HINES, SECRETARY OF LABOR AND INDUSTRY OF PENNSYLVANIA, ET AL. v. DAVIDOWITZ ET AL.

APPEAL FROM THE DISTRICT COURT OF THE UNITED STATES FOR THE MIDDLE DISTRICT OF PENNSYLVANIA.

No. 22. Argued December 10, 11, 1940.-Decided January 20, 1941. 1. Applicable legislation enacted while the case was pending on appeal will be enforced by the appellate court. P. 60.

2. Whatever power a State may have to restrict, limit, regulate and register aliens as a distinct group, is subject to the national legislative and treaty-making powers. P. 68.

3. The Federal Alien Registration Act of 1940 forms, with the immigration and naturalization laws, a comprehensive and integrated scheme for the regulation of aliens, and precludes the enforcement of state alien registration Acts such as that adopted by Pennsylvania in 1939. P. 74.

The Pennsylvania Act requires every alien 18 years or over, with certain exceptions, to register once each year; provide such information as is required by the statute, plus any "other information and details" that the Department of Labor and Industry may direct; pay $1 as an annual registration fee; receive an alien identification card and carry it at all times; show the card whenever it may be demanded by any police officer or agent of the Department of Labor and Industry; and exhibit the card as a condition precedent to registering a motor vehicle in his name or obtaining a license to operate one. The Department of Labor and Industry is charged with the duties of classifying the registrations for "the purpose of ready reference," and furnishing a copy of the classification to the Pennsylvania Motor Police. Nonexempt aliens who fail to register are subject to a fine of not more than $100 or imprisonment for not more than 60 days, or both. For failure to carry an identification card or for failure to show it upon proper demand, the punishment is a fine of not more than $10, or imprisonment for not more than 10 days, or both. P. 59.

The federal Act provides for a single registration of aliens 14 years of age and over; detailed information specified by the Act, plus "such additional matters as may be prescribed by the Commissioner, with the approval of the Attorney General"; fingerprinting of all registrants; and secrecy of the federal files, which

52

Argument for Appellants.

can be "made available only to such persons or agencies as may be designated by the Commissioner, with the approval of the Attorney General." No requirement that aliens carry a registration card to be exhibited to police or others is embodied in the law, and only the wilful failure to register is made a criminal offense; punishment is fixed at a fine of not more than $1000, imprisonment for not more than 6 months, or both. P. 60. 30 F. Supp. 470, affirmed.

APPEAL from a decree of a District Court of three judges which restrained officials of the Commonwealth of Pennsylvania from enforcing against an alien provisions of the Pennsylvania Alien Registration Act of 1939.

Mrs. M. Louise Rutherford and Mr. William S. Rial, Deputy Attorneys General of Pennsylvania, with whom Mr. Claude T. Reno, Attorney General, was on the brief, for appellants.

The Act does not encroach upon a field reserved to federal action. The right of the Federal Government to control immigration, naturalization or interstate and foreign commerce is not impaired by the registration of aliens resident within the State, required by the Pennsylvania law.

It does not infringe the power to regulate interstate and foreign commerce nor interfere with power over immigration and naturalization.

In general, the States may exercise any power possessed by them prior to the adoption of the Constitution, unless the exercise of such power is expressly or by necessary implication prohibited thereby, or interferes with the exercise of some power delegated to the United States. Congress has no general power to enact police regulations operative within the territorial limits of the State. That power has been left with the individual States and can not be taken from them either wholly or in part. United States v. Cruikshank, 92 U. S. 542.

Argument for Appellants.

312 U.S.

The power of the State in this field is unqualified and exclusive, so long as its regulations do not invade the sphere of national sovereignty, obstruct or impede the exercise of any authority which the Constitution has confided to the Nation, or deprive a citizen of rights guaranteed to him thereunder.

The Pennsylvania Act simply requires that certain aliens, who have not declared their intention to become citizens, register, pay $1.00 for such registration, and carry a registration card.

The State enacted this law in order to secure information in regard to aliens within its own boundaries. The penalties and the carrying of the card are necessary in order to enforce the law and to prevent evasion.

Compliance by an alien with the state statute does not interfere in any way with his compliance with the naturalization statute. If he files his declaration of intention, he is no longer subject to the state Act, even if he does not complete his application.

It is obvious that there is no inconsistency and no conflict between the alien registering with the State and also with the United States. Legislation under the police power of the State will not be stricken down unless it plainly and palpably conflicts with some authority granted to the Federal Government. Plumley v. Massachusetts, 155 U. S. 461, 479, 480.

A State may pass a law which aids or coöperates with the Federal Government in the exercise of its federal power. Halter v. Nebraska, 205 U. S. 34; Gilbert v. Minnesota, 254 U. S. 325.

Appellants concede that immigration and naturalization under Art. I, §8, Cl. 3, of the Constitution are within the exclusive power of Congress; but this provision does not place entire jurisdiction over aliens under Congress, and the States under the police power can

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Argument for Appellants.

place restrictions and limitations upon aliens. Even if control of aliens were within the exclusive power of Congress, the State still has the right, as a local police measure, to regulate aliens resident within its borders, so long as such regulations are not repugnant to or inconsistent with federal enactments.

State insolvency laws, liquor laws, inspection laws and quarantine laws have been upheld. See International Shoe Co. v. Pinkus, 278 U. S. 261; Potts v. Smith Mfg. Co., 25 Pa. Super. Ct. 206.

It should be noted that Pennsylvania passed its law to register aliens on June 21, 1939, but it was not until June 28, 1940, that the federal Act was passed. The Pennsylvania Act does not restrict aliens coming into the State nor expel them from the State. Until the federal Act, there was no conflict with the general power delegated to the Federal Government covering the subject of naturalization and immigration. See also New York, N. H., & H. R. Co. v. New York, 165 U. S. 628.

There is no question about the right of the State to act in the absence of federal legislation. The Alien Registration Act was constitutional when passed, since it does not impinge on any power granted to Congress, for it does not relate to the entrance of aliens into the State, nor to their deportation; nor does it interfere in any way with naturalization or with foreign or interstate relations. It represents simply a local police measure to obtain information regarding aliens resident within the State's borders for the protection of its citizens, law-abiding aliens and property. The only question is whether the state Act is in abeyance or whether the state and federal Governments have concurrent jurisdiction to register aliens for the protection of inhabitants and property. The Act does not deny equal protection of the laws to aliens.

Argument of Amicus Curiae.

312 U.S.

Mr. Isidor Ostroff, with whom Mr. Herman Steerman was on the brief, for appellees.

The Act is discriminatory, unreasonable; inconsistent and capricious. The Act encroaches upon a field reserved to federal action. People v. Baum, 251 Mich. 187; Truax v. Raich, 239 U. S. 33, 39; Arrowsmith v. Voorhies, 55 F. 2d 310; Henderson v. Mayor of New York, 92 U. S. 259; Chy Lung v. Freeman, 92 U. S. 275.

The Act denies equal protection of the laws to aliens in Pennsylvania.

By special leave of Court, Solicitor General Biddle, with whom Assistant Attorney General Shea and Messrs. Melvin H. Siegel, Richard H. Demuth, and Oscar H. Davis were on the brief, for the United States, as amicus curiae.

The federal Act of 1940 has superseded the Pennsylvania statute. The one is a comprehensive law on the subject of the registration and identification of aliens; the other, rather than complementing the federal law, covers almost the same ground.

The enactment by Congress of this comprehensive and integrated alien registration system precludes the exercise of any concurrent authority by the States. People v. Compagnie Generale Transatlantique, 107 U. S. 59, 63; Reid v. Colorado, 187 U. S. 137, 146-147; Easton v. Iowa, 188 U. S. 220, 231, 238; Oregon-Washington R. & Nav. Co. v. Washington, 270 U. S. 87, 99-101; Erie R. Co. v. New York, 233 U. S. 671; Adams Express Co. v. Croninger, 226 U. S. 491, 505-506; Northern Pacific Ry. Co. v. Washington, 222 U. S. 370; New York Central R. Co. v. Winfield, 244 U. S. 147; Second Employers' Liability Cases, 223 U. S. 1, 55; Lindgren v. United States, 281 U. S. 38, 45-46; New York Central & Hudson River R. v. Hudson County, 227 U. S. 248, 263-264; Southern Ry. Co. v. Railroad Commission, 236 U. S. 439; International