, from July 1, 1937 to June 30, 1941 1
Number of
persons 2
Tota' amount
of aid
July 1937 to June 1938.
July 1938 to June 1939.
July 1939 to June 1940.
June 1940 to July 1941.
79, 875
74, 027
71,176
64, 508
$9,931,526.98
9, 858, 224. 93
9,561,033.78
9,381,449.81
1 No figures are available for years prior to July 1, 1937.
2 Number of persons being assisted during last month of period.
Source:
fornia.
Preliminary Public Assistance Release, June, 1941, Department of Social Welfare, State of Cali-
Number of persons assisted and amount of funds expended for unemployment relief in
California from January 1, 1933 to December 31, 1935, by the Federal, State, and
local governments
Number of persons '
Amount
expended
1933.
1934.
1935.
747 812 (August).-.
839,491 (December).
864, 801 (January) . .
$39, 138, 760
66, 829, 712
129. 139, 977
i Represents number of persons receiving aid in the month indicated, which is the largest in any month
during the year.
(For subsequent periods see succeeding table.)
Sources of above funds:
Total
State
Federal
Local
1933
$39, 138, 769
66, 829, 712
129,139,977
$1, 738, 288
45, 054
36, 406, 299
$17, 922, 002
48, 433, 881
91,697,713
$19, 478, 480
1934
18, 350, 776
1935
1, 035, 965
235, 108, 459
38, 189, 642
112,726,418
38, 865, 221
Source: Review of activities of State Relief Administration, 1933-1935.
10064 THE EDWARDS CASE
Number of persons assisted and amounts expended by the State relief administration
for the relief of hardship due to unemployment from July 1936 to May 1941
Number of
Persons
Total Amount
of Aid
July 1936 to June 1937 '.
July 1937 to June 1938 ..
July 1938 to June 1939 _.
July 1939 to June 1940 . .
July 1940 to May 1941..
(2)
231, 177
291,631
246, 135
143, 025
$22, 825, 475. 78.
25, 696, 435. 37
32,152,411.02
39, 549, 376. 06
19, 582, 774. 83
i Data not available for period from January 1, to June 30.
* Data not available.
(For previous periods see preceding table.)
Source: Preliminary Public Assistance Release, June 1941, Department of Social Welfare, State of Cali-
fornia; monthly Statistical Summary, December 1940, California State Relief Administration.
Exhibit 8. — Summary of Statutory Operations in California Under Welfare and
Institutions Code and State Relief Administration Statutes With Particular Refer-
ence to Employ ability and Residence Policies
I. Operations Under Welfare and Institutions Code.
Prior to April, 1933, the administration of relief in California was accomplished
almost entirely through the agency of the various counties of the State under laws
which were in 1937 codified in the Welfare and Institutions Code.
Briefly, under this plan the State, itself, directly maintained certain State insti-
tutions, principally for the insane, but for most other purposes of relief acted in-
directly through apportionment of State funds to the various counties to assist
them with respect to aid within the counties for orphans and needy childrenr
aged persons and needy blind, all substantially as set forth in the present Welfare
and Institutions Code, direct relief to other indigents being entirely the burden
of the counties.
Prior to April, 1933, there was no agency in^California for the direct adminis-
tration of relief by the State.
Residence Eligibility Rules Applicable to the Counties
Prior to 1927, the residence requirement for eligibility to aid from the various
counties under the existing plan was three months in the county. (Stats. 1901,
p. 636)
In 1927, this Act was amended (Stats. 1927, p. 430) to require as a condition of
relief from the counties, a residence of one year in the State. The provision as to
three months residence in the county remained unchanged. In 1931 this resi-
dence requirement was increased to three years in the State and one year in the
county (Stats. 1931, p. 145). In 1933 the Act of 1901 and its above-mentioned
amendments were repealed and a substitute act passed (Stats. 1933, p. 2005) con-
tinuing the residence requirement of three years in the State and one year in the
county as a condition to relief and aid from the various counties. This residence
qualification has remained to the present time and is now found in sections 2555
and 2556 of the Welfare and Institutions Code.
Employability Rule Applicable to Counties
Prior to 1933, under the statutory plan for relief through the counties, relief
was available to indigent persons in the counties, whether employable or unem-
ployable (Stats. 1901, p. 636, sec. 1) and this rule was expressly declared in 1933
(Stats. 1933, p. 2005, sec. 1) and has been carried into the present Welfare and
Institutions Code, sections 2500 and 2505.
Non-resident Rule Applicable to Counties
In 1933, under this statutory plan for relief through the counties, emergency
relief was available to dependent non-residents, i. e., persons not having the
required State and county residence (Stats. 1933, p. 2005, sec. 10) and this rule
has been carried into the present Welfare and Institutions Code, section 2501.
In 1933, under this administrative plan for relief through the counties, provision
was made for removal of non-resident indigents to other counties or states, when
such indigents will thereby cease to become public charges, or when friends or
NATIONAL DEFENSE MIGRATION 10065
relatives agree to assume the cost and expense of the care and maintenance of
such indigents, or when such indigents are legally public charges in the places to
which they are so transported (Pol. Code sec. 4041.16, Stats, 1929, p. 1458) and
when information at hand reasonably tends to show that such person has a legal
residence in such state or county (Stats. 1933, p. 2005, sec. 10) and these rules
have been carried into the present Welfare and Institutions Code, sections 206
and 2502.
Rule Applicable to Counties With Respect to Responsibility of Relatives
In 1933, under this statutory plan for relief through the counties, provision
was made to the effect that if an indigent has living within the State, a spouse,
parent or adult child, able to support the indigent, such indigent is not eligible
for aid except emergency aid pending determination of the responsibility of the
kindred (Stats. 1933, p. 2005, sec. 2) and this rule has been carried into the present
Welfare and Institutions Code, section 2576.
In this respect, the law of California makes it the legal duty of the father, the
mother and the children of any poor person who is unable to maintain himself
by work, to maintain such person to the extent of their ability. (Civil Code
section 206) Husband and wife have mutual obligations of support (Civil Code
sec. 155) and, specifically, a wife is required to support a husband who is unable
from infirmity to support himself (Civil Code section 176). See also re criminal
offenses re non-support of parent, child or wife, Penal Code Section 270, 270a
and 270c.
II. Operations Under State Relief Administration.
In the year 1933 economic conditions became such that the counties of Cali-
fornia, engaged in the administration of relief under the existing statutory plan,
were confronted with demands beyond their abilities and in that year the State
of California first entered the field of direct relief through a State agency.
This agency was known, first as the State Emergency Relief Administration,
consisting of State Emergency Relief Administrator and a State Emergency
Relief. Commission, and later in 1935 when its tasks proved to be more than
emergency, as the State Relief Administration, consisting of a State Relief Admin-
istrator and a State Relief Commission.
This State Relief Administration, known in California as the SRA, has con-
tinued in existence since 1933 and has operated independently of the statutory
plan for relief through counties, as provided in the Welfare and Institutions Code,
and its predecessor statutes, although the county plan has at all times continued
in existence and operation, the SRA independently supplementing the county
plan to meet the new and continuing burden of relief throughout the State.
The inception of SRA was by an act known as "The Unemployment Relief
Bond Act of 1933" (Stats. 1933, p. 677, effective June 27, 1933), which provided
for an initial bond issue of 20 million dollars to be made available, through the
emergency SRA (which was already administering Federal funds granted to the
State for relief of destitution caused by unemployment), in the form of loans in
aid of counties and municipalities in administering relief work, and this bond
issue was validated by Constitutional Amendment (Art. XVI, sec. 9, ratified
June 27, 1933). The Act empowered the emergency SRA to make rules and
regulations as to the manner in which the funds should be expended and as to the
standards of relief.
Approximately a year later the State ceased to distribute State funds through
loans to counties and commenced the practice of administering State funds by
direct grants "for relief of hardship and destitution due to and caused by unem-
ployment" through the State Relief Administration, which was given the powers
of the previous emergency SRA and also power to determine general policies of
relief administration, and a further bond issue of 24 million dollars was authorized
(Constitutional Amendment, Art. XVI, sec. 10, adopted November 6, 1934).
In 1935 the legislature passed a further Act (Stats. 1935, p. 1850, Chap. 675,
effective September 15, 1935) for the relief of hardship and destitution due to
and caused by unemployment, and giving to the SRA further power to establish
rules and regulations relating to eligibility for relief, and appropriating from the
General Fund of the State a further 24 million dollars for the purpose in addition
to a previous similar appropriation of 24 million dollars on June 14, 1935 (Stats.
1935, p. 1176, Chap. 341) and in addition to a lurther previous appropriation from
special funds for the same purpose amounting to $384,857.35 (Stats. 1935, p.
1586, Chap. 515).
10066 THE EDWARDS CASE
Thereafter further appropriations from the general fund of the State were
necessary from time to time to meet every recurring and increasing emergencies:
Stats. 1937, Ch. 157— ($48,000,000); Stats. 1938, Ch. 10— ($4,900,000;; Stats.
1939, Ch. 160— ($3,500,000;; Stats. 1939, Ch. 668— ($35,525,000) ; Stats. 1939,
Ch. 1— ($19,975,000); Stats. 1940, Ch. 5 (1st Extra Session)— ($1,600,000); Stats.
1940, Ch. 12 (1st Extra Session)— ($12,500,000); Stats. 1940, Ch. 45 (1st Extra
Session)— ($24,347,091); Stats. 1940, Ch. 1 (3rd Extra Session)— ($1,450,000);
Stats. 1941, Ch. 54— ($2,042,000) ; Stats. 1941, Ch. 234— ($650,000); Stats .1941,
Ch. 601— ($1,000,000).
The total of bond issues and appropriations for SRA, 1933-1941 have amounted
to $223,884,767.35.
We wish to point out that SRA was not subject to the residence requirements
applicable to administration of relief through the counties under the Welfare and
Institutions Code and its predecessor statutes hereinabove referred to.
Nor, was the SRA subject to any restictions with respect to eligibility for relief
except the general requirement of the SRA statutes that the funds be used for
relief of hardship and destitution due to and caused by unemployment and
except such restrictions respecting residence, eligibility, etc., as the SRA itself
might prescribe.
ELIGIBILITY POLICIES OF SRA RE EMPLOYABILITY
As early as September 16, 1935, the SRA had in force a policy of referring
unemployable persons to the various counties for relief upon the theory that
hardship and destitution was not "caused by unemployment" within the mean-
ing of the SRA statutes if the person was not employable and an opinion to this
effect was rendered by the Attorney General on October 24, 1935 (Opinion No.
10248).
An employable person, by rules and regulations, was one not totally incapaci-
tated for gainful employment, who was willing and able to perform gainful em-
ployment and was available for such; who was not prevented from accepting
employment by family responsibility (care and supervision of children or de-
pendent person) ; whose need was due to and caused by unemployment, and who
was 18 years of age or over.
Eligibility Policies of SRA re Non- Residents (1933-1935) and Related Operations of
Federal Emergency Relief Administration re Transients.
From 1933 to 1940 the SRA statutes contained no provision respecting State
or county residence as a condition to SRA relief but a rule of SRA was in effect
requiring one year residence in the State.
This rule was followed as to relief with State money between 1933 and June 1936,
during which period special grants of Federal funds were received from the
Federal Emergency Relief Administration (Emergency Relief Act of 1933, 48
Stats. 55) by the SRA and earmarked for the relief of needy persons having no
legal settlement in any state, legal residence in a state being defined by FERA
Rules and Regulations No. 3 (July 15, 1933) as residence in a state for one con-
tinuous year or longer. In other words, during this period (actually September
1933- June 1936) the state non-resident needy were assisted by the Federal
Transient Service, maintained through FERA grants for the purpose, and during
this period a total of $8,978,713.18 was made available to the State by FERA.
On September 6th, 1935, the FERA notified the California SRA that no further
such state non-residents were to be accepted for relief through the FERA Federal
Transient Service.
Eligibility Policies of SRA re Non-Residents (1935-1939)
Faced with this emergency, SRA modified its rules and policies as follows:
Bulletin 45, September 12, 1935 — Persons already registered in Federal Tran-
sient Service were to be cared for until further instructions, out of balances of
FERA transient funds still on hand.
Bulletin 52, October 17th, 1935 — State non-residents will be accepted by SRA,
both employable and unemployable, direct relief to be given to non-residents of
counties, women and boys, 16-21 years, and camp relief to unemployable unat-
tached men and the same as far as possible to employable unattached men.
Bulletin 59, November 30, 1935 — Refusal of transient families, both employable
and unemployable, and unattached women, to return to legal residence, after
NATIONAL DEFENSE MIGRATION 10067
verification, is a cause for termination of relief, but relief will continue for such
of these as have no legal residence in other states.
Bulletin 59A, December 14, 1935 — No form of relief will henceforth be available
for unattached able-bodied transient men.
Thereafter, SRA adopted the policy of granting emergency relief from State
funds to non-residents pending verification of their legal residence, and this policy
continued until June 1938.
From June 1938 the SRA modified its policy of relief to non-residents by
granting relief only to such non-residents as indicated in advance a willingness to
return to place of residence when verified and this policy continued to January
1939.
In January, 1939, the foregoing restriction was eliminated and the policy of
June 1936 — June 1938 resumed, but in March, 1939, the restriction of June
1938 — January 1939 was again put in effect and such policy continued until the
present time.
SRA Statutory Eligibility Restrictions of 1940 re Residence.
On April 29, 1940, the legislature by Stats. 1940 (Extra Session), Chap. 12,
when making an appropriation of $12,200,000 to SRA, for the first time placed
statutory restrictions respecting residence on the use of its appropriation and
provided that the money appropriated should not be expended for the relief of
any person after April 1, 1940, who had not resided continuously in the State
for a period of three years, or who had lost State residence by remaining away
from the State for an uninterrupted period of one year; the foregoing limitation
did not apply to a person who on February 1, 1940, was receiving or had re-
ceived relief from the State Relief Administration or was on that date certified
or had been certified to the Work Projects Administration by the State Relief
Administration, and had not left the State with intent to reside elsewhere, and
had not remained away from the State for a period of one year.
On May 29, 1940, the legislature by Stats. 1940 (Extra Session), Chap. 45,
when making a further appropriation of $24,347,091, increased this residence re-
striction on the use of the appropriation and provided that none of the appropri-
ation could be expended for the relief of any person who:
(1) Had not either (a) lived continuously in the State for five years, if he
began to live in the State after June 1, 1940, or (b) lived continuously in
the State for three years if he began to live in the State on or before June
1, 1940.
(2) Had lost State residence by remaining away from the State for an
uninterrupted period of one year.
It was provided, however, that the appropriation could be expended for the
relief of any person who (1) on February 18, 1940, was receiving or had received
aid by State Relief Administration or was certified or had been certified to the
Work Projects Administration by the State Relief Administration.
Related Operations of Federal Farm Security Administration re Transients, 1938
to Date
After February of 1938, non-resident transients who were not eligible for relief
from the SRA because they refused to return to their place of residence after
verification, or refused to indicate a willingness in advance to return to place of
residence after verified, were referred to the Farm Security Administration, U. S.
Department of Agriculture, known as the FSA.
This administration was created on September 1, 1937 by a memorandum of
the United States Secretary of Agriculture, as a successor to the Resettlement
Administration, which had been created originally by Executive Order of the
President of the United States on April 30, 1935 and later transferred to the
United States Department of Agriculture by Executive Order on December 31,
1936.
In the Emergency Relief Appropriation Act of 1937 (50 Stats. 352; 15 U. S. C. A.
721-728) it was provided that the money appropriated would be available for
expenditure by the Resettlement Administration for such loans, relief and rural
rehabilitation for needy persons as the President may determine. In the Work
Relief and Appropriation Act of 1938 (52 Stat. 809) which made appropriations
to various Federal agencies "in order to provide work relief on useful public
projects, and relief" a specific appropriation was made to the Department of
10068 THE EDWARDS CASE
Agriculture, which "sums shall be available for administration, loans, relief and
rural rehabilitation for needy persons". The Emergency Relief Appropriation
Act of 1939 (53 Stat. 927) made an appropriation to the Department of Agri-
culture "in order to continue to provide assistance through rural rehabilitation
relief to needy farmers and relief to other needy persons in the United States."
The Emergency Relief Appropriation Act of 1941 (54 Stat. 611) made an appro-
priation to the Department of Agriculture for the same purposes as provided
for in the Act of 1939.
Beginning in February 1938 the Farm Security Administration commenced its
program of Emergency Relief grants in California to meet the relief problems of
agricultural migrants in California by supplying food and clothing to such migrants
where destitute but ineligible for State relief. Only employable persons of agri-
cultural background, who lacked State residence were assisted. ("The Work of
the Farm Security Administration in Region IX: 1938-39"; idem, 1940-41).
The Farm Security Administration also provided, and now provides medical
service for such person, and has established and maintained migrator}' labor
camps to provide housing for such persons in addition to providing the services
above. Since the inception of these programs in 1938 the following sums have
been expended in California to June 30, 1941, according to a letter from the Farm
Security Administration in Washington, D. C. dated September 15, 1941: grants
to individuals for subsistence — $3,902,160; commodities and food stamps pur-
chafed — $2,134,447; grants to Agricultural Workers Health and Medical Asso-
ciation—$2,389,619; migratory labor camps— $5,061,491; Total— $12,418,617.
As of June 1, 1941 the funds theretofore appropriated for expenditure by the
SRA for relief of hardship and destitution caused by unemployment were ex-
hausted. No appropriation was made to the SRA by the legislature for such
purposes for the period subsequent to June 1, 1941, and consequently no relief is
now being given in California by the State directly. However, as has been indi-
cated earlier, the State supplements county funds for aid to the aged, aid to
needy children and aid to needy blind, by apportioning State funds to the various
counties, but the counties must bear the entire burden of relief to indigents
generally.
Exhibit 9. — Summary of Policies and Regulations of the State Relief Administra-
tion With Respect to "Hardship and Destitution" Within the Meaning of the
Various State Relief Administration Statutes
All State Relief Administration statutes appropriated funds for the "relief of
hardship and destitution due to and caused by unemployment."
The terms "hardship and destitution" were not denned in any of the statutes
relating to the State Relief Administration (herein referred to as the SRA) but
by rules and regulations made pursuant to statutory authorization, policies and
regulations have been established setting forth eligibility requirements for relief
from the SRA.
In Chapter I of the SRA manual, revised to December, 1940, under the heading
"Rules of Eligibility and Standards for Assistance" the SRA compiled together
all existing policy statements and regulations. We set forth herein excerpts from
the manual, quoting only the general policy rules and omitting such further rules
as merely particularize these general policies.
Eligibility
Rule 1-101 "Eligibility — General Policy"
"State unemployment relief funds are provided to relieve hardship and
suffering due to and caused by unemployment. A complete and careful
study of the needs and resources of each applicant for unemployment relief
must be made in order that a decision as to his eligibility may be based upon
sound evidence. Such a study should result not only in the determination
of an applicant's eligibility for relief, but should include a plan for treatment
of his problem, looking toward reemployment.
^ % * % * * ^,?
Rule 1-110 "Eligibility Requirements"
Eligibility for unemployment relief is based upon six principal factors: (1)
alien status, (2) residence, (3) employ ability, (4) lack of resources for support of
any member of the family group (including inability of responsible relatives to
support), (5) installment payments, and (6) automobiles. The applicant's
NATIONAL DEFENSE MIGRATION 10069
situation must place him within rigidly exclusive limits in each of these
categories or relief shall be withheld. Eligibility shall be determined by an
investigation which, in the minimum, shall include a thorough interview with
the applicant and such collateral calls as may be necessary to verify the above
factors. Determination of those factors must supersede and control any investi-
gation into related ?7iatters which might prove helpful in meeting social problems
such as delinquency, marital difficulties and health when they do not bear directly
on the problem of eligibility.
Note: We omit quotation of the rules relative to alien status, and also rules
relating to residence and employability, these last two matters having already
been briefly summarized for the court in Supplement Exhibit 8.
Resources
Rule 1-401 "Resources — General Policy"
"Applicants for unemployment relief will be expected to use to its fullest
extent any available financial resource of any member of the family for sup-
port prior to the receipt of relief from this agency. Applicants with sufficient
cash on hand to enable them to maintain their families until receipt of the
first relief check may be accepted if the amount of cash is deducted from the
first check. Liquid assets include deposits in banks, postal savings, the value
of building and loan certificates, and stocks and bonds. Such liquid assets
must be exhausted before acceptance for relief. * * *"
Rule 1-410.1 "Real Property — General Policy"
"Ownership of a home by an applicant and occupied by the applicant and
his dependents does not necessarily disqualify such applicant for relief.
Where home property can command a substantial rental which amount
would be adequate for property payments, if any, and also would be sufficient
to meet the family's needs according to SRA basic budget, consideration
should be given to such plan in order that the family will be enabled to be
independent of relief. Such cases are to be referred to the State Office before
acceptance."
Rule 1-412.1 "Property Other Than Home of Applicant — General Policy"
"Where the applicant owns property other than that occupied as a home,
such property should be utilized as a resource as far as possible. It is not the
policy of the SRA to pay rent for relief recipients living away from property
which they own and is habitable unless for good social reasons the family is
not able to reside thereon."
Rule 1-420.1 "Automobiles — General Policy"
"An automobile represents an investment which is a potential resource-
In some instances it may be retained provided the possession is in accordance
with the following policy. In other instances adjustments will be required
within a 90-day period. In general, the Blue Book shall be the basis for
determining car values. However, Blue Book value is based on good running
condition and when the car has been damaged or resale value otherwise
lessened, an exception may be made based on actual value with the approval
of the Case Supervisor. Purchase of a car while on relief may be sufficient
basis for withdrawing aid. Ownership of more than one automobile or truck
in the same family is not necessarily a bar to receipt of relief; however, when
more than one car is owned, they should be considered potential resources for
family needs.
"Relief may not be extended to any person who possesses or whose family
possesses more than one automobile or truck unless such person shall deliver
the license plates of all but one of the automobiles to the SRA. A hook-on
trailer is not subject to this restriction."
Rule 1-420.3 "Car Owners Not Eligible at Intake or as Continued Cases"
"A car owner is not eligible who possesses an unencumbered car or truck
which is a current model or one of the previous two years, whether or not
the car is a necessity. The applicant may choose to make a loan or to
turn it in for a cheaper and paid up model (with a Blue Book value of
$250.00 or less), using the cash balance as a resource."
Rule 1-431 " Insurance— General Policy"
"It is recognized that heads of families and their dependents may carry
whole life insurance in a reasonable amount where protection therefrom may
10070 THE EDWARDS CASE
be obtained for a minimum premium. The amounts allowable as hereinafter
provided for relief recipients and dependents should be adhered to in all
cases, except where otherwise provided. An explanation of the various
classes and types of life insurance may be found in the appendix. These
regulations apply where insurance is owned and the policy is retained by a
member of the relief group and contemplates protection to them. Transfer
of a policy to a person outside of the relief group to avoid adjustment will not
be recognized. When the insured person is not reinsurable because of age
and/or health, cases should be referred to the State Office before adjustment."
Rule 1-432 "Allowable Insurance"
Rule 1-432.1 "Head of Family or Spouse"
"The head of the family and spouse may carry individually or together a
total of $1,000.00 face value whole life insurance policy, distributed in any
manner. (Endowment at age of 75 or 80 is considered whole life) . In order
to avoid jeopardizing this policy plan, premiums covering a period of two
years are allowed to remain in the cash reserve of policy. All available
cash loan value exceeding this allowable amount must be utilized through a
policy loan. Persons having excess insurance may be accepted at intake
for a period of not more than 30 days pending adjustment."
Rule 1-432.2 "Single Persons"
"Single, unattached individuals receiving relief as single persons may
carry whole life policies having a face value not exceeding $1,000.00. Avail-
able cash loan value exceeding one year's premium requirements must be
utilized through a policy loan."
Rule 1-440 "Earned Income"
Rule 1-441.4 "Deduction of Earnings at Point of Intake"
"At time of application for relief, all earnings from private employment
of adult members of the family are deductible in full. Where income is from
full-time employment of either spouse or of an adult child, who is employable
head, as defined in Section 1-441.2, the family is not eligible for relief, irre-
spective of the amount of earnings. * * *"
Rule 1-441.2 "Full-time Employment — Definition"
"Full-time employment may be defined as work for salary, wages or other
compensation which employs an individual regularly thirty hours or more
per week."
Rule 1-441.5 "Deductible Earnings — Continued Cases"
"If the total earnings of adult members equal or exceed the SRA budget,
the family is ineligible for aid. When either spouse or adult child who is
the employable head secures full-time employment, the case is to be closed
irrespective of the amount of earnings. * * *"
Rule 1-469 "Contributions From Relatives or Friends"
"Legally responsible relatives are spouse for spouse, parent for minor
child, adult child for parent, or any group of them living within the State,
who have sufficient financial ability to support the applicant for relief.
Relatives are expected to assume such responsibility as their financial condi-
tion permits. The full amount of income received from relatives and friends
shall be deducted from the budget. When an adult child who is the current
employable head of a relief group, secures employment away from home,
careful consideration must be given to his ability to assist and to the possi-
bility that he had moved away in order to avoid deduction of his earnings.
If the employment is at such a distance that the adult child could not accept
the work and continue to live at home and conditions are such that the family
cannot move with him, no action should be taken other than to deduct the
amount of contribution he is able to make. If it appears that the youth has
moved solely to avoid deduction of earnings and could remain at home, the
case should be closed or a deduction made for earnings in the same amount
as though he had remained at home. * * * "
NATIONAL DEFENSE MIGRATION 10071
Special Policies
Rule 1-840.1 "Installments — General Policy"
"While a family might legally receive assistance while making installment
payments because the conditions of the purchase fall under one of the pro-
visions permitting payment from relief funds so far as date of purchase or
type of article is concerned, it is important to take cognizance of the amount
and regularity of the payments as an indication of possible undeclared income
or resources. A family cannot reasonably spend a substantial amount of the
SRA budget for installment purchases and have a sufficient amount remaining
for food, rent and utilities. All income, deductible and non-deductible, is
subject to installment payment regulations."
Rule 1-840.4 "Eligible Payments"
"Eligibility is not affected where the purchase is for a necessity, irrespective
of the amount of the installment payment, when:
1. The purchase was made prior to the receipt of any relief under Senate
Bill #81, effective 2/24/40. or under Senate Bill #90, effective 6/1/40.
2. The purchase was made after receiving relief under Senate Bill #81, but
before reapplying under Senate Bill #90."
Rule 1-840.5 "Ineligible Payments"
"Eligibility is affected where payments are made in excess oi $5.00 per month,
except for essential food and clothing, (other necessities not exempted) and further
aid cannot be granted while payments are continued where:
1. Article other than essential food or clothing was purchased while
receiving relief under Senate Bill 81 or Senate Bill 90.
2. Article other than essential food or clothing was purchased subsequent
to receiving relief under Senate Bill 90. This applies even though the pur-
chase was made while the case was closed.
Eligibility is affected even though payments are less than $5.00 per month and
regardless of date debt was incurred it articles purchased are not necessities as
defined in Section 1-830.2."
Note: Senate Bill 81 provided in substance that money received for relief was
to be expended only for necessities. Senate Bill 90 provided that relief money
could not be used in the purchase of personal property other than necessities where
payments were in excess of five dollars per month when the debt was incurred
after February 28, 1940 and recipient was then receiving relief.
Exhibit 10. — Collection of Cases in Other States Based on Statutes Similar to
California's Welfare and Institutions Code Section 2615.
Barkhamsted v. Parsons, 3 Conn. 1 (1819)
A statute provided a penalty for bringing into the State a poor and indigent
person and leaving that person in a town of which he was not an inhabitant. The
defendant was a resident of Massachusetts, accused of bringing an indigent
mother and her three children, not the family of the defendant, into Connecticut.
Although the evidence showed that the actual transportation was done by defend-
ant's son, a minor, at the defendant's direction, the conviction was upheld and the
penalty enforced, the court taking the view that his son acted as his agent.
Thomas v. Ross & Shaiv, 8 Wend. 671; 11 N. Y. C. L. 509 (1832)
Suit was brought for a penalty for bringing a pauper from one town to another
within the same county. Judgment for plaintiff was affirmed, despite the defense
that the statute applied only to bringing a pauper from without the State. In
construing the provision the Court held that within the phrase "any city or town
within this State" the words "within this State" were surplusage and that,
therefore, the statute applied to the case at bar, stating:
"The offense consists in bringing them into any town, without reference to
the place from which they shall have been brought. * * * It is totally
immaterial whether the person be brought from another State or another
town in this State. The offense consists in bringing a burden upon the
town."
Coe v. Smith, 24 Wend. 341; 14 N. Y. C. L. 631 (1840)
10072 THE EDWARDS CASE
This was an action to recover moneys expended by plaintiffs to support a pauper,
whom defendant should have maintained and whom defendant removed from one
county to another with intent to burden the latter. Judgment for plaintiffs was
reversed under a statute providing a penalty for removing an indigent from one
city and county to another with intent to burden the latter.
The court's reasoning was:
"Even where a person brings a pauper from any place out of the State
into a county within it, he is neither subject to the penalty, or to the mainte-
nance of the pauper, as imposed by the 64th section, without the existence
of an intent to charge the county."
and no such intent was proven.
Windfield v. Mapes, 4 Denio 571; 17 N. Y. C. L. 676 (1847)
An action was brought for a penalty for bringing a poor person into New York
City from Pennsylvania with intent to charge that city with support. Conviction
was upheld.
William v. Franklin, 39 111. 21 (1865)
The statute provided a $100 penalty for bringing and leaving a pauper in any
county of the State, knowing him to be a pauper. The defendant was convicted
of bringing a pauper from one county to another within the State and this con-
viction was affirmed. No constitutional question was raised and the court held
that the conclusion of the jury was justified by the facts.
Dover v. Wheeler, 51 Vt. 160 (1878)
This suit was based on a statute providing a penalty for bringing an indigent into
a town of Vermont with intent to charge such town with support. The indigent
was brought into Vermont from Massachusetts by the defendant, who was an em-
ployee of the Board of Charities of Massachusetts and who had brought the indi-
gent into Vermont in the course of executing a statute of Massachusetts authoriz-
ing the indigent's return to Vermont. The court held, however, that the indigent
was a citizen of Massachusetts and that the Vermont statute had been violated
and rendered judgment for plaintiff town against the defendant.
Poor v. Nelson, Mich., 42 N. W. 797 (1889)
The statute provided:
"Any person who shall bring or remove or cause to be brought or removed,
any poor or indigent person, from any place without this state, into any county
within it, with intent to make such county chargeable with the support of
such pauper, shall forfeit and pay $50.00 * * * and shall also be obliged
to convey such pauper out of the state or support him at his own expense."
The defendant had brought into Michigan a pauper from Iowa. It was proven
that the person was an indigent and was brought into the State by defendant with
intent to charge the county, but the court refused to enforce the penalty because it
was not shown that the plaintiffs had incurred any expense for the pauper or any
liability therefor.
State v. Cornish, 66 N. H. 329; 21 Atl. 180 (1890)
The statute provided a fine and imprisonment for bringing and leaving in a
town of New Hampshire a poor and indigent person of another State, knowing that
fact, and with intent to charge the town. No constitutional question was raised
and the conviction was upheld upon the ground that it was no defense that the
defendant had acted in good faith and under a mistake of fact with respect to place
of settlement.
Commissioners of Pitkin v. Laic, 3 Colo. App. 328; 33 Pac. 143 (1893)
The statute provided a penalty for brinigng and leaving paupers in any county of
the State, knowing them to be paupers. The statute was held applicable to bring-
ing a pauper from one county to another within the State. Judgment for de-
fendant was affirmed because:
"The obvious intention of the Legislature was to punish any person who
knowingly and intentionally caused a pauper to be taken from the county
where domiciled and transported to another, with the knowledge and inten-
tion of relieving the county of domicile from the charge of support and
NATIONAL DEFENSE MIGRATION 10073
making the person a charge upon the other county. In order to warrant a
conviction it must transpire beyond controversy that the person was a pauper
within the legal definition of the word; had legal domicile in the county from
which the removal was made, and not in the county to which taken or sent;
and a knowledge of these facts by the person charged, from which the inten-
tion if not expressed could legally be implied."
The court concluded that there was insufficient evidence to prove these elements.
Risner v. The State, 55 Ohio App. 151; 9 N. E. (2nd) 151 (1937)
"The action is a civil suit to recover a judgment in the nature of a penalty
for the alleged violation by the defendants of the provisions of section 2555,
General Code, which provides as follows:
'If a person transports, removes, or brings or causes to be transported,
removed or brought a poor or indigent person into a city, township, or county
in this state, without lawful authority, and there leaves such poor or indigent
person, knowing that such city, township, or county will probably become
chargeable with his support, the person so offending shall forfeit and pay the
sum of fifty dollars for each such offense, for the use of the poor of the city,
township or county in which the indigent person is left, to be recovered by
civil action, in the name of the state, before any court of competent jurisdic-
tion.' "
Defendant brought an individual from Kentucky to Ohio and the case turned
on the question of whether the Kentuckian was "a poor or indigent person".
This court held that the proof was insufficient, defining that term as follows:
"In order to determine whether there is such failure of proof, we will con-
sider the meaning of the phrase 'a poor or indigent person' as used in that
section.
Section 2555, General Code, appears at the end of the chapter on county
commissioners. It is one of a group of miscellaneous sections concerning
indigent persons who are a charge upon the public. The section is what is
technically known as 'a poor law'. It is also a penal law, and is therefore to
be strictly construed.
In Ruling Case Law, 703 and 704, in commenting upon poor laws, it is
stated :
'The word "poor" is used in two senses, the one as opposed to the word
"rich", the other as indicating those who are entirely destitute and helpless,
and therefore dependent on public charity. It is in the latter sense only that
the term is used in the poor laws. The term "pauper" is likewise used in two-
distinct senses, though not so divergent as in the case of the term "poor".
In the one case it is synonymous with the term "poor person" as understood
in the poor law, meaning one destitute and a proper subject for public aid.
In the other and more technical sense it means one who is actually receiving
public aid, one who is eating the public bread. For general purposes the
terms "poor person", "pauper", "indigent" and "destitute" may be regarded
as synonymous.' "
"And in 48 Corpus Juris, 428, it is stated that, generally the terms 'pauper',
'poor', 'poor person', 'indigent person', 'person in distress', and so forth, in
statutes providing for the relief of such persons, are used to describe that class,
of persons who are so destitute and helpless as to be dependent for their sup-
port upon public charity.
"Applying these definitions to the provisions of section 2555, General Code,
it is clear that the words 'poor or indigent' modifying the word 'person' are
either synonymous as indicating those who are entirely destitute and helpless
and therefore dependent on public charity, or that the word 'poor' is used in
the technical sense as indicating one who is actually receiving public aid, and
the word 'indigent' is used in the nontechnical sense as meaning one destitute
and a proper subject for public aid."
The conviction of defendant was reversed on the ground that the burden was on
the plaintiff to prove that the person alleged to be an indigent was (1) actually
receiving public aid, or (2) was entirely destitute and helpless and therefore de-
pendent on public charity, and that they had failed to do so.
60396—42 — pt. 2f
10074 THE EDWARDS CASE
Exhibit 11. — Collection of cases based on statutes authorizing the removal of poor
and indigent persons from one county to another or from one state to another,
including quotation from the dissenting opinion in the Chirillo case from New
York.
Overseers of Gilpin v. Overseers of Park, 11 Atl. 791 (Pa. IS
An order for the removal of a poor person was obtained by a town on the
ground that the individual was likely to become a public charge. The order,
obtained without notice to the individual concerned, was reversed because he was
not actually a pauper at the time, the Court stating that notice is required under
such circumstances although it would be otherwise if the individual was already
in receipt of relief.
Lovell v. Seeback, 45 Minn. 465, 48 N. W. 23 (1891).
The action was brought by the plaintiff for forcible removal of a pauper from
one county to another, the applicable statute providing that, if relief is applied for
by a person without a legal settlement in the county, such person shall be warned
to depart, and if he fails so to do and is likely to become a public charge, then the
county may issue an order directed to the Sheriff to return the person to the
county of his settlement.
The question of the constitutionality of the statute was raised, but the order
directing removal was affirmed not withstanding. The court stated:
"While the statutes in force here since our territorial organization have
been subject to the objections on constitutional grounds which are here urged,
we are not aware that hitherto their validity has been questioned. In view
of the fact that such laws, which must have been very often put into
practical operation, have been in force here, and, as we suppose, unques-
tioned, for a period of more than 40 years, and long before the adoption of
our constitution, it may fairly be said that they have been generally ac-
quiesced in as a valid exercise of legislative power."
Town of Bristol v. Town of Fox, 159 111. 500, 42 N. E. 887 (1896).
Plaintiff town brought an action to recover moneys expended for support of
paupers for which the defendant town was alleged to be liable. The statute
provided that, if a person becomes chargeable as a pauper in a town in which
he was not a resident for twelve months preceding, written notice should be sent
to the place of residence requesting removal and for the reasonable charges accrued
and to accrue for the care of the pauper. Judgment for defendant town was
reversed despite its defense that it had offered to remove the paupers and they
had refused. The court held that the defendant town had the right to forcibly
remove them and was therefore liable because:
"Inability for self-support renders it necessary that the pauper should be
supported as a public charge, and the law has designated what political
subdivision of the people shall be charged with the support, and has there-
fore given the body the means of controlling the acts of the pauper to the
' extent necessary to render it convenient for his support. So soon as he
becomes a charge, and while he remains so, he ceases to be a free agent, but
is in the hands, and to a certain extent under the control, of the public
officers intrusted with the execution of the poor laws."
Harrison v. Gilbert, 71 Conn. 724, 43 Atl. 190 (1899).
The court upheld the authority of a town to require the removal of a pauper to
his town of settlement, and on the constitutional question the court said:
"No constitutional right was violated by the proceedings in controversy.
Town paupers belong to a dependent class. The law assigns them a certain
status. This entitles them to public aid, and subjects them, in a corre-
sponding degree, to public control. There is nothing in the statutes under
which the defendants justify which pushes this right of control further than
is reasonably adapted to keeping the public burdens within due bounds.
McCarthy v. Hinman, 35 Conn. 538. Economy in the administration of
relief to the town poor may require their concentration under one roof."
Hilborn v. Briggs, N. Dak. 1929, 226 N. W. 737.
The defendants attempted to remove plaintiff indigents from North Dakota to
Minnesota under a statute permitting overseers of the poor to remove from a
township anyone likely to become a public charge whose legal residence was
NATIONAL DEFENSE MIGRATION 10075
•elsewhere. Judgment was for the plaintiffs on the ground that the statute only
permitted a removal from- one poor relief district to another within the State
and not to a district beyond the State boundaries.
In re Barnes, 119 Pa. (Sup. Ct.) 553, 180 Atl. 718 (1935).
Action involved the removal of a pauper from one poor district to another.
Judgment for defendant district was reversed under a statute providing that to
acquire settlement in a poor district the person must be a resident therein for one
year and not become a public charge during that time. The court said:
"It has been repeatedly held, under our poor laws, that a destitute person
receiving aid as such cannot acquire a new settlement while remaining a
'public charge'."
Anderson v. Miller, 120 Pa. (Sup. Ct.) 463, 182 Atl. 742 (1936).
The statute gave a county in which a pauper was likely to become a public
charge the right to notify the county of settlement and the latter county was
required to show cause why an order should not issue directing the return of the
pauper to it. Judgment against defendant county (the county of settlement)
was affirmed on the ground that no new domicile had been acquired and the
likelihood of the pauper becoming a public charge had been substantiated.
In re Chirillo, 283 N. Y. 417, 28 N. E. (2d) 895 (1940).*
"We pass then to a consideration of the validity of section 71 of the Public
Welfare Law as it affects these appellants. Upon this appeal we are con-
cerned only with the removal of a class of persons situated as are these
appellants, namely, those coming into the State of New York who have had
a legal settlement for the purposes of relief in another State of the United
States, or, as section 71 puts it, "belongs to * * * any other state
* * *." Parenthetically the term "belongs to" has been construed in
other States to mean legal settlement the same as held at Special Term and
not controverted upon this appeal. (Toivn of Washington v. Town of Warren,
T23 Conn. 268; Eden v. Southwest Harbor, 108 Me. 489.) We are not passing
either on the constitutionality or on the construction of the provision in the
same section where removal is sought upon the ground that the pauper "has
friends willing to support him or to aid in supporting him in any other state
or country * * *." section 71 may be valid as to the class of persons
in the case at bar and not valid in respect to this other provision. (Hatch v.
Reardon, 204 U. S. 152, 160.)
We turn then to consider seriatim the constitutional objections advanced
against the power of the State of New York to protect itself against an un-
precedented influx of persons on relief or paupers coming from other States.
Stating the question in different ways: Is it a privilege or immunity of a
citizen of the United States to impose upon any State of his choice the burden
ot supporting himself and his family before he has satisfied reasonable settle-
ment qualifications, as in the case at bar, of one year? Is there no way short
of action by the Congress by which the States, severally or separately, may
safeguard themselves from the threat to their security and solvency by incom-
ing numbers of indigent families from other States? Lastly, is a statute de-
signed to safeguard the welfare of the individual and the welfare of the State
and to protect a citizen of the United States from starvation and return him
to his former place of settlement, where he will receive succor, a violation of
the Constitution of the United States?
We take up first the objection based upon a claimed lack of due process
under the Fourteenth Amendment and endeavor to show that section 71 is
not unconstitutional but a reasonable exercise of the sovereign police power to
attain a proper objective. Obviously, the State of New York, prior to the
adoption of the United States Constitution, possessed the powers of a sover-
eign nation, which included the power to refuse admittance to, or to deport a
person coming from, without its borders, whether or not that person crossed
the State line with the intention of seeking permanent residence in this State.
Likewise, it is authoritatively settled that the adoption of the Constitution
of the United States did not create the power of the State, but only limited
such power and, except as so limited, the power of the State remains supreme.
(Carter v. Carter Coal Co., 298 U. S. 238; 11 Am. Jur. 865, § 171.) How then,
may we ask, has there been cut down this fundamental police power of the
• Note: Pages 124-133 is quotation from this Chirillo case.
10076 THE EDWARDS CASE
State to enact legislation removing paupers who have not yet acquired a
legal settlement in this State, to the place of their last legal settlement?
Under the due process clause of the Fourteenth Amendment, the only limi-
tation upon the exercise of the police power must be that it concerns itself
with the promotion of the public welfare through having a real and substantial
relation to that end, and shall not be unreasonable, arbitrary or capricious.
(Nebbia v. People, 291 U. S. 502.) The historical background and present
conditions leading up to forcible removal proceedings demonstrate not only
their recognized need, but their reasonableness.
From the time of the early common law, the liberty of the pauper has been
curtailed in the interests of the welfare of the various communities. In 1350,
by statute, the poor were to remain where they were resident, or to be sent
to the place of their birth. (Holdsworth, History of English Law, 390
et seq.) In 1662 Parliament enacted the Poor Relief Act (13 and 14 Charles
II, ch. 12), which permitted Justices of the Peace, upon complaint of the
Overseers of the Poor, to remove by warrant to the place of their last legal
settlement, paupers and those "likely to be chargeable to the parish."
Counsel for the State of New York has pointed out that this principle of
forcible removal of paupers to the place of their last settlement has been pro-
jected into the poor law of some thirty States. In 1773 the Colonial Legis-
lature enacted a statute practically identical with the above statute enacted
in England in 1662, and since that time successive Legislatures of this State
have continued statutes along the same line, culminating in section 71 of
the Public Welfare Law. In addition, it should be noted that removals have
long since been authorized by what is now section 27 of the State Charities
Law (Cons. Laws, ch. 55), which in part reads as follows: "State, non-
resident alien poor. The Board and any commissioner or officer of the
Department may * * * cause to be removed to the state or country
from which he came any such non-resident or alien poor found in any such
institution or otherwise supported or relieved at public expense."
Action under these sections has long been the policy of the State Depart-
ment of Social Welfare, under appropriate rules and regulations, which pro-
vide, among other provisions, that settlement in the other State must be
definitely established, and that an authorization must be received for the
return of such person from the authorized officials in the locality of settlement.
"Each proposed removal must be considered on a case work basis and a
return effected only when the Commissioner of Public Welfare is satisfied
that the welfare of the person and the interest of the State will thereby be
promoted. State charges requiring temporary relief and care should be
given a reasonable opportunity for rehabilitation unless they desire to return
voluntarily."
In addition, in all cases there must be considered not only the welfare of
the State, but also the welfare of such person, together with a prior approval
of the State Department of Social Welfare, and then the approval and action
by the Commissioner of Welfare, who may only apply to the County Judge
for the issuance of an order of removal and satisfy the County Judge that the
statute has been complied with. Then and then only may the County
Judge issue the order to remove the person to the State where he has a legal
settlement
In the light of such a statutory history, the objection of arbitrariness and
unreasonableness seems weak indeed.
"What is due process of law may be ascertained by an examination of
those settled usages and modes of proceedings existing in the common and
statute law of England before the emigration of our ancestors, and show
not to have been unsuited to their civil and political condition by having
been acted on bv them after the settlement of this country." {Twining v.
New Jersey, 21 l"U. S. 78, 100.)
"The Fourteenth Amendment, itself a historical product, did not destroy
history for the States and substitute mechanical compartments of law all
exactly alike. If a thing has been practiced for two hundred years by com-
mon consent, it will need a strong case for the Fourteenth Amendment to
affect it." (Jackman v. Rosenbaum Co., 260 U. S. 22, 31.) (See, also Coler
v. Corn Exchange Bank, 250 N. Y. 136; Affd., 280 U. S. 218; Owenbey v.
Morgan, 256 U. S. 94.)
The statute in the case at bar is thus a reasonable means adopted by the
State in order to prevent financial submersion while engaged in caring for
the unfortunates and thwarting the spread of sickness, disease and crime.
NATIONAL DEFENSE MIGRATION 10077
It is next contended that the power given to the Congress, "To regulate
commerce * * * among the several States * * *" (Art. 1, § 8),
renders invalid section 71 of the Public Welfare Law. In the consideration
of questions of constitutional construction we are reminded that "unless the
party setting up the unconstitutionality of the State law 'belongs to the
class for whose sake the constitutional protection is given * * *," the
objections will not be heard, and imaginary cases will not be gone into where,
as here, the statute involved may be constitutional as affecting the litigants
before the court and may not be constitutional as to others. (Hatch v.
Reardon, 204 U. S. 152, 160.) While the forcible removal of persons who
are public charges and not entitled by reason of lack of length of residence
to a legal settlement for relief purposes in the State, may to some extent
affect interstate commerce, the case at bar does not present such an inter-
ference as is forbidden to the State when exercising the police power in de-
fense of State welfare. It is settled by the authorities that, in the absence
•of congressional pre-emptions, the police power inherent in the States may
be exercised within reasonable restrictions, even though there may be inter-
ference with interstate commerce. (City of New York v. Miln, 11 Pet.
102; Railroad Co. v. Husen, 95 U. S. 465; Plumley v. Mass., 155 U. S. 461,
471; South Carolina State Highway Dept. v. Barnwell Bros. Inc., 303 U. S.
177; Ark.-La. Gas Co. v. Dept. of Public Utilities, 304 U. S. 61; H. P. Welch
^Co. v. New Hampshire, 306 U. S. 79; Eichholz v. Public Service Commission,
306 U. S. 268; Clason v. Indiana, 306 U. S. 439.)
No claim can be advanced that section 71 prevents any person from
coming into this State. The statute, as construed below, would seem to
have the effect only that, when a person who has not established a legal
settlement in this State, applies for public care, he subjects himself to the
removal provisions of section 71. Under this law, the State has no power
of removal until application is made for State aid. Then, in the interests
of the protection of the People from the spread of crime and disease and for
the preservation of the financial resources of the State, the latter remits
the applicant to the place legally responsible for him under well-settled
principles of law.
Appellants further urge that the State had no power to enact section 71
of the Public Welfare Law for the reason that it is in contravention of the
provision of the United States Constitution (Art. IV, § 2, cl. 1) which pro-
vides that "The citizens of each State shall be entitled to all the privileges
and immunities of citizens in the several States." As was said by Mr.
Justice ROBERTS in Hague v. C. I. 0. (307 U. S. 496), at page 511:
'"* * * it has come to be the settled view that Article IV, § 2, does not
import that a citizen of one State carries with him into another fundamentai
privilege and immunities which come to him necessarily by the mere fact
of his citizenship in the State first mentioned, but, on the contrary, that
in any State every citizen of any other State is to have the same privileges
and immunities which the citizens of that State enjoy. The section, in
effect, prevents a State from discriminating against citizens of other States
in favor of its own."
To hold that this clause protects the right of a citizen to be supported
at public expense in any community to which he may journey, it is necessary
to find that there is inherent in State citizenship a constitutional right to
be supported at public expense free from any limitations whatsoever. This
would include a right of the indigent person to live where he will although
the crowding into one State may be a menace to society. No such right
exists. "Neither aliens nor the citizens of other States are vested by the
Constitution with any interest in the common property of this State."
(People v. Crane, 214 N. Y. 154, 161.) Section 71 does not interfere with
the right of a citizen of one State to pass through or reside in any other
State. Only if on coming from another State he applies for relief at public
-expense, to which he has no constitutional right, he is bound to accept the
relief cum onero, or with the limitations of the reasonable provisions of the
Public Welfare Law of New York State. If it be for his welfare and for the
welfare of the State, he then subjects himself to the possibility of being
compelled to return to the State wherein he has a legal settlement. Nor
does section 71 of the Public Welfare Law make any discrimination upon
the basis of State citizenship, for all who seek public relief must comply
with the same requirements for a legal settlement or be subject to forcible
jemoval. (Douglas v. N. Y. R. R., 279 U. S. 377.)
10078 THE EDWARDS CASE
It is urged that that portion of the Fourteenth Amendment which affords-
"to any person within its jurisdiction the equal protection of the laws,"
renders invalid section 71. There is here, however, no invalid classification.
(Heim v. McCall, 239 U. S. 175; People v. Crane, supra.) In Barbier v.
Connolly, (113 U. S. 27), it is said, at page 32: "Class legislation, discrimina-
tion against some and favoring others, is prohibited, but legislation which,
in carrying out a public purpose is limited in its application, if within the
sphere of its operation it affects alike all persons similarly situated, is not
within the amendment."
Lastly, there is no merit to the claim that section 71 is rendered invalid by
the constitutional provision that "no State shall make or enforce any law
which shall abridge the privileges or immunities of the citizens of the United
States * * *." It would seem that the privileges and immunities of
United States citizenship are none other than those which result from other
provisions of the Constitution and from the laws of Congress; that unless
some other constitutional provisions or Federal statute prescribes the right
claimed to be a privilege or immunity of United States citizens, no further
protection may be had by resort to that clause. {Hague v. C. I. 0., 307
U. S. 496, 519-522; Slaughterhouse Cases, 16 Wall. 35, 79-80.) It has been
shown above that the statute as herein applied does not contravene other
guaranties of the Constitution; nor has the claim been advanced that there is
applicable congressional enactment.
Freedom of residence is restricted as to citizens only while on relief. This
statute applies whether the citizen is of this State or of another State. Con-
finement to a poor house or farm may be the result of indigence. No inter-
ference is had with the right of any citizen to choose and establish a home.
What is controlled is the unrestricted imposition of indigent persons and
families without settlement upon a community and State where they cannot
establish a home because of their indigent status. Freedom of residence is
certainly restricted as to paupers; yet no instance of invalidity has been
pointed out as to the poor laws permitting commitment of indigents to poor
farms. A condition may often restrict a freedom. Vagrancy is one example;
disease is another; and mental deficiency, a third. Such conditions restrict
individual rights and freedom in the interest of the right, security and
freedom of the rest of the community of the State.
The Public Welfare Law of New York seeks, with due regard to the rights
of all those affected, to deal in a humane way with the problem of pauperism.
The sovereign police power of the State of New York has been exercised prop-
erly and reasonably. Such legislation is permitted by the Constitution of the
State, and nothing in the United States Constitution compels a holding that
such legislation is invalid.
The order appealed from, in so far as it holds the provisions of section 71
of the Public Welfare Law constitutional, should be affirmed.
Lehman, Ch. J., Sears and Conway, JJ., concur with Loughran, J.;
Lehman, Ch. J., concurs in separate opinion, in which Loughran and
Sears, JJ., concur; Finch, J., dissents in opinion, in which Rippey and
Lewis, JJ., concur.
Appeal dismissed."
(Rehearing denied October 8, 1940 in 29 N. E. (2d) 661)
Note: This case was later brought into the Federal court, where plaintiff
sought an injunction to prevent enforcement of the New York statute (Chirillo v.
Lehman, 38 Fed. Supp. 65, decided December 31, 1940). The Federal District
Court refused to look into the constitutionality of the statute on the ground that
it had been conclusively determined as between these parties in the court of
original jurisdiction in New York State, i. e. adversely to Chirillo, notwithstanding
the dismissal of Chirillo's appeal by the New York Court of Appeals.
Exhibit 12. — Collection of cases in the United States Supreme Court discussing
the rights of a State with respect to paupers and persons likely to become a public
charge
The Mayor of New York v. Miln, 11 Peters 102, 36 U. S. 71 (1837)
A statute provided that the Master of a ship arriving in the port of New York
from any country outside of the United States, or from any other of the United
States, should report the name, age and occupation of each passenger (with a
penalty for failure to comply), the intent of the statute being to protect the state
NATIONAL DEFENSE MIGRATION 10079
from the influx of indigents. The statute was upheld as a proper exercise of the
police power and as not being an unconstitutional regulation of Interstate Com-
merce. Mr. Justice Barbour for the majority said (pp. 141-2):
"Now, in relation to the section in the act immediately before us, that is
obviously passed with a view to prevent her citizens from being oppressed
by the support of multitudes of poor persons, who come from foreign coun-
tries, without possessing the means of supporting themselves. There can
be no mode in which the power to regulate internal police could be more
appropriately exercised. New York, from her particular situation, is,
perhaps, more than any other city in the Union, exposed to the evil of thous-
ands of foreign emigrants arriving there, and the consequent danger of her
citizens being subjected to a heavy charge in the maintenance of those who
are poor. It is the duty of the state to protect its citizens from this evil;
they have endeavored to do so, by passing amongst other things, the section
of the law in question. We should, upon principle, say that it had a right
to do so.
<<* * * \ye think it as conrpetent and as necessary for a state to pro-
vide precautionary measures against the moral pestilence of paupers, vaga-
bonds, and possiblv, convicts; as it is to guard against the physical pestilence
which may arise from unsound and infectious articles imported, or from a
ship, the crew of which may be laboring under an infectious disease."
In the concurring opinion of Mr. Justice Thompson is found the following
language (pp. 147-8):
"* * * To test the present case by this rule. The duty here imposed
arises, after the master and passengers have arrived within the limits of the
state, and is applied to the purely internal concerns of the state. This provi-
sion does not affect other states, nor any subject necessary for the purpose of
executing any of the general powers of the government of the Union. For
although commerce, within the sense of the constitution, may mean inter-
course, and the power to regulate it be coextensive with the subject on which
it acts, and cannot be stopped at the external boundary of a state, according
to the language of this court in the case of Brown v. State of Maryland, 12
Wheat. 446; it cannot be claimed, that the master, or the passengers, are
exempted from any duty imposed by the laws of a state, after their arrival
within its jurisdiction; or have a right to wander, uncontrolled, after they
become mixed with the general population of the state; or that any greater
rights or privileges attach to them, because they come in through the medium
of navigation, than if they come by land from an adjoining state; and if the
state had a right to guard against paupers becoming chargeable to the city,
it would seem necessarily to follow, that it had the power to prescribe the
means of ascertaining who they were, and a list of their names is indispensable
to effect that object. The purposes intended to be answered by this law fall
within that internal police of the state; which, throughout the whole case of
Gibbons v. Ogden, is admitted to remain with the states." * * *
"Can anything fall more directly within the police power and internal regu-
lation of a state, than that which concerns the care and management of
paupers or convicts, or any other class or description of persons that may be
thrown into the country, and likely to endanger its safety, or become charge-
able for their maintenance? It is not intended, by this remark, to cast any
reproach upon foreigners who may arrive in this country. But if all power
to guard against these mischiefs is taken away, the safety and welfare of the
community may be very much endangered. * * *"
Mr. Justice Baldwin added (pp. 153b, 153 and 153n):
"On the same principle by which a state may prevent the introduction of
infected persons or goods, and articles dangerous to the persons or property
of its citizens, it may exclude paupers who will add to the burdens of taxa-
tion, or convicts who will corrupt the morals of the people threatening them
with more evils than gunpowder or disease. The whole subject is necessarily
connected with the internal police of a state, no item of which has to any
extent been delegated to congress, every branch of which has been excepted
from the prohibitions on the states, and is, of course, included among their
reserved powers.
"If there is any one case to which the following remark of this court is
peculiarly applicable, it is this: 'It does not appear to be a violent construc-
tion of the constitution, and is certainly a convenient one, to consider the
10080 THE EDWARDS CASE
power of the states as existing over such cases as the laws of the Union may
not reach.' 4 Wheat 195. Let this case be tested by this rule, and let it be
shown, that any clause in the constitution empowers congress to pass a law
which can reach the subject of pauperism, or the case of a pauper imported
from a foreign nation or another state. They are not articles of merchandise
or traffic, imports or exports. Congress cannot compel the states to receive
and maintain them, nor establish a system of poor laws for their benefit or
support; and there can be found in no decision of this court any color for the
proposition, that they are in any respect placed under the regulation of
the laws of the Union, or that the states have not plenary power over
them." * * *
"No case can arise, in which the doctrine of construction has been attempted
to be carried further than in this; the law of New York, on which this case
turns, has but one object, the prevention of foreign paupers from becoming
chargeable on the city or other parts of the state ; it is a part of the system
of internal police, prescribing laws in relation to paupers. The state asserts
as a right of self-protection, the exclusion of foreigners who are attempted
to be forced upon them, under the power of the laws for the regulation of
commerce, which the defendant contends, protects all passengers from
foreign countries, till they are landed, and puts it out of the power of the
state to prevent it. On the same principle, convicts from abroad may be
forced into the states without limitation; so, of paupers from other states, if
once put in a vessel with a coasting license; so that all police regulations on
these subjects by states must be held unconstitutional. One of two con-
sequences must follow. There can be no poor-laws applicable to foreigners;
they must be admitted into the state, and be supported by a tax on its citizens,
or congress must take the subject into their own hands, as a means of carrying
into execution their power to regulate commerce. Their laws must not be
confined to the seaports in the states into which foregin paupers are intro-
duced, they must extend to every part of the state to which paupers from
other states can be brought; for the power to regulate commerce among the
several states is as broad in all respects as to do it with foreign nations.
* * * To my mind, there can be no such cause for discriminating between
an imported and a domestic pauper; one is as much an article of commerce as
another, and the same power which can force them into a state from a vessel,
can do it from a wagon, and regulate their conveyance on the roads or canals
of a state, as well as on its rivers, havens or arms of the sea. In following out
these principles to their consequences, congress may, and, to be consistent,
ought to go further. Poor laws are analogous to health, quarantine and
inspection laws, all being parts of a system of internal police, to prevent the
introduction of what is dangerous to the safety or health of the people; and
health and quarantine laws extend to the vessel, the cargo and passengers.
Laws excluding convicts and paupers are as necessary to preserve the morals
of the people from corruption and their property from taxation, as any laws
of the other description can be; nor do they interfere any further with the
regulations of commerce; as laws in pari materia, they must stand or fall
together, or some arbitrary unintelligible distinction must be made between
them, which is neither to be found in the constitution, nor decisions of this
court. If the principle on which health and quarantine laws are sustained,
is applied to this case, the validity of the law in question is not to be doubted;
if this principle is not so applied, then it is an unsound one, which must be
abandoned, thereby the reserved powers of the states over their internal
police, must devolve on congress, as an incident to, or the means of regulating
'commerce with foriegn nations' and 'among the several states.' There is no
middle ground on which health and quarantine laws can be supported, which
will not equally support poor laws; nor can poor laws be declared void on any
ground that will not prostrate the others; all must be included within, or ex-
cepted from, the prohibition. * * * We should never have had a federal
government, if there had been a declaration in its frame, that congress could
pass poor-laws, or interfere to revise or control those passed by the states; or
that congress could legislate on any subject of legislation over which no juris-
diction was granted to them, and which was reserved to the states or people,
in the same plenitude as they held it before they surrendered any portion of
their power. * * *
"I cannot think that it intended, or can be construed, to impose an un-
qualified prohibition on a state, to prevent the introduction of convicts or
paupers, who are entitled to no higher protection than the vessel or goods on
NATIONAL DEFENSE' MIGRATION 10081
board; which are subject to state taxation with the assent of congress; and to
health and inspection and quarantine laws, without their consent. * * *
The law in question is confined to matters of police, it affects no regulations
of commerce, it impairs no rights of any persons engaged in its pursuits; and
while such laws are not extended beyond the legitimate objects of police, there
is, in my opinion, no power, under the constitution, which can impair its force,
or by which congress can assume any portion or part of this power, under any
pretext whatever. * * *"
Even in the dissenting opinion of Mr. Justice Story he conceded (p. 155) :
"I admit, in the most unhesitating manner, that the states have a right to
pass health laws and quarantine laws, and other police laws, not contravening
the laws of congress rightfully passed under their constitutional authority.
I admit, that they have a right to pass poor-laws, and laws to prevent the in-
troduction of paupers into the state, under the like qualifications. I go
further, and admit, that in the exercise of their legitimate authority over any
particular subject, the states may generally use the same means which are
used by congress, if these means are suitable to the end. But I cannot admit,
that the states have authority to enact laws, which act upon subjects beyond
their territorial limits, or within those limits and which trench upon the
authority of congress in its power to regulate commerce."
Prigg v. Pennsylvania, 16 Peters 539, 41 U. S. 345.
The case involved the taking and returning to Maryland of a fugitive slave by
an agent of the owner, a citizen of Maryland, contrary to a Pennsylvania statute
prohibiting the taking and carrying away of Negroes for the purpose of slavery.
In holding the statute void, the Court made clear its attitude on the limitation of
State police power, as follows (p. 624) :
<<* * * \ye entertain no doubt whatsoever, that the states, in virtue of
their. general police power, possess full jurisdiction to arrest and restrain run-
away slaves, and remove them from their borders, and otherwise to secure
themselves against their depredations and evil example, as they certainly
may do in cases of idlers, vagabonds, and paupers. * * *"
License Cases — Thurlow v. Massachusetts, 5 Howard 504, 46 U. S. 590 (1847).
The statutes of Massachusetts, Rhode Island and New Hampshire, involving
the right of states to license the sale of liquor, were upheld as not being inconsistent
with any provision of the Constitution. Mr. Chief Justice Taney said (p. 576) :
"It has, indeed, been suggested, that, if a State deems the traffic in ardent
spirits to be injurious to its citizens, and calculated to introduce immorality,
vice, and pauperism into the State, it may constitutionally refuse to permit
its importation, notwithstanding the laws of Congress; and that a State may
do this upon the same principles that it may resist and prevent the intro-
duction of disease, pestilence, or pauperism from abroad. But it must be
remembered that disease, pestilence, and pauperism are not subjects of com-
merce, although sometimes among its attendant evils. They are not things
to be regulated and trafficked in, but to be prevented, as far as human fore-
sight or human means can guard against them. * * *"
Passenger Cases — Smith v. Turner and Morris v. City of Boston, 7 Howard
283, 48 U. S. 300 (1849)
The cities of New York and Boston imposed taxes upon alien passengers arriving
in their ports. The court held both laws to be unconstitutional and void but in
doing so Mr. Justice Wayne said (pp. 424, 5, 6) :
"The States have also reserved the police right to turn off from their
territories paupers, vagabonds, and fugitives from justice. * * *"
"* * * And when Congress shall legislate, if it be not disrespectful for
one who is a member of the judiciary to suppose so absurd a thing of another
department of the government, — to make paupers, vagabonds, suspected
persons, and fugitives from justice subjects of admission into the United
States, I do not doubt it will be found and declared, should it ever become a
matter for judicial decision, that such persons are not within the regulating
power which the United States have over commerce. * * * They have
no rights of national intercourse; no one has a right to transport them, with-
out authority of law, from where they are to any other place, and their only
rights where they may be are such as the law gives to all men who have not
altogether forfeited its protection.
10082 THE EDWARDS CASE
"The States may meet such persons upon their arrival in port, and may
put them under all proper restraints. They may prevent them from entering
their territories, may carry them out or drive them off. But can such a
police power be rightfully exercised over those who are not paupers, vaga-
bonds, or fugitives from justice? The international right of visitation
forbids it."
And Mr. Chief Justice Taney in a dissenting opinion reasoned:
"And the first inquiry is, whether, under the Constitution of the United
States, the federal government has the power to compel the several states to
receive, and suffer to remain in association with its citizens, every person or
class of persons whom it may be the policy or pleasure of the United States to
admit. In my judgment, this question lies at the foundation of the contro-
versy in this case. I do not mean to say that the general government have,
by treaty or act of Congress, required the State of Massachusetts to permit
the aliens in question to land. I think there is no treaty or act of Congress
which can justly be so construed. But it is not necessary to examine that
question until we have first inquired whether Congress can lawfully exercise
such a power, and whether the States are bound to submit to it. For if the
people of the several States of this Union reserved to themselves the power of
expelling from their borders any person, or class of persons, whom it might
deem dangerous to its peace or likely to produce a physical or moral evil
among its citizens, then any treaty or law of Congress invading this right,
and authorizing the introduction of any person or description of persons
against the consent of the State, would be an usurpation of power which this
court could neither recognize nor enforce.
*******
"If these cases are to stand, the right of the State is undoubted. And it is
equally clear, that, if it may remove from among its citizens any person or de-
scription of persons whom it regards as injurious to their welfare, it follows
that it may meet them at the threshold and prevent them from entering.
* * * If the state has the power to determine whether the persons ob-
jected to shall remain in the State in association with its citizens, it must, as
an incident inseparably connected with it, have the right also to deter-
mine who shall enter. * * * A concurrent and equal power in the
United States and the States as to who should and who should not be per-
mitted to reside in a State, would be a direct conflict of powers repugnant to
each other.j continually thwarting and defeating its exercise by either, and
could result in nothing but disorder and confusion.
"Again: if the State has the right to exclude from its borders any person or
persons whom it may regard as dangerous to the safety of its citizens, it
must necessarily have the right to decide when and towards whom this
power is to be exercised according to the judgment of the party which possesses
it. And it must, therefore rest with the State to determine whether any
particular class of description of persons are likely to produce discontents or
insurrection in its territory, or to taint the morals of its citizens, or to bring
among them contagious diseases, or the evils and burdens of a numerous
pauper population. For if the general government can in any respect, or
by any form of legislation, control or restrain a State in the exercise of this
power, or decide whther it has been exercised with proper discretion, and
towards proper persons, and on proper occasions, then the real and substantial
power would be in Congress, and not in the States. In the cases decided in
this court, and herein above referred to, the power of determining who is or
is not dangerous to the interests and well-being of the State has been uni-
formly admitted to reside in the State."
Henderson v. The Mayor of the City of New York, 92 U. S. 259 (1875)
The statute required a report by the master or owner of a vessel (as set out in
New York v. Miln, svpra) and also required the owner or consignee of every vessel
arriving from a foreign port to give a bond to indemnify every city and county
against any expense for relief or support of any person so brought in for a period
of the next four years. The cost of the bond could be avoided by paying $1.50 per
passenger within twenty-four hours of their arrival. The scheme was held to be
a tax on the owner of a vessel for the privilege of landing passengers and the Court
concluded that a tax on any passenger who comes from abroad was a strange
means to the avowed end and purpose of the statute, namely, to prevent a flood
NATIONAL DEFENSE MIGRATION 10083
of pauperism from Europe. Judgment for plaintiff city was reversed and the
cause remanded, the Court concluding:
"Whether, in the absence of such action, the States can, or how far they
can, by appropriate legislation, protect themselves against actual paupers,
vagrants, criminals, and diseased persons, ai riving in their territory from
foreign countries, we do not decide. The portions of the New York statute
which concern persons who, on inspection, are found to belong to these classes,
are not properly before us, because the relief sought is to the part of the stat-
ute applicable to all passengers alike, and is the only relief which can be
given on this bill." (p. 275)
Chy Lung v. Freeman, 92 U. S. 275_(1875)
This case involving a California statute was decided immediately following the
Henderson case, supra, the statute not requiring, however, a bond for every pas-
senger or commutation in money but only for certain enumerated classes, including
"lewd and debauched women". The plaintiff was placed in this class by the Com-
missioner of Immigration on her arrival from China and imprisoned. The master
of the vessel refused to pay the bond indemnifying cities and counties in the event
relief became necessary for her. The Court declared the statute was unconstitu-
tional and void because it went far beyond what was necessary to achieve its
avowed purpose and because it was actually designed not for obtaining an indem-
nity but rather to compel the payment of money by masters of vessels in com-
mutation to escape the placing of the bonds. The Court says:
"We are not called upon by this statute to decide for or against the right
of a State, in the absence of legislation by Congress, to protect herself by
necessary and proper laws against paupers and convicted criminals from
abroad; nor to lay down the definite limit of such right, if it exist. Such a
right can only arise from a vital necessity for its exercise, and cannot be car-
ried beyond the scope of that necessity. When a State statute, limited to
provisions necessary and appropriate to that object alone, shall, in a proper
controversy, come before us, it will be time enough to decide that ques-
tion. * * *." (p. 280)
Railroad Company v. Husen, 95 U. S. 465 at 470 (1877)
<<* * * In Henderson v. The Mayor, &c, the statute of New York
was defended as a police regulation to protect the State against the influx
of foreign paupers; but it was held to be unconstitutional, because its prac-
tical result was to impose a burden upon all passengers from foreign coun-
tries. And it was laid down that, 'in whatever language a statute may be
framed, its purpose must be determined by its natural and reasonable effect.'
The reach of the statute was far beyond its professed object, and far into the
realm which is within the exclusive jurisdiction of Congress. So in the case
of Chy Lung v. Freeman, where the pretense was the exclusion of lewd women;
but as the statute was more far-reaching, and affected other immigrants,
not of any class which the State could lawfully exclude, we held it uncon-
stitutional. Neither of these cases denied the right of a State to protect
herself against paupers, convicted criminals, or lewd women, by necessary and
proper laws, in the absence of legislation by Congress, but it was ruled that
the right could only arise from vital necessity, and that it could not be
carried beyond the scope of that necessity. These cases, it is true, speak
only of laws affecting the entrance of persons into a State; but the constitu-
tional doctrines they maintain are equally applicable to inter-state trans-
portation of property. * * *." (pp. 472, 3)
Plumley v. Massachusetts, 155 TJ. S. 461 (1894)
In upholding a Massachusetts statute forbidding the bringing in and sale of
oleomargarine for butter, the court said: (p. 478)
"It has therefore been adjudged that the states may legislate to prevent
the spread of crime, and may exclude from their limits paupers, convicts,
persons likely to become a public charge, and persons afflicted with con-
tagious or infectious diseases. These and other like things having immediate
connection with the health, morals, and safety of the people, may be done
by the states in the exercise of self defense * * *."
10084 THE EDWARDS CASE
Missouri, Kansas <fc Texas RR. Co. v. Haber, 169 U. S. 613, 629 (1897)
In discussing the statute of Kansas prohibiting the bringing in of cattle likely
to be diseased and making a person so doing liable in damages in a civil action,
the court states that in Railroad Co. v. Husen, 95 U. S. 465, 471, 473:
"The court cited with approval the language of the Supreme Court of
Vermont in Thorpe v. Rutland & Burlington R. R. 27 Vt, 140, * * *
"Under that power the court said, that while a state by legislation may not
invade the domain of the National Government, it may exclude from its
limits convicts, paupers, idiots and lunatics, persons likely to become a public
charge, as well as persons affected by contagious or infectious diseases. * * *
Such exertions of power by a state, it was said, were self-defensive."
Japanese Immigrant Case — Kaoru Yamataya v. Fisher, 189 U. S. 86 (1902)
The Immigration Act of 1901 provided for the exclusion of paupers among
others and the immigration authorities refused, therefore, to permit the plaintiff
Japanese citizen to enter. Plaintiff contended that under the treaty with Japan,
all Japanese citizens had full liberty to enter, travel or reside within the United
States, but the Act was upheld as a proper exercise of the police power, the opera-
tion of which was expressly excepted from the effect of any of the provisions of
the treaty, the Court stating:
"A statute excluding paupers or persons likely to become a public charge-
is manifestly one of police and public security." (p. 97)
Federal Cases.
In re Ah Fong, 1 Fed. Cases 213, 3 Sawver 144, Fed. Case 102 (Circuit
Court, Dist. of California) (1874)
"It is equally true that the police power of the state may be exercised by
precautionary measures against the increase of crime or pauperism, or the-
spread of infectious diseases from persons coming from other countries; that
the state may entirely exclude convicts, lepers, persons afflicted with incurable
disease; may refuse admission to paupers, idiots, lunatics and others, who
from physical causes are likely to become a charge upon the public until
security is afforded that they will not become such a charge; and may isolate
the temporarily diseased until the danger of contagion is gone. The legality
of precautionary measures of this kind has never been doubted. The right
of the state in this respect has its foundation, as observed by Mr. Justice
Grier in the Passenger Cases, 7 How. (48 U. S.) 462, in the sacred law of
self defense, which no power granted to Congress can restrain or annul."
Sweeney v. State Board of Public Assistance, District Court of Pa., 36 Fed.
Supp. 171, Dec. 31, 1940
This very recent case indicates a contemporary view of the Federal Courts as
to the degree of limitation a state may require on the right to live in a specific
locality as a condition to relief without infringing on an individual's constitutional
rights.
"Plaintiffs claim that their right to live where they please has been in-
fringed by this regulation of the State Board of Public Assistance, which
denied them relief while living as a family unit with relatives who are not
legally liable for their support. The courts have construed the fourteenth
amendment of the Federal Constitution to guarantee to an individual the
right to live where, and as he pleases: Allgeyer v. Louisiana, 165 U. S. 578,
589, 17 S. Ct. 427, 41 L. Ed. 832, but the amendment is not a guaranty of
untrammeled freedom of action: Virginia R. Co. v. System Federation No. 40,-
300 U. S. 515, 57 S. Ct. 592, 81 L. Ed. 789. The Constitution does not
recognize an absolute and uncontrollable liberty, the liberty safeguarded
being liberty in a social organization which requires the protection of law
against the evils which menace the health, safety, morals and welfare of the
people; (Citations) The constitutional guaranty of liberty is only of freedom
from arbitrary restraint, not of immunity from reasonable regulations and
prohibitions imposed in the interests of the community. (Citations) There
is no arbitrary restraint here of plaintiffs' right to live where they please.
The restraint is imposed only if they wish to receive a grant of public assist-
ance from the state."
NATIONAL DEFENSE MIGRATION 10085
Exhibit 13. — Collection of Cases Discussing the Term "Indigent", et Cetera
Board of Directors v. Nye, 8 Cal. App. 527, 97 Pac. 208 (1908)
In discussing whether or not the State could appropriate funds in support of an
institution for widows of Civil War Veterans the Court, at page 536, gave this
indication of its definition of "paupers":
"As a matter of course, no one will dispute the proposition that the support
of paupers and the giving of assistance to those who by reason of age, infirmity,
or disability, or inability for any reason to take care of themselves, might
become such, is, by the practice and common consent of civilized countries, a
public purpose, and within the general legislative power."
Storrs Agricultural School v. Whitney, 54 Conn. 342, 8 Atl. 141 (1887)
In discussing whether a charitable gift "to aid indigent young men" of a town
in fitting themselves for the evangelical ministry was void for uncertainty, the
Court held:
"Neither of the words 'indigent' nor 'evangelical' is of rare use or hidden
meaning. They are quite within ordinary intelligence, and point with a
sufficient degree of certainty to the individual to enable the statute of chari-
table uses to distinguish him from all others. It is a sufficiently accurate
statement, in this connection, to say that they describe a man who is without
sufficient means of his own, and whom no person is bound and able to supply,
to enable him to prepare himself for preaching the gospel. * * *." (p. 146)
Juneau County v. Wood County, 109 Wise. 330, 85 N. W. 387 (1901)
An action brought by one county against another "for the support of a pauper
:and his family" under a statute extending aid to "poor and indigent persons".
"* * * It will be observed that, to entitle any person to such relief,
he must be 'needy' or 'indigent.' The language is similar to the statutes for
the 'relief and support of the poor,' where, with certain exceptions, relief
and support are only to be given to 'poor and indigent persons' who 'shall
stand in need thereof.' 'Poor Persons,' sections 1499-1516, Rev. St. 1898.
As stated by Air. Justice Pinney: 'The word "poor" in the statute has a
restricted and technical meaning, and it is practically synonymous with
"destitute," denoting extreme want and helplessness.' Town of Rhine v.
City of Sheboygan, 82 Wis. 354, 52 N. W. 444; Town of Ettrick v. Town of
Bangor, 84 Wis. 259, 54 N. W. 401; Wisconsin Keelev Institute Co. v. Mil-
waukee Co., 95 Wis. 158, 70 N. W. 68, 36 L. R. A. 55. Webster defines the
word 'indigent' as a person 'destitute of property or means of comfortable
subsistence; needy; poor.' Other dictionaries define it in substantially the
same way. So Webster defines 'needy' as a person 'distressed by want of the
means of living; verv poor; indigent; necessitous.' Others give similar
definitions. * * *." (p. 388)
Oteo County v. Lancaster County, 78 Neb. 517, 111 N. W. 132 (1907)
Action by one county against another for expenditures occasioned by the sup-
port of an "alleged pauper". On interpreting the term "poor person" in statutes
providing for their support the Court held:
"The term 'poor person,' as used in this section, is the equivalent of
pauper, and includes all persons without means, who are unable on account
of some bodily or mental infirmity, or other unavoidable cause, to provide
for themselves. It may be said, therefore, that a person is chargeable as a
pauper, under our statute, when he is without means, and unable, on account
of some bodily or mental infirmity, or other unavoidable cause, to earn a
livelihood, and has no kindred in the state liable under the statute for his
support, or whose kindred within the state are of insufficient ability, or fail
or refuse, to maintain him." (p. 133)
State v. Sharp, 1 W. W. Harr, Del. 148, 111 Atl. 909 (1920).
" 'Any husband who shall, without just cause, desert and willfully neglect
or refuse to provide for the support and maintenance of his wife in destitute
or necessitous circumstances * * * shall be guilty of a misdemeanor.'
(Rev. Code 1915, p. 1421, sec. 3034.)"
10086 THE EDWARDS CASE
" 'A wife is in necessitous circumstances * * * when she does not
have property or money available for such necessities or ordinary comforts
of life as her husband can reasonably furnish. * * *
" 'The essence of the act is that a man shall not be allowed to shift the
burden of supporting his wife * * * upon others under no obligation
to bear it. * * * Therefore, whenever a husband, without just cause,
neglects or refuses to provide for the support and maintenance of his wife
and thereby places her in such a situation that she stands in need of the
necessaries of life, it is not material that they are supplied by her own labor
or by sympathizing relatives, friends, or strangers, so that she does not in
fact suffer from privation. He is guilty if he leaves her in such circumstances
that, without her own efforts or outside help, she would lack the necessaries
of life.'
"Donaghy v. State, 6 Boyce, 467, 100 Atl. 696." (pp. 910-11)
Allegheny County v. City of Pittsburgh, 281 Pa. 300, 127 Atl. 72 (1924)
Under a statute providing a recovery of money expended for neglected and
dependent children, a distinction was drawn between this class of individuals and
"poor persons", for which latter class the poor laws are applicable, and the term,
for the purpose, defined as follows:
"The term 'poor' is used in the law, means 'destitute'; helpless and in
extreme want; * * * so completely destitute of property as to require
assistance from the public; it is synonymous with 'pauper' and this means
'one so poor that he must be supported at the public expense.' "
Busser v. Snyder, 282 Penn. State 440, 128 Atl. 80, 37 A. L. R. 1515 (1925)
In discussing the Old Age Pension Law of Pennsylvania, the Court held:
" 'Poor persons' and 'paupers' have been used as synonymous words,
although not necessarily meaning the same; but the thing which for more than
200 years fixed the charge on the commonwealth was the fact of inability to
support themselves and without means of support. * * * When the
Constitution was adopted, the terms 'poor laws' and 'poor persons' were well
understood. These speak of 'poor persons not able to work' or 'by reason of
age, disease, infirmity, or other disability are unable to work', 'the needy sick
and indigent', 'without means of support,' to which the Poor Authorities
were required to give aid * * *. The term 'poor' as used by law makers
describes those who are destitute and helpless, unable to support themselves,,
and without means of support. These are objects of public charity. * * *"
Town of Maulius v. Town of Pornpey, 140 Misc. Rep. 505, 250 N. Y. S. 690
(1930)
An action brought by one town against another to recover the sum paid out for
the support of poor persons properly chargeable to defendant-town. The Court
stated :
"It is common knowledge who the ordinary 'poor persons' are. They are
those without property, without habits of industry or thrift, improvident,
usually physically or mentally deficient, who are unable through efforts of
their own to gain a livelihood. They are constantly seeking and generally
receive at some regular intervals public charity or assistance; they have a
practically constant status as 'poor persons'; they are not able to maintain
themselves for any long period of time even under ordinary conditions."
Moss v. Moss, 163 Washington 444, 1 Pac. (2) 916 (1931)
An action for contribution from a divorced husband for expenditures made by
the wife in caring for the disabled son of the parties. Under a statute requiring
relatives to support "poor persons". The definition given was as follows:
"The term 'poor' person as used in our statute means such person who is so
completely destitute as to require assistance from the public. It refers to a
person who is so helpless by reason of physical or mental infirmity as to be
dependent for his support upon public charity; that such person is unable to
provide for and maintain himself.
'Generally the terms "pauper" and "poor person", "indigent person",
"person in distress", etc., in statutes providing for the relief of such persons,
are used to describe that class of persons who are so destitute and helpless as
to be dependent for their support on public charity.' "
NATIONAL DEFENSE MIGRATION 10087
Cloyd v. County of Vermilion, 360 111. 610, 196 N. E. 802 (1935)
In a suit brought by a physician against defendant-county for the value of
services he had rendered to two individuals under a statute, the county claimed
that, since the title of the act was limited to "paupers" and the act dealt with
persons who were not paupers but merely unable to support themselves or pay
for medical and surgical aid when ill, the act was unconstitutional, but in giving
judgment for the plaintiff the Court disagreed with the defendant-county as
follows :
"Webster's International Dictionary defines a pauper as a very poor per-
son; a person destitute of means except such as are derived from charity;
one who receives aid from public poor funds. Those mentioned in section 24
who are unable to pay for nursing, medical expenses, or their burial expenses
if they die are certainly included in the commonly understood meaning of the
word 'pauper', even though they may not be paupers in the technical, legal
definition of the word. In such emergency, they must receive aid from the
public poor funds or from charity.' (p. 804)
10088 THE EDWARDS CASE
Exhibit No. 9.
In the Supreme Court of the United States. October Term, 1941. No. 17.
Fred F. Edwards, Appelant, vs. The People of the State of California, Appellee
and Respondent. Earl Warren, Attorney General of the State of California;
W. T. Sweigert, Assistant Attorney General of the State of California; Hiram
W. Johnson, 3rd, Deputy Attorney General of the State of California; 600
State Building, San Francisco, California; Attorneys for Appellee.
SUPPLEMENTAL POINTS AND AUTHORITIES FILED BY THE
ATTORNEY GENERAL OF CALIFORNIA
Pursuant to permission of the Court granted at the oral argument, we present
the following points and authorities which do not appear in the Brief or Supple-
ment heretofore filed by the Attorney General.
1. In connection with the discussion in our brief, "Conclusions re Interpreta-
tion of Welfare and Institutions Code, Sec. 2615", pp. 25-31, we add the follow-
ing points and authorities:
(a) Fitchburg vs. Cheshire Ry. Co. 110 Mass. 210 {1872), involving applica-
tion of a similar statute to a common carrier, and construing the statute as
applicable to those who have some agency in inducing the poor person to
come into the state, i. e. by whose procurement or instigation the person is
induced to come, and, hence, not applicable to a carrier bringing such person
into the state without knowledge of the condition and in the ordinary course
of business.
Thomas vs. Ross & Shaw, 8 Wend. (N. Y.) 872 {1832), involving a similar
statute, and pointing out that a poor person may be carried very innocently
by carriers, without incurring the penalty, and that, although carriers are
within the letter of the statute, they are not within its spirit, unless their
intent be against the spirit of the poor laws.
{b) The contention at pp. 22-23 of the Amicus Curiae brief to the effect
that a carrier is charged at its peril with knowledge of the indigency of those
whom it carries is obviously based upon a misconstruction of State v. Cornish,
21 Atlantic 180, (1890) — (Our supplement p. 117), wherein the court used
the quoted language only with respect to the contention of the defendant
that he did not know the indigent's place of settlement, knowledge of the
indigency by the defendant being required by the statute and found to exist
in the case.
2. In connection with the discussion in our brief of the due process clause of
the Fourteenth Amendment (pp. 37-39), we add the following points and
authorities:
(a) The term "indigent" in this criminal statute is not too uncertain or
indefinite for use in a criminal statute. It is well within the rules declared
in the following decisions:
Nash v. United States, 229 U. S. 373, 377.
Omaechevarria v. Idaho, 246 U. S. 343, 348 (1917).
Mahler v. Edy, 264 U. S. 32.40 (1923).
Hygrade Provision Co. v. Sherman, 266 U. S. 497, 501-503 (1924).
Gorin v. United States, 61 Supreme Court Reports 429, 433-434 (1941).
United States v. Henderson, 121 Federal (2nd) 75, 76-78 (1941).
In re Hugh McCue, 7 Cal. App. 765, 96 Pacific 110 (1908).
Pacific Coast Dairy v. Police Court, 214 Cal. 668, 8 Pacific (2nd) 140 (1932).
In re Cutler, 1 Cal. App. (2nd) 373, 36 Pacific (2nd) 441 (1934).
(6) There is no basis in the statute for the contention in the Amicus Curiae
brief (pp. 24-5) that arbitrary power of inquisition, examination or exclusion
is vested in administrative officers of the state or of any carrier. This is
merely a criminal statute, and the offense denounced is not even completed
until the indigent has actually been brought into the state, and the rights of
the defendant are protected by the privilege of jury trial.
This is not within the rule of Yick Woo v. Hopkins, 118 U. S. 356 (1885)
or Gegiow v. Uhl, 239 U. S. 3 (1915), nor is it within Truax v. Raich, 239
U. S. 3, 33 (1915), where the statutory test was merely nationality.
3. In connection with the discussion in our brief of the commerce clause (pp.
39-48) we add:
NATIONAL DEFENSE MIGRATION 10089
(a) Williams v. Fears, 179 U. S. 270, 275-276 (1900), particularly the court's
view that the conduct of persons engaged in hiring persons within the state for
employment outside the state was a proper subject of police power, and that the
state could properly discriminate in respect to groups whose conduct tended to
induce the laboring population to leave the state or to remain in the state, and
that such statute, if it could be said to affect freedom of egress from the state, or
freedom of contract, did so only incidently and remotely. We believe that strik-
ing analogy exists in respect to the class, of persons in California whose conduct
in bringing destitute or indigent persons into the state, wilfully and without bond
of legal support as to such persons, tends to stimulate and induce the influx of
such persons into the state beyond the normal course of immigration.
(6) We also add to our reference in our brief to existing federal alien exclusion
laws, further reference to pending legislation in Congress on the subject of inter-
state migration of indigents, H. R. 161, 77th Congress, 1st Session, wherein the
basic term is "needy transients" (needy not being defined in the bill) and wherein
(p. 3, lines 15-26) provision is made for requirement by the Social Security Board
for the return to the state of legal settlement of any transient who was receiving
public assistance at the time of his departure from his state of legal settlement.
Respectfully submitted.
Lotjie Warren,
Attorney General of the State of California,
W. T. AlNSWORTH,
Assistant Attorney General of the State of California,
Hiram W. Johnson III,
Deputy Attorney General of the State of California,
600 State Building, San Francisco, California,
Attorneys for Appellee.
60396— 42— pt. 26 9
10090 THE EDWARDS CASE
Exhibit No. 10.
Supreme Court of the United States. October Term, 1941. No. 17. Fred F.
Edwards, Appellant, vs. The People of the State of California. John H. Tolan,.
as Amicus Curiae. Irwin W. Silverman, Washington, D. C. of Counsel
BRIEF OF JOHN H. TOLAN, FOR THE SELECT COMMITTEE OF THE
HOUSE OF REPRESENTATIVES OF THE UNITED STATES, AP-
POINTED PURSUANT TO HOUSE RESOLUTION NO. 63, APRIL 22,
1940, TO INVESTIGATE INTERSTATE MIGRATION OF DESTITUTE
CITIZENS, AS AMICUS CURIAE
Preliminary Statement
The statute x in question enacted by the State of California, typical of the
anti-migratory statutes enacted in twenty-eight States — the text and analysis of
which are contained in the Supplement to this brief — provides: "Every person,
firm, or corporation, or officer or agent thereof that brings or assists in bringing
into the state any indigent person, who is not a resident of the state, knowing
him to be an indigent person, is guilty of a misdemeanor."
This enactment is based on an earlier law,2 amended in 1931, 3 which reads:
"Every person, firm or corporation bringing into or leaving within, or procuring
the bringing into or the leaving within, or aiding in the bringing into or leaving
within of any pauper or poor or indigent or incapacitated or incompetent person
* * * knowing him to be such pauper, poor or indigent, or incapacitated or
incompetent person, shall be guilty of a misdemeanor." 4
As authority for the proposition that a State under its police powers may
exclude paupers from its boundaries, Counsel for appellee and respondent in this
case, arguing for the validity of the statute in question submits the case of The
Mayor of New York v. Miln, 11 Pet. 102 (1837) .5 Counsel also contends:6
"It is unfortunate that Section 2 of the statute [involved in the Miln
case] which provided that the master of the vessel should be bound in sure-
ties in a sum not to exceed $300.00 for every passenger in order that the
city be saved harmless from the possible maintennce of such persons was
not actually passed upon. It was not counted upon in the original declara-
tion which was demurred to and certified to the Circuit Court and finally
before the Supreme Court. Section 2 of the New York statute was clearly
anti-pauper legislation, and although Justice Barbour's opinion seems to
consider the fact as a whole, nevertheless. Section 1 which merely required
the report of the master as to all his passengers was the only section actually
before the Court, and the consideration of which was necessary to the de-
cision. Hence, what, but for a limited certification would have been a
direct holding on the right of a State to exclude paupers under its police
power is relegated to the status of very strong dictum. We urge that in
view of the unequivocal opinion of the Court in the Miln case there can be little
doubt that had the last mentioned issue been squarely before the Court its
validity would likewise have been favorably passed upon."
On page six of the said brief, Counsel continues:
"Following the Miln case the Supreme Court on numerous occasions
reiterated the right of a state in the exercise of its police power to exclude
paupers from its limits."
For this proposition, Counsel cites: "Hannibal & St. Joseph R. R. Co. v. Husen
(1878), 95 U. S. 465, 24 L. Ed. 527; In re Ah Fong (1874), 3 Saw, 144, 1 Fed. Cases
213; Henderson v. Wickham (1875), 92 U. S. 259, 23 L. Ed. 543; Chv Lung v.
Freeman (1876), 92 U. S. 275, 23 L. Ed. 550; Passenger Cases, supra, 7 How. 283 :
Plumly v. Mass. (1894), 155 U. S. 461; Missouri K. and T. Ry. v. Haber (1898),
169 U. S. 613." 7
i Cal. Welfare and Institutions Code (Deering, 1937), see. 2615.
> Cal. Stats. (10011, c. 210, see. 3.
3 Cal. Gen. L. (Deering, 1031), act 5814, sec. 3.
* The principal difference between the two statutes being that the words, "pauper or poor or indigent or
incapacitated or incompetent person" have been deleted from the earlier enactment. In their stead has
been substituted the sole term, "indigent". Whether the term "''ndigent" was intended by the legislature
as covering the other classes of persons cannot be determined. Also, what the definition of "indigent"
may mean cannot be determined, as the term has never been legally defined.
» See brief of counsel for appellee and respondent, dated April 21, 1041, p. 3.
• Ibid., p. 5. Italics supplied.
' Ibid., p. 6.
NATIONAL DEFENSE MIGRATION 10091
Let us first briefly consider each of the cases in light of Counsel's contention:
First, in the Henderson case,8 Justice Miller, delivering the opinion for the
Court, argued that the Miln case was strictly limited to the proposition that
requiring a report of the master of a ship as to all of his passengers, without more,
fell withint the police powers of the States and was not in conflict with the Federal
Constitution. But, continues Justice Miller:
"From this decision Mr. Justice Story dissented, and in his opinion stated
that Chief Justice Marshall, who had died between the first and second argu-
ment of the case, fully concurred with him in the view that the statute of
New York was void, because it was a regulation of commerce forbidden to
the States."9
Nevertheless, in spite of the strong dissent, this was held to be the law until the
Passenger Cases, reported in 7 How. 283, came before this Court for consideration,
involving the section of the statute not passed upon in the Miln case. This
section of the statute authorized the health commissioner to demand, and if not
paid, to sue for and recover, from the master of every vessel arriving in the port
of New York from a foreign port one dollar and fifty cents for each cabin pas-
senger, and one dollar for each steerage passenger.
The defendant, Smith in that case, who was sued for the sum of two hundred
ninety-five dollars for refusing to pay for two hundred ninety-five steerage pas-
sengers, demurred to the declaration on the ground that the act was contrary to
the Constitution of the United States and, therefore, void. It was held in that
case, at the January term, 1849, Justice Miller continues: " 'that the statute was
repugnant to the Constitution and laws of the United States and therefore void.'
7 How. 572." w
Immediately after this decision the State of New York amended the statute on
that subject with a view, no doubt, to avoid the constitutional objection. And,
in declaring this statute, as amended, containing -provisions similar to those upheld
in the Miln case, invalid, Justice Miller concludes:
"We are of opinion that this whole subject has been confided to Congress
by the Constitution; that Congress can more appropriately and with more
acceptance exercise it than any other body known to our law, state or na-
tional; that by providing a system of laws in these matters, applicable to all
ports and to all vessels, a serious question, which has long been matter of
contest and complaint, may be effectually and satisfactorily settled.
"Whether, in the absence of such action the States can or how far they can,
by appropriate legislation, protect themselves against actual paupers,
vagrants, criminals and diseased persons arriving in their territory from
foreign countries, we do not decide." n
The holdings both in this and the Passenger Cases are far from that which
Counsel for appellee contends, to wit: "Hence, what, but for a limited certifica-
tion, would have been a direct holding on the right of a State to exclude paupers
under its police power is relegated to the status of very strong dictum. We urge
that in view of the unequivocal opinion of the Court in the Miln case, there
can be little doubt that had the last mentioned issue been squarely before the
Court, its validity would likewise have been favorably passed upon." 12
As to the Chy Lung case,13 also cited by Counsel for the proposition that a
State in the exercise of its police power may exclude paupers from its limits,
Justice Miller, again delivering the opinion for the Court, says:
"It is a most extraordinary statute. It provides that the Commissioner
of Immigration is 'to satisfy himself whether or not any passgngers who
shall arrive in the State by vessels from any foreign port or place (who is
not a citizen of the United States) is lunatic, idiotic, deaf, dumb, blind,
crippled, or infirm, and is not accompanied by relatives who are able and
willing to support him, or is likely to become a public charge, or has been
a pauper in any other country, or is from sickness or disease (existing either
at the time of sailing from the port of departure or at the time of his arrival
in the State) a public charge, or likely soon to become so, or is a convict,
•92TJ. S. 259, 266 (1875).
• Ibid.
i° Ibid., p. 267.
» Ibid., pp. 274, 275.
1S Counsel's brief, supra, p. 5.
H92TJ. S. 275, 277(1875).
10092 THE EDWARDS CASE
criminal, or a lewd or debauched woman; and no such person shall be per-
mitted to land from the vessel, unless the master or owner or a consignee
shall give a separate bond in each case, conditioned to save harmless every
county, etc. * * *
"It is hardly possible to conceive a statute more skillfully framed to place
in the hands of a single man the power to prevent entirely vessels engaged
in a foreign trade * * * to compel them to submit to systematic
extortion of the grossest kind.
"The Commissioner has but to go aboard a vessel filled with passengers
ignorant of our language and our laws, and without trial or hearing or evi-
dence, but from the external appearance of persons with whose former
habits he is unfamiliar, to point with his finger to twenty, as in this case,
or a hundred if he chooses, and say to the master, 'These are idiots, these
are -paupers, these are convicted criminals, these are lewd women and these
others are debauched women. I have here a hundred blank forms of bonds,
printed. I require you to fill me up and sign each of these for $500 in gold,
and that you furnish me two hundred men, residents of this State, and of
sufficient means as sureties on these bonds. I charge you $5.00 in each
case for preparing the bond and swearing your sureties; and I charge you
seventy-five cents each for examining these passengers and all others you
have on board. If you don't do this you are forbidden to land your pas-
sengers under a heavy penalty. But I have the power to commute with
you for all this for any sum I may choose to take in cash. I am open to an
offer; for you must remember that twenty per cent of all I can get out of
you goes into my own pocket, and the remainder into the treasury of
California." "
Justice Miller then concludes: "In any view which we can take of this statute^
it is in conflict with the Constitution of the United States and therefore void." 1
The Husen case,16 cited by Counsel, involved a Missouri statute dealing not
with paupers, but with the importation of "Texas, Mexican or Indian Cattle."
In declaring this Act invalid, the Court said:
<<* * * While we unhesitatingly admit that a State may pass sanitary
laws and laws for the protection of life, liberty, health, or property within
its borders; while it mav prevent persons and animals suffering under con-
tagious or infectious diseases, or convicts, etc. from entering the State;
while for the purpose of self-protection it may establish quarantine, and
reasonable inspection laws, it may not interfere with transportation into or
through the State, beyond what is absohdely necessary for its self-protection.
It mav not, under the cover of exerting its police powers, substantially
prohibit or burden either foreign or interstate commerce * * *" M
"Tried by this rule, the statute of Missouri is a plain intrusion upon the
exclusive domain of Congress. It is not a quarantine law. It is not an
inspection law. It savs says to all natural persons and to all transportation
companies, 'You shall not bring into the State any Texas cattle or any
Mexican cattle or Indian cattle, between March 1 and Dec. 1 in any year,
no matter whether they are free from disease or not, no matter whether
they may do an injury to the inhabitants of the State or not; and if you do
bring them in, even for the purpose of carrying them through the State
without unloading them, you shall be subject to extraordinary liabilities.'
Such a statute, we do not doubt, it is beyond the power of a State to enact.
To hold otherwise would be to ignore one of the leading objects which the
Constitution of the United States was designed to secure." 18
This holding was also cited by Counsel for the proposition that a State under its
police power may exclude paupers from coming within its limits. And, as to the
remaining cases cited by Counsel for this proposition, The Plumly case 19 deals
with the sale of oleomargarine, which, of course, is not in point; the Haber case 20
deals with a Kansas statute, prohibiting the importation of diseased cattle; it, too,
has no bearing on the proposition that a state may exclude paupers. And as to
the Ah Fong case,21 the Court, in holding the California Chinese Exclusion Act
n Ibid., p. 278.
«« Ibid., p. 281.
'• Railroad Co. v. Husen, 95 U. S. 465 0877).
" Tbid.. p. 172.
»8 Ibid., p. 473.
» Plumly v. Massachusetts, 155 U. S. 461 (1894).
><> Missouri K. & T. Ry v. Haber, 169 U. S. 613 (1898).
» In re Ah Fong, 1 Fed. Cases 213, 217, 218 (1874).
NATIONAL DEFENSE MIGRATION 10093
invalid, said: "I am aware of the very general feeling prevailing in the State
against the Chinese, and in opposition to the extension of any encouragement to
their immigration hither * * * Admitting that there is ground for this feeling,
it does not justify any legislation for their exclusion * * * It follows, from the
views just expressed, that the petitioner must be discharged from further restraint
of her liberty; and it is so ordered."
Thus, case for case cited, the holdings of each can hardly be reconciled with
Counsel's contention: "Following the Miln case the Supreme Court on numerous
occasions reiterated the right of a State in the exercise of its police power to
exclude paupers from its limits." 22
True, the only case of some support to appellee's cause is the Miln case. How-
ever, that case, if not directly, was impliedly overruled by the Henderson case,
supra. This Court has never squarely passed upon the question as to whether a
State, may, in the exercise of its police power, exclude paupers from its limits.
There is, however, ample authority in the State courts to the effect that a State
may prevent persons who are lunatics, idiots, vagrants, aged, or infirm, and who
are without any visible means of support from coming within its limits.23 But,
unfortunately, in most of these cases, the decisions do not turn on whether these
persons are paupers or indigents, but rather on the question of a particular locality's
support or non-support of these people. In each of these cases, exclusion is nar-
rowly limited to those who are physically or mentally handicapped and without
some means of support; and, in no case has this doctrine been expanded to include
persons who are not imbecilic, who are not drunkards, who are not vagrants or
tramps; who are not diseased, who are not aged or infirm, nor as to persons who
have always worked, persons who are willing to work, persons who are able to
work and who are competent in every other respect, except that they are tem-
porarily without work and without funds.
Although many cases can be cited for the broad and vague doctrine of exclusion,
no single decision can be cited for the proposition that a pauper is a person who is
without funds or means of support, and no more; and, in each case all through the
ages, there has always been a traditionally close association in the application of
the term pauper with persons who are permanently disabled and without some
means of support.
The Supreme Court of Nebraska 24 defined pauper as a person who is unable
to earn a livelihood in consequence of any bodily infirmity, and who is without
means, and who is without kindred of sufficient means to support him. In
Washington,25 a poor person or pauper was held to be a person without means of
support or destitute and dependent on charity, but not necessarily one merely
without financial resources.215 And, Iowa, the only State defining the term by
statute [la. Code (1939), sec. 3828.073]. construes "poor persons" to be those
"who have no property, exempt or otherwise, and are unable, because of physical
or mental disabilities, to earn a living by labor."
Although the discussion, thus far, has been confined to the question of excluding
paupers, we have done so purposely, since Counsel for appellee significantly bases
his contention solely on that proposition, to wit: "We submit that this right of
States to protect themselves against the influx of paupers is one of the inherent
rights of a State not delegated by the Constitution or any amendment thereof." 27
Throughout all of his discussion, Counsel avoids the use of the term indigent,
even though by amendment, the State of California dropped from the earlier
enactment on this subject the terms "pauper or poor or indigent or incapacitated
or incompetent person", and has substituted for these terms the single word,
indigent.
This change gives rise to many questions. Why has the California State
Legislature amended the statute, similar in every other respect to the earlier law,
except that the controlling language pertaining to the classes of persons prohibited
22 Counsel's brief, supra, p. 6.
m Sullivan County v. Grafton County, 55 N. H. 339 (1875); The Town of Barnet v. John Ray and Henry
Walker,, 33 Vt. 205 (1860); Town of Stratford v. Sanford, 9 Conn. 275 (1832) ; Inhabitants of Palmer v. Horace P.,
Wakefield, 102 Mass. 214 (1869) ; The Inhabitants of Stur bridge v. Jonathan Winslow, 38 Mass. 83 (1838) ; State v.
Cornish, Q6 N. H. 329 (1890).
24 Muller v. Banner County, 127 Neb. 690, 256 N. W. 639 (1934).
« Spokane County v. Arvin, 169 Wash. 349, 13 Par-. (2d) 1089, 1090 (1932).
2« See also: Citizens and Southern Natl. Bank v. Cook, 182 Ga. 240, 185 S. E. 31S (1936); In re Barnes, 119 Pa.
Super. 533, 180 Atl. 718 (1935); Symes Arlington Hospital v. Town of Arlington, 292 Mass. 162, 197 N. E. 677
(1935); Brown v. Van Keuren, 340 111. 118, 172 N. E. 1 (1930); Allegheny County v. Pittsburgh, 281 Pa. 300,
127 Atl. 72 (1924); Newark Township v. Kearny, 99 Neb. 42, 155 N. W. 797 (1915); Weeks v. Mansfield, 84
Conn. 544, 80 Atl. 784 (1911); Holburn v. Pfanmillefs Admr., 114 Ky. 831, 71 S. W. 940 U903); In re Hoffen's
Estate, 70 Wis. 522. 36 N. W. 407 (1888); Walbridge v. Walbridge, 46 Vt. 617 (1874); City of Charlestown v
Inhabitants of Groveland, 81 Mass. 15 (1860); Hutchings v. Thompson, 64 Mass. 238 (1852).
27 Brief for appellee, p. 2.
10094 THE EDWARDS CASE
from being brought into the State, in the new law, is less definite and more ob-
scure? Is indigent alone to be used to describe all of the persons enumerated in
the earlier statute? Is this term to be used interchangeably with pauper and the
others? Can this term be indiscriminately applied to all persons the State may
desire to brand as "undesirables"? Thus, can California or any other State
preclude indigents from coming within its limits, for without defining so vague and
indefinite a term, the State imposes the duty and burden upon persons bringing
others into the State to determine whether persons so brought are or are not
indigent?
However, in spite of the difficulties that may arise with respect to the interpre-
tation of any of these terms, we contend that both the old and the new statutes
are equally indefinite and obscure; and, further contend that it is not now for this
Court to decide who is or is not a pauper or indigent. In fact, any further attempt
to pursue this discussion revolving around the definition of such vague and
ambiguous terms would only tend to clog and confuse the more important aspects
of the questions presented by this case to this Court for determination. Unless it
be possible to define beyond all doubt and in terms so clear as not to be subject
to controversy, varying interpretations and dispute, any course by this Court,
any other court or any legislature to stamp and stigmatize groups of persons as
falling within this or that category or "caste" would not only be dangerous but
suicidal to the principles upon which this government is founded. We are cog-
nizant and too well aware of the perils and hazards involved, even with statutes
less vague and evasive, when officials during a particularly critical or chaotic
period have embarked on "fishing expeditions" or "witch-hunts" to brand persons
and groups as "untouchables" or "undesirables".
The instant case presents only one problem and but one question to this Court
for determination. Can or cannot a person such as Mr. Duncan, who has worked
all of his life, who has always had some means of support, who is able to work, who is
willing to work, who is in search for work, but loho is now temporarily without work
and funds, be precluded by the State of Calif ornia from being brought within its limits
in search of employment!
The State of California has held Mr. Duncan to be indigent, and since under the
statute in question, the State seeks to prevent him from being brought within its
limits even though he is employable,23 and incapable, under any circumstances for
a period of 3 years, of becoming a public charge upon the State,29 we contend un-
equivocally that under such standards and by virtue of such interpretation, the
California Act is unconstitutional, and must, therefore, be declared to be null and
void. We do so for the following reasons:
Privileges and Immunities Provisions
First: the statute is in violation of the privileges and immunities clauses 30 of the
Constitution of the United States, guaranteeing that the citizens of each State shall
be entitled to all privileges and immunities of the citizens in the several States
and of the United States.
Can the proponents for this type of anti-migratory legislation contend that
States may prevent the free ingress and egress of citizens going to and from the
several States of the United States in search for business, trade, industry or
employment?
We know that the rapid and unprecedented growth and development of this
country's economy has been in no small measure due to a free and unfettered flow
of capital and labor from one part of the country to another.
Opportunities for the investment of capital and employment of labor have
prevailed during our epochal periods of expansion in different parts of the country.
At one time such opportunities prevailed in the south. During another period,
such opportuntities prevailed in the north; while during other periods, they were
in the middle-west, the south-west and far-west.
18 Mr. Duncan was employed with W. P. A. prior to his coming to California in search for other employ-
ment. Under W. P. A. provisions pertaining to employment, sec. 15 provides: "In considering employ-
ment of persons upon work projects prosecuted under the appropriations contained in this joint resolution,
the agency providing the employment shall determine whether such persons are able to perform the work
on work projects to which they can be assigned and no person shall be employed or retained for employment
on any such project whose work habits are such or work record shows thai he is incapable of performing
satisfactorily the work to which he may be assigned on the project." [54 Stat. 611, Public Resolution 88,
76th Congress, 3d Sess.]
2" To become a public charge, one must be a resident of the State. To become a resident of the State, unde
its settlement laws, one must have lived continuously in the State for a period of three years with intent to
make it his home. [Cal. Welf. and Inst. Code (Deering, 1937), sec. 2555.]
*° Art. IV, sec. 2; Fourteenth Amendment.
NATIONAL DEFENSE MIGRATION 10095
Capital and labor have invested and shared equally in the development of our
economy, because from this country's very inception, it has been the policy both of
the States and of the United States to encourage such joint ventures in business,
industry and commerce between and among the States. As labor is dependent
upon capital, and capital equally so dependent upon labor, each must be permitted
to move freely, unharassed and with the maximum amount of facility. One
cannot be encouraged and the other discouraged. We cannot say to capital:
"You may go and move as freely as you wish, whenever you wish." And, to
labor: "You must remain wherever you are, and remain for all time frozen in such
place."
Freedom to move is perhaps the most basic of human liberties. Migration of
persons and peoples has served as the background for some of the greatest his-
torical episodes of mankind. "The wanderings of our biblical fathers, the voy-
ages of Columbus, the exploits of our pioneers, the hazards faced by our colonial
ancestors, and the movement of covered wagons across trackless prairies, all attest
to the fundamental nature of human migration." 31
The available labor market cannot be frozen within the boundaries and limits
■of the forty-eight States while, at the same time, we permit capital to roam freely,
unabated and unharassed without seriously aflecting the social, economic and
political fabric of our system.32 To do so would result in the "Balkanization"
of the United States and the disintegration of these United States into forth-eight
separate and hostile social, economic and political entities, each jealously and
avariciously conniving to take for itself the benefits and advantages that may
periodically and accidentally come to the other. A nation so divided could not
long survive, and it was precisely for the purpose of eradicating the evils then
existing, and by the way still existing on the continent of Europe, that this country
was created "in order to form a more perfect union".
Thus, in order to create and perpetuate this more perfect union, the framers
of the Constitution with calm and deliberation wrote into it: "The Citizens of
each State shall be entitled to all Privileges and Immunities of Citizens in the
several States." Any other interpretation of this provision than that it insures
beyond all doubt to each of the citizens of the several States the most fundamental
right'and privilege to move about freely and easily from State to State and through
each of the other States in search of opportunity would be calamitous and catas-
trophic. That this was countenanced by the framers of the Constitution is
evidenced by Article IV of the Articles of Confederation. It reads: "The free
inhabitants of each of these States, paupers, vagabonds and fugitives from justice
excepted, shall be entitled to all the privileges and immunities of free citizens in the
several States; and the people of each State shall have free ingress and egress to and
from any other State."
This clause is unquestionably the model for Article IV, Section 2, clause 1 of
the Constitution as adopted. The clause as adopted, to be sure, is not as specific
in its inclusion of the fundamental right of free ingress and egress to and from any
of the other States of the Union, but that such was the intent of the framers of the
Constitution has never been successfully or even seriously challenged. On the
other hand strong dicta expressed in numerous decisions rendered by this and other
Courts confirm this conclusion.
"There can be but little question that the purpose of both these provisions
[Art. IV of Articles of Confederation and Art. IV, sec. 2 of the Constitution]
is the same, and that the privileges and immunities intended are the same in
each. In the article of the Confederation, we have some of these specifically
mentioned, and enough perhaps to give some general idea of the class of
civil rights meant by this phrase." 33
« Testimony of Neil H. Jacoby, Chmn. 111. Emergency Relief Commission, before House Committee
to Investigate the Interstate Migration of Destitute Citizens, Chicago Hearings, Part 3, p. 821.
33 It is interesting to note that while the State Legislature of California has reenacted the statute to prevent
migration, it failed to repeal two statutes, still in effect, for the promotion and encouragement of migration
into the State. One of the statutes provides for the creation of a fund not to exceed in the amount of ten
thousand dollars in any one year, in any one county for the purpose of encouraging immigration and increas-
ing trade in the products of the State of California [Cal. Gen. L. (Deering, 1937), act 8461, sec. 1]; the other
authorizes the board of supervisors in each county to levy a special tax to be used for "advertising, exploiting
and making known the resources of the county for the purpose of inducing immigration to, and increasing
the trade and commerce of, said county, or for exhibiting or advertising for said purposes, the agricultural,
horticultural, viticultural, mineral, industrial, commercial, climatic, educational, recreational, artistic,
musical, cultural and other resources or advantages of the county." [Cal. Pol. Code (Deering, 1937), art.
IV, sec. 4041.5]
« Slaughter-House Cases, 16 Wall. c£,75 (1872).
10096 THE EDWARDS CASE
In discussing the right of unrestricted ingress and egress in the several States,
Justice Washington in Corfield v. Coryell, 6 Fed. Cases 546, 551 (1823), said:
"The next question is, wheiher this act infringes that section of the constitution
which declares that 'the citizens of each state shall be entitled to all the privileges
and immunities of citizens in the several states?' The inquiry is, what are the
privileges and immunities of citizens in the several states? We feel no hesitation
in confining these expressions to those privileges and immunities which are, in
their nature, fundamental; which belong, of right, to the citizens of all free govern-
ments; and which have, at all times, been enjoyed by the citizens of the several
states which compose this Union, from the time of their becoming free, independ-
ent, and sovereign. What these fundamental principles are, it would perhaps
be more tedious than difficult to enumerate. They may, however, be all compre-
hended under the following general heads: Protection by the government; the
enjoyment of life and liberty, with the right to acquire and possess property of
every kind, and to pursue and obtain happiness and safety; subject nevertheless
to such restraints as the government may justly prescribe for the general good of
the whole. The right of a citizen of one state to pass through, or to reside in any
other state, for purposes of trade, agricidture, professional pursuits or otherwise;
to claim the benefit of the writ of habeas corpus; to institute and maintain actions
of any kind in the courts of the state; \o take, hold and dispose of property, either
real or personal; and an exemption from higher taxes or impositions than are paid
by the other citizens of the state; may be mentioned as some of the particular
privileges and immunities of citizens which are clearly embraced by the general
description of privileges deemed to be fundamental * * *."
Although dissenting from the majority opinion rendered in the Passenger Cases,3*
Chief Justice Taney states: "Living as we do under a common government,
charged with the great concerns of the whole Union, every citizen of the United
States, from the most remote States or Territories, is entitled to free access, not
only to the principal departments established at Washington, but also to its
judicial tribunals and public offices in every State and Territory of the Union.
And the various provisions in the Constitution of the United States — such, for
example, as the right to sue in a federal court sitting in another State, the right
to pursue and reclaim one who has escaped from service, the equal privileges and
immunities secured to citizens of other States, and the provision that vessels
bound to or from one State to another shall not be obliged to enter and clear or
pay duties — all prove that it intended to secure the freest intercourse between the
citizens of the different States. For all the great purposes for which the federal
government was formed, we are one people, with one common country. We are
all citizens of the United States; and, as members of the same community, must
have the right to pass and repass through every part of it without interruption,
as freely as in our own States. And a tax imposed by a State for entering its
territories or harbours is inconsistent with the rights which belong to the citizens
of other States as members of the Union, and with the objectives which that
Union was intended to attain. Such a power in the States could produce nothing
but discord and mutual irritation, and they very clearly do not possess it."
And in commenting upon this opinion, Justice Miller in delivering the opinion
for the Court in Crandall v. State of Nevada 35 says: "Although these remarks are
found in a dissenting opinion, they do not relate to the matter on which the
dissent was founded. They accord with the inferences which we have already
drawn from the Constitution itself, and from the decisions of this Court in exposi-
tion of that instrument."
In Paul v. Virginia,Z6 the Court in considering the operation and effect of
Article IV, sec. 2 of the Constitution said:
"It was undoubtedly the object of the clause in question to place the citizens
of each State upon the same footing with citizens of other States, so far as the
advantages resulting from citizenship in those States are concerned. It
relieves them from the disabilities of alienage in other States; it inhibits
discriminating legislation against them by other States; it gives them the
right of free ingress into other States, and egress from them; it insures to them
in other States the same freedom possessed by the citizens of those States in
the acquisition and enjoyment of property and in the pursuit of happiness;
and it secures to them in other States the equal protection of their laws. It
has been justly said that no provision in the Constitution has tended to
strnntriv to constitute the citizens of the United States one people as this.
34 7 How. 283, 492 (1849).
« 6 Wall. 35, 49 (1867).
NATIONAL DEFENSE MIGRATION 10097
"Indeed, without some provisions of the kind removing from the citizens
of each State the disabilities of alienage in the other States, and giving them
equality of privileges with citizens of those States, the Republic would have
constituted little more than a league of States; it would not have constituted
the Union which now exists."
Again, in Ward v. Maryland,7,1 the Court, upon the same subject, declared:
"Attempts will not be made to define the words 'privileges and immuni-
ties', or to specify the rights which they are intended to secure and protect,
beyond what may be necessary to the decision of the case before the court.
Beyond doubt those words are words of very comprehensive meaning, but it
will be sufficient to saj7 that the clause plainly and unmistakably secures and
protects the right of a citizen of one State to pass into any other State of the
Union for the purpose of engaging in lawful commerce, trade, or business
without molestation * * *."
In the Slaughter-House Cases,zs Justice Miller, after reciting both the provisions
of art. IV of the Articles of Confederation and art. IV, sec. 2 of the Constitution,
and after discussing Mr. Justice Washington's opinion in Corfield v. Coryell,
supra, said:
"This definition of the privileges and immunities of citizens of the States
is adopted in the main by this court in the recent case of Ward v. The State
of Maryland, supra, while it declines to undertake an authoritative definition
beyond what was necessary to that decision. The description when taken
to include others not named, but which are of the same general character,
embraces nearly every civil right for the establishment and protection of
which organized government is instituted. They are, in the language of
Judge Washington, those rights which are fundamental. Throughout his
opinion, they are spoken of as rights belonging to the individual as a citizen
of a State. They are so spoken of in the constitutional provision which he
was construing. And they have always been held to be the class of rights
which the State governments were created to establish and secure."
And, in commenting on the several decisions, Chief Justice White, in United
States v. Wheeler,*9 said:
"The controlling influence of the opinion in the Slaughter-House Cases, as
well as that of Mr. Justice Washington in Corfield v. Coryell, supra, stands
out in bolder relief when it is observed that in the latter case, following
the statement of the general principles contained in the passage quoted in
the Slaughter-House Cases, there is found, by way of illustration an enu-
meration of particular rights declared to be clearly embraced by the general
principles, one of which is described as, 'The right of a citizen of one state
to pass through or reside in any other state, for purposes of trade, agricul-
ture, professional pursuits or otherwise'."
To be sure, none of the decisions discussed can be squarely cited as authority
for the proposition that a person, such as the one in question, brought into the
State of California by appellant, cannot be precluded from coming into the
State. Nevertheless, as there are no cases or even language to the effect that a
person without funds or resources in search for employment in another State can
be precluded from coming into that State, and since this is the first case where
the issues are so clearly drawn, we feel that there is sufficient authority in the
very strong language quoted from the decisions interpreting the meaning and
intent of the "privileges and immunities" clauses to warrant a decision that the
3« 8 Wall. 16S, 180 (1868).
3' 12 Wall. 418, 430 (1870).
38 16 Wall. 36, 76 (1873).
3« 254 U. S. 281, 297 (1920). See also Truaz v. Raich, 239 U. S. 33 (1915), where the court contended that the
right of ingress and egress was guaranteed not only to citizens but alien residents as well. In Stale v. Moody,
26 Indiana, 299, 301 (1866), the court in declaring an Indiana statute, which made it unlawful for any Negro
or Mulatto to come into, settle in or become an inhabitant of the State, invalid on the basis of Corfield v.
Cornell, cited from Story on the Constitution, sec. 1806:
" 'It (the privileges and immunities clause of the Constitution) is plain and simple in its language: and
its object is not easily to be mistaken. Connected with the exclusive power of naturalization in the national
government, it puts at rest many of the difficulties which affected the construction of the article of the
confederation. It is obvious, that if the citizens of each state were to be deemed aliens from each other, they
could not take or hold real estate, or other privileges, except as other aliens. The intention of this clause
was to confer on them, if one may so say, a general citizenship; and to communicale all the privileges and
immunities which the citizens of the same state would be entitled to under like circumstances.' One of the
privileges and immunities arising from this general citizenship is the right to become a citizen of any one of
the several states, by becoming a resident thereof."
10098 THE EDWARDS CASE
State of California cannot deny migration into the State the classes of persona
which Mr. Duncan represents. To hold otherwise, would be a violation of
the fundamental right to pass freely and "to reside and work within the bounds
of the United States wherever he may choose * * *",40 a privilege and at-
tribute of State and Federal citizenship definitely guaranteed by the Constitu-
tion of the United States.
Counsel for appellee on page two of his brief contends: It certainly must be
admitted that if a State cannot constitutionally exclude paupers from its bound-
aries it cannot constitutionally prohibit persons from bringing paupers into the
State. In De Jonge v. Oregon, 299 U. S. 353 (1937), this Court points out that
it is beyond the power of a State to make a crime of assisting another in the exer-
cise of his constitutional rights. Thus, since the State of California is unable
under the privileges and immunities provisions of the Constitution to prevent
Mr. Duncan, a resident of Texas and a citizen of the United States, from com-
ing within its borders in search of employment, it is definitely beyond the power
of the State of California to hold Mr. Edwards, the appellant, in violation of the
statute in question.
Interstate Commerce Clause
Second. The next question which we submit for determination by this Court
is whether or not a State under the guise of its police power may enact such legis-
lation as will seriously burden, hinder and impede the commerce and trade
among and between the several States.
The statute in question reads: "Every person, firm or corporation * * *
that brings or assists in bringing into the State any indigent person * * *
knowing him to be an indigent person is guilty of a misdemeanor."
The statute imposes a duty on every carrier engaged in interstate commerce,
in order to escape criminal liability under it, to determine for itself whether it
has aboard the carrier persons, travelling to the State of California, who might
be deemed indigent. This, the carrier must do even though the statute fails to
define the types and classes of persons who might answer to that description.
It is well established that every criminal statute creating a new offense must be
so explicit in its terms as to inform those who are subject to penalties under it,
what conduct on their part will render them liable. A statute so vague in its terms
that men of ordinary intelligence must guess at its meaning and differ as to its
application violates every essential element of justice and fair play. A statute
that cannot be given an intelligible meaning, because of the uncertainty, indefinite-
ness and vagueness of its terms will be void and wholly inoperative.41
Nevertheless, without specific and definite standards to guide it, the carrier is
obliged to proceed with an independent investigation of its own to determine who
is indigent, or otherwise be guilty of a somewhat mysterious crime. "Under these
statutes it is not a defense that the person acted honestly and in good faith, under
a mistake of fact. He is bound to know the fact as well as the law, and he acts
at his peril. These statutes do not make a guilty knowledge one of the ingredients
of the offense. Commonwealth v. Wentworth, 118 Mass. 441; Commonwealth v.
Boynton, 2 Allen 160; Commonwealth v. Emmons, 98 Mass. 6; Commonwealth v.
Raymond, 97 Mass. 567, 568; May, Crim. Law, 3; Commonwealth v. Mash, 7
Mete. (Mass.) 472; Commonwealth v. Farren, 9 Allen 489; Commonwealth v. Nichols,
10 Allen 199; Commonwealth v. Waite, 11 Allen 264; Commonwealth v. Elwell, 2
Mete. (Mass.) 190; Commonwealth v. Thompson, 11 Allen 23; Hourigan v. Nowell,
110 Mass. 470; Barronet's Case, 1 El. and Bl. 1; Reg. v. Prince, L. R., 2 Cr. Cases
154; 21 Amer. Rep. 268, Note; Barnes v. State, 19 Conn. 397; State v. Goodenow,
65 Me. 30; State v. White, 64 N. H. 48, 5 Atl. Rep. 828." «
In order to make such determination, since the burden by statute and law is on
the carrier, each of the interstate carriers will be obliged to hire a large staff of
investigators and subject every person desiring to go to California to a detailed and
rigorous inspection about his or her health, morals, personal and financial position,
as well as to all other matters which the investigator may deem essential in making
his recommendation to the carrier.
<° From Araument bv the Hon. Charles Evans Hughes, then attorney for defendants in error, United
States v. Wheeler, 254 U. P. 281. 290 (1920).
<> Ex parte Leach, 215 Cal. 536, 12 Pac. (2d) 3 (1932); Hewit v. State Board of Medical Examiners, 148 Cal
590, 84 Pac 39 (1906); State v. Partlow, 91 N. C. 550 (1884). See also: Freund, Use of Indefinite Terms in a
Statute (1924) 24 Col. L. Rev. 193; Aieler, Legislation in Vague and General Terms (1923) 21 Mich. L. Rev.
831; Note (1931) 44 Harv. L. Rev. 1139; and Crawford, Statutory Construction (1940) p. 340.
« State v. Cornish, 66 N. H. 329, 330, 21 Atl. 180, 181 (1890).
NATIONAL DEFENSE MIGRATION 10099
In addition to this investigation on its part, the carrier on arriving at the border
will be subject to an equally rigorous inspection on the part of the "border patrol"
or some other officials (the statute, of course, makes no provision for its adminis-
tration). The carrier with its "selectees" aboard, if a steamer, will be required
to stop at some "quarantine" station along the coast; if a train, bus or touring car,
at some appropriate "port of entry" into the State; and, if an airplane, will be re-
quired to land somewhere in the fields, immediately on reaching the State line. To
complete this inspection, there will be additional delay, cost and expense, all of
which will have to be paid by the passengers or be absorbed in the tariff by the
interstate carriers. In any way that we look at it, this double investigation will in-
volve a terrific expenditure of money on the part of the carriers, and in addition
will prevent thousands of Americans whom the carrier may deem a "poor risk"
from interstate passage on a public conveyance. That this is a burden on inter-
state commerce, no one can deny.
While this is a definite obligation, both the State inspectors and the carrier's
investigators will be faced with the same indefinite burden of determining and con-
struing— who is an indigent. And, without any clear or definite standards to
guide them, what elements are they to look for and consider in making their in-
vestigation, and how under such circumstances can there be uniform enforcement?
Neither the carrier nor the State officer is fully learned in the law. Neither has
had experience in dealing with the niceties and distinctions that can be drawn from
the various and conflicting shades of meaning which may be attributed to such
vague and general terms. Yet, the carriers and passengers are left by this statute
to the mercy of a particular officer who might be assigned to patrol duty that day.
Thousands of passengers are brought to the State of California daily. Dispo-
sition will have to be made of each case. Each of the passengers will have to
appear before the officers, and as they come before the boards, the carriers will
have to submit all supporting documents and records that the persons caxried
by them are not indigent. Each board, then, according to its own standards,
will have to rule, finally, whether each passenger carried is or is not indigent.
The officials will be faced with all sorts of complex problems. Some of the pas-
sengers, the officials will determine, are clearly non-indigent; others are clearly
indigent; but their rulings in a great mass of border-line cases will of necessity
be a "hit or miss" proposition. What the basis for such ruling might be, they
do not or will not know, but rule they must.43
An individual, let us say, such as Mr. Duncan in this case, comes before an
inspector. This Mr. "X" appears to be "clean-cut", "able", "competent" and
a typical American in every respect. There is no question but that he should
be admitted, except that he is without funds, and is coming into the State in
search for employment. The officer questioning Mr. "X" is also a typical Ameri-
can. He is kind, charitable and particularly sympathetic. He feels certain that
the individual before him cannot be the type of person whom the statute in-
tends to keep out. However, before granting him permission to enter, the offi-
cer recalls reading in the papers that morning about a meeting held the night
before by a large group of idle, unemployed "radicals" for the purpose of exact-
ing higher wages and better working conditions — a riot ensued. The border of-
ficial reflects for some moments. These are exactly the people, Mr. "X's" type,
who are causing all the unrest in the State. These must be the classes of per-
sons countenanced by the statute. They are dangerous and should not be
granted permission to enter. Mr. "X" on reconsideration, is, of course, denied
permission to migrate into the State.
The statute makes no provision for hearing or appeal, and the tremendous
obligation of the carrier as to whether it has or has not complied with the pro-
visions of the statute may be left solely to the whim, caprice and discretion of
a single individual. Whether the officer's interpretation of the term indigent
will coincide with the carrier's concept of the term is problematical; if it does,
is the carrier assured that at another time another officer or even the same offi-
cer will rule similarly? In most cases, we believe that he will not, for we know
that the term "indigent" falls within the same category of broad terms such as
"fair", "reasonable", "adequate", "appropriate", "competent", "expedient",
"public good", "public welfare", etc. — all subject to varying interpretations, and
43 For a more complete discussion of administration through horder patrols, see section dealing with this
subject in the Supple-men" to this brief. In this connection it is also to be pointed out that under Califor-
nia law a defendant is liable to punishment in the State of California when a public offense commenced
without the State is consummated within its boundaries, even though the defendant was out of the State
at the time of the commission of the offense charged. Cal. Pen. Code (Deering, 1937) sec. 778. See also,
Miller, Justin, Uniform Criminal Law Administration (Spring, 1941), Montana Law Review 5, 6.
10100 THE EDWARDS CASE
open to abuse in the exercise of administrative discretion. The problems in-
volved in ascertaining the meaning of such provisions can be determined only
in terms of the effect and extent of legislative control, which in turn must re-
volve around one's basic philosophy as to the underlying objectives of regula-
tion. What belongs within the province of proper legislative regulation under
such terms may mean one thirfg to one group of men and quite another thing to
another. How far a statute such as the one in question may go in prohibiting
various persons from coming within its limits will, in large part, depend upon
what type of persons the officers, charged with the responsibilities of their in-
clusion or exclusion, desire to keep from coming into the State at any one given
time.
In a case involving administrative discretion of an immigration official, who
denied admission to a group of persons on the ground that they were "likely to
become public charges for the following, among other reasons: that they arrived
here with very little money [$40 and $25, respectively], and are bound for Port-
land, Oregon, where the reports of industrial conditions show that it would be
impossible for these aliens to obtain employment; that they have no one legally
obMgated here to assist them * * *," Mr. Justice Holmes in Gegiow v. Uhl,
239 U. S. 3, 9, 10 (1915), said:
"The single question on this record is whether an alien can be declared
likely to become a public charge on the ground that the labor market in the
city of his immediate destination is over-stocked. In the act [before the
Court] determining who would be excluded, 'Persons likely to become a
public charge' are mentioned between paupers and professional beggars, and
along with idiots, persons dangerously diseased, persons certified by the
examining surgeon to have a mental or physical defect of a nature to affect
their ability to earn a living, convicted felons, prostitutes and so forth. The
persons enumerated in short are to be excluded on the ground of permanent
personal objections accompanying tbem irrespective of local conditions
unless the one phrase before us is directed to different considerations than
any other of those with which it is associated. Presumably it is to be read
as penerically similar to the others mentioned before and after.
"The statute deals with admission to the United States * * *. It
would be an amazing claim of power if commissioners decided not to admit
aliens because the labor market of the United States was over-stocked * * *."
"We cannot suppose that so much greater a power was entrusted by
implication in the same act to every commissioner of immigration, even
though subject to appeal, or that the result was intended to be effected
in the guise of a decision that the aliers were likely to become a public charge."
And, in the instant case, it would likewise be "an amazing claim of power" if,
under the statute in question, the State of California and its officials could subject
not aliens, but citizens and interstate carriers to obligations of even more tre-
mendous and indefinite scope. The obligation which this statute imposes is not
only a definite and arbitrary interference with interstate commerce, the exclusive
jurisdiction over which was left to Congress by the Constitution, but is a practice
which in operation and effect will serve as barriers more vicious and more retalia-
tory than the "custom-barrier-controls" on the Continent. If California is
permitted to subject passengers and carriers coming from Arizona and New York
to sitch rigid regulation, there is no question but that Arizona and New York
will do likewise in retaliation. What the results of such practices may be is not
difficult to foresee — certainly, a sad commentary on — "We, the people of the
United States, in order to form a more perfect union * * *."
Sufficient data can be cited to the effect that states "may legislate to prevent
the spread of crime, and may exclude from their limits paupers, convicts, persons
likely to become a public charge, and persons afflicted with contagious or infectious
diseases." 44 This language, however, does not appear in cases dealing with
migrants, paupers, or indigents, but in cases involving the constitutionality of
statutes providing for quarantine against diseased cattle and for the exclusion of
decayed or noxious food unfit for human consumption.45 With these cases we do
not take issue, nor do we take issue with the proposition that a State may establish
and maintain adequate quarantines against persons having contagious diseases.48
44 Plumly v. Massachusetts, 155 U. S. 461, 478 (1894); Missouri K. & T. By. Co. v. Haber, 169 U. S. 613, 629
(1898).
« See Dunlap, Power of Slates to Prevent Entry of Paupers From Other States (1938) 26 Cal. L. Rev. 608;
Baldwin v. Seelig, 294 U. S. 511, 525 (1934).
48 Morgan's Steamship Co. v. Louisiana Board of Health, 118 U. S. 455 (1886).
NATIONAL DEFENSE MIGRATION 10101
Thus, any language about excluding persons "likely to become a public charge"
expressed in cases dealing with quarantines of persons and products, which at
most is but a temporary exclusion, is but of little support, if any, on the question
whether a healthy, able, competent and employable person is or is not a proper
subject of commerce. This is especially so when in most States today, even a
poor, aged or infirm person cannot by statute47 become a public charge.
The carriage of persons from one State to another is interstate commerce,
whether it is done free or for hire.48 It has even been said that the mere passage
of persons on foot across a State line is likewise interstate commerce.49
In the City of Bangor v. Smith,50 a Maine statute required a common carrier
who brought into the State any person, who did not have a settlement therein, to
remove him from the State if he fell into distress within a year, and in default
thereof to be liable for his support. The case arose out of the bringing of 56
Italians from New York City to Bangor, Maine, who afterwards fell into distress
and received poor relief. In holding the statute invalid as an unconstitutional
interference with interstate commerce by the State, the Court said:
"That the carrying of persons from a foreign country into the United States,
or from state to state is commerce within the meaning of this clause of the
constitution is too well settled to justify the citation of authorities. The
bringing of persons by common carriers, then, from another state into this
state is commerce between the states. Is the state statute which we have
quoted [the statute involved in that case] a regulation of commerce? We
think it is. In Railroad Co. v. Husen, 95 U. S. 465, the court says: 'Transpor-
tation is essential to commerce, or rather it is commerce itself and every
obstacle to it or burden laid upon it by legislative authority is a regulation.'
It is imposing an additional duty upon the carrier. It makes the commerce
more burdensome to the carrier; for after a person is landed in the state, it
imposes upon the carrier the responsibility for his pecuniary condition for a
year * * *"
«* * * it> is unnecessary to discuss the effect of this statute further.
Its provisions are too broad and sweeping to be considered within the power
of .the state. It is the exercise of a power granted solely to the United States,
which the state cannot exercise * * *." 81
"It is said by counsel that it is aimed against pauperism and may be
sustained as valid as to persons who are paupers when brought into the state.
Its terms are general. It cannot be divided and held to be valid as to one
class of persons and invalid as to the others." 82
47 Under these laws enacted by some forty states, a person in order to obtain public relief or aid from a
state must be a resident of that state for a period of time ranging from six months to five years with the
intention of becoming a resident of that state. For a typical Settlement Law, see, infra., p. 66. These
laws are based on the Old English Poor Laws enacted in the reign of Elizabeth. These were "the culmina-
tion of successive efforts made over a period of several centuries to deal with the dependency attendant
upon the break-up of the feudal system and the consequent growth of towns and cities. People who for
centuries had been bound to the land in serfdom were gradually released in increasing numbers. In their
search for employment as wage earners many became wanderers unwelcome by any community. As
early as 1351 the Statute of Labourers attempted to curtail their movement by requiring tl en lo work
at whatever was offered, on penalty of imprisonment. In the sixteenth century, during the reign of Henry
VIII, the parishes were charged with responsibility for pvoviding needed assistance to locally-born persons
and those who had resided in the parish for three years. This and other related provisions were incorporated
in the famous Elizabethan code of the early seventeenth century.
"As a result of this fixing of local responsibility, cruel measures were adopted in an attempt to force people
to 'stay put' or to move on once they had left the parish to which they 'belonged'. Scores of thousands of
poor folk were taken into custody annually and transported from one part of the kingdom to another unless
they could put up sufficient security to insure their not becoming public charges. The custom of 'passing
on', or of removing persons without authorization from one parish to another was commonly practiced,
the sick, insane and penniless often being dropped in the next town in the middle of the night. Even workers
who had secured employment were not immune from forced removal to the place of their settlement; and
very often when their settlement was a matter of dispute whole families were removed back and forth
several times between parishes. There were thousands of law-suits between the parishes and millions of
pounds were spent for litigation and removals.' " Hirsch, Harry M., Our Settlement Laws, p. 6. Cf.
Adams County v. Burleigh County. 69 N. D. 780, 291 N. W. 281 (1940).
<s Gibbons v. Ogden, 9 Wheat. 1 (1824); Caminetti v. United States, 242 U. S. 470 (1917); United States v.
Burch, 226 Fed. 974 (1915); see also Oooch v. United States, 297 U. S. 124 (1936); Bailey v. United States, 74
Fed. (2d) 451 (1934). See hearings before the Select Committee Investigating National Defense Migration,
House of Representatives, 77th Cong., 1st Sess., Part II, p. 4811 et seq. Arising out of such investigation,
note newspaper item in Washington Times-Herald, dated Tuesday, Sept. 16, 1941: "Toledo, Ohio, Sept. 16,
(C. T. P. S.). — Federal Judge Frank L. Kloeb today fined the Great Lakes Sugar Growers Employment
Committee $2,000 and costs after it entered a plea of nolo contendre on the charge of transporting laborers
from Mexico in May, 1939 and October, 1940 to Toledo in interstate commerce without proper permits.
The laborers were brought to the Toledo sugar beet fields. Julio de la Pena, Toledo, driver of the bus used
to transport the laborers, was fined $1,000 and costs."
" Covington Bridge Company v. Kentucky, 154 U. S. 204, 218 (1894).
" 83 Me. 422, 424, 22 Atl. 379 (1891).
« Ibid, p. 426.
« Id.
10102 THE EDWARDS CASE
In declaring invalid a California statute providing for the giving of bond and
paying of fees by the owners of steamships bringing passengers into the State,
Ju^ice Miller said:53
"The passage of laws which concern the admission of citizens and subjects
of foreign nations to our shores belongs to Congress, and not to the States.
It [the Congress] has the power to 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. If it be
otherwise, a single State can, at her pleasure, embroil us in disastrous quarries
with other nations."
And, in declaring a somewhat similar New York statute invalid as being incon-
sistent with the commerce clause of the Constitution, Justice Miller, again
delivering the opinion for the Court, said:54
•* * *, the provisions of the Constitution of the United States, on
which the principal reliance is placed to make void the statute of New York,
is that which gives to Congress the power 'to regulate commerce with foreign
nations.' As was said in United States v. Holliday, 3 Wall. 417, 'commerce
with foreign nations means commerce between citizens of the United States
and citizens or subjects of foreign governments.' It means trade, and it
means intercourse. It means commercial intercourse between nations, and
parts of nations, in all its branches. It includes navigation, as the principal
means by which foreign intercourse is effected. To regulate this trade and
intercourse is to prescribe the rules by which it shall be conducted. The
mind,' says the great Chief Justice, 'can scarcely conceive a system for
regulating commerce between nations which shall exclude all laws concerning
navigation, which shall be silent on the admission of the vessels of one nation
info the ports of another'; and he might have added, with equal force, which
prescribed no terms for the admission of their cargo or their passengers.
Gibbons v. Ogden, 9 Wheat. 190."
True, both the Chy Lung and Henderson cases deal with two State statutes
which impose definite obligations on persons engaged in foreign commerce bringing
immigrants to these shores. In both cases, the burdens were held to be contra
to the powers delegated to Congress to regulate foreign commerce. To Congress,
however, has also been delegated the power to regulate the commerce between
the States, and therefore cannot the same principles as expressed in the above
cases be applied to any burden, however small, which a State may impose on that
commerce? It if be otherwise, cannot a single State, at her pleasure, embroil
each of the other States of this country in disastrous quarrels with each other
in the same manner as the legislation in the Chy Lung case, supra, was directed
at foreign commerce?
Also, if in the case of foreign commerce, Congress is charged with the responsi-
bility for the character of the regulations concerning that commerce, and for the
manner of their execution, so must Congress be equally charged with respect to
interstate commerce.
The transportation of a passenger from Liverpool to New York is one single
voyage. So is the transportation of a passenger, let us say, from New York,
Chicago, St. Louis, or Salt Lake City to the State of California. The passage
of the passenger in the first instance is not complete until he is landed in New
York, and in the second case, not until he is permitted to land at his point of
destination in the State of California. Thus, a "law or rule emanating from
any lawful authority, which prescribes terms of conditions on which alone the
vessel can discharge its passengers, is a regulation of commerce; and, in case of
vessels and passengers coming from foreign ports, is a regulation of commerce
with foreign nations," 55 so, in the case of railroads, busses, airplanes, steamers
and touring cars coming from other States of the Union it is a regulation of com-
merce, between and among the States.
Whether a law or regulation affects either interstate or foreign commerce is
not the controlling factor. The importance of any such regulation lies in the
fact that commerce of the type within the exclusive jurisdiction of Congress is
being affected. However difficult this may be to determine, "it is clear from the
nature of our complex form of government, that, whenever the statute of a State
invades the domain of legislation which belongs exclusively to the Congress of the
» Chy Lvtiq v. Freeman, et al., 92 U. S. 275, 280 (1875).
«< Henderson et al. v. Mayor of New York et al., 92 U. S. 259, 270 (1875).
»« Ibid. p. 271.
NATIONAL DEFENSE MIGRATION 10103
United States, it is void, no matter under what class of powers it may fall or how closely
allied to powers conceded to belong to the States."56
It might be argued that the burden imposed upon the commerce in the instant
■case is more speculative and less direct than in the above two cases, and therefore
is not such an interference prohibited to the States by the Constitution. While
it cannot be denied that a tax of one and one-half dollars for each immigrant
landed is definitely a specific and direct obligation, we do contend that in whatever
language a statute may be framed, its purpose must be determined by its natural
and reasonable effect; and it is apparent that the obligation of the California
statute, although indefinite and indirect, is in effect an imposition much more
onerous and oppressive. The fact that the carrier is burdened with a costly
and laborious dual inspection and investigation and the fact that thousands of
Americans will be denied interstate passage on public carriers is in fact a tax
not only on every alien and immigrant, but on every citizen of the United States
desiring to go by carrier to the State of California.
In addition to this burden and expense, it might also be asked, what will become
of the persons brought by the carrier to the State line who are refused admission.
Does the State of California or any other State purport to establish a "no-man's
land" or a concentration camp within its boundaries for all such undesirables, will
the State of California or any other State "dump" these "undesirables" within the
boundaries of the bordering sister-states,57 or will the carrier in order to escape
criminal liability be obliged to carry them back to the place of embarkation free
of charge? We know of the liability that steamers assume in bringing undesir-
able persons to our shores. We know of their detention when not being permitted
to land, and the obligation upon the steamers to bring such passengers back from
whence they came free of charge. Will, under the statute in question, a similar
■obligation be imposed upon the carrier engaged in interstate commerce?
It might finally be advanced as in the Henderson case, supra, "that under the
•decisions of this Court, there is a kind of neutral ground, especially in that covered
by the regulation of commerce, which may be occupied by the State, and its legis-
lation be valid so long as it interferes with no act of Congress or treaty of the
United States. Such a proposition is supported by the opinions of several of the
judges in the Passenger Cases; by the decisions of this court in Cooly v. The Board
of Wardens, 12 How. 299; and by the cases of Crandall v. Nevada, 6 Wall. 35;
and Oilman v. Philadelphia, 3 Wall. 713." But, as to this, Justice Miller says:68
"this doctrine has always been controverted in this Court and has seldom, if ever,
been stated without dissent. These decisions however, all agree, that under the
commerce clause of the Constitution, or within its compass, there are powers,
which, from their nature, are exclusive in Congress; and in the case of Cooly v.
The Board of Wardens, it was said, that 'Whatever subjects of this power are in
their nature national, or admit of one uniform system or plan of regulation, may
justly be said to be of such a nature as to require exclusive legislation by Con-
gress.)"
A regulation which imposes onerous, perhaps impossible conditions on those
engaged in commerce, whether foreign or interstate, must of necessity be national
in its character- — they should be and ought to be the subject of a uniform system
or plan. Should this Court hold that the statute in question is not in violation
of the commerce clause, New York, Illinois, Arizona, Nevada and every other
State of the Union would be obliged to impose equally rigorous limitations in
retaliation. To avoid any such discord and rupture in the relation of the States
to each other, it is apparent, therefore, "that, if there be a class of laws which
may be valid when passed by the States until the same ground is occupied by a
treaty or an act of Congress, this statute is not of that class." 59
The question of interstate migration is not for each State to regulate individu-
ally and without regard to the regulations enacted by the other States. It is not
a problem which each State in intercourse with all others can settle for itself with-
out interfering with the power over interstate commerce delegated to the Congress
•of the United States. And again, in the words of Justice Miller:
"We are of opinion that this whole subject has been confided to Congress by
the Constitution; that Congress can more appropriately and with more accept-
ance exercise it than any other body known to our law, * * *" and that by
making provision for such a system of laws in those matters, to apply alike and
w Ibid. p. 272.
*7 See facts in Adams County v. Burleigh County, 69 N. D. 780, 291 N. W. 281 (1940).
«• Henderson et al. v.- Mayor of N. Y. et al., 92 U. S. 259, 272 (1875).
'«• Ibid, p. 273.
10104 THE EDWARDS CASE
with equal force to persons desiring to migrate from one State to another or to
any part of the Union, where opportunities for employment may be available,
"which has long been a problem of contest and complaint, may be effectually
and satisfactorily settled." 60
Equal Protection of the Laws
Third: It might be argued by the State of California that it was not the inten-
tion of its legislature to burden and interfere with interstate commerce to the
extent described. But no matter how little or how great the burden, the intent and
purpose of a statute must be determined by its natural and reasonable effect. The
statute in no uncertain terms obligates and imposes the duty on every "person,
firm or corporation" bringing indigents into the State, "knowing them to be
indigents". There can be no question that the enactment must apply not only to
trucks, trailers and automobiles but must apply with equal force to steamers,
trains, busses and airplanes.
The State may argue further that a presumption operates in favor of the
steamship, rail, bus or airplane companies, but not in favor of persons operating
broken-down trucks and automobiles; that persons travelling to California by
steamer, rail, bus or air, who can afford to pay for such means of transportation,
are not indigent; and that persons travelling with others in automobiles and trucks
are indigent.
For the sake of argument, there might be some basis for this contention and
classification, if only the statute contained some standard or guide as to its appli-
cation. But, under the circumstances, is it the State's contention that the sole
consideration for the interpretation of this statute is whether a person is or is not
able to pay for his transportation? If so, this statute must fall for want of the
eoual protection of the laws; for by this standard, a person who is competent,
able and willing to work and who can afford to pay for his transportation on a public
carrier, whatever the sum may be, is not an indigent: while, the person who is com-
petent, able and willing to work and who cannot afford to pay for his transportation
is an indigent. Thus, firms and corporations owning steamship, railroad, airplane,
and bus lines would not be held liable under the statute; while car owners bringing
either a mother, father, aunt, uncle, cousin or in-laws would be held liable for
bringing indigents into the State, even though the statute clearly speaks not in
terms of a poor person bringing indigents into the State, but in terms of "any
person, firm or corporation" bringing indigents into the State.
In either case, the statute must fall, since it fails to come within the limitations
imposed upon the States by the fourteenth amendment, which "undoubtedly
intended not only that there should be no arbitrary deprivation of life or liberty, or
arbitrary spoliation of property, but that equal protection and security should be
given to all under like circumstances in the enjoyment of their personal and civil
rights; that all persons should be equally entitled to pursue their happiness and
acquire and enjoy property; that they should have like access to the courts of the
country for trie protection of their persons and property, the prevention and
redressof wrongs, and the enforcement of contracts; that no impediment should be
interposed to the pursuits of anyone except as applied to the same pursuits by
others under like circumstances; that no greater burdens should be laid upon one
than are laid upon others in the same calling and condition, and that in the admin-
istration of criminal justice no different or higher punishment should be imposed
upon one than such as is prescribed to all for like offenses." 61
By such test, it cannot, therefore, be contended that a person carrying a certain
class of passengers into the State by touring car may be criminally liable, while the
firm or corporation carrying the same class of passengers destined for California
cannot be criminally liable, expecially since the statute imposes an equal obligation
on "every person, firm or corporation".
Thus, whatever be the construction placed by the State as to the application
of the statute, it fails to meet the equal protection of the laws, if it applies to
touring cars and trucks, and not to busses, trains, steamers and airplanes; and,
if it is the State's contention that the statute applies equally to all interstate
carriers, there is then such a burden on interstate commerce as to be in conflict
with the interstate commerce provisions of the Constitution.
It might further be argued that even though there be no discrimination between
carriers in violation of the equal protection of the laws, there is such violation,
since by the broad and sweeping discretionary powers vested by the statute in
•« Ibid. p. 274.
« Barbier v. Connolly, 113 U. S. 27, 31 (1885).
NATIONAL DEFENSE MIGRATION 10105
question in some official to determine who is or is not indigent, thousands of
Americans will be unconstitutionally denied the privilege of looking for employ-
ment; and, through no fault of their own, they will be prevented from using for
such purpose not only interstate public crariers, but the roads and highways
which they as citizens" of the United States helped to build and maintain; those
with money, of course, being permitted to use the carriers and highways as freely
as they may desire.
In this case, as in Truax v. Raich,62 the State may seek to justify such exclusion
as an exercise of the power of the State to make reasonable classifications to
protect the health, safety, morals and welfare of those within its jurisdiction.
But as in the Truax case, "this admitted authority, with the broad range of
legislative discretion that it implies, does not go so far as to make it possible for
the State to deny to lawful inhabitants, because of their race or nationality [or
lack of funds], the ordinary means of earning a livelihood. It requires no argu-
ment 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 opportunity
that it was the purpose of the Amendment to secure. Butchers' Union v. Crescent
City Co., Ill U. S. 746, 762; Barbier v. Connolly, 113 U. S. 27, 31; Yick Wo v.
Hopkins, 118 U. S. 356, 369; Allgeyer v. Louisiana, 165 U. S. 578, 589, 590;
Coppage v. Kansas, 236 U. S. 1, 14. If this could be refused solely upon the
ground of race or nationality [or the lack of funds], the prohibition of the denial
to any person of the equal protection of the laws would be a barren form of words."
And, in interpreting the provisions of an earlier California statute, dealing
with the exclusion of certain foreigners, Mr. Justice Field said: 63
"A statute thus sweeping in its terms, confounding by general designation
persons widely variant in character, is not entitled to any very high com-
mendation. If it can be sustained as the exercise of the police power of the
state as to any persons brought within any of the classes designated, it must
be sustained as to all the persons of such class. That is to say, if it can be
sustained when applied to the infirm who is poor and dependent, when unac-
companied by his relatives, able and willing to support him, it must be
sustained when applied to the infirm who is surrounded by wealth and its
attendants, if he is thus unaccompanied. If it can be sustained when
applied to a woman whose debauchery consists in the prostitution of her
person, it must be sustained when applied to a woman whose debauchery
consists in her intemperance in food and drink; and even when applied to
the repentant Magdalen who has once yielded to temptation and lost her
virtue. The commissioner of immigration is not empowered to make any
distinction between persons of the same class; and there is nothing on the
face of the act which indicates that the legislature intended that any distinc-
tion should be made."
«* * * The doctrine now asserted by counsel for the commissioner of
immigration, if maintained, would certainly be invoked, and at no distant
day, when other parties, besides low and despised Chinese women, are the
subjects of its application, and would then be seen to be a grevious departure
from principle." 64
And, as to another California enactment, involving not exclusion, but dis-
crimination as to certain classes of persons through the exercise of unlimited
discretion in the issuance of permits, Mr. Justice Matthews, in delivering the
opinion of the Court, said: 65
"We are consequently constrained, at the outset, to differ from the Supreme
Court of California upon the real meaning of the ordinances in question.
* * * They seem intended to confer, and actually do confer not a dis-
cretion to be exercised upon a consideration of the circumstances of each
case, but a naked and arbitrary power to give or withhold consent, not only
as to places but as to persons. So that, if an applicant for such consent,
being in every way a competent and qualified person, and having complied
with every reasonable condition demanded by any public interest, should,
failing to "obtain the requisite consent of the supervisors to the prosecution
of his business, apply for redress by the judicial process of mandamus, to
require the supervisors to consider and act upon his case, it would be a suffi-
cient answer for them to say that the law had conferred upon them authority
«2 239 U. S.33 (1915).
«3 In re Ah Fong, 1 Fed. Cases, 213, 216 (1874).
M Ibid, p. 217.
« Yick Wo v. Hopkins, 118 U. S. 356, 366, 367 (1885).
60396—42 — pt. 26 10
10106 THE EDWARDS CASE
to withhold their assent, without reason and without responsibility. The
power given to them is not confided to their discretion in the legal sense of
that term, but it is granted to their mere will. It is purely arbitrary and
acknowledges neither guidance nor restraint, i
"This conclusion and the reasoning on which it is based, are deductions
from the face of the ordinance as to its necessary tendency and ultimate
actual operation. In the present cases were are not obliged to reason from
the probable to the actual, and pass upon the validity of the ordinances
complained of, as tried merely by the opportunities which their terms afford,
of unequal and unjust discrimination in their administration. For the cases
present the ordinances in actual operation, and the facts shown establish
an administration directed so exclusively against a particular class of persons
as to warrant and require the conclusion, that, whatever may have been
the intent of the ordinances as adopted, they are applied by the public
authorities charged with their administration, and thus representing the State
itself, with a mind so unequal and oppressive as to amount to a practical
denial by the State of that equal protection of the laws which is secured
to the petitioners, as to all other persons by the broad and benign provisions
of the fourteenth amendment to the Constitution of the United States." 69
Though the statute in the instant case be fair on its face and impartial in
appearance, because it applies to "every person, firm and corporation", and
applies alike to every person desiring to settle in the State of California, it must
be held to be invalid within the meaning of the fourteenth amendment to the
Constitution, if it is to be applied and administered "by public authority with an
evil eye and an unequal hand, so as practically to make unjust and illegal dis-
criminations between persons in similar circumstances. * * * This principle
of interpretation has been sustained by this Court in Henderson v. Mavor of
New York, 92 U. S. 259; Chy Lung v. Freeman, 92 U. S. 275; Ex-parte, Virginia,
100 U. S. 339; Neal v. Delaware, 103 U. S. 370; and Soon Hing v. Crowley, 133
U. S. 703." 67
That the person coming by automobile to the State of California to look for
employment is similarly situated to the person coming by train or airplane,
cannot be denied. That in one case, one may have a five dollar bill in his pos-
session, and in the other case a one hundred dollar bill, is not sufficient justifica-
tion to rule that the fourteenth amendment was intended as protection only to
those with the one hundred dollar bills or to those owning railroads, aeroplanes,
or busses and not to those who own trucks, cars or horses. The liberties, rights
and privileges guaranteed by the "equal protection of the laws" cannot be con-
strued to depend for its interpretation on poverty or wealth, as the case may be.
A statute to meet the requirements of the constitutional provision must operate
alike upon all persons and upon all property under the same circumstances and
conditions.
Conclusion
To conclude, let us first make clear that we have no more objection to the
California Statute in the instant case than with the similar statutes in the twenty
seven other States, for if the California statute is held unconstitutional, the other
statutes must likewise fall. And they must fall for this case is concerned with
millions of persons, who through no fault of their own, are in search of employment
and new opportunities — the opportunity of being able once again to provide for
themselves and their families. These people in the instant case are not vagrants,
"bums" or tramps unwilling to toil and sweat with their brain and brawn. In
such chaotic and critical days as these, they are asking for little enough in this
land of plenty. Have they not been sufficiently plagued? A're they as citizens
of the United States, who would if need be give their very lives for the protection
and safety of these shores, to be further disgraced, harassed and humiliated be-
cause they are seeking employment, and want the right to some economic freedom?
Or, as it is intended by such laws, are they to be doomed to a life of slavery and
misery?
We know of the difficulties involved in earning a livelihood under normal con-
ditions. It is difficult enough, and what with the limitations imposed by the
«» Ibid. p. 373.
*" Ibid. pp. 373, 374.
NATIONAL DEFENSE MIGRATION 10107
States on the right of an individual to engage in an occupation of its own choosing,68
can the States now prevent individuals, altogether, from coming into the State to
earn a livelihood? The question is far too serious. The problem is not for Cali-
fornia, Colorado, Florida, or any other State, alone, to decide. We, as citizens
of the United States all have a stake in what the various States of the Union purport
to do. These States cannot be permitted to say that one from New York, Illinois,
or Missouri cannot come within their limits to look for employment. Should this
statute be upheld the twenty States in addition to the twenty-eight already having
such legislation would each be permitted to set up all sorts of barriers against the
residents of the others.
Is this country to grow and develop as a single and united nation, or are each
of us to be confined within the limits of forty-eight separate entities? The results
arising through the suspicions, jealousies, the scheming and coniving of one
country against the other on the continent of Europe needs no emphasis. Are
we in this country also going to impose limitations equally as rigorous on progress
expansion and development? Our economy is a national one. It cannot be
peimitted to disintegrate into an economy of forty-eight small separate units
each warring upon and retaliating against the other.
Much has been written about the question of human migration in terms of a
post-depression and pre-defense problem. Human migration is now seriously
affecting our national defense program, and during the post-war period of re-
adjustment, the problem of interstate migration will be of even greater magnitude.
According to expert testimony presented before the House Committee In-
vestigating National Defense Migration, it was estimated that some two million
persons have left their home States for defense centers. Many millions more will
be required to do likewise before the national emergency terminates. Can anyone
visualize the implications arising out of the situation when during the period of
reconstruction this country gears itself from a war to a peace economy? The
millions employed in defense will take to the roads. These people, as capital
itself, will be in search of new industries and new opportunities. Its impact on
our economy will be as dangerous a situation as any anticipated attack by foreign
powers. With settlements gained and lost,19 will each State, individually, during
such a period, be permitted to regulate this flow of huamn cargo across State lines?
There is no question but that this nation, without regard to State lines, must
now prepare for national defense. Attack from abroad is surely not a problem
for a single State to cope with but is a problem for the whole of the United States.
We, all of us together, must do everything within our power to make these, our
shores, irr pregnable against attack. And, it is equally imperative that this nation,
as a whole, without regard to State lines, must deal similarly with the problem of
human migration. No single State or group of States, collectively or singly, can
prevent four million persons, all good American citizens, from becoming Stateless,
homeless and "without a country," or resting-place while moving from State to
State as a result of circumstances over which they have no control.
The repercussions of such a situation are so closely connected with our national
unity, safety, welfare and security that it cannot of necessity be a State question,
alone. It is one for the nation as a whole to determine.
It may be argued, since this question is one of such imminent national impor-
tance that it is a legislative and not a judicial question; that it is the court's func-
tion only to interpret the laws and not pass upon the wisdom of policy funda-
mental in the law; and, therefore, that if the emergency is of such proportions, it
is for the Congress and not the Supreme Court of the United States to act. To
this, we can only say that millions of words have been written about the separa-
tions of powers, and we are no nearer its solution. To argue for one point of
view rather than the other, in light of all the decisions, is nothing but an expres-
sion of one's likes or dislikes. And, this is no time to indulge in such rhetoric or
semantics — the lives of millions are at stake.
The constitutionality of the statute in question is before the court. In effect,
if upheld, it will deny to the people of the United States the most fundamental
right of free "ingress and egress" in search for opportunity. The government is
88 Such as the New York law requiring applicants for licenses as master plumbers to have at least three
years of experience in the plumbing industry together with a technical degree in engineering from a college
or universtiy approved by the Regents of the University of the State of New York. N. Y. Laws (1936),
c. 610. See Benedetto v. Kern, 167 Misc. 831, 837, 4 N. Y. S. (2d) 844, 850 (1938), aff'd by Mem. Dec. 255, App.
Div. 753, 7 N. Y. S. (2d) 227 (1938). See also Silverman, Bennett, Lechliter, Control by Licensing Over Entry
into the Market. (Spring, 1940), 8 Law and Contemporary Problems 239.
•» For an analysis of the State statutes providing for the loss of settlement, see Chart II, infra, pp. 58-63.
For text of Statutes pertaining to the loss of settlement, see Supplement to this brief.
10108 THE EDWARDS CASE
only as strong as its weakest link, and if we have not as yet learned, we should
learn now that these sacred rights cannot be toyed with. The people involved
are real. They are not pawns in the hands of State governments; they do not
want to be involved in a system of being required to carry passports and badges,
or to obtain visas and await quotas in migrating from State to State. They are
earnest and determined. They do not want to go back to feudal times — to be
"pushed around" from city to city, county to county and State to State. They
want to be a part of the whole United States and share both in its opportunities
and obligations.
Only one case need be cited of the misery that these laws are causing to untold
millions. In the words of one of the State judges: 70
"It is difficult for the writer of this opinion to pass calmly and dispassion-
ately upon the facts in this case and the law governing the same. One would
fain suppress much of the evidence but necessary facts must be set forth.
To the credit of the government of this country and the general attitude of
our people toward the poor and unfortunate, it may well be said few records
show any such callousness toward human beings as this controversy between
South Dakota and North Dakota discloses. The case is an illustration of the
extent to which 'man's inhumanity to man' may be carried. Human beings
are shifted around like so much cargo. Somewhere and somehow the well
springs of humanity and brotherhood appeared to be dried up. Sick and
impoverished creatures against whom there is no indication of crime, laziness,
or willfulness, have no place to lay their weary heads, except such as the
generosity of Adams county gives them as a mere subsistence in a situation
not of its own making, and for which it is not responsible. The callous
indifference of South Dakota seems scarcely credible in this age."
To allow this condition to exist in the last stronghold of democracy is indeed
a sad commentary on our way of life. Migration will not stand still, because
laws tell it that it must. Industry, business, employment and opportunity do
not want to be frozen. In all the investigations made by the House Committee
Investigating National Defense Migration, it has not found a single person who
would not have remained at home if only there had been some means for even a
mere subsistence. Each of them was compelled to leave home out of sheer
desperation. And. if not aided by their government, to whom and to what
government should they plead for assistance? These are our people. They are
like us and are our very own. Losing their farms, their livestock, their machinery
and every other means of earning a livelihood, they took to the road as the Joads
did. Doing so, they did not change morally, physically or spiritually. And. as
Americans they have the right to refuse to starve while standing still. They
cannot stand still. And, each State of the Union cannot be permitted to impose
divers obligations to prevent them from migrating in search of employment.
Poverty cannot be declared to be a crime in this country, and we cannot afford
to place the "dollar-sign" on each of the borders of the sisterhood of States. We
must face the stark reality of the situation. It is an ominous one, but we must,
act wisely, carefully and cautiously. It is not yet too late. We cannot and
must not tolerate such conditions to exist. We must hold sacred the liberties so
zealously cherished and guaranteed to all of these people by the Constitution of
the United States. This statute must be declared invalid as in violation of the
most fundamental liberties guaranteed by that instrument. "This Union cannot
permanently endure half slave and half free."
Thus, the judgment appealed from should be reversed and the complaint
dismissed.
Respectfully submitted,
John H. Tolan,
As Amicus Curiae.
Irwin W. Silverman,
Washington, D. C.
Of Counsel.
Appendix.*
♦Counsel is very much indebted to Mr. Thomas J. Winston, Jr. for his assistance
in the compilation and analysis of the state and anti-migratory statutes.
»° Adams County v. Burleigh County, 69 N. D. 780, 291 N. W. 281, 283 (1940).
NATIONAL DEFENSE MIGRATION
10109
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THE EDWARDS CASE
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NATIONAL DEFENSE MIGRATION
10113
Chart No. 2. — Comparative Analysis of State statutes J concerning settlement laws
and provisions for interstate cooperation
Settlement
Citations to State statutes
(1)
Requirements for
State, local relief 2
(2)
Loss of 3
(3)
Relief-lack of
Settlement 4
(4)
Provision
for
Interstate
Coopera-
tion »
(5)
Alabama: Code (1940) tit. 44, sec. 5...
California:
Welfare & Institutions Code
(Deering, 1937) sec. 2555.
Id
Colorado: Stats. Ann. (1935) sec. 16..
Connecticut:
Rev. Stats. (1930) sec. 1685
Rev. Stats. (Supp. 1935) sec. 663c.
Ibid., sec. 667c _._
Florida: Comp. Gen. Laws (Supp.
1936) sec. 2276 (5).
Illinois: Stats. Ann. (Smith-Hurd,
Supp. 1940) c. 107, sec. 17.
Indiana:
Stats. Ann. (Burns, Supp. 1940)
sec. 52-147d.
Ibid., sec. 52-147f
Ibid., sec. 52-156
Iowa: Code (1939) sec. 3828.088
Stats. Ann. (Corrick, Supp. 1939)
sec. 39-305 (4).
Ibid., sec. 39-101
Six months...
Three years •_
One year...
Four years .
Absence, one year.
Prov. for.
Prov. for.
Two years. .
Three years .
Three years.
Absence, one year.
Prov. for.
Ibid., sec. 39-305 (7).
One year
Local relief, five
years.
State relief, one
year.
Ibid., sec. 39-101...
Ibid., sec. 39-716.
Maine:
Rev. Stats. (1930) c. 33, sec. 1-iv.
Ibid., sec. 3
Local, absence one
year.
State, six months. .
Five years.
Laws (1933) c. 188, sec. 1. ......
Massachusetts:
Laws Ann. (1933) c. 116, sec. 1.
Id
Absence, five
years.
Prov. for.
Prov. for.
Five years .
Laws. Ann. (Supp. 1940) c. 117,
sec. 17, 18.
Michigan:
Stats. Ann. (1940) sec. 16.445
Absence, five
years.
Prov. for
Ibid., sec. 16.168.
Ibid., sec. 16.413.
Minnesota:
Stats. (Mason's, 1927) sec. 3161..
Id
Mississippi:
Code Ann. (1930), sec. 5703
Ibid., sec. 5708
Nebraska:
Comp. Stats. (Supp. 1939) sec.
68-115).
Id
Nevada:
Comp. Laws (Hillyer, Supp.
1938) sec. 5143.
Ibid., sec. 5151.03(6)
New Hampshire:
Laws (1933), c. 142, sec. 1
Ibid., sec. 2
State relief,
year.
Local relief,
year.
Prov. for.
Two years .
Absence, one year.
Six months.
Prov. for..
One year.
Absence, one year.
Three years .
Prov. for.
Five years.
Laws (1937), c. 202, sec. 6-ix_
Absence five
years.
Prov. for.
1 For text of typical settlement law, see p. 66, infra.
2 Residence requirements for local and state relief.
3 Provision for loss of settlement.
• Provisions for temporary relief to persons without settlement.
• Provision for cooperation between states for transfer and removal of persons having no settlement.
For text of typical statute see p. 67, infra.
• The California State Relief Appropriation Act of 1940 makes provision for a settlement period of five
years. It is questionable whether the provision may be invoked without reenactment in subsequent appro-
priations. See Cal. Laws (1940) (First Extraordinary Sess.) C. 45, Sec. 10.
10114
THE EDWARDS CASE
Chart No. 2. — Comparative analysis of State statutes concerning settlement laws
and provisions for interstate cooperation — Continued
Settlement
Citations to State statutes
(1)
Requirements for
State, local relief
(2)
Loss of
(3)
Relief-lack of
Settlement
(4)
Provision
for
Interstate
Coopera-
tion
(5)
New Jersey:
Stats. Ann. (1940) tit. 44, c. 1,
sec. 102.
Stats. Ann. (Supp. 1941) tit. 44,
c. 8, sec. 42.
Ibid., sec. 54
Ibid., sec. 35
New York:
Cons. Laws Ann. (McKinney's,
1930) sec. 53.
Ibid., sees. 18 (1-a) 18 (1-c), 65 „
Ibid. (Supp. 1940) sec. 157
Rhode Island:
Gen. Laws Ann. (1938) c. 68, sec.
1(7).
Id
Local relief, five
years.
State relief, one
year.
Local absence, one
year.
State, absence one
year.
Prov. for.
One year.
Prov. for.
Prov. for.
Prov. for.
Five years.
South Dakota:
Rev. Code (1939) sec. 50.0102 (4).
Ibid., sec. 50.0102 (6)
Absence, five
years.
One year.
Ibid., sec. 50.0103
Vermont:
Public Laws (1933) tit. 15, sec.
3923.
Ibid., sec. 3954
West Virginia:
Code Ann. (1937) sec. 626(90), (4).
Wisconsin:
Stats. (Brossard, 1939) sec. 49.02,
(4).
Ibid., 49.02 (7)
Ibid., sec. 49.04..
Ibid., sec. 49.026
Wyoming: Laws (1937), c. 88, sec. 37.
Absence, thirty
days.
Prov. for.
One year.
One year.
One year.
Absence, one year.
Prov. for.
One year.
Prov. for.
Prov. for.
TYPICAL STATE ANTI-MIGRATORY LAW
New Hampshire Public Laws {1926) c. 107
Sec. 14. Bringing Into State: Penalty. If any person shall bring into this
State and leave, or shall so bring with intent to leave, any poor and indigent
person having no settlement in the State and no visible means of support, know-
ing such person to be poor and indigent, as aforesaid, or shall hire or procure
such person to be so brought, or shall aid or assist therein, he shall be fined not
more than five hundred dollars or imprisoned not more than one year, and shall
be liable to any town or county for all sums of money expended by it for the
support of such poor and indigent person, to be recovered in an action on the case.
R. S. 67:5, C. S. 71:5, 6. G. S. 75:4, 5. 1878, 31:1.
G. L. 83:5, 7 P. S. 85:13, v. 400.
Sec. 12. Bringing Into County: Penalty. If any person shall bring and leave,
or bring with intent to leave, any poor and indigent person, having no visible
means of support, into any county not chargeable with his support from any other
county in which such poor person has resided or been supported, such person not
having a legal settlement in any town nor any relation chargeable for his support
within the county into which he is brought, knowing him to be thus poor and indi-
gent, he shall be fined not more than two hundred dollars, or imprisoned not more
than six months. >
R. S. 67:9, C. S. 71:10, G. S. 75:9. G. L. 83:11.
P. S. 85:11, xlv, 139, 181, lv, 339.
Sec. 13. Removals. Every such poor and indigent person may be removed, by
order of the superior court, from said county into the county from which he was
so brought.
R. S. 67:10. C. S. 71:11. G. S. 75:10. G. L. 83:12.
P. S. 85:12. xlv, 139, 181, lv, 339.
NATIONAL DEFENSE MIGRATION 10115
Sec. 18. Removal on Warrant. Any justice of the superior court, any justice of
a municipal court, or any justice of the peace, upon complaint of the overseers of
the poor of any place or of either of the county commissioners of any county, in
term time or in vacation, may, by warrant directed to a constable or other person
therein designated, cause any pauper not born nor having a settlement in this
State, who may conveniently be removed, to be conveyed, at the expense of the
county within which such pauper may be, to any other State, or, if not a citizen
of the United States, to anv place bevond the sea where he belongs.
1862, 2592. G. S. 75:11. G. L. 83:13. P. S. 85:19.
Sec. 15. Bond for Passengers. The master of a vessel, having passengers on
board who have no settlement in this State, shall not suffer such passengers to
land until he gives bond to the State in a sum equal to two hundred dollars for
every such passenger, with sufficient sureties, to the satisfaction of the selectmen
of the town in which such passengers are landed, conditioned to indemnify and
save harmless such town, and every town and county in the State, from all
expenses which for three years thereafter may arise from such passengers, whose
names shall be inserted in the bond.
R. S. 67:6. C. S. 71:7. G. S. 75:6. G. L. 83:8. P. S. 85:16.
Sec. 17. Penalty. If any master suffers any such passenger to land before
such bond is given, unless the same is dispensed with by the selectmen on applica-
tion therefor, he shall be fined not more than two hundred dollars for each pas-
senger so landed, or imprisoned not more than one year.
R. S. 67:7. C. S. 71:8. G. S. 75:7. G. L. 83:9. P. S. 85:17.
New Hampshire Public Laws {1926) c. 106
Sec. 31. Penalty; Liability. If any person shall bring into this state and leave
in any town, or shall so bring with intent to leave, any poor and indigent person
having no settlement in such town and no visible means of support, knowing
such person to be poor and indigent as aforesaid, or shall hire or procure such poor
and indigent person to be so brought, or shall aid or assist therein, with intent
to charge such town with the support of such poor and indigent person, he shall
be fined not more than five hundred dollars or imprisoned not more than one
year, and shall be liable to any town in which such person has no settlement for all
sums of money expended by it for the support and maintenance of such poor and
indigent person, to be recovered in an action on the case.
1869,56:1.1878,31:1. G. L. 83:6. P. S. 85:14.
Ixvi, 330.
TYPICAL STATE SETTLEMENT LAW
Cal. Welfare and Institutions Code. (Deering, 1937) Sec. 2555
Requirements for state residence. A resident of the State of California is a per-
son who comes within all the following descriptions:
(a) Who has lived continuously in the State for a period of three years with the
intent to make it his home.
(b) Who, during the three-year period aforementioned, has not received any
public or private relief or support from friends, charitable organizations, or
relatives other than legally responsible relatives; but time spent in a public insti-
tution or on parole therefrom shall not be counted in determining the matter of
residence in this or another State.
(c) Who has not lost his residence by remaining away from this State for an
uninterruped period of one year. Absence from the State for labor or other
special or temporary purpose does not occasion loss of residence.
Cal. Welfare and Institutions Code. (Deering, 1937) Sec. 2556
Requirements for county residence. A person who is a resident of California
within the meaning of this chapter is a lawful resident of the county wherein he
applies for aid if he has resided therein continuously for one year immediately
preceding his application for assistance. If the applicant has no such residence,
the county wherein he last resided continuously for one year immediately pre-
ceding his application shall be responsible for his support. If the applicant has
no such year's residence within three years preceding application, that county
shall be responsible for his support wherein he was present for the longest time
during the three-year period. Time spent in a public institution or on parole
therefrom or in a private charitable institution shall not in any case be counted
in determining the matter of county residence.
10116 THE EDWARDS CASE
TYPICAL STATE STATUTE PROVIDING FOR INTERSTATE COOPERATION
Mich. Stats. Ann. (Supp. 1940) Sec. 16.413
Interstate transportation of indigents, transfer, support; reciprocal agreements
with other states; restriction; construction of section. Sec. 13. The commission is
hereby authorized, subject to the approval of the attorney general, to enter into
reciprocal agreements with corresponding state agencies of other states, regarding
the interstate transportation of indigent persons, and to arrange with the proper
officials in this state for the acceptance, transfer and support of persons receiving
any form of public aid or relief in other states in accordance with the terms of
such reciprocal agreement: Provided, That this state shall not, nor shall any
county or any county department of social welfare, in this state, be committed
to the support of persons whom the commission determines are not entitled to
public support under the laws of this state. This section shall be so interpreted
and construed as to effectuate its general purpose to make uniform laws of such
states as enact similar legislation.
NATIONAL DEFENSE MIGRATION 10117
Exhibit No. 11
SUPPLEMENTAL STATEMENT OF JOHN H. TOLAN, AMICUS CURIAE
FRED F. EDWARDS v. THE STATE OF CALIFORNIA, NO. 17
In my oral argument I cited two sections of the California Penal Code which,
in the operation of the statute before the Court, would have the effect of making
the indigent person brought into the State equally liable for prosecution with the
transporter, the appellee Edwards.
The Code sections are as follows:
"27. Crimes, persons liable to punishment for. The following persons are liable
to punishment under the laws of this state:
*******
3. All who, being without this state, cause or aid, advise or encourage, another
person to commit a crime within this state, and are afterwards found therein."
"31. Who are principals. All persons concerned in the commission of a crime,
whether it be felony or misdemeanor, and whether they directly commit the act
constituting the offense, or aid and abet in its commission, * * * are
principals in any crime so committed."
10118 THE EDWARDS CASE
Exhibit No. 12.
SUPPLEMENT TO BRIEF OF JOHN H. TOLAN, AMICUS CURIAE,
EDWARDS v. CALIFORNIA, NO. 17
Analysis of Material Bearing on the Economic and Social Aspects of
the Case op Fred F. Edwards vs. the People of the State of California
(No. 17, October Term, 1941, Supreme Court of the United States)
From the Record and Reports of the Select Committee to Investigate the Interstate Migration of Destitutes
Citizens and' the Select Committee Investigating National Defense Migration. Research and analysis
by Herbert Roback and Leonard A. Thomas, of Committee staff
It is our belief that the welfare of the Nation is seriously jeopardized
by penal statutes which have the effect — whatever be their intent —
of confining or blocking the free flow of human migration in the
United States.
It is our hope that in presenting a factual background of the ex-
tent and character of the migration of destitute citizens among the
States, we can be of some assistance in the solution of a problem
which seems likely to have an ever-increasing importance bearing on
the internal well-being of the Nation.
The penal statute now before the Supreme Court of the United
States in the matter of Fred F. Edwards v. The People of the State of Cali-
fornia, typical of antimigratory statutes in the majority of States,
aims not at any offense malum in se, but, by indirect prohibition,1
seeks to prevent the entry into a State of a citizen of the United
States, Duncan, whose only mark of distinction pertinent to the case
before the court, is that he is poor.
Who are the Duncans of America? Can they be fitted into the
framework of a poor-law system incompatible with the American
spirit of independence and equal opportunity, and with the economic
facts of our national life?
We have come a long way from the days of a crumbling feudalism,
when the manor lords of rural England sought by repressive measures
to bind their restless serfs to the land. We do not have today the
flogging, branding, mutilation, and death penalty provided by early
"vagrancy statutes" for the wandering poor. We do not now, as we
did in our earlier history, auction the poor like chattel to willing bid-
ders, apprentice and indenture them, house them with the criminal and
the insane, subject them to the degrading test of the workhouse.2
We have not outlived, however, the legacy of the English poor laws
which chained men to their native places and kept strangers on the
move. Our statutes of settlement, removal, and exclusion, and our
administrative practices bear a startling likeness to their antecedents
400 years ago. Without substantial modification, we can apply a
finding of a monumental study on the English poor laws to treatment
of the poor in twentieth-century America:
* * * Throughout the whole period dealt with in this volume, persons
"without visible means of subsistence," whether or not they applied for relief,
i The parties to this controversy are in complete accord that the issue presented ultimately involves the
constitutional riehts of the migrant Duncan and not those of the defendant himself. Appellee's brief,
dated April 21, 1941, p. 3; appellant's brief, dated February 17, 1941, pp. 14-15. (See Appendix K, p. 69,
for compilation of all State antimigratorv legislation, including exclusion laws and removal statutes.)
2 D. M. Schneider, The History of Public Welfare in New York State, 1609-1866, Chicago, 1938; M. D.
Creech, Three Centuries of Poor Law Administration, Chicago, 1936; S. P. Breckinridge, The Illinois Poor
Law and Its Administration, Chicago, 1939; G. A. Browning, The Development of Poor Relief Legislation
in Kansas, Chicago, 1935.
NATIONAL DEFENSE MIGRATION 10119
and however their destitution was brought about — whether from old age, sick-
ness, or unemployment — underwent, in effect, what Roman law termed a "capitis
diminutio," and ceased to enjoy the rights of the ordinary citizen. It was no
longer a question of relieving the sufferings of "God's poor." Instead of the
pious Christian washing the feet of beggars, whom he would meet in Paradise,
a public official was required, at the least cost, to suppress a common nuisance.
This conception of "destitution" as a public nuisance had unforeseen results
in the mind of the unpaid and annually elected parish officer. He became obsessed
with the notion of ridding his parish of the nuisance at the least possible expense
to the rate-payers to whom he was responsible. Seeing that the men, women, and
children concerned could not be destroyed like choughs and mice, the easiest and
cheapest way was to thrust the pauper, or potential pauper, across the parish
boundary, into the outer world. Hence the immediate and ever-recurring zeal
displayed by the overseer to put in operation the preposterous law of 1662 for
the forcible removal to their places of settlement, of poor persons "not belonging
to" his own parish whom he chose to think likely, at some future time, to become
chargeable to the parish. Hence the eagerness, a century later, to pervert the
Vagrancy Acts into a method of "clearing" the parish of beggars and other
"unemployed" persons, by "passing" them, at the expense of the counties that
they traversed, round and round the kingdom, and, wherever practicable, pushing
them across the border into Scotland, or dispatching them overseas to Ireland or
Jersey.3
There were voices even then that cried out in the wilderness against
the onerous restrictions on the mobility of the underprivileged "who
live by labor." Adam Smith, the great economic philosopher, called
for —
the repeal of the law of settlements, so that a poor workman, when thrown out
of employment in one trade or in one place, may seek for it in another trade or
in another place, without the fear either of a prosecution or of a removal * * * 4
The prefatory note to a careful study of three centuries of poor law
administration in Rhode Island states:
Basic, too, are the obsolete and archaic provisions of a poor law which still
places a penalty upon a railroad, a ship, or an individual for bringing into the
State a person who may become destitute; or which provides that a person,
although he may not have asked for assistance, may be removed by a constable
or a town sergeant from a town in which he has thought to better his condition;
or which penalizes a citizen who provides a residence for a person whom the town
council deems undesirable; or carries a rrovision for disfranchising a citizen who
has become destitute to such a degree that public aid is necessary. Whatever
justification such principles may have had in the settlement and growth of a
State during the seventeenth, eighteenth, and nineteenth centuries, their value
has become obsolete in the social and economic organization of the twentieth
century.5
The factual basis for the assertion that the statute in the case at
bar "has become obsolete in the social and economic organization of
the twentieth century" is hereinafter set forth.
MIGRATION IS A DOMINANT CHARACTERISTIC OF AMERICAN LIFE
Geographic mobility has always been a habit of the American people.
In earlier days the westward movement was its most striking manifes-
tation. Cheap and fertile land attracted pioneers seeking a new eco-
3 Sidney and Beatrice Webb, English Local Government: English Poor Law History: Pt. 1. The Old
Poor Law, London, 1927, p. 407.
* Adam Smith, An Inquiry Into the Nature and Causes of the Wealth of Nations, First Modern Library
Edition, New York, 1937, p. 437. Theo. Ruggles, Esq., justice of the peace for the counties of Essex and
Suffolk, noted in 1794: "Mr. Hay, in his plan, published in 1735, would have all notion of parochial settle-
ment abolished, as being the root from which every evil relating to the poor sprung; every parish being
in a State of expensive war with the rest of the Nation, regarding the poor of all other places as aliens, and
caring not what becomes of them * * *." (History of the Poor, London, 1794, vol. 2, pp. 88-89.)
5 Creech, op. cit., author's preface, p. xx. The conflict of ancient pauper statutes with the facts of con-
temporary destitution was dramatically signalized in controversy as to right of franchise by depression
relief recipients. The constitution of New Jersey (art. 2), for example, provides that "no pauper * * *
shall have the right of an elector." Protest over this exclusion as applied to relief recipients resulted in their
being permitted to vote. See New York Times, April 12, 1934, September 11, 1936.
10120 THE EDWARDS CASE
nomic foothold. In the wake of the more adventurous pioneer came
farm families to cultivate the soil and tradespeople to service the
agricultural population. New waves of migration followed upon the
old. Those who abandoned their holdings to seek greener pastures
were replaced by less advantaged newcomers.6 Today, farm-to-farm
migration takes place with a frontier gore and opportunity diminish-
ing;7 nevertheless the tradition of mobility persists. More than a
million American families change farms every year.8
Migration to the cities proceeded simultaneously with the building
of the West.9 When public lands no longer remained open for settle-
ment, the urbanward movement intensified.10 Industrial jobs and
the cultural attractions of urban living drew millions of rural youth.
In 1870 almost three-fourths of the American people lived in rural
areas; today this proportion is much less than one-half.11 The net
movement from farms within the last 50 years probably numbers
20,000,000 persons.12 The two-wav stream of migration greatly
exceeds the net migration balance. Thus the 6,000,000 persons moving
from farms to cities during 1920-30 represented the difference between
some 13,000,000 moves to, and 19,000,000 moves awav from, farms.13
Assuming that every migrant moved onlv once during the 10-vear
period, the sum of movements in both directions approximated the
total number of persons on farms, or a quarter of the Nation's entire
population.14
Movements, whether rural or urban, crisscross State lines. A con-
servative estimate places the number of workers annually crossing
State lines at 2, 000, 000. 15 Inclusion of family members and depend-
ents affords an estimate of 4,000,000 persons migrating across State
lines each year in pursuit of industrial employment alone.16
Migrants enter and leave every State in the Union. Behind this
flux are discernible more permanent patterns of relocation. Since
1850, when the data were first gathered, each census "has shown that
more than one-fifth of the native Americans have migrated from the
States of their birth and were liv'ng in other States." 17 Thus in
1930 about 25,000,000 native Americans were living outside the
' Interstate Migration, Report of the Select Committee to Investigate trie Interstate Migration of Desti-
tute Citizens, pursuant to H. Res. 63, 491. 629 (76th Cons'.'), and H. Res. 16 (77th Ton?.'), H. Rept. No. 369,
Washineton, 1941, p. 298 (hereinafter cited as Interstate Mi^r-nion, Report of Select Committee"*; Carl O.
Tavlor and others, Disadvantaged Clashes in American Agriculture, U. S. Department of Agriculture,
Social Research Report No. VIII, Washington, 1938. r>. 72: Connd Taeubernnd Oh>1 C. Tavlor, The People
of t^e Drought States, Works Progress Administration Research Bulletin, Washineton. 1937, p. 29; James
C. Malin, Turn-over of Farm Population in Kansas, Kansas Historical Quarterly, vol. 4, No. 4, November
1935, pp. 339-372: Donald O. Hav, Rural Population Migration in the Northern Great Plains, Lincoln
Hearines of Select Committee, p. 1386.
1 1nterstate Migration, Report of Select Committee, pp. 296 ft: Farm Tenancy, Report of the President's
Committee, Washineton, 1937, pp. 6, 7.
* Interstate Migration, Report of Select Committee, p. 296; Carl C. Tavlor and others, op. cit.. p. 76.
• Interstate Migration, Report of Select Committee, p. 28' ; Harold F. Dorn, Migration and the Growth
of Cities, Social Forces. March 1938, vol. 16, No. 3, pp. 328-337.
i° IT. S. National Resources Committee, Prohlems of a Chancing Population, Washineton, 1938, p. 83.
ii W. S. Thompson and P. K. Whelpton, Population Trends in the United States, New York, 1933. p.
24. Since 1920 the rural population has been divided by the census into farm and nonfarm. About one-
fifth of the population in the United States now lives on farms.
i2 Interstate Mieration, Report of the Select Committee, pp. 281,287. Based on estimates by O. E. Baker,
of the U. S. Department of Aericulture, Rural-Urban Mieration and the National Welfare, Annals of the
Association of American Geographers, June 1933, vol. 23. No. 2, p. 68, and by U. S. Department of Agri-
culture, Farm Population Estimates, Januarv 1, 1940 (mimeoeraphed).
" Interstate Mieration, Report of Select Committee, p. 282; U. S. Department of Agriculture, Farm
Population Estimates, January 1, 1940 (mimeoeraphed}.
» Ibid.: C. E. Lively and Conrad Taeuber, Rural Mieration in the United States, Works Progress Ad-
ministration Research" Monoeraph XIX, Washineton, 1939, p. 23.
i» John N. Webb, Internal Migration: Asset or Liability? Proceedings of the National Conference of
Social Work, New York, 1939, pp. 245-246.
'« Interstate Migration, Report of Select Committee, p. 469. This estimate refers to migrants covered by
the old-age insurance provisions of the Social Security Act.
" U S Department of Commerce, Bureau of the Census, Fifteenth Census of the United States: 1930,
vol. II, p. 135.
NATIONAL DEFENSE MIGRATION 10121
States of their birth.18 Though all States have exchanged populations,
the general drift of movement has been from south to north and from
east to west.19 The metropolitan regions have absorbed the greater
part of this migration.20
Migration to California today is a continuation of the historic
westward trend.21 California is a State virtually built up by migration.
From less than 400,000 in 1860, the population of California has come
to be almost 7,000,000 by 1940, a growth of about 1,800 percent.
The rate of growth has been over 4 times that of the population for the
whole country. Through the 8 decades migration has contributed
nine-tenths of the population increase 22 (see chart). In 1930, 2 of
every 3 persons living in California were born elsewhere.23
The influx of 2,000,000 persons to California in the boom decade
of the 1920's was "the greatest single movement in the entire history
of the country, one of the greatest in the world * * *." 24 Cali-
fornia grew during this decade as much as in the first 60 years of its
development from a frontier State.25 It is popularly supposed that
migration to California within the past few years is an unusual occur-
rence. In 1930-40 the volume of movement was little more than
half that of the preceding decade. A survey conducted by the
United States Department of Agriculture shows that the net migra-
tion into California during the 1930's numbered about 1,100,000
persons.26
MIGRATION GENERALLY PROCEEDS FROM AREAS OF LESSER TO AREAS
OF GREATER ECONOMIC OPPORTUNITY
People may move in search of pleasure or health, or because of a
restless urge to wander, but the great majority of American migrants
are job seekers.27 The broad patterns of movement as well as the
short-time shifts are determined by the changing distribution of em-
ployment opportunities. Manufacturing and commercial jobs are
centered in and around the large cities.28 Declining opportunity in
agriculture and the extractive industries has created large labor re-
•8 Prof. Frank Lorimer, Background of Internal Migration, New York Hearings of Select Committee,
p. 11; U. S. National Resources Committee, op. cit., p. 85.
i» Fifteenth Census of the United States: 1930, p. 139; R. D. McKenzie, the Metropolitan Community,
New York, 1933, p. 12.
2" Lorimer, New York Hearings of the Select Committee, p. 11; Dorn, op. cit.; U. S. National Resources
Committee, op. cit., p. 90.
2i Interstate Migration, Report of Select Committee, p. 304. "Additions to California's population through
the entrance of these hundreds of thousands of persons represent a continuation of the normal westward
movement of population, which has been a factor in California's growth since it became a State" (Report
of the migrant committee, California State Chamber of Commerce, San Francisco Hearings of Select Com-
mittee, p. 2758).
22 Ibid., p. 305; Seymour J. Janow, Volume and Characteristics of Recent Migration to the Far West,
one of several reports presented by the staff of the Bureau of Agricultural Economics, U. S. Department of
Agriculture at the San Francisco Hearings of the Select Committee, pp. 2269 fl. (These reports will be col-
lectively referred to in the text as the Department of Agriculture migration survey.)
23 Fifteenth Census of the United States: 1930, vol. II, p. 147. According to the population study of the
U. S. National Resources Committee (op. cit., p. 99) "The movements of native-born persons to California
has been unequaled':n volume by similar movements to any other State. In 1930 the number of residents
in California who had been born in other States was more thfm 600,000 greater than the total population of
Philadelphia, the third largest city of the Nation. The number of persons who were born elsewhere but
were living in California in 1930 was about one-third of the total population of Canada. * * *"
2* C. W.Thornthwaite, Internal Migration in the United States, Philadelphia, 1934, p. 18.
J5 Edwin Bates, Migration Into California in the 1920's, Los Angeles Hearings of Select Committee,
p. 3068.
2« Interstate Migration, Report of Select Committee, p. 304; Janow, San Francisco Hearings of Select
Committee, p. 2274.
27 Interstate Migration, Report of Select Committee, p. 9; John N. Webb, Migrant Families, Works
Progress Administration Research Monograph XVIII, Washington, 1938, p. 8; John N. Webb, The Tran-
sient Unemploved, Works Progress Administration Research Monograph III, Washington, 1935, p. 50.
28 U. S. National Resources Committee, op. cit., p. 72; McKenzie, op. cit., pp. 53 fl; Thompson and
Whelpton, op. cit., p. 32; Carter Goodrich and associates, Migration and Economic Opportunity, Phila-
delphia, 1936, ch. VII; Interstate Migration, Report of Select Committee, pp. 676, 677.
60396 — 42— pt. 26 11
10122
THE EDWARDS CASE
CALIFORNIA'S POPULATION GROWTH BY DECADES AS
CAUSED BY NATURAL INCREASE AND MIGRATION
1860-1940
7.0
e.5
5.0
P!v?+?»
5.5
— LEGEND— B\\\\
5.0
c 1 Increase in population due to migration H^ \^ \. \.
o • r^H 1 within the decode. BVV \J^
a §/ H\\ XA
a
+*++^",'+',"+j over deaths accruing to population in the BA\\
■•* + +Z+ A tlalt ol hoqinninr) at d^cnrtf (Prn |<>r te rt pnn :,1 n t mr.l B H \ \ \
4.5
AAA
Census population ot beginning of decode. BmvVxA
■Kw \
4.0
-3.5
i
3.0
2.5-
Year
Census j Increase
population | in decade
r^^t^^^^r
§
I860
379,994 ♦
■§1
1870
560,247 180,253
'880 864,694
304,447
1890 1 1,213,398
1900 1,485,053
348,704
27 1 ,655
19 K) 2,377,549
692,496
1920
3,4
26,861
772 5 f
1,049,312
2.250.390
1930
5,6
I940| 6,907,387
1,230,136
++++++vt-
•
K\\x
2.0
1.5
■IMHH \! "\ V >
.x\\
1
1.0
0.5
^
^
^
N^
§^
^
§^
\\v
\NV
s\W
n\\\
n\\\
0.0
\\V
\\V
\\V
\W
w\^
s\V>
s\\\
s\\\
s\W
I860 1870 1880 1890 1900 1910 1920 1930 1940
Decade Ending
* Census data incomplete for 1850
US Deportment
o' Agncu
ture
Bureau of
Agncultura
Economic
s
NATIONAL DEFENSE MIGRATION 10123
serves and a migration trend toward urban-industrial centers.29 The
trend of population movement has been "away from areas of economic
insecurity and low levels of living." 30 The study on population
redistribution by Goodrich and others found that —
in general, the poorer regions gave up population to the richer ones, and within
sections it was the more prosperous communities— largely urban and industrial —
which drew people from the surrounding areas.31
Receiving areas do not always maintain their economic advantage.
Industries decline; land, timber, and mineral resources become
depleted. New resources are discovered and developed ; new industries
spring up, and old ones migrate elsewhere in order to compete on a
better footing.32 The relocation of industry must be attended by the
migration of workers, else they become stranded and submerged
groups without an economic base.33
Migration to California has been a response to developing oppor-
tunity in the far West and to declining opportunity elsewhere. The
great migration of the 1920's was overwhelmingly urbanward in
direction.34 The rapid growth of the petroleum and moving-picture
industries provided jobs to many. Numerous entrants into white-
collar and service occupations attested to the expansion of the Cali-
fornia economy. More recently airplane manufacturing and other
new industrial developments have drawn job recruits from other areas.35
In agriculture, and in industry, job opportunities call forth seasonal
as well as permanent relocations of workers. In some areas migratory
routes are well defined, frequently traversing many States. In other
areas' workers tend to settle down in makeshift shelters near producing
centers, operating from the home base in irregular migratory circuits.39
Every State in the Union contributes labor to every other State.
More markedly, areas of meager opportunity send forth migrants pur-
suing temporary jobs provided by the seasonal rhythm of agricultural
growth and industrial production. Migrants from Southern States
annually follow the ripening harvest of crops along the Atlantic sea-
board.37 Seasonal workers from Kentucky, Tennessee, and other
States of the Appalachian plateau regularly move into the agricultural
and industrial sections of Michigan, Indiana, Ohio.38 Each year
thousands of Texas workers depart for the beet and vegetable crops
and for the factories of these North Central States.39 In the States
of the far West, and particularly in California,40 migrations take place
in considerable numbers to conform the labor supply to the varying
demand.
» F. M. Vreeland and E. J. Fitzgerald, Farm City Migration and Industry's Labor Reserve, Work
Projects Administration, National Research project, rept. No. 1-7, Philadelphia, 1939, ch. Ill; Lorimer,
New York Hearings of Select Committee, p. 12.
w TJ. S. National Resources Committee, op. cit., p. 105.
3i Carter Goodrich and others, Migration and Planes of Living, 1920-34, Philadelphia, 1935, p. 4.
« Migration of Workers, Preliminary Report of the Secretary of Labor pursuant to S. Res. 298 (74th
Cong.), U. S. Department of Labor, Washington, 1938, vol. I, ch. V (mimeographed). Goodrich and
others, Migration and Economic Opportunity, op. cit., chs. VI- VIII, Interstate Migration, Report of Select
Committee, pp. 674-675.
«• Migration of Workers, Preliminary Report of the Secretary of Labor, op. cit., p. 41.
»* Bates, Los Angeles Hearings of Select Committee, p. 3071; W. T. Cross and D. E. Cross, Newcomers
and Nomads in California, Stanford, 1937, p. 21.
'» Bates, Los Angeles Hearings of Select Committee, pp. 3079 fl.
»« Interstate Migration, Report of Select Committee, pp. 326, 344-345.
•? Migratory Labor in New Jersey, report of the New Jersey Conference of State Departments on Migra-
tory Labor, New York Hearings of the Select Committee, pp. 75 fl.; Interstate Migration, Report of Select
Committee, p. 351; Proceedings of the Interstate Conference on Migratory Labor, Baltimore, Md., February
12-13, 1940; Atlanta, Ga., December 17-18, 1940.
» Chicago Hearings of Select Committee, pp. 977 fl., pp. 1106 fl., etc.; Interstate Migration, Report of
Select Committee, pp. 353, 498.
" Oklahoma City Hearings of Select Committee, pp. 1798 fl.; pp. 1859 fl. ,„',»„ »,
40 "The greatest and most incessant seasonal migration in this country centers in California (Migration
of Workers, Preliminary Report of the Secretary of Labor, op. cit., p. 84).
10124 THE EDWARDS CASE
Agricultural workers move from the valleys of California to the Hood River
Valley of Oregon and the Yakima Valley of Washington, the Arkansas Valley of
Colorado, and the pea fields of Idaho, and to the Salt River Valley of Arizona.
Peak demands in California and the Yakima Valley of Washington in September
come 2 months after the maximum labor demands in Oregon, when the demand
for labor in Oregon has fallen 30 percent from its peak in July. Maximum labor
demand in Arizona occurs in November, when the requirements of agriculture in
California, Oregon, and Washington are approximately at their lowest point. In
California, for every 100 workers required in September, only 39 are needed in
December; for every 100 workers required in the second week of September in
the Yakima Valley, less than 2 are needed in the week of December. This is
some index to the variations in labor demand that prompt the ceaseless migra-
tions of thousands of agricultural laborers within the Western States.41
AS A PROCESS OF ECONOMIC ADJUSTMENT MIGRATION BENEFITS RECEIV-
ING AREAS AS WELL AS SENDING AREAS, AND THEREBY ENHANCES
THE NATIONAL WELFARE
The redistribution of population proportions the people to the eco-
nomic resources of the country. The beneficial effects of the great
migrations that took place between farm and city, 1920-30, have been
pointed out as follows:
In bettering themselves, the removal migrants of the twenties were increasing
the earning level of the country as a whole. By moving to areas where their labor
was in better demand they took a necessary step to correct partially the mal-
distribution of population, as compared to resources, which the changing economic
structure had produced. * * * It is probable that real earnings were in-
creased by at least 5 percent during the whole decade as a result of the transfer
of both farm operators and farm laborers from agricultural to urban employment.42
A leading authority on migration has characterized the adjustive
value of migration in these terms:
Migration is not only a constitutional right of every American citizen; it is an
economic necessity in the American economic system. This country is an eco-
nomic unit with a predominantly national market. Industries, investments,
goods, and labor respond to this economic and legal fact by crossing State lines
at will. Such movements are necessary to develop, maintain, and stabilize the
national economy. The economic order is a continually adjusting and readjusting
equilibrium which presupposes a flow of industries to resources, a flow of goods to
markets, and a flow of workers to developing industries.
The causes of migration are, therefore, so fundamental and pervasive as to
leave little expectation that the population may be immobilized.
As new areas develop and old ones decline, workers must migrate in order to
develop the new resources and to relieve the older communities of surplus workers.
The "push" of stranded communities resulting from shifting work opportunities
are accentuated by the "pull' ' of new developments in industry. After employment
has shifted from one area or one type of industry to another, migration gives rise
to fewer problems than would the continuance of stranded communities as the
result of insufficient migration.
Our population increase is slowing down, but migration retains its importance.
Without great migratory movements we cannot equalize our unequal flow of
population increase, redress our regional inequalities, balance the demand for
labor between changing employment capacities, nor "use our human and material
resources to the best advantage." We must remember that by large migration the
frontier was settled; by foreign immigration the American labor supply was
recruited; and it is mainly by spontaneous internal migrations that the future
needs of population redistribution in the United States must be served.
Vagrancy laws to the contrary, the fact that a man has little or no money in his
pocket is no valid reason for depriving him of his right to migrate across State lines.
The right to move may seem a poor substitute for real security, but it must not
« Seymour J. Janow and William Gilmartin, Labor and Agricultural Migration to California, 1935-40.
Monthly Labor Review. July 1041, vol. 63, No. 1, pp. 18-34.
*> Migration of Workers, Preliminary Report of the Secretary of Labor, op. cit., pp. 39, 40. Footnotes
in original omitted.
NATIONAL DEFENSE MIGRATION
10125
be forgotten that for many of our citizens it has proved the road to increased
well-being.43 [Italics supplied.]
The recent study of migration to the far West by the United States
Department of Agriculture emphasizes that population changes and
income changes have kept company. Indeed, relative income changes
in some areas often have been proportionately higher than changes in
the number of people.44 California and the other States of the far
West exemplify these trends.
Westward migration during the 1930's has more frequently been regarded as a
movement away from depressed areas than as a population movement toward
areas of industrial development and relative economic expansion. Yet the
relative economic position of the far West in the Nation has kept pace with the
expansion of its population. California, Oregon, and Washington combined had,
in 1920, 5.26 of the national population and received 7.19 of the national income.
In 1930 these three States contained 6.67 percent of the national population and
accounted for 8.66 of the national income. By 1938 the three States had approxi-
mately 7.24 percent of the population of the Nation, and their share of the national
income had increased to 9.34 percent. The per capita income position of the
population in these three States has been substantially maintained in its advan-
taged position relative to the rest of the United States for the past two decades.
(See table.) It is not possible to say with certainty what would have been the
effect of the economy of the far West if no migration to this region had taken place
in the depression decade of the 1930's. However, from evidence reviewed above,
the extension of economic activities and the expansion of population seem to have
a synchronous existence. What would happen to the population of the far West
without migration can be quite accurately estimated.45
Percentage of the national population in the Pacific region (California, Oregon, and
Washington) and percentage of the national income paid to persons in the Pacific
region, 1919-38
Pacific region (California, Oregon,
and Washington)
Year
Pacific region (California, Oregon,
and Washington)
Year
Percentage
of the
national
popula-
tion i
Percentage
of the
national
income J
Ratio of Pa-
cific region
per capita
income to
United
States
average
per capita
income
Percentage
of the
national
popula-
tion '
Percentage
of the
national
income !
Ratio of Pa-
cific region
per capita
income to
United
States
average
per capita
income
1919
5.19
5.26
5 40
5.54
5.68
5.82
5.96
6.10
6.24
6.39
6.78
7.19
7.77
7.94
8.07
8.25
8.37
8.54
8.56
8.49
1.31
1.36
1.44
1.43
1.42
1.42
1.40
1.39
1.37
1.33
1929..
6.53
6.67
6.74
6.81
6.88
6.95
7.02
7.09
7.17
7.24
8.73
8.66
8.54
8.82
8.93
8.56
8.74
8.96
9.11
9.34
1.34
1920
1930
1.30
1921
1931
1.27
1922
1932
1.29
1923
1933
1.30
1924
1934...
1.24
1925
1935
1.25
1926
1936
1.28
1927
1937
1.27
1928
1938..
1.29
• Population from U. S. Census. Change in population between census periods distributed evenly over
the decade. ^ _,
2 National and regional income figures from the National Industrial Conference Board Studies in Enter-
prise and Social Progress, November 1939, pp. 116-117.
Source: U. S. Department of Agriculture, Migration Survey, San Francisco Hearings of Select Com-
mittee, p. 2314.
« Dr. Rupert B. Vance, Probable Trend of Migration from the Southeast, Montgomery Hearings of
Select Committee, pp. 414, 415.
** Janow, San Francisco Hearings of Select Committee, p. 2313.
« Ibid, p. i.314.
10126 THE EDWARDS CASE
Summarizing the findings of the migration survey, the report con-
cludes with respect to migration and economic opportunity:
Income data clearly indicate the Western States as affording more per capita
opportunities than the areas from which the majority of the migrants have come.
As the great majority of newcomers show every indication of remaining in the
West it is clear that the alternative action of returning to the areas from which
they migrated is not going on because the far West is a more hospitable environ-
ment than the area from which they came.
Then from the point of view of the migrants and from considerations of national
welfare; westward migrations during the 1930's can probably be regarded as gener-
ally beneficial. Removal to the West has resulted in a larger proportion of the
population of the Nation living in a region of higher per capita income.48
The areas of meager opportunity from which people migrate in large
numbers are generally characterized by low levels of living and high
birth rates. Opposite conditions exist in areas of considerable im-
migration. States with large rural population have higher birth rates
than those predominantly urbanized and industrialized. Farm fami-
lies are producing children twice as fast as the city families and in
numbers far above their replacement needs. The urban population as
a whole at present is failing to replace itself.47 Farm-city migration
is necessary to make up this deficit. Throughout the history of our
Nation such migration has probably contributed half of the urban
population.48
In California we have already noted that migration, largely to urban
centers, has played the leading role in the population growth. Cali-
fornia has one of the lowest birth rates of any State in the Union. In
terms of the number of children under 5 years of age per 1,000 women
aged 20-44 years, California ranks at the bottom.49 With certain
assumptions regarding birth and death rates, population trends for the
future can be estimated. If no people were to enter or leave California
at all, the total population would have already begun to decline by
1940, and it would be less in 1950 than it was in 1935.50
MIGRANTS HAVE INITIATIVE, YOUTH; ARE HIGHLY EMPLOYABLE
At a time when the complex factors making for economic change
and labor mobility were less well-known, migrants were often regarded
as people with psychological or moral quirks.51 It is now a recognized
fact that migrants are normal Americans, possessing initiative and
determined to improve their lot by moving.52 Large numbers of
them are in families, uprooted, dispossessed, seeking to make a new
start.53 Migrants are younger, on the average, than the general work-
«• Janow, San Francisco Hearings of Select Committee, p. 2321. Footnotes in original omitted. "Califor-
nia has not begun to attain its potentialities for population, agriculture, foreign trade, and industry.
There are new frontiers right in the United States for new industries and higher standards of living for
all the people. The West still offers a challenge." (San Francisco Daily News, editorial, May 11, 1939.)
<7 Interstate Migration, Report of Select Committee, p. 284; Lorimer, New York Hearings of Select
Committee, p. 13; Lively and Taeuber, op. cit. ch. Ill; United States National Resources Committee, op.
cit. pp. 112, 133-134.
<8 Dorn, op. cit.
« Janow, San Francisco Hearings of Select Committee, pp. 2314-2315.
»° Ibid.
« John N. Webb, the Migratory— Casual Worker, Works Progress Administration Research Mono-
graph VII, Washington, 1937, pp. 2, 19; Interstate Migration, Report of Select Committee, p. 300.
" Interstate Migration, Report of Select Committee, p. 9; Webb, Migrant Familes, op. cit., p. XVI;
statement of Hon. Frances Perkins, Secretary of Labor, Washington Hearings of Select Committee,'pt. 8,
p. 3330; testimony of Philip E. Ryan, ibid., p. 3093; statement of Myron Falk, exceutive secretary, Louisiana
Council on Migratory Labor and Transients, Montgomery Hearings of Select Committee, p. 678.
m "The migrants are old-stock Americans, hard workers, used to grubbing the soil against adversities.
If put to work, they will be self-supporting, rear children, produce and buy goods, increase the general
prosperity." (San Francisco Daily News, editorial, May 11, 1939.)
NATIONAL DEFENSE MIGRATION 10127
ing population. They center in the age groups most highly employ-
able.54 As stated in a report on transients by the California Relief
Administration:
Study of most of the matter dealing with transiency discloses the astonishing
and persistent factor that persons in the youthful prime of working life — between
the ages of 24 and 35 — constitute the backbone of the transient load. * * *
Another consistent factor from which some comfort may be drawn is the willing-
ness to work on the part of an overwhelming number of the transient popu-
lation. * * * 55
Those who are presented with the actual or potential burden of
caring for destitute migrants frequently contend that persons migrate
for purposes of obtaining relief.56 Findings of impartial students and
welfare workers do not support this contention.57 Since most States
impose complicated and lengthy residence requirements before giving
relief, it could be argued with equal justification that fear of losing
relief restrains people from moving.58 People move in search of jobs.
Failure to find employment in the new community may force them to
seek public assistance.
Migrants to California in the 1930's were drawn from all sections of
the Nation and from all walks of life. They represented, with minor
exceptions, a cross section of the occupational structure in both the
States of origin and in California.59 In this wise they were responding
to differential opportunity as between California and the States of
origin. In California a certain amount of occupational shifting took
place to more closely conform the migrant population to the labor
needs of the State.60 Many migrants who previous to moving had
been on relief were able to improve their position by finding employ-
ment in California. Others were not so fortunate and had no recourse
but to seek public aid. These less fortunate people were predomi-
nantly in the agricultural and less-skilled occupations, reflecting the
fact that the burdens of a declining economy fall with the heaviest
impact on the least advantaged sectors of the economy. 61 The Depart-
ment of Agriculture migration survey found that —
Of the male family heads who, before migration, were unemployed, on Work
Projects Administration, or receiving relief, 36 percent were reported to be still
in these groups in California. Twenty-one percent of the former farm laborers,
19 percent of the unskilled laborers, and 16 percent of the former farmers were
reported as unemployed, on Work Projects Administration, or on relief in Cali-
fornia. In contrast, only 7 percent of the former clerical workers and 3 percent
of the former professional persons were reported as unemployed, on Work Proj-
ects Administration, or receiving relief in California. By this index, the agri-
cultural and unskilled labor groups were the least successful in establishing
themselves in California.62
" Migration of Workers, preliminary report of the Secretary of Labor, op. cit., p. 15; Webb, Migrant
Families, op. cit., pp. 97, 98, 108; Webb, the Transient Unemployed, op. cit., p. 25; D. S. Thomas, Migra-
tion Differentials, Social Science Research Council Bulletin 43, New York, 1938, p. 11; Lively and Taeuber,
op. cit., p. 15.
« California State Emergency Relief Administration, Transients in California, San Francisco, 1936,
pp. 287, 288 (mimeographed).
m See appellee's brief, dated April 28 1941, pp. 16-17.
" Interstate Migration, Report of Select Committee, p. 9; Lively and Taeuber, op. cit., p. 132; Webb,
Migrant Families, op. cit., p. 51; Cross and Cross, op. cit., p. 19; Ralph Astrosky, director, Division of
Shelter Care, Department of Welfare, New York City, New York Hearings of Select Committee, p. 201;
Charles Alspach, Washington Hearings of Select Committee, p. 4234; Dorothy B. de la Pole, staff asso-
ciate, National Travelers Aid Association, Chicago Hearings of Select Committee, p. 939; Joel D. Hunter,
general superintendent, United Charities of Chicago, Chicago Hearings of Select Committee, p. 948.
88 Testimony of Neil H. Jacoby, chairman, Illinois Emregency Relief Commission, Chicago Hearings of
Select Committee, pp. 823-824; Dorothy B. dela Pole, ibid, p. 933.
'» Interstate Migration, Report of Select Committee, p. 308; Janow, San Francisco Hearings of Select
Committee, pp. 2299 ff.
«° Roid.
si Varden Fuller, Employment of Migrants As Hired Laborers in Western Agriculture, San Francisco
Hearings of Select Committee, p. 2377.
•* Janow, San Francisco Hearings of Select Committee, p. 2311.
10128 THE EDWARDS CASE
WITHIN RECENT YEARS WIDESPREAD UNEMPLOYMENT AND DESTITUTION
HAVE AFFECTED MIGRANTS WITH SPECIAL SEVERITY
The economic depression beginning in 1929 was unprecedented in
the incidence of its impact. Unemployment mounted to staggering
proportions. The number of unemployed persons was estimated to
reach 16,000,000 at one time in 1933.63 The total never fell below
12,000,000 in any year between 1930 and 1935. In 1937, after busi-
ness revival and recession, a national census of unemployment re-
corded approximately 10,000,000 persons out of work.64 Even
today, when industrial expansion in the national-defense program is
proceeding apace, there are still probably 5,000,000 persons without
jobs.65
Addition of family members and dependents to the numbers esti-
mated above can only suggest the extent of suffering and privation
endured by American families. Relief cases multiplied as the meager
resources of unemployed wage workers were exhausted. In July of
1933 almost 4,000,000 families, totaling over 15,000,000 persons, were
forced on public relief rolls. The terrible winter of 1934-35 found
20,000,000 persons, or one-sixth of the Nation's population, dependent
on relief.66
This court stated in 1937 when sanctioning the power of the State
to legislate a wage for the minimum necessities of individuals:
We may take judicial notice of the unparalleled demands for relief which
arose during the recent period of depression and still continue to an alarming
extent despite the degree of economic recovery which has been achieved. It is
unnecessary to cite official statistics to establish what is common knowledge
through the length and breadth of the land.87
Income data gathered in 1935-36 show that of the 29,000,000
families in the United States, 14 percent received less than $500 during
the year, 42 percent received less than $1,000 and 65 percent received
less than $1,500. Considered in terms of consumer units (families
and single individuals), one-third of the Nation received incomes of
less than $780 during 1935-36. Four million families and single
individuals in this lower third received relief during the year, but
over 9,000,000 families and single individuals in this lower third,
subsisting on incomes below any minimum standard of health and
decency, received no relief whatever.68
The national character of unemployment and destitution was
evidenced early in the depression by the need for Federal assistance.
Traditional methods of relief-giving by local public and private welfare
agencies were hopelessly inadequate to cope with the destitution
attendant upon mounting unemployment. Private, voluntary con-
tributions gave way in large part to public funds supplied to local
communities by State emergency relief administrations. "By 1932,
however, the number requiring relief had unquestionably reached such
proportions in many States that Federal assistance was necessary to
prevent rioting, bloodshed, and actual starvation." 69 Loans were
83 H. A. Millis and R. E. Montgomery, Labor's Risks and Social Insurance, New York, 1938, p. 19.
«« Ibid., pp. 19, 20.
66 Statement of Corrington Gill, Assistant Administrator, Work Projects Administration, Washington
Hearings of Select Committee, pt. 16, p. 6486.
68 Millis and Montgomery, op. cit., pp. 56, 57.
•' West Coast Hotel v. Punish 300 U. S. 379, 399 (1937).
88 U. S. National Resources Committee, Consumer Incomes in the United States, Washington, 1938,
pp. 2, 9.
•» Millis and Montgomery, op. cit., p. 101.
NATIONAL DEFENSE MIGRATION 10129
first made to States and municipalities to help finance relief; these were
later supplanted by outright grants, administered by a Federal
agency.70
It has been said of the American people that they will not stand
still and starve.71 Unemployment during the 1930's started great
distress migrations. Rural-urban movements were reduced in volume,
but to the population dammed up on farms were added newcomers
fleeing from industrial unemployment.72 Millions of persons took
shelter in subeconomic retreats, subsisting on poor lands, or eking out
a miserable living as migratory wage workers. A leading student of
population has generalized the migration trends of the 1930's in
these terms:
From 1930 to 1940, migration has been in large a movement from areas of high
productivity but heavy unemployment to areas of lower productivity but greater
security, provided by poorly paid regular or part-time employment, or through
subsistence farming, or both. In other words, it has been the substitution of
underemployment for the risk of unemployment. * * *
Millions who have retreated in search of meager security have suffered a severe
drop in level of family living, but they have not caused conflict or created special
public problems. They have therefore attracted little attention. The same
may be said of many young people coming of age in areas of meager opportunity,
who would normally have migrated to more favorable situations but have been
restrained by fear of failure to find employment.
There has, however, been a counter movement, which has stirred public atten-
tion. People have burst forth from areas suffering from the slow rot of economic
deterioration, without awaiting the assurance of real economic opportunity else-
where— only to encounter new types of frustration. These people, fleeing an
ever-deepening underemployment, have sought areas of greater opportunity and
have, , in many cases, found only unemployment. These are the "economic
refugees" of our very imperfect economic order.73
The California migration in the past decade included many economic
refugees, for, as we have noted, conditions at their worst in that State
were still better than those from which many migrants came. Popu-
lation displacement was particularly heavy in the Great Plains States.74
A long train of economic disasters, intensified by drought conditions
in the midst of the depression, accelerated the westward trek. The
causes of this migration were analyzed by the Governor of California,
as follows:
The Dust Bowl migrants are for the most part casualties of change. They are
not vagrants or paupers or hoboes. They are American citizens who have been
thrown out of gainful employment and self-supporting occupations largely as a
result of the profound dislocations which have taken place and are continuing to
take place in American agriculture. These changes have to do largely with such
matters as the displacement of workers through mechanization; the curtailment
of crop acreage; the loss of export markets in agriculture; and numerous other
factors. * * * It has been generally estimated, for example, that with re-
stricted demand and increased efficiency, we can now produce the normal require-
ment for agricultural products with approximately one and a half million fewer
workers in agriculture than were needed in 1929. * * * It has likewise been
'0 Ibid., E. A. Williams, Federal Aid for Relief, New York, 1939; J. C. Brown, Public Relief 1929-39,
New York, 1940.
71 Lincoln Hearings of Select Committee, p. 1349 and passim.
" Interstate Migration, Report of Select Committee, p. 290; Lively and Taeuber, op. eit, chap. II; Vreeland
and Fitzgerald, op. cit., ch. IV; W. S. Thompson, Research Memorandum on Internal Migration in the
Depression, Social Science Research Council Bulletin No. 30, New York, 1937; U. S. National Resources
Committee, Problems of a Changing Population, op. cit., pp. 105 fl.
« Lorimer, New York Hearings of Select Committee, p. 12. cf. the following: "The dramatic and pathetic
spectacle of thousands of Americans in flight from abject poverty toward an unknown and unattainable
security, such as occurs during a depression, confuses the social implications of migration and beclouds its
economic function," (Collis Stocking, Bureau of Employment Security, Social Security Board, Realloca-
tion of Population and the Defense Program, paper presented before the ninth annual meeting of the
Population Association of America, May 17, 1941, printed in Washington Hearings of Select Committee,
pt. 17, p. 6758).
74 Interstate Migration, Report of the Select Committee, pp. 313, 323.
10130 THE EDWARDS CASE
estimated that in the next decade technological changes may result in the dis-
placement of another million and a half workers. The Russell Sage Foundation
on February 10 of this year, as a result of its investigation, stated that within
the immediate future an outgoing migration of from 1,500,000 to 6,000,000 people
might be anticipated from 4 major depressed areas in the United States.75
[Italics supplied.]
Destitute migrants who "break loose like the tumbleweed every
year," 76 are blown by a wind that rose half a century ago. The
Department of Agriculture migration survey concluded with regard
to the westward flight from the Great Plains:
In some respects, the migration to the far West during 1930-39 may be envisaged
as a self-generating correction of an unwise distribution of population which took
place in the absence of a national policy for migration. That section of the Mid-
dle West made up by the States of Oklahoma, Kansas, Nebraska, South Dakota,
and North Dakota was the area which received the largest population increases in
the Nation by internal migration during the period from 1880-1920. Much of
this settlement was made on a foundation of a type of farming now generally
recognized as unsuited to the area. The result of this unwise settlement can in
part be seen in the substantial emigration from this region which took place
during the depression decade of the 1930's; the population in each of these States
was less in 1940 than it had been in 1930.77
The jalopy of the contemporary migrant became a too-familiar sight
on the public highways.78 Quarantine inspectors at the California
borders began to keep count of these automobile families seeking
haven in the State. From the middle of 1935, when the count was
started, until the present, parties totaling more than half a million
persons in need of manual employment entered California by motor
vehicle. The vast majority of these were native white Americans in
family groups.73 Removal and seasonal migrations to California in
the past h)'i years included many more persons than those enumerated
by quarantine inspectors.80 The border count of half a million
needy migrants merely suggests the prevalence of distress and destitu-
tion among America's depression pioneers.81
Agricultural migrants to California during the 1930's comprised but
a fourth of the migrating population.82 We have noted, however,
that they bore their full measure of hardship. In a sample of these
families studied by the United States Department of Agriculture, it
was found that:
The net worth at the time of arrival of the typical migrant family included in
this study was only slightly above $100; approximately two-thirds had less than
$200. Of average net worth 38 percent was in cash 34 percent in the value of the
car and the remainder in clothing, household goods, and incidentals.83
The migrants for the most part made direct and purposeful moves.
The majority crossed intervening States without delay and settled
in the California county of initial choice.84 Their intense desire to
78 Statement of Hon. Culbert L. Olson, San Francisco Hearings of Select Committee, p. 2238.
78 C. M. Evans, Oklahoma City Hearings of Select Committee, p. 1933.
77 Janow, San Francisco Hearings of Select Committee, p. 2331. Footnotes in original omitted.
78 E. J. Rowell, Drought Refugee and Labor Migration to California in 1936, Monthly Labor Review,
December 1936, vol. 43, No. 6, pp. 1355-1363; Migration of Workers, preliminary report of the Secretary of
Labor, op cit., ch. VI; Paul S. Taylor, Interstate Migration of Refugee Workers, Unemployment and
Relief, hearings before a Special Committee to Investigate Unemployment and Relief, U. S. Senate, 75th
Cong., 3d. sess., pursuant to S. Res. 36, vol. 2, appendix 17, exhibit 1, pp. 1595 fi.
78 Janow and Gilmartin, op. cit.
80 Ibid.; Report of migrant committee, California State Chamber of Commerce, San Francisco Hearings
of Select Committee, p. 2757.
81 Quarantine inspectors taking the border count enumerated automobile parties whose appearance and
belongings obviously placed them in the group of those in need of manual employment.
82 Janow, San Francisco Hearings of Select Committee, p. 2303.
83 Fuller, San Francisco Hearings of Select Committee, p. 2374.
m Interstate Migration, Report of Select Committee, p. 325; Janow, San Francisco Hearings of Select Com-
mittee, p. 2290.
NATIONAL DEFENSE MIGRATION 10131
find a home has found tragic expression in the peripheral slums and
shacktowns that are springing up near California cities.85 According
to the Department of Agriculture migration study:
* * * Relocating families employed in seasonal agricultural jobs have had
to improvise the best shelters they could out of the very small means available to
them. * * * Nevertheless, they represent endeavors to establish permanency
by people who are trying to escape the hardships and the undesirability of a
migratory and homeless existence.86
In short-distance moves near the home base or in longer migrations
up and down the coast, the agricultural migrants attempt to piece
together sufficient jobs to yield subsistence. There are more hired
workers on farms in California than in most other States in the Union.87
California agriculture requires large numbers of laborers for short-
peak periods. It is extremely difficult, however, for migratory
workers to dovetail seasonal agricultural jobs.88 Opportunities in
alternative nonagricultural employment are limited.89 Consequently,
employment is intermittent and earnings extremely low. Summariz-
ing the conditions and prospects of migrant agricultural families in
California, the Department of Agriculture survey states:
Under present conditions of farm organization and as long as agricultural workers
remain ineligible for social-security benefits, public assistance performs a very great
function in the economic stability of farm workers. It must be emphasized, also,
that public assistance as it is received, is equally a subsidy to farm operators who
employ seasonal labor. Assistance received by workers operates as a subsidy
paid by the public in general to farm emplo3rers inasmuch as a pool of labor is
kept constantly available to work at modest wage rates.90
MIGRANTS HAVE BEEN TREATED AS CRIMINALS AND VAGRANTS, AND
ATTEMPTS HAVE BEEN MADE TO BAR THEIR ENTRANCE INTO CERTAIN
STATES
Large influxes of underprivileged newcomers to a community fre-
quently create misunderstanding and conflict.91 The interests of
employers seeking great surpluses of labor for peak seasonal operations
do not always coincide with the interests of other established residents
who may feel the effects of job competition or of increased tax burdens
for relief. It is not uncommon among employers themselves to help
« Interstate Migration, Report of Select Committee, p. 326; Janow, San Francisco Hearings of Select Com-
mittee, pp. 2292, 2293; Carey McWilliams, chief, California State Division of Immigration and Housing,
Housing Conditions Affecting Migrants in California, San Francisco Hearings of Select Committee, pp. 2541
ft.; Catherine Bauer, secretary, California Housing Association, The Housing of California's Agricultural
Workers, San Francisco Hearings of Select Committee, pp. 2570 ff.
'6 Fuller, San Francisco Hearings of Select Committee, p. 2368.
" Testimony of Dr. Paul S. Taylor, hearings before the Subcommittee of the Committee on Education
and Labor, under S. Res. 266, 76th Cong., 2d sess., pt. 47, p. 17227.
88 California State Relief Administration, Migratory Labor in California, San Francisco, 1936, p. 49
(mimeographed); Migration of Workers, Preliminary Report of the Secretary of Labor, op. cit., pp. 85-86.
89 Fuller, San Francisco Hearings of Select Committee, p. 2370.
80 Ibid., p. 2376. Cf. the following conclusion of the California State Relief Administration study (Migra-
tory Labor in California, op cit., p. 212): "Thus, we see California's second largest industry not only sub-
sidized by relief funds, but responsible for untold human misery and human wastage. Not only are present '
relief expenditures and present suffering to be considered, but the insufficient and improper food, the
improper conditions of living, the insufficient and improper schooling promise a human harvest which
cannot but add further burdens to the State and the Nation."
Dr. PaulS. Taylor states: "There is a long tradition in California of the necessity of a large supply of labor
available at low wages for short -time employment. It is as old as statehood itself. * * * This policy
of 'hire and fire,' without responsibility for carrying the overhead cost of supporting their laborers between
seasons is a contributory factor to that acute specialization which makes employment so highly seasonal
and laborers so mobile." (Hearings before a Subcommittee of the Committee on Education and Labor,
under S. Res. 266, 76th Cong., 2d sess., pt. 47, pp. 17288-17289.)
81 Philip Ryan, Migration and Social Welfare, Russell Sage Foundation, New York, 1940, ch. V.
10132 THE EDWARDS CASE
drive out of the community "tramps" and "bums" who, when needed
for seasonal work, were solicited and accepted as useful citizens.92
In former times many of California's seasonal enterprises relied upon
a succession of alien groups who were obliged to accept substandard
conditions of work and who were credited with a propensity to con-
veniently disappear when the season's work was done.93 Native
American citizens do not easily fit into the old pattern.94 Seeking homes
and jobs in California by the hundreds of thousands, they have been
at times the object of a hostile and unreasoning sentiment in some
quarters.
This sentiment has varied in intensity with the numbers of needy
newcomers, and with the availability of funds or facilities for their
care. It has found expression in measures designed to drive migrants
from the State or to bar their entry. The futility of these measures
is predetermined by the failure to recognize that no single State can
insulate itself against great migratory movements initiated by con-
vulsions throughout the entire economy. Indeed, if all States were
to act concertedly in erecting barriers to the entrance of migrants
from other States, destitution would be nailed down, but it would
not be eliminated.
In practice, destitute migrants become pawns in a dreary game of
shifting responsibilities traditionally known as "passing on." Cali-
fornia, unable to "pass on" the unemployed, has passed them back,
thereby "adding to their distress and to the hostility of other States." 95
Mounting relief burdens have motivated States to raise their statutory
settlement requirements for public assistance.96 Nonresidents receive
temporary care at best, pending forced removal to their place of set-
tlement. "Human beings are shifted around like so much cargo." 97
States have exercised their police power on the mistaken assump-
tion that problems economic in their origin can literally be handled
by police methods.98 In addition to enacting new restrictive statutes,
old laws have been stretched to cover new conditions. Barriers to
free movement have been built up on a foundation of "crime preven-
tion." Vagrancy laws have been invoked against migrants in indis-
criminate fashion. Justification for driving migrants from the borders
of States has also proceeded under the guise of violations of penal
•» Webb, The Migratory-Casual Worker, op. cit., p. 2. The author reports the comment of the Los
Angeles Times on March 13, 1936, with reference to the Los Angeles police blockade of the California border
in an attempt to rid the State of indigent transients: "If a labor shortage should develop later on, it would be
easy to modify the regulations so that seasonal workers might be admitted. * * *" Webb further reports
the sardonic comment of the Pan Diego Sun, March 23, 1936: "The only time a bum is expected to come to
California is when we need him as a harvest hand. What right has he to come between seasons?" (The
Migratorv-Casual Worker, op. cit., p. 2, footnote 1.)
•3 Interstate Migration, Report of Select Committee, p. 379; Varden Fuller, The Supply of Agricultural
Labor as a Factor in the Evolution of Farm Organization in California, hearings before a Subcommittee
of the Committee on Education and Labor, under S. Res. 266, 76th Cong., 3d sess., pt. 54, exhibit 8762-A;
pp. 19777-19898.
M Fuller, San Francisco Hearings of Select Committee, p. 2368. "The very nature of California's agricul-
ture, which requires migration to secure employment, makes establishment of legal 'residence' and exerc'se
of the suffrage difficult. In their efforts to achieve California citizenship, these native American migratory
farm laborers, coming originally like the majority of us Californians, from other States, face obstacles erected
by a hostile community. Officials raise the question whether living in a camp erected by the Federal
Government to provide decent conditions for those who migrate to serve our crops can be accepted as legal
residence for voting, even after all requirements of the law are met. Newspapers publish articles which
can only have the effect of deterring migrants from exercising the right of suffrage. * * *" (Testimony,
Dr. Paul S. Tavlor, hearings before a Subcommittee of the Committee on Education and Labor, under S.
Res. 266, 76th Cong., 2d sess., pt. 47, p. 17235.)
•• Beecroft and Janow, op. cit., p. 483.
•• Interstate Migration, Report of Select Committee, p. 650. See appendix A, charts showing residence
requirements for settlement in the various States 1931-40.
»7 Justice Burr, delivering the opinion of the court in Adams County v. Burleigh County (291 N. W. 281
(1940)). See appendix I for full opinion.
•s See Nels Anderson, Men on the Move, Chicago, 1940, p. 255; Ryan, op. cit., p. 56.
NATIONAL DEFENSE MIGRATION 10133
statutes prohibiting the carrying of concealed weapons, evading the
payment of railroad fares, operating motor vehicles without licenses,
transporting into a State indigent persons or persons likely to become
a public charge, and the like."
At times the exclusion of destitute outsiders has been inspired by
executive action of State Governors. The road patrol of State police
operating in Florida during the winter months of 1934, 1935, and 1936
was proclaimed and organized by the Governor of that State. Notice
was served that no more transients would be admitted to Florida
camps and that those trying to enter the State without jobs or visible
means of support would be turned back. The Governor warned that
those transients successful in entering the State would face "arrest,
which would be unpleasant and unprofitable to all concerned." l
Acting on numerous complaints that it was undemocratic and
unconstitutional to prevent United States citizens from passing at
will from one State to another, and responding to the argument that
a welcome should be extended to rich and poor alike, a new Florida
Governor abolished the border patrol in 1937, saying:
I don't think it's constitutional to tell a man he can't go from one State to another.
Just because a man's poor and wants to find a job in Florida is no reason for keep-
ing him out of the State. Why, some of the worst people that come to Florida in
the wintertime are racketeers in fine limousines and Pullman cars. There are
plenty of crooks in fine automobiles.2
Colorado, by executive order in April 1936, proclaimed martial law
along a mile-wide strip of territory on the southern border and called
out National Guardsmen —
* * * to prevent and repel the further invasion of this State by any such
aliens, indigent persons, or invaders, and to repel and return all such persons
* * * to the State from which they shall have entered such area.3
According to two observers —
The blockade extended from Utah to Kansas, with every entrance point from
Oklahoma and New Mexico under the scrutiny of the guardsmen. The men had
orders to stop all cars, busses, and trains with the exception of first-class limiteda
to search them for "undesirables." Money and financial responsibility was the
test laid down by Governor Johnson for entry into the State. This" executive
order was withdrawn after a few weeks, when "the Governor found it impossible
to continue the policy." 4
The zeal of public officials in keeping out destitute newcomers has
been matched by private bodies and by self-constituted extra-legal
authorities. The most dramatic example of such action was the abor-
tive "bum blockade" set up in California by the Los Angeles Police
Department with the support of the Los Angeles Chamber of Com-
merce and other organizations. Cooperation was sought from the
railroad companies and permission obtained to search freight trains
crossing the border. Sheriffs of border counties were contacted and
requested to deputize Los Angeles police officers as sheriffs of these
••See appendix J, excerpt on California border patrol from California State Relief Administration,
Transients in California, San Francisco, 1936 (mimeographed).
1 Florida Times- Union, December 7, 1934. For excerpts from files of the Florida Times-Union, and New
York Times, relating to the border patrols at the Florida State line, during 1934, 1935, and 193G, see Appen-
dix R, p. 40.
* New York Times, September 11, 1937. See Appendix R, p. 40.
' Beecroft and .lanow, op. cit., p. 480. For full text of executive order see Appendix F, p. 43.
4 Ibid. (Footnotes in original omitted.) For excerpts from files of Denver Rocky Mountain News
relating to the border patrols at the Colorado State line during 1936, see Appendix Q, p. 44.
10134 THE EDWARDS CASE
counties. Some counties agreed and others refused to deputize the
officers, but officers from Los Angeles were sent even to those refusing.
By February 1936 it is reported that 125 police officers had been
detailed to points of likely border entry by highway or railroad.
The tragi-comic details of the border patrol activities are set forth in
a survey made by the California State Relief Administration, printed
in appendix J.
The stationing of Los Angeles police officers at the 16 border points
evoked unfavorable publicity and protest from many public and
private agencies or individuals.5 Careful distinction was not made
between residents and nonresidents nor between criminals and desti-
tute persons.6 Among those stopped and questioned by officers were
two members of the California Senate.7
The chief of police claimed that he was protecting the city [Los Angeles] from
an influx of criminals, and stated that 65 percent of those stopped had criminal
records. He admitted to a member of the [relief administration] survey staff that
he considered anyone to have a criminal record if he had ever been arrested for
vagrancy or spent a night in jail. He was not willing to allow a worker from the
survey to examine the information in the office regarding the patrol.8
One John Langan, a California resident returning from a business
trip to Arizona, sued the police chief of Los Angeles city in the Federal
court asking that he be enjoined from "stopping, molesting, question-
ing, fingerprinting, arresting, or otherwise interfering with plaintiff's
entering California, or with plaintiff's traveling in California, or
with plaintiff's traveling between any of the States bordering upon
California." 9
A request from the Los Angeles Chamber of Commerce that the
border-patrol activities of the police department be endorsed by the
attorney general of California was refused. The attorney general held
that Los Angeles police officers were not legally eligible for appoint-
ment as deputy sheriffs of other counties and that exclusion of certain
classes from the State required legislative action.10 H e stressed United
States Supreme Court dicta on the right of free ingress and egress to
and from States and reminded the chamber of California's membership
in the sisterhood of States.11
« Janow and Beecroft, op. cit., p. 479; California State Emergency Relief Administration, Transients in
California, op. cit., p. 261 (See appendix J, p. 58); Los Angeles Herald-Express, February 4 and 5, 1936.
(See appendix C, p. 31.)
• Janow and Beecroft, op. cit., p. 474, footnote 15.
i California State Emergency Relief Administration, Transients in California, op. cit., p. 261. (See
s California State Emergency Relief Administration, Transients in California, op. cit., p. 261 (see appen-
dix J) Cf. Mr. Davis' analysis of the motives for migration to California and the police experience with
transients in his report on Transiency in Southern California (Los Angeles Hearings of Select Committee,
pp.3015, 3017): . „. ...."-,
"♦ • * There are only two sources of employment in this State: to wit: First, private, industry and
agriculture- second, public-works projects. We know that private industry and agriculture can readily
recruit sufficient workers who are permanent residents of the State. The Federal Government requires
that those working upon public-works projects be residents of the political subdivision sponsoring the-
project Therefore, it may be readilv concluded that the indigent transients invading California does no
[sic] do so for the sole purpose of seeking employment, but also to forage his [sic] way, through criminal
operations or otherwise, to sustain himself.
"Police experience indicates that a large percentage, over 50 percent in fact, of the incoming transients
have previously been convicted of one or more criminal offenses, the remaining 50 percent present another
large group of potential offenders."
• See appendix H, p. 50. ,. . .
io The attorney general stated that provisions of existing laws subjecting persons to arrest immediately
upon their entry into the State did not "confer upon peace officers the right to forcibly prevent such entry.'
ii The opinion of the attorney general concerning the legality of the border patrol is printed in appendix
B, p. 29. Cf. the following: "Flaying critics of Los Angeles' swift war on jobless, penniless winter
nomads, Mayor Frank L. Shaw today revealed a legal opinion by City Attorney Ray L. Cheseboro stating
that the police reinforcements of the border patrol were authorized by the city's charter." (Los Angeles
Herald-Express, February 5, 1936).
NATIONAL DEFENSE MIGRATION 10135
Los Angeles Police Chief James E. Davis, reporting in March 1936 on
"indigent alien transients," claimed great success for the border patrol
in terms of "millions of dollars" saved the State and the wholesale re-
duction of crime.12 He recommended that stopping of transients be
continued by certain State departments. In the middle of April Los
Angeles police officers were withdrawn from border stations.13
The present Governor of California, in assessing the role played by
the border patrol and subsequent attempts to bar migrants from the
State, has said:
When the border patrol was abandoned, an effort was made to get at the situ-
ation through legislative action, and in the 1935 session of the legislature, assembly
bill No. 2459 was introduced. * * * This bill, if enacted, would have had the
effect of preventing so-called paupers, indigents, and transients from entering the
State. It might also be added, in this connection, that on January 23, 1939,
assembly bill No. 1356 was introduced, which, if enacted, would have had the
same effect. I have cited these early approaches to the problem that were made
in California as indicative of its seriousness at that time. The failure of the border
patrol, waiving the question of its legality, is, of course, the best proof of the futility of
all such measures.1* [Italics supplied.]
THE PLIGHT OF THE MIGRANT AS A NATIONAL PROBLEM HAS BEEN
RECOGNIZED BY PRIVATE AND PUBLIC BODIES AND BY THE FEDERAL
GOVERNMENT
The poverty and destitution characterizing migration in the 1930's
made clear the national scope of the problem, and the futility of State
or local efforts to achieve a solution by driving migrants from their
border. Private welfare agencies had long been concerned with miti-
gating the harsh effects of the settlement laws. Their efforts were
directed largely to improving the practices involved in the transpor-
tation of dependent persons to their place of legal settlement.15 Early
in the 1930's private agencies concerned with the care of transients
were overburdened and the need for Federal assistance became imper-
ative. Special studies undertaken in these years showed how wide-
spread was the plight of the migrant and how great his need.16
u The report is printed in the Los Angeles Hearings of Select Committee, pp. 2978 ff. See also Mr. Davis'
report on Transiency in Southern California, December 1, 1937, ibid., pp. 3013 ff. For criticism of the ac-
curacy and relevance of the data contained in the report on Indigent Alien Transients, see California State
Emergency Relief Administration, Transients in California, op. cit., pp. 264, 265 (printed in appendix J).
is Mr. Davis reported that: "The following year [1936-37] the department was not in a position to carry on
such an [State-wide] operation. Instead, the Los Angeles Police Department arranged to police the muni-
cipal boundaries of the city of Los Angeles, particularly at the points of ingress of the railways, to arrest all
evaders of railroad fares and persons violating any of the sections of the vagrancy statute. Men were sta-
tioned on 24-hour watch at the points of ingress of the freight trains, who stopped and searched each train
headed toward Los Angeles. During the period from October 29, 1936, to January 23, 1937, this detail ar-
rested 2,558 railroad evaders and vag roamers. Those arrested, upon conviction and sentence, were placed
at manual labor upon firebreaks, roads, and other public works of a similar nature. This program was a
great deterrent to the influx of transients in the city of Los Angeles." (Indigent Alien Transients, Los
Angeles hearings of Select Committee, p. 3018.)
14 Hon. C. L. Olson, San Francisco Hearings of Select Committee, p. 2236. The legislative bills referred to
by Governor Olson are reprinted in appendix D. Assembly bill No. 2459, introduced May 16, 1935 (amended
in assembly March 31, 1939), is entitled "An act to prevent the entry into California of paupers, vagabonds,
indigent persons, person? likely to become public charges, providing means for enforcing the same and
prescribing penalties for the violation thereof, declaring the urgency thereof, and providing it shall take
effect immediately." Assembly bill No. 1356, introduced January 23, 1939, is entitled "An act to prevent
the entry into the State of California of paupers, vagabonds, and fugitives from justice, providing for enforce-
ment of this act, and prescribing penalties for the violation thereof."
15 See, for example, Jeffrey R. Brackett, The Transportation Problem in American Social Work, Russell
Sage Foundation, New York, 1936.
i9 Committee on Care of Transient and Homeless, "After Five Years— the Unsolved Problem of the
Transient Unemployed, 1932-37", May 1937, reprinted in New York Hearings of Select Committee, p. 52.
Among these studies might be mentioned: Family Welfare Association of America, Care of the Homeless
in Unemployment Emergencies, 1920; U. S. Department of Commerce, A Community Plan for Service to
Transients, 1931 (prepared by National Association of Travelers Aid Societies); U. S. Children's Bureau,
Memorandum on the Transient Boy, printed in Twentieth Annual Report of the Chief of the Children's
Bureau, June 30, 1932.
10136 THE EDWARDS CASE
All over the land, along the right-of-way of the railroads, on the margin of
towns, great and small, and on the city dumps, "jungles" sprang up where men
and boys — and sometimes women and girls — lived in a hand-to-mouth, debasing
existence, following a manner of life which could not be considered tolerable when
compared with the vaunted standards of living of the American people.
The spectacle of a native-born American from the Atlantic seaboard finding
himself in California an unwelcome applicant for relief; or of the Negro born and
reared in the Cotton States finding himself on the banks of the Hudson or the
Monongahela, thrown out of a job as a houseman or a steel hand, with no legal
right to help; these and other evidences of the dislocations of thousands of people
from their home environment and normal ties brought to the point of germination
the idea that if indeed the Union of States created a Nation, then, by virtue of
that national unity, the responsibility was vested first in the National Govern-
ment and then in the States to insure that no citizen of this Nation should be left
without assistance in his time of need. 17
Following a meeting of the National Conference of Social Work in
1932, the Committee on Care of Transient and Homeless was estab-
lished to devise a constructive program for destitute migrants. The
members of the committee were drawn from various national agencies
concerned with "transiency or homelessness," from universities, from
the field of social research, and from private life. These people set
about the task of gathering and analyzing the available data on
transiency. In January and March of 1933 they attempted an enum-
eration of homeless and transient persons. The 1-day census taken
in March and covering 765 cities enumerated 201,596 nonresidents,
distributed in every State of the Union but especially numerous in
California, Florida, and the Southwest.18 "The Committee in 1933
presented facts at congressional hearings on relief in support of its
contention that the special problem of the transient or unsettled
person was a Federal responsibility and that the needs could not be met
without financial assistance from the Federal Government." 19
The representations of the Committee on Care of Transient and
Homeless bore fruit in the provision included in the Relief Act of 1933
that States could obtain additional grants from the Federal Govern-
ment to aid needy persons lacking legal settlement in any one State or
community.20 The outlines of a "national program of relief to the
homeless and transient destitute" were formulated by the Federal
Emergency Relief Administration and communicated to all Governors
and State emergency relief administrations. It was pointed out that
"every State in the Union contributes in a greater or lesser degree to
the problem of transiency in every other State"; therefore, the States
should undertake in a constructive spirit to deal with a problem
national in its implications, for which Federal funds were now avail-
able.21 Transients were denned as needy persons less than 12 months
in the State.22
i' Committee on the Care of Transient and Homeless, New York Hearings of Select Committee, p. 52.
i8 Committee on the Care of Transient and Homeless, New York Hearings of Select Committee, pp. 52, 53.
i» Ibid., p. 53.
20 Section 4 (c) of the Federal Emergency Relief Act of May 1933 (Public, No. 15, 73d Cong.) provided:
"That the administration may certify out of the funds made available by this subsection additional grants
to States applying therefor to aid needy persons who have no legal settlement in any one State or com-
munity."
2" Committee on Care of Transient and Homeless, New York Hearings of Select Committee, pp. 53-54.
22 Since the term "legal settlement" was not denned in the Relief Act, and since the varying provisions of
State settlement laws were impracticable as a basis for providing relief, the more or less arbitrary definition
of a "transient" as a needy persons resident in the State less than 12 months was laid down. Three cate-
gories of the homeless population were distinguished: (1) Local homeless residents, (2) State homeless,
more than 12 months in the State, (3) transient homeless, less than 12 months in the State. It was con-
templated that the first two categories would be cared for under other sections of the act (See Webb, The
Transient Unemployed, op. cit., ch. I).
NATIONAL DEFENSE MIGRATION 10137
By October 1934, the District of Columbia and every State except
Vermont were operating transient services. Transient relief centers
were set up in the large cities and along the main-traveled routes.
Assistance given to needy transients included food, clothing, shelter,
medical care, education and recreation, transportation to place of
settlement, and useful work projects.23 The maximum transient case
load numbered about 200,000 unattached persons and 50,000 family
groups.24 Regarding the cost of the program from its inception through
December 1935, it is reported:
Total obligations incurred amounted to $85,779,319, covering materials, sup-
plies, and equipment purchased, relief extended, and administration and mis-
cellaneous costs.25
The Federal Emergency Relief Administrator authorized a State
program for transients in California on September 19, 1933. 26 The
prevalence of needy transients in California and the part that the
State played in soliciting Federal aid are noted in the following state-
ment by the Governor of California presented to the Select Com-
mittee on Migration:
* * * A 1-day census of transients was taken on September 1, 1933, which
indicated that at that time there were present in California approximately 101,174
destitute transients. Prior to this date a State-wide conference had been called
on the transient problem, at San Francisco, by the State emergency relief commis-
sion for August 17 and 18, 1933. To indicate how serious the problem was at that
time, it is sufficient to point out that the railroad having the largest mileage in
California reported nearly a Quarter of a million evictions of trespassers from
trains within the State of California in the first 6 months of 1933. During this
7-month period. 49 trespassers had been killed and 117 others injured on this one
railroad in California. The consensus at this conference was unanimous that
Federal aid must be solicited and to this end California took the initiative in
urging congressional action.
The gravity of the situation in California was, of course, one of the important
considerations that led to the creation of the Federal Transient Service, which
went into effect in connection with the passage of the Federal Emergency Relief
Act of 1933. During the period from May 12, 1933, until September 20, 1935,
when the Federal Transient Service was discontinued, the rigor of the situation
in California was considerably abated. How important this Service was in
California is indicated by the fact that although California, according to the census
of 1930, had only 4.7 of the total population of the Nation, it was found that the
California case load of the Federal Transient Service accounted for about 13.5
percent of all transients aided by the Service. At times during this period the Fed-
eral Transient Service was caring for as many as 38,815 transients in California.27
With the liquidation of Federal transient aid, States began to set up
border patrols and "bum blockades." In California some people
J3 The operations of the Federal transient program are described in Interstate Migration, Report of Select
Committee, pp. 596 ff.; Committee on Care of Transient and Homeless, New York Hearings of Select Com-
mittee, pp. 53 ff.; and in a special Round-table Hearing of Select Committee, Washington hearings, pt. 10,
pp. 4217 ff. The oneration of the Federal transient program in California is described in California State
Relief Administration, Review of Activities 1933-35, San Francisco, 1936, chs. VIII, IX.
» Webb, The Transient Unemployed, op. cit., p. 1; Williams, op. cit., p. 148. A study of the Federal
Transient Program states: "No accurate measure of the number of persons who actually constituted the
transient army is available. The neak registration for 1 month was reached in August 1934, a total of 395,384
unattached individuals and 16,232 family groups being reported for that moment. At no time did the
midmonthly census exceed that of February 1935, when the record stood at 300,460." (Committee on Care
of Transient and Homeless, New York Citv, Mav 1937, Now York Hearings of Select Committee, p. 50).
" Monthly report of the Federal Emergency Relief Administration, December 1, through December 31,
1935, p. 79, cited by Committee on Care of Transient and Homeless, New York Hearings of Select Com-
mittee, p. 57.
»« California State Emergency Relief Administration, Transients in California, op. cit., p. 24.
« Hon. C. L. Olson, San Francisco Hearings of Seloct Committee, p. 2236. From the beginning of the
Federal transient program through December 31 , 1935, Federal grants to California for transient relief totaled
almost $9,000,000. This does not include an additional final grant. See footnote 28 relow (California State
Emergency Relief Administration, Transients in California, op. cit.. p. 30) . Total unemployment relief ex-
pended in California from January 1, 1933, to December 31, 1935, amounted to $235,000,000, two-thirds
of which came from the Federal Government (California State Relief Administration, Review of Activities,
1933-35, op. cit., p. 25).
60396— 42— pt. 26 12
10138 THE EDWARDS CASE
justified these police barriers because Federal aid for relief had been
withdrawn.28 Public officials, overburdened with relief problems,
kept soliciting aid from the Federal Government.
Throughout 1937 the problem became increasingly acute, with conferences
being held on the problem of transient and migrant care in San Francisco, Tulare,
San Jose, and Los Angeles in the summer, and numerous applications and peti-
tions were sent to Washington for Federal assistance throughout the year.29
Despite the attempts at exclusion by the border patrol, and the
drive against "squatter" and "jungle" camps that sprang up every-
where in the State, the transient army continued the westward march.
The distress of migratory families, particularly those with rural
background, was in part alleviated again by Federal assistance in the
form of direct relief grants, migratory camps, and medical aid.30 The
role of the Federal Government in relieving California's transient
problem through the Farm Security Administration camp program and
in other respects was recently emphasized by the Governor of
California:
Yet despite all of the concerted activities, and despite the fact that, in the years
intervening since 1931, thousands of migrants had been transported back to their
place of origin, the influx into California continued. The emergency of 1937
was, in fact only abated by prompt and effective action on the part of the Farm
Security Administration which, in the spring of 1938, inaugurated its medical-aid
program for indigent agricultural workers, and later in the same year began its
program of grants-in-aid which, for the time being at any rate, relieved the pres-
sure upon the State and county governments in California. Had it not been for
this action on the part of the Farm Security Administration and its continuance
to the present time, the situation would be much graver in California than it is
today. From the preceding outline, it is, I think, apparent that California
has been torn by agitation over the migrant issue more or less continuously from
1931 to date, with periodic crises which have arisen from time to time which have
only been overcome in each instance by Federal intervention.31
Apart from the help extended by the Federal Government through
the Farm Security Administration, benefits are generally withheld
from migrants, as the following pages show. A comprehensive pro-
gram of public assistance embracing migrants as well as nonmigrants
remains to be formulated. The Federal Government, however, has
recognized the importance of the problems of moving people by inves-
tigations and reports made subsequent to the Federal transient pro-
gram. Thus, in 1937, Senate Resolution 298 (74th Cong.) resolved:
That the Secretary of Labor is hereby authorized and directed to study, survey,
and investigate the social and economic needs of laborers migrating across State
lines, obtaining all facts possible in relation thereto which would not only be of
public interest but which would aid the Congress and the States in enacting
remedial legislation. The Secretary of Labor shall report to the Senate, with
recommendations for legislation.
28 Los Angeles Times, February 7, 1936, cited in Janow and Beecroft, op. cit., p. 483, footnote 15. Near
the end of the Federal transient program in December 1935, the Federal Government made a "final transient
grant" of $500,000 to California. On July 1, 1936, unexpended balances available for transient aid amounted
to $275,000. The State relief administration survey in 1936 commented: "That persons should have been
allowed to starve or forced to exist in the way this survey has shown to be the case while there was this
much money available in the hands of the State relief administration is hard to understand" (Transients in
California, op. cit., p. 37.)
29 Hon. C. L. Olson, San Francisco Hearings of Select Committee, p. 2237.
so Ibid.
3i Ibid.
NATIONAL DEFENSE MIGRATION 10139
In conformity with this resolution and with the help of various
private and public agencies 32 the Secretary of Labor tendered a report
to the Senate (75th Cong.) under date of July 3, 1937.33
In 1939 and 1940 a subcommittee of the Senate Committee on
Education and Labor made an exhaustive examination of the problems
of agricultural migratory labor in California and in the Nation as a
whole in investigating violations of civil liberties.34
In June of 1940 the Interdepartmental Committee to Coordinate
Health and Welfare Activities presented a report on Migratory
Labor to the President of the United States.
The House of Representatives passed a resolution on April 22, 1940
(H. Res. 63, 76th Cong.) providing—
That the Speaker appoint a select committee of five Members of the House,
and that such committee be instructed to inquire into the interstate migration of
destitute citizens, to study, survey, and investigate the social and economic
needs, and the movement of indigent persons across State lines, obtaining all facts
possible in relation thereto which would not only be of public interest but which
would aid the House in enacting remedial legislation, and shall have the right to
report at any time.
The Select Committee held hearings in key cities throughout the
Nation and presented its report to Congress April 3, 1941.36 By fur-
ther resolution Congress extended the work of the Select Committee and
broadened its mandate to include the investigation of migration arising
in connection with the national-defense program.36
THE NONRESIDENT IS GENERALLY EXCLUDED FROM PUBLIC AID
In 1935 the policy of Federal aid for relief was replaced by the
social security and works programs. The abandonment of the tran-
sient program and the return of general relief to the States left the non-
resident in his former disadvantaged position.37 Old-age and other
assistance rendered through the Social Security Board permitted the
States to maintain or erect lengthy residence requirements.38
The Federal Work Projects Administration laid down the policy
that equal opportunity in project employment be given to residents
and nonresidents; however, the certifying procedures were handled
through the State welfare agencies, which excluded persons lacking
settlement in the State or political subdivision.39 Similar discrimina-
tion against nonresidents was manifest in other programs involving
the expenditure of Federal moneys.40
32 These included the Resettlement Administration, the Social Security Board, the U. S. Department
of Labor, the U. S. Public Health Service, the Works Progress Administration, the Continuing Committee
of the Interstate Conference on Transients and Settlement Laws, the Council of State Governments, the
Social Science Research Council, and the National Committee on Care of Transient and Homeless (see
California State Relief Administration, Transients in California, op. cit., p. 289).
33 No funds were appropriated for the investigation, and the report was not printed. Excerpts are printed
in the Washington Hearings of Select Committee, part 10, p. 4085 ff.
si Violations of Free Speech and Rights of Labor, hearings before a Subcommittee of the Committee on
Education and Labor, TJ. S. Senate, pursuant to S. Res. 266, 74th Cong., vols. 46-77; supplementary hear-
ing, vols. 1-3.
35 H. Rept. 369.
3« H. Res. 113, 77th Cong. The committee is now known as the Select Committee Investigating National
Defense Migration.
3? Interstate Migration, Report of Select Committee, pp.601 fl.;Ryan, Migration and Social Welfare, op.
cit., pp. 54-55; Janow and Beecroft, op. cit., p. 478; California Relief Administration, Review of Activities
1932-35, op. cit., pp. 199-200.
38 Testimony of Miss Phyllis Osborn, regional representative of the Bureau of Public Assistance, Social
Security Board, Kansas City, Mo., Oklahoma City Hearings of Select Committee, p. 2175.
39 Fred R. Rauch, Acting Commissioner, Federal Works Agency, Work Projects Administration,
The Relationship of the Work Projects Administration to Migrant Families Seeking Work, Washington
Hearings of Select Committee, pt. 9, pp. 3641 ff.
« See The Nonresident and Federal Aid, Washington Hearing of Select Committee on National
Defense Migration, July 21, 1941.
10140 THE EDWARDS CASE
Every year the Federal Government disburses billions of dollars to
the States for various types of aid, including grants for road building,
for certain educational purposes, for public health work, for aid to
aged, blind, and dependent persons, for the administration of unem-
ployment compensation and employment service. The Federal Gov-
ernment also makes payments directly to individuals in the form of
surplus commodities, wages on Work Projects Administration,
National Youth Administration, and Civilian Conservation Corps
projects, benefit payments for crop reduction and soil conservation,
assistance to needy farm families, etc.41 From July 1, 1933, until
June 30, 1939, selected Federal expenditures (not including loans) in
the State of California totaled about l){ billion dollars.42
For the fiscal year 1939 alone California participated in these
moneys in the amount of $192,000,000; 28 million Federal dollars
were devoted in 1939 to the "assistance, employment, security, health,
and welfare" of California citizens, 128 millions for general relief and
work programs, 21 millions for agricultural aid, and 15 millions for
"all other" types of aid.43
Notwithstanding the facts that nonresidents are citizens of the
United States, and that these moneys are drawn from the wealth
and income of the whole Nation, nonresidents are denied the privileges
of State citizenship by States receiving bounty from the Federal
Government.
Public assistance provided by State and local funds is equally
withheld from the nonresident.44 Since 1931, California has required
that county aid to indigents be limited to those lawfully resident in
the State for 3 years and in the particular county for 1 year.45 The
Unemployment Relief Act of 1940 provides that persons entering the
State after June 1, 1940, are not eligible for relief benefits under the
State relief administration mi til 5 years of continuous residence have
been completed; those entering the State prior to that date must
have 3 years of residence.46 The only relief available to needy new-
41 Fiscal Capacity of the States: A Source Book, U. S. Federal Security Agency, Social Security Board
Bureau of Research and Statistics, Memorandum No. 43, 3d ed., revised 1940. See also D. S. Gerig, Jr.,
The Financial Participation of the Federal Government in State Welfare Programs, Social Security Bulle-
tin, January 1940, vol. 3, No. 1, pp. 21-33.
42 Consolidated State Reports of Selected Federal Expenditures July 1, 1933-June 30, 1939, compiled by
Office of Government Reports, Statistical Section, October 1940, Rept. No. 9—1933-39, p. 2.
« Fiscal Capacity of the States: A Source Book, p. 32, table 6.
44 See brief of amicus curiae, p. 12.
48 A California statute of 1901 (ch. 239) providing "for the maintenance and support in certain cases of
indigent, incompetent and incapacitated persons'' required recipients of such aid to be continuously resi-
dent in the State for at least 1 year. In 1931 this law was amended (ch. 110) to require 3 years' residence in
the State. In 1933 the indigent law of 1901 was repealed, and a substitute law was passed (ch. 761), pro-
viding among other residence requirements that a person to receive aid must have lived 3 years continuously
in the State and 1 year in the county (see California State Emergency Relief Administration, Transients in
California, op. cit., pp. 37 fi).
It might be noted that the State relief administration was not bound by the residence restrictions out-
lined above, It was contemplated in the statutory definition of eligibility for aid, that migratory workers
and nonresi'lenls be provided with unemployment relief by the State relief commission (Senate bill 940,
ch. 675). Prior to 1940 a residence requirement of 1 year was set by commission rule (Summary of Social
Security Welfare, and Relief Programs, California, submitted by Harrison S. Robinson, chairman of
State-wide committee on the migrant problem, California State Chamber of Commerce, San Francisco
Hearings of Select Committee, p. 2484). However, the State emergency relief administration noted in 1936
(Transients in California, op. cit., p. 287) : "The relief administration has in large part, chosen not to expend
its funds for relief of nonresident migratory workers." A report on the transient program of State relief
administration in Los Angeles County, February 1939. states: "Since September 1935 there has been a
gradual restriction of care to transients until we find, in February 1939, a program simply of emergency care
pending verificat ion of residence, authorization for return, and transportation (James B. Reese, Los Angeles
Hearings of Select Committee, p. 2889).
48 "In May 1940, the legislature adopted a statute providing that persons entering California after June 1,
1940, must have 5 years' continuous residence to be eligible, and that those who had entered the State prior
to that date must have 3 years' residence, with the exception that anyone who had been certified as eligible
for relief prior to February 18, 1940, is exempt from these residence provisions, and the further exception that
temporary care can be furnished nonresidents for a period of 30 days pending verification of their legal resi-
dence and transportation thereto" (Robinson, San Francisco Hearings of Select Committee, p. 2484).
NATIONAL DEFENSE MIGRATION 10141
comers are the meager hand-outs of the private charitable agencies
or the limited assistance rendered through the Federal Government.47
Undoubtedly the problems of aid to such persons are partly grounded
in the uneven incidence of their influx into certain localities.48 County
budgets in these and other localities for certain types of welfare aid
have increased in recent years. Over-all generalizations are not
permissible, however, with respect to the relation of migration to the
trend of public expenditures in California. According to a represent-
ative of the United States Department of Agriculture:
* * * our studies reveal no direct relationship between distressed migration
to California and public costs in general.49
Population growth and the steady extension of public services
account for most of the increases. Thus it was found that —
From 1930 to 1939 total disbursements for all counties in the State rose 27
percent during the same period that population was increasing 18 percent, result-
ing in a per capita increase of only 7 percent (from $63.31 per person in 1930 to
$67.85 per person in 1939).
It is interesting to compare these changes with those of the preceding decade,
the twenties, during which period population increased by 65 percent and county
disbursements by 198 percent, or a per capita increase of 80 percent (from $35.20
per capita in 1920 to $63.31 per capita in 1930). Nothing approaching such a
rise in either population or public expenditures has taken place during the last
decade.50
This finding accorded with a specific analysis of public expenditures
in Yuba County, Calif., the jurisdiction in which the instant case
originated.61 Total county expenditures varied widely; increases in
most' items were relatively small (the exceptions were education and
charities and corrections). Increasing proportions of county disburse-
ments were derived from State and Federal subventions. Since 1936
Federal contributions have constituted about 10 percent of total
county funds. Regarding the relation between increases in county
public expenditures and migration during the past decade, two analysts
from the United States Department of Agriculture state:
* * * Nor can it be said that such increases as have been made during the
decade are not solely the result of a general tendency to increase public services.
Under normal conditions a 50-percent increase in population (such as occurred
in Yuba County during the decade) should have resulted in much greater increases
in expenditures. A 65-percent increase in California's population in the decade
1920-30 was accompanied by a 198-percent increase of all county disbursements,
or a per capita increase of 80 percent. Yuba County's expenditures show no
such relationship.52
47 "Mr. Curtis: Governor, who takes care of the people who arrive here who cannot qualify for relief
under State laws if they are hungry?
"Governor Olson: I might say no one, except for such little aid as is given through our division of immi-
gration and housing to try to get them placed through the Farm Security Administration, with its limited
funds, and through local voluntary charities.
"It is entirely inadequate, of course. They are unable to draw the money appropriated by the legislature
for unemployment relief under existing law" (Hon. C. L. Olson, San Francisco Hearings of Select Com-
mittee p. 2249).
Data' cited in appellee's brief show that more than three-fifths of the family heads on State relief rolls in
Yuba County during February 1939, had been in the State more than 5 years (Appellee's brief, dated April
28, 1941, p. 16).
«* Janow, San Francisco Hearings of Select Committee, pp. 2291-2292; Harrison R. Robinson, Summary
of the Report and Recommendations, Statewide Committee on the Migrant Problem, California State
Chamber of Commerce, San Francisco I'earings of Select Committee, p. 2474.
«• Frederick Arpke, Recent Distressed Migration to California and the Trend of Public Expenditures,
San Francisco I'earings of Select Committee, p. 2425.
«° Frederick Arpke, Recent Distressed Migration to California and the Trend of Public Expenditures,
San Francisco I'earings of Select Committee, p. 2423.
«i Frederick Arpke and H. J. Voth, The Relationship between Changes in Public Expenditures in Yuba
County, California, and Recent Migration into the County (files of Select Committee).
« Frederick Arpke and H. J. Voth, The Relationship between Changes in Public Expenditures in Yuba
County, California, and Recent Migration into the County (files of Select Committee).
10142 THE EDWARDS CASE
THE NATIONAL-DEFENSE PROGRAM CALLS FOR THE FREE MOBILITY OF
THE ABLE-BODIED POPULATION
The unfettered right to migrate in search of economic livelihood
needs no stronger justification than the requirements of the national
defense program. Investigations of the Select Committee on National
Defense Migration show that millions of Americans are on the move
to fill the defense demand for workers in factory and field, mine and
office.53
The four chief centers of defense activity in California have drawn
almost 170,000 migrant workers since August 1940. Half of these have
come from outside the State. Almost 100,000 of them have been
placed in industrial defense jobs.54 California employers are actively
engaged in recruiting workers with special types of skills and work
habits from various parts of the Nation.55
Many of the migrants are pursuing highly skilled migratory occupa-
tions (e. g., construction) from one defense center to another. Great
numbers are disadvantaged people who were unemployed or under-
employed during the depression and who are again responding to the
call of economic opportunity. The core of destitution hardened in
the 1930's is slowly dissolving. Distress migration is transforming
into job migration.56
Defense-job opportunities are concentrated in the urban-industrial
States. These States are not sufficient unto themselves. Labor
shortages appear in specific industries, and labor needs are fulfilled
from every part of the Nation.57 Those workers with strategic occu-
pational skills are being sought the length and breadth of the land.
Others are being trained for the necessary skills in centers distant
from their homes.58 For purposes of training and job placement to
meet defense demand, the Nation's workers comprise one single
national labor pool.59
The President of the United States has called for the participation of
all citizens and all groups in the national defense effort.60 The
Federal Government has undertaken "to see that each and every
person in the Nation is employed at his or her maximum usefulness in
the defense effort." 61
All workers have not yet found jobs, and all destitution has been
by no means banished. The least that is owing to those whose in-
comes and jobs have been removed through no fault of their own is
the opportunity to reclaim their useful and productive place in society.
h The Federal Security Agency estimates that half a million workers will have to be imported to 116
defense centers within a twelve-month period (Washington Hearings of Select Committee, pt. 17, p. 6743);
U. S. Public Health Service estimates that there will be an influx of almost 2,500,000 civilians to certain
militarv and industrial defense areas (Washington Hearings of Select Committee, pt. 17, p. 6690).
m Report of California Department of Employment, Washington Hearings of Select Committee, pt. 17
p. 6744.
" Ibid., p. 6750; testimony of Richard M. Neustadt, regional defense coordinator, Federal Security
Agency, San Francisco, Calif., San Diego Hearings of Select Committee, p/4950.
"The Chairman. In other words, where a year ago several States were trying to keep migrant workers out,
now you are trving to get them in.
Mr Neust\dt. Yes. It is either a feast or a famine, and right now it is a famine in some instances
» * *." (Ibid. p. 4957.)
» See testimony and exhibits of Arthur J. Altmeyer, Chairman, Social Security Board, Federal Security,
Agencv, Washington Hearings of Select Committee, pt. 17, pp. 6724 ft
57 "Workers are being selected from every known source and from all sections of the Nation to relieve the
shortages that have developed" (report of Kentucky Unemployment Compensation Commission, Washing-
ton Hearings of Select Committee, pt. 17, p. 6769).
to Testimony of Sidney Hillman, Associate Director General, Office of Production Management, VV asn-
ington Hearings of Select Committee, pt. 16, pp. 6343 ft
it "The Employment Service is no longer recruiting men from a particular city or State. Each employ-
ment office is a recruiting center for the entire United States. Each employment office is a link in a national
effort." (Altmeyer, Washington Hearings of Select Committee, pt. 17, p. 6728.)
*o Executive Order No. 8802 of June 25, 1941.
•i Altmeyer, Washington Hearings of Select Committee, pt. 17, p. 6728.
NATIONAL DEFENSE MIGRATION 10143
Conclusion
In our complex society, widespread unemployment and destitution
are more than a charge upon the local community; the forces bringing
them about are national and even international in scope. Are the
victims of these impersonal economic forces to be labeled with the
pauper's badge and deprived of the rights, privileges, and immunities
of citizenship?
When 20,000,000 persons at one time are forced to seek public
relief, to identify poverty with crime is to convict a nation. When a
million persons, separated from their homes and jobs, half of whom are
destitute or nearly so, migrate to California in the hope of bettering
their lot, the attempt to bar them by statute is as fruitless as King
Canute's exhortation to the ocean waves.
How tragic and how absurd would be the actual enforcement of the
antimigratory statute against half a million migrants. How tragic
and absurd, indeed, was the result when, in defiance of the Consti-
tution of the United States and of the declared opinion of the State
attorney general, police officers were stationed at the points of
California border entry in a vain attempt to press back the irre-
sistible tide.
A law which makes it a crime to bring persons into a State who are
"indigent" (or likely to become a public charge) is necessarily pros-
pective in its reference. Who can say in advance whether this person
will succeed in finding employment and that one fail? Whether this
person will subsist at the expense of the public and that one on the
bounty of relatives?
If every State in the Union could prejudge the economic fate of
these people and turn them away at its borders, where would they go?
Where would the Duncans of America go?
APPENDICES
A. Charts showing residence requirements for settlement in the
various States 1931-40.
B. Copy of opinion of U. S. Webb, former attorney general of Cali-
fornia, on the legality of border patrol.
C. Copies of articles from the files of the Los Angeles Herald-Express
relating to the border patrols at the California State line during
1935-37.
D. Copies of Assembly bills (California) No. 2459 and 1356.
E. Copies of articles from the files of the Florida Times-Union and
New York Times relating to the border patrols at the Florida
State line 1934-37.
F. Copy of executive order of Governor Edwin C. Johnson, Colorado,
dated April 20, 1936.
G. Copies of articles from the files of the Denver Rocky Mountain
News relating to the border patrols at the Colorado State line
1936.
H. Opinion of Stephens, District Judge, in the matter of John Langan
v. Jarhes E. Davis, as chief of police of the city of Los Angeles,
March 17, 1936.
I. Opinion of Burr, Judge, in the matter of Adams County v. Burleigh
County, Supreme Court of North Dakota, 1940.
J. Excerpt on California Border Patrol from California State Relief
Administration, Transients in California, San Francisco, 1936,
pp. 243-266.
K. Compilation of all State antimigratory legislation, including
exclusion laws and removal statutes.
10145
10146
THE EDWARDS CASE
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NATIONAL DEFENSE MIGRATION
10147
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10148 THE EDWARDS CASE
APPENDIX B
(Copy of opinion by U. S. Webb, former attorney general of California, on the
legality of border patrol)
San Francisco, February 18, 1986.
Hon. Arthur G. Arnoll,
Secretary and General Manager, Los Angeles Chamber of Commerce,
Los Angeles, Calif.
My Dear Mr. Arnoll: I have considered with care your recent letter, in
which you refer to and in a measure describe the plan, having the approval of
the Los Angeles Chamber of Commerce, and which "has been worked out by
the police department of the city of Los Angeles," having for its object the pre-
vention, insofar as possible, of the coming to this State of indigent persons who
will become a charge upon this State, and will to some degree, as you say, increase
the probability of crime. Insofar as this object may be lawfully accomplished,
it is worthy of unqualified approval, but organized government, neither State,
county, nor municipal, should attempt the achievement of a laudable purpose
by unlawful means.
The constitution of this State authorizes the creation of local governments,
county and municipal, and those governments and their officers function within
their respective territorial limits. The operation of one municipal government
within the territorial limits of another is not countenanced or authorized. The
operation of the government of one county within the territorial limits of another
is not countenanced or authorized, nor can the efforts of one of such governments
to discharge the duties which belong to another be defended.
The police of the city of Los Angeles have no jurisdiction beyond the city's
territorial limits, and the police department of the city of Los Angeles is not
authorized to interfere with or discharge the duties devolving upon police author-
ities of another government, municipal or county.
The independence of these several governments, each of the other, has long
been recognized, and the instances where one of such has sought to invade the
territorial limits of another have been fortunately of infrequent occurrence.
If the invasion by one of such governments of the domain of another and the
effort there to discharge the duties of the local officers of such other government
were permitted, it can readily be apprehended that the evils which might result
in given instances would far outweigh any good that might be accomplished in
other instances.
May I at this point quote a paragraph of your letter:
"The plan which has the approval of this chamber of commerce has been
worked out by the police department of the city of Los Angeles, in cooperation
with the sheriffs, not only of Los Angeles County, but of all border counties of
the State; and this plan provides for the deputizing of officers of the Los Angeles
Police Department in connection with border counties of the State by the sheriffs
of such counties, with the consent of the boards of supervisors of these counties."
Passing the question of the incompatible character of the duties of a member
of the police force of the city of Los Angeles and a sheriff of one of the counties
of this State, we come at once to the question of the eligibility of a police officer
of the city of Los Angeles to act as a deputy sheriff of any county in the State
other than the county of Los Angeles.
Under provisions of the political code of this State no person is eligible to the
position of a deputy sheriff in one of the counties of this State, except he be an
elector of such county. Obviously the members of the police department of the
city of Los Angeles are not electors of any county in the State save the county of
Los Angeles.
The police officers of the city of Los Angeles not being eligible for appointment
as deputy sheriffs in other counties, the sheriffs of such other counties may not
legally so appoint them, with or without "the consent of the boards of super-
visors of these counties."
No question is here made as to the powers that may be exerted within the
municipality of Los Angeles by its police department, and no question is made as
to what may be done elsewhere in aid of or in cooperation with the local officers
of other municipalities or other counties of the State, so long as the law is not
thereby violated.
Government, State, county, and municipal, should protect and preserve and
defend general welfare, but this ultimate object should be accomplished through
lawful methods. Government no more than the individual can justify the
reaching of even proper ends through unlawful means.
NATIONAL DEFENSE MIGRATION 10149
Whatever may be lawfully done by the officers of one government in aid and
support of the officers of another, in law enforcement and the preservation of
general welfare may be approved.
The apprehension of any and every person falling within the scope of section
647 of the Penal Code by the local officers of the local government in which such
persons are found, may be lawfully accomplished. If by arrangement between
officers of the different governments such action can be aided, encouraged, and
supported, such arrangements as do not violate the law are of course entirely
justified and defensible, but beyond that which is lawful neither government nor
its officers should go.
On November 24, 1931, at the instance of a committee of Los Angeles officials
and citizens, a meeting was called by the Governor of this State to consider
identically these same questions, and as a result of that meeting the officers of all
border counties were communicated with, urged to the greatest activity, within
lawful limits, in an effort to check the immigration to this State of those who
would here become a public charge. One or more employment camps, as result
of that determination, were established, and for some months maintained, and the
evil was for a long period greatly checked, but the effort was not continued through
the years, and I understand largely because of the cost which resulted, and per-
haps in some degree as result of the false security felt because temporarily this
invasion had been checked. That effort was entirely within the law, and in my
judgment should have been continued, for the good accomplished greatly out-
weighed the cost of the effort. I sat in that meeting and this office advised much
that was then and thereafter done.
I note your statement "that an official of your office in Los Angeles has raised
the question as to the legality or constitutionality of this procedure."
You are there referring to the procedure as your letter outlines it.
This office has advised, as I have indicated in this letter, that members of the
police department of the city of Los Angeles may not legally be appointed
deputy sheriffs in other counties of this State. Further than that I think no
member of this office force has gone.
For a long period this office has keenly appreciated the existence of the evils
which' your letter describes, and during all of that time has aided every proper
effort to check this invasion, and our attitude in this regard has in no manner
changed.
I note your closing paragraph, in which you state:
"I trust that we may have your cooperation in connection with this burden
upon the taxpayers of the State," etc.
In reply to this suggestion, I state again, we have during the years that have
passed given the cooperation of this office to every lawful effort to relieve the
State and its people of this unjust burden, and such efforts will continue so long
as the evil exists.
The plan which your letter describes presents still other and different questions.
The outstanding question so presented is: How far may one State go in preventing
the entry into such State of citizens of the United States resident of other States?
As between the States, the right of citizens to ingress and egress has very
generally been recognized and upheld. Full recognition of this right was given
and guaranteed to the residents of the colonies by the Articles of Confederation.
Those rights were carried and continued by section 2 of article IV of the Constitu-
tion in the declaration that —
"The citizens of each State shall be entitled to all privileges and immunities of
Citizens in the several States." '
Almost 100 years ago Chief Justice Taney said:
"We are all citizens of the United States, and as members of the same com-
munity must have the right to pass and repass through every part of it without
interruption, as freely as in our own States."
This language was quoted approvingly by Chief Justice Miller in Crandall v.
State of Nevada (73 U. S. 49), and we find no conflicting utterances in any sub-
sequent decision of the Supreme Court of the United States.
In Paul v. Virginia (75 U. S. 180), Justice Field said:
"It was undoubtedly the object of the clause in question to place citizens of
each State upon the same footing with citizens of other States, so far as the
advantages resulting from citizenship in those States are concerned. It relieves
them from the disabilities of alienage in other States; it inhibits discriminating
legislation against them by other States; it gives them the right of free ingress
into other States, and egress from them; it insures to them in other States the
same freedom possessed by the citizens of those States in the acquisition and
enjoyment of property and in the pursuit of happiness."
10150 THE EDWARDS CASE
Some exceptions, however, have been repeatedly indicated. A State may
undoubtedly protect itself from the incoming of persons afflicted with contagious
diseases, of fugitives from justice, of persons convicted of crime, and of persons
whom the State may deem dangerous to its peace or who would, upon their entry
into the State, be subject to arrest and imprisonment by virtue of some existing
statute of the State.
This power to prohibit, however, the entry of such persons rests in the govern-
ment and is to be exercised through the legislative branch of the government.
It is for the legislature to determine the classes who may be so prohibited. The
power to so determine and to exclude without legislative action does not rest in
the officers of the State. It is generally recognized that the officers of a govern-
ment may exercise those powers only which have been by proper authority
expressly delegated to them.
Section 647 of the Penal Code, to which we have referred, and other provisions
of our statutes may subject persons coming across our borders to arrest immedi-
ately upon their entry into this State, but none of these statutes confer upon
peace officers the right to forcibly prevent such entry.
I have gone somewhat at length into these matters in order to point out to
you some of the difficulties which confront us. So far as we may rightly go in
this matter the conditions warrant our going. In so dealing with the question,
however, we should always keep in mind the relative rights, obligations, and duties
of our sister States and of the citizens of the United States. Other States will not
be expected to complain of that which we rightly do, but they may be expected
to complain, and their right to complain must be admitted, of those things which
we wrongly do.
In this as in other matters we should steadily keep in mind that we are one of
the sisterhood of States, and while asserting our own rights we should recognize
fully the rights of other States. As other States must do unto California, so must
California do unto them, for such is the mandate of the Federal Constitution.
Very truly yours,
U. S. Webb, Attorney General.
APPENDIX C
Following are copies of articles from the files of the Los Angeles Herald-Express
relating to the question of border patrols at the California State line during
1935-37:
[Herald-Express, May 17, 1935]
Assembly Body Backs Bill to Bar Indigents
Sacramento, May 17 (by United Press). — A bill which would make California
a "closed corporation" to indigents as a means of relieving the unemployment
situation was given a favorable recommendation today by the Assembly com-
mittee on unemployment.
Providing for the possible use of armed guards to prevent entrance into Cali-
fornia of persons likely to become public charges, the measure represents one of
the most drastic proposals yet submitted to the legislature.
Introduced by Assemblymen Kent Redwine, Hollywood, and William Moseley
Jones, Montebello, the bill provides that "all paupers, vagabonds, indigent per-
sons and persons likely to become public charges and all persons affected with con-
tagious or infectious disease are hereby prohibited from entering the State of
California."
Full powers would be granted the Governor to take whatever steps he thought
necessary to enforce the proposed law during an emergency period ending July
1, 1939.
Under provisions of the measure it would be necessary for an individual to prove
he was not subject to the restrictions before he would be permitted to enter
the State.
Pointing to the steady arrival of persons without employment or resources, the
authors said that "if this influx continues social and economic rehabilitation may
be impossible."
The effort to isolate California in this respect grows out of the tremendous
influx of population which occurred during the gubernatorial campaign of 1934.
Thousands of people, attracted by the promises of relief made in the bitter cam-
paign, flocked to California, making its relief problem one of the severest in the
Nation.
NATIONAL DEFENSE MIGRATION 10151
[Editorial, Herald-Express, May 21, 1935]
Extremely important to the welfare of this State and its citizens is a measure
that will come up in the California Legislature for action during the present week.
It is known as the Jones-Redwine bill, and it is intended to keep outside our
borders the horde of indigent persons constantly invading this State and becoming
public charges on our already heavily overloaded ability to extend charity.
Naturally our people are extremely sympathetic with those who are unable
to gain a livelihood, wherever they may be. At the same time, it is a bounden
duty for each State to care for its own needy, and everybody knows we have more
than our proportionate share of such unfortunates now.
This is one measure that contains no politics. The authors of the bill are as
far apart in political thought as the poles — one a conservative Republican and
the other a leader of the epic Democrats.
Both these men realize the importance of relieving the citizens of this State
from any further load, and hence in their measure they seek to bar entry to
paupers, vagabonds, indigents, persons afflicted with contagious and infectious
diseases, and those likely to become public charges.
In a ruling by the United States Supreme Court, as cited by Maj. Walter
Tuller, it remarked: "It may be admitted that the police power of a State justifies
the adoption of precautionary measures against social evils. Under it a State
* * * may exclude from its limits convicts, paupers, idiots, and lunatics,
and persons likely to become a public charge * * * a right founded * * *
in the sacred law of self-defense."
California cannot afford to become known as the "poorhouse of the Nation."
It cannot afford it financially, because our extreme resources are now being taxed
to support the great number of unemployed and needy citizens we already possess.
Nor can California afford it merely as a matter of reputation nor because of the
lowering of standards of living which would inevitably follow such a condition.
Yet such a fate lies ahead of the Golden State unless the legislature acts promptly
and decisively to keep out the multitudes of indigent whose eyes may now be
turned in this direction.
The bill with a tentative enforcement limit of July 1, 1939, requires all persons
seeking to enter California to establish affirmatively their ability to support them-
selves and makes it the duty of government to establish regulations for enforcing
the law.
This proposed act is distinctly emergency legislation, and it should be put
through all the necessary stages of passage as quickly as possible.
[Herald-Express, August 24, 1935]
Stay Away From California Warning to Transient Hordes
San Francisco, August 24. — Indigent transients heading for California today
were warned by H. A. Carleton, director of the Federal Transient Service, "to
stay away from California."
Carleton declared they would be sent back to their home States on arrival here
due to closing of transient relief shelters and barring of Works Progress Adminis-
tration work relief in the State to all transients registered after August 1.
"California is carrying approximately 7 percent of the entire national relief
load, one of the heaviest of any State in the Union," said Carleton. "A large
part of this load was occasioned by thousands of penniless families from other
States who have literally overrun California."
Carleton estimated the transient influx at 1,000 a day.
[Herald-Express, December 11, 1935]
Urge Prison Camp Hard Labor for "Boxcar Tourists"
As a means of keeping indigent transients out of Los Angeles, prison camps,
at which convicted vagrants would be put to hard labor, might solve much of the
city's problem with this type of "tourists," the Los Angeles Chamber of Com-
merce today declared in a communication to the city council.
The chamber declared that the question of caring for indigent transients is
becoming increasingly more difficult and that establishment of the hard labor
camps might have the effect of slowing up "this invasion." The council referred
the matter to the police commission for recommendation and report.
10152 THE EDWARDS CASE
[Herald-Expre- s FeDruary 4, 1936]
Indigents Barred at Arizona Line
While a tumultuous row was raging in city council over Police Chief James E.
Davis' "expeditionary force" of policemen to halt the indigents over California's
far-flung borders, the lid was successfully clamped on the Arizona-California line
today.
The spectacular row in the council broke out when Councilman P. P. Christen-
sen, consistent critic of Davis, introduced a resolution demanding by whose
authority the police chief was sending 136 of his "coppers" to the State line
"trenches."
At the same time Deputy Chief Homer Cross said the entry ports on the
Arizona boundary had been blocked against transients in an effort to halt the
"flood of criminals" and divert the stream of penniless transients.
Within 3 more days, Cross estimated, the blockade would be similarly effective
on the Oregon and Nevada lines, abutting California territory.
The skirmish began right after Councilman Evan Lewis took the floor to argue
in favor of Christensen's resolution.
Meantime from Sacramento to Phoenix, Ariz., the reverberations resounded.
At the California capital Deputy Attorney General Jess Hession declared he
believed Davis' methods illegal. Governor Frank F. Merriam withheld comment
but State Senator Thomas Scollan, who had brought about defeat of an indigent-
barring law at the last session of the legislature, characterized the "expeditionary
forces" as "damnable, absurd, and asinine."
At Phoenix, Attorney General John L. Sullivan caustically declared if California
tried to "dump" indigents back on his State, he would take swift action in reprisal.
In Los Angeles, Councilman Earl C. Gay, also took the floor and hotly opposed
Lewis and Christensen. "As usual," Mr. Gay said, "Mr. Lewis is talking about
something he knows nothing about." His face flushed and making no effort to
hide his indignation, Councilman Lewis leaped to his feet. His first remarks were
drowned by the gavel of Council President Robert L. Burns, who tried to leave the
floor to Gay. Lewis remained on his feet and continued to shout as Burns loudly
pounded for order. Half a dozen other councilmen tried to gain the floor. Gay
then resumed his argument, insisting that the action of the police chief probably
was dictated by the police commission.
ASKS LEOAL OPINION
The Christensen resolution was amended and sent to the city attorney's office
requesting that official's legal opinion on the following points:
1. Legality of the action taken by the police commission in sending the "ex-
peditionary force" to the border.
2. Jurisdiction of the council over the matter.
3. Has the city the legal right to expend city funds for salaries and expense
accounts of police officers assigned to police duties outside the city boundaries?
4. Are the pension rights of police officers assigned to such duties valid in
event any such officers are killed or injured on duty?
5. Has the police commission legal authority to detail policemen to police duty
on the various State border lines, as contemplated in their recent assignments?
ORDERS OUTLINED
"Tactical orders" under which the city police were seeking to dam the tide
of trouble at the border were outlined by S. L. Harman, assistant secretary of the
Los Angeles Chamber of Commerce. He said police and civic authorities were
seeking to stop at the State line persons riding trains without paying fares; give
these persons the option of leaving the State or serving jail terms; and finally, to
discourage from entering California all auto parties without apparent sources of
support.
In the sieve of the widespread border patrol, the officers, by fingerprinting
methods, expected to catch or at least keep out of California a considerable
number of wanted criminals, Harman said.
NATIONAL DEFENSE MIGRATION 10153
[Los Angeles Herald-Express, February 5, 19361
Rule Guard at Border Legal
Flaying critics of Los Angeles' swift war on jobless, penniless winter nomads,
Mayor Frank L. Shaw today revealed a legal opinion by City Attorney Ray L.
Chesebro stating that the police reinforcements of the border patrol were author-
ized by the city's charter.
Meantime, against hesitant cooperation and even outspoken opposition from
Arizona, Nevada, and Oregon, Police Chief James E. Davis' flying squadrons of
136 city police officers succeeded in turning back hundreds of indigents and has
caused at one border port, Blythe, a 50-percent drop in incoming hordes.
NO DUMPING GROUND
Mayor Shaw declared Los Angeles would not be the dumping ground of charity-
seekers, fleeing from the more rigorous winters in practically every other State in
the Union. He declared that on January 31, when the police commission showed
him the gravity of the winter indigent problem with its trail of crime and added
relief burdens, he asked City Attorney Chesebro for the legal opinion and received
authority for Davis to set up the police "foreign legion."
"It is important to note," Mayor Shaw said, "that Los Angeles is facing a
desperate situation if we permit every incoming freight train to bring us a new
shipment of unemployed, penniless vagrants, to consume the relief so seriously
needed by our needy people and to create a crime menace almost beyond con-
ceivable control.
"Officials of cities and States en route will not permit these transients to leave
the trains, preferring for their own safety that the problem should be dumped in
Los Angeles.
"Our own recourse is to reinforce the sheriffs of the border counties with men
loaned from the Los Angeles Police Department who can turn back the front
ranks of these oncoming hordes promptly and in such numbers that the invasion
can be halted at its sources as soon as the news reaches the east.
"We are simply trying to apply an ounce of sensible prevention to save a pound
of costly cure later on. Critics of the plan have either not taken pains to examine
facts or for mysterious reasons of their own are content to see Los Angeles filled
with a homeless indigent army of thousands, recruited from every State in the
Union and threatening every security and hope of our own working people.
"It is noteworthy that the critics have no constructive proposals of their own
to offer with reference to this very real problem."
SLAP AT FACTION
The mayor's tart remarks were interpreted in city hall circles as a slap at the
council faction which yesterday maneuvered a unanimous request from the council
to City Attorney Chesebro for an opinion on specific points not covered by the
opinion Chesebro gave the mayor.
A possible major development today was the suggestion of Governor Frank F.
Merriam at Sacramento for a meeting of western States Governors to seek means
of halting the westward tide of jobless.
"There are stations in Arizona," Governor Merriam said, "where chambers of
commerce furnish gasoline to itinerants to help them along to California."
Speaking on the much-questioned legality of Los Angeles' far-flung expedition-
ary force, the Governor said, "I guess Los Angeles can do it; its city boundaries
go almost that far."
Governor B. B. Moeur, of Arizona, declared, according to Phoenix dispatches,
that Los Angeles was bluffing.
CHARGES "SCARE"
"What the Los Angeles police are trying to do is unconstitutional," he said.
"They are simply trying to scare travelers away by threats of fingerprinting.
I am investigating."
On the Oregon front, Governor Charles H. Martin said at Salem that the
situation was alarming and that he was investigating through his State police
force whether California's border could be closed to transients.
At Carson City, Nevada's Governor, Richard Kirman, said he was "not ex-
cited" by the transients' ban, but was watching a possible high tide of border-
60396 — 12— pt. 26 13
10154 THE EDWARDS CASE
halted indigents, hurled back onto Nevada relief agencies. As the "war" went
into its second day, wires hummed with communiques from the local front:
Yuma, Ariz.: Sgt. D. A. McCoole turned back six transients.
Blythe, Calif.: Sgt. B. B. Eubanks' detail turned back 200 indigents and
reported the flow diminished to less than half during second 24 hours; 8 finger-
printed, 6 found with guns.
Needles, Calif.: Influx slowed down to a single alleged hobo. At nearby-
Cadiz, Sheriff Emmett Shay investigated set-up to report to San Bernardino
County supervisors on advisability cooperating by deputizing Los Angeles
' 'reinforcements . ' '
Trtjckee, Calif.: Subzero cold had halted vagrant influx, but Sheriff Carl
Tobiason of Nevada County deputized Los Angeles police who showed up in
arctic boots and mackinaws.
Alttjras, Calif.: Fourteen officers denied commissions by Sheriff John C.
Sharp of Modoc County till he hears from attorney general whether it's legal.
Crescent City: Del Norte County's sheriff, Austin Huffman, refused commis-
sions pending inquiry.
Plumas County: Sheriff L. A. Braden cooperating but not deputizing officers
from Los Angeles.
Siskiyou County: Sheriff W. G. Chandler deputized 14 officers from Los
Angeles; 7 stationed at Hornbrook and 7 at Dorris on great Pacific highway travel
artery.
Sergeant D. Douglas, in charge of the "expeditionary force," reported to Davis
that his men were halting tramps riding the "blind baggage" of railway trains
and hitch-hiking into the State in autos. Of 16 men stopped at one port, Douglas
reported 8 were found to have police records.
Sworn in as local deputies in the counties in which they are stationed, the officers
of the squadron were taking hoboes off freight cars, tenders, and blind baggage
compartments and holding them on two charges, vagrancy and evading railroad
fares. Railroads are cooperating with the police, Chief Davis said. He explained
the only reason the railroads had not succeeded earlier in halting the westward
influx of tramps was lack of special officers. Some freights carry 50 or 60 hoboes,
Davis said, and the men on the train crew are helpless to throw them off.
The chief, meantime, defended his plan on the ground that in sending 136 of
his men to the State's outposts he has taken a "humane and legal course and the
only one that will work."
"For years various plans have been advanced for discouraging these people
from coming to California but nothing very efficient ever developed," the chief
said. "Now with Government relief being gradually withdrawn, the situation
is becoming alarming, if not desperate, to the residents of this community."
"If we wait until these thousands of indigents scatter over the 460 square
miles of incorporated Los Angeles, the police department will have little control
over them, but if we stop them at the arteries now being guarded, the situation
is considerably simplified. If this is done, we confidently expect a 20-percent
decrease in the crime total in the next 12 months. Records show that 65 to 85
percent of migratory indigents come to southern California. Fingerprinting of
vagrants and street beggars recently showed that approximately 60 percent of
these have criminal records. If we remember that to obtain Government work
one must have been a resident in the State at least a year, it can readily be seen
that the hordes of indigents are not coming to California for work. They are
coming to get on relief rolls, to beg, and to steal."
The chief said he expected hoboland's grapevine would promptly pass the word
to jungle camps.
"Our work will be all the more effective and easier when the bums learn that
California authorities are actively hostile to them," Chief Davis said.
[Los Angeles Herald-Express, February 6, 1936]
Report All Beggars Is Plea
Along California's hundreds of miles of land frontier and on the home front in
this city, Los Angeles police battled today to turn back hordes of jobless, penniless
transients, who are said to have been pouring into this sunny clime from the-
wintry east at the rate of 6,000 to 7,000 a month.
NATIONAL DEFENSE MIGRATION 10155
Developments in the police campaign included:
1. Police Chief James E. Davis, after a conference with Sheriff E. W. Biscailuz,
called on Los Angeles housewives to report immediately all beggars who come to-
the doors of the city's residential districts.
2. Governor Frank F. Merriam was requested today by Governor Richard
Kirman, of Nevada, to "intervene" and prevent Los Angeles police expeditions
on the border throwing indigents back into Nevada. Governor Merriam was
expected to ask Kirman to join in asking the Federal Government to take a hand
in halting the migrant work-fleeing hordes.
3. Ernest Besig, of San Francisco, director of the American Civil Liberties
Union, a radical organization, demanded criminal and civil actions to halt Los
Angeles police activities against the annual midwinter transient movement.
4. Sheriff Biscailuz broadcast to all sheriff's substations orders to enforce the
State antivagrancy laws in unincorporated territory, with due care on the part
of deputies not to hinder any lawful, personal rights.
5. On three State "fronts" sharp declines in the number of "gentlemen of the
road" were recorded by vigilant police patrols.
6. Chief Davis was refused permission by A. C. Fleury, chief of the State
bureau of plant quarantine, to use State quarantine stations on the highway
entering California, as police outposts. Fleury said he could not grant the chief's
request until assured the police expeditionary forces were legal.
[Los Angeles Herald-Express, February 12, 1936]
Seek to Balk Los Angeles Police Border Guard
Arizona, which has been gently shooing indigents westward into California for
years, rose in wrath yesterday and threatened to call out the State's National
Guard troops because Los Angeles, with its police blockade, has started the tide
of jobless roamers back toward the East. The threat was caused by the side-
tracking in Tucson of a boxcar in which some 50 eastern transients had been
started homeward by the police along the border.
TUCSON CHIEF ACTS
Police Chief C. A. Woolard at Tucson acted when his men arrested 22 of the
homeless men. He asked Gov. B. B. Moeur to call out troops "to stop California
from dumping hoboes in Arizona."
Whether the Tempe physician, who rose to the office of Governor of the neigh-
boring State, would take this militaristic step was a question. But calling out the
guard is no new experience for Governor Moeur. The last time he did it was to
stop the Government Reclamation Service from constructing the Parker Dam, a
part of the Los Angeles aqueduct system. The troops responded nobly, rushing
to the river bank and then creating an "Arizona navy" with a couple of scows
to patrol the water front. Today the dam is rapidly proceeding toward com-
pletion with the Arizona warriors back in their homes and possibly waiting for
the new call to arms.
DAVIS IN APPEAL
Police Chief James E. Davis considers California is not "dumping its bums"
but merely moving transients back whence they came. Chief Davis pointed
to the rapidly dwindling westward trickle of transients and called on all California
to purge itself of hoboes.
Chief Davis appealed to police chiefs in other California cities to join him in
the drive. The response from some places was immediate. Officials at Santa
Ana, for instance, said they had established a rock pile not only for hoboes but
for drunk drivers and other offenders.
[Los Angeles Herald-Express, February 19, 1936]
Group Demands Los Angeles Police Be Recalled From California Border
A formal demand that Police Chief James E. Davis' "foreign legion" be with-
drawn from California's borders was filed with the police commission today by
the American Civil Liberties LTnion, which asked that the police squads be
returned to the city. Clinton J. Taft, California director of the union, said his
10156 THE EDWARDS CASE
organization was prepared to seek a court injunction if necessary to stop the
police patrol. At the same time written protests against the "bum blockade"
program were filed with the police board by the Hollenbeck Borough Voluntary
Board and the Hollywood Open Forum. While the protests were being received,
the police commission approved the allocation of an additional $1,000 to the
border patrol of 166 policemen, effective today; another $1,000 for February 20,
and a third $1,000 effective February 21.
APPENDIX D
Assembly Bill No. 2459
Introduced by Messrs. Redwine and Jones, May 16, 1935; referred to committee
on unemployment
An act to prevent the entry into California of paupers, vagabonds, indigent persons,
persons likely to become public charges, providing means for enforcing the same
and prescribing penalties for the violation thereof, declaring the urgency thereof,
and providing it shall take effect immediately
The people of the State of California do enact as follows:
Section 1. Large numbers of paupers, vagabonds, indigent persons and persons
likely to become public charges have been, and are, coming into this State, bur-
dening the relief rolls, creating further unemployment in the State, and subjecting
our workers to competition with pauper labor. This influx of unemployed and
unemployables at the present time seriously threatens the safety and welfare
of the people of this State, and, if continued, will destroy the State. In order to
protect this State and the people thereof from pauper labor; also to save this
State and its people from impossible financial burdens in caring for vast numbers
of paupers and indigent persons; also to preserve the public peace, health, and
safety; also to preserve the standard of living of the people of this State and to
maintain the general welfare and to protect and defend this State, it is impera-
tively necessary that hereafter no paupers, vagabonds, indigent persons or persons
likely to become public charges, shall be allowed to enter or shall enter this State.
Sec. 2. All paupers, vagabonds, indigent persons are hereby prohibited from
entering the State of California.
Sec. 3. It is hereby made the duty of the Governor of this State to enforce the
provisions and purposes of this act by the means herein provided and by any
other means that he may find necessary to enforce the same. He is hereby author-
ized and directed to use all means that may be necessary to enforce this act. He
is also authorized to cooperate with the United States of America in all ways
looking towards the effectuating of the purposes of this act.
Sec. 4. Every person whose right to enter the State of California is in question
must affirmatively establish that he is not one of the persons excluded from entry
under the terms of this act; the burden of proof shall be upon each such person.
Sec. 5. The Governor is hereby authorized and directed to use, in his discretion,
any present agency, officers or officials of the State, and, if he deems it necessary
or expedient, to create such new agency or agencies and employ such personnel
as may be necessary to adequately enforce this act. He may also use the officers
and officials of any county, city and county, city, or other municipal corporation
in the enforcement of this act.
Sec. hVi. The Governor is authorized and directed to in every practicable way carry
into effect all of the provisions of this act and to that end may set up and maintain at
State lines on major or other highways, under the jurisdiction of any department of the
State designated by him, either temporary or permanent offices, stations, or bureaus,
for the identification of persons and the inspection of motor vehicle or vehicles and
to supervise and direct the use of the highway or highways by the person or persons,
vehicle or vehicles, entering the State.
Sec. 6. It shall be the duty of the Governor, either personally or through such
official as he may designate for that purpose, to make and enforce all rules and
regulations that may be necessary to carry out and enforce the purposes of this
act. All such rules and regulations shall be filed in the office of the Secretary of
State and shall be effective from the date of such filing. The Governor may
likewise alter such rules and regulations from time to time. Any person who
shall violate any of the provisions of this act or any of the rules and regulations
so promulgated shall be guilty of a misdemeanor and upon conviction thereof
NATIONAL DEFENSE MIGRATION 10157
shall be subject to a fine not exceeding five hundred dollars ($500) or imprison-
ment in the county jail not exceeding one (1) year, or both such fine and imprison-
ment; in addition any person so convicted who fails to establish that he was a
bona fide resident of the State of California at the date of the approval of this
act shall be summarily deported from the State of California.
Sec. 7. If any section, subsection, clause or phrase of this act is for any reason
held to be unconstitutional, such decisions shall not affect the validity of the
remaining portions of this act. The Legislature hereby declares that it would
have passed this act irrespective of the fact that any one or more sections, sub-
sections, sentences or clauses or phrases thereof be declared unconstitutional.
If in any action, suit or proceeding it be adjudged that any provision of this
act is unconstitutional as applied to the particular facts involved in such action,
suit or proceeding, any judgment or decision rendered therein shall not affect the
application of the provisions of this act in any other action, case, suit or proceeding.
Sec. 8. This act is passed to meet the emergency herein recited and shall remain
in force only until February 1, 1937.
Sec. 9. Should any person enter the State of California in violation of the terms
of this act, then upon the discovery of such person at any place in this State he
shall be summarily deported from this State.
Sec. 10. This act is hereby declared to be an urgency measure within the
meaning of section 1 of Article IV of the Constitution and necessary for the im-
mediate preservation of the public peace, health, and safety and shall take effect
immediately.
The facts constituting such necessity are as follows:
There exists in the State of California, in the United States and throughout the
world a grave economic depression. Many persons have long wanted to live in
California and now finding themselves without employment and without means of
support in their fixed place of residence they have been and are moving to Cali-
fornia in large numbers. There are hundreds of thousands of employable persons
now within this State, most of whom are California citizens and who have no
employment and who, together with their families, are now being maintained at
public expense. In addition, today there are also hundreds of thousands of
unemployed persons in this State who are not maintained by the public, but for
whom no employment is available. There are also tens of thousands of unem-
ployable persons in this State who are now being maintained at public expense.
Vast numbers of paupers, vagabonds, indigent persons and persons likely to
become public charges have been and are coming into this State, burdening the
relief rolls, creating further unemployment in the State, subjecting our workers to
competition with pauper labor, and threatening the continued prosperity, health,
safety and welfare of the people of this State. The entry into this State of unem-
ployed persons who do not have sufficient means to support themselves results in
large numbers of such persons being maintained at the expense of this State, or
in the cases in which such persons obtain employment they displace workers already
employed in California and the displaced workers and their families are forced
upon public relief. If the influx of destitute unemployed continues it will be im-
possible to provide the sums necessary for relief or to provide employment for the
increased numbers of jobless persons. The coming of large numbers of persons of
the classes mentioned threatens the peace and safety of the State and it is impera-
tive that no more paupers, vagabonds, indigent persons or persons likely to
become public charges, shall enter or be permitted to enter this State.
(Amended in assembly March 31, 1939)
Assembly Bill No. 1356
Introduced by Mr. Houser, January 23, 1939; referred to Committee on Social
Service and Welfare
An act to prevent the entry into the State of California of paupers, vagabonds, and
fugitives from justice, providing for enforcement of this act and prescribing penalties
for the violation thereof
The people of the State of California do enact as follows:
Section 1. Large numbers of paupers, vagabonds, and fugitives from justice
have, and unless restrained will continue to, come into this State, and have created
a problem of relief and law enforcement. This influx of such persons is detri-
mental to the best interests of this State and this statute is enacted in the exercise
10158 THE EDWARDS CASE
of the police power of this State as a matter of self-preservation, and to prevent
the overburdening of facilities of the State for the relief of destitution and for law
enforcement.
The Legislature hereby declares that the enactment and enforcement of this act
is essential to the welfare of the people of this State.
Sec. 2. All paupers, vagabonds, and fugitives from justice are hereby prohibited
from entering the State of California.
For the purposes of this act a pauper is a person who is likely to become a public
charge within three years.
Sec. 3. The Governor of this State shall enforce the provisions of this act in the
manner provided in this act or by any other means or methods available. In
carrying out the provisions of this act the Governor is authorized to cooperate
with any agency of the United States of America or of any other State of the
United States.
Sec. 4. The Governor is hereby authorized to use, in his discretion, any depart-
ment, board, commission, officer, or other agency of the State to enforce this act;
and he may create any additional agency which, in his discretion, he finds neces-
sary to carry out the provisions and to effectuate the purposes of this act.
Sec. 5. The Governor shall make and enforce all rules and regulations necessary
to enforce this act. Such rules and regulations shall be filed with the Secretary
of State and shall be effective from and after date of such filing.
Sec. 6. The Go\ernor shall provide for the establishment of inspection points
within this State and on each highway, road, or railroad entering this State; and
he shall provide for inspection of all persons entering this State by boat, airplane,
or anv other method.
Sec. 7. Any person authorized by the Governor to inspect prospective entrants
into this State is hereby authorized to examine under oath such prospective entrants
for the purpose of determining whether such prospective entrants are paupers,
vagabonds, or fugitives from justice. Any person may be restrained from entering
this State if the person so authorized reasonably determines that he is a pauper,
vagabonds, or fugitive from justice.
Sec. 8. Every person whose right to enter this State is questioned must affirma-
ively establish that he is not a person whose entry is prohibited under the pro-
visions of this act.
Any person who has been refused the right to enter the State of California as herein
provided shall have the right to bring a proceeding in the superior court of the county
which he was prohibited from entering to test the validity of his exclusion. The
defendant in said suit shall be the Attorney General of the State of California, whose
duty it shall be to defend the same. Process shall be served upon said Attorney
General, who shall make answer within ten days after the same is served upon him.
Said suit shall be heard and determined as soon as the convenience of the court will
permit. The burden of proof shall be upon the plaintiff to establish affirmatively
that he is not a person whose entry into this State is prohibited by the provisions of
this act.
Sec. 9. Any person who enters the State of California in violation of this act is
guilty of a misdemeanor.
Sec. 10. Should any person enter the State of California in violation of the
terms of this act, then upon the discovery of such person at any place in this
State he shall be summarily deported from this State.
Sec. 11. If any section, subsection, clause, or phrase of this act is for any reason
held to be unconstitutional, such decision shall not affect the validity of the
remaining portions of this act. The Legislature hereby declares that it would
have passed this act irrespective of the fact that any one or more sections, sub-
sections, sentences or clauses or phrases thereof be declared unconstitutional. _
If in any action, suit, or proceeding it be adjudged that any provision of this
act is unconstitutional as applied to the particular facts involved in such action,
suit, or proceeding, any judgment or decision rendered therein shall not affect the
application of the provisions of this act in any other action, suit, or proceeding.
NATIONAL DEFENSE MIGRATION 10159
APPENDIX E
(Following are copies of articles and headlines from the files of the Florida
Times-Union and the New York Times from 1934 to 1937 relating to border
patrols at the Florida State line.)
[New York Times, December 6, 1934]
Florida to Bar the Indigent
Trenton, Dec. 5. — David Scholtz, [sic] Governor of Florida, today asked
Governor A. Harry Moore to cooperate in preventing transients from making
their way to Florida. Governor Scholtz [sic] served notice that no more tran-
sients would be admitted to Florida camps and those trying to enter the State
without means of support would be turned back.
[Florida Times-Union, December 7, 1934]
Sholtz Fears Jobless May Prove Menace
calls for cooperation in preventing needy invading state
Tallahassee, Dec. 6. — The possibility of a crime wave as a result of the
unprecedented number of jobless transients being in the State presented a problem
today for public officials.
Calling upon sheriffs and others to make every effort to get the jobless wanderers
started on their way home, Gov. Dave Sholtz said "this is one of the greatest
perils that has ever threatened our State." * * *
Governor Sholtz urged public officials to "take drastic action" so that "this
threatened evil may be nipped in the bud. After hordes of these people are here
it may be too late."
Earlier this week, Governor Sholtz telegraphed governors of all States east of
the Mississippi River to "serve notice" upon their people that no more transients
could be accommodated in this State, and that there was no available employment.
If transients without jobs or visible means of support come to the State, an
effort will be made to turn them back at the State line. Should they succeed in
entering the State they face "arrest, which would be unpleasant and unprofitable
to all concerned," the Governor warned. * * *
[Florida Times-Union, December 11, 1934]
Patrol Established To Check Transient Travel Into Florida
Tallahassee, Dec. 10. — A motorized patrol took up its task of turning back
transients at the Florida border today.
E. A. Schunnan, highway department official under whose direction the patrol
operates, said passenger automobiles will not be molested unless the equipment
indicates the occupants "are travelling on a shoestring." * * *
[New York Times, December 23, 1934]
FLORIDA EXPECTS INFLUX OF JOBLESS
Governor Asks Other States to Help Turn Back Horde of Drifters —
No Work For Them There — Border Patrol Suggested as the Federal
Transient Camps are Filled
Lakeland, Fla., Dec. 20. — * * *
border patrol suggested
Governor Dave Sholtz has taken a hand in the matter by announcing to all
and sundry of the jobless that stringent measures will be resorted to if there is
the slightest necessity for such a step. He has also appealed to Governors of
eleven other States to cooperate in keeping back the usual horde of drifters. _ He
has gone so far as to suggest a patrol along the Georgia-Florida line to investigate
the status of those whose appearance arouses suspicion, asserting that the situa-
tion "is one of the greatest perils that has ever threatened the State." * * *
10160 THE EDWARDS CASE
Federal transient camps can take care of a maximum of 11,000, and that limit
was reached some time ago. Prospective applicants who have not yet reached
Florida should be warned quickly that they will be bitterly disappointed. This
is contrary to a report broadcast through the other States several weeks ago.
It inadvertently or erroneously urged the jobless to come to balmy Florida, and
failed to point out that normally balmy weather does not keep one from needing
food and clothes. * * *
[Florida Times-Union October 16, 1936]
Indigents Proven Resourceful by Attempts to Enter State
Enterprising hitchhikers, many with scant means of existence, develop new
methods from day to day to outwit an alert motorized patrol Florida has estab-
lished to stem the flow of indigent transients.
Patrolmen guarding the State's frontier against penniless invaders admit
themselves puzzled in coping with some of the ruses employed against them.
In the first three days of the patrol's work for this season, they have turned
back scores who sought admittance on arterial highways — most of them bumming
rides on trucks entering the State.
By the end of this week, most of the patrol stations will be sufficiently manned
to stop every vehicle entering the State to see that it contains no hitchhiker.
The day when the poor and jobless saunter across the border, unharmed and
unhindered, are gone. Modern transportation methods are utilized to get into
the State in the guise of routine business or pleasure travel.
Some transients are spending 25 to 50 cents for bus or train fare from some
town in South Georgia to the nearest Florida point. From Kingsland, Ga., to
Yulee, Fla., is but a few miles, for instance, and the fare is within easy reach of
all but the poorest.
Others found it easy to pay truck drivers for a ride into Jacksonville, Lake City,
Monticello, or one of the other gateway cities of Florida. But this practice is
falling rapidly into disuse, because trucks are being stopped and their hitchhiker
passengers are being sent walking back home.
Patrolmen, stopping rattle-trap cars whose occupants look like they might
become charges of the State, sometimes are embarrassed.
"I stopped one car that looked like it was about to fall apart," a patrolman
related. "I asked the driver, a Tennessee mountaineer, if he expected to find
work in the State. He said he wasn't looking for a job and wouldn't have one."
"I questioned him some more, and then asked:
" 'Well, have you got any money?'
" 'Why didn't you ask that in the first place?' he came back. 'Sure I've got
money.' And produced a fat roll of bills."
One boy was taken off a truck early this week and, after some questioning,
admitted he had paid the driver $2 for a ride from Savannah to Jacksonville to
avoid the motor patrol.
"The truck driver had left by then," a patrolman related, "or I would have
arrested him, or at least have made him give the boy his money."
Most of the men return peacefully. None is driven off by force. If they
won't go after being told to do so, they are arrested or (sic) vagrancy.
A few argue their constitutional rights are being overstepped, but the patrolmen
only listen.
On the Savannah-Jacksonville highway approximately 30 were turned back
Monday and Tuesday. From the Valdosta-Lake City patrol station came the
report more than 50 had been stopped.
Few appeared Wednesday because of intermittent rains that kept them well
back from the State line under shelter.
[New York Times, October 25, 1936]
Florida Again Acts To Bar "Drifters"
state, while "inviting world" sets up a patrol to keep out "undesir-
ables"—25,000 halted a season
Florida finds itself in the embarrassing position of inviting the world to come
here for the Winter and then stopping thousands of would-be visitors at the State
line to ascertain whether they would be good visitors.
NATIONAL DEFENSE MIGRATION 10161
* * * for the third successive season Governor Dave Scholtz (sic) has estab-
lished a border patrol to keep out those who might become a burden to others.
Upon arriving at the State line, "drifters" who have no money and no prospects of
a job are being turned back with the firm explanation that they are not wel-
come. * * *
The border-patrol method is the most effective Florida has been able to devise
for the protection of the better class of Winter visitors. It is sociological, not
mercenary, but it obviously is not a complete success. Too many ingenious
undesirables manage to slip past the guards.
However, as fast as they cross the State line and proceed down the Peninsula
they are running into a second obstacle — the local police. In most of the larger
communities like Miami, St. Petersburg, Tampa, and Jacksonville, police have
begun an intensive drive on vagrants. * * *
[New York Times, November 20, 1936]
Florida Bars Out 2,000 by "Poverty Quarantine"
Jacksonville, Fla., Nov. 19. — The Florida motor patrol, conducting a "bor-
der blockade" against penniless transients, estimated that by this week end it
will have shunted from the State 2,000 hitch-hiking, rod-riding, and flivver-
driving itinerants.
The second year of the poverty quarantine has brought a lessened flow of
warmth-seeking transients, it was said, although comparative figures are lacking.
Governor Dave Sholtz, who ordered the blockade, said that about 50,000 were
turned back last season.
The Florida winter season is not yet under way, and a greater number of jobless
wanderers are expected with the New Year.
The patrol was established to keep persons without funds from entering the
State and turning to crime for support, Governor Sholtz said. They are ineligible
for State or Federal relief.
[New York Times, December 20, 1936]
Florida is Divided on Border Patrol
opponents of ban on indigents attack move — others point to reduced
CRIME
Lakeland, Fla., Dec. 18. — Florida is a house divided against itself over the
question of whether Governor Dave Sholtz shall continue to maintain a patrol
at the State line to turn back would-be Winter visitors who have little or no
money and no job in sight.
Maintained during the past two Winter seasons, the patrol drew no audible
complaints from Floridians, but objections have been expressed in every section
of the State during the past few days.
It is undemocratic and unconstitutional to prevent United States citizens from
passing at will from one State into another, say Floridians who view the patrol as
the instrument of dictatorship.
It is a reasonable and effective method of avoiding a congestion of parasitic
indigents and criminals, argue those who stand with Governor Scholtz [sic] in
the matter of turning back visitors.
THOUSANDS ARE STOPPED
Several thousand persons described as "penniless drifters" have been stopped at
the Georgia-Florida line this season, and other thousands will be halted if public
opinion and a new Governor do not abolish the patrol.
* * * Criticism of the patrol plan by the press throughout the country has
stimulated increasingly vigorous protest among Floridians who fear it will mar
the State's reputation for hospitality. They assert that a welcome should be
extended to rich and poor alike, especially since more jobs are available when the
tourists arrive and citrus crops are being harvested. * * *
10162 THE EDWARDS CASE
[New York Times, September 11, 1937]
Florida Lifts Ban on Idle
governor doubts legality of road closing, but warns racketeers
Tallahassee, Fla., Sept. 10. — Florida's boundaries, closed for two winters'
to fundless job-seekers, will be open this year to all who come South. But
"vagrants, crooks, and racketeers in fine limousines or Pullman cars" had best
beware of local police and Sheriff's forces.
Governor Fred P. Cone gave the warning today in announcing he would not
reestablish the road patrol that formerly guarded five arterial highways into
Florida, "unless it becomes necessary."
"I don't think it's constitutional to tell a man he can't go from one State to
another," the Governor said. "Just because a man's poor and wants to find a
job in Florida is no reason for keeping him out of the State. Why, some of the
worst people that come to Florida in the wintertime are racketeers in fine limou-
sines and Pullman cars. There are plenty of crooks in fine automobiles."
[New York Times, October 3, 1937]
Governor Cone Has Poked Old Embers Into Flames by Announcing
* * * He Will Not Establish a Border Patrol To Keep Out Jobless
Persons * * *
the border patrol
Most Miamians who are calling for a border patrol at the northern boundary
of the State are doing so on the ground that Miami will have to bear most of the
burden if indigent transients are allowed to enter. They argue that most Winter
transients, seeking a warm climate and pick-up jobs, eventually land in Miami.
Waving critics aside, the Governor insists that it would be exceedingly un-
democratic to close the State to unfortunates.
Miami is taking steps locally to combat any influx of dependent camp followers.
* * *
APPENDIX F
(Executive Order of Governor Edwin C. Johnson, Colorado, dated April 20, 1936)
State of Colorado,
Executive Chambebs,
Denver.
(Copy of)
Executive Order
Proclamation
Whereas certain individuals within the State of Colorado are acting in con-
junction with large numbers of persons outside of said State who are aliens and
indigent persons to effect an invasion of said State; and
Whereas it has been made to appear to me that a large number of said persons
who are without means of support are entering, and, unless prevented, will con-
tinue to enter the State by crossing the southern boundary thereof, and
Whereas the entering of aliens and indigent persons into this State in such large
numbers constitutes an invasion that will create, encourage and cause a condition
of lawlessness and inevitably tend to discontent and unrest among the citizens of
this State generally, and particularly along the southern border thereof, and will
lead to social disorder and disturbances among our people, more particularly be-
cause the existing economic depression has rendered it impossible for many of our
own citizens to find employment or to procure means of subsistence other than
through public and private charity, and
Whereas said invasion into this State, if continued, may result in serious com-
motions and disturbances of the public peace and produce conditions of public
disorder which the local and State authorities will be unable to cope with, and
Whereas, by reason of the conditions hereinbefore set forth an emergency exists;
Now, therefore, I, Ed. C. Johnson, Governor and Commander in Chief of the
Military Forces of the State of Colorado, by virtue of the power and authority
NATIONAL DEFENSE MIGRATION 10163
in me vested, do hereby declare and proclaim that the area consisting of a strip
of territory one mile in width along the southern boundary of the State, from the
east boundary thereof to the west boundary thereof is threatened with an invasion
and the same is hereby placed under martial law.
The Adjutant General, Neil W. Kimball, is hereby directed to order out such
troops as in his judgment may be necessary and proceed therewith to the locality
herein described, and, with no more interference with the ordinary operation and
processes of civil government in said territory than shall be necessary in the use
of said military forces, to prevent and repel the further invasion of this State by
any such aliens, indigent persons, or invaders, and to repel and return all such
persons found in said territory to the State from which they shall have entered
said described area.
Furthermore, I call upon all patriotic and law-abiding citizens of said State to
desist and refrain from, in any manner aiding, abetting or encouraging any such
aliens, indigent persons, or invaders in entering the State, or in any way interfering
with the due execution and processes of this proclamation.
In witness whereof, I have hereunto set my hand and caused to be affixed the
Great Seal of the State of Colorado.
Done at the State Capitol, in Denver, this Eighteenth day of April, in the Year
of Our Lord, One Thousand Nine Hundred and Thirty-six.
Governor and Commander in Chief.
Attest:
Secretary of State.
APPENDIX G
(Following are copies of articles and headlines from the files of the Denver Rocky
Mountain News relating to the border patrols at the Colorado State line during
1936.)
[Denver News, April 19, 1936]
Troops Close State to Aliens, Jobless
governor declares martial law and mobilizes national guard on southern
border to check aliens denver national guard will leave sunday to
patrol highways and inspect every train
Drive is drastic
PLAN IS TO ELIMINATE ALL WHO COME HERE JUST TO GET ON RELIEF ROLL3
By Barron B. Beshoar
f Khaki-clad troops of the Colorado National Guard will move into Southern
Colorado early Sunday to repulse a threatened invasion of alien beet laborers and
indigent workers from Mexico, New Mexico, and Texas.
In a sensational move, Governor Johnson Saturday declared a state of martial
law to exist over a strip of territory one mile wide, extending 360 miles along the
Colorado-New Mexico border from Kansas to Utah.
Following issuance of the executive order— which becomes effective immedi-
ately— Adjt. Gen. Niel W. Kimball laid plans for mobilization of troops from
Denver guard units and F Battery at Monte Vista.
TROOPS LEAVE SUNDAY
The Denver troops will leave early Sunday in National Guard trucks for
Trinidad. By a peculiar coincidence, they will pass Ludlow Field, north of
Trinidad, where miners are holding services in commemoration of the 22d anni-
versary of the Ludlow Massacre, in which guard troops participated.
Tents will be pitched at the border on highways leading from New Mexico
into Trinidad, Branson, Antonito, Durango, and Cortez, and arrangements will be
made to inspect trains coming in over three railroad lines from the south, the
adjutant general said.
According to the terms of the governor's proclamation, military rule will prevail
over the affected strip, but the guard command has orders to interfere as little
as possible with the civil authorities.
10164 THE EDWARDS CASE
Persons or corporations anywhere in Colorado conspiring to violate the procla-
mation by importing aliens or indigent persons will be arrested and prosecuted
by the military authorities, the governor said.
MUST BE STOPPED
"Importation of laborers must stop immediately," the governor said as he
signed the proclamation. "The Denver & Rio Grande Western Railroad and
others are shipping in track laborers at the present time.
"We have received word that at least 75 men were brought into Pueblo by
way of the San Luis Valley.
"Ike Williams, a labor contractor, has gone to New Mexico and Texas with the
intention of bringing a whole trainlcad of beet laborers north to Boulder Countty
[sic].
"I have also learned that sheep shearers are coming into the state in large
numbers."
In addition to ordering mobilization of as many troops as may be needed, the
governor called on the State Highway Courtesy Patrol and peace officers of
Southern Colorado counties to aid in turning back the threatened invasion.
He also called "upon all patriotic and law-abiding citizens of the state to desist
and refrain from, in any manner, in aiding, abetting, or encouraging any such
aliens, indigent persons, or invaders in entering the state, or in any way interfering
with the due process of this proclamation."
The recently organized port-of-entry system will be depended upon for the time
being to repel undesirables from the Eastern, Western, and Northern borders, the
governor said.
"If reports indicate such action is necessary I will declare martial law along
these borders, too," he asserted.
His action in placing a cordon of guards along the southern border was similar
to steps recently taken by Los [sic] Los Angeles and the state of Florida.
All trains entering the statet [sic] will be inspected, and all trucks and passenger
automobiles will be stopped at the border. In the event the travelers are unable
to show financial responsibility they will be turned back.
Offices and sleeping quarters of the troops — who will guard the border at all
hours — will be maintained in tents pitched on the Colorado side of the state
boundary line.
Governor Johnson expects the drastic measure will stop importation of labor
into Colorado and halt the stream of indigents who enter the state, offer to work
for less than Colorado labor and eventually swell the relief rolls.
Adj. Gen. Kimball will establish headquarters in Trinidad Sunday and remain
in the field until such time as the governor decides the emergency has passed and
lifts the martial law order.
PATROL OFFERS AID
Among the officers who will assist him are Lieut. Col. E. A. Austin, Maj.
William O. Perry, judge advocate, who will be in charge of legal matters, and
Capt. Joseph E. Ryan.
Joseph Marsh, supervisor of the State Highway Courtesy Patrol, placed nine
patrolmen at Kimball's disposal Saturday and offered to draw additional men
from the northern part of the state if necessary.
Approximately 50 Guardsmen will go on duty Sunday and more will be mobi-
lized if necessary, Adj. Gen. Kimball said.
Action of the' military authorities along the border will be final and there will
be no recourse to the courts under the terms of a martial law proclamation, he
said.
The governor threatened March 13 to call out troops to stop importation of
beet labor but dropped the matter after being assured by officials of the Great
Western Sugar Co. and Paul D. Shriver, state director of the W.P.A., that such
action would not be necessary.
FIRST MARTIAL LAW SINCE '21
At the time, Director Shriver informed the governor he was cutting his rolls to
allow qualified persons to engage in beet work. Hundreds have been made avail-
able for farm labor, but importation of workers continued to threaten the state,
the governor said.
NATIONAL DEFENSE MIGRATION 10165
When informed of the governor's action, William L. Petrikin, chairman of the-
board of the Great Western Sugar Co., said:
"We'll employe [sic] all of the beet labor available in Colorado and after that —
Well, if he doesn't want beets grown in Colorado that's that."
The governor's order Saturday marks the first time martial law has been
declared over Colorado territory since 1921 when Oliver H. Shoup, who was then
governor, sent troops to Walsenburg, declaring a state of insurrection and rebellion
existed.
Guardsmen were sent to Pueblo after the 1921 flood, to the state penitentiary
during the attempted break in 1929, and were sent by Governor Adams to the
Columbine mine in Northern Colorado in 1927 tho a state martial law was not
declared at the time.
The most lengthy period of martial law was during the coal strike of 1914 in
Southern Colorado. The State is still paying interest on more than one-half
million dollars worth of so-called insurrection bonds as a result of the industrial
disturbance. * * *
[Denver News, April 20, 1936]
Troops Move into Action at Dawn to Prevent Invasion by Indigent
armed force acting under martial law to stop all entire southern
border of colorado will be patrolled by soldiers to halt aliens, needy
Money to be test
Autos, Busses, and Trains will be Searched by National Guardsmen
Armed Colorado National Guardsmen moved on the state's southern border
Sunday and at dawn Monday they will spread out fanwise to cover the 360 square
miles placed under martial law by Governor Johnson and to enforce his order to
turn back all indigent laborers and aliens seeking entry into Colorado.
With the detachment from Denver went Adj. Gen. Neil West Kimball, chief
officer of the Guard, who will set up his headquarters at Trinidad.
Thirty-six men and their officers left the Guard armory at E. Third ave. and
Logan st. at noon for the "front" — the strip of land one mile wide and extending
from the Kansas to the Utah border.
MONEY IS THE TEST
The 36 men to leave Denver were members of the tank and artillery units of
the guard, comprised in the 157th Infantry and the 168th Field Artillery.
Reinforcements Monday from other guard units and co-operation from county
officers and the State Highway Courtesy Patrol will furnish enough men to place
guards at all principal ports of entry from New Mexico and the Oklahoma Pan-
handle.
Every automobile, bus, and train — with the exception of the first-class passen-
ger limiteds — will be stopped and searched.
Money and financial responsibility is the test laid down by Governor Johnson
for entry into the state.
"If they do not have money, or means of support, do not let them pass," is his
order.
"Colorado cannot care for indigents from other states, and these people become
charges of the state after the brief spring labor season ends."
RAILROADS COOPERATE
General Kimball, before leaving Denver, conferred with railroad representatives
and announced they assured him of their cooperation in stopping and searching
trains.
"We will not stop the transcontinental trains," he said.
"We are particularly interested in the local trains on which some companies
might attempt wholesale importations of cheap labor.
"We are going to search these trains and also all freight trains. The railroads
told us they were particularly anxious to halt the influx of hoboes on these freights.
They said they had attempted to do this themselves but had failed."
Four high-speed army trucks and a caravan of automobiles took the Guardsmen
from Denver Sunday.
10166 THE EDWARDS CASE
PLANES MAY BE USED
Maj. Virgil D. Stone, commander of the 120th Observation Squadron of the
Guard, is expected to fly to Trinidad Monday.
He was awaiting orders from General Kimball Sunday night. It is believed
several Guard planes may be sent to the border the early part of this week and
that at least one will be kept in service for observation and communication pur-
poses thruout the existence of the martial-law edict.
At Walsenburg, Capt. Joseph E. Ryan and Lieut. Col. E. A. Austin left the
main detachment from Denver Sunday afternoon.
They continued alone, Captain Ryan to Antonito and Colonel Austin to
Durango.
Thus, the 360-mile strip of border will be divided into three sectors, with General
Kimball in charge of the eastern, Captain Ryan the central, and Colonel Austin
the western.
Battery D of the 168th Field Artillery at Monte Vista, commanded by Captain
Harry E. Kistler, will furnish the men for the commands of Captain Ryan and
Colonel Austin.
ROADS TO BE PATROLLED
Principal ports of entry to be patrolled in the eastern sector are:
The road leading from Oklahoma to Springfield, Colo.
The road to Branson, Colo., from Clayton, N. M.
The coast-to-coast highway entering Trinidad from Raton, N. M.
Captain Ryan's command will patrol the main road from Chama, N. M., into
Antonito and numerous smaller highways.
The western sector will have two principal ports to watch, the road from Gallup,
N. M., to Cortez, Colo., and the road from Farmington, N. M., to Durango.
CHARGES ARE DENIED
Several large users of labor Sunday denied the governor's charges, contained in
the proclamation he issued late Saturday, that they were "conspiring" to import
cheap labor.
"We are cooperating with all the governor's recognized labor organizations in
obtaining labor we need for sugar-beet fields," said C. V. Maddux, labor repre-
sentative for the Great Western Sugar Co.
"Of course, until the growing season is pretty well under way, we cannot deter-
mine just how many laborers we may need. But we seem to have plenty."
Similar statements came from several railroads. Executives contended they
were obtaining their labor from federal and state employment or relief organiza-
tions.
SITUATION UNCHANGED
Paul D. Shriver, State WPA administrator, who engaged with the governor in
a dispute a year ago when the governor then threatened to call out the guard to
halt aliens or indigent workers from Colorado, said as far as he knows the situation
still is unchanged.
"Federal authorities have informed us we are unable to purge relief rolls of
aliens," Shriver said. "The rules provide there shall be no discrimination. I
have been told that an unemployed alien gets just as hungry as a naturalized or
other citizen of this country.
"Immigration authorities also have informed the governor that an alien can
be deported only if he is a criminal.
"We recently dropped between 6,500 and 7,000 beet sugar workers from relief
rolls because of seasonal work in beet fields available for them. I understand
there are about 15,000 beet workers employed in the state each year. There
seems to be sufficient laborers of this class.
"We cannot get all the people on relief rolls jobs in beet fields. It takes a
certain amount of skill to do that work. The ones we dropped have had ex-
perience in beet fields."
NATIONAL DEFENSE MIGRATION 10167
[Denver News, April 21, 1936]
Colorado Troops on Border Turn Back 70 Persons Who Have Neither
Jobs Nor Cash
tearful scenes enacted as national guardsmen launch drastic drive to
keep out indigents everyone stopped more militiamen will be
called out to tighten up patrolled region
Trinidad, Colo., April 20. — Seventy men, women, and children who knocked
at Colorado's Southern gateways Monday found the way blocked by armed
national guardsmen. * * *
No matter how they arrive — in sleek, shiny limousines or battered flivvers,
by passenger train or by frieght train, by spacious bus or ancient truck — every-
body was forced to pass the inspection of the guards. * * *
Joe Rhonish, 22, and his brother, Lawrence, 21, drove up from Maxwell, N. M.,
in an old coupe. They told the Guardsmen they were on the way to Colorado
in a search for a place to farm.
"Have you any money?" asked Lieutenant Holson.
"A little," they replied, but, when they could show the patrol only $3.50, they
too, were turned back to New Mexico. * * *
The first Denver car to be halted at Ranton Camp contained William H.
Saunders, new football coach at the University of Denver, and Mrs. Saunders.
They explained good-naturedly they were on the way from their ranch in New
Mexico to Denver and were waved on with a smile.
[Denver News, April 22, 1936]
Troops Plug Loopholes in Alien Patrol
more sentries assigned to posts on border in blockade against all indigent
and jobless — many turned back— rumored attempt to be made to smuggle
in laborers during night
Trinidad, Colo., April 21. — Colorado's embargo against penniless humanity
Tuesday faced the threat of blockade runners, operating on a wholesale scale and
seeking to pierce the border patrol which —theoretically, at least — extends 360
miles along the State's Southern boundary. * * *
A number of Spanish-speaking Guardsmen, dressed in faded overalls and carry-
ing the few necessities of the hitchhiker, have been sent secretly over the border
into New Mexico and Oklahoma to mingle with itinerant laborers and learn as
much as possible about reported plans for breaking thru the blockade. * * *
Persons found guilty may be tried in a court martial, since the district is under
martial law, it was pointed out.
[Denver News, April 22, 1936]
Johnson Assures Governor Tingley
Farmington, N. M., April 21.— Gov. Clyde Tingley said here Tuesday night
he had received telephonic assurances from Governor Johnson of Colorado that
New Mexico workers would be admitted to Colorado as soon as a "reserve" of
labor in that State had been exhausted.
"Governor Johnson informed me that as soon as there is a lack of laborers in
Colorado he will allow New Mexicans to enter the State, but he will not permit
entry of aliens from Old Mexico," said Governor Tingley.
"I told Governor Johnson that I did not want residents of this State barred
from entry into Colorado, and also that T did not want to be forced to keep Colo-
radans out of New Mexico. I pointed out that a substantial number of Coloradans
are employed in New Mexico."
10168 THE EDWARDS CASE
[Denver News, April 23, 1936]
Tingley Warns Troops Not to Cross Border
colorado national guard not welcome in new mexico, he declares
Warning to the Colorado National Guard to stay out of New Mexico in carrying
out its border blockade against indigent laborers came from Gov. Clyde Tingley
of that State Wednesday. * * *
[Denver News, April 24, 1936]
New Mexico May Bar Colorado Goods
gov. tingley threatens to hit back at state militia resents "high-handed
attitude" in refusing to allow citizens to cross southern line talks
reprisals johnson is expected to confer with him by telephone on
CRISIS
Complications with New Mexico over Colorado's militarized southern border
neared a serious stage Thursday and it was expected Governor Johnson would
confer Friday by telephone with Gov. Clyde Tingley in Santa Fe.
Reconnaissances in New Mexico by members of the intelligence staff of the Colo-
rado National Guard and the dumping of the unwanted labor back across the
border drew the fire of Governor Tingley in two official statements during the day.
In one, he threatened to bar shipments of Colorado goods into New Mexico
unless Colorado's "high-handed attitude" is modified. * * *
"You would think New Mexico had been cut off from the United States and was
a foreign country," he said.
"These people are not aliens any more than the people of Colorado are aliens.
They are descendants of people who settled this country when Colorado was still
a part of Mexico." * * *
[Denver News, April 25, 1936]
New Mexico's Senators Hit Colorado Ban
hatch says procedure violates constitution; chavez hints reprisal
Washington, April 24. — New Mexico's two Senators — Dennis Chavez and Carl
Hatch — believe Governor Johnson is exceeding his authority in establishing a
military embargo on the Colorado-New Mexico border.
"If Governor Johnson is actually discriminating against citizens of New
Mexico," said Senator Hatch, " I think he is transcending his authority as governor
and I respectfully refer him to Section 2, Article 4 of the United States Consti-
tution . ' '
The section referred to by Senator Hatch reads:
<<* * * citizens of each State shall be entitled to all privileges and immuni-
ties of citizens in the several States."
"It is too bad such a thing had to happen," Junior Senator Chavez exclaimed.
" I think Governor Johnson will see the error of his ways. * * *
PLACE COLORADO ENGINEERS
"New Mexico has been most generous to people from Colorado. Many of her
graduates from Mines and Aggies are given jobs soon after leaving school as
engineers on our highways and in other places.
"These are comparatively high-salaried positions as contrasted with the wages
paid laborers seeking employment in Colorado beet fields and they are apt to
suffer in the future if Governor Johnson persists in his policy."
NATIONAL DEFENSE MIGRATION 10169
[Denver News, April 26, 1936]
Border Ban on Indigent Nearing End
johnson, worried over increasing protests, is expected to lift order with-
in next 10 days policy is criticized — businessmen concerned over
retaliation by new mexico patrons
Collapse of the border blockade and withdrawal of the martial law edict along
the 360-mile southern boundary of Colorado was forecast in political and State-
house circles Saturday as protests against Governor Johnson's drastic action to
keep alien and indigent labor out of the State increased in number and heat. * * *
Repercussion to the militarization of the State's Southern boundary — a step
which has been branded as contrary to the Constitution of the United States — is
causing Governor Johnson grave concern, it was learned.
NUMEROUS PROTESTS
Added to the opposition within the State is that from New Mexico, where
movements have been launched to boycott Colorado goods and where Gov.
Clyde Tingley has threatened to bar trucks bearing shipments from Colorado.
APPENDIX H
In the District Court of the United States, Southern District of
California
central division
John Langan, plaintiff, v. James E. Davis, as Chief of Police of the
City of Los Angeles, defendant. No. 844-S in Equity
opinion
Stephens, District Judge.
John Langan, the plaintiff or complainant herein, is a citizen of California and
of the United States. According to his bill of complaint, on or about 5 A. M. of
February 10th, 1936, the complainant was entering the State of California (by
automobile) on the public highway from Arizona and was accosted by policemen
of the City of Los Angeles, California, acting under the direction of the Chief of
Police of such city, and was stopped, taken into custody, molested, questioned,
and threatened ejection from the state unless he did then and there prove to the
policemen's satisfaction that he was not a resident of another state and was not
an undesirable citizen. Langan was, at the time, in pursuit of his lawful business
which frequently calls him across the state lines of California; had committed no
crime nor was he accused thereof, and the officers possessed no warrant for his
arrest. Langan claims that he was thereby deprived of his constitutional rights
as guaranteed by the Fifth and the Fourteenth Amendments to the Constitution
of the United States. He also claims that he has suffered a money loss of $5,000.00
He asserts that his future legal right to go freely across the California state lines
in the lawful calling in which he is engaged is endangered, and requests an injunc-
tion against the Chief of Police of the City of Los Angeles from continuing to
exercise the claimed right to repeat the procedure above set out in brief, or to go
further as is indicated possible under a written order which is annexed to the
Bill and made a part thereof. The complainant prays that the said Chief of
Police be enjoined from "stopping, molesting, questioning, fingerprinting, arrest-
ing, or otherwise interfering with plaintiff's (complainant's) entering California or
with plaintiff's traveling in California or with plaintiff's traveling between any of
the states bordering upon California."
The order attached to and made a part of the bill is a five page, single spaced,
typewritten document headed "Office of the Chief of Police, Los Angeles, Police
Department, February 1st, 1936, Special Instructions. To the Officers of the
Headquarters Division. It is signed James E. Davis, Chief of Police, Official —
Homer B. Cross, Deputy Chief of Police.
60396— 42— pt. 26 14
10170 THE EDWARDS CASE
(Digest of the Order)
1. A "Headquarters Division" is created under command of a designated
Captain with "post of command" in Los Angeles City Hall.
2. "The immediate mission of the Division shall be that of covering the points
of ingress, both highway and railroad, into the State of California."
3. "The field of operation shall include the counties through which the highways
or railroads enter the State of California." Then follows the names of counties
in which the field of operation lies, with their county seats and names of sheriffs.
"The field of operation for administrative and tactical purposes is divided into
three areas": Northern, Central, and Southern. Each area shall be commanded
by a Lieutenant of Police and designated "Area Commander" who shall be imme-
diately subordinate and responsible to the captain commanding the Headquarters.
Command posts are designated for each area.
4. Operations and personnel of each county in field of operations shall be com-
manded by a Sergeant of Police under and responsible to the appropriate Area
Commander. For practical operation squads of seven policemen are to serve
under Acting Sergeants. "Points of advantage" are to be selected for covering
railroad and highway ingress. "Much latitude is given the squad and Area
Commander in the execution of this plan. Individual initiative is encouraged to
determine the proper modus operandi."
5. Advantage is to be taken of State Agricultural Quarantine Stations in cover-
ing highways, as they are strategically located.
6. Railroad cooperation as to every possible assistance to special agents in
execution of plan and as to stopping freight trains, "return of subjects that have
been removed from incoming trains to points without the State of California"
has been assured.
7. "The sheriffs of each of the several counties hereinbefore listed have assured
us of their cooperation and have agreed to deputize, without remuneration, the
officers from this Department assigned to their respective counties. This is for
the purpose of giving unquestioned authority to the officers of this Department
while acting as peace officers in the respective counties. All officers are directed
to cooperate with the sheriffs and conform to the general policies that he may
promulgate."
8. "The squad leaders and the superior officers of the division are instructed
to afford water and other essential subsistence as well as to insure sanitary con-
ditions for those subjects removed from incoming trains during the interim be-
tween their removal from the trains until they are placed on a train leaving the
State of California."
9. "The cooperation of the local sheriffs and railroad authorities shall be solic-
ited in these matters."
10. "It may be necessary to erect barricades and afford a degree of shelter to
those subjects awaiting their exit from California. The sheriffs and the rail-
roads may prove of material assistance in this matter."
11. The officers assigned to the work are volunteering. They will be paid by
the city of Los Angeles. For additional expense to officers it is planned to pay
maintenance, medical costs.
12. No other costs allowed, these to be kept at minimum.
13. Covers details as to injuries and reports thereon, etc.
14. If subsistence and housing costs are not provided by city, ten days! vacation
per month to be granted to each officer.
15. The time of operations is uncertain. Officers may take their own automo-
biles and, when transporting other officers, gas and oil will be furnished.
16. Police Department automobiles will be assigned to the division com-
manders, Areal Lieutenants, Sergeants of the County, and certain squad leaders.
Credit cards will be issued for auto supplies.
17. State Teletype Stations are to be used.
18. Officers to provide warm clothing; when on duty to wear police uniforms,
overcoats, and head-gear, discretionary to conform to weather. Los Angeles
Police Department badge to be worn on left breast, apparent and visible.
19. Skid chains are to be used in cold sections.
20. "Officers shall extend every effort to secure the cooperation of the peace
officers of the state, county, and municipalities in which they may be working.
The same is true of public officers and citizens."
NATIONAL DEFENSE MIGRATION 10171
21. "Each subject taken into technical custody will be fingerprinted. The
impression shall be taken upon three cards and the Los Angeles Police Department
Identification Sheet, making a total of four sets of impressions for each subject.
Any additional information will then be entered upon the cards and descriptive
sheet and then distributed as follows:
"1. Shall be air-mailed to the Federal Bureau of Investigation, Dept. of Justice,
Washington, D. C.
"1. To be forwarded through ordinary mail to the Record Division, Los Angeles
Police Department.
"1. To be retained at the Sheriff's office of the County in which the squad is
operating."
Then follows detail of handling fingerprinting and communication with author-
ities wanting persons found through identification.
22. Juvenile subjects handled as sheriff of county prescribes.
23. Advantage should be taken of the State Relief Administration in handling
juveniles, and parents with families entering State particularly by highway.
24. "The State statutes under which we may be operating upon this plan of
action are as follows:
"1. Those taken from the trains are taken into custody for violation of Sec. 587c
of the Calif. Penal Code, to wit: Evading Railway fare, a misdemeanor.
"2. Those subjects hitch-hiking or wandering along the highways without
reasonable amount of funds are in violation of Sec. 647, Penal Code of the State of
California. Subsection 2 of this section defines them as vagrants wandering
from place to place without visible means of support."
25. "Officers working on this detail shall shake down every subject, removing
from his person any and all dangerous weapons."
26. This paragraph sets out a detailed system of reports by commanding
officers as to activities. The original of consolidated report to go to Chief's
office. These reports do not go to any outside Los Angeles Police Department.
27. A copy as to each arrest report, where subject placed in confinement, shall
be forwarded to the Division Commander, City Hall, Los Angeles.
We. shall hereinafter occasionally refer to this document as the "plan."
An order has issued in this cause requiring the Chief of Police to show cause
why he should not be temporarily enjoined from molesting complainant in any
of the ways suggested by this plan.
The defendant Chief of Police has moved to dismiss the action on the ground
that this court is without jurisdiction in the premises; and has made several other
motions, supported by affidavits, which need not be noticed at this juncture.
The consideration of the motions and the order to show cause came on for
argument coincidentally, after written briefs had been furnished the court, and
proceeded by consent primarily upon the jurisdictional question. The United
States District Court is one of limited jurisdiction and can entertain cases only
after statutory authorization under the limitations of the Constitution.
It will be well in the beginning to dispose of a diverting phase of the case.
There is mention of deputization of policemen as deputy sheriffs, but the com-
plainant charges the Chief of Police alone in his official capacity with the alleged
wrong and the jurisdictional question must be determined upon that basis. If
the case is meant to be based upon acts of deputy sheriffs there are no allegations
in the complaint tending to make the Chief of Police of Los Angeles city the
responsible party.
Counsel for both parties approach the jurisdictional question from the stand-
point of legality of the acts alleged, whether by the Chief or by deputy sheriffs.
But I deem it more fundamental to first consider whether the Chief or his men, as
policemen, had any competent authority to act at all in furtherance of such plan.
If they could not legally so act then any comment on the intrinsic legality of the
plan under execution by competent authority would be improper for, as we shall
see, this court would be without jurisdiction to entertain any phase of the case.
Neither counsel for the defendant Chief of Police nor for complainant claim
that the Chief of Police or police officers of the city of Los Angeles, as such, have
anything but incidental and here unimportant authority outside of the city
limits, and counsel for the Chief, undoubtedly right in such contention, cite the
City Charter in their argument to the effect that such policemen could not per-
form the duties assigned to them in such plan under legal claim of authority as
Los Angeles policemen. It will be apparent from authorities to be cited that
their acts outside of city territory, being unsupported by any legislative or judicial
fiat, are not under the color of such authority. No other element of fact need
be considered to determine that the action cannot be maintained in this court.
The basis for this determination follows.
10172 THE EDWARDS CASE
Complainant depends upon the guarantees of the Fifth and Fourteenth Amend-
ments of the United States Constitution, together with certain statutory require-
ments, to entitle him to maintain his action in this Federal Court, contending
that he has been deprived of his liberty without due process of law and has not
been accorded equal protection of the laws. The Fifth Amendment does not
afford a Federal court forum for every curtailment of liberty, it merely prohibits
such curtailment under the authority of the United States government, except
through "due process of law." Each State court maintains its jurisdiction to
try the differences between its citizens and both parties here are citizens of Cali-
fornia. The State court is open to complainant in this cause unless the state
itself (in contemplation of law) is the accused. As to the latter circumstance the
Fourteenth Amendment applies, that is, under the Fourteenth Amendment no
State shall deprive any person of liberty without due process of law nor deny to
any person within its jurisdiction the equal protection of the laws.
Since the activity complained of is not at all that of the United States and
therefore does not touch the Fifth Amendment, it follows that the only circum-
stances that can retain the complainant's suit in Federal court is a showing on
the face of the complaint that the defendant is in fact acting under authority, or
color of authority, of the State of California (U. S. v. Wheeler, 254 U. S. 281).
It will be seen by authority to be cited that if the Chief of Police were author-
ized by any legislative or judicial fiat to proceed to action under this plan, in con-
templation of law, his action thereunder would be the action of the state. We
have seen, however, that the police action outside of the city boundaries is ultra
vires and is unsupported by any legislative or judicial fiat and it therefore follows
that neither the state nor its agent is the defendant actually or colorably. The
Fourteenth Amendment therefore does not afford complainant a forum for his
suit in Federal Court.
There is but one case (Home Tel. & Tel. Co. v. City of Los Angeles, 227 U. S.
278) cited that casts the slightest doubt upon the theory that acts plainly outside
of constituted authority are no more than the acts of private individuals, and the
doubt producing expressions have been declared, in several well considered cases,
as unnecessary to the decision and District Courts have not followed such dicta.
It should be noted that Ex parte Field, 5 Blatchford, U. S. 63, cited by complain-
ant, concerns the act of an officer of the United States and not of the State and
therefore is not pertinent to the point under discussion.
The late District Judge Martin J. Wade, of Iowa, whose qualities as a great
judge were only surpassed by the fineness of his character, after analyzing the
Home Tel. & Tel. Co. case (supra) and declaring the novel expressions therein
to be dicta, said: "Summing up all decisions it is apparent that it never was the
intention that the Fourteenth Amendment should bring before this court (al-
legedly) unlawful acts by an individual, or by a state officer, except when such
acts have their foundation in some express authority of the state, either by legis-
lation, or possibly by judicial misconstruction." (Berry vs. Ringgold County, 43
Fed. (2nd) 169.) See Brawner vs. Irwin, 169 Fed. 964, a case relied upon by
counsel for defendant, regarding which he comments, "We believe this case is
most in point." Brown vs. Mississippi, U. S. Supreme Court advance sheets,
February 17, 1936, and authorities cited therein.
A case in point is Barney vs. City of New York, 193 U. S. 430. In that case
public work was directly under an official board. There was legislative authority
for the construction of a tunnel specifically described as to location. It is alleged
in the bill of complaint that the Board did not keep within the specific lines pro-
vided and the court says: "Jurisdiction of the U. S. Circuit Court was invoked
upon the ground that by the tunnel construction sought to be enjoined, com-
plainant was deprived of his property without due process of law, in violation of
the Fourteenth Amendment. But that amendment prohibits deprivation by a
State, and here the bill alleged that what was done was without authority and
illegal, (the same situation in the present case). * * * Controversies over
violations of the laws of New York are controversies to be dealt with by the courts
of the state. Complainant's grievance was that the law of the state had been
broken, and not a grievance inflicted by action of the legislative or judicial depart-
ment of the state; and the principle is that it is for state courts to remedy acts of
the state officers done without the authority of or contrary to state law [Italics
mine]. Missouri vs. Dockery, 191 U. S. 165; Civil Rights Cases, 109 U. S. 3; Vir-
ginia vs. Rives, 100 U. S. 313."
It may be argued that complainant is not urging the violation of state law, but
in effect he is, for there are California statutes legally affecting admission into the
state.
NATIONAL DEFENSE MIGRATION 10173
See United Mine Workers, etc., vs. Chafin, et al., 286 Fed. 959, a case of striking
similarity to the instant case. The court in this case also criticised the Home
Tel. and Tel. Co. case (supra) much the same as did Judge Wade.
The acts of the Chief of Police, as alleged in this bill and the alleged threats
and preparation for further acts under the outlined police plan, being ultra vires
in nature and being unsupported by any facts making them the acts of the state,
actually or colorably, this court is without any jurisdiction under the Fourteenth
Amendment to entertain the cause.
It is perhaps not out of place to say that the great depression, now passing,
has wrecked the economic security of many, and this condition being made un-
endurable by the severity of weather in states easterly of the Pacific coast states,
has thrown many persons, both worthy and unworthy, into the equitable climate
of California. Many of such persons are without competence, and many are
physically incapacitated from supporting themselves if employment were obtain-
able. These facts unjustly add to the tax burden and the crime problem in the
city of Los Angeles and have for such reasons justified the Chief of Police in his
own mind, and he is not unsupported by many citizens, in the execution of the
preventive plan herein outlined.
No one claims, and the statutes of California would not support them if claims
to that effect were made, that every man "down on his uppers" and driven to
move on to lands of promise and hope by the storms of the elements and economic
forces is necessarily a pauper, a vagabond, or a criminal. But among the moving
people it is difficult to distinguish between the well-intentioned, the incapacitated,
and the vicious. The police problem is baffling and it is not too much to say that
these facts have created an emergency that continues even in the face of material
help from the National Government. The Chief Justice of the United States
has, however, reminded us in one of his greatest opinions that "emergency does
not create power".
No notice need be taken of any other pending motion.
The motion to dismiss is granted.
Exception noted.
March 17th, 1936.
APPENDIX I
Supreme Court of North Dakota (1940) 291 N. W. 281
(Appeal from District Court, Adams County; Frank T. Lembke, Judge)
Adams County v. Burleigh County*
Burr, Judge:
The issue as between these two counties is largely one of fact; and a brief
reference to the record will disclose the only real issue involved.
The testimony taken at the hearing in this proceeding shows that prior to June
25, 1937, one Hulm, with his wife and ten children, lived in South Dakota; Hulm
is paralyzed and unable to do hard labor; he came to Bismarck in April of 1937
to seek employment, and at that time was promised work, told to go back to Per-
kins county and to come back in two weeks' time; he came back, remained for
about six weeks and was told to go back and get his family and bring them to
Burleigh county, which he did on June 25, 1937: he lived in Burleigh county from
that time until August 29, 1938; Hulm applied for work on W. P. A., was told he
was a resident of South Dakota, and, without any order of removal from any
court, the family was removed on August 29 by Burleigh county authorities to
Adams county in this state; these same authorities then took them over to the
office of the welfare board in Lemmon, South Dakota, told this board that they
had just brought them over, but the board refused to allow the unloading of the
goods, and ordered all back to North Dakota, though the family remained in
Lemmon over night; on August 30, 1938, the family were "shipped back to Bur-
leigh county" and the first night there, stopped at the place of the person that
drove them to Lemmon with their goods; Hulm went to the courthouse to see the
welfare board and the state's attorney, was sent by the secretary of the welfare
board of Burleigh county to what was known as Hill Crest Home, where the
family was fed and given lodgings; they stayed there for two days, as they were
told not to leave until called for; two days later the deputy sheriff of Burleigh
county called for him, took him down to the courthouse with his wife, and at that
•Mr. and Mrs. Roy Hulm appeared as witnesses before the Select Committee at its Lincoln hearings,
pt. 4, p. 13777.
10174 THE EDWARDS CASE
time he was handed papers (evidently copies of the order of removal issued by the
district court of Burleigh county), ordering them to remove to Perkins county
and was told if he would not go, he would be taken back; no opportunity was
afforded him to get an attorney; they were then returned to Hill Crest Home and
told to stay there and get ready to leave for Perkins county (thereafter, by virtue
of the order of removal, more particularly set forth hereafter) , sheriff Anstrom of
Burleigh county, with his deputy, took the family and their goods from Hill
Crest Home to North Lemmon in Adams County — the family in a car and their
goods in a truck.
The testimony further shows that at the time sheriff Anstrom was attempting
to obey the order of the district court to remove the dependents to South Dakota,
he telephoned to sheriff Ginter of Adams county, asking him to meet him at
North Lemmon on a matter of importance; that the two sheriffs met in accordance
with the appointment, and at that time Anstrom stated to Ginter "he had a
family there that they wanted to leave for a couple of days" and then Anstrom
proceed to find a place to unload their goods, met a young man by the name of
Thompson, and through him made an agreement to have the household goods of
the dependents stored in a garage belonging to Thompson's mother; that Anstrom
left the family in the car, unloaded the goods from the truck, placed the goods in
the garage, sent the truck away, padlocked the door of the garage, and handed the
key to young Thompson, telling him "to keep the key for a couple of days, and
those guys will be likely to move out." Of the goods, two dressers, a bed, and a
table were broken and the woman's coat lost. At that time, Roy Hulm asked
what he was going to do, as he had nothing to eat, that he was broke; sheriff
Anstrom gave him no answer, but "gave him $5.00 and said, 'You can eat on this
for a little while; you'll be taken care of a little better later on' "; he further told
him "to go across the line and get something to eat". The record further shows
that at that time sheriff Anstrom unloaded the dependents from the car, left them
standing on the street, just about dark, and started for home with his deputy.
When leaving, Anstrom said to Ginter "he had to be going," and "Listen Ginter,
we will have to leave these people here a couple of days and whatever you are out
you send the amount of it and Burleigh county will take care of it." Ginter
protested about leaving the family for relief as Adams county had enough to do
to take care of its own needy. No one in North Lemmon would give them even
temporary lodgings, and the deputy sheriff of Adams county told them to go to
Lemmon and get something to eat. The authorities there immediately ordered
them back into North Dakota. It was only when the deputy sheriff undertook
to supply their wants that these unfortunates, having no place to go for the night,
stayed in a hotel in Lemmon for one night, and for a few days in some cabins,
their wants being supplied by Adams county. The deputy sheriff of Adams
county ordered some bread and butter for Hulm and his wife and children, and
Ginter gave them sone flour and oranges and butter; the secretary of the welfare
board of Adams county gave them some foodstuff, $1.50 for lunch, and rented a
place for them to remain for some time. The authorities of Perkins county
served them with an order to leave, and the sheriff of the South Dakota county
proceeded to remove them. Being under his care, the deputy sheriff of Adams
county, who had some humanitarian instinct, chaperoned them while the sheriff
of Perkins county removed them to Adams county. Adams county furnished
them a home in Hettinger, and sent down to North Lemmon and retrieved their
goods. Ever since the Hulms have been living upon the charity of Adams county.
It is only just to sheriff Anstrom to state that he disputes the statements made
to the effect that he promised Adams county would be reimbursed, but as to this
issue, the district court of Adams county found the facts as hereinbefore set forth.
This finding has ample support in the record, and we see no reason for holding
otherwise. They are, therefore, the facts as we find them.
It is the further claim of Burleigh county that during the year's residence in
Burleigh county, the Hulms were for a portion of the time supported by Perkins
county, South 'Dakota, under a fraudulent agreement with the Hulms to thus
enable them to become citizens of Burleigh county for relief purposes. There is
nothing in the testimony taken to substantiate this. It is true that in the copy
of the order of removal issued by the district court of Burleigh county, there is
a statement to that effect, and this copy is attached to and made a part of the
return which Burleigh county made to the order to show cause. Such finding,
however, is not binding in this case, so far as Adams county is concerned.
The county of Adams applied to the district court for an order to show cause,
directed to the Hulms and to Burleigh county requiring them to show cause why
the Hulms should not be returned to Burleigh county, and why the latter county
NATIONAL DEFENSE MIGRATION 10175
should not reimburse Adams county for any disbursements it had made on and
in behalf of the dependent Hulm and his family.
Burleigh county made a special appearance, objecting to the jurisdiction of the
court to issue such an order on the ground that Burleigh county did not concede
the residence of the Hulm family to be in Burleigh county, that the order requires
Burleigh county to show cause why it should not pay a money judgment to be
entered by the court, and that the only method to determine such a matter is
through an action commenced by the service of a summons and complaint on
Burleigh county. This special appearance was overruled, and in its return to the
order to show cause, Burleigh county contends the legal residence of Hulm and
his family was not in Burleigh county and that this had been determined by the
district court of Burleigh county in a proceeding in which the order to remove
Hulm and his family to South Dakota was issued.
It is difficult for the writer of this opinion to pass calmly and dispassionately
upon the facts in this case and the law governing the same. One would fain
suppress much of the evidence but necessary facts must be set forth. To the
credit of the government of this country and the general attitude of our people
toward the poor and unfortunate, it may well be said few records show any such
callousness toward human beings as this controversy between South Dakota and
North Dakota discloses. The case is an illustration of the extent to which "man's
inhumanity to man" may be carried. Human beings are shifted around like so
much cargo. Somewhere and somehow the well springs of humanity and brother-
hood appeared to be dried up. Sick and impoverished creatures against whom
there is no indication of crime, laziness, or willfulness, have no place to lay their
weary heads, except such as the generosity of Adams county gives them as a mere
subsistence in a situation not of its own making, and for which it is not responsible.
The callous indifference of South Dakota seems scarcely credible in this age.
But though this may have incurred expense for Burleigh county, that county
may not wash its hands of its responsibility by dumping the human freight on to
Adams county. If there be any controversy between any of the counties of
North Dakota and the state of South Dakota as to responsibility in this matter,
it is a controversy between Burleigh county and South Dakota.
(1) The proof furnished by both counties show that the Hulm family had lived
in Burleigh county for over a year. They are in this state, and as shown by the
decisions of this court {City of Enderlin v. Pontiac Township, etc., 62 N. D. 105,
242 N. W. 117; Griggs County, etc., v. County of Cass, etc., 65 N. D. 608, 260
N. W. 417; County of Grand Forks v. DuFault et al., 66 N. D. 518, 267 N. W. 136;
Sisters of Mercy v. Ramsey County et al, 68 N. D. 344, 279 N. W. 759), emergency
relief and such other relief as is furnished to them in North Dakota must be
furnished by Burleigh county. There is no issue here as to the dependents being
residents of Adams county. Insofar as the counties of North Dakota are con-
cerned, even though Burleigh county may have been subjected by the relief
authorities of South Dakota to an unjust burden, it cannot pass this on to Adams
county. Clearly the officials of Burleigh county recognized this because of the
agreement entered into between the two sheriffs for the temporary support of
these unfortunate people. The subterfuge sought to be injected here by Burleigh
county that the family was taken voluntarily to the north side of the imaginary
line existing between South and North Dakota, shooed over into Perkins county,
driven back into North Dakota, thereafter returning to Burleigh county, and
again being taken by the sheriff to the north side of this imaginary boundary line
and left with $5 and instructions to go over and get something to eat, and there-
after, when they returned they were citizens of South Dakota, does not, in any
way, shift the burden from Burleigh county to Adams county. One may readily
understand why the overburdened relief officers of Burleigh county were deter-
mined not to undertake obligations not resting upon them; but the primary obli-
gation is theirs and until these needy people are returned to and received by
South Dakota, their obligations to the' public at large are not discharged. There
is no rule of comity between the two states shown to us whereby residence is in
dispute between the states may be determined. As set forth in the decision
cited, the burden of support is placed by the state upon the county, and unfor-
tunately for Burleigh county, this is the county of the dependents' residence, so
far as the counties of North Dakota are concerned. As between the two counties,
it is clear that Adams county is entitled to recover from Burleigh county for such
sum as was actually and necessarily expended in the support of these people
under the agreement made with Burleign county, and we so decide.
(2) On the order to show cause, Burleigh county made a special appearance,
alleging that the district court of Adams county had no jurisdiction to issue the
10176 THE EDWARDS CASE
order made, as no action had ever been commenced and Burleigh county did not
concede the legal residence of the Hulms to be in Burleigh county. This appear-
ance being overruled, Burleigh county made a return, denying the legal residence
of the Hulms was at any time in Burleigh county, alleging that they were volun-
tarily removed by an employee of Burleigh county welfare board to Perkins
county, but thereafter returned to Burleigh county upon the order of the welfare
board of Perkins county that the question of their legal residence had been
judicially determined by the district court of Burleigh county proceedings instituted
against the dependents, and they were found to be residents of Perkins county,
South Dakota, that an order was made requiring the Hulms to return to Perkins
county, and that they voluntarily entered into Perkins county after the execution
of said order.
A copy of the order of the district court is attached to the return, and in this
it is shown the district court of Burleigh county found that the dependents had
been sent to Burleigh county by the authorities of Perkins county upon an agree-
ment between the county and the dependents that Perkins county would support
them in Burleigh county; that this was done designedly and intentionally for the
purpose of attempting to relieve Perkins county of further liability, and to
enable the dependents to acquire residence in Burleigh county. The order then
required che sheriff of Burleigh county to forthwith take and convey these depend-
ents "To the state line between North Dakota and South Dakota, at a place
nearest the said Perkins county, South Dakota, the place of legal residence of
said defendants for relief purposes as aforesaid." The return of the sheriff is
attached, showing that he took the dependents to the state line and left them
there at North Lemmon in Adams county.
(3) As pointed out ha Nelson County, etc., v. Williams County et al., 68 N. D.
56, 276 N. W. 265, the word "residence," when poor relief is concerned, has refer-
ence to the place where a person actually lives as distinguished from his domicile.
(4-6) The record here shows that during the month of August, 1938, the county
welfare board of Burleigh county furnished emergency relief to the Hulms to the
extent of $13.10, but by this time the Hulms had resided in Burleigh county for
over a year. County of Grand Forks v. DuFault et al., 66 N. D. 518, 267 N. W.
136, 137, is a case wherein it was claimed that the indigent persons involved
were in fact residents of Marshall county, Minnesota. However, they had not
received relief from Marshall county for over a year, and during that year, the
poor involved had not been in any hospital, poorhouse, or other public institu-
tion, and: "None received relief from the poor fund of any county, or from the
funds provided by the state or by the Federal Government, or had received a
mother's pension." It was held they were residents of Grand Forks county, this
being the county in which they had lived for a year after their removal from
Minnesota.
Brushing aside all technicalities, and attempts at subtle distinctions, the fact
remains as shown by the claims of both counties, that insofar as Adams county
is concerned, the Hulms resided in Burleigh county for over a year without re-
ceiving any support whatever from Burleigh county or any other county in the
state of North Dakota, and that the Hulms were forcibly removed from Burleigh
county to Adams county, and left there by Burleigh county, under an agreement
made by Sheriff Anstrom to pay for their support, and while in the custody of the
officers of Burleigh county, expense has been incurred by Adams county for their
support. These people are still in the custody of the sheriff. Had the sheriff of
Burleigh county, during the time he was removing the Hulms to South Dakota,
been required to remain somewhere overnight en route, he would have been
required to furnish food and sleeping quarters to the Hulms during that time.
Without doubt, the reasonable cost of this service would be a legitimate charge
against Burleigh county in his expense account. It is clear, therefore, that
Burleigh county is liable to Adams county for the support of this family, and
must receive them, unless satisfactory arrangements are made between the
counties themselves.
However, the amount of this support cannot be determined on this order to
show cause, as it is in dispute; but this proceeding does determine that the liability
for actual and necessary relief is that of Burleigh county, and unless the same is
satisfactorily settled by the authorities of the two counties, Adams county is at
liberty to bring a direct action to recover the full amount shown to be reasonable
and necessary.
The order of the district court is modified to the extent of striking out the pro-
visions requiring the payment of $164.73 — -the determination of this amount to
be made later — and with this modification the order is affirmed.
Nuessle, C. J., and Christianson, Morris, and Burke, J. J., concur.
NATIONAL DEFENSE MIGRATION 10177
APPENDIX J
Excerpt on California Border Patrol from California State Relief Administration,
Transients in California, San Francisco, 1936 (mimeographed)
I. The Border Patrol
For many years the Los Angeles Police Department has waged war against
vagrants and has made it a practice to arrest persons loitering on the streets or
in the public parks. There have been instances when social workers in local
agencies have had to come to the rescue of law-abiding citizens thus arrested and
sentenced to terms in the city jail, and instances where persons who did not speak
English were arrested on the public streets as vagrants, even though they had
plenty of money, because the policemen thought they looked like vagrants.
With increasing unemployment, the policemen in several of the California cities
included in this Survey became more charitable in enforcing laws regarding
vagrancy, but the Los Angeles police became more severe. The deputy Chief
of Police in 1935 became the chairman of the Los Angeles Committee on Indigent
Alien Transients. The following definition for "alien transient" was used by the
Committee: "Indigent alien transient is defined as being a transient entering the
State of California without visible means of support and whose legal residence is
foreign to the State of California."
The Committee on Indigent Alien Transients on November 4, 1935, submitted
to a group of citizens it called together, a report reviewing the situation in regard
to the policy of the Federal Government, the railroads, and the State Relief
Administration, and made a series of recommendations to "apply to the cases of
male, unattached, adult, indigent, alien, employable transients." They stated
that they considered that other transients were presenting no immediate problem.
The following were the recommendations:
"1. The establishment, by the Health Department of the State of California,
of State Border Quarantine Stations for the examination of those having com-
municable diseases or coming from areas where epidemics are prevalent. The
solicitation for this project to be made through the Los Angeles City and County
Health Departments.
"2. Peace Officer Stations to be similarly situated at the points of ingress to
the State for the purpose of arresting those persons guilty of violations of sections
587C and 647 P. C: Pauper Act (Statutes of 1933, page 2005, chapter 761,
sec. 12); Vehicle Code, and the Motor Caravan Act (Stat. 1935, chap. 402).
Such action to be a State action, and solicitation to be made through —
(a) The Governor;
(6) Mr. Jenney, Chairman of State Relief;
(c) The Attorney General;
(d) The Director of the State Motor Vehicle Department.
"3. The establishment of camps with means of subsistence, and a very nominal
wage, for employable transients who state their willingness to take advantage of
such camps. The administration of camps to be —
(a) Preferably by the State Relief Administration;
(b) Secondly, by the Department of County Charities, County of Los
Angeles; or
(c) By some local agency other than a law enforcement agency;
(d) That all persons applying for work in these camps be required to submit
to fingerprinting, copies of which shall be furnished the local law
enforcement agencies of the jurisdiction in which the camp is located;
(e) That the compensation be applied to the purchase of a railroad ticket to
the transient's place of legal residence;
(/) That in connection with the work program, adequate insurance under
the State Act be procured by the agency responsible therefor;
(g) That close cooperation be maintained between administration of the
camps and the law enforcement agencies so that the latter may be
informed of the discharge of any of the subjects from any of the camps.
"4. The establishment of vagrancy penal camps for those sentenced under penal
provisions to be operated as follows:
(a) The administration of such to be by the local law enforcement agency,
financed by the local jurisdiction, and the work to be performed upon
public projects.
10178 THE EDWARDS CASE
(6) Those working under this program to be employed upon parks, roads, etc.,
and that such work be administered by the agency having supervision
over the property being improved.
"5. The policing of the common carriers and main arterial highways or other
means of ingress into the State of California.
(a) That the railroads be contacted to cease the practice of transporting
transients.
(6) That assistance to the railroads by our law enforcement agencies be
offered in the policing of the trains within the borders of California.
(c) That the Department of Justice or the Federal Attorney General's office
be solicited to cooperate with the State and local law-enforcement
agencies in preventing indigent transients from entering the State of
California on common carriers.
(d) That the same agencies be solicited in the policing of the Federal high-
ways for the same purposes.
"6. That publicity be given of a type that will serve as a deterrent to alien
transients.
"7. That the Governor of California be advised of the tentative plan of the
several agencies treating with this program in the city and county of Los Angeles
and that it be recommended to the Governor that the executives of the adjacent
States to California be asked to cooperate with the agencies of California and its
many political subdivisions in the execution of the plans heretofore mentioned,
and to formulate a compact agreement between the several states to take care
of the situation in the future.
"8. That a major committee to cope with the problem be formed and to consist
of representatives of the following agencies or offices, to wit:
"general committee
"Federal. — Department of Justice, Federal district attorney, United States
marshal.
"State. — -Assistant State director of transient activities, attorney general, Cali-
fornia State Chamber of Commerce, chief of social records division of the L. A.
C. R. A., director of L. A. C. R. A., director of motor vehicles, Governor, State
director of finance, State director of transient service, State health department,
State relief administrator and Work Projects Administration director, superin-
tendent of the State bureau of criminal investigation.
'County. — Board of supervisors, county auditor, county counsel, county
health department, department of charities, director of the district No. 11, Work
Projects Administration, district attorney, public defender, sheriff's department,
superintendent Los Angeles County Road Department.
"City: — -City attorney, city council, city engineer, city health department,
department of public works, mayor, Municipal court, park commission, police
department, public defender.
"Other agencies. — California Association of District Attorneys, California League
of Municipality, California Taxpayers' Association, community chest, Council
of Social Agencies, Los Angeles Chamber of Commerce, major veterans' organiza-
tion, Merchants' Manufacturing Association, organized labor, Peace Officers'
Association of the State of California, railroads, Sheriff and Undersheriffs' Asso-
ciation, Southern California Economic Council.
Respectfully submitted.
Homer B. Cross, Chairman.
Newton Kendall, Member.
Lawrence Schreiber, Member.
John O'Conor, Member.
Wm. Bright, Member.
M. D. Benesh, Member."
Since the State departments mentioned did not carry out these recommenda-
tions, the Los Angeles Police Department itself decided to bar the State of Cali-
fornia to transients without funds. The deputy chief of police made contacts
with the various railroad companies in an attempt to secure their cooperation.
The railroad officials agreed that representatives of the Los Angeles Police Depart-
ment might search the freight trains as they crossed the border into California.
Contacts were also made with the sheriffs of the counties on the border of the
State and the request made that the Los Angeles officers be deputized as sheriffs
NATIONAL DEFENSE MIGRATION 10179
of those counties. In Siskiyou, Nevada, and Riverside Counties they were
deputized. Del Norte, Modoc, Plumas, and San Bernardino Counties refused to
deputize them, but Los Angeles nevertheless sent officers to these counties.
On the third of February, a total of 125 Los Angeles police officers on the pay
roll of the city of Los Angeles were sent out to the border points where transients
might be entering the State by railroad or highway. Since California has the
Pacific Ocean on the west, and Mexico on the south, most of the transients could
come in only from the east or the north. Along a large part of the border, the
extremely mountainous, country and the deserts limited the points of entry to a
comparatively few places, and 16 of these were covered by the Los Angeles
police. Map C shows these points.
One lieutenant was in command of the northern area and had headquarters at
Yreka in Siskiyou County. Under him were 3 squads, consisting in all of 9
sergeants and 36 officers, in charge of the work in Del Norte, Siskiyou, and Modoc
Counties. In Del Norte County, a sergeant with 6 officers under him was sta-
tioned on U. S. Highway No. 101, leading down the coast from Oregon. Another
squad was stationed on U. S. Highway No. 199, the road from Grant's Pass,
Oreg., which meets the Redwood Highway, U. S. No. 101, near Crescent City.
There is no railroad in Del Norte County.
The officers in Del Norte County were visited by a member of the survey staff
in the middle of February, when there was little highway traffic due to the
extremely heavy rains. The lieutenant in command had gone fishing, but ser-
geants and officers were interviewed. They were living in a beautiful spot in the
midst of the redwood forest through which tumble some of the best salmon trout
streams. Their quarters were artistic, well-furnished log cabins, which are part of
a fine resort in the summertime. The woman in charge of the resort w/as pre-
paring their meals. The men were working on 8-hour shifts. Two officers were
on duty in an abandoned auto camp at the border, close to the plant-quarantine
station on Highway 199. These men said they were not stopping any cars but
only watching for persons on foot. In the wintertime few persons would travel
by foot over that highway, since it was many miles between towns or any sort of
habitation. The officers stated that in a 10-day period they had stopped three
boys, all of whom were allowed to proceed on their way after it was found that
they were going to their parents or to a job. The men at the plant-quarantine
station and the officers of the State highway patrol corroborated the statement of
the officers on duty that automobiles were not being stopped.
The officers on duty were practicing marksmanship. The people of Del Norte
County were so unfriendly to the officers that they did not care to spend their off
hours in Crescent City. The officers said that although they were not deputized
as sheriffs in the county, they had a right to arrest anyone they wished, and
quoted the common law that anyone may arrest a person whom he believes to be
committing a crime. They were not clear as to what crimes any entering transient
might be committing on the highway, but thought they might pick up a criminal.
They believed the mere fact that "they were stationed on the highways would
keep criminals out of the State.
' In Siskiyou County squads consisting of a sergeant with six officers were located
at Hornbrook and Dorris. At both of these points the officers were covering not
only the highways but the railroads. The Southern Pacific carries all of the traffic
from Oregon into California through one or the other of these two points. A mem-
ber of the survey staff visited the group at Hornbrook. Here the officers were
living in a comfortable auto camp. The Los Angeles officials had made a contract
so that the men received both room and meals. Two officers were living in each
two-room cabin. Hornbrook is about nine miles south of the Oregon border, but
is the first railway stop and the first town on the highway. There was considerable
snow on the highway over the mountains north of Hornbrook and little traffic.
Although two officers were nominally on duty they w-ere found inside their
cabin before a roaring fire, writing letters, because it was raining so hard that no
one was likely to go along the highway. They announced that they were stopping
no cars, trucks, or busses and were questioning no women. At the time of the
visit they had been 9 days at the station, but had not seen anyone walk along the
highway. There were only one passenger train and one freight train in each 24
hours, going south through Hornbrook. These were being searched. The
officers told the worker they had stopped and questioned 31 men who were riding
on the freights. Half of these had convinced the officers that they belonged in
California or had definite business there; the others had been encouraged to take
the next freight north. The officers stated that on the previous day they had
questioned one man and forced him to admit that he had once served a 1-year
10180 THE EDWARDS CASE
sentence in the penitentiary at Walla Walla. He had no job at the present time
but was trying to find work. He had a bundle in which were some new shoes
which he said had been given to him, but the officers arrested him on suspicion of
burglary. They told the worker of the Survey that this man had been taken to
the county jail, but at the jail the sheriff of the county reported that no one had
been brought there. When the worker visited the old hotel building in Hornbrook
where the officers had been fingerprinting suspects, the door was found locked.
The officers boasted that they knew how to make men tell the truth and that if
they suspected a man of having a record, in 80 percent of the cases they were right.
They considered anyone to have had a record if they succeeded in making the
person admit having been arrested on any charge, or ever having spent a night in
jail. They stated that after they made fingerprints it was at least 48 hours before
they could secure a report back from Los Angeles or Washington, to which points
fingerprints were sent, and obviously they could not hold all the men they sus-
pected until reports were received. With the exception of the one man whom they
had arrested, they could not tell of any definite contacts with persons with criminal
records. A statement, however, had appeared in the newspapers and was being
quoted in Yreka, where the officers had succeeded in making friends, that seven
desperate criminals had been caught. The officers insisted that the stories that
had been published about an old man who was injured by being forced to board a
northern bound moving train and about a mistreated bus passenger, were untrue.
The station agent at Hornbrook reported that he had observed no mistreatment of
railway passengers. Other persons in the town and the State Highway Patrol
officers told the worker that busses were not being stopped.
Because of the extremely bad weather the division in Modoc County was
not visited, but the officers in Siskiyou County reported that they had learned by
telephone that up to the middle of February no one whatever had been stopped in
Modoc County, where one officer was in command. One squad with a sergeant
and six officers was located at Stronghold; another squad with a sergeant and six
officers was located at Alturas. The sheriff of Modoc County refused to deputize
these officers and after a period of several weeks succeeded in having them with-
drawn from the county.
The central area detail, with headquarters in Truckee, was in command of a
lieutenant. Six sergeants and 33 officers were working under him. Men were
stationed at Portola in Plumas County; Reno Junction in Lassen County; Truckee
in Nevada County; Bridgeport in Mono County; and Bishop in Inyo County.
There was no squad on TJ. S. Highway No. 50, south of Lake Tahoe, as the road
was closed for the season by heavy snow.
The officers in Nevada County had been deputized by the local sheriff. Two
men were at Hirschdale, a small resort just inside the California State line on
the Donner Pass Highway. No cars were being stopped as far as the worker
from the survey staff, who visited the station in the middle of February, could
determine. The officers announced that they stopped persons walking along the
highway. As there were many feet of snow and the highway was closed even to
motor traffic at least half of the time, no persons were walking along the highway.
The men at Truckee were searching all west-bound freight trains. These were
boarded by the Los Angeles policemen when the trains stopped in the yards
about a mile below the station. Officers boarded each end of the train, the two
crews working toward each other thoroughly examining the corridors, empty
cars, trucks and underframes, the gondolas, doors, and ice hatches. Some of
the officers walked along the ground, others on top of the cars. In a 10-day
period only 6 persons had been stopped. Four of these had proved California
residence; "the others had been made to board east-bound trains. While the
worker from the survey was with the officers, one man with no documentary
proof of residence was allowed to enter when he showed familiarity with certain
California landmarks, but another who had a California chauffeur's license was
turned back when it was found that he was not familiar with the State. The
man admitted that some other transient had given him the license. The officers
were making use of the law which makes it illegal to evade railway fares, and
stated that it was under that law that they were able to make arrests. Half the
persons whom they decided should not enter California were practically forced
to break this same" law by boarding an east-bound freight train.
The men on duty in Plumas County had not been deputized by the sheriff.
Two men were stationed at Hallelujah Junction, the intersection of the Feather
River Highway and the Reno-Susanville Road. No traffic had been stopped at
this point. The detail at Portola was searching the Western Pacific west bound
trains. In the first 10 days, 34 persons had been stopped, and all of them finger-
NATIONAL DEFENSE MIGRATION 10181
printed; 17 had been turned back. This railroad was said to be more popular
than the Southern Pacific with the trespassers in the wintertime because the
Southern Pacific went over the mountains at 2,000 feet higher altitude and there
were more likely to be severe storms. Although few men were entering California
from Nevada it was found that at least 350 transients were living in the jungles
of Reno, just over the border in Nevada.
When inquiries were first made at Independence in Inyo County no one seemed
to know anything about the border patrol. The sheriff at Independence and the
public officials at Bishop stated that they had never heard of the patrol. These
communities are extremely hostile toward the city of Los Angeles because the
Los Angeles city water supply is drawn from the Owens Valley in this section of
the State, and the district consequently reduced to desert. In the many law-
suits concerning these water rights the local landowners have always lost. It
was found that two squads of Los Angeles policemen were working in this area,
one watching the road which comes from Carson City, Nev., into Bishop, and the
other on the highway from Tonopah, Nev., through Benton, Calif. The road
from Tonopah was closed on the day the survey worker visited the district,
February 23, because of the extreme cold and heavy snow farther east and north,
and the highway from Carson City was expected to be closed for several more
days. The narrow-gage railroad from Nevada into Bishop had few trains, which
ran irregularly. The officers were not finding anyone to stop and some of the
men had been withdrawn. One little known railroad around Death Valley was
not being covered.
The southern area detail was in charge of a lieutenant with headquarters in
San Bernardino. Six sergeants and 32 officers worked under him. In this
division there were squads at Cadiz, Wheaton, and Kelso in San Bernardino
County, at Blythe in Riverside County, and at Winterhaven in Imperial County.
San Bernardino County had not deputized the officers but Riverside County
had done so.
Cadiz is not a town or a community but just a railroad station in the desert
on the main line of the Santa Fe Railroad which comes from Arizona into Cali-
fornia at Needles. All trains, whether passenger or freight, stop at Cadiz for
oil and water. There are about 12 west-bound trains each day. The trains do
not stop between Cadiz and Needles. When the worker from the survey visited
this point early in February it was found that the officers were living at a cottage
camp at Chambless, on highway 66, about 3 miles from Cadiz. As on the Oregon
border, the officers on duty spent a good deal of their time trying to improve their
marksmanship. The officers announced that they had turned back 25 transients
in 7 days. They told of making one aged colored man, who had recently been
released from Folsom, board at east-bound train. He got off the train on the
desert and tried to circle around to get headed back into California. They
caught him and walked him into the desert until "his feet were so tender he could
step on a dime and call it heads or tails." He was again put on an east-bound
train.
The officers at this point claimed that they had not yet arrested anyone and
that if they did so it would be necessary for them to take the person to Ludlow,
the nearest jail, 45 miles away. They stated that they watched U. S. Highway
No. 66 for hitchhikers, and a few days before had driven two boys down the
highway to the tracks so they would catch an east-bound train. According to
their account they had not turned any automobile back. The officers were
searching each west-bound train, but on most of them were finding no passengers.
The conductor on one train told the worker on the survey that the men were
getting off at Needles, which was so full of transient men that 15 or 20 were
begging at his home there every day.
Since there had been extremely heavy snow in Nevada and Utah, few trespassers
were on the trains coming in through Kelso and there was little traffic through
Wheaton. Kelso is a Union Pacific town in the midst of the Mojave Desert. It
consists of about a dozen buildings inhabited by railway employees. The Los
Angeles police officers on duty at Kelso were living in the small railway hotel.
Wheaton Springs is on the main highway connecting Las Vegas, Nev., with the
coast, but it consists only of a gasoline station and some cabins. The officers at
this point were proceeding with caution, due to the fact that they had not been
deputized as sheriffs in San Bernardino County. They stated that it was 125
miles from there to any jail, but they had arrested no one so far. This station was
not being covered at night, and by the time it was visited by a member of the
survey staff on February 21, only four officers were remaining at this point.
10182 THE EDWARDS CASE
There were rumors that large numbers of men were camped in the jungles of
Las Vegas, waiting a chance to get across the line into California. The survey
worker who visited Las Vegas estimated that there were at least 700 unattached
men in the town of Las Vegas, but only a few of these were living in the jungles.
More of them were spending their nights in the gambling houses where they were
allowed to sleep on chairs until 6 a. m. Many of the men told the survey worker
that they were planning to enter California in trucks, one or two at a time, pre-
tending to be helpers to the regular drivers. There are long stretches of the State
border far from main roads. One of the men in the Las Vegas jungles said, "If
the pioneers could get through without roads, we can get into California if we
want to."
About 4 miles from Blythe the officers were stationed in what had formerly been
a cold-drink stand about 15 feet from the plant quarantine station at the border.
The officers were stopping cars, making no search if they were expensive cars, but
explaining to the drivers that it was illegal in the State of California to carry
firearms without a permit. Many people turned over their firearms to them.
The officers examined the passengers to see if any of them looked like hitchhikers
who had been picked up. Dilapidated-looking cars were being turned back. The
officers at this point reported that in the first week they had turned back 40 cars
but the number had decreased since then and by the third week, at which time
this point was visited by members of the survey staff, they were turning back only
one or two a day.
The officers related the story of three girls traveling in a truck with three men.
The men were afraid to try to get them through the patrol. The girls had gotten
out of the truck and tried to sneak around the policemen, but they had caught
them. The officers decided that two of the girls were experienced prostitutes but
the other was a 15-year-old runaway from Texas. This young girl they were
holding and hoped to arrange her return to her parents.
Highways 60 and 70 from Arizona were said to have the largest amount of
traffic in February, and all automobiles had to stop for a series of inspections. The
State motor vehicle department checked regarding automobile licenses. The
inspection of the State department of agriculture included examination of camp-
ing equipment, blankets, etc., to see if any insects detrimental to California
agriculture might be present. The United States Immigration Department
checked at this point to see if aliens were entering. The Los Angeles patrol
became the fourth check.
When the worker visited this station near Blythe early in February, representa-
tives of the Paramount News were taking moving pictures of the border patrol,
and the officers said that the Metrotone News had taken pictures a few days
previously. The officers at this point were interested in securing publicity so
that undesirables might stay away from California. They said that they were
being careful not to offend anyone who might be rich or have political influence.
Up to February 11 the officers reported that they had turned back only three
families. Since the officers at this point were deputized by the Riverside County
sheriff they were not afraid of making arrests. The officers talked with the people
in the different cars and advised those who did not look like wealthy tourists that
it would be better for them to turn around since there was no employment in Cali-
fornia even for the residents of the State. They talked to all of the bus passengers,
advising them to write East to their friends, telling them not to try to hitchhike
into the State or even come in their own automobiles unless they had plenty of
money. They were taking revolvers from persons in automobiles, telling them
they were violating the State law about carrying concealed weapons, and the
officers were suggesting that these persons write back home to tell their friends
how strict laws were in California. The worker heard one boy thus deprived of
his revolver, tell the officers he "sure would."
The officers claimed that they were taking fingerprints of all persons they turned
back, with the exception of women and children under 18. Fingerprints were
also taken of each person who had a concealed weapon. The officers were using
a questionnaire form of interview for all of these persons. From February 3 up
to 11 a. m. on February 11, the chart kept by the officers stationed at Blythe
recorded that 44 persons had been fingerprinted. The officers said that in the
first few days, when they had turned back 200 undesirables, they had not been
equipped to take their fingerprints.
While the worker on the survey observed the officers at work, about half of the
automobiles were allowed to pass without any inspection. A beautiful new
Packard sedan with four passengers was signaled to pass, the officer turning to the
NATIONAL DEFENSE MIGRATION 10183
worker, remarking, "You see, there's really nothing to do in that case. We
would make enemies if we stopped people like that." Other fine cars, however,
were stopped while the drivers were told of the law about weapons. The decision
to stop cars appeared to be based upon the convenience of parking, the mood of
the officer, the number of cars in line and the presence of the sergeant. An
officer signaled to the side of the road an old model car in which the occupants
did not appear needy, and began a conversation, "Hello, it is my duty as an
officer to inform you regarding the law on concealed weapons," and then explained
that the penalty for violation of the law was 6 months in jail or a $500 fine.
The approach varied according to the individual officer, but it was always
courteous and convincing. Without waiting to hear the penalty, one man gave
up his automatic. Three revolvers were confiscated while the survey worker was
there. One man was allowed to pass with his automatic without being finger-
printed when he produced evidence permitting him to carry it. A couple with a
small baby in a new 1935 Oldsmobile sedan turned over a new revolver, which
the man had just purchased for $20. The officer explained that on receipt of
permission to carry a gun from his local sheriff in Maine he could send to River-
side for his weapon. A discussion of firearms led to other questions, and an
interview sometimes went on for 10 minutes, necessitating a conference of two
officers before the car was allowed to proceed. One officer said that the people
did not mind being questioned, except when they were asked about their finances.
Bank books and canceled checks were sometimes requested as evidence of financial
security.
Two young hitchhikers slowly trudging their way east, stepping as though
their feet were sore and their backs tired from carrying a suitcase and a bundle,
caught the eye of an officer. "Keep right on going — don't stop," was the parting
farewell shouted at them by the police as they crossed the Colorado River bridge
into Arizona.
A 1927 Pontiac sedan, laboring under the weight of five passengers, a pile of
cartons filled with food, dishes, and old clothing, and extra luggage tied on the
running board, halted for inspection. Two flat tires with an inner tube half out
were strapped on the back as spares. Old tools, a jack, pliers, and a wrecking
bar, which the officer inspected closely as possible "concealed weapons," were
strewn on the floor, partially covered by old, soiled blankets and overcoats.
All the passengers, two young girls, a young boy, and two middle-aged men, wore
dirty clothes spotted with oil and grease. The driver, the most slovenly of all,
even had his shoes unlaced, as he "felt more at home" that way. He said he
operated a dray line in a certain town in Ohio and had sufficient money for the
group and could wire for more. His brother-in-law, two nieces, and the young
bridegroom of one of the girls were "really on a honeymoon for the young couple"
and might spend only 2 days in California, traveling then to Nevada. After
they left, the officer remarked, "We should have turned them back but we can't
quite do it."
Shortly after the departure of the Pontiac, a 1929 Ford roadster, dripping water
and oil, with a home-made trailer attached, came to a stop under the canopy.
A 1935 New Mexico license, battered and covered with dust, revealed the State
of origin. When the regular inspection was completed, the police beckoned them
to halt. The old car, lacking paint in spots, spattered with oil-soaked dust, and
probably not washed for a year or so, was equipped, like the trailer, with new
tires. The worker counted the occupants twice to make certain that the family
totaled nine. The little one-seated car was crowded with the father, a 16-year-old
son, a 3-year-old boy, and the mother with a year-old daughter on her lap) — all
jammed in the seat. " The cover to the baggage compartment, had been ripped out
and converted into a rumble seat for the three daughters, 5, 12, and 14. The
oldest boy, 18, sat alone in the middle of the trailer. Heaped around him were
what appeared to be all the worldly possessions the family owned. A white canvas
covering hid from view all but a coffee pot, a tea kettle, a lantern, and the barrels
of a .22-calibre rifle and a 12-gage gun. The trailer, about 8 feet long, mounted
on two wheels, was still new, and the lumber showed little sign of road wear or
hard weather.
A check with the police revealed that the family were coming to California for
the first time, to see the wife's sister. They had $30 in cash. The two officers
working jointly on this case, advised the family of the difficulty in securing em-
ployment and told of the thousands already on relief in Los Angeles. The captain
of the highway patrol happened to be present, and he informed the travelers that
10184 THE EDWARDS CASE
it would cost $20 to clear the licenses on the car and trailer. The family had
little to say, so the policeman remarked as he ceased the attack, "Think it over —
make yourself at home." For 10 minutes or so the scene was tense. The mother,
clothed in a well-worn spring coat, clutched her baby girl to her as she broke out
in sobs. The two oldest girls, wearing only light cotton dresses, shed a few tears.
The 5-year-old sister jumped around, not knowing what it was all about. The
boys sat quietly, staring into space, waiting for their parents to decide. The
police continued their attack, but this was too much for the father and mother.
"If only," she said, "I could see her (the sister) — I don't care so much if we can't
stay here." The father, unshaven and unwashed, with a ring of tobacco juice
around his lips, silently crowded the others over and took his place behind the
wheel. The battery was low and the motor did not respond, but when it did it
sounded as if it, too, was "undesirable" and in need of assistance. With a weak
threat to call his brother-in-law and have him come to Arizona and take them
across the line into California, he turned the Ford around, and the family of nine
from general delivery, , N. Mex., went back over the road they had traveled
about an hour before, having denied the police the privilege of fingerprinting them
as "not wanted in California."
The police squad on duty near Winterhaven, just across the bridge from Yuma,
Ariz., had added two extra officers just before the place was visited by a worker
from the survey on February 11. The officers were using a part of the quarantine
station of the State department of agriculture as an office. A few days later they
were asked to move out, and then used the dilapidated Winterhaven jail as head-
quarters. The police officers were living in the hotel at Yuma and seemed to have
made friends with the townspeople there. The officers described a man in Navy
uniform who had been detained on a previous day because of different names on
letters in his pocket and on the liberty card from a United States destroyer at San
Diego, which he carried. A Mexican traveling with him said he was not a real
sailor. The Mexican was held for deportation. The man in uniform was sen-
tenced to 7 days in the Winterhaven jail, which he was forced to clean. In
the meantime his fingerprints were sent to Los Angeles to determine if he had a
criminal record. Another man who had been found to have buiglary tools in his
possession when he was taken off a freight was also confined in the Winterhaven
jail.
While the worker watched, about eight or nine hitchhikers were counted but
allowed to proceed into California. Why this number were allowed to enter was
not clear to the survey worker. A train bound for a short trip into Mexico before
continuing on into California had no trespassers. It was stated that the Mex-
ican officials were so rough with trespassers that few attempted to ride.
On another train were five trespassers. A Mexican girl of 16 and a Mexican
boy of 19 were detained by the officers while the others were allowed to proceed.
The girl was short, dark, stocky, and dirty. She wore a soiled house dress and long,
grimy tweed coat. Her black, unkempt hair hung in wisps to her shoulders. She
remained apathetic during a half hour of questioning by the police, and answered
rather sulkily. The boy was dark, thin, and somewhat stooped. He was well
dressed and clean. Both were spoken to separately by the policeman, who was
patient, kindly, and intelligent. The couple left El Paso Sunday night after the
girl had had a quarrel with her mother. (This was Tuesday and El Paso is 725
miles from the California border.) She said there were five children in her family.
The father was unemployed, but the mother and one of the boys were working
and able to care for the family's needs. The girl had completed 2 years of high
school. She was en route to Los Angeles to her cousin who was working in a
factory, and she was certain she would have no difficulty in finding work too.
This was the first time she had left home and she was not aware there was any-
thing wrong in traveling across the State line with a man. When they left El
Paso they had more than a dollar between them and they still had 30 cents. They
said they were not hungry and they carried a pint jar of peanut butter, so that their
money would not give out too quickly. They were held more than an hour before
several policemen, after consultation, decided to release them after fingerprinting
the boy. They were warned that they were to return to El Paso immediately or
they would both be sent to jail. They were escorted to the Arizona State line and
watched until they had disappeared down the road.
On February 13 a worker reported that a few hitchhikers attempted to cross
the border. Some of them were able to convince the officers that they had a
right to do so. One family of nine, with a dog, traveling in two trucks, was de-
NATIONAL DEFENSE MIGRATION 10185
layed several hours by the officers but finally allowed to proceed since they had
plans, some money, and expectation of work in Kern County.
The police looked over the passengers of a Los Angeles Gray Line bus when it
stopped for the baggage inspection at the agriculture quarantine station. The
police asked the driver whether any of the passengers were taking a short ride.
This would have placed them under suspicion for paying fare from the nearest
point in Arizona to the nearest one in California in order to evade the patrol.
There were no short-ride passengers, according to the bus driver.
In the evening the special assistant to the deputy chief of police arrived to make
an inspection of this territory. The lieutenant in charge of the southern division,
and the sergeant in charge of this station and four officers of the detail, a deputy
sheriff and a railway detective, made up the inspection party. A freight was due
at 6 p. m. but actually arrived at 7.
As the powerful freight crept by, the engineer waved and the train came almost
to a standstill traveling at a rate not exceeding 5 miles an hour. It was a very
impressive sight. Darkness had just settled, and the detail was equipped with
powerful flashlights. As the train passed the central point, the officers began
their search. Several jumped on the front of the train, others waited until approxi-
mately half of the 75 cars had gone by, and then boarded. In the meantime,
several additional officers stationed farther down the track boarded the rear end.
The train picked up speed slightly and proceeded onward, still however, very
much in leash; it did not exceed 15 miles an hour. As the last car reached the
inspection station there was a crunching of brakes and the train came to a stand-
still. The cordon of officers returned to the central point.
The raid had netted them two dirty, tired, lone individuals, obviously affected
by the cold and fear. One, a Mexican, spoke very little English. He stated that
he was born in Texas, and had lived most of his life in San Antonio. He had
finished the fourth grade in school. A complete search revealed only a few matches,
a tortilla, and a piece of cord. He was unable to explain why he was coming into
California, and in fact it was only with the greatest difficulty that he could
make the police understand his name and former residence. He was offered no
opportunity to decide whether he wished to risk jail or return, but one of the officers
took him' by the arm, stating, "Let's take a walk, buddy," and they disappeared
in the darkness toward the bridge that separates Yuma, Ariz., and California.
The other man soon gained self-possession. He stated simply that he was a
seaman, had shipped from San Francisco to New York and was en route to San
Francisco to ship again. He showed his discharge papers, and as the evidence
•offered was satisfactory he was not molested any further but was permitted to
reboard the train. From somewhere in the darkness emerged two additional
figures. One man was en route to San Pedro to reenlist in the Navy; the other was
a young boy, probably 17 or 18, who had left Long Beach that morning intend-
ing to take a trip East, but had changed his mind and now wished to return.
These men spoke to the sergeant and were told to get on the train. During all of
this questioning and searching, the train had not moved.
As soon as the Los Angeles police sent men out to the 16 locations near the
State line, the border patrol received a great deal of publicity in the newspapers.
According to newspaper accounts there were protests from such organizations as
the Civil Liberties Union and the American Association of Social Workers, from
the Governor of INevada, the attorney generals of Arizona and Oregon, the City
Commission of Phoenix, Ariz., the officials of Portland, Klamath Falls, Grant's
Pass, and Roseburg, Oreg., the chief of the California Highway Patrol, and many
private individuals. Two members of the California Senate were stopped and
subjected to questioning by the officers at Blythe. Eastern newspapers and
magazines ridiculed the State for allowing such a thing to happen". The news-
papers of Northern and Central California were bitter regarding the power of a
southern California city. Local taxpayers in Los Angeles protested the expense
of maintaining 125 men hundreds of miles outside of Los Angeles City, in addition
to paying their traveling expenses and salaries. The chief of police claimed that
he was protecting the city from an influx of criminals, and stated that 65 percent
of those stopped had criminal records. He admitted to a member of the survey
staff that he considered anyone to have a criminal record if he had ever been
arrested for vagrancy or spent a night in jail. He was not willing to allow a
worker from the survey to examine the information in his office regarding the
patrol.
The attorney general of California, in a reply to a request from the Los Angeles
Chamber of Commerce for endorsement of the blockade, stated that the police of
60396— 42— pt. 26 15
10186 THE EDWARDS CASE
Los Angeles had "no jurisdiction beyond the city's territorial limits * * *.
Under provisions of the political code of this State no person is eligible to the
position of a deputy sheriff in one of the counties of this State, except he be an
elector of such county * * *. As between the States, the right of citizens to
ingress and egress has very generally been recognized and upheld * * *.
Government no more than the individual can justify the reaching of even proper
ends through unlawful means." The entire letter is included in appendix B.
Among the persons stopped by the police was John Langan, a resident of
California who had been in Arizona on business and was returning to his home on
February 10. He sued James E. Davis, as chief of police of the city of Los
Angeles, in the Federal court, asking that Chief Davis be enjoined from "stopping,,
molesting, questioning, fingerprinting, arresting, or otherwise interfering with
plaintiff entering California, or with plaintiff traveling in California, or with plain-
tiff traveling between any of the States bordering on California." The complaint
states that Mr. Langan "was stopped, taken in custody, molested, questioned, and
threatened ejection from the State unless he did then and there prove to the
policemen's satisfaction that he was not a resident of another State and was not
an undesirable citizen. Mr. Langan was, at the time, in pursuit of his lawful
business, which frequently calls him across the State lines of California, had
committed no crime nor was he accused thereof, and the officers possessed no
warrant for his arrest. Langan claims that he was thereby deprived of his
constitutional rights as guaranteed by the fifth and fourteenth amendments to the
Constitution of the United States. He also claims that he has suffered a monev
loss of $5,000."
The case was heard in the central division of the Southern California District-
Court of the United States on March 17, Judge Stevens presiding. The judge
decided that the fifth amendment to the Constitution, which states that no one
may be deprived of liberty without due process of law, did not apply. The State
courts have jurisdiction regarding differences between its citizens, and in this case
both parties, that is both Mr. Langan and Chief Davis, were citizens of California.
The case would therefore have to be heard in the State court unless the State was
accused. In this case the State was not accused, but an individual. The officers
detaining Mr. Langan, according to the judge, were not acting as Los Angeles
policemen but as deputy sheriffs of Riverside County.
The fourteenth amendment to the Constitution, which states that no State
may deprive one of liberty or deny the equal protection of the laws to its citizens,
could not apply because the complaint was not directed against the State and
Chief Davis was not acting under authority of the State. The case was there-
fore dismissed.
Newspapers reported that in addition to the border patrol the police officers
were searching the rooming houses in Los Angeles, dragging persons from their
beds and telling them they must leave town. No evidence was found by workers
on the survey to support this. However, it was found that the police were
sending into other States many persons who had already entered the State of
California.
A worker on the survey was in the desert town of Indio on February 10. The
Journal of a Transient records: "I learned that a freight was pulling out for Yuma,
at 7:30 that night, and was waiting in the yards for it when it came in. When
the train stopped a Los Angeles police automobile pulled up near the caboose
and unloaded boxes of sandwiches. The doors of the last two boxcars were opened
and 100 or 150 boys and young men hopped out and lined up to be fed. Two Los
Angeles policemen were in the cars in charge of the mob. Most of these boys had
been taken out of Lincoln Heights jail, and put on the train under supervision of
Los Angeles authorities. A few had been picked up along the way, they said.
There was much joking among the boys and the policemen about their "pullman
ride" heme to Texas or Oklahoma. I saw one boy in the crowd to whom I had
talked in the Los Angeles jail. He had told the police he was from Phoenix, but
had told me his family lived in Portland. He was an overgrown 16-year-old run-
away. I saw 50 or 75 more riders as I walked up the track beside the train, and
when it started to pull out, I got on a flat car with 15 other boys and men. On
this car were 3 Ohio boys of high-school age, traveling together, who had ridden
this same train all the way from the Oregon border. In that distance all the food
they had eaten was two loaves of dry bread which they had bummed while the
train was stopped in Bakersfield. In Colton one of them had bummed about 10
pounds of dry beans. These they expected to cook in the Yuma jungles when they
got out of reach of the 'tough California bulls.' All the way from Indio to Yuma
NATIONAL DEFENSE MIGRATION 10187
they talked of the big 'bean banquet' they would have. It was too cold to sleep
on the flat car, and we all huddled together to keep warm. The three boys from
Ohio amused themselves by swapping shady stories and singing popular songs.
Their use of English and their conversations in general indicated good educational
backgrounds, and some of the stories they told were too subtle for most of the
men to catch.
"The train rolled across the Colorado River bridge at midnight, and as it slowed
down going into the Yuma yards, I counted 19 Los Angeles and Yuma policemen
lined up along the track to greet the new arrivals. Several of them boarded the
train before it stopped and took charge of all the bums who were riding. As one
of the Yuma cops hopped on our flat car he swept the crowd with his flashlight,
counted them, and said: 'Now you birds stay on this train, and if any of you try
to get off her we'll burn your goddamned tails till hell won't have you.' He went
on to say that this was a through freight and we were all going to be held on it
across the State of Arizona. One of the three boys with the beans told the police-
man that they were about to starve and would like to stop long enough to 'cook
up.' He asked if they couldn't be put in jail and fed. 'Hell, no,' the cop answered,
'didn't I'just tell you not to get off this train?'
"When the train stopped, we were lined up along the track with 10 or 12 other
men and searched by 2 cops. We were then marched back to the cars where the
kids were locked in and told to get in with the others. At the rear of the train
we were met by an officer in a khaki-colored uniform who was addressed by the
cops as 'chief.' I approached him and told him that I was a California resident
and had ridden into Yuma by mistake, thinking that this train came by El Centro
where I had a job. He asked me if I had any identification, and I showed him a
California driver's license. He told me to 'get the hell back to California then,'
and he sent one of the cops with me to escort me across the bridge and to see that
I did not stop in Yuma. I asked my escort how long he thought the border patrol
would last. He said it would be permanent and that the railroads were going to
put all trains under strict guard again to keep the bums off the trains.
"At the west end of the bridge I was stopped by three Los Angeles policemen
who asked a few questions and let me pass, after taking down my name and
address from my driver's license. They showed no inclination to be hard-boiled.
"I walked down the highway through Winterhaven and found a place to sleep
in the tall grass and sagebrush by the roadside. I dreamed for the rest of the
night of piles of tempting food being cooked over a jungle fire while I was tied
to a nearby tree by a policeman."
The report on "indigent alien transients" made by James E. Davis, chief of
police, on March 11, 1936, speaks of the border blockade as a great success because
it had saved the State millions of dollars and given Nation-wide publicity. It
stated: "Perfect harmony exists between our officers and the local enforcement
agencies of the localities where our patrols are operating."
An analysis of other parts of this report reveals much irrelevant data. One
table shows the total of major crimes and total crimes committed in Los Angeles,
which shows a decrease for the past 3 years. Other tables show that the number
of transients coming into the State was increasing during this period. If these
two sets of figures have any connection they would seem to indicate that an in-
crease in transients leads to a decrease in crime, a conclusion which even the
friends of transients would scarcely draw.
The figures compiled by the statistician of the police department regarding
"foreign transient activities" show that although a considerable number of tech-
nical arrests of persons evading railway fare or on vagrancy charges were made
by the border patrol, up to March 9 only six persons had been arrested on any
more serious charge. While the statement was made that 48 percent of the
transients had previous criminal records, it will be noted from the table that
there were only 272 persons with records although contacts were made, accord-
ing to the figures of the department, with 7,984 persons. It should be kept in
mind that the police department considered anyone to have a previous record
who had ever been arrested for any reason, including arrest for simple vagrancy
(lack of funds), or arrest for minor traffic violations.
10188 THE EDWARDS CASE
Table 32. — "Foreign transient activities" of Los Angeles Police Department
Total
Southern
area
Central
area
Northern
area
567
370
71
126
155
406
6
46
321
3
20
50
1
89
35
2
Previous record:
272
48
443
930
166
45
303
896
48
68
54
12
58
46
Entered:
86
22
6,044
5,054
300
690
1,373
4,671
1,199
3,855
66
234
108
582
Note. — Transients picked up locally by Los Angeles Police Department and deported out of State, 742.
Source: Figures compiled March 9, 1936, by Rhoda Cross, statistician. Los Angeles Police Department.
The chief of police, on March 11, recommended that the work of stopping
transients at the border be carried on (1) by various departments of the State
government, including the department of motor vehicles, the board of equaliza-
zation (in connection with the collection of the tax on caravan cars), the depart-
ment of agriculture (in connection with plant quarantine), the State department
of 'health by establishing border quarantine stations; (2) through agreements with
authorities from other States; (3) by the counties whose supervisors should make
appropriations for additional deputy sheriffs and secure State grants to counties
for additional sheriffs; (4) by the railways which should employ additional special
agents; and (5) that the State relief administration should take "action in accord-
ance with policy of this agency."
It may be noted that a recommendation was not made that the Los Angeles
Police Department should continue its activities. About the middle of April all
of the Los Angeles officers were withdrawn from the border of the State.
APPENDIX K
Compilation of All State Antimigratory Legislation, Including Exclusion
Laws And Removal Statutes
Alabama Code (1940)
Sec. 19. Offense in bringing paupers into state. — Any person who shall bring or
remove or cause to be brought or removed any poor person from any place with-
out this state into any county or municipality within it, with the intent of making
such county or municipality chargeable with his support, shall be guilty of a
misdemeanor, and upon conviction shall be fined not less than fifty nor more than
three hundred dollars; and the justice or court before whom such person shall be
proceeded against for a violation of the provisions of this section shall, by its
judgment, require of such person satisfactory surety that he will, within a reason-
able time to be fixed, transport such person out of the state, or indemnify such
county or municipality for all charges and expenses which have been or may be
incurred in his support; and, in case of neglect or refusal so to do, may sentence
such person to hard labor for the county or municipality for a term not to exceed
three month (1927), p. 521.
Sec. 20 (2806) (1617) (3238) (1470) (1746) (1465) (1219). Captains of vessels
bringing paupers to the state to give bond; penalty for breach; penalty for refusal. — ■
Any person commanding any vessel which brings into this state any infant, luna-
tic," maimed, deaf, dumb, aged, or infirm person, who is likely so become charge-
able to any county, may be brought before any judge of probate, and if such judge
is satisfied that such person will probably be a charge to any county, he must re-
quire such master to enter into bond, payable to the state, with sureties resident
NATIONAL DEFENSE MIGRATION 10189
in the state, to be approved by such judge, in the sum of five hundred dollars for
each of such persons so brought, conditioned to pay all such expenses as any
county in the state may incur in the support of such person; which bond must be
filed and kept by such judge, and, on its condition being broken, may be sued on,
and a recovery had in different actions to the amount of the penalty thereof, in
the name of the state, for the use of the county, and on failure to give such bonds,
the judge must commit such master to jail until he gives the same, or is otherwise
discharged bv law.
Sec. 14 (2792) (1603). Strolling paupers removed, and, if sick, relieved. — Incase
any pauper shall leave the county in which he may have a settlement, and remove
to another county, the county governing body, or any member thereof, may make
an order to remove the pauper back to the county from which he came, directed
to any constable to execute. But if the pauper be sick or disabled, so that he can-
not be removed, he shall be provided for in the county in which he may be found
until he can be removed. And it shall be the duty of the governing body of the
county to which any pauper belongs to receive him, on his removal, and provide
for him as in other cases (lb.).
California Welfare and Institutions Code (Deering, 1937)
Sec. 2502. Right to incur expense in returning nonresident indigent to place of
residence. — If no other funds are available for the purpose, a county may incur ail
necessary expenses in transporting a nonresident indigent to another State or
county when information at hand reasonably tends to show that the person has a
legal residence in such State or county.
Sec. 2503. County responsible for indigent may agree to support him in county
wherein he resides; agreement not to alter legal residence; record to be furnished depart-
ment.— Whenever the respective boards of supervisors deem it best for the welfare
of a family or in the public interest that an indigent remain in a county not respon-
sible for his support, the county responsible for the support of the indigent may
agree to support him in the county not so responsible; but no indigent supported
in this manner shall be deemed to have acquired a residence in the nonresponsible
county. Such agreement shall be made by the responsible county with the non-
responsible county, and a record or copy thereof shall be sent to and filed in the
office of the State Department of Social Welfare.
Sec. 2550. Requirements generally. — Except as otherwise provided in this chap-
ter, a person, in order to be entitled to aid, shall be a resident of the State and of
the county wherein application is made,
BRINGING INDIGENT INTO THE STATE
Sec. 2615. Willful act a misdemeanor. — Every person, firm, or corporation, or
officer or agent thereof that brings or assists in bringing into the State any indigent
person who is not a resident of the State, knowing him to be an indigent person, is
guilty of a misdemeanor.
California Penal Code (1939)
Sec. 19. Punishment of misdemeanor, when not otherwise prescribed. — Except
in cases where a different punishment is prescribed by any law of this State, every
offense declared to be a misdemeanor is punishable by imprisonment in the county
jail not exceeding six months or by fine not exceeding five hundred dollars, or by
both (1933: 2216).
Colorado Statutes, Annotated, Chapter 124
Sec. 10. Bringing paupers into county — Liability. — If any person shall bring
and leave any pauper or paupers in any county in this state, wherein such pauper
is not lawfully settled, knowing him or them to be paupers, he shall forfeit and
pay the sum of two hundred dollars for every such offense, to be sued for and
recovered by and to the use of such county, by action of debt, before any court
having competent jurisdiction; and the suit may be brought in the county where
the pauper was so brought and left, and the process may be directed to and served
by any proper officer in any county in this state (G. S., § 2537; G. L., § 2003;
R. S., p. 496, § 9; R. S. '08, § 4798; C. L., § 8914).
The intention of the legislature in enacting this section was to punish any
person who, knowingly and intentionally, caused a pauper to be taken from the
county where domiciled and transported to another, with the knowledge and
10190 THE EDWARDS CASE
intention of relieving the county of domicile from a charge of support, and making
the person a charge upon the other county {Board of County Com'rs v. Law, 3
Colo. App. 328, 33 p. 143).
Person must be a pauper within legal definition of word. In order to warrant
a conviction under this section it must appear beyond controversy that the
person was a pauper within the legal definition of the word, had legal domicile
in the county from which the removal was made, and not in the county to which
he was taken or sent, and a knowledge of the facts by the person charged from
which the intention, if not expressed, could legally be implied (Board of County
Com'rs v. Law, 3 Colo. App. 328, 33 p. 143).
In cases under this section intent is an element of the offense (Board of County
Com'rs v. Law, 3 Colo. App. 328, 33 p. 143).
Sec. 7. Notice to proper county— Relief — Liability. — If any person shall become
chargeable in any county in which he or she did not reside at the commencement
of the six months immediately preceding his or her becoming so chargeable, he
or she shall be duly taken care of by the county commissioners where he or she
may be found, and it shall be the duty of the clerk of the county commissioners
to send notice by mail to the clerk "of the county commissioners of the county in
which such pauper resided as before stated, that said person has become charge-
able as a pauper, and requesting the authorities of said last-named county to re-
move said pauper forthwith, and to pav the expenses accrued in taking care of
him, her, or them (G. S., § 2534; G. L., §'2000; R. S., p. 495, § 6; R. S. *08, § 4795;
C. L., § 8911; L. '31, p. 676, § 2).
Connecticut Revised Statutes (1930)
Sec. 1691. How persons settled in other towns are removed. — When any person
having a settlement in any town in this state shall go to reside in some other town,
and, before he shall have gained a settlement in the town to which he has gone,
he or any of his family shall become chargeable, the selectmen, after giving notice
to the town to which such pauper belongs to remove him and his family and on
failure of such town to make such removal, may apply to any justice of the peace,
who shall issue his warrant, directed to either constable of the town where such
pauper is, commanding such constable to remove such pauper to the town where
he has his settlement. Such constable shall execute such warrant, and the lawful
fees for the service of the same at the rate allowed for service of criminal process
shall be paid by the town to which such pauper belongs.
Sec. 1690. Deportation. — When any person who is an inhabitant of some other
state or country shall come to reside in any town in this state, and shall become
chargeable or make application for aid during the first year of his residence in
such town, the selectmen, or, in the case of a state pauper, the state agent, may,
at any time during such period or within sixty days thereafter, apply to any
justice of the peace therein, who shall issue his warrant to either constable of
such town, any state policeman, or other proper officer, ordering him to transport
such pauper to the place in the state or country whence he came to this state, or
to the place of his former residence, at the discretion of the selectmen or the state
agent applying for such order. Such officer shall execute such warrant, and the
expense thereof, having first been audited and approved by the selectmen, shall
be paid by such town, or, if such application was made by the state agent, the
expense shall be audited by the state agent and paid by the state. The word
"selectmen," as used in this section, shall be construed to include any other officer
or board which, instead of the selectmen, lawfully exercises the powers and duties
of overseers of the poor.
Sec. 1692. Forfeiture for bringing indigent person into a town. — Each person who
shall bring into and leave in, or cause to be brought into and left in, any town in
this state, any indigent person who is not an inhabitant of such town, and who
shall become chargeable within one year after having been so brought into and
left in such town, shall, on demand of the selectmen thereof, remove such indigent
person out of such town to the town from which he came; and, if such person so
bringing and leaving, or causing to be brought and left, such indigent person in
any town in this state as aforesaid, shall, on demand of the selectmen of such town,
fail to remove such indigent person out of such town to the place from which he
came, he shall forfeit and pay to the town in which such indigent person shall
have been left, the sum of seventy dollars; and, if such indigent person shall have
been so brought and left in such town, with the intent on the part of the person
so b inking and leaving him, or causing him to be so brought and left, to make
him chargeable or any expense to such town, such person so bringing and leaving,
or causing to be so brought and left, such indigent person, shall forfeit and pay to
NATIONAL DEFENSE MIGRATION 10191
the town, into which such person shall have been brought and left, the sum of one
hundred dollars and all the expenses incurred by such town in the maintenance
•of such indigent person.
Connecticut Revised Statutes (Supp. 1935)
Sec. 667c. Interstate transportation. — The commissioner of welfare is authorized
to enter into reciprocal agreements with other states regarding the interstate
transportation of poor and indigent persons and to arrange with the selectmen
for the acceptance and support of persons receiving public aid in other states in
accordance with the terms of such reciprocal agreements.
Connecticut Revised Statute (Supp. 1939)
Sec. 559e. Deportation. — When any person who has a legal settlement in some
other state or country shall come to reside in any town in this state, and shall
become chargeable or make application for aid, the selectmen, or in the case of
a state pauper, the commissioner of welfare may apply to any justice of the peace
•of the town wherein such person becomes chargeable or has made application for
aid, or to any court having jurisdiction, and such justice or such court shall issue
a warrant to either constable of such town, any state policeman, or other proper
officer, ordering him to transport such person to the place in the state or country
whence he came to this state, or to the place of his former residence, at the dis-
cretion of the selectmen or the commissioner of welfare. Such officer shall exe-
cute such warrant, and the expense thereof, having first been audited and approved
by the commissioner of welfare, shall be paid by the town, or, if such application
was made by the state agent, the expense shall be audited by the state agent and
paid by the state. The word "selectmen," as used in this section shall be con-
strued to include any other officer or board which, instead of the selectmen,
lawfully exercises the powers and duties of overseers of the poor.
Flokida, Comptroller General Laws (1927)
Sec. 8003. Landing sick seamen or paupers in the seaports of the State. — If any
master or commander of any ship or vessel shall discharge or cause to be put
ashore any sick or disabled sailor or sailors belonging to his ship or vessel, not
entitled to his or their discharge, by the contract between them, or any servant,
without taking due care of his or their maintenance, and cure, or who shall land
from any such ship or vessel any pauper or vagrant, without the means of pro-
curing his or her or their maintenance for the space of one month in any port of
the State of Florida, he shall be fined in a sum not more than one hundred dollars,
or be imprisoned for a period of not more than sixty days (Ch. 4593, Acts 1897,
sec. 1).
Georgia Code, Annotated (1935), Title 23, Chapter 23-23
Sec. 23-2305 (557). Persons removing paupers, liability. — -When any inhabitant
of any county, city, town, or village in or out of the State sends a pauper to some
county in this State, by paying the expense of transportation, or otherwise has
him removed for the purpose of burdening some other community, the person
doing so shall be personally liable for the support of the pauper in the county
where he locates.
Sec. 23-2306 (558). County liable, when. — If the person so engaged in trans-
porting a pauper is insolvent, or does not respond to such demand from any
cause, the county from which the transportation took place shall be liable.
Sec. 23-2307 (559). Paupers left by migratory companies, etc. — If any person
commanding any vessel, or the manager or proprietor of any theatrical, circus, or
any other migratory company, or their agent, or any person passing or moving
through this State shall bring and leave or abandon herein any infant, lunatic,
maimed, deaf and dumb, blind, aged or infirm person, who is or is likely to become
chargeable to the county, he may be brought by warrant before any judicial
officer.
Illinois Statutes, Annotated (Smith-Hurd, 1935), Chapter 107
Sec. 13. Bringing pauper into county — Penalty. — If any person shall bring and
leave any pauper in any county in this state, wherein such pauper is not lawfully
settled, knowing him to be a pauper, he shall forfeit and pay the sum of $100 for
10192 THE EDWARDS CASE
every such offense, to be sued for and recovered by and to the use of such county
bv action of debt, before anv justice of the peace in the proper county (1874,
March 23, R. S. 1874, p. 754,' sec. 13).
Illinois Statutes, Annotated (Smith-Hurd Supp. 1940), Chapter 107
Sec. 16. Residence requirements — Removal of pauper from city, township, or
county. — No city, village, incorporated town, county, or township required by
this Act to provide relief and support to residents therein shall furnish such relief
or support to any person who did not reside therein for a period of three years
immediately preceding his application for relief and support. If, however, any
person did, for said three year period, reside in some other city, village or incor-
porated town in this State charged with the relief and support of poor and indigent
persons or some other county or town in this State, it shall be the duty of the
overseer of the poor of the municipality, county or town, as the case may be, to
send written notice by mail or otherwise, to the overseer of the poor of such other
city, village or incorporated town in which such pauper so resided, or, in counties
not under township organization, to the county clerk of the county in which the
pauper so resided, or, if he then resided in a town supporting its own poor, to the
overseer of the poor of such town, requesting the proper authorities of such city,
village or incorporated town, county or town, as the case may be, to remove said
pauper forthwith, and to pay the expenses accrued or to accrue in taking care of
the same; and such city, village or incorporated town, county or town, as the case
may be, where such pauper resided, shall pay to the city, village, incorporated
town, county or town, in the event it takes care of such pauper, all reasonable
charges for the same, and such amount may be recovered by such city, village or
incorporated town, county or town, as the case may be, in any court of competent
jurisdiction (as amended 1935, Julv 11, Laws 1935, p. 1055, sec. 1; 1936, March 6,
Laws 1935-36, Second Sp. Sess. p. 73, sec. 1; 1939, July 26, Laws 1939, p. 828,
sec. 1).
Indiana Statutes, Annotated (Burns, 1933), Title 10, Chapter 46
Sec. 10-4601 [2865]. Pauper — Bringing into state.- — Whoever, knowingly, brings
within this state a pauper with the intention of making him a charge upon any
of the counties of this state, shall, on conviction, be fined not less than ten dollars
[$10.00] nor more than one hundred dollars [$100] (Acts 1905, ch. 169, Sec. 634,
p. 584).
Indiana Statutes, Annotated (Burns, Supp. 1940), Title 52, Chapter 1
Sec. 52-164. Removal of nonresident poor — Justice of the peace — Procedure. — ■
Upon complaint of any overseer of the poor, any justice of the peace may, by his
warrant directed to and to be executed by any constable, or by any other person
therein designated, cause any poor person found in the township of such over-
seer, likely to become a public charge and having no legal settlement therein, to
be sent and conveyed, at the expense of the township to the place where such
person belongs, if the same can be conveniently done; but if he or she cannot be
so removed, such person shall be relieved bv such overseer whenever such relief
is needed (Acts 1935, ch. 116, Sec. 21, p. 432).
Iowa Code (1939)
Sec. 3828.091. Importation prohibited. — If any person knowingly bring within
this state or any county from another county in this state any pauper or poor
person, with the intent of making him a charge on any of the townships or counties
therein, he shall be fined not exceeding five hundred dollars, and be charged with
his support (C51, sec. 2736; R60, sec. 4379; C73, sec. 4045; C97, sec. 5009; C24,
27, 31, 35, sec. 5314).
Sec. 3828.090. Foreign paupers. — 1. Any person who is a county charge or
likely to become such, coming from another state and not having acquired a settle-
ment in any county of this state or any such person having acquired a settlement
in any county of this state who removes to another county, may be removed from
this state or from the county into which such person has moved, as the case may
be, at the expense of the county wherein said person is found, upon the petition
of said county to the district or superior court of that county.
2. The court or judge shall fix the time and place of hearing on said petition and
prescribe the time and manner of service of the notice of such hearing.
NATIONAL DEFENSE MIGRATION 10193
3. If upon the hearing on said petition such person shall be ordered to remove
from the state or county and fails to do so, he shall be deemed and declared in
■contempt of court and mav be punished accordingly (C51, sec. 811; R60, sec.
1379; C73, sec. 1354; C97, sec. 2225; C24, 27, 31, 35, sec. 5313).
Sec. 3828.073. "Poor person" defined. — The words "poor" and "poor person"
as used in this chapter shall be construed to mean those who have no property,
exempt or otherwise, and are unable, because of physical or mental disabilities,
to earn a living by labor; but this section shall not be construed to forbid aid to
needy persons who have some means, when the board shall be of opinion that the
same will be conducive to their welfare and the best interests of the public (C97,
sec. 2252; C24, 27, 31, 35, sec. 5297).
Kansas General Statutes, Annotated (Corrick, 1935)
Sec. 39-338. Unlawful to send certain persons into another county, when. — It shall
be unlawful for any person either directly or indirectly to send or be instrumental
in sending or causing to be sent out of the county where such person properly
belongs, any pauper or person who is or is likely to become an object of public
charity, into any other countv of this state, except in the manner provided for in
this act (L. 1862, ch. 163, § 39; June 30; G. S. 1868, ch. 79, § 39; R. S. 1923,
§ 39-338).
Sec. 39-339. Penalty for violating § 39-838. — Any person who shall violate the
provisions of section 39 [39-338] of this act shall be deemed guilty of a mis-
demeanor, and shall be liable to a fine of not exceeding one hundred dollars, or
imprisonment in the county jail not exceeding one year, or both such fine and
imprisonment (L. 1862, ch. 163, § 40; June 30; G. S. 1868, ch. 79, § 40; R. S. 1923,
§ 39-339).
Kentucky Statutes, Annotated (Baldwin's, 1936), Chapter 102
Sec. 3922. Paupers not to be brought from other states. — No persons shall bring
into this state from another state, or from any county in this state into another,
any poor person, except his father, mother, or child, who is likely to become
•chargeable to the county into which such person may be brought (G. S., ch. 86,
sec. 1).
Sec. 3923. Persons bringing paupers here; how dealt with. — Any person offending
herein, shall, on the warrant of a justice or the county judge of the county
aggrieved, be arrested and recognized with surety to appear before the county
court to answer for the offense; and on his failure to give surety, he shall be com-
mitted to jail until court, or until bail is given (G. S., ch. 86, sec. 2). •
Sec. 3924. Bond may be required of offender; penalty. — The county court may
require such person to give an obligation, with surety, that the poor person so
introduced shall not become chargeable to the county; and upon failure to execute
such obligation, he shall be fined not exceeding one hundred dollars ($100.00)
(G. S., ch. 86, sec. 3).
Maine Revised Statutes (1930), Chapter 33
Sec. 36. Foreign paupers may be removed; exception of families of volunteers
(R. S., c. 29, sec. 40). — On complaint of overseers, that a pauper chargeable to their
town has no settlement in this state, any judge of a municipal or police court,
or trial justice, may, by his warrant directed to a person named therein, cause
such pauper, to be conveyed, at the expense of such town, beyond the limits of the
state to the place where he belongs; but this section does not apply to the families
of volunteers enlisted in the state who may have been mustered into the service
of the United States.
Sec. 43. Penalty for bringing paupers into a town (R. S., c. 29, sec. 47; 1929,
c. 90). — Whoever brings into and leaves in a town any poor, indigent, or insane
person, having no visible means of support, and having no settlement in such town,
or hires or procures such person to be so brought, or aids or abets in so doing,
knowing such person to be poor, indigent, or insane as aforesaid, with intent to
charge such town in this state with the support of such person, shall be punished
by a fine of not more than three hundred dollars, or by imprisonment for not more
than eleven months. And shall be further liable to any town or to the state
for such sums of money as are expended by such town or by the state for the
support and maintenance of suqh person, which may be recovered in an action
on the case.
10194 THE EDWARDS CASE
Massachusetts Laws, Annotated (1933), Volume IV, Chapter 117
Sec. 28. Penalty for leaving poor persons where not settled. — Whoever brings
into and leaves a poor and indigent person in any town in the commonwealth,
wherein such person is not lawfully settled, knowing him to be poor and indigent,
and with intent to charge such town with his relief or support, shall forfeit not
more than one hundred dollars to the use of such place (1788, 61, sec. 9; 1793, 59,
sec. 13; R. S. 46, sec. 24; 1849, 66; G. S. 70, sec. 20; P. S. 84, sec. 31; R. L. 81,
sec. 35).
General Consideration: The section applies to public officers as well as private
persons. They are included in the word "whoever." Palmer v. Wakefield,
102 Mass. 214. It seems that an action for the penalty under this section
should be brought in the name of the commonwealth. Sturbridge v. Winslow,
38 Mass. (21 Pick.) 83.
Evidence: On the trial of an action under this section, evidence that the poor
person was receiving aid as such from the commonwealth at the time of his
removal into the plaintiff town is not competent to prove that he did not have a
settlement in that town. Franklin v. Fuller, 105 Mass. 336.
Defenses: Where defendant acted under orders from proper authorities of one
town, it was held that it was not necessary that the order should recite acts and
proceedings warranting its issuance, and the defendant, leaving the indigent person
in the town pursuant to the order, was not bound to go behind the order and show
that his superiors had complied with the law. Sturbridge v. Winslow, 38 Mass.
(21 Pick.) 83. The intention of an officer being found to be innocent, deviation
from his orders did not subject him to the penalty of this section. Deerfield v.
Delano, 18 Mass. (1 Pick.) 465, cited in note, 43 L. R. A. (N. S.) 3.
State in Greenfield v. Cushman, 16 Mass. (16 Tyng) 393.
Sec. 23. Person chargeable to city or town may be removed out of state, when. — •
A person who has actually become chargeable to a town where he has a settlement
and who subsequently acquires a settlement in a place out of the commonwealth
may be removed thereto by the board of public welfare of such town by a written
order directed to any person therein designated (1868, 328, sec. 2; P. S. 84, sec.
26; R. L. 81, sec. 30; 1928, 155, sec. 25).
Sec. 25. Person aided may be removed to place of settlement. — The board of
public welfare of a town to which a person has actually become chargeable may
give written notice thereof to and request his removal by one or more of the
members of the board of public welfare of the town where his settlement is sup-
posed to be, who may, by a written order directed to a person designated therein,
cause such removal to be made (1793, 59, sees. 9, 10; R. S. 46, sec. 19; G. S. 70,
Bee. 17, P. S:84, sec. 28; R. L. 81, sec. 32; 1931, 394, sec. 120).
Michigan Statutes Annotated (1937)
Sec. 16.154. Poor persons, bringing into county; penalty (sec. IS). — Any person
who shall send, carry, transport, remove, or bring, or who shall cause or procure
to be sent, carried, transported, removed, or brought, any poor or indigent
person, from any township, village, city, or county, into any other township,
village, city, or county, or from any other state or country, into any county in this
state, without legal authority, and there leave such poor person, or who shall
entice such poor person so to remove, with the intent to make such county to
which the removal shall be made chargeable with the support of such poor person,
shall be deemed guilty of a misdemeanor, and on conviction thereof, shall be
imprisoned in the county jail not exceeding three (3) months, or fined not exceeding
one hundred (100) dollars, or both such fine and imprisonment, in the discretion
of the court (C. L. '29, sec. 8241).
Sec. 16.159. Poor person, bringing from without stale; forfeiture (sec. 18). — Any
person who shall bring or remove, or cause to be brought or removed, any poor
or indigent person, from any place without this state, into any county within it.
with intent to make such county chargeable with the support of such poor persons,
shall forfeit and pay fifty (50) dollars, to be recovered before any justice of the
peace of the county into which such poor person shall be brought, or in which the
offender may be; and shall also be obliged to convey such poor person out of the
6tate, or support him at his own expense (C. L. '29, sec. 8246).
Sec. 16.171. — Same; removal to place of settlement, charging such place with
expense of support if not removed (fpc. .50) .—The supervisor of the township or direc-
tor of the poor of the city in which it may be alleged any poor person has gained
a settlement, may at any time after receiving such notice requiring him to provide
NATIONAL DEFENSE MIGRATION 10195
for such poor person, take and receive such poor person to his township or city,
and there support him. If he omit to do so, or shall fail to obtain the decision of
the county superintendents, so as to exonerate him from the maintenance of such
poor person, the charge of giving such notice, and the expenses of maintaining
such poor person, after being allowed by the county superintendents, shall be laid
before the board of supervisors at their annual meetings, from year to year, as
long as such expenses shall be incurred; and the supervisor shall annually add the
amount of the said charges to the tax to be laid upon the township or city to which
the poor person belongs, together with such sum in addition thereto as will pay
the township or city incurring such expenses the lawful interest thereon, from the
time of expenditure to the time of payment, which sums shall be assessed, levied,
and collected in the same manner as the other contingent expenses of such town-
ship or city. The said moneys when collected, shall be paid to the county treas-
urer, and be bv him credited to the account of the township or city which incurred
the said expense (C. L. '29, sec. 8258).
Sec. 16.191. Removal of poor person to municipality liable for support or care in
county where found; duty of superintendents of county chargeable (sec. 5). — The
superintendents of the poor, or any of them, of the county sought to be charged
with the care, relief, and support of poor persons by means of the notice required
by this act, if they, or any of them, shall deem their county, or any township or
city of their county, legally liable for the care, relief, and support of such poor
person, shall have the right and are authorized to take into their custody and
transport such poor person or persons from the county where such poor person
or persons may be, to the county, township, or city to which such poor person
or persons belong. No superintendent of the poor acting under the provisions of
this act, in taking into custody and transporting any poor persons as herein pro-
vided, shall become liable in any manner to any action or prosecution for illegal
arrest or false imprisonment. If the superintendents of the poor, or any of them,
of the county sought to be charged, as aforesaid, shall deem their county, or any
township or city thereof, legally liable for such care, relief, and support of such
poor person, such superintendents or superintendent, if they or he do not deem
it advisable to take into custody and transport such poor persons, as hereinbefore
provided, may send a notice directing and authorizing the superintendents of the
poor of the county from which the notice provided for in section three (3) of this
chapter has been received, to continue such relief and support as the necessity
may require (C. L. '29, sec. 8278).
Minnesota Statutes (Mason's, 1927), Chapter 15
Sec. 3163. Bringing poor person into state. — Whoever without legal authority
shall send, carry, or remove, or cause to be sent, carried, or removed, any insane,
idiotic, or poor person from without the state to any county therein, and there
leave him, or cause him to be left, with intent to make such county, or any town,
city, or village thereof, chargeable with his support or relief, or who with like
intent shall induce any such person so to remove, shall forfeit fifty dollars, to be
recovered bjr the treasurer of such county, town, city, or village, for the support
of the poor therein, and shall, moreover, be guilty of a misdemeanor (1490) [3073].
Sec. 9922. Punishment of misdemeanors when not fixed by statute.- — Whoever is
convicted of a misdemeanor for which no punishment is prescribed by any statute
in force at the time of conviction and sentence shall be punished by imprisonment
in the county jail for not more than three months, or bv a fine of not more than
one hundred dollars (4763) (8482).
Sec. 3162. Removal of poor person — Settlement. — When a poor person is removed,
as hereinafter provided, from one county, town, city, or village to another, and
the authorities thereof deny that he is legally settled therein, they shall make
temporary provision for his care. If such removal was from one county to another
county, or to any town, city, or village of another, the authorities may present
the case to the state board of control; if the removal was from one town, city,
or village to another within the same county, they may present the case to the
county board. The board shall determine the settlement of such person, and
certify its findings, and thereupon he shall become a charge upon the county,
town, city, or village in which such settlement is found to be, which shall also
pay the cost of caring for such person pending the investigation, and of removing
him to the place of his settlement, together with the expenses of such investiga-
tion, including the fees and mileage of witnesses, and, in the case of the state
board, the expenses of its committees or agents. But such findings of the board
shall be without prejudice in any litigation arising by reason thereof (1489) 13072].
10196 THE EDWARDS CASE
Sec. 3173. Settlement in another county. — When application for support or relief
is made by a person whose settlement is in another county, or in a town, city, or
village of another county, the board applied to, or its chairman, shall warn him to
depart from its county; and if he is unable or refuses to do so within a reasonable
time, and is likely to become a public charge, the chairman may issue an order,
under his hand and the seal of the board, to the sheriff or any constable of the
county, requiring him to convey such person to the place of his settlement. If
he be so sick, infirm, or otherwise disabled as to render it unsafe or inhuman to
remove him, and is in immediate need of support or relief, provision therefor shall
be made in the manner prescribed in [R. L.] sees. 1497-1499. All proper expenses
incurred by such county in making such removal, or in furnishing such support or
relief, shall be paid by it, and shall be a legal claim in its favor against the county,
town, city,' or village in which such person has a settlement (1500) [3083].
Mississippi Code, Annotated (1930)
Sec. 5715. Vessels bringing pauper immigrants, children. — If any person com-
manding a ship, vessel, steamboat, or other watercraft, shall import into this
state, or bring to the shores or within the limits thereof, any infant, lunatic,
maimed, aged or infirm person, or vagrant, who is likely to become chargeable
on the county, on the requisition of the supervisor of the district, or the mayor of
any city, town, or village, the captain, master, or commander of such ship, vessel,
steamboat, or other watercraft shall enter into bond, with sufficient sureties,
payable to the county, conditioned to indemnify such county against all charges
that may be incurred in the support and care of such person; and any captain,
master, or commander failing or refusing to give the bond required, shall forfeit
and pay to the county the sum of two hundred dollars for each infant, lunatic,
maimed, aged, or infirm person, or vagrant so brought into the state, to be re-
covered by action (6204; 3587; 3164; 640; 1989; Ch. 23 art. 19; Ch. 14 art. 2 (9)).
Sec. 5716. Master of vessel landing alien passengers. — When any ship, vessel, or
steamboat shall arrive at any port or harbor with alien passengers on board, who
are to be landed or left, and who may become a charge as paupers, the master or
commanding officer of the vessel shall, before such passengers, or any of them,
leave the ship, vessel or steamboat, deposit with the supervisor of the district
where the passengers are to be landed or left, a list of their names, and shall forth-
with enter into bond, with sufficient sureties, payable to the county, in a sufficient
penalty, with condition to indemnify the county from all expenses which may arise
from supporting or maintaining such aliens; and in default of such bond, the
captain, master, or commander may be committed by any justice of the peace,
or mayor of any city, town, or village, until the bond be executed; and, moreover,
the captain, master, or commander shall be liable to be indicted, and, on con-
viction, shall be fined in the sum of one hundred dollars for each person landed
in violation of this section; but the board of supervisors, on investigation of the
matter, may dispense with the bond (6205; 3588; 3165; 641; 1990; Ch. 23 art. 20).
Sec. 5707. Strolling paupers removed and, if sick, relieved. — The members of the
board of supervisors shall prevent the poor from strolling from one district to
another, and in case any pauper shall leave the county in which he may have a
settlement, and remove to another county, any member of the board of super-
visors may make an order to remove the pauper back to the county from which
he came, directed to any constable to execute. But if the pauper be sick or dis-
abled so that he cannot be removed, he shall be provided for in the county in
which he may be found until he can be removed; and the county in which he had
a legal settlement shall pay all charges occasioned by the support of the pauper
and for removal, or burial in case of death, which shall constitute a charge against
the county, and may be recoverable by action before the proper court. And it
shall be the duty of the board of supervisors of the county to which any pauper
belongs, to receive him, on his removal, and provide for him as in other cases
(6187; 3570; 3147; 633; 1984; Ch. 23 art. 11; Ch. 14 art. 2 (4)).
Nebraska Compiled Statutes (Supp. 1939)
Sec. 68-116. Pauper, bringing into county where legal settlement not established,
penalty. — If any person shall bring or leave any poor person or persons in any
county in this state wherein such poor person has not established a legal settle-
ment, knowing him or them to be poor persons, he shall forfeit and pay the sum
of one hundred dollars for every such offense, to be sued for and recovered by and
to the use of such county, before the county judge or any justice of the peace,
NATIONAL DEFENSE MIGRATION 10197
in the proper county (R. S. p. 277; Ann. 9765; Comp. 4626; R. S. 1913, 5810;
C. S. 1922, 5155; C. S. 1929, 68-116; 1933 p. 483).
Nevada Compiled Laws (Hillyer, 1929)
Sec. 5147. Penalty for transporting -paupers (sec. 11). — If any person shall bring
and leave any pauper in any county in this state, wherein such pauper is not
lawfully settled, knowing him to be a pauper, he shall forfeit and pay the sum of
one hundred dollars for every such offense, to be sued for and recovered by and
to the use of such county in a civil action before any court having jurisdiction
of the same.
Sec. 5150. Bringing pauper into State misdemeanor — Penalty (sec. 3). — Every
person, firm, or corporation, or the officers, agents, servants, or employees of
any person, firm, or corporation, bringing into or leaving within, or aiding in the
bringing into or the leaving within, of any pauper or poor or indigent or incapaci-
tated or incompetent person as hereinbefore mentioned, in any country in the
State of Nevada, wherein such person is not lawfully settled or not lawfully resid-
ing as herein defined, knowing him to be such pauper, poor, indigent, or incapaci-
tated or incompetent person, and for the purpose of imposing said person as a
public charge on the county to which said person shall be taken as aforesaid shall
be guilty of a misdemeanor and on conviction thereof shall be fined in a sum not
less than twenty dollars nor more than five hundred dollars, or by imprisonment
in the county jail not more than sixty days, or by both such fine and imprisonment.
Nevada Compiled Laws (Hillyer, Supp. 1938)
Sec. 5144. Provisions precedent to granting relief (sec. 8). — When application is
made by any pauper to the board of county commissioners aforesaid, and it shall
appear to the satisfaction of said board that the person so applying for relief has
resided in said state and county agreeable to the provisions of the foregoing section
of this act, said pauper shall be entitled to all of the relief provided by this act;
but if, on the contrary, it shall appear to the satisfaction of said board that such
pauper has not been a resident of said state and county agreeable to the provisions
of the foregoing section, but that said pauper, previous to removing to the said
count}' where said application was made, was a resident of some other county of
this state, as required by the foregoing section, said board shall provide temporary
relief for said pauper, and immediately notify the board of county commissioners
of the county where said pauper last had a residence for six months, and said
notice shall be in writing, duly attested by the clerk of the board of county com-
missioners, and deposited in the post office, addressed to the board of county
commissioners of said county, and it shall be the duty of the board of county
commissioners receiving said notice to cause said pauper to be immediately re-
moved to their county, and pay a reasonable compensation for the temporary
relief afforded, and if said board of commissioners neglect or refuse to remove said
pauper, the county affording relief shall have a legal claim against said county for
all relief necessarily furnished, and may recover the same in a suit at law (as
amended, Stats. 1933, 9).
New Hampshire
For provisions of the New Hampshire law, see brief of amicus curiae, pp. 64-66,
"Typical State Anti-migratory Law."
New Jersey Statutes, Annotated (1940), Title 44, Chapter 1
Sec. 117. Duties of overseer. — The removal of poor persons to their place of
settlement or to the place where they became poor before being found or becom-
ing domiciled in the place from which they are to be removed shall, when the
removal is to another place in the same county, and in all other cases where
there is no superintendent or county adjuster to act as provided in this chapter,
be accomplished by action of the overseer where the person is found or resides.
(Source: L. 1924, c. 132, sec. 64, p. 283 [1924 Suppl. sec. 161-187].)
Sec. 118. Duties of county adjuster. — The county adjuster shall on the applica-
tion of an overseer forthwith take the steps necesspry to the removal of a poor
person to another state, or to another county within this state, by negotiating
with the proper authority in the other state or county through the commissionre
for the reception of the poor person who may be properly removable to a place
in that state or county, and shall perform that function for all overseers in the
county, and all overseers in a county shall take the steps necessary to such removal
10198 THE EDWARDS CASE
by means of the aid and authority of the county adjuster. (Source: L. 1924, c.
132, sec. 65, p. 283 [1924 Suppl. 461-188], as am. bv L. 1931, c. 392, sec. 17, p.
1243.)
Sec. 124. Bringing poor person into municipality or county unlawfully; mis-
demeanor.— A person who shall send, bring, remove, or entice to remove, or cause
to be sent, brought, or enticed, a poor person into a municipality or county from
any other municipality or county within this state without first having obtained
the consent of the overseer of the municipality or the superintendent if there is
no overseer appointed and qualified therein, or the county welfare board of the
county, as the case may be, or from any other state into any municipality or
county within this state without first having obtained the consent of the com-
missioner and furnished suitable bond, and there leave or attempt to leave the
person without first having obtained that consent, in order that the support or
maintenance of the poor person upon the municipality or county may be avoided,
shall be guilty of a misdemeanor, and the poor person shall not gain a legal
settlement thereby and shall be returned from whence he came in the manner
provided by law. (Source: L. 1924, c. 132, sec. 70, p. 286 [1924 Suppl. sec.
161-193], as am. by L. 1931, c. 392, sec. 18, p. 1244.)
New Jersey Statutes, Annotated (1940), Title 2, Chapter 103
Sec. 6. Misdemeanors; punishment. — Any person found guilty of any crime
which by any statute is declared to be a misdemeanor, and for which no punish-
ment is specifically provided, shall be punished by a fine not exceeding one
thousand dollars, or by imprisonment, with or without hard labor, as the court
may direct, for a term not exceeding three vears, or both. (Source: L. 1898, c.
235, sec. 218, p. 854 [C. S. p. 1812, sec. 218].)
New York Consolidated Laws, Annotated (McKinnet's, 1930)
Sec. 151. Penalty for unlawfully bringing a poor person into a public welfare
district. — -No person shall, without legal authority, send or bring, or cause to be
sent or brought, any poor person into a public welfare district with the purpose
of making him a charge on such public welfare district, or for the purpose of
avoiding the responsibility of support in the public welfare district from which
he is brought or sent. Any person found guilty of such an act shall be guilty of a
misdemeanor and liable to a fine of fifty dollars, recoverable in the name of the
public welfare district.
This section relates to same subject matter as sec. 50 of the former Poor Law.
That section was derived from Poor Law of 1896, sec. 50.
Unlawful removal of poor person. (See Penal Law, sec. 1650.)
Decisions under sec. 50 of former Poor Law — Former provision. — This section
formerly required the element of intent to make the person removed a charge
on the county to which he was removed and no liability was incurred when such
intent was absent. Cortland County v. Herkimer County (1870), 44 N. Y. 22;
Foster v. Cronkhile (1866), 35 N. Y. 139; Thomas v. Ross (1832), 8 Wend. 672.
Cited: This section was cited in People v. Maynard (1899), 160 N. Y. 453,
55 N E. 9; Matter of McCutcheon (1898), 25 Misc. 650, 56 N. Y. S. 370; Thomas v.
Ross (L'32), 8 Wend. 672.
Sec. 152. Penalty for bringing nonresident poor into the stale. — Any person who
knowingly brings, or causes to be brought, a destitute person from out of the state
into this state and leaves him or attempts to leave him for the purpose of making
him a public charge, shall be guilty of a misdemeanor punishable by a fine of one
hundred dollars, and shall be obligated to convey such person out of the state or
to support him at his own expense. The commissioner of the public welfare
district to which such destitute person is brought may bring a suit in a court of
competent jurisdiction to enforce this obligation. The court shall require satis-
factory security from such person that he will convey the destitute person out of
the state within the time fixed by the court or will indemnify the public welfare
district for all charges and expenses incurred for the support or transportation of
such destitute person. If such person refuses to give security when so required,
the court may commit him to jail for not exceeding three months.
This section covers same subject matter as sec. 55 of the former Poor Law.
That section was derived from Poor Law of 1896, sec. 55.
Decisions under sec. 55 of former Poor Law — Defenses: In an action under this
section, it is no defense that the pauper formerly had a legal settlement in the
place to which he was brought, and had not subsequently gained one elsewhere,
NATIONAL DEFENSE MIGRATION 10199
■nor that the persons making the removal were acting under the authority of another
state {Winfield v. Mapes (1847), 4 Denio 571).
Liability of carrier: Carriers of passengers are within the letter but not within
the spirit of law and cannot be charged, unless in bringing poor or indigent persons
into a citv or town and leaving them there thev act fraudulently (Thomas v.
Ross (1832), 8 Wend. 672).
Form of remedy: Overseers of the poor who have expended money for the main-
tenance of the pauper cannot maintain an action against the person who brought
into the town the pauper having no legal settlement in the state, for the amount so
expended. Their remedy is under the statute to recover the penalty given in such
case (Crouse v. Mabbit (1814), 11 Johns).
Sec. 59. Removal of a person to the public-welfare district of his settlement. — When
a person cared for in the public-welfare district where he is found shall have a
settlement in some other public-welfare district within the state, the public-welfare
official responsible for his support may send for and remove such person and care
for him in his own public-welfare district, or elsewhere, when it shall seem for the
best interests of such person that he be so removed. If such person shall refuse
to be so removed, the commissioner of the public-welfare district responsible for
his support may apply to the county judge of his county for the issuance of an
order to the sheriff of the county, or to some other person or persons, for the
removal of the person to the public-welfare district legally responsible for his
support. If the person is not so removed, the commissioner shall continue to be
responsible for his support in the public-welfare district where he is found.
Sec. 73. Removal of nonresident and alien poor to other states and countries. —
When any person who is an inmate of any public home or is otherwise cared for
at the expense of the state or of any public-welfare district belongs to or has friends
willing to support him or to aid in supporting him in any other state or country,
the superintendent of state and alien poor may cause his removal to such state or
country, provided in the judgment of the superintendent, the interest of the state
and the welfare of such person will be thereby promoted. The expense of such
removal shall be paid from the state treasury on the warrant of the comptroller pur-
suant to a verified account submitted by the superintendent of state and alien
poor or other person legally incurring the expenditure.
This section relates to similar subject matter as sec. 99 of the former Poor
Law. That section was derived from Poor Law of 1896, sec. 99.
Rhode Island General Laws, Annotated (1938), Chapter 70
Section 1. If any person shall bring into and leave any poor and indigent
person in any town wherein such pauper is not lawfully settled, knowing him to
b>e poor and indigent, unless by an order of removal made by a town council in
the State, he shall forfeit $100.00 for every such offense, to be sued for and re-
covered by the town treasurer to the use of such town, or shall be fined not ex-
ceeding $20.00 (G. L., 1923, Chap. 106, Sec. 1).
Sec. 2. Every railroad company or owner of a steamboat, whose officers or
servants shall bring any poor and indigent person into the State and shall leave
such person therein, shall be liable for the relief and support of such person for
and during 12 months next after his being brought into the state, to be recovered
in an action of the case in the name of director of public welfare, to the use of the
state; and said company or owners shall, upon the written order of said director,
return such person to the place from which such company or owner brought him.
Every such company or owner willfully refusing or neglecting to comply with
such order shall forfeit $500.00, to be recovered by said director to the use of the
state (G. L., 1923, Chap. 106, Sec. 9.).
Sec. 5. Upon such complaint the town council may inquire, either by the oath
of such poor person, or otherwise, in what town he was last legally settled, and,
upon the best information they can obtain, may adjudge and determine to what
town he lawfully belongs within the state, or in which he was last legally settled;
which being done, the town council shall make an order under their seal, to be
signed by their clerk, for the removal of such person to such town.
Sec. 6. Such order shall be directed to the town sergeant or one of the con-
stables of such town, who shall proceed forthwith to remove such person and such
of his family, if any he have, as by law ought to be removed with him, to the town
or place to which he is adjudged by such order to belong and there deliver him to
one of the directors of public welfare of such town, and leave an attested copy
of the order with such director.
Conclusiveness of order. — Order for removal, when unappealed from, is conclu-
sive. Tiverton v. Fall River, 7 R. I. 182.
10200 THE EDWARDS CASE
Right of removal limited.— Since the operation of statute is necessarily confined
to this state, right of removal under statute is properly limited to removal to
town in this state. Exeter v. Richmond, 6 R. I. 149.
Sec. 14. If any person who has been or may hereafter be removed by an order
of removal from any town in the state to any other town therein, shall voluntarily
return to the town from which he was so removed, without leave first obtained
of the town council of such town for so doing, and the town council of such town
shall subsequently cause such person to be again removed to the same town, the
town to which such person shall have been so subsequently removed shall pay to
the town so removing such pauper the cost of every such subsequent removal, not
exceeding 20 cents per mile, to be recovered in an action of the case in the name of
the town treasurer of the town from which such person shall have been removed.
Sec. 19. If any person in any town shall willfully suffer or permit any person
who has been removed or ordered to depart as hereinbefore provided from such
town by the town council thereof, to occupy or reside in his house or possessions
after notice of such removal or order of departure given, by the town sergeant or
any one of the constables of the town, by order of the town council, such person
shall forfeit $50.00, to be sued for and recovered by the town treasurer to the use
of the town.
South Dakota Code (1939), Title 50
Sec. 50.0106. Sending poor persons out of county. — It shall be unlawful for any
person, either directly or indirectly, to send, or be instrumental in sending or
causing to be sent, out of the county where such person properly belongs, any
person who is or is likely to become an object of public charity, into any other
county of this state, except in the manner provided for in this title. (Source:
sec. 10063, Rev. Code 1919, revised in form.)
Sec. 50.9901. Sending poor person from county otherwise than as provided by
law. — Any person who violates the provisions of section 50.0106, shall be guilty
of a misdemeanor and punished by a fine not exceeding one hundred dollars, or
by imprisonment in the county jail not exceeding one year, or by both such fine
and imprisonment. (Source: Sec. 10064, Rev. Code 1919, revised in form.)
Sec. 50.0501. Justice of municipal court to issue warrant. — Upon complaint of
any county commissioner, any justice of the peace or municipal court may issue
his or its warrant, directed to and to be executed by any constable or by any
other person therein designated, to cause any poor person found in the county,
likely to become a public charge and having no legal settlement therein, to be
sent, at the expense of the county, to the place where such person belongs, if the
same can be conveniently done; but if he or she cannot be removed, such person
shall be relieved by such commissioners whenever such relief is needed. (Source:
Sec. 10048, Rev. Code, 1919, revised to make specific provision for issuance of
warrant by municipal court.)
Sec. 50.0209. Civil penalty for bringing pauper into county. — Every person who
shall bring into and leave any person in any county wherein such person is not
lawfully settled, knowing such person to be a pauper, shall forfeit and pay the
sum of one hundred dollars for every such offense, to be recovered by action in
the name of the county. No property shall be exempt from seizure and sale in
such case; and it shall be the duty of the board of county commissioners to insti-
tute actions for all violations of this section; and all such penalties, when collected,,
shall be paid into the county treasury for the use of the countv. (Source: Sec.
10065, Rev. Code, 1919.)
Vermont Public Laws (1933), Title 15, Chapter 160
Sec. 3948. Duties of overseer.- — The overseer of the poor of a town chargeable
with the support of paupers who are residing in another town may remove such
paupers to the town chargeable with their support (G. L. sec. 4243).
Sec. 3949. From without state; jurisdiction. — A person who comes into a town
in the state with intent to become chargeable as a pauper to such town, unless
such town is liable for his support, shall be imprisoned not more than six months
or fined not more than twenty dollars. Justices' and municipal courts shall have
jurisdiction of offenses under this section, but a justice, judge or juror shall not
act in the trial of a prosecution relating to the town in which he resides (G. L.
sec. 4245).
Sec. 3950. Charging town with pauper. — A person who brings a poor and indi-
gent person from any town in the state to another town in the state, or aids
therein, with intent to charge such town with his support, shall forfeit to such
town a sum not exceeding five hundred dollars; and, if such town is not liable for
NATIONAL DEFENSE MIGRATION 10201
the support of such poor and indigent person, the person making such removal,
or aiding therein, also shall be liable, from time to time, to pay such town such
damages as accrue for the support of such poor person, which, as well as the
penalty, may be recovered in an action of tort, on this statute, in the name of the
town (1919, 'No. 107, G. L. sec. 4246, 11 Vt. 494, 13 Vt. 228, 16 Vt. 644, 33 Vt. 205,
40 Vt. 245, 44 Vt. 245, 44 Vt. 662, 61 Vt. 139, 64 Vt. 415).
Sec. 3951. Same; removal. — The selectmen of a town, if the town is not liable
for the support of such poor and indigent person, without forfeiture or penalty,
within one year after a poor and indigent person comes to the town, provided
such person has there become a town charge, may return such person to the town
from which he last came (1919, No. 107, G. L. sec. 4246).
Sec. 3953. Bringing -pauper from without state. — A person who brings from with-
out the state and leaves in a town in the state or so brings with intent to leave,
a poor and indigent person having no visible means of support, knowing such
person to be poor and indigent as aforesaid, or hires or procures such person to
be so brought, or aids or assists therein, with intent to charge such town with the
support of such person, shall be imprisoned not more than one year or fined not
more than five hundred dollars nor less than one hundred dollars, and shall be
further liable to the town for such sums of money as are expended by it for the
support and maintenance of such person, which rnav be recovered in an action of
tort, on this statute (G. L. sec. 4247, 50 Vt. 170, 51 Vt. 160, 102 Vt. 180).
Washington Revised Statutes, Annotated (Remington's 1933)
Sec. 9989. Proceedings to expel pauper. — When application is made by any
pauper to the board of county commissioners as aforesaid, if it shall appear to
the satisfaction of said board that the person so applying for relief has resided
in said county agreeably to the provisions of the foregoing section [9987] he shall
be entitled to all the relief provided by this title; but if, on the contrary, it shall
appear to the satisfaction of said board that such pauper has not been a resident
of said county agreeably to the provisions of section 9987, they shall proceed to
remove from their county, at the expense of said county, such pauper to the
county where such pauper may have his residence, or may, if they think best,
issue a notice directed to some constable of the county, which notice said constable
shall serve forthwith on said pauper, requiring him to depart forthwith from the
county; and after so serving said notice by reading the same to said pauper, said
constable shall, within five days thereafter, return the same to the said clerk of
the board of county commissioners issuing the same, noting the time and manner
of service (L. '54, p. 397, sec. 8; Cd. '81, sec. 2704; 1 H. C., sec 3095).
Sec. 9992. Importing pauper. — If any person knowingly bring within this state
any pauper or poor person with the intent of making him a charge on any county
or counties therein, he shall be punished by a fine not exceeding five hundred
dollars, and stand charged with his support (Cd. '81, sec. 932; 2 H. P. C., sec.
162).
West Virginia Code, Annotated (1937)
Sec. 626 (149) (4). Bringing indigent persons into State. — If an indigent persom
not having a legal residence in any county of this State, is brought into and left
in the State with intent that he should become a public charge, the person who
brought or caused to be brought, or counseled or aided in bringing the indigent
person into the State, with such intent, shall be guilty of a misdemeanor, and upon
conviction shall be fined not less than one hundred dollars, or imprisoned in the
county jail not more than sixty days, or both (1936, 1st Ex. Sess., c. 1).
Wisconsin Statutes (Brossard, 1939), Title VII
Sec. 49.06. Bringing paupers into the state. — Any person who shall bring or
remove or cause to be brought or removed any poor person from any place without
this state into any municipality within it, with intent to make such municipality
chargeable with his support, shall forfeit fifty dollars; and the justice or court
before whom such person shall be proceeded against for a violation of the pro-
visions of this section shall, by its judgment, require of such person satisfactory
surety that he will, within a reasonable time to be fixed, transport such poor
person out of the state or indemnify such municipality for all charges and expenses
which have been or may be incurred in his support; and in case of neglect or refusal
so to do commit such person to the county jail until he shall comply with said
judgment, but for a term not exceeding three months.
60396—42 — pt. 26 16
10202 THE EDWARDS CASE
(Note. — No person has authority to bring feeble-minded child into this state
for purpose of placing it in state institution. 22 Atty. Gen. 111.)
Sec. 49.03 (9). When a poor person is given relief in some other county or
municipality than the one in which he has a legal settlement, either county or
municipality involved may apply to the county judge or municipal judge of its
county or municipality for an order directing such poor person to return to the
county or municipality of his legal settlement, all expenses of removal to be paid
by the county or municipality in which such poor person has a legal residence or
settlement. Upon the filing of such petition the county or municipal judge shall
issue an order directing the pocr person to return to such municipality, unless it
shall clearly appear that such removal would be against his best interests. Upon
issuance of any such order no further public relief shall be given to the person to
whom it is directed until he shall complv therewith (1931 c. 92; 1935 c. 453;
1937 c. 338, 344, 400; 1939 c. 13, 242).
Sec. 49.04. County relief of transient and local paupers. — -(1) The county board
of each county shall have the care of all poor persons in said county who have no
legal settlement in the town, city, or village where they may be, except as provided
in section 49.03, and shall see that they are properly relieved and taken care of at
the expense of the county.
(2) The board may make regulations, not inconsistent with law, in relation to
the support and maintenance of such persons and may also contract with any
town, village, or city in said county to keep and maintain at the place where the
poor supported by the county are kept, such poor persons as may be a charge upon
such municipality, at a stipulated price, the amount of which shall be levied and
collected in such municipality in the manner county taxes are levied and collected
therein.
(3) The board may also, by resolution adopted at its annual or special meeting,
at the expense of the county," relieve and take care of all permanent poor persons
who may be a charge upon any municipality in such county and cause them to be
committed to the county home of such county, pursuant to section 49.07.
Wyoming Laws (1937)
Sec. 34. When recipient moves from county to county. — Any recipient who moves
to another county in this State shall be entitled, with the approval of the State
Department and both County Departments concerned, to receive assistance in
the county to which he has moved, but the county from which the recipient moves
shall continue to pay the assistance for a period of one year after removal, provided
that the recipient remains eligible as provided under the terms of this Act. During
this period of one year the County Department of the county to which the recipi-
ent has moved shall make investigations of the county from which he moved when
such investigations and reports are requested bv the said County Department of
the county of original residence. At the end of the one-year period the recipient
shall, if eligible, be entitled to receive assistance from the county to which he has
moved and the County Department of the county of original residence shall
transfer certified copies of all necessary records relating to the recipient to the
County Department of the county to which he has moved. The provisions of
this Section shall not be construed to mean that an eligible recipient of Old Age
Assistance, Aid to Dependent Children, or Aid to the Blind will in any instance
have his assistance terminated because of the failure of Counties to agree upon his
place of residence. In case of such disagreement the State Department is hereby
authorized to decide from which County he shall receive his assistance.
Sec. 37. Eligibility for general relief. — Any indigent person may receive general
relief from the County Department of the County in which he is living, provided
that he shall have resided in the State of Wyoming and in the county in which he
applies, for a period of one year at the time of making application and has not
been absent from the State or from the county in which he applies for a period of
more than one year immediately preceding the date of application; provided,
that absence in the service of the State of Wyoming or the United States shall not
be deemed to interrupt residence in the State or county if a domicile be not acquired
outside the State. No person may apply toward residence qualifications any
period of time during which he is receiving public assistance, except as provided
in this Act.
NATIONAL DEFENSE MIGRATION 10203
Wyoming Revised Statutes, Annotated (Courtright, 1931), Chapter 29,
Article 12
Sec. 29-1205. Each county to care for its paupers. — If any person shall become
chargeable in any county in which he did not reside at the commencement of the
ninety days aforesaid, he shall be cared for by the county commissioners of the
county where he may be found. And it shall be the duty of the county clerk of
said county to send notice by mail to the county clerk of the county in which such
person has his permanent residence, that said person has become chargeable as a
pauper, and requesting the authorities of said last named county, to remove said
pauper forthwith, and to pay the expenses incurred by reason of the care aforesaid.
If any such pauper, by reason of sickness or disease, or through neglect of the
proper authorities aforesaid to remove him, or if, through any cause, he cannot be
removed, then the county taking charge of such pauper may, by civil action, sue
for and recover from the county to which such pauper belongs, the sum expended
for and on behalf of such pauper, and in taking care of same (C. L. '76, c. 93,
Sec. 5; R. S. '87, Sec. 1957; R. S. '99, Sec. 1262; C. S. '10, Sec. 1345; C. S. '20,
Sec. 1594).
Cited in Board of Com'rs of Sweetwater County v. Board of Com'rs of Carbon
County (6 Wyo. 254, 44 P. 66, annotated under Sec. 29-1201).
Sec. 29-1206. Misdemeanor to bring pauper into county. — If any person shall
bring and leave, or cause to be brought and left, any pauper or paupers in any
county wherein such pauper or paupers do not lawfully reside, or shall bring and
leave, or cause to be brought and left, in any county, any persons who from any
disability will become chargeable upon said county, with intent to make such
pauper or paupers a county charge, he shall be guilty of a misdemeanor, and upon
conviction thereof, shall be punished bv a fine of not more than one hundred dol-
lars, nor less than twentv-five dollars (C. L. '76, c. 93, Sec. 6; R. S. '87, Sec. 1958;
R. S. '99, Sec. 1263; C. S. '10, Sec. 1346; C. S. '20, Sec. 1595).
Wyoming Laws (1937)
Sec. 38. Care of nonresidents. — Whenever any person not qualifying as a
resident of the State, as provided in this Act, shall require general relief in any
county of this State, the County Department of such county shall provide what-
ever general relief it may deem necessary in accordance with the rules and regu-
lations of the State Department; provided, however, that the County Depart-
ment shall promptly communicate with the proper officials of the county and
State in which said person has residence or domicile requesting authority to return
said person to his place of residence. Upon receipt of such authority the County
Department shall provide for the transportation and expenses en route of such
transient person to his place of residence; when such transient or nonresident
person be possessed of property other than the personal effects necessary for
decency and health, he shall be required to dispose of such property and the
proceeds therefrom shall be applied toward the purchase of the necessary trans-
portation and expenses.
Whenever any person shall apply to a County Department for general relief
and is a resident, as provided in this Act, of the State of Wyoming but not of the
county in which he applies, the County Department of the county in which he
applies shall provide such general relief as it shall deem necessary in accordance
with the rules and regulations of the State Department and shall immediately
notify the County Department of the county in which said person has residence
as provided in this Act, and such County Department shall promptly authorize
the person's return at the expense of the County Department of the county in
which the person has applied.
Sec. 49. Article 1, Chapter 84, Wyoming Revised Statutes, 1931; Article 12,
Chapter 29, Wyoming Revised Statutes, 1931; Chapter 64, Session Laws of
Wyoming, 1935; Chapter 101, Session Laws of Wyoming, 1935; Chapter 129,
Session Laws of Wyoming, 1935; and all other laws and provisions of laws in
conflict with this Act are hereby repealed.
10204 THE EDWARDS CASE
Exhibit No. 13.
ORAL STATEMENT OF SAMUEL SLAFF, ATTORNEY FOR APPELLANT,
BEFORE THE SUPREME COURT OF THE UNITED STATES
Mr. Samuel Slaff. May it please your Honors, this matter has already been
heard by almost all the members of the Court last spring and I shall at this time
try to confine myself to some of the highlights of the appellant's position and some
of the principal matters raised in the brief of the State's Attorney General with-
out attempting to reivew in specific detail all the original facts of the matter.
The appellant has been found guilty of violating section 2615 of the Welfare and
Institutions Code of California. A 6-month jail sentence was suspended. The
statute, the constitutionality of which we challenge, reads as follows:
"Every person, firm or corporation, or officer or agent thereof that brings or
assists iii bringing into the State any indigent person who is not a resident of the
State, knowing him to be an indigent person, is guilty of a misdemeanor."
The facts were stipulated on the appeal below. They are the following:
"The appellant, Fred F. Edwards, a citizen of the United States and a resident
of the State of California, left Marysville, Cahfornia, on December 21, 1939, for
Spur, Texas. The object of his trip was to bring his wife's brother, Frank Dun-
can, a citizen of the United States and resident of Texas, back to Marysville.
Appellant arrived at Spur, Texas, on December 24, 1939, and learned that Duncan
then had no job and had last been employed by the W. P. A. Appellant at that
time learned that Duncan was an indigent person and at all times mentioned
herein, appellant knew Duncan to be indigent. It was agreed between Duncan
and appellant that appellant would drive Duncan from Spur, Texas, to Marysville,
California, in appellant's car. Appellant and Duncan left Spur, Texas, on Janu-
ary 1, 1940, entered California from Yuma, Arizona, on January 3, 1940, and ar-
rived in Marysville on January 5, 1940. At the time Duncan arrived in Marys-
ville he was without funds and lived at appellant's home until he was given assist-
ance by the Farm Security Administration about 10 days after his arrival in
Marysville. Duncan had no employment after his arrival in California, until
after he was given assistance by the Farm Security Administration. Duncan had
about $20 when he left Spur, Texas; this money was all spent before his arrival at
Marysville."
The appellant submits that California may not criminally penalize him for
bringing into California an employable American citizen, willing and able to work.
We consider that the statute under which the appellant was convicted violates
both the commerce clause and the Fourteenth amendment. We maintain that
the economic status of the individual, ready and able to work, cannot be used to>
impede his free movement in interstate commerce. May California place those
who are poor and needy in the category of outlaws of commerce and bar them from
interstate transportation and movement? That is the problem presented by this
statute.
Interstate movement and migration of people in this land have not only
developed the Nation but have been a fusing force in welding it together. That
this movement is interstate commerce is conceded by the parties in this litiga-
tion. It is a movement of tremendous proportions. Millions of farm and other
workers cross State lines annually in the course of, or the hunt for employment.
Whatever the cause— whether American migration, at one time be a movement of
despair and at another, one of hope — it is essentially a national manifestation of
economic pressures and economic pulls. Want, starvation, the need to find em-
ployment— these have been the pushes. The attraction of areas of greater
economic opportunity, the higher wages of the defense program — these are typical
pulls. But in any event, it is the impoverished, the indigent, who move and their
movement today is greater than ever. And in dealing with the impact of the
commerce clause upon the statute here in question we submit that this migration
from State to State is not a matter which is merely local in its nature or sphere
of operation. And far from being undesirable, were it to be stopped or seriously
curtailed, the entire economic structure of the country would be adversely affected
to a marked and serious degree.
"There are much larger issues involved," and I am quoting now the view of the
present Governor of California, "in the problem of interstate migration than those
which have to do with the administration of welfare programs as such." The
American migrant is neither a vagrant nor a pauper. He is a casualty, a casualty
of economic change, thrown out of gainful employment and self-supporting,
NATIONAL DEFENSE MIGRATION 10205
occupations as a result of profound dislocations in American agriculture and
industry."
Chief Justice Stone. Are you arguing that under no circumstances should the
State prohibit the introduction of migrants?
Mr. Slaff. I am maintaining, sir — "under no circumstances" is such a broad
term that I am not quite sure what you mean by it.
The Chief Justice. Are you arguing against the statute on its face?
Mr. Slaff. I am arguing both propositions. I maintain that in its application
in interstate commerce, this statute, because of the national nature and the national
scope of the problem, and the effect on the flow of commerce across State lines
when it is enforced, infringes the national interest and violates the commerce
clause.
The Chief Justice. My question is connected now with the first proposition.
Is it against the statute on its face? I ask you whether the State under no cir-
cumstances can prohibit the introduction of indigent persons.
Mr. Slaff. That is correct. That is my proposition. The American mi-
grant ■
The Chief Justice. That is to say, are there no conceivable circumstances
under which the State could prohibit the importation of people for the definite
purpose and with the definite result of placing them on the charity rolls of the
State and make
Mr. Slaff. I don't have to defend such a proposition.
The Chief Justice. You do if you attack the statute on its face.
Mr. Slaff. I do not sir, because there is nothing in this instant case and in the
statute here that takes in the problem of charging the State with the support of
the particular individuals brought in in this case. That never occurred in this
case. And so while, if Your Honor wishes, I can defend that other position and
will if you so direct. I don't think that it is involved.
The Chief Justice. Then we won't argue it.
Mr. Slaff. We have found out that several hundred thousand migrants entered
the State of California in family units by automobile. Quite obviously, a statute
which is aimed at the driver in circumstances like these is aimed at the other
members of the family as well, or the other members of the group. As a conse-
quence this statute in its practical application and in its effect has resulted in
deporting indigent migrants from within California to their place of origin.
Mr. Justice Jackson. That might retard the flood. That is what it is designed
to do, but is not the question here whether a State may say to its own people that
they must not assist this influx, rather than stop the influx itself?
Mr. Slaff. You limit it, Your Honor, when you say the State may say to its
own people. This statute is directed to anyone. But waiving that consideration,
I will take up under my discussion of the "due process clause" the question of
whether there is any distinction between saying to an individual, "You may not
bring in so-and-so," and "So-and-so cannot come into the State." We maintain
that if constitutional rights exist in an indigent person, they would be protected
by the fourteenth amendment. When one aids an individual person to come
into California, no greater problem is presented to California than if the indigent
person came in himself. In this case the appellant aided in this coming in.
Mr. Justice Jackson. You have a Federal policy which may be somewhat
similar to this. Immigrants are permitted to come in but may not come if brought
by contractors.
Mr. Slaff. The Federal Government has control of that because the Federal
Government has international sovereignty in the admission of people into this
country. But States are restricted from exercising a similar right by the com-
merce clause.
Mr. Justice Black. Does the statute apply to a common carrier?
Mr. Slaff. I should sav so, in its terms, Sir. Any person or corporation
Mr. Justice Black. What would the standard of guilt be? What would they
have to do?
Mr. Slaff. Knowledge of the condition of indigency.
Mr. Justice Black. Even though the
Mr. Slaff. There hasn't been any prosecution of a carrier. There was a
quasi-analogous situation in the city of Bangor, Maine, City of Bangor v. Smith
(83 Me. 422). A Maine statute directed thao a carrier bringing a person into
the State who became destitute within a specified period of time would be re-
quired to take the person out of the State. In that particular situation they
brought in some laborers to Bangor, Maine, and after they became destitute,
10206 THE EDWARDS CASE
out of work, the city requested the road to take them back. The road refused
to take them back and the Court held that the statute was unconstitutional.
Mr. Justice Black. But we are not concerned with a carrier in this case, and
different rules might apply. What are the differences between the charges here
and those against the railroad?
Mr. Slaff. The party involved here was not a common carrier. It was the
aiding of a relative in this specific case. The carriage was not for hire. That
is all that appears from the record. There is no question but that the meaning
of the statute is intended to cover any common carrier where the carrier has
knowledge of the indigency of the person involved.
Addressing myself again to the commerce clause — over 2,000,000 people have
recently migrated over State lines to defense centers. They fall into the 2
major clasess of migrants — migratory casual workers and the transient unem-
ployed. The former are the major labor prop of seasonal or intermittent in-
dustry. The transient unemployed make up the bulk of American migrants.
They are families seeking a permanent settlement. They number millions of
persons annually on the move. Despite the unsupported and undocumented
charge in appellee's first brief — the Yuba County brief — the facts simply do
not bear out the charge that a search for high relief payments has actuated this
large population movement. In fact, according to the report of the Tolan
committee, a dislike of accepting public aid has frequently been a factor in in-
ducing migration. There is a distortion of the entire problem when it is pictured
in terms of swarms of people migrating to seek public charity. There appears
to be a studied at empt in appellee's brief — the Yuba County brief — to forego
the use of the term "indigent" and to inject the term "pauper" as synonymous
with it. And the brief of the Attorney General, although not quite so obviously,
does the same thing.
We submit that that is clearly improper and factually misleading. We find
the meaning of the term "indigent," given it by the conviction in the instant case,
to be that of an employable American citizen with some small means, although
uncomfortably close to his last dollar. The term "indigent" includes employ-
ables and the State of California concedes this. It does not exclude the possession
of some property and it takes in that portion of the laboring population which is
self-supporting only when it is employed. Now the receipt of public relief may
be an occasional incident, but it is not a requisite of the status of "indigent."
The term is not synonymous with "pauper," which may be defined as one so
destitute as to be dependent upon public charity and whose infirmity is more than
economic, one who is unable or unwilling to work and whose disability is likely
to be more or less permanent.
May I at this time, without anticipating the Attorney General's argument,
point out some rather striking inconsistencies between this record and other
cases, and the position expressed in the Attorney General's brief. Although the
Attorney General considers the term "indigent" and the term "pauper" to be-
practically interchangeable, the appellate court in the instant case found an em-
ployable citizen with some small means, who had worked both prior and subsequent
to this prosecution, to be an "indigent." The record, it seems to me, of the
enforcement of this statute does not bear out the Attorney General's definition
nor his construction of the statute. The judicial history of its enforcement is
at wide variance with the concessions that the Attorney General would make in
order to save some slight fragment of constitutionality for the statute. I refer,.
Your Honors, to the statement at page 27 of the Attorney General's brief that a
person, although indigent himself, could not be guilty of the offense of bringing
other indigent persons into the State if they were persons to whom he was under
a legal obligation to support.
No such exception appears in the statute and no authority is given by the
Attorney General for such a construction. I refer, Your Honors, to the following
cases cited at pages 64 to 86 of the supplement to the brief of the State of Cali-
fornia: In the Ramos case the indigent persons were the children and stepchildren
of the defendant; in the Emsminger and Jones case, some of the indigents were
children of the defendant Emsminger, the divorced husband of Mrs. Atkins;
in the Rankin and Morris case, Mrs. Morris was charged with the crime of bring-
ing her own children into the State, and although the record of the matter in the
supplemental brief of the Attorney General makes no mention of it, Mrs. Morris
too, was employable and happened to work on the judge's cotton farm, according
to a letter which I have received on this matter. In the Vaughn and Henson case,.
the indigents were Mrs. Vaughn and her two children and the children of Mrs.
Henson, one of the defendants. In the Ochoa case, the indigents were the same-
NATIONAL DEFENSE MIGRATION 10207
as in the Ramos case. Ochoa was the son-in-law of Ramos, the father of the
children. But even if the Attorney General's construction, unwarranted as it is
by the language of the statute itself and the construction given it in its actual
administration, even if that construction were to be accepted that would have-
no bearing on the instant case or on the statute as a whole. The fact that a
particular class might be excepted does not render the statute constitutional as
to those classes to which it concede !ly applies, such as the appellant here.
I call the Court's attention, further, to the additional statement on page 27
of the Attorney General's brief. I quote, "The statute does not purport to
exclude indigent persons from the State." Here, and it is my recollection that
this was Mr. Justice Holmes' phrase, "The logic of words must face the logic of
realities." In the Vaughan and Henson case jail sentences were suspended on
condition that the indigent defendants leave the State for 2 years; in the Jones
and Ernsimger case, the Jones defendants were legal residents of California and
they were banished to Oklahoma for 2 years for the crime of bringing their sister
and her children into California after she had been critically injured in an auto-
mobile accident in Texas— and she and her children were ordered returned to
Oklahoma. In the Duncan case, sentence was suspended on condition that the
other Duncans be deported to Oklahoma. It is clear from the actual use of the
statute in the courts of California that it operates and is used to bar indigent
persons from California.
I am aware of the cases cited in the appellee's brief, and at pages 40 and 41
of the Attorney General's brief cases which are offered not because of their direct
holdings but because in them appear observations as to the power of States over
paupers. The language in these cases links paupers in traditional association
with idiots and convicts. We submit that the indigent person of today's migra-
tion neither falls within the traditional concept of the term "pauper" nor can he be
linked with the mentally deficient or with persons convicted of crime. As a
matter of fact, in the study of migration in this country, responsible studies indi-
cate that the transient unemployed — today's migrants — have been found to be
enterprising, energetic people and actually above the actual family on relief.
The early dicta in these cases here in this Court, cited by the appellee and
Attorney General, must be considered, it seems to me, first as expressions of a
period before the currently accepted criteria of the adjustment between State
and Federal power had been formulated, and then again, Mayor of New York v.
Miln was decided in 1837, and interstate migration at that time could hardly
have loomed as being of vital concern, when the first through railroad from
New York to Philadelphia had only been opened up three years previously.
Those cases have to be read in the light of their setting, and besides the language
is entirely too broad in all of them.
In the later cases in that line dealing with paupers, the dicta are used basically
merely to bolster up the decisions and there seems to be considerable evidence-
from the cases and from the facts of the cases in which some of the dicta wers
used that the Court used that language withour reexamination of the premises.
Now, by very definition and by economic condition, the migratory casual worker
and the transient unemployed are indigent. One fact stands out prominently,
and that is that the bulk of migration has come from those at or near the relief
level and when we remember that the average income of one-third of all American
families between 1935 and 1936 was $471, a goodly portion of the American em-
ployed population can be classed as indigent without any particular straining of
the term.
Mr. Justice Jackson. How do you use it?
Mr. Slaff. I use it in the sense, to compress that definition a bit more, I say
the term "indigent" means someone whose economic condition is so insecure that
conceivably within the near or possibly the more remote future he may require
public assistance of some sort, but it does not necessarily imply that he must be
receiving public assistance or be an immediate candidate for receiving public
assistance. My position is that a great many of America's employed are indigent
because if they don't get their Saturday pay check they will have to apply for
relief. The Attorney General would attempt to limit it to those who are immedi-
ately in need of public assistance and although he concedes that the term includes
employables he used the term "indigent" as practically interchangeable with
"pauper".
The Chief Justice. Does he say that? Is that his definition of the term "indi-
gent," that it is interchangeable with the term "pauper"?
10208 THE EDWARDS CASE
Mr. Justice Black. Is there any official interpretation of the act?
Mr. Slaff. The only official interpretation that I recall is the history of the
cases that have been enforced and then again there are other applications of the
term in the cases in California. For instance, we submit in our brief the cases of
Calkins v. Newton, City cfc County of San Francisco v. Collins, Goodal v. Brite,
and Alameda County v. Janssen, which, I believe is not in the brief, but which
states that a person may be. indigent even though he is the owner of real property.
But in any event there are cases in California which hold that indigency is a
relative term and which support the proposition which I have maintained, namely:
that a man who is a hard-working individual, who may not receive his pay check,
if he loses his job is an indigent, and in that particular connection may I refer
Your Honors to the case of Goodal v. Brite, which speaks of that class of person.
Mr. Justice Jackson. Are there any legislative hearings which gave an inter-
pretation of the statute?
Mr. Slaff. There are not, sir.
Mr. Justice Jackson. Any history in the legislation which
Mr. Slaff. Both the Attorney General, by the fact that it doesn't appear in
the brief, and I have been unable to find it.
This statute, when enforced, has the effect of barring the movement of America's
poor into the State and compelling their removal once they come within the State.
Now, in answer again to the question you addressed to me earlier, Mr. Justice
Jackson, although on its face it appears to be concerned with the one who is
bringing in the indigent, it is also aimed at the indigent himself. Governor
Olson, testifying before the Tolan Committee, has said:
"I think it is entirely a false premise to say that we should, even if provisions
were made, consider it a sound permanent policy to return people to places
where they cannot find a basis of subsistence. We have resources enough to
support a population of millions of people more than we have.
"Now I feel that every State in the Union and its resources, California in-
cluded, should not be denied access to by the man who wants to work, to sustain
himself, build a strong citizenship, a home, any more than it should be denied
to the adventures of capital. And in the course of time, through an extension
of the work of the Farm Security Administration and the coordination of its work
with State agencies, we can go forward to make these people permanent residents,
good citizens, building our population, enjoying the benefits of our great resources,
so that our resources will serve mankind instead of being narrowly considered
merely for us who happen to be here now with an attitude and complex of
exclusion of everyone else that has not happened to come here with money."
We submit that the national interest in the free movement of employable per-
sons, by no means certain to become and remain public charges, outweighs what-
ever interest a State may have in their exclusion. And certainly if the movement
of indigent migrants into a State may be turned back because of the fear of the
creation of a possible burden at some subsequent time to that State, by the same
token the principle of freezing of population in areas of origin should be consti-
tutionally sound.
The Chief Justice. If it appears that the indigent person was likely to become
immediately a public charge, then could the State put some restrictions on their
entrance?
Mr. Slaff. Was that a corollary of my argument, sirs? It was not. I don't
have to defend that as a last-ditch proposition. To answer Your Honor, my
position would be that even if the person on coming to California needed assistance
temporarily, under the commerce clause he has a right to come into California
because there is a natural interest in seeing that people move from State to State
in building up the country and supplying a corps of labor in the country.
The Chief Justice. Would you say that the State can exclude unemployables
for whom no provision is made by relatives and friends?
Mr. Slaff. I am submitting that this interstate commerce rule is easier to
state than to apply, and that would on its face present a harder case. It is our
proposition that even if you were to reduce the proposition solely to unemploy-
ables, and that isn't the history of the statute, that the State of California could
not bar them. Whether that principle would find full protection under the
■commerce clause or under the due process clause, I do not want to decide at this
moment, but even the movement of paupers — although we do not have to defend
that position — in California couldn't be proscribed by the State. They have a
right to the sunshine of California and to the health of California.
The Chief Justice. Does it appear whether this person was a citizen?
Mr. Slaff. He was a citizen of the United States and a resident of Texas.
NATIONAL DEFENSE MIGRATION 1020$
The Chief Justice. And the person who brought him in?
Mr. Slaff. He was a citizen of the United States and a resident of California.
They were brothers-in-law.
There is little question but that this statute interferes with the movement of
employables into California and I cite as an example the Henson case, submitted
by the Attorney General as one of the cases which illustrate the enforcement of
this statute. Rosie Henson was a farm worker and her son Fred, 22, also was an
agricultural worker. Both were employable, yet she was ordered to return to'
Oklahoma with her son Fred and directed not to return for 2 years. When
enforced, this statute sets up a barrier to the competition of the labor of nonresi-
dents with residents. We submit that an employable citizen ought not and
cannot be barred from California merely because of absence of capital, and
California has no right in law, good economics, or sound social policy to prevent
his entrance.
The attempt of the Attorney General to relate and to limit the construction of
the statute substantially to the promotional bringing into the State of nonresident
indigents and the activities of labor contractors and other recruiting agencies, it
seems to me. must fall in the light of the history of complete nonenforcement of
the act against any labor contractor.
1 he Chief Justice. Granted that there have been no prosecutions against
labor contractors, do the facts of the case bring it within such a construction?
Mr. Slaff. They do not, and it is our position of course that that cannot be
a construction of this statute because in the 40 years of its existence, not once
has it been employed against those who the Attorney General asserts are the
act's chief targets. In view of that, it seems to me that the assertion that the
act does not seek to keep indigent people out of the State as such is more than
a trifle hollow.
The Chief Justice. Whatever its construction, so far as it applies to a certain
class of cases, then I am wondering whether this state of facts brings it within
such group or limitation.
Mr. Slaff. The Attorney General's construction is that the statute is directed
solely, as I see it — I don't want to misquote him, but it is my recollection that it
is the Attorney' General's position that this statute is directed against the pro-
motional bringing in of destitute persons over and above a normal entry, and at
pages 28 and 29 of his brief he says: "We believe this construction of the statute
is related to the mischief which the legislature must have had in mind in the
fran.ing of this statute; i.e., the more or less promotional bringing into the State
of nonresident indigents. An example of such situation is the operation of labor
contractors, private employment services and other recruiting agencies, referred
to in the survey filed by the Governor of California' * * *"
The entire sweep of it seems to me an implication that this statute in its admin-
istration is directed against the bringing in of indigent persons other than a pro-
motional bringing in, whereas, in actuality the statute doesn't specifically con-
cern itself with that at all.
Mr. Justice Black. That seems to imply that the employer of indigent labor
is the one against whom it was intended to apply. That is why I asked you if
there is any definition by the Attorney General or any viewpoint in the brief to
show us just how the act is interpreted.
Mr. Slaff. The section which I read, sir, would appear to be the interpreta-
tion of the Attorney General. He says it does not apply to heads of families and
those who support families, and as a consequence the statute in his interpretation
excepts that class. It leaves only another class, that is, those who bring in an
indigent with no obligations as to his support, and the Attorney General main-
tains it is concerned basicly with such activities as the promotional bringing in
by labor contractors, recruiting agencies, etc. Have I answered your Honor's
question?
Mr. Justice Black. I will wait until later. I want to know whether employ-
able people and people physically fit, able to do any kind of work and whose only
fault is that they are out of a job and out of money come within the terms of the
statute.
Mr. Slaff. That is his position, although he says that his position is directed,
in the main, against contractors who bring in people. We submit that these facts
can't be denied; that the bulk of migration in the past decade has come from
people at or near the relief level. We submit that a mobile labor supply is neces-
sary to the national interest for those industries which can't or won't support a
resident labor force. Third, population pressures, and the circumstance that the
highest birth rates in the country occur in regions where economic opportunity is-
10210 THE EDWARDS CASE
lowest, require a recognition of the right of those who must migrate out of these
regions to migrate into other territories.
Mr. Justice Black. If the Attorney General's argument — that the statute was
directed against people in the business of bringing in, like the old labor con-
tractors— if that argument was suoported by collective findings based upon
reports of committees which establish as a matter of fact that such was the
experience of California, would it affect your argument?
Mr. Slafp. It would not. I submit it would be unconstitutional.
The displacement of manpower by the mechanization of industry and agri-
culture demands that those persons displaced attempt to secure some other
employment in other regions. Then, regional differentials in wage levels and
the patterns of seasonal labor requirements will continue to induce a flow of
persons across State lines.
Sixth, the droughts, soil erosion, plant disease, and insects, have caused and
will cause large sectional movements of the impoverished population.
Seventh, the belated flight from stranded areas as national recovery develops
must result in many impoverished persons moving across State lines in search of
work.
Finally, the demands of the national defense program require more and more
fluidity of movement of workers from State to State.
These matters are not merely local in their nature or sphere of operation, nor
are they of a character which can properly be regulated only by special provisions
adapted to their . Under the familiar doctrine of Cooley v. Board of
Wardens, we submit that the subject of migration, which is an economic necessity
in the American economic system is one which is national in character and scope
and requires uniformity of regulation affecting alike all States, and that Congress
alone can regulate it.
Mr. Justice Douglas. Would you say that this statute was constitutional if
passed by Congress?
Mr. Slaff. I don't think that is the corollary of my position. I don't know
whether this statute would be constitutional if passed by Congress. I state
that the regulation of movement of persons based on economic factors from State
to State can't be decided by the States. To what degree the Congress could do it
without violating the fifth amendment, I submit, would be for the Court to decide.
The Chief Justice. You say it is a matter of uniformity, and from the point
of view of the Attorney General's argument it is an essentially local question based
-on local conditions within the State, and in the case of Cooley v. Board of Wardens
there was a case of local regulation.
Mr. Slaff. I said that the commerce clause was easier to state than to apply.
That is the difference between — or at least it is one of the differences between —
the position of the Attorney General and ours. We maintain that the position
of the Attorney General, if it is accurately interpreted, means that it is a local
question, purely local in its nature and sphere of operation; if that were so, then
I have no doubt that by a logical extension of the doctrine of Cooley v. Board of
Wardens, provided the subject could only be properly regulated by provision
adapted to the locality involved, would be that the State could regulate.
The Chief Justice. The situation of California might be very different from
that of another State. I suppose the matter of protecting a community against
an indigent class might be very different in California than in Vermont.
Mr. Slaff. They may be somewhat different but I think that the national
interest is the predominant factor involved.
The Chief Justice. What troubles me about it all is in the construction of the
constitutional scope of this statute, whether he is within it.
Mr. Slaff. I don't follow Your Honor, I am sorry.
The Chief Justice. As I understand it, you say that the Attorney General
says that this statute is directed against promoters bringing indigent persons into
the State. Was that person a promoter?
Mr. Slaff. Quite the contrary.
The Chief Justice. Or to be brought in under that description?
Mr. Slaff. If that were the sole construction of the stature it would seem that
the appellant would clearly not come within the construction of that statute.
It seems to me, in connection with the commerce clause, that what I can do is to
quote Your Honor's words in De Santo v. Pennsylvania, and you said at that time
in your dissenting opinion which has now become the majority view, I believe:
"But it seems clear that those interferences not deemed forbidden are to be
sustained, not because the effect on commerce is nominally indirect, but because
& consideration of all the facts and circumstances, such as the nature of the
NATIONAL DEFENSE MIGRATION 10211
regulation, its function, the character of the business involved and the actual effect
on the flow of commerce, lead to the conclusion that the regulation concerns
interests particularly local and does not infringe the national interest in main-
taining the freedom of commerce across State lines."
It is clear that this statute is of such a nature and works in such a fashion and
so affects commerce, that it affects interests which are national in their nature
and influences and impinges on those interests.
Let's take the instant case. It is applied here. The crime is bringing in an
American citizen who worked in Texas, who was willing and able to work, and
that is the application in this given ca^e.
The Chief Justice. This person was brought in bj- a person who made it a
business of promoting? He was a relative. It doesn't appear whether the rela-
tive could support or would support this person.
Mr. Slaff. I think you have to face the fact that this statute appears —
this statute finds itself in a setting of a law which has to do with aid to indigents.
Now presumably the purpose and object of this statute was to create a situation
where the State would not be possibly liable — liable to a potential burden — either
in the near or immediate future as a result of bringing in people of an insecure
economic position and that now there isn't any legislative history that I have
been able to find for the statute. ... I would assume that that was probably
what the statute was originally directed to. But its terms are broad and it can
be applied in many instances, as in the given instance. It was applied here in a
case where Duncan, the indigent, asked for Federal aid. He never applied for
State aid at all. All he did was to go to the Farm Security Administration and
say: "My wife is going to have a child. She needs prenatal care." That was
the origin of the prosecution in this case.
Mr. Justice Murphy. How long was the indigent person in the State before
he made a request for aid?
Mr. Slaff. It was about 10 days, and the Attorney General cites some report
in his brief which would vary the stipulation of fact to 6 days.
Mr. Justice Black. Did he get the aid?
Mr. 'Slaff. He did get prenatal and subsequently post-natal care for his wife.
Mr. Justice Reed. What constitutional provision prohibits a State's regulation
of migration when stimulated by other people?
Mr. Slaff. I think Your Honor's question contains an implication that isn't
present in the statute. You speak of the stimulation of migration. The statute
has nothing to do with the stimulation of migration.
Mr. Justice Reed. Bring or assist, in the language of the statute.
Mr. Slaff. And under the broad language of the statute even advice to come
to California, knowing that a person was indigent would come under it. The
statute even interferes with freedom of speech and the press. I don't argue it
at any length in my brief. I thought there were stronger points in the case than
that. Actually, under the language of the statute and under any reasonable
construction of assist and bring, mere advice to "Come out to California, you
will be able to get a job out here. Things may be tough but a man of your
kind will be able to find a job." — that would be language which assists in bringing
people in, and if the speaker knew the person to whom he spoke to be indigent,
under this statute, on its face, that person would be liable to the penalty. None
of the cases where there is any record of the history of the enforcement of this
act involve that type of situation, but that type of situation could arise under
this particular Act.
Mr. Justice Jackson. Is there any way that you can suggest by which the
State that desires to, can protect itself from an influx of people, to take advantage
of that policy?
Mr. Slaff. California has been doing that, but California's Governor says
that pressure groups have seized on the migrant problem as a means of lowering
all relief standards. They passed settlement laws. They say: "We won't give
relief unless they are residents of the State for five years."
Mr. Justice Jackson. In this case, the aid which this man received, he received
by grace of the State?
Mr. Slaff. He received it by grace of the Federal Government. The aid that
Duncan received was paid by the Farm Security Administration and not by
California at all. So even if the statute were directed at that type of problem —
an influx of people who would immediately go to the State relief rolls — California
has protected itself against that. * * *
Mr. Justice Murphy. You say California has not given the indigent relief?
10212 THE EDWARDS CASE
Mr. Slaff. That is right, your Honor. And may I at this time point out that
with all the to-do about the burden that is imposed on the State, an analysis of
the attorney general's brief will indicate that in the period from 1933 to 1940
California spent, of the funds which it used for the relief of hardship and desti-
tution due to unemployment, only 2J4 percent of those funds for the relief of
nonresident indigent migrants. That appears on page 7. Of $160,000,000 they
spent $4,000,000 on nonresident indigent transients. That is because California's
policy has simply been that they would not recognize these people having a claim
on California and that they must be palmed off on the Federal Government.
That may be California's prerogative in establishing what it chooses to think
are social policies. But it can't refuse to give them aid and in the same breath
say it has a tremendous migratory problem. It has been under its claimed
burden because it has chosen to extend its social services to California residents.
There are pages set out in the attorney general's brief showing the amount spent
by California for various social services and assistance, but that comes under
Social Security. You have payments to the needy, the blind, and dependent
children that have swollen this total so that it looks tremendous, but it doesn't in
any way affect the problem, of the indigent migrant who comes to California.
Now, addressing myself to the due process point, it seems to me that * * *
Mr. Justice Black. Do you not raise the privileges and immunities clause,
or do you limit yourself to due process? How do you raise the question?
Mr. Slaff. I raise the question of the fourteenth amendment which includes
privileges and immunities and due process. On the question of privileges and
immunities there has been considerable split in the Court as to whether or not the
right of egress and ingress into a State is within the clause. It is difficult for an
attorney appearing before this Court to determine whether the privileges and im-
munities law is a sound law or not. Frankly, I think the case — and I speak
purely personally — can be bottomed on a broader base because when we come
into the privileges and immunities clause, if we are going to bottom it on that,
since it relates to citizenship it would apply only if the person involved were a
citizen.
The Chief Justice. Maybe. Both of the men are citizens * * *
Mr. Slaff. Your Honor, I believe the Hague v. C. I. 0. case said that under the
fourteenth amendment the privileges and immunities clause referred to those
rights which are related essentially and peculiarly to national citizenship, and if
that is the case then you would, if you decided it on the privileges and immunities
clause, you would be finding this to be a right peculiar to citizens and if it is a
right peculiar to citizens, then of course a friendly alien conceivably might not be
covered by that. I think the case might be bottomed more broadly than on
that clause. I raised the privilege and immunities point although we ourselves
are uncertain as to whether or not it has forceful application or whether the Court
has decided that the privileges and immunities clause with relation to ingress and
egress is not to be considered.
The Chief Justice. Freedom of movement has as much protection under the
commerce clause.
Mr. Slaff. Your Honor stated that in the case of Colgate v. Harvey, where you
said that if protection of that freedom was sought, that privilege was adequately
protected by the commerce clause. Addressing myself to the fourteenth amend-
ment, the need of the Nation for a free movement of population is matched by
the need of an individual for the same free movement. Granted that that may
not be a complete substitute for real security, we cannot forget that, for many,
in the last decade it has been the road away from starvation and we point out in
our brief that it has been well said that "the right to move unhindered from one
place to another is as much an element of freedom as the right to stay where you
are", and "mobility is more and more essential to freedom in our modern industrial
system, where local industrial conditions are continually changing and where
everyone must be able to follow his trade and open up new markets for his per-
sonal skill or his products."
This Court held, in the De Jonge v. Oregon case, that it was beyond the power
of a State to make it a crime to assist another in the exercise of his constitutional
rights. The problem we pose here is whether Duncan, as an indigent, could have
been constitutionally barred from California without any other reason^with
pure relation to— his indigency. We submit that appellant's action in assisting
Duncan to go from Texas to California was a constitutional right, and that
Duncan's action in coming to California was a constitutional right. Now this
NATIONAL DEFENSE MIGRATION 10213
•Court, in Gobitis v. Minersvilh, distinctly pointed out that "the ultimate founda-
tion of a free society is the binding tie of cohesive sentiment and that that senti-
ment was fostered by all those agencies of the mind and spirit which may serve
to gather up the traditions of a people, transmit them from generation to genera-
tion, and thereby create that continuity of a treasured common life which con-
stitutes a civilization."
Migration has done that very thing in this country and we submit that freedom
of people to go from one place to another is one of the fundamental patterns of
American life. The statute here, if enforced, sets up a positive barrier against
this free movement. We submit that a State cannot make an individual's
economic security and the possession of wealth the touchstone of the right to
individual liberty to move from one place to another under our Constitution.
* * * Under the circumstances of this case and the issues we have raised we
.•submit that the judgment below should be reversed and the complaint dismissed.
10214 THE EDWARDS CASE
Exhibit No. 14.
ORAL STATEMENT OF HON. JOHN H. TOLAN, CHAIRMAN OF THE
SELECT COMMITTEE INVESTIGATING NATIONAL DEFENSE
MIGRATION, AS AMICUS CURIAE, BEFORE THE SUPREME
COURT OF THE UNITED STATES.
Your Honors, I want to say in the first place that I am deeply appreciative of
the courtesy of this Court in permitting me to appear here. This case was
argued last April, and I appeared then, being chairman of the Special House
Committee Investigating National Defense Migration, as amicus curiae against
the statute in question.
At that time, Mr. Justice Roberts, you remember I made the statement that
if the California statute should fall, the other 27 penal statutes of a similar nature
in other States must fall also, and you became very much interested and wanted
to know whether we could get those statutes. I want to report to this Court
that we have obtained everything we could get on the statutes and we have a
chart in our brief concerning them.
Now, I think I would like to tell the Court in just a few minutes something
about our committee.
This committee was appointed in 1940. After our appointment we went to
New York, Alabama, Illinois, Nebraska, Oklahoma, and then California. We
visited California last, although the problem of migration was considered to be
at its worst out there, because we wanted to show this was a national problem.
So we went to New York and Mayor LaGuardia was our first witness. He said:
"Indeed it is a national problem." We were informed that New York spent
over $3,000,000 a year on nonsettled persons. The mayor told us: "We can't
cope with the problem without the aid of the Federal Government. We have
100,000 Puerto Ricans in the city of New York alone."
Down in Alabama, Congressman Sparkman didn't think he had any people
leaving his State, but we found many 'way out in California. Then we went to
Illinois and Nebraska, and I want to report back to this court that we certainly
received a wonderful reception from the press and the public.
We didn't know anything about the problem and we don't know very much
about it yet. But it is a peculiar thing, Your Honors, while your books are
burdened with cases, and millions of dollars have been spent for the protection
and regulation of iron and coal and steel in their transportation between the
States of this country, yet, so far as I know, this was the first investigation of its
kind dealing with human interstate commerce. Why, we have spent hundreds of
thousands of dollars in the Congress of the United States to regulate and protect
the migration of wild ducks and geese and give them feeding grounds in Canada.
But in traveling 50,000 miles this committee didn't find any feeding grounds for
migrating human beings.
This is one point 1 want to make, if I never make another. We are not con-
cerned with the perennial tramp or hoboes, or convicts. We are concerned with
good American citizens who have to leave their farms and homes because of cir-
cumstances over which they have no control. What else can they do? They are
not going to remain there and starve standing still. Congressman Curtis, of
Nebraska, a member of the committee, was amazed to find at our hearings in
Lincoln, Nebr., that 32,000 of his people had had to get up and leave. When the
cows go, horses go, farms go, they have no choice but to take to the road.
We also found, Your Honors, that in the Great Plains States that used to have,
at one time, fine, profitable farms, 5,000,000 acres 25 percent of the top soil is
gone. Why, the Great Plains States lost 1,000,000 persons in 10 years and Cali-
fornia gained over a million people. Now the question that was asked here by
Mr. Justice Black was: What are we going to do about that? We have recom-
mended to Congress a fourth category for the Social Security Act under which
general relief' for nonsettled persons can be provided. And why not? We had
4,000,000 of them on the road last year. Who are they? Good American citizens,
losing their residence in their home State and not gaining it in any other — you
have 2,000,000 Stateless people in this country. Is that good for the morale of
this country? It is impossible to divorce civilian morale from Army and Navy
morale and what strikes at civilian morale strikes at our national defense.
May it please Your Honors, in traveling 50,000 miles with my committee during
the last year and a half, I have come to the conclusion that the free flow of human
commerce is just as important as the free flow of the products of man — iron, coal.
NATIONAL DEFENSE MIGRATION 10215
and steel. Now, I have no more quarrel, as I have said before, with the Cali-
fornia statute than I have with the other 27 penal statutes in other States. I
come from California. But in 28 States of the Union those statutes make poverty
a crime. If you can have that in 28 States in the Union, you can have it in 48
States, and what is going to become of the millions of American citizens who are
citizens of these States? Are we going to have a Balkanization of this country?
We cannot put swinging gates on the borders of our States, open them, like now,
and then close them when depression comes. If we all belong to the great sister-
hood of States, what good is that constitutional right if we cannot go and see our
sister States unless we are rich?
Now, here's a very interesting thing. We just returned from Detroit. We are
addressing our attention to the problem of what is going to happen in the post-
war period. Of course we are all sailing pretty high now, but I am of the firm
conviction, after our investigation, that unless we can find some plan to cushion
the post-war slump, it is going to be as dangerous as any attack from without.
But what is the position of this country today? Your Navy Department is
advertising in the newspapers of this country for skilled laborers to go from their
home States to other States. They thereby lost their legal residence in the State
from whence they came. In California it is 5 years before they can qualify for
relief. But here we have migration going on in the name of national defense in
this country today. According to the appellant's brief there are only 475 tran-
sient cases in the entire State of California today out of over 6,000,000 people.
Now, I don't quarrel with the fact that California has a migratory problem.
Of course it has. There comes a saturation point when some States can't carry
it, and when they can't, it is the Federal Government's duty to protect the
American citizens and not let one of our States go down. California pays the
highest rate of any State in the Union for old-age assistance.
The migration of destitute citizens, Your Honors, is caused by many factors.
There is worn-out soil. The South is the hardest hit on that because it has tilled
the poorest soil for the longest time. There is mechanization and unemployment
and ill health. There is no single solution, because there are too many factors.
But we are trying to approach it in a reasonable way and I think we are making
some progress.
Now, as I told Your Honors, I am not highly trained in the law, but, according
to the language of this statute, what does this high tribunal have confronting it?
You have a statute making it a crime to transport into the State or bring into the
State of California an indigent person, an employable person, a citizen of the
United States entitled to all the privileges and immunities of the different States
of the Union. So he gets into California and is faced with this statute. By the
way, we examined over 300 migrants and this is the only thing they all said:
"We thought we were citizens of the United States." They feel they are such
under the provisions of the fourteenth amendment that: "All persons born or
naturalized in the United States, and subject to the jurisdiction thereof, are
citizens of the United States and of the State wherein they reside." That is one
section of the Constitution they know. Anyway, Duncan gets into the State.
His brother-in-law brings him in. The State of California, according to its own
constitution, is one and inseparable from the Union. California says to Duncan:
"You cannot get on any relief roll or become a public charge in the State of
California for a period of 3 years" — it's 5 years now. I never could understand
this indigent proposition. You can study this question any way you want but
it is difficult to understand why these States are so fearful that a man who is
poor is liable to become a public charge. The laws of the State of California
say that he can't get a nickel of relief for a period of 3 years. Duncan is an
employable person. And is this court to say that after those 3 years he will
still be indigent and will not have employment? Duncan never asked a dime
from the State of California. He received assistance from the Federal
Government.
I would like for a moment now to address myself to the contention made by
the attorney general. In the first place, as I understand it, he claims and will
maintain that Duncan did not have relatives who were liable for his support.
Well, the statute doesn't say anything about that. It says "any person." I
never knew that you could read exceptions, presumptions, or intendments into-
statutes. And the statute doesn't say "promoters, transporters" or anything of
that kind. It just says "every person." It is all-inclusive.
There hasn't been any prosecution according to the brief of the attorney
General against any so-called promoter. Not one. They have all been relatives.
10216 THE EDWARDS CASE
I wonder if I could read from the appellee's brief very quickly the typical case of
People v. Duncan. Buddy Duncan was his name. This is on page 77 of the
appellee's supplemental brief:
"Complaint sworn to by A. H. Kincaid on December 19, 1939, charged that
Buddy Duncan, on or about April 29, 1939, in violation of section 2615 of the
Welfare Code 'did willfully bring into the State of California certain indigent per-
sons, to wit: Lydia Duncan, Inez Duncan, Billie Duncan, Wanda Duncan, and
Joe Wayne Duncan, all of said indigent persons not being residents of the State
and said defendant well knowing said persons to be indigent.'
"Docket entries as follows: '1939. December 19, complaint filed. December
19, warrant issued; bail, $1,000.' "
Not much chance for that indigent person to put up $1,000.
"Plead 'guilty.' * * *
"The court pronounced judgment as follows:
"It is hereby ordered and adjudged that you the said defendant serve 6 months
in the county jail of Tulare County, said sentence being suspended for a period
of 1 year, upon condition that you return to the place from whence they came,
Lydia Duncan, Inez Duncan, Billie Duncan, Wanda Duncan, and Joe Wayne
Duncan, or to the State of Arizona.
"No information is available from Tulare County authorities concerning the
defendant or the alleged indigents.
"However, the Farm Security Administration has furnished information on a
case receiving assistance from that agency in which the names of the alleged
indigents appear, and which is as follows:
" 'Duncan, Lanny. Family composition: Lanny, 46 years; wife, Lyda, 40
years; Riley, son, 21 years; Billy, 19 years; Doris, daughter, 13 years; Joe Wayne,
son, 4 years. They have been known to this agency in Imperial, Santa Clara,
San Joaquin, and Tulare Counties and aid has been extended in the following
months:
" '1938: February, May, June.
" '1939: June, August, September, October, November, December.
" '1940: January through September and November and December.
" 'The family stated that they had formerly lived in Pontotoc, Okla., leaving
there in February 1938. In October 1939 the two oldest boys reported 6 months'
work and the father, Lanny, reported 2 months' work in the previous year.' "
And then, remember, they were ordered to return from whence they came. In
the argument of the attorney general's brief, he claims that they are after trans-
porters and not after relatives. However, all the prosecutions mentioned in the
brief show just exactly the contrary.
There is just another thing, while I think about it, and that is that the appellee
also maintains that they are after Edwards. They don't care about indigents,
and Edwards, the transporter, is all they are after. I would like to call Your
Honors' attention to the fact that if anybody is guilty the indigent is just as
guilty as the transporter. Section 31 of the Penal Code of the State of California
says that persons who give aid or advice or encouragement to others to commit a
crime within the State and are afterward found therein (Duncan was found there
in), and whether they directly commit the action constituting the defense or aid
and abet it in the commission, they are guilty.
Mr. Justice Douglas. Are those citations in your brief?
Hon. John H. Tolan. No; they are not. I shall be glad to present them to you.
He also claims, as I understand it, that Edwards, the transporter, being a citizen
and resident of California, they have a right to convict him. Well, personally, I
look at that proposition this way: You certainly cannot convict Edwards for the
exercise of a constitutional right. If Duncan had a constitutional right, penniless
though he was, to go into California, you can't any more agree to Edwards' con-
viction by the statute of the State of California than if California had a statute
making it a crime to import wheat and Duncan was wheat, or the constitutional
right of interstate commerce steps in and protects Edwards.
My time is getting short and I just want to read from an opinion of the Attorney
General of the State of California, and I want again to say to Your Honors that
the instant case has no parallel. You had border patrols in States where they
arrested these indigents and sent them back — Colorado, Florida, and California.
And I want to say to Your Honors, without their having invoked the Constitu-
tion in court, its sacred shadows solved every one of those border patrol problems.
Senator Johnson, then Governor of Colorado, Governor Cone of Florida, and
Attorney General Webb of California, all came out and said that the border
patrols were operating in violation of the Constitution of the United States.
NATIONAL DEFENSE MIGRATION 10217
If Your Honors please, right here I should like to quote a statement of Attorney
General Webb, 25 years attorney general of California, who resigned a couple
of years ago and was succeeded by Mr. Warren, a very able attorney. You will
find this statement on page 29 of the supplement to my brief.
"As between the States, the right of citizens to ingress and egress has very
generally been recognized and upheld.
*******
"I have gone somewhat at length into these matters in order to point out to
you some of the difficulties which confront us. So far as we may rightly go in
this matter the conditions warrant our going. In so dealing with the question,
however, we should always keep in mind the relative rights, obligations, and
duties of our sister States and of the citizens of the United States. Other States
will not be expected to complain of that which we rightly do, but they may be
expected to complain, and their right to complain must be admitted, of those
things which we wrongly do.
"In this as in other matters we should steadily keep in mind that we are one
of the sisterhood of States, and while asserting our own rights we should recognize
fully the rights of other States. As other States must do unto California, so
must California do unto them, for such is the mandate of the Federal Constitu-
tion."
I want to return, Mr. Chief Justice, to a question you asked awhile ago.
Some exceptions have been indicated. Let's assume for the purpose of argu-
ment that a State may refuse to admit "persons having contagious diseases,
fugitives from justice, persons convicted of crime, and persons whom the State
may consider dangerous to its peace or who would, upon their entry into the
State be subject to arrest and imprisonment by virtue of some existing statute of
that State." But, of course, we do not have any of those situations here. Dun-
can is not a convict. As Chief Justice Hughes said when the case was argued
last April, "He is not accused with being a pauper, a convict, a vagabond, or a
vagrant. He is simply charged with being an indigent."
I have gone to some length in explaining this case. In dealing with this ques-
tion, however, we should also keep in mind the relative rights and obligations
and duties of the citizens of the United States. Other States will not be expected
to complain of that which we rightly do, but the right to complain must be
admitted of those things which we wrongly do. Each State should keep in mind
that it is one of the sisterhood of States. As other States must do unto Cali-
fornia, so must California do unto them. For such is the mandate of the Federal
Constitution. I thank you.
60396— 42— pt. 26 17
10218 THE EDWARDS CASE
Exhibit No. 15.
ORAL STATEMENT OF W. T. SWEIGERT, ASSISTANT ATTORNEY
GENERAL OF THF STATE OF CALIFORNIA, BEFORE THE
SUPREME COURT OF THE UNITED STATES.
Mr. W. T. Sweigert. The attorney general of California appears here today
by myself and my associate, Mr. Hiram W. Johnson 3d, in response to a special
request made by the court last May to appear here and to present the views of
the State of California, particularly, as the court said, with respect to the ad-
ministrative and judicial interpretation of this particular statute by State author-
ities. We have tried to be helpful to the court and in connection with this
appearance we have filed with the court a separate supplement containing back-
ground, information, and data, selection of special cases which we believe may
be helpful to the court to the extent that it wishes to pursue in more detail
matters referred to in the brief or in this oral argument.
At the very outset I would like to say in respect to Congressman Tolan's
Teference to the so-called opinion of Attorney General U. S. Webb, that the
particular opinion which the Congressman read to the court was a letter written
in 1936 by the then attorney general of California to certain persons in the southern
part of the State who had advocated and for a time set up an extra-legal border
patrol during a crisis in connection with the migrant question. That extra-legal
border patrol has nothing to do with this particular statute or with this particular
case. Almost immediately it was declared by the attorney general to be an un-
lawful set-up not provided by law, and in connection with that ruling he did
point out to those who had advocated such action that they should bear in mind
that California should do to other States as California would want other States
to do to it. But I call Your Honors attention to the fact that in the letter the
attorney general said that "Section 647 of the Penal Code (which is nothing more
than the vagrancy section), to which we have referred, and other provisions of
the statutes — (he may have intended this particular statute before the Court but
I don't know whether he did or not), may subject persons coming across our
borders to arrest immediately upon their entry into this State, but none of these
statutes confers on police officers the right to forcibly prevent such entry." And
I point that out to the court to distinguish between an extra-legal set-up, which
had nothing to do with the statutory set-up of the State of California, and the
validity of the particular statute which is now before the court.
I was inclined to take up the question asked by Your Honors of the preceding
counsel, but I think I can present to the Court more adequately the views of the
State of California if I start at the beginning and go on to the end. I have in
mind, of course, that what I may say may lead to the posing of questions of me
by Your Honors, and I confidently expect it.
* I may say at the outset, if the Court will indulge in a momentary perspective
of the case and its background, a circumstance which to my mind proves that
the State of California is not unmindful of its history and heritage, of the brain
and heart and brawn that has come to it through the years, and the good that
can be derived from that particular source. The situation is, that although the
particular statute has been on the books of California in one form or another for
about three-quarters of a century and although it is patterned on laws long in
force in 27 other States of the Union, and although California has borne a heavier
share of migration — and by that I mean a heavier share of indigency in migrants
than any other State — and although this statute has been available all the time,
our research discloses that it has been resorted to in California but 13 times in
all that period, and then within a period of 90 days at the end of 1939 and 1940,
and then in only three counties of the State, two counties other than the par-
ticular Yuba County in which this case arises.
That is truly remarkable in view of the fact that in the 10-year period from
1933 to 1940, out of approximately a million persons migrating to California,
approximately 32 percent, over 300,000 received relief in California within a year
and a half after their arrival. It is true that about two and a half million dollars
have been expended out of actual State funds for the relief of migrants on their
arrival in the State. In addition large sums have been made available by the
Federal Government. This does not imply that California, through this statute,
has set up a "Chinese Wall" around itself or a statutory border patrol, but it
does imply that the State of California is faced with a problem that is serious
and affects its citizens and their welfare not only with respect to its health and
NATIONAL DEFENSE MIGRATION 10219
crime and social problems which are attendant with the heavy influx of persons
unable to maintain themselves. I might say that California has never refused
to help the nonresident indigent person. The counties of California have for
years had power under the State statutes to give emergency aid to persons in
need of relief, regardless of whether or not they complied with the residence
requirements. That is a particular dictate of humanity and it is not sufficient
to say that an indigent destitute migrant in the State of California is not a prob-
lem to the State of California because a person in that condition is a fact and not
a theory and must be dealt with, and thus the tendency of this particular situation
affects, regardless of residence restrictions, the welfare of the State of California.
Now, addressing myself to the administrative interpretation of this particular
statute, there is no specific rule in the State of California or in any of its depart-
ments or boards or agencies at all concerned with the subject of construing this
particular statute. It is true, however, that the various counties of the State
have established certain rules which are pertinent to the interpretation of what
is meant by the term "indigent." It is also true that the State relief adminis-
tration in California, which operated independently of the county systems, has
extended relief directly to alleviate destitution and hardships due to unemploy-
ment. It has also adopted certain rulings which may bear on the interpretation
of the word indigent. We have set forth all those matters in the brief.
I want to call Your Honors' attention to several statutes which bear on what
we mean by indigent.
Mr. Justice Jackson. Even if it be interpreted otherwise in some other cases,
for purpose of resolving the questions here
Mr. Sweigert. That is true and I don't think there is any conflict of the word
"indigent" and the interpretation that has been applied here.
Mr. Justice Jackson. Would you say that is within the true meaning of this
particular case?
Mr. Sweigert. I would say that is within the true meaning of this particular
statute. I might state the reason. We take the position that this statute, if
the Court please, first of all refers to indigents. In this sense an indigent person
is shown, by the decisions in California construing the term and also by other
related statutes, as a person destitute of property or means or resources with
which to support himself or his family, those entitled legally to his support, and
who is therefore dependent upon the only alternative, that is public aid.
Mr. Justice Reed. What do you mean by "means"?
Mr. Sweigert. I mean property, means, resources.
Mr. Justice Reed. Ability to work is not sufficient.
Mr. Sweigert. No. We say that even though a person has ability to work,
by reason of the fact that he cannot obtain that work, he is in a condition of
indigency. To put any other construction on this statute would mean that per-
sons who stand in need of public relief would be ruled out because they had the
ability to work. But ability to work will not feed the hungry stomach if the
work is not available. It has been held that the term "indigent" has not a limited
meaning — that it applies to persons who by reason of unemployment or any
other cause are destitute and without means to support themselves and their
families. We look, if the Court please, to the condition, and not to the cause of
the condition. I would say, however, that the term "indigent" excludes those
who have resources, funds or property which is available for their support, and
also excludes those who have available and ready credit or those who have rela-
tives legally bound to support them and able to do so. It also excludes those
who have friends willing to take care and support them. That is not my view.
It is a construction which is almost a reflection of the view of one of the provisions
of our welfare boards which provides that counties shall relieve and support all
indigent poor, when such persons are not supported and relieved by their rela-
tives or friends or by their own means. * * *
I would say that the term "indigent" is not limited to those who are physically
or mentally unfit to work. As I have stated before, it applies to those who
for any reason are in a condition of destitution. Now, I might say that
The Chief Justice. What if they have friends? How does that appear on
the record?
Mr. Sweigert. In this record the peculiar situation is that this party stipulated
to the fact that
The Chief Justice. Did they stipulate anything about that fact?
Mr. Sweigert. They stipulated to the fact that Duncan was an indigent
person.
10220 THE EDWARDS CASE
The Chief Justice. Do you think that his stipulating that his relatives couldn't
or wouldn't care for him — ■■ —
Mr. Sweigert. Not necessarily.
The Chief Justice. Either this statute was given a different application from
that which you state or an unconstitutional application if you are now trying to
define what is constitutional.
Mr. Sweigert. In this case, if the Court please, Duncan was brought by
Edwards into the State. Edwards went out of his way and brought him back
from Texas and almost immediately upon entry into the State of California he
applied for relief and obtained relief and the facts in the record indicate that he
exhausted his supply of means by the time he arrived in California.
The Chief Justice. It doesn't say anything about those relatives.
Mr. Sweigert. No, it doesn't. There is nothing in the record to the specific
effect that there were no relatives who would support him or take care of him.
The attorney general was not connected with the case until he received the request
of the Court to appear here. From then on we made a careful study of the case.
Our construction is that the statute was properly applied to the facts of this case.
The Chief Justice. The construction was not, then, that which you give it, for
no matter what the relatives were willing or able to do, if he was without funds
and came into the State the statute applies to it.
Mr. Justice Roberts. Do you infer an inability of the relatives to support
him from the fact that he applied for relief?
Mr. Sweigert. That is the essential fact.
The Chief Justice. You must state every fact most favorably to the consti-
tutionality of the statute.
Mr. Sweigert. That is true. There may be some close technical questions
that may present themselves to this Court by reason of the meagerness of the
record, but I would like to simply reread certain facts. They were read before
but we might stress them at this particular point. Here is the stipulation of
facts on appeal:
The appellant, Fred F. Edwards, a citizen of the United States, and a resident
of the State of California, left Marysville, Calif., on December 21, 1939, for Spur,.
Tex. The object of his trip was to bring his wife's brother, Frank Duncan, a
citizen of the United States and resident of Texas, back to Marysville. Appellant
arrived at Spur, Tex., on December 24, 1939, and learned that Duncan then had
no job (folio 17) and had last been employed by the Work Projects Administration.
Appellant at that time learned that Duncan was an indigent person and at all
times mentioned herein, appellant knew Duncan to be indigent. It was agreed
between Duncan and appellant that appellant would drive Duncan from Spur,
Tex., to Marysville, Calif., in appellant's car. Appellant and Duncan left Spur,
Tex., on January 1, 1940, entered California from Yuma, Ariz., on January 3,
1940, and arrived in Marysville on January 5, 1940. At the time Duncan arrived
in Marysville he was without funds and lived at appellant's home until he was
given assistance by the Farm Security Administration about 10 days after his
arrival in Marysville. Duncan had no employment after his arrival in California,
until after he was given assistance by the Farm Security Administration. Duncan
had about $20 when he left Spur, Tex. ; this money was all spent before his arrival
in Marysville.
Now, if the Court please, whether from that we are to infer that there was any
arrangement at the time of the indigent's entry into California whereby he would
be taken care of by his relatives or friends, it probably is a factor that might
eliminate him from that category of indigent persons.
Mr. Justice Roberts. Do you think that the stipulation is tantamount to a
plea of guilty?
Mr. Sweigert. I think it is.
The Chief Justice. Guilty of what?
Mr. Justice Roberts. Guilty of being an indigent person, whatever that
may be.
The Chief Justice. If that is so, a person could not bring an indigent person
into the State for the purpose of taking care of him. You are guilty regardless
of whether you have taken care of him or not.
Mr. Sweigert. The parties did engage in the stipulation of fact. * * *
The Chief Justice. There isn't a single fact to show whether the defendant
was willing to take care of his relative or not.
Mr. Sweigert. There is no express statement in the record.
NATIONAL DEFENSE MIGRATION 10221
The Chief Justice. Then, there would appear to be no question of this person
without means violating the statute, and now we come to the question whether
it is constitutional.
Mr. Sweigert. I think that is true. I think his intent was to plead guilty as
far as the record on appeal was concerned. * * *
The Chief Justice. The plea meant he was guilty — the plea made in the
stipulation. You say to bring an indigent and unemployed man into the State
violates the statute and the question is: Is that statute likely to violate the
Constitution?
Mr. Sweigert. That is correct.
The Chief Justice. That is the real question.
Mr. Sweigert. And that is what I will argue.
Mr. Justice Black. Was anything said about his health or his ability to work?
Mr. Sweigert. No; I don't think there is any express statement upon that
point?
Mr. Justice Murphy. It doesn't make any difference?
Mr. Sweigert. No; it doesn't.
The Chief Justice. We can assume that he was in good health and able to
work, and that relatives were ready and able to take care of him.
Mr. Sweigert. No. I don't think we can assume that, not from the record in
this particular case.
The Chief Justice. He was convicted on a state of facts which said nothing
as to that and therefore we must suppose that the statute prohibited the particular
thing that the stipulation says he did.
Mr. Sweigert. That may be a particular circumstance. * * *
The Chief Justice. Then is the statute constitutional? Is that the question?
* * *
Mr. Sweigert. No. Unless we can properly digest this record, the record
first of all states in the stipulation of facts that Edwards, the defendant, knew
that Duncan, the person he brought into the State, was indigent, but the trouble
is that it doesn't go any further and state particularly what the facts and circum-
stances were in the case and there are many circumstances and facts which enter
into the question of whether or not a person is indigent. Not that there is any
uncertainty about the term. The essential thing is that he is a person destitute
of means, of subsistence, property, responsible relatives, credit, and friends to-
take care of him, and that the necessary and immediate implication of his con
dition is that he is dependent upon the only alternative, public aid.
Mr. Justice Reed. You say that this stipulation means that he admitted he
was indigent in the sense the California administration defined it.
Mr. Sweigert. I think that is exactly the intent, although frankly, I am
willing to argue the scope of this statute as to what it means with respect to
indigency.
Mr. Justice Reed. But you don't accept the Chief Justice's suggestion that
a person who has relatives to support him may still be indigent.
Mr. Sweigert. I say that is not the final element in indigency. The essential
factor is destitution, lack of resources or means to support one's self to such an
extent as to be dependent upon the only alternative, public support. That is
the ultimate meaning of the term indigency.
The Chief Justice. Or lack of his means or lack of his relatives' means.
Mr. Sweigert. I do concede that if the question were submitted to a court
or a jury to determine whether the person was indigent within the meaning of the
law and perhaps an arrangement were made for friends to take care of him, that
might be a circumstance to show that he was not an indigent within the meaning
of the law, but it is not the determining factor.
Mr. Justice Black. Your position is that, properly construed as far as the
statute is concerned, a person would not be indigent if he had relatives to support
him.
Mr. Sweigert. I don't say that that is true one way or another. But I
concede that if a person has relatives to support him that fact bears on the ulti-
mate question.
Mr. Justice Black. But even if California didn't have that construction on a
law such as this — is it your position that it is within the constitutional power of
California to do this?
Mr. Sweigert. Absolutely. It is within the power of the State of California
to enact a statute — not excluding indigents — but making it a public offense for
a person to bring or assist in bringing an indigent person, in the sense in which I
am using the term, into California with knowledge that he is an indigent person.
10222 THE EDWARDS CASE
Mr. Justice Black. Just to be sure. If the statute prohibits bringing them in
would that mean railroads?
Mr. Sweigert. No. I don't think that it would apply to a carrier unless it
were found that the carrier brought in an indigent person with full knowledge
of his indigency.
Mr. Justice Black. Unless they knew it. But as I read the act it would
prevent a man being brought in by anybody else under any circumstances in
which they knew he was an indigent. That would mean by a railroad or any
other way. Otherwise we must construe the statute to mean that the only way
you could get there would be to walk.
Mr. Sweigert. There is nothing to warrant saying it does not apply to car-
riers. But it is only by a rather remote forecasting of circumstances that the
carrier would be invested with the specific required element of knowledge.
Mr. Justice Frankfurter. Does it apply to a father bringing in his indigent
son or to a son bringing in his indigent father?
Mr. Sweigert. No. The only sound construction of this statute is that no
offense is committed, that is, no person could be held guilty of bringing or assisting
in bringing an indigent person into the State when there exists between the
accused, the bringer-in, as it were, and the so-called indigent person, a relation-
ship which gives rise to a duty of legal support as between husband and spouse,
parents and children.
Coupled with it, it wouldn't apply to any case in which the person, charged
brought into the State of California, let us say, his parents or his children, persons
to whom he was under a legal obligation to render support. And the reason for
that limited interpretation of the statute, if the Court please, is this: That it
will be noted that, to hold that a person that brought his own children or parents
to- whom he owed a legal duty of support was guilty of the offense denounced,
would be tantamount to excluding the accused himself because of his own
indigency.
Mr. Justice Frankfurter. Does a son 30 years old have a duty to support a
father 63 years old?
Mr. Sweigert. Yes.
Mr. Frankfurter. How about brother and brother?
Mr. Sweigert. No. Spouse, and children and parents.
Mr. Justice Douglas. Then as far as the construction of this particular statute
by authorities in California is concerned, the Duncan case, referred to earlier,
seems to go against the construction you have now.
Mr. Sweigert. I have in mind the reference made by counsel to that Duncan
case and in a few moments I was going to review the 13 other cases. I take it
that there is only one case of the 12 whereby it might be definitely said that the
authorities proceeded to judgment against a defendant who occupied a relation-
ship involving the duty of legal support to the person brought in. That was in
the case of Henson. There are three other cases in which the relationship may
have existed but it cannot be definitely determined from the record. But in
quite a few cases, although warrants had been issued for the arrest of persons
occupying that position, no prosecution was ever conducted. They never went
to the stage of return of the warrant. So it can only be definitely said that there
was only one in which the authorities proceeded to judgment.
Mr. Justice Frankfurter. You remarked that this statute is adopted from
the form of an old atatute of 1901 * * *
Mr. Sweigert. No, I would not say that. I have set forth in the supplement
of the brief further detail on it. I would say that the statute has been on the
books since 1861 substantially in its present form.
Mr. Justice Frankfurter. But not in its original setting. Is there any
limitation to this statute so that there is any warrant for that argument in the
setting it had in its original enactment? Is it part of a relief statute which, in
the other portions of the code of enactment, supports the argument which you
just made that it doesn't apply to instances in which there is a duty of support?
Mr. Sweigert. Nothing directly bearing on the question except the fact that
an indigent person in California is a person who is destitute of means of support
without relatives, friends, or any other means or resources, the implication being
that he is depencent upon public aid. There is nothing in the literature, nothing
in the background of this statute, to throw any express light on the fact whether
the phrase ever was intended to apply to a case where the bringer-in bore a relation
to those brought in involving the duty of legal support, but I do think this is an
interpretation of this statute thai has warrant in the decision of this Court in the
case of Church of the Holy Trinity v. the United States, in which a very interesting
NATIONAL DEFENSE MIGRATION 10223
situation developed and the Court is already cognizant, probably, of the circum-
stances that then existed. It was a question of construction, not of constitution-
ality in that case. And if Your Honors recall, the circumstance there was that a
Federal statute prohibited the prepayment of transportation of immigration of any
alien into the United States under contract to perform any service, and the Court
said this should not be applied to the church in New York and the alien minister
of the gospel.
I think, if Your Honor please, that that decision furnishes ample support for thia
approach to the construction of the statute. And for this reason, to hold otherwise
would be tantamount to excluding the accused because of his indigency, because
under the law ot California and all other States imposing the duty of legal support
between parents and children, and spouse and spouse, those persons are one so far
as the statute of this kind is concerned, and we cannot assume that the legislature
in enacting this statute intended that the words "bringing in or assisting in
bringing in" should apply to a case of that kind, for the reason that there is no
offense in the law of California committed by the mere entry of an indigent person
into California. The legislature, in drawing the statute, avoided the denounce-
ment of mere entry of an indigent person as a crime, and we think that would
contrary to the meaning of the term "bringing in or assist in bringing in".
Mr. Justice Jackson. Assuming that the construction which you put on that
statute is correct, I'd like to hear you test the validity of your act by the assump-
tion that goods are involved instead of human beings. Suppose California find
that its markets are being flooded by certain cheap goods imported from other
States. It is decided that it can't exclude those goods because of the Federal
power over interstate commerce. Is it then free to pass a statute which would
forbid anyone to furnish fuel or water to the train bringing in such goods?
Mr. Sweigert. Manifestly not.
Mr. Justice Jackson. Then the goods have greater protection under the Federal
Constitution in their right to move about than have human beings.
Mr. Sweigert. No.
Mr. Justice Jackson. Or the State has less power to decide as to whether
goods are injurious to its economy than presons.
Mr. .Sweigert. I think the rule is precisely the same and I think of course
there is involved here the question as to whether or not the State, within the
meaning of the commerce clause, has the right to enact a law which will in some
way deal with or control the entry of persons in the condition of basic destitution.
I think the State has such power, although it has not exercised the power to exclude
indigent persons. The State has decided that under the construction which we
have given the statute "bringing in and assisting in bringing in" to California a
person who is indigent, within the definition of the term, is an act which in itself
is related to a local problem in California, not only the expense, but housing and
health problems connected with the influx of indigent persons. It has recognized
that problem, determined the extent to which it will deal with it, not to the point
of exclusion, but defining as an offense that particular act which in the judgment
of the legislature is unwarranted and stimulates the influx which would follow a
normal course if left entirely to the indigent persons themselves.
Mr. Justice Jackson. That could not be prohibited in the case of goods.
Mr. Sweigert. I did not note from Your Honor's statement that the goods
would be of such type that the State could guard itself against them on a quaran-
tine basis. If that were the case, the State could control to a limited extent the
importation of goods which one assumes could be excluded on quarantine. So
the principle is the same. Some mention was made, and I want to call attention
to these cases before my time is up. The application in the statute to carriers is
a matter of interest according to the questions of the Court, and I want to say that
in several cases interpreting similar statutes, very interesting holdings were
reached. It has been held, for example,. in the case of Fitchburg v. Cheshire Rail-
road Company — this case is not in our brief, but with the Court's permission
I would like to supply any omission by a short memorandum afterward
Mr. Justice Black. Will you give the citation to that case?
Mr. Sweigert. 110 Mass. 210. In this case, under a statute which provided
that if a foreigner, brought into the State by any conveyance by land, or by any
lines of Communication established for the regular transportation of passengers
by water, not extending beyond or stopping at places without the United States,
"falls sick, or from any cause becomes a public charge within 1 year thereafter,
the Commonwealth, or any place incurring expenses for his support, sickness, or
burial, may, in an action of contract, recover the amount of such expenses of the
10224 THE EDWARDS CASE
corporation or party by whose means the person was brought into the State;
provided that the party so liable shall be notified of his liability in each case as
soon as practicable, in order that such party may, if so disposed, provide means of
support or removal."
That was a case which involved a railroad carrier bringing such a person into
the State, and the Court said:
"If this statute is to be so construed as to sustain this action, it imposes a heavy
liability upon every railroad or other carrier of passengers who may transport a
foreigner or a citizen of another state into this state, and upon every person who
may happen to carry such person across the line of the State. It would operate
with especial hardship in the case of railroads and other carriers of passengers.
It would fix upon them a liability, not as a penalty for any violation of law, but
a burden imposed for performing a legal contract which they cannot refuse to
make. A common carrier of passengers is obliged to carry any passenger who
pays his fare and conforms to the reasonable rules established by the carrier. He
has no authority to examine the passenger and ascertain the place of his settle-
ment, or to refuse to carry him across the state line. If he does so refuse, he
renders himself liable to an action for such damages as a jury may assess. No
railroad corporation could practically protect itself against this liability, and no
provision is made in the statute for their protection. A construction which would
lead to such unjust results ought not to be adopted unless such is the necessary
meaning of the language used in the statute."
Mr. Justice Black. That is an old statute, and we must look to its mean-
ing as it has been construed by the older cases.
Mr. Sweigert. It is not of any significance that the case I am referring to is
an old case. The construction placed on this statute by the court was as follows:
"We think, by the fair construction of the statute, the terms 'by whose means'
are substantially equivalent to the terms 'by whose procurement or instigation,'
and that the intention was to impose the penalty upon the corporation or party
only who had some agency in inducing the poor person to come into the state.
Without undertaking to say what acts of procurement or inducement would bring
a party within the purview of the statute, we think it does not apply to a common
carrier of passengers who brings into the state a person who has no settlement here,
in the ordinary course of his business, and without any knowledge or reason to
suspect that such person is likely to become a charge upon the public."
The point that I make in that case is that these statutes should be construed
and limited to their true intent and the words "bringing into the State of Cali-
fornia" or "assisting in bringing into the State of California" must be construed
to apply to those persons who enter into some arrangement by which they willfully
bring a person into the State of California with knowledge that he is in an indigent
condition and bearing no relationship to that person which would involve the duty
of support. So construed, if the Court please, and within this limited sense,
I think it is well within the power of the State of California to enact this statute.
Obviously, with such construction of the statute any effect upon interstate com-
merce would only be a remote consequence and not an interference with interstate
commerce in any true sense of the word. I have not had an opportunity to
The Chief Justice. How do you say remote? The very act of interfering
with interstate commerce brings it within the statute.
Mr. Sweigert. I had in mind in connection with Your Honor's query the case
of Williams v. Fears, with which the Court is undoubtedly familiar. I think
the principle of the decision in that case comes strikingly close to the case here.
It was the case of hiring persons to work outside the State. The Court held
that it was a tax or revenue statute. However, the Court went on to say that
this was a particular situation that could be well grounded upon the police power
of the State.
The Chief Justice. That is different. In other words, it was a valid exercise
of the State police power even though it impinged upon the commerce power.
Mr. Sweigert. That is correct, and that is what we see as the situation here.
The Court said:
"And for the further reason that the State could properly discriminate in its police
and fiscal legislation between occupations of similar nature but of dissimilar
tendency; between those which tended to induce the laboring population to leave
and those which tended to induce that population to remain."
And we say here, that the denouncement as a misdemeanor of the act of bringing
in or assisting in bringing into the State of California, with full knowledge that
the person was indigent in the sense that I have used the term, is the denounce-
NATIONAL DEFENSE MIGRATION 10225
ment of an act which in itself is reasonably related to a mischief within the State
of California — that is, the welfare problem created by the entry into the State
by a large number of indigent persons, the legislature here having determined
that it did deem it wise to exclude indigent persons from entering the State even
if it had the power to do so. But it has, in a limited way, attempted to deal
with the problem, to alleviate the condition, by denouncing as criminal only the
act of those persons who go out of their way as volunteers to bring persons into
the State of California. I include within the meaning of the statute any person
who as a mere volunteer goes out of his way to bring into the State of California
with full knowledge of the indigency of that person. He has committed an act
that is well within the purview of the power of the State of California to denounce
as a crime on police grounds, and in that sense involves a matter of local police
power and not any more an interference with interstate commerce than, let us
say, the statute involved in the case of Williams v. Fears.
The Chief Justice. But if it did interfere with interstate commerce, would
you say it would be permissible?
Mr. Sweigert. I have that in mind. I have set forth in the brief the list of
cases on which we depend. Recently decided was the case of Thompson v. State
of California. We have also in our brief the Brady case, in which the State of
Ohio refused to allow a common carrier to use its highways because they were so
crowded that it created a hazard to safety. That was a case of interference and
it was grounded on safety of the people of Ohio.
Mr. Justice Jackson. But your statute could not be used against contract
labor, because the man coming into the State has the assurance of a job and
he could not be classified as indigent. So therefore the evil which conceivably
might result from inducing people to come into the State with the promise of a
job isn't taken care of by this statute.
Mr. Sweigert. I think it is because any company or any other person who
induced a person to come into the State of California under such an arrangement,
he would have means of support within the sense of the term and that might
be
Mr. Justice Jackson. But as soon as he was let out at the end of the season
and became a public charge, it would be no crime on the part of the corporation.
Mr. Sweigert. I think it is a perfectly legitimate situation if a person comes
under contract for a job.
Counsel mentioned the case of De Jonge v. Oregon. (299 U. S. 353). Anyway,
this Court held that it was not due process of law for the State of Oregon to
denounce as a crime the assistance by the defendant at a Communist meeting.
Obviously this decision was based on the principle that the meeting itself, being a
perfectly lawful meeting at which no doctrine of incitement to violence was
urged and being an entirely lawful assembly, by no reasonable construction could
any weight be found in the denouncement of that particular act of assisting at the
meeting as a crime. I don't think that that has any application here. The
theory of this statute is that the legislature has determined that the act of the
person in California of bringing in or assisting in bringing into the State an
indigent person willfully without any relationship involving the duty of support
is, in itself, regardless of the right of the indigent person normally to come him-
self into California, an act which is related to the welfare of the State of Cali-
fornia in respect to its health, housing, morale, expense and tax problems, and the
legislature recognized that and denounced that act as a public offence, deeming it
wise not to go to the extent of excluding indigent persons from California. The
theory being that the legislature was perfectly willing that California should re-
ceive and accept what might be considered a normal influx of indigent persons
themselves into the State of California, but would draw the line upon the acts of
those persons in California who without any necessity and in the way of volun-
teers assisted or brought persons into California with knowledge of their indigency
and that is well grounded upon the police power itself.
Mr. Justice Black. I don't quite gather the argument. Let's assume now
that a man had a constitutional right to go into California. You say here he had
not been excluded by California law, but all that California did was to make it
illegal for anybody to help him get there. On what basis do you think that it
would be constitutional for him to exercise that right if he has a constitutional
right to enter?
Mr. Sweigert. That does raise the question as to whether or not there is any
power in the State to deal at all with the right of persons to come into the State of
California who are indigent, in the sense that they are so destitute that-the neces-
sary implication of their condition is to resort to public aid.
10226 THE EDWARDS CASE
The Chief Justice. If you can lawfully prevent a person of this kind from
being assisted for the reasons you stated, you can also prevent his entry if you
saw fit, but you have not done it.
Mr. Sweigert. That is true, because the only reason we can denounce the act
of bringing him into California is because of the fact that bringing in or assisting
a person of that type is one of those cases in which this Court has recognized the
power of the State to deal. Your Honors are familiar with the cases in the briefs
that show that the Court, by way of dicta from 1837 to practically the end of the
century, has stated and reiterated that a State in the exercise of its police power
has a power to exclude persons who are paupers, vagabonds, fugitives from
justice, and if Your Honors please, I call attention to the fact that those cate-
gories of persons were exempted from the application of the "privileges and im-
munities" clause of the Articles of Confederation, and which, under the Slaughter
House Case and United States v. Wheeler, was held to be the precursor of article IV,
section 2, of the Constitution, and the meaning of the Articles of Confederation was
to carry the same limitations to "privileges and immunities" that were referred
to in the fourth article of the Articles of Confederation. And it is an interesting
thing to note that the Supreme Court also conceded the power of the State to have
the power of exclusion, if the Court please, of persons in that category on the
ground that the right to exclude persons in that category was related to the
police power in the Articles of Confederation
Mr. Justice Murphy. Is it your position that the State of California under
its police power can exclude indigent persons?
Mr. Sweigert. Yes; and that
Mr. Justice Murphy. There is no other legislation that has attempted to do so;
is there? That is as near as it gets to it, that statute here, which makes it an
offense to assist such a person.
Mr. Sweigert. That is right. That is the only approach. It has been a
limited effort of the legislature to deal with this problem to a certain extent on the
theory that the legislative determination is such that it is not wise to go further
and that this is to an extent related to the problem in hand. The essential
problem is the effect upon the general welfare, taxes, morale, and health of the
State of California of the influx of persons who are destitute and dependent upon
public aid. A further remark in connection with this statute, if the Court please,
is that it contemplates that the condition of indigency must be known at the time
the person is brought into the State of California. It does not apply to those
persons who are likely to become indigent at some future time and that is a
further limitation in connection with our interpretation of the statute.
Mr. Justice Frankfurter. Assuming that you are right, that the statute is so
worded as to include a limitation, what warrant is there to apply it to this case?
Mr. Sweigert. We have in the State of California many precedents for the
construction of the word "indigent" as I have given it to the Court. The only
point upon which we can say that there isn't any precedent in the California
courts or elsewhere is the point that I make with respect to the rionapplicability
of the statute to the act of one who brings persons into California Who, though
indigent, are those whom he has a legal obligation to support. That is the only
thing I say we have no legal support for, but I base
Mr. Justice Roberts. That is not here.
Mr. Sweigert. That is not before the Court. The only thing before the Court
to determine is whether or not the limited determination of the legislation — —
Mr. Justice Roberts. If we find that this man is an indigent under the law
of California, the question is whether or not the State has a lawful right so to
define indigency and punish a person assisting a person so denned to come into
the State. That is the whole question. Is it a valid statute which defines in-
digency as this Court below has defined it under the circumstances of this case?
Mr. Sweigert. Do you mean is this case within the meaning of the term
"indigency"?
Mr. Justice Roberts. This term is within the meaning according to the State
of California. We are bringing in an indigent person so defined as indigent.
Mr. Sweigert. That is the problem of this Court.
Mr. Justice Roberts. We don't care how it is applied to other people who
have relatives and what not.
Mr. Sweigert. I have attempted to give the Court what assistance we can, but
I would like to remove from the minds of the Court any idea that we are placing
an interpretation upon this statute that is not there. I don't think there is
anything that can't be drawn out of the statute rather than be put into it. I
think it should be construed in the historical sense of laws of this kind.
NATIONAL DEFENSE MIGRATION 10227
Exhibit No. 16.
SUPREME COURT OF THE UNITED STATES
No. 17.— October Term, 1941.
Fred F. Edwards, appellant, vs. The People of the State of
California.
appeal from the superior court of the state of california in and for the
county of yuba.
[November 24, 1941.]
Mr. Justice Byrnes delivered the opinion of the Court.
The facts of this case are simple and are not disputed. Appellant is a citizen
of the United States and a resident of California. In December, 1939, he left
his home in Marysville, California, for Spur, Texas, with the intention of bringing
back to Marysville his wife's brother, Frank Duncan, a citizen of the United
States and a resident of Texas. When he arrived in Texas, appellant learned
that Duncan had last been employed by the Works Progress Administration.
Appellant thus became aware of the fact that Duncan was an indigent person
and he continued to be aware of it throughout the period involved in this case.
The two men agreed that appellant should transport Duncan from Texas to
Marysville in appellant's automobile. Accordingly, they left Spur on January
1, 1940, entered California by way of Arizona on January 3, and reached Marys-
ville on January 5. When he left Texas, Duncan had about $20. It had all
been spent by the time he reached Marysville. He lived with appellant for
about ten days until he obtained financial assistance from the Farm Security
Administration. During the ten day interval, he had no employment.
In Justice Court a complaint was filed against appellant under Section 2615
of the Welfare and Institutions Code of California, which provides: "Every
person, firm or corporation, or officer or agent thereof that brings or assists in
bringing into the State any indigent person who is not a resident of the State,
knowing him to be an indigent person, is guilty of a misdemeanor." On demurrer
to the complaint, appellant urged that the Section violated several provisions of
the Federal Constitution. The demurrer was overruled, the cause was tried,
appellant was convicted and sentenced to six months imprisonment in the county
jail, and sentence was suspended.
On appeal to the Superior Court of Yuba County, the facts as stated above
were stipulated. The Superior Court, although regarding as "close" the question
of the validity of the Section, felt "constrained to uphold the statute as a valid
exercise of the police power of the State of California". Consequently, the
conviction was affirmed. No appeal to a higher state court was open to appel-
lant. We noted probable jurisdiction early last term, and later ordered reargu-
ment (313 U. S. 545) which has been held.
At the threshold of our inquiry a question arises with respect to the interpreta-
tion of Section 2615. On reargument, the Attorney General of California has
submitted an exposition of the history of the Section, which reveals that statutes
similar, though not identical to it have been in effect in California since 1860
[see Cal. Stat. (1860) 213; Cal. Stat. (1901) 636; Cal. Stat. (1933) 2005]. Neither
under these forerunners nor under Section 2615 itself does the term "indigent
person" seem to have been accorded an authoritative interpretation by the
California courts. The appellee claims for the Section a very limited scope.
It urges that the term "indigent person" must be taken to include only persons
who are presently destitute of property and without resources to obtain the neces-
sities of life, and who have no relatives or friends able and willing to support them.
It is conceded, however, that the term is not confined to those who are physically
or mentally incapacitated. While the generality of the language of the Section
contains no hint of these limitations, we are content to assign to the term this
narrow meaning.
Article I, Section 8 of the Constitution delegates to the Congress the authority
to regulate interstate commerce. And it is settled beyond question that the
transportation of persons is "commerce", within the meaning of that provision.1
i Gloucester Ferry Co. v. Pennsylvania, 114 U. S. 196, 203; Leisy v. Hardin, 135 U. S. 100, 112; Covington
Bridge Co. v. Kentucky, 154 U. S. 204, 218; Hoke v. United States, 227 U. S. 308, 320; Caminetti v. United
States, 242 U. S. 470, 491; United States v. Hill, 248 U. S. 420, 423; Mitchell r. United States, 313 U. S. 80.
Cf. The Federal Kidnaping Act of 1932, U. S. C, Title 18, §§ 408a-408c. It is immaterial whether or not the
transportation is commercial in character. See Caminetti v. United States, supra.
10228 THE EDWARDS CASE
It is nevertheless true that the States are not wholly precluded from exercising
their police power in matters of local concern even though they may thereby
affect interstate commerce. California v. Thompson, 313 U. S. 109, 113. The
issue presented in this case, therefore, is whether the prohibition embodied in
Section 2615 against the "bringing" or transportation of indigent persons into
California is within the police power of that State. We think that it is not, and
hold that it is an unconstitutional barrier to interstate commerce.
The gravity and perplexity of the social and economic dislocation which this
statute reflects is a matter of common knowledge and concern. We are not un-
mindful of it. We appreciate that the spectacle of large segments of our popu-
lation constantly on the move has given rise to urgent demands upon the ingenuity
of government. Both the brief of the Attorney General of California and that
of the Chairman of the Select Committee of the House of Representatives of the
United States as amicus curiae have sharpened this appreciation. The State
asserts that the huge influx of migrants into California in recent years has resulted
in problems of health, morals, and especially finance, the proportions of which
are staggering. It is not for us to say that this is not true. We have repeatedly
and recently affirmed, and we now reaffirm, that we do not conceive it our func-
tion to pass upon "the wisdom, need, or appropriateness" of the legislative efforts
of the States to solve such difficulties. See Olsen v. Nebraska, 313 U. S. 236, 246.
But this does not mean that there are no boundaries to the permissible area of
State legislative activity. There are. And none is more certain than the prohi-
bition against attempts on the part of any single State to isolate itself from diffi-
culties common to all of them by restraining the transportation of persons and
property across its borders. It is frequently the case that a State might gain a
momentary respite from the pressure of events by the simple expedient of shut-
ing its gates to the outside world. But, in the words of Mr. Justice Cardozo
"The Constitution was framed under the dominion of a political philosophy less
parochial in range. It was framed upon the theory that the peoples of the sev-
eral States must sink or swim together, and that in the long run prosperity and
salvation are in union and not division." Baldwin v. Seelig, 294 U. S. 511, 523.
It is difficult to conceive of a statute more squarely in conflict with this theory
than the Section challenged here. Its express purpose and inevitable effect is to
prohibit the transportation of indigent persons across the California border. The
burden upon interstate commerce is intended and immediate; it is the plain and
sole function of the statute. Moreover, the indigent non-residents who are the
real victims of the statute are deprived of the opportunity to exert political pres-
sure upon the California legislature in order to obtain a change in policy. South
Carolina Highway Department v. Barnwell Bros., 303 U. S. 177, 185, n. 2. We
think this statute must fail under any known test of the validity of State inter-
ference with interstate commerce.
It is urged, however, that the concept which underlies Section 2615 enjoys a
firm basis in English and American history.2 This is the notion that each com-
munity should care for its own indigent, that relief is solely the responsibility of
local government. Of this it must first be said that we are not now called upon
to determine anything other than the propriety of an attempt by a State to pro-
hibit the transportation of indigent non-residents into its territory. The nature
and extent of its obligation to afford relief to newcomers is not here involved. We
do, however, suggest that the theory of the Elizabethan poor laws no longer fits
the facts. Recent years, and particularly the past decade, have been marked by
a growing recognition that in an industrial society the task of providing assistance
to the needy has ceased to be local in character. The duty to share the burden,
if not wholly to assume it, has been recognized not only by State governments,
but by the Federal government as well. The changed attitude is reflected in the
Social Security laws under which the Federal and State governments cooperate
for the care of the aged, the blind and dependent children. U. S. C, Title 42,
§§ 301-1307, esp. §§ 301, 501, 601, 701, 721, 801, 1201. It is reflected in the
works programs under which work is furnished the unemployed, with the States
supplying approximately 25% and the Federal government approximately 75%
of the cost, See, e. a., Joint Resolution of June 26, 1940, c. 432, § 1 (d), 76th
Cong., 3rd Sess., 54 Stat. 611, 613. It is further reflected in the Farm Security
laws, under which the entire cost of the relief provisions is borne by the Federal
government. Id., at §§ 2 (a), 2 (b), 2 (d).
Indeed the record in this very case illustrates the inadequate basis in fact for
the theory that relief is presently a local matter. Before leaving Texas, Duncan
» See Hirsch, H. M., Our Settlement Laws (N. Y. Dept. of Social Welfare, 1933), passim.
NATIONAL DEFENSE MIGRATION 10229
had received assistance from the Works Progress Administration. After arriving
in California he was aided by the Farm Security Administration, which, as we
have said, is wholly financed by the Federal government. This is not to say that
our judgment would be different if Duncan had received relief from local agencies
in Texas and California. Nor is it to suggest that the financial burden of assist-
ance to indigent persons does not continue to fall heavily upon local and State
governments. It is only to illustrate that in not inconsiderable measure the relief
of the needy has become the common responsibility and concern of the whole
nation.
What has been said with respect to financing relief is not without its bearing
upon the regulation of the transportation of indigent persons. For the social
phenomenon of large-scale interstate migration is as certainly a matter of national
concern as the provision of assistance to those who have found a permanent or
temporary abode. Moreover, and unlike the relief problem, this phenomenon
does not admit of diverse treatment by the several States. The prohibition
against transporting indigent nonresidents into one State is an open invitation
to retaliatory measures, and the burdens upon the transportation of such persons
become cumulative. Moreover, it would be a virtual impossibility for migrants
and those who transport them to acquaint themselves with the peculiar rules of
admission of many states. "This Court has repeatedly declared that the grant
[the commerce clause] established the immunity of interstate commerce from the
control of the States respecting all those subjects embraced within the grant
which are of such a nature as to demand that, if regulated at all, their regulation
must be prescribed by a single authority." Milk Control Board v. Eisenberg
Farm Products, 306 U. S. 346, 351. We are of the opinion that the transporta-
tion of indigent persons from State to State clearly falls within this class of sub-
jects. The scope of Congressional power to deal with this problem we are not
now called upon to decide.
There remains to be noticed only the contention that the limitation upon State
power to interfere with the interstate transportation of persons is subject to an
exception in the case of "paupers". It is true that support for this contention
may be found in early decisions of this Court. In City of New York v. Miln, 11
Pet. 103, at 143, it was said that it is "as competent and as necessary for a State
to provide precautionary measures against the moral pestilence of paupers,
vagabonds, and possibly convicts, as it is to guard against the physical pestilence
which may arise from unsound and infectious articles imported . . ." This
language has been casually repeated in numerous later cases up to the turn of the
century. See, e. g., Passenger Cases, 7 How. 283, 426 and 466-467; Railway
Company v. Husen, 95 U. S. 465, 471; Plumley v. Massachusetts, 155 U. S. 461,
478; Missouri, Kansas and Topeka Ry. v. Haber, 169 U. S. 613, 629. In none
of these cases, however, was the power of a State to exclude "paupers" actually
involved.
Whether an able-bodied but unemployed person like Duncan is a "pauper"
within the historical meaning of the term is open to considerable doubt. See 53
Harvard L. Rev. 1031, 1932. But assuming that the term is applicable to him
and to persons similarly situated, we do not consider ourselves bound by the
language referred to. City of New York v. Miln was decided in 1936. What-
ever may have been the notion then prevailing, we do not think that it will now
be seriously contended that because a person is without employment and with-
out funds he constitutes a "moral pestilence". Poverty and immorality are not
synonymous.
We are of the opinion that Section 2615 is not a valid exercise of the police
power of California, that it imposes an unconstitutional burden upon interstate
commerce, and that the conviction under it cannot be sustained. In the view
we have taken it is unnecessary to decide whether the Section is repugnant to-
other provisions of the Constitution.
Reversed.
A true copy.
Test:
Clerk, Supreme Court, U. S.
[November 24, 1941.]
Mr. Justice Douglas, concurring.
I express no view on whether or not the statute here in question runs afoul
of Art. I, Sec. 8 of the Constitution granting to Congress the power "to regulate
Commerce with foreign Nations, and among the several States". But I am of
10230 THE EDWARDS CASE
the opinion that the right of persons to move freely from State to State occupies
a more protected position in our constitutional system than does the movement
of cattle, fruit, steel and coal across state lines. While the opinion of the Court
expresses no view on that issue, the right involved is so fundamental that I deem
it appropriate to indicate the reach of the constitutional question which is present.
The right to move freely from State to State is an incident of national citizenship
protected by the privileges and immunities clause of the Fourteenth Amendment
against state interference. Mr. Justice Moody in Twining v. New Jersey, 211
U. S. 78, 97, stated, "Privileges and immunities of citizens of the United States
. . . are only such as arise out of the nature and essential character of the National
Government, or are specifically granted or secured to all citizens or persons by the
Constitution of the United States." And he went on to state that one of those
rights of national citizenship was "the right to pass freely from State to State".
Id., p. 97. Now it is apparent that this right is not specifically granted by the
Constitution. Yet before the Fourteenth Amendment it was recognized as a
right fundamental to the national character of our Federal Government. It was
so decided in 1867 by Crandall v. Nevada, 6 Wall. 35. In that case this Court
struck down a Nevada tax "upon every person leaving the State" by common
carrier. Mr. Justice Miller writing for the Court held that the right to move
freely throughout the nation was a right of national citizenship. That the right
was implied did not make it any the less "guaranteed" by the Constitution.
Id., p. 47. To be sure, he emphasized that the Nevada statute would obstruct
the right of a ctizen to travel to the seat of his national government or its offices
throughout the country. And see United States v. Wheeler, 254 U. S. 281, 299.
But there is not a shred of evidence in the record of the Crandall case that the
persons there involved were en route on any such mission any more than it
appears in this case that Duncan entered California to interview some federal
agency. The point which Mr. Justice Miller made was merely in illustration of
the damage and havoc which would ensue if the States had the power to prevent
the free moving of citizens from one State to another. This is emphasized by his
quotation from Chief Justice Taney's dissenting opinion in the Passenger Cases,
7 How. 283, 492: "We are all citizens of the United States; and, as members
of the same community, must have the right to pass and repass through every
part of it without interruption, as freely as in our own States." Hence the
dictum in United Stales v. Wheeler, supra, p. 299, which attempts to limit the
Crandall case to a holding that the statute in question directly burdened "the
performance by the United States of its governmental functions" and limited the
"rights of the citizens growing out of such functions," does not bear analysis.
So, when the Fourteenth Amendment was adopted in 1868 it had been squarely
and authoritatively settled that the right to move freely from State to State
was a right of national citizenship. As such it was protected by the privileges and
immunities clause of the Fourteenth Amendment against state interference.
Slaughter House Cases, 16 Wall. 36, 74, 79. In the latter case Mr. Justice Miller
recognized that it was so "protected by implied guarantees" of the Constitution.
Id., p. 79. That was also acknowledged in Twining v. Neio Jersey, supra. And
Chief Justice Fuller in Williams v. Fears, 179 U. S. 270, 274, stated: "Undoubtedly
the right of locomotion, the right to remove from one place to another according
to inclination, is an attribute of personal liberty, and the right, ordinarily, of
free transit from or through the territory of any State is a right secured by the
Fourteenth Amendment and by other provisions of the Constitution."
In the face of this history I cannot accede to the suggestion (Helson v. Kentucky,
279 U. S. 245, 251; Colgate v. Harvey, 296 U. S. 404, 444) that the commerce clause
is the appropriate explanation of Crandall v. Nevada, supra. Two of the Justices
in that case expressly put the decision on the commerce clause; the others put it
on the broader ground of rights of national citizenship, Mr. Justice Miller stating
that "we do not concede that the question before us is to be determined" by the
commerce clause. Id., p. 43. On that broader ground it should continue to rest.
To be sure, there are expressions in the cases that this right of free movement of
persons is an incident of state citizenship protected against discriminatory state
action by Art. IV, Sec. 2 of the Constitution. Corfield v. Coryell, 4 Wash. C. C.
371, 381; Paul v. Virginia, 8 Wall. 168, 180; Wrad v. Maryland, 12 Wall. 418, 430;
United States v. Wheeler, supra, pp. 298-299. Under the dicta of those cases the
statute in the instant case would not survive, since California is curtailing only
the free movement of indigents who are non-residents of that State. But the
thrust of the Crandall case is deeper. Mr. Justice Miller adverted to Corfield v.
Coryell, Paul v. Virginia, and Ward v. Maryland, when he stated in the Slaughter
House Cases that the right protected by the Crandall case was a right of national
NATIONAL DEFENSE MIGRATION 10231
citizenship arising from the "implied guarantees" of the Constitution. 16 Wall.
at pp. 75-79. But his failure to classify that right as one of state citizenship
protected solely by Art. IV, sec. 2, underscores his view that the free movement
of persons throughout this nation was a right of national citizenship. It likewise
emphasizes that Art. IV, Sec. 2, whatever its reach, is primarily concerned with
the incidents of residence (the matter involved in United States v. Wheeler, supra)
and the exercise of rights within a State, so that a citizen of one State is not in a
"condition of alienage when he is within or when he removes to another State."
Blake v. McClung, 172 U. S. 239, 256. Furthermore, Art. IV, Sec. 2, cannot
explain the Crandall decision. The statute in that case applied to citizens of
Nevada as well as to citizens of other States. That is to say Nevada was not
"discriminating against citizens of other States in favor of its own." Hague v.
Committee for Industrial' Organization, 307 U. S. 496, 511 and cases cited. Thus
it is plain that the right of free ingress and egress rises to a higher constitutional
dignity than that afforded by state citizenship.
The conclusion that the right of free movement is a right of national citizenship
stands on firm historical ground. If a state tax on that movement, as in the
Crandall case, is invalid, a fortiori a state statute which obstructs or in substance
prevents that movement must fall. That result necessarily follows unless per-
chance a State can curtail the right of free movement of those who are poor or
destitute. But to allow such an exception to be engrafted on the rights of national
citizenship would be to contravene every conception of national unity. It would
also introduce a caste system utterly incompatible with the spirit of our system of
government. It would permit those who were stigmatized by a State as indigents,
paupers, or vagabonds to be relegated to an inferior class of citizenship. It
would prevent a citizen because he was poor from seeking new horizons in other
States. It might thus withhold from large segments of our people that mobility
which is basic to any guarantee of freedom of opportunity. The result would be
a dilution of the rights of national citizenship, a serious impairment of the principles
of equality. Since the state statute here challenged involves such consequences,
it runs afoul of the privileges and immunities clause of the Fourteenth Amendment.
Mr: Justice Black and Mr. Justice Murphy join in this opinion.
Mr. Justice Jackson, concurring
I concur in the result reached by the Court, and I agree that the grounds of its
decision are permissible ones under applicable authorities. But the migrations of
a human being, of whom it is charged that he possesses nothing that can be sold
and has no wherewithal to buy, do not fit easily into my notions as to what is com-
merce. To hold that the measure of his rights is the commerce clause is likely to
result eventually either in distorting the commercial law or in denaturing human
rights. I turn, therefore, away from principles by which commerce is regulated
to that clause of the Constitution by virtue of which Duncan is a citizen of the
United States and which forbids any state to abridge his privileges or immunities
as such.
This clause was adopted to make United States citizenship the dominant and
paramount allegiance among us. The return which the law had long associated
with allegiance was protection. The power of citizenship as a shield against
oppression was widely known from the example of Paul's Roman citizenship, which
sent the centurion scurrying to his higher-ups with the message: "Take heed
what thou doest: for this man is a Roman." I suppose none of us doubts that
the hope of imparting to American citizenship some of this vitality was the pur-
pose of declaring in the Fourteenth Amendment: "All persons born or naturalized
in the United States, and subject to the jurisdiction thereof, are citizens of the
United States and of the State wherein they reside. No State shall make or
enforce any law which shall abridge the privileges or immunities of citizens of the
United States. ..."
But the hope proclaimed in such generality soon shriveled in the process of
judicial interpretation. For nearly three-quarters of a century this Court rejected
every plea to the privileges and immunities clause. The judicial history of this
clause and the very real difficulties in the way of its practical application to specific
cases have been too well and recently reviewed to warrant repetition.1
While instance: of valid "privileges or immunities" must be but few, I am con-
vinced that this is one. I do not ignore or belittle the difficulties of what has been
characterized by this Court as an "almost forgotten" clause. But the difficulty
1 See dissenting opinion of Mr. Justice Stone in Colgate v. Harvey, 296 U. S. 404, 436, et seg.
10232 THE EDWARDS CASE
of the task does not excuse us from giving these general and abstract words what-
ever of specific content and concreteness they will bear as we mark out their
application, case by case. That is the method of the common law, and it has
been the method of this Court with other no less general statements in our funda-
mental law. This Court has not been timorous about giving concrete meaning
to such obscure and vagrant phrases as "due process," "general welfare," "equal
protection," or even "commerce among the several States." But it has always
hesitated to give any real meaning to the privileges and immunities clause lest it
improvidently give too much.
This Court should, however, hold squarely that it is a privilege of citizenship
of the United States, protected from state abridgment, to enter any State of the
Union, either for temporary sojourn or for the establishment of permanent resi-
dence therein and for gaining resultant citizenship thereof. If national citizen-
ship means less than this, it means nothing.
The language of the Fourteenth Amendment declaring two kinds of citizenship
is discriminating. It is: "All persons born or naturalized in the United States and
subject to the jurisdiction thereof, are citizens of the United States and of the
State wherein they reside." While it thus establishes national citizenship from
the mere circumstance of birth within the territory and jurisdiction of the United
States, birth within a state does not establish citizenship thereof. State citizen-
ship is ephemeral. It results only from residence and is gained or lost therewith.
That choice of residence was subject to local approval is contrary to the inescap-
able implications of the westward movement of our civilization.
Even as to an alien who had "been admitted to the United States under the
Federal law," this Court, through Mr. Justice Hughes, declared that "He was
thus admitted with the privilege of entering and abiding in the United States,
and hence of entering and abiding in any State in the Union." Truax v. Raich ,
239 U. S. 33, 39. Why we should hesitate to hold that federal citizenship implies
rights to enter and abide in any state of the Union at least equal to those possessed
by aliens passes may understanding. The world is even more upside down than
I had supposed it to be, if California must accept aliens in deference to their
federal privileges but is free to turn back citizens of the United States unless we
treat them as subjects of commerce.
The right of the citizen to migrate from state to state which, I agree with
Mr. Justice Douglas, is shown by our precedents to be one of national citizenship,
is not, however, an unlimited one. In addition to being subject to all constitu-
tional limitations imposed by the federal government, such citizen is subject to
some control by state governments. He may not, if a fugitive from justice, claim
freedom to migrate unmolested, nor may he endanger others by carrying con-
tagion about. These causes, and perhaps others that do not occur to me now,
warrant any public authority in stopping a man where it finds him and arresting his
progress across a state line quite as much as from place to place within the state.
It is here that we meet the real crux of this case. Does "indigence" as defined
by the application of the California statute constitute a basis for restricting the
freedom of a citizen, as crime or contagion warrants its restriction? We should
say now, and in no uncertain terms, that a man's mere property status, without
more, cannot be used by a state to test, qualify, or limit his rights as a citizen of
the United States. "Indigence" in itself is neither a source of rights nor a basis
for denying them. The mere state of being without funds is a neutral fact —
constitutionally an irrelevance, like race, creed, or color. I agree with what I
understand to be the holding of the Court that cases which may indicate the
contrary are overruled.
Any measure which would divide our citizenry on the basis of property into one
class free to move from state to state and another class that is poverty-bound to
the place where it has suffered misfortune is not only at war with the habit and
custom by which our country has expanded, but is also a short-sighted blow at the
security of property itself. Property can have no more dangerous, even if
unwitting, enemy than one who would make its possession a pretext for unequal
or exclusive civil rights. Where those rights are derived from national citizenship
no state may impose such a test, and whether the Congress could do so we are not
called upon to inquire.
I think California had no right to make the condition of Duncan's purse, with
no evidence of violation by him of any law or social policy which caused it, the
basis of excluding him or of punishing one who extended him aid.
If I doubted whether his federal citizenship alone were enough to open the gates
of California to Duncan, my doubt would disappear on consideration of the
obligations of such citizenship. Duncan owes a duty to render military service,
NATIONAL DEFENSE MIGRATION 10233
and this Court has said that this duty is the result of his citizenship. Mr. Chief
Justice White declared in the Selective Draft Law Cases, 245 U. S. 366, 378: "It
may not be doubted that the very conception of a just government and its duty
to the citizen includes the reciprocal obligation of the citizen to render military
service in case of need and the right to compel it." A contention that a citizen's
duty to render military service is suspended by "indigence" would meet with
little favor. Rich or penniless, Duncan's citizenship under the Constitution
pledges his strength to the defense of California as a part of the United States,
and his right to migrate to any part of the land he must defend is something she
must respect under the same instrument. Unless this Court is willing to say that
citizenship of the United States means at least this much to the citizen, then our
heritage of constitutional privileges and immunities is only a promise to the ear
to be broken to the hope, a teasing illusion like a munificent bequest in a pauper's
will.
wtayfr— 42— pt. 2«t 18
Fred F. Edwards, defendant in the case.
60398— 42— pt. 26
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