Perez v. Sharp

SHENK, J.

I dissent.

The power of a state to regulate and control the basic social relationship of marriage of its domiciliaries is here challenged and set at nought by a majority order of this court arrived at not by a concurrence of reasons but by the end result of four votes supported by divergent concepts not supported by authority and in fact contrary to the decisions in this state and elsewhere.

It will be shown that such laws have been in effect in this country since before our national independence and in this state since our first legislative session. They have never been declared unconstitutional by any court in the land although frequently they have been under attack. It is difficult to see why such laws, valid when enacted and constitutionally enforceable in this state for nearly 100 years and elsewhere for a much longer period of time, are now unconstitutional under the same Constitution and with no change in the factual situation. It will also be shown that they have a valid legislative purpose even though they may not conform to the sociogenetic views of some people. When that legislative purpose appears it is entirely beyond judicial power, properly exercised, to nullify them.

This proceeding, therefore, involves a most important state function long since recognized as such. Indeed as late as June 7, 1948, it has been recognized by the Supreme Court of the United States “that the regulation of the incidents of the marital relation involves the exercise by the states of powers of the most vital importance.” (Sherrer v. Sherrer, 334 U.S. 343 [ 68 S.Ct. 1087 , 92 L.Ed. -].) Because of the far-reaching effect of an order of this court in connection *743 with this basic social relationship the subject is worthy of somewhat extended discussion in support of our statutes.

According to the verified petition for the writ of mandamus to compel the issuance of a marriage license, Andrea D. Perez is a white person and Sylvester S. Davis, Jr'., is a Negro. Respondent county clerk rests his refusal to issue a certificate and license to them on the ground that he is expressly prohibited from so doing by the provisions of section 69 of the Civil Code, and upon the further ground that their purported marriage in this state would be illegal and void. (Civ. Code, § 60.)

Section 69 of the Civil Code contains the following proviso: “. . . no license may be issued authorizing the marriage of a white person with a Negro, mulatto, Mongolian or member of the Malay race.” And complementary section 60 of the same code reads: “All marriages of white persons with negroes, Mongolians, members of the Malay race, or mulattoes are illegal and void.”

Petitioners first contend that the above quoted statutory provisions deprive them of the religious freedom guaranteed by the First and Fourteenth Amendments of the federal Constitution and article I, section 4, of the Constitution of this state. They allege that they are members and communicants of the Roman Catholic Church; that it is the dogma, belief and teaching of the church that a person of the white race and a person of the Negro race, if otherwise eligible, are entitled to receive conjointly the sacrament of matrimony and to intermarry; that the refusal of respondent to issue the license denies to them the right to participate fully in the sacramental life of the religion in which they believe, prohibits the free exercise by them of their religion, and violates the guaranty of the free exercise and enjoyment of their religious profession and worship. It is further alleged that section 69 of the Civil Code is arbitrary, capricious and without reasonable relation to any purpose within the competency of the state to effect.

Respondent on the other hand contends that the classifications contained in sections 60 and 69 of the Civil Code do not transgress the petitioners’ freedom of religious worship; that such classifications are reasonably designed to promote the general welfare and the interests of individual members of the races mentioned, and that the regulation is therefore a proper exercise of the police power of the state.

*744 At the outset it may be noted that the petitioners’ alleged right to marry is not a part of their religion in the broad sense that it is a duty enjoined by the church, or that penalty and punishment may in some manner ensue (cf. Reynolds v. United States, 98 U.S. 145, 161 [ 25 L.Ed. 244 ]); but rather that their marriage is permissive under the dogma, beliefs and teaching of the church to which they claim membership and that the sacrament of matrimony will be administered to them by a priest of the church if and when a license issues. In this connection Father John La Farge, executive editor of “America,” the national Catholic weekly, in a book entitled “The Race Question and The Negro” (Permissu Superiorum), (1943), states at page 196: “The Catholic Church does not impose any impediment, diriment impediment, upon racial intermarriage, in spite of the Church’s great care to preserve in its utmost purity the integrity of the marriage bond.

“On the other hand, where such intermarriages are prohibited by law, as they are in several states of the Union, the Church bids her ministers to respect these laws, and to do all that is in their power to dissuade persons from entering into such unions. ’ ’

The foregoing is mentioned to show that the attitude of the church has no particular bearing on the asserted rights of the petitioners. Its attitude is one of respect for local laws and an admonition to its clergy to advise against their infringement.

Other considerations are presented in connection with petitioners’ contentions that their religious liberty is being infringed. The First Amendment to the United States Constitution declares that Congress shall make no law respecting an establishment of religion or prohibit the free exercise thereof. The due process of law clause of the Fourteenth Amendment embraces this fundamental concept of liberty as expressed in the First Amendment and renders the states likewise incompetent to transgress it. However, this religious liberty “embraces two concepts,—freedom to believe and freedom to act. The first is absolute but, in the nature of things, the second cannot be.” (Cantwell v. Connecticut, 310 U.S. 296, 303 [ 60 S.Ct. 900 , 84 L.Ed. 1213 , 128 A.L.R. 1352 ]; Murdock v. Pennsylvania, 319 U.S. 105, 110 [ 63 S.Ct. 870, 891 , 87 L.Ed. 1292 , 146 A.L.R. 81 ]; Gospel Army v. City of Los Angeles, 27 Cal.2d 232 [ 163 P.2d 704 ].) It has long *745 been held that conduct, consisting of practices and acts, remains subject to regulation for the health, safety and general welfare. For example, a legislative determination that monogamy is the “law of social life” has been held to prevail over the practice of polygamy and bigamy as a duty required, encouraged or suffered by religion. (Reynolds v. United States, supra, 98 U.S. 145 ; Davis v. Beason, 133 U.S. 333 [ 10 S.Ct. 299 , 33 L.Ed. 637 ]; Cleveland v. United States, 329 U.S. 14 [ 67 S.Ct. 13 , 91 L.Ed. 12 ].)

The reasoning behind this construction of the Constitution is obvious. The determination of proper standards of behavior must be left to the Congress or to the state legislatures in order that the well being of society as a whole may be safeguarded or promoted. The protection of the individual’s exercise of religious worship afforded by our state Constitution, article I, section 4, corresponds with that furnished by the federal guaranty as interpreted by the United States Supreme Court. Our Constitution expressly provides that the free exercise of religion guaranteed “shall not be so construed as to . . . justify practices inconsistent with the peace or safety of this State.”

Moreover, the' right of the state to exercise extensive control over the marriage contract has always been recognized. The institution of matrimony is the foundation of society, and the community at large has an interest in the maintenance of its integrity and purity. (Sharon v. Sharon, 15 Cal. 1 [ 16 P. 345 ]; 16 Cal.Jur. 909.) The Supreme Court of the United States has stated: “Marriage, as creating the most important relation in life, as having more to do with the morals and civilization of a people than any other institution, has always been subject to the control of the legislature.” (Maynard v. Hill, 125 U.S. 190, 205 [ 8 S.Ct. 723 , 31 L.Ed. 654 ].) And: “Marriage, while from its very nature a sacred obligation, is nevertheless, in most civilized nations, a civil contract, and usually regulated by law. Upon it society may be said to be built, and out of its fruits spring social relations and social obligations and duties, with which government is necessarily required to deal.” (Reynolds v. United States, supra, 98 U.S. 145, 165 .) In the language of the Supreme Court of Missouri: ‘ ‘ The right to regulate marriage, the age at which persons may enter into that relation, the manner in which the rites may be celebrated, and the persons between whom it may be contracted, has been assumed and exercised by every *746 civilized and Christian nation.” (State v. Jackson, 80 Mo. 175, 179 [ 50 Am.Rep. 499 ].) Further: “There can be no doubt as to the power of every country to make laws regulating the marriage of its own subjects; to declare who may marry, how they may marry, and what shall be the legal consequences of their marrying. The right to regulate the institution of marriage; to classify the parties and persons who may lawfully marry; to dissolve the relation by divorce; and to impose such restraints upon the relation as the laws of God, and the laws of propriety, morality and social order demand, has been exercised by all civilized governments in all ages of the world.” (Kinney v. The Commonwealth, 30 Gratt. (Va.) 858, 862 [ 32 Am.Rep. 690 ].)

S is apparent from what has been said that if the law under attack bears a substantial relationship to the health, safety, morals or some other phase of the general welfare of the people of this state, it would not be invalid because incidentally in conflict with the conduct and practice of a particular religious group. Similarly if there is a rational basis for the law, if it is reasonable, and all within a given class are treated alike, there is no violation of the due process or equal protection clauses of the Fourteenth Amendment to the United States Constitution) (See Missouri ex rel. Gaines v. Canada, 305 U.S. 337 [ 59 S.Ct. 232 , 83 L.Ed. 208 ]; Buck v. Bell, 274 U.S. 200 [ 47 S.Ct. 584 , 71 L.Ed. 1000 ]; Radice v. New York, 264 U.S. 292 [ 44 S.Ct. 325 , 68 L.Ed. 690 ]; Patsone v. Pennsylvania, 232 U.S. 138 [ 34 S.Ct. 281 , 58 L.Ed. 539 ]; Noble State Bank v. Haskell, 219 U.S. 104 [ 31 S.Ct. 186 , 55 L.Ed. 112 ].)

The prohibition of miscegenetie marriage is not a recent innovation in this state nor is such a law by any means unique among the states. A short history of miscegenetie marriage laws in this state and elsewhere will contribute to a better understanding of the problem at hand. A law declaring marriages between white persons and Negroes to be illegal and void was enacted at the first session of our Legislature. (Stats. 1850, eh. 140, p. 424.) Section 60 of the Civil Code declaring certain marriages invalid has existed since the advent of our codes in 1872, at which time it extended only to intermarriage between white persons and Negroes or mulattoes. It succeeded the prohibition against such marriages found in the above-mentioned statutes of 1850. Section 60 was amended in 1905 to include marriages between white persons and Mongolians (Stats. 1905, p. 554). The provisions of the law here at *747 tacked have remained unchallenged for nearly one hundred years and have been unchanged so far as the marriage of whites with Negroes is concerned. To indicate that the subject matter is not merely of ancient legislative consideration it should be noted that in 1933 the District Court of Appeal decided that sections 60 and 69 did not prohibit the marriage in this state of a white woman and a Filipino—a member of the Malay race (Roldan v. Los Angeles County, 129 Cal.App. 267 [ 18 P.2d 706 ]). That ease was decided on January 27, 1933. Without delay the Legislature amended both sections to extend the prohibition to marriages also as between white persons and members of the Malay race. The amendatory measures passed both houses of the Legislature and were signed by the governor on April 20th of the same year (Stats. 1933, p. 561) thus rendering nugatory the decision in the Roldan case—which was the obvious purpose of the legislation. As above indicated the present concern with the legislation is only as it affects marriages between white persons and Negroes.

Twenty-nine states in addition to California have similar laws. (Rhodes, “Annullment of Marriage” (1945); Charles S. Manguin, Jr., “The Legal Status of the Negro” (1940).) Six of these states have regarded the matter to be of such importance that they have by constitutional enactments prohibited their legislatures from passing any law legalizing marriage between white persons and Negroes or mulattoes. Several states refuse to recognize such marriages even if performed where valid (see Charles S. Manguin, Jr., “The Legal Status of the Negro” (1940); In re Takahashi's Estate, 113 Mont. 490 [ 129 P.2d 217 ]), particularly if an attempt has been made by residents of a state to evade the law (Eggers v. Olson, 104 Okla. 297 [ 231 P. 483 ]; State v. Kennedy, 76 N.C. 251 [ 22 Am.Rep. 683 ]). The infrequency of such unions is perhaps the chief reason why prohibitive laws are not found in the remaining states. (Reuter, “Race Mixture” (1931), p. 39; Rhodes, “Annullment of Marriage” (1945), pp. 101, 102.)

The ban on mixed marriages in this country is traceable from the early colonial period. For example, Maryland forbade the practice of marriage unions between Negroes or Indians and white persons as early as 1663. Laws forbidding marriages between Negroes and whites were passed in Massachusetts in 1705, in Delaware in 1721, in Virginia in 1726, *748 and in North Carolina in 1741. In 1724, it was decreed in France that no Negro-white marriages were to take place in Louisiana. Most of the remaining states enacted similar legislation in the period between the formation of the United States and the Civil War.

Eeseareh has not disclosed a single case where a miscegenetic marriage law has been declared invalid. As stated in Estate of Monks, 48 Cal.App.2d 603, 612 [ 120 P.2d 167 ] : “Many states have statutes prohibiting such alliances, and we have had presented no instance of successful constitutional attacks upon them or any of them.” Not only the state courts but the federal courts as well have uniformly sustained the validity of such laws. One of the most recent decisions upon the subject is that of the United States Circuit Court of Appeals for the 10th Circuit in the case of Stevens v. United States, 146 F.2d 120, 123 , decided December 18, 1944. The court there said: “Section 12 [Title 43, Oklahoma St. 1941], making unlawful marriages between persons of African descent and persons of other races or descents is challenged on the ground that it violates the Fourteenth Amendment. Marriage is a consentient covenant. It is a contract in the sense that it is entered into by agreement of the parties. But it is more than a civil contract between them, subject to their will and pleasure in respect of effects, continuance, or dissolution. It is a domestic relation having to do with the morals and civilization of a people. It is an essential institution in every well organized society. It affects in a vital manner public welfare, and its control and regulation is a matter of domestic concern within each state. A state has power to prescribe by law the age at which persons may enter into marriage, the procedure essential to constitute a valid marriage, the duties and obligations which it creates, and its effect upon the property rights of both parties. Maynard v. Hill, 125 U.S. 190 [ 8 S.Ct. 723 , 31 L.Ed. 654 ]. And within the range of permissible adoption of policies deemed to be promotive of the welfare of society as well as the individual members thereof, a state is empowered to forbid marriages between persons of African descent and persons of other races or descents. Such a statute does not contravene the Fourteenth Amendment. ”

In Pace v. Alabama, 106 U.S. 583 [ 1 S.Ct. 637 , 27 L.Ed. 207 ], the United States Supreme Court had before it a statute of the State of Alabama declaring that “if any white person and any negro . . . intermarry or live in adultery or *749 fornication with each other, each of them must, on conviction, be imprisoned in the penitentiary or sentenced to hard labor for the county for not less than two nor more than seven years.” A Negro man and white woman had been convicted in the courts of Alabama of fornication. Upon writ of error to the United States Supreme Court it was contended that the statute was in conflict with the equal protection of law clause of the United States Constitution because greater punishment was provided than by another law relating to the same offense committed by peoples of the same race. The Supreme Court of the United States in upholding the statute and affirming the judgment of conviction stated: “The defect in the argument of counsel consists in his assumption that any discrimination is made by the laws of Alabama in the punishment provided for the offense for which the plaintiff in error was indicted when committed by a person of the African race and when committed by a white person. The two sections of the code cited are entirely consistent. The one prescribes, generally, a punishment for an offense committed between persons of different sexes; the other prescribes a punishment for an offense which can only be committed where the two sexes are of different races. . . . Whatever discrimination is made in the punishment prescribed in the two sections is directed against the offense designated and not against the person of any particular color or race. The punishment of each offending person, whether white or black, is the same. ’ ’

In State v. Tutty, 41 F. 753 [ 7 L.R.A. 50 ], where a statute was held not in deprivation of rights under the federal Constitution, it was said: “The court will not discuss the argument of defendants’ counsel to the effect that the intermarriages of whites and blacks do not constitute an evil or an injury against which the state should protect itself. This is a question which has been, as we have seen, the subject of repeated judicial deliverances; but it is more properly, in the opinion of this court, within the range of legislative duty. It is enough, for the purpose of its duty, for the court to ascertain that by a legitimate and settled policy the state of Georgia has declared such marriages unlawful and void; for while, in this country, the home life of the people, their decency and their morality, are the bases of that vast social structure of liberty, and obedience to law, which excites the patriotic pride of our countrymen and the admiration of the *750 world, and while these attributes of our citizenship should be cherished and protected by all in authority, and the creatures who defy them should be condemned by all, the courts, in their judicial functions, are rarely concerned with the policy of the laws which are made to protect the community. The policy of the state upon this subject has been declared, as we have seen, by its supreme court as well as by its statutes, and it is enough to say that this court is unable to discover anything in that policy with which the federal courts have the right or the power to interfere.”

In Scott v. State of Georgia, 39 Ga. 321 , the Supreme Court of Georgia said of a provision of the state Constitution prohibiting marriages between whites and Negroes, and declaring all such marriages void: “With the policy of this law we have nothing to do. It is our duty to declare what the law is, not to make law. For myself, however, I do not hesitate to say that it was dictated by wise statesmanship, and has a broad and solid foundation in enlightened policy, sustained by sound reason and common sense. The amalgamation of the races is not only unnatural, but is always productive of deplorable results. . . . The power of the Legislature over the subject matter when the Code was adopted, will not, I suppose, be questioned. The Legislature certainly had as much right to regulate the marriage relation by prohibiting it between persons of different races as they had to prohibit it between persons within the Levitical degrees, or between idiots. Both are necessary and proper regulations. And the regulation now under consideration is equally so. ”

In State v. Jackson, supra ( 80 Mo. 175 ), the Supreme Court of Missouri reversed a judgment sustaining a demurrer to an indictment charging a white woman with violation of a statute making marriages between white persons and Negroes a felony. The court said that the law might “interfere with the tastes of negroes who want to marry whites, or whites who wish to intermarry with negroes, but the State has the same right to regulate marriage in this respect that it has to forbid the intermarriage of cousins and other blood relations. If the State desires to preserve the purity of the African blood by prohibiting intermarriage between whites and blacks, we know of no power on earth to prevent such legislation. It is a matter of purely domestic concern. The 14th amendment to the Constitution of the United States . . . has no such scope as seems to have been accorded it by the circuit court. . . . All of one’s rights as a citizen of the United States *751 will be found guaranteed by the Constitution of the United States. If any provision of that instrument confers upon a citizen the right to marry any one who is willing to wed him, our attention has not been called to it. If such be one of the rights attached to American citizenship all our marriage acts forbidding intermarriage between persons within certain degrees of consanguinity are void . . . [T]he condition of a community, moral, mental and physical, which would tolerate indiscriminate intermarriage for several generations, would demonstrate the wisdom of laws which regulate marriage and forbid the intermarriage of those nearly related in blood. ’ ’

The Supreme Court of Oklahoma, in Eggers v. Olson, supra ( 104 Okla. 297 [ 231 P. 483, 486 ]), said: “The inhibition, like the incestuous marriage, is in the blood, and the reason for it is stronger still.” The court quoted from 18 R.C.L., section 31, p. 409, in part, as follows: “ 1 Civilized society has the power of self preservation, and, marriage being the foundation of such society, most of the states in which the negro forms an element of any note have enacted laws inhibiting intermarriage between the white and black races . . . Statutes forbidding intermarriage by the white and black races were without doubt dictated by wise statesmanship, and have a broad and solid foundation in enlightened policy, sustained by sound reason and common sense. The amalgamation of the races is not only unnatural, but is always productive of deplorable results. The purity of the public morals, the moral and physical development of both races, and the highest advancement of civilization, under which the two races must work out and accomplish their destiny, all require that they should be kept distinctly separate, and that connections and alliances so unnatural should be prohibited by positive law and subject to no evasion.’ ”

The miscegenation law of our neighboring state of Oregon (Ore. L., § 2163) was held valid by the Supreme Court of that state in In re Paquet's Estate, 101 Ore. 393 [ 200 P. 911 ]. In so holding the court directed attention to 8 R.C.L. section 381 where it is said: “Miscegenation is a purely statutory offense, consisting in the intermarriage of a person of the white race with a negro or colored person. Most states in which the negro or colored people form an appreciable element have enacted these laws inhibiting intermarrying between the white and black races, and the offense thereby created is usually of the grade of a felony. There can be no doubt as *752 to the power of every country to make laws regulating the marriage of its own subjects; to declare who may marry, how they may marry, and what shall be the legal consequences of their marrying; and accordingly, although miscegenation statutes have been persistently attacked on the ground that they are violative of the United States Constitution, they have been universally upheld as a proper exercise of the power of each state to control its own citizens.” (See also 36 Am.Jur., Miscegenation, § 3.)

The foregoing views are representative of the general tenor of judicial opinion which has been expressed elsewhere. Without further amplification reference may be made to cases in Arizona (State v. Pass (1942), 59 Ariz. 16 [ 121 P.2d 882 ]; Kirby v. Kirby (1922), 24 Ariz. 9 [ 206 P. 405 ]), in Colorado (Jackson v. City and County of Denver (1942), 109 Colo. 196 [ 124 P.2d 240 ]), in Montana (In re Takahashi's Estate, supra, (1942), 113 Mont. 490 [ 129 P.2d 217 ] —Japanese-White), in Alabama (Green v. State (1877), 58 Ala. 190 [ 29 Am.Rep. 739 ]), in Virginia (Kinney v. The Commonwealth, supra (1878), 30 Gratt. 858 [ 32 Am.Rep. 690 ]), in Indiana (State v. Gibson (1871), 36 Ind. 389 [ 10 Am.Rep. 42 ]), in Arkansas (Dodson v. State (1895), 61 Ark. 57 [ 31 S.W. 977 ]), in Texas (Frasher v. State (1877), 3 Tex.App. 263 [ 30 Am.Rep. 131 ]), in Tennessee (Lonas v. State (1871), 50 Tenn. (3 Heisk.) 287 ), in Pennsylvania (Philadelphia & West Chester R. R. Co. v. Miles, 2 Am.Law Rev. 358).

The foregoing authorities form an unbroken line of judicial support, both state and federal, for the validity of our own legislation, and there is none to the contrary. Those authorities appear to have passed upon all attacks on such legislation on constitutional grounds, but notwithstanding their unanimity it is declared by some of the majority that there is a sort of racial discrimination which solely formed the basis for the enactments and by another of the majority that the constitutional guarantee of freedom of religion has been infringed. However, it is the law that if there is some factual background for the legislation, that circumstance forms an appropriate reason for the enactments, and it is then proper to consider the rules of law which govern the courts in that connection.

In passing upon the validity of any statutory enactment the power of the courts is not unlimited. It is circumscribed by well recognized rules, some of which as applicable to the *753 case are: that all presumptions and intendments are in favor of the constitutionality of a statute; that all doubts are to be resolved in favor of and not against the validity of a statute; that before an act of a coordinate branch of our government can be declared invalid by the courts for the reason that it is in conflict with the Constitution, such conflict must be clear, positive and unquestionable; that in the case of any fair, reasonable doubt of its constitutionality the statute should be upheld, and the doubt be resolved in favor of the expressed will of the Legislature; that it is also to be presumed that the Legislature acted with integrity and with a purpose to keep within the restrictions and limitations laid down in the fundamental law; that when the constitutionality of a statute depends on the existence of some fact or state of facts, the determination thereof is primarily for the Legislature and the courts will acquiesce therein unless the contrary clearly appears; that the enactment of the statute implies, and the conclusive presumption is, that the Governor and the members of the Legislature have performed their duty, and have ascertained the existence of facts justifying or requiring the legislation; that this is true even in the absence of an express finding of those facts embodied in the act; and that the courts may not question or review the legislative determination of the facts. (5 Cal.Jur., p. 628 et seq., and the many cases there cited.) These presumptions apply with particular emphasis to statutes passed in the exercise of the police power (11 Am.Jur., p. 1088, and many cases cited).

A recent statement by this court recognizes the general rule. In In re Porterfield, 28 Cal.2d 91, 103 [ 168 P.2d 706 , 167 A.L.R. 675 ], with supporting authorities, it is said: “Constitutionality of purpose and application is generally to be presumed. It has often been said that it is only when it clearly appears that an ordinance or statute passes definitely beyond the limits which bound the police power and infringes upon rights secured by the fundamental law, that it should be declared void.”

Pertinent to the immediate question is Galeener v. Honeycutt, 173 Cal. 100, 104 [ 159 P. 595 ]. This court there approved the doctrine announced in earlier cases. It was said that it had never since been questioned that, when the right to enact a law depends upon the existence of a fact, the passage of the act implies, and the conclusive presumption is, that the *754 existence of the fact has been ascertained by the legislative body. (See also In re Spencer, 149 Cal. 396, 400 [ 86 P. 896 , 117 Am.St.Rep. 137 , 9 Ann.Cas. 1105]; Martin v. Superior Court, 194 Cal. 93, 101 [ 227 P. 762 ]; Pacific Gas & Elec. Co. v. Moore, 37 Cal.App.2d 91, 95 [ 98 P.2d 819 ].)

It is not within the province of the courts to go behind the findings of the Legislature and determine that conditions did not exist which gave rise to and justified the enactment. Only when, beyond reasonable doubt, all rational men would agree that the factual background did not warrant the enactment of a statute which was ostensibly designed to preserve the general welfare can we say that a statute is arbitrary and capricious. (In re Miller, 162 Cal. 687 [ 124 P. 427 ]; People v. George, 42 Cal.App.2d 568 [ 109 P.2d 404 ].) It is a well settled rule of constitutional exposition, that if a statute may or may not be, according to the circumstances, within the limits of legislative authority, the existence of the circumstances necessary to support it must be presumed. (Sweet v. Rechel, 159 U.S. 380, 393 [ 16 S.Ct. 43 , 40 L.Ed. 188 ].) When a question of fact is debated and debatable, and the extent to which a special constitutional limitation should be applied is under consideration, the conclusion may properly be influenced by a widespread and long continued belief concerning it, and this is within judicial cognizance. (Muller v. Oregon, 208 U.S. 412, 421 [ 28 S.Ct. 324 , 52 L.Ed. 551 ].)

The Legislature is, in the first instance, the judge of what is necessary for the public welfare. Earnest conflict of opinion makes it especially a question for the Legislature and not for the courts. (Erie R. R. Co. v. Williams, 233 U.S. 685, 699, 701 [ 34 S.Ct. 761 , 58 L.Ed. 1155 ], citing other cases.) “It is established that a distinction in legislation is not arbitrary, if any state of facts reasonably can be conceived that would sustain it, and the existence of that state of facts at the time the law was enacted must be assumed. ... It makes no difference that the facts may be disputed or their effect opposed by argument and opinion of serious strength. It is not within the competency of the courts to arbitrate in such contrariety. . . . And it is not required that we ... be convinced of the wisdom of the legislation.” (Rast v. Van Deman & Lewis Co., 240 U.S. 342, 357, 365-366 [ 36 S.Ct. 370 , 60 L.Ed. 679 ], citing cases.) “We need not labor the point, long settled, that where legislative action is within the scope of the police power, fairly debatable questions as to its reasonableness, wisdom and propriety are not for the determination of the courts, but *755 for that of the legislative body on which rests the duty and responsibility of decision. . . . We may not test in the balances of judicial review the weight and sufficiency of the facts to sustain the conclusion of the legislative body ...” (Standard Oil Co. v. Marysville, 279 U.S. 582, 584, 586 [ 49 S.Ct. 430 , 73 L.Ed. 856 ], and cited cases.) Underlying questions of fact which may condition the constitutionality of legislation carry with them the presumption of constitutionality in the absence of some factual foundation of record for overthrowing the statute. (O'Gorman & Young v. Hartford F. Ins. Co., 282 U.S. 251, 257-258 [ 51 S.Ct. 130 , 75 L.Ed. 324 ].)

Again the United States Supreme Court has reiterated in Borden's F. P. Co. v. Baldwin, 293 U.S. 194 , at page 209 [ 55 S.Ct. 187 , 79 L.Ed. 281 ] : “When the classification made by the legislature is called in question, if any state of facts reasonably can be conceived that would sustain it, there is a presumption of the existence of that state of facts, and one who assails the classification must carry the burden of showing by a resort to common knowledge or other matters which may be judicially noticed, or to other legitimate proof, that the action is arbitrary. . . . The principle that the State has a broad discretion in classification, in the exercise of its power of regulation, is constantly recognized by this Court.” (People v. Western Fruit Growers, 22 Cal.2d 494, 506-508 [ 140 P.2d 13 ]; Western U. Tel. Co. v. Hopkins, 160 Cal. 106, 122 [ 116 P. 557 ]; Postal Tel. Cable Co. v. County of Los Angeles, 160 Cal. 129 [ 116 P. 566 ].) Whether the legislation is wise or unwise as a matter of policy is a question with which the courts are not concerned. (Home Bldg. & L. Assn. v. Blaisdell, 290 U.S. 398, 447-448 [ 54 S.Ct. 231 , 78 L.Ed. 413 , 88 A.L.R. 1481 ].)

Courts are neither peculiarly qualified nor organized to determine the underlying questions of fact with reference to which the validity of the legislation must be determined. Differing ideas of public policy do not properly concern them. The courts have no power to determine the merits of conflicting theories, to conduct an investigation of facts bearing upon questions of public policy or expediency, or to sustain or frustrate the legislation according to whether they happen to approve or disapprove the legislative determination of such questions of fact. (Norman v. Baltimore & O. R. Co., 294 U.S. 240 [ 55 S.Ct. 407 , 79 L.Ed. 885 , 95 A.L.R. 1352 ], affirming 265 N.Y. 37 [ 191 N.E. 726 , 92 A.L.R. 1523 ]; 11 Am.Jur. pp. 823, 824, and cases cited; see article, “Judicial *756 Determination of Questions of Fact Affecting the Constitutional Validity of Legislative Action,” 38 Harv.L.Rev. 6.) The fact that the finding of the Legislature is in favor of the truth of one side of a matter as to which there is still room for difference of opinion is not material. What the people’s legislative representatives believe to be for the public good must be accepted as tending to promote the public welfare. It has been said that any other basis would conflict with the spirit of the Constitution and would sanction measures opposed to a republican form of government. (Atlantic Coast Line R. Co. v. Georgia, 234 U.S. 280 [ 34 S.Ct. 829 , 58 L.Ed. 1312 ]; Viemeister v. White, 179 N.Y. 235 [ 72 N.E. 97 , 103 Am.St.Rep. 859 , 1 Ann.Cas. 334, 70 L.R.A. 796 ]; State ex rel. Sullivan v. Dammann, 227 Wis. 72 [ 277 N.W. 687 ] ; Stettler v. O'Hara, 69 Ore. 519 [ 139 P. 743 , Ann.Cas. 1916A 217, L.R.A. 1917C 944 ], affirmed 243 U.S. 629 [ 37 S.Ct. 475 , 61 L.Ed. 937 ].)

Text and authorities which constitute the factual basis for the legislative finding involved in the statute here in question indicate only that there is a difference of opinion as to the wisdom of the policy underlying the enactments.

Some of the factual considerations which the Legislature could have taken into consideration are disclosed by an examination of the sources of information on the biological and sociological phases of the problem and which may be said to form a background for the legislation and support the reasoning found in the decisions of the courts upholding similar statutes. A reference to a few of those sources of information will suffice.

On the biological phase there is authority for the conclusion that the crossing of the primary races leads gradually to retrogression and to eventual extinction of the resultant type unless it is fortified by reunion with the parent stock. (W. A. Dixon, M. D., Journal of American Medical Association, vol. 20, p. 1 (1893); Frederick L. Hoffman, statistician, Prudential Life Insurance Co. of America, American Economics Association, vol. 11 (1896) “Race Traits and Tendencies of the American Negro”; O. E. Woodruff, “The Expansion of Races” (1909).) In September, 1927, in an article entitled, “Race Mixture,” which appeared in “Science,” volume 66, page X, Dr. Charles B. Davenport of the Carnegie Foundation of Washington, Department of Experimental Evolution, said: “In the absence of any uniform rule as to consequences of race crosses, it is well to discourage it except in those cases where, as *757 in the Hawaiian-Chinese crosses, it clearly produces superior progeny,” and that the Negro-white and Filipino-European crosses do not seem to fall within the exception.

In volume 19 of the Encyclopedia Americana (1924), page 275, it is said: “The results of racial intermarriage have been exceedingly variable. Sometimes it has produced a better race. This is the case when the crossing has been between different but closely allied stocks. . . . Prof. U. G-. Weatherly writes: ‘It is an unquestionable fact that the yellow, as well as the negroid peoples possess many desirable qualities in which the whites are deficient. From this it has been argued that it would be advantageous if all races were blended into a universal type embodying the excellencies of each. But scientific breeders have long ago demonstrated that the most desirable results are secured by specializing types rather than by merging them.

“.‘The color line is evidence of an attempt, based on instinctive choice, to preserve those distinctive values which a racial group has come to regard as of the highest moment to itself. ’ ’ ’

In an address before the Commonwealth Club of California on July 9, 1948, Mr. William Gemmill, South African delegate to the International Labor Organization and one well acquainted with social conditions and sociological manifestations in that continent, made the statement that in South Africa, where the European population is greatly outnumbered by the natives, both classes are adamant in opposition to intermarriage and that the free mixing of all the races could in fact only lower the general level.

A collection of data and references on the result of miscegenation is found in “The Menace of Color” (1925) by J. W. Gregory (F.R.S., D.Se., Professor of Geology in the University of Glasgow). On page 227 he says that the intermixtures which have been beneficial to the progress of mankind have been between nearly related peoples and that the results of a mixture of widely divergent stock serve to warn against the miscegenation of distinct races. Dr. J. A. Mjoen of the Winderen Laboratory, Norway, is credited by Professor Gregory (at p. 229) with the conclusion from special studies that the evidence is sufficient to call for immediate action against the intermarriage of widely distinct races. Gregory states that where two such races are in contact the inferior qualities are not bred out, but may be emphasized in the progeny, a principle widely expressed in modern eugenic literature. Similar views asserting *758 the unfortunate results of crossings between dissimilar races, including the American Negro-white, are ascribed by the author to Prof. H. Lundborg (1922); E. D. Cope, American geologist; Elwang (1904); Prof. N. S. Shaler (1904); Emile Gaboriau and Gustav Le Bon, France; F. L. Hoffman of the Prudential Insurance Co. of America (1923); Prof. A. E. Jenks; and Herbert Spencer (1892).

In March, 1926, the Carnegie Institution of Washington, D. C., accepted a gift from one who expressed his interest in the problem of race crossing with special reference to its significance for the future of any country containing a mixed population. The work was undertaken by the Department of Genetics, Carnegie Institution. An advisory committee was organized consisting of W. Y. Bingham, Charles B. Davenport, E. L. Thorndike, and Clark Wissler. Mr. Morris Steggerda was selected as field investigator. Mr. Steggerda had had excellent training in genetics and psychology, and had shown a marked fitness for the study and analysis of the individual. The main project was carried out in Jamaica, B.W.I., by studying in detail and comparatively, 100 each of adults of full-blooded Negroes (Blacks), Europeans (Whites), and White-Black mixtures of all degrees (Brown). Half of the hundred were of each sex. In addition to the main project some 1,200 children of school and preschool age were observed and measured. Finally in 1929, an extensive report was published by the Carnegie Institution, in book form entitled “Race Crossing in Jamaica,” by B. C. Davenport and Morris Steggerda, in collaboration with others. The results of their investigation indicated that the crossing of distinct races is biologically undesirable and should be discouraged.

W. E. Castle, Bussey Institution, Harvard University, in an article entitled “Biological and Social Consequences of Race Crossing,” printed in volume 9, American Journal of Physical Anthropology (April, 1926), states on page 152: “If all inheritance of human traits were simple Mendelian inheritance, and natural selections were unlimited in its action among human populations, then unrestricted racial intercrossing might be recommended. But in the light of our present knowledge, few would recommend it. For, in the first place, much that is best in human existence is a matter of social inheritance, not of biological inheritance. Race crossings disturb social inheritance. That is one of its worst features. ’ ’ This then leads to a consideration of the sociological phase.

*759 The writings of Father John La Farge, S. J., are typical of many who have considered the subject of race-crosses from a sociological standpoint. Reference has been made to his work “The Race Question and the Negro” (1943). Under the heading “The Moral Aspect,” he writes: “ [T]here are grave reasons against any general practice of intermarriage between the members of different racial groups. These reasons, where clearly verified, amount to a moral prohibition of such a practice.

“These arise from the great difference of condition which is usually experienced by the members of the respective groups. It is not merely a difference of poverty or riches, of lesser or greater political power, but the fact that identification with the given group is far-reaching and affects innumerable aspects of ordinary daily life. . . .

“Where marriage is contracted by entire solitaries, such an interracial tension is more easily borne, but few persons matrimonially inclined are solitaries. They bring with them into the orbit of married life their parents and brothers and sisters and uncles and aunts and the entire social circle in which they revolve. All of these are affected by the social tension, which in turn reacts upon the peace and unity of the marriage bond.

“When children enter the scene the difficulty is further complicated unless a complete and entirely self-sacrificing understanding has been reached beforehand. And even then the social effects may be beyond their control. . . .

“In point of facts as the Negro group becomes culturally advanced, there appears no corresponding tendency to seek intermarriage with other races.”

The foregoing excerpts from scientific articles and legal authorities make it clear that there is not 03ily some but a great deal of evidence to support the legislative determination (last made by our Legislature in 1933) that intermarriage between Negroes and white persons is incompatible with the general welfare and therefore a proper subject for regulation under the police power. There may be some who maintain that there does not exist adequate data on a sufficiently large scale to enable a decision to be made as to the effects of the original admixture of white and Negro blood. However, legislators are not required to wait upon the completion of scientific research to determine whether the underlying facts carry sufficient weight to more fully sustain the regulation.

*760 A review of the subject indicates that the statutory classification was determined by the Legislature in the light of all the circumstances and requirements (see also California Physicians' Service v. Garrison, 28 Cal.2d 790, 802 [ 172 P.2d 4 , 167 A.L.R. 306 ]; Livingston v. Robinson, 10 Cal.2d 730 [ 76 P.2d 1192 ]); that under our tripartite system of government this court may not substitute its judgment for that of the Legislature as to the necessity for the enactment where it was, as here, based upon existing conditions and scientific data and belief; that even in the field of fundamental rights it has always been recognized that where the Legislature has appraised a particular situation and found a specific condition sufficiently important to justify regulation, such determination is given great weight when the law is challenged on constitutional grounds.

Those favoring present day amalgamation of these distinct races irrespective of scientific data of a cautionary nature based upon the experience of others, or who feel that a supposed infrequency of interracial unions will minimize undesirable consequences to the point that would justify lifting the prohibition upon such unions, should direct their efforts to the Legislature in order to effect the change in state policy which they espouse—as was done in Massachusetts in 1843, Kansas in 1859, New Mexico in 1866, Washington in 1868, Rhode Island in 1881, Minnesota and Michigan in 1883, and Ohio in 1887.

The contention is also advanced that the statute must fall before the equal protection clause of the Fourteenth Amendment because of lack of a sufficient showing of clear and present danger arising out of an emergency. The cases relied upon are Oyama v. California, 332 U.S. 633 [ 68 S.Ct. 269 , 92 L.Ed. --] ; Sipuel v. Board of Regents, 332 U.S. 631 [ 68 S.Ct. 299 , 92 L.Ed.-]; Railway Mail Assn. v. Corsi, 326 U.S. 88 [ 65 S.Ct. 1483 , 89 L.Ed. 2072 ] ; Hirabayashi v. United States, 320.U.S. 81 [ 63 S.Ct. 1375 , 87 L.Ed. 1774 ]; Missouri ex rel. Gaines v. Canada, supra, 305 U.S. 337 ; Williams v. International etc. of Boilermakers, 27 Cal.2d 586 [ 165 P.2d 903 ]; and James v. Marinship Corp., 25 Cal.2d 721 [ 155 P.2d 329 , 160 A.L.R. 900 ] (see also Shelley v. Kraemer and McGhee v. Sipes, 334 U.S. 1 [ 68 S.Ct. 836 , 92 L.Ed. -] ; Hurd v. Hodge, 334 U.S. 24 [ 68 S.Ct. 847 , 92 L.Ed. -]). These cases, in general, hold that legislation discriminating against particular persons, or groups of persons because of race, must have exceptional circumstances or some *761 compelling necessity as the source of enactment. These cases have been analyzed. They have widely divergent factual backgrounds and are not controlling. Here there is no lack of equal treatment. Sections 60 and 69 of our Civil Code do not discriminate against persons of either the white or Negro races. (Pace v. Alabama, supra, 106 U.S. 583 ; Jackson v. City and County of Denver, supra, 109 Colo. 196 [ 124 P.2d 240 ] ; In re Paquet’s Estate, supra, 101 Ore. 393 [ 200 P. 911 ].) Bach petitioner has the right and the privilege of marrying within his or her own group. The regulation does not rest solely upon a difference in race. The question is not merely one of difference, nor of superiority or inferiority, but of consequence and result. The underlying factors that constitute justification for laws against miscegenation closely parallel those which sustain the validity of prohibitions against incest and incestuous marriages (Pen. Code, § 285; Civ. Code, § 59; 42 C.J.S., Incest, § 1), and bigamy (Pen. Code, § 281; Civ. Code, § 61; Davis v. Beason, supra, 133 U.S. 333 ; Reynolds v. United States, supra, 98 U.S. 145 ). Moreover the argument based upon equal protection does not take into proper account the extensive control the state has always exercised over the marriage contract, nor o'f the further fact that at the very time the Constitution of the United States was being formulated miscegenation was considered inimical to the public good and was frowned upon by the colonies, and continued to be so regarded and prohibited in states having any substantial admixture of population at the time the Fourteenth Amendment was adopted. In view of this fact, and the unanimity of judicial decision sustaining such statutes, it seems impossible to believe that any constitutional guaranty was intended to prohibit this legislation.

It has been suggested that sections 60 and 69 of the Civil Code are unconstitutional because not sufficiently comprehensive. More specifically it is said that such legislation does not preclude the possibility of progeny as a result of purported marriages entered into by persons who have concealed or failed to disclose their racial origin, nor the possibility of illegitimate progeny of mixed matings or of issue from such racially mixed marriages validly contracted in other states by residents of this state. However it is definitely established that the states, in seeking a remedy, are not required to extend regulation to all cases which might possibly be reached. (Badice v. New York, supra, 264 U.S. 292 .) “They *762 may mark and set apart the classes and types of problems according to the needs and as dictated or suggested by experience.” (Skinner v. Oklahoma, 316 U.S. 535, 540 [ 62 S.Ct. 1110 , 86 L.Ed. 1655 ]; Bryant v. Zimmerman, 278 U.S. 63 [ 49 S.Ct. 61 , 73 L.Ed. 184 ].) The equal protection clause does not prevent the Legislature from recognizing “degrees of evil.” (Tigner v. Texas, 310 U.S. 141 [ 60 S.Ct. 879 , 84 L.Ed. 1124 ]; Truax v. Raich, 239 U.S. 33 [ 36 S.Ct. 7 , 60 L.Ed. 131 ].) Nor is the Legislature prevented by the equal protection clause from confining “its restrictions to those classes of cases where the need is deemed to be clearest.” (Miller y. Wilson, 236 U.S. 373, 384 [ 35 S.Ct. 342 , 59 L.Ed. 628 ] 0 “ [W]here a given situation admittedly presents a proper field for the exercise of the police power the extent of its invocation and application is a matter which lies very largely in legislative discretion.” (Zahn v. Board of Public Works, 195 Cal. 497, 514 [ 234 P. 388 ].) The need for prohibiting all miscegeny, together with administrative impracticalities inherent in any such attempt, were proper matters for the Legislature to consider. And the fact, if it be a fact, that some people contract such marriages within this state illegally, or others contract such marriages validly outside the state and subsequently reside here, does not lend support to any contention of unconstitutionality of the statute.

Finally, it is argued that sections 60 and 69 are too vague and uncertain to constitute valid regulation in that they lack definitions of descriptive terms, such as mulatto, and are uncertain as to the mode of proof of race. After almost 100 years of continuous operation of the present and preexisting similar laws, the claimed obstacles to the application of the statute are more theoretical than real. In any event the contention is not a matter for consideration in this proceeding. In the application for a marriage license the petitioner Perez states that she is a white person and the petitioner Davis states that he is a Negro. The petition for the writ contains allegations of the same facts. There is therefore no indefiniteness in the code sections that can avail the petitioners; nor is there here any problem of proof. It is the well-established rule that a charge of unconstitutionality can be raised only in a case where that issue is involved in the determination of the action, and then only by the person or a member of the class of persons adversely affected. (American Fruit Growers v. Parker, 22 Cal.2d 513 [ 140 P.2d 23 ]; In re Willing, 12 Cal.2d 591, 597 [ 86 P.2d 663 ]; Max *763 Factor & Co. v. Kunsman, 5 Cal.2d 446 [ 55 P.2d 177 ]; People v. Globe Grain & Mill. Co., 211 Cal. 121 [ 294 P. 3 ]; A. F. Estabrook Co. v. Industrial Acc. Com., 177 Cal. 767 [ 177 P. 848 ]; Estate of Monks, supra, 48 Cal.App.2d 603, 610-612 , involving the miscegenation law of Arizona—see also Kirby v. Kirby, supra, 24 Ariz. 9 [ 206 P. 405 ]; and State v. Pass, supra, 59 Ariz. 16 [ 121 P.2d 882]—Jackson v. City and County of Denver, supra, 109 Colo. 196 [ 124 P.2d 240 ], involving a miscegenation statute of that state.) Here there is no possible uncertainty in the statute as applied to the petitioners.

The alternative writ should be discharged and the peremptory writ denied.

Schauer, J., and Spence, J., concurred.

Respondent’s petition for a rehearing was denied October 28, 1948. Shenk, J., Schauer, J., and Spence, J., voted for a rehearing.