The opinion
CLARK, Circuit Judge
(dissenting).
In a case of this kind, with such serious social implications, it seems to me peculiarly desirable that judges shall confine themselves to the legislative intent to the utmost extent possible. Here that intent does not seem to me disputable on the words of the statute itself; but if any doubt exists, I think it must be dispelled by a consideration of the legislative history. The statute presents a closely integrated system of selection of fit registrants according to state and local quotas based on the number of available men, with an overriding prohibition against any discrimination in selection for race or color; and the history of this prohibition shows just how overriding it was intended to be.
In stating the legislative history, the opinion stresses the fact that segregation had previously existed in the Army and that the Wagner and Fish amendments to the Selective Training and Service Act were made in the light of that facr. It argues, therefore, that the amendments, following cases dealing with discrimination claimed to be repugnant to the Fourteenth Amendment, require only equal, even if separate, treatment of Negro inductees while in the Army. 1 All that can be accepted without reaching our conclusion; that requires the further step which overlooks the expressed purpose of the proponents and nullifies the provision that in the selection of men fo^ induction there shall be no discrimination against any person on account of race or color.
Thus, Senator Wagner explained his amendment as not an attempt to control the Army after it received the selectees, but a requirement of equal opportunity to serve; and he presented a letter from the Secretary of the National Association for the Advancement of the Colored People asking for the amendment because Negroes had been allowed to enlist only in certain specified regiments. 86 Cong.Rec. 10,789, 10,889. This amendment — which is not the important one here and which was passed only after long debate and determined opposition mainly on the ground that it was unnecessary, 86 Cong. Rec. 10,888-10,895 — thus concerned the important matter of choice of men for the Army. When the matter came up later in the House, the Fish amendment was supported to make assurance sure and to quiet the doubts of representatives of the colored people. Again there was a sharp debate, not in opposition to the principle expressed, but on the ground that the pro *402 vision was unnecessary, as already incorporated in that Act. Congressman Fish said he was not the originator of the amendment, but sponsored it by request of a group of prominent colored leaders “who are interested in and represent the interests of 11,000,000 Negroes in America.” 86 Cong. Rec. 11,675, 11,676. And so at length after one vote wherein the amendment appeared to be lost, it finally passed the House by a fairly close vote, 86 Cong. Rec. 11,680, and remained in the bill at all times thereafter.
In this debate on the Fish amendment, the Committee on Military Affairs, which had reported the bill, opposed the change. The Army letter to Congressman Thomason of Texas, 86 Cong. Rec. 11,427, seems to me of quite a different tenor than as stated in the opinion; 2 but the intimation it contained that estimates of registrants were being made according to color may be one of the things which led to disquietude upon the part of the colored people and to the proposal of the amendment two days later. It is significant, too, that Chairman May of the Committee on Military Affairs, in opposing the amendment as unnecessary, reported that the Committee was adopting two provisions adequate to cover the matter — one the Wagner amendment to the Senate bill, and the other the proviso to § 3(a) quoted in the opinion that no man should be inducted until he was acceptable to the land or naval forces. Then he explained that this proviso was not to be used to permit discrimination by the clear statement: “That latter provision merely means that he must stand the same kind of medical examination and physical test as any other man, regardless of race, color, or condition.” 86 Cong. Rec. 11,676. The other similar proviso, also quoted from the same statute, that no man should be inducted until adequate sanitary and other facilities were available had just been adopted that same day after similar considerable debate as to its necessity and expressly to meet the condition asserted to have obtained in the First World War when men were said to have been inducted only to become sick or die because of lack of adequate sanitary and other facilities. 86 Cong. Rec. 11,670.
It seems hardly doubtful that these provisos added to § 3(a) are but the protection thought necessary for the inductees and were not intended, and should not be construed, to nullify the anti-discrimination (Fish) amendment to the next section, § 4(a), which in terms refers to and conditions the earlier section thus, “The selection of men for training and service under section 3 * * * shall be made in an impartial manner * * *: Provided, That in the selection and training of men under this Act, and in the interpretation and execution of the provisions of this Act, there shall be no discrimination against any person on account of race or color.” (Italics added.) And the Wagner amendment to § 3(a) itself refers forward to and depends upon “the limits of the quota determined under section 4(b) * * '* for the subdivision in which he resides.” Thus, all parts of the statute must be read together and the provision against discrimination in selection for color must be given meaning. In fact, I find it difficult to think of more apt language to express the Congressional intent; the suggestion that Congress should have said something more, or amended the statute, means in effect that it should be watchful to see how a statute is violated and then expressly negative such violation or be assumed to sanction it.
Now it seems to me that the result stated in the opinion , simply wipes out this provision so insisted upon as assur *403 anee to prevent this very result. For it is not seriously contested that white and colored draftees are not called according to their officially determined order numbers (established originally by the much publicized drawing from the gold fish bowl in Washington and later by similar impartial chance), but only according to the calls of the Army officials separately for whites and for Negroes. The dislocation occasioned by a single such separate call, intensified as these calls are repeated throughout the history of the draft, was frankly admitted by Colonel Arthur V. McDermott, -the New York City Director of Selective Service, who testified below. He said: “I will repeat — Generally speaking, both Negroes and whites are called according to their order numbers, but if the number of Negroes called is less than the number of whites called, then after the Negro quota has been filled, drawing by order numbers, then the board would proceed according to order numbers, but skipping the Negroes.” To the question, “Then you do have a Negro quota and a white quota?” he answered, “Oh, yes.” And to the question, “Am I not right in my statement that Negroes and white men are not called in turn or serially, but that the question of color has something to do with the time they are called?” he answered, “That’s right.” This well-understood practice has led to rather bitter comment recently in Congress, where Congressman McKenzie of Louisiana has pointed out the disruption of a community caused by the taking of pre-Pearl Harbor white fathers, while single available Negroes are left uncalled. 89 Cong. Rec. A-5268, A-5269. 3
I do not see how such a result can be considered consistent with selection without regard to color. It is suggested, however, that, even if the statute is violated, this registrant cannot take advantage of it, for he has not shown that his call was not delayed, rather than accelerated, by the practice, with the further correlative supposition that delay must of necessity be an advantage. Even if this supposition is to be accepted, there was evidence in the record that Negroes might be called in advanee of whites, that in fact a call for Negyoes would be allocated “to those boards where Negroes are”; and since this was a matter peculiarly within the Government’s knowledge, it would seem under the circumstances to have the burden of going forward with the evidence. But I do not think the supposition can be accepted as being in accord with the habits and thoughts of patriotic citizens during the present crisis or permitted by the statute, which requires that there be no discrimination for color, not that there be no legally disadvantageous discrimination. This registrant asserts his desire to serve and his willingness to do so if inducted according to law. I think it unsound to overlook a violation of law as to him on a premise which we ourselves would reject as patriotic citizens and which is contrary to the whole spirit of the Act, namely, that avoidance of service is to be desired. But notwithstanding the fears expressed by the United States Attorney, this cannot mean the release from the Army of large numbers of soldiers; alike with volunteers, those who have gone into service properly without immediately raising any objections they have, and relying upon them as steadfastly as did this registrant here, surely have no ground to approach the court.
It is to be noted that in final analysis the case for the validity of the call here1 rests upon the policy of segregation, where equal facilities are afforded, as sanctioned by various Supreme Court decisions. But actually these precedents call for the contrary result. It must not be overlooked that they do insist upon equal accommodations, State ex rel. Missouri ex rel. Gaines v. Canada, 305 U.S. 337 , 59 S.Ct. 232 , 83 L.Ed. 208 ; Mitchell v. United States, 313 U.S. 80 , 61 S.Ct. 873 , 85 L.Ed. 1201 , which here must mean equal calls to service. However undesirable the colored people may regard service in segregated units, they are justified in asserting that it is less degrading than no service at all or service delayed, if not belittled, in the light of their available man power. I think the judgment should be reversed, with directions that the writ be sustained.
Referring to this ease, Professor Robert E. Cushman, in Some Constitutional Problems of Civil Liberty, 23 B. U.L.Rev. 335, 361, makes this same point of “the general policy of segregation” upheld in Plessy v. Ferguson, 163 U.S. 537 , 16 S.Ct. 1138 , 41 L.Ed. 256 ; but he does not discuss the question, of discrimination in selection.
The letter does not mention separate white and Negro quotas and calls; it does, however, attempt an estimate of the number of registrants, and, taking Texas, as an example, considers separately the white and Negro population and the white and Negro persons already serving in the Army. So far as appears, this method of estimating may be required by the nature and form of the available statistics.
It is easy to slip from the discrimination here, which is based solely on Army calls for men, to that stated at the end of the opinion, viz., “separate quotas in the requisitions based on relative racial proportions of the men subject to call.” Whether or not that would violate the quota provisions of § 4(b), it is obvious that such a system, substantially following population trends, is more likely to come closer to calling the Negroes in their proper turn than does the one actually employed. The same is true of induction of Negroes “in accordance with the ratio they bear to the population,” also referred to in the opinion.
The Congressman quotes from a Louisiana newspaper a statement that from a certain parish in that State there have been called for military service a group of men with pre-Pearl Harbor children, while 267 Negro single men remain on the Class 1-A list, and that both white and Negro citizens are disturbed by the discrimination.