Whiteside v. Southern Bus Lines, Inc. Brief for Appellant

    United States Court of Appeals
For the Sixth Circuit

Civil Action No. 10,799

ELIZABETH WHITESIDE,
Appellant, 

vs.

SOUTHERN BUS LINES, INC.,
Appellee.

BRIEF FOR APPELLANT.

J oseph S. F reeland,
Paducah, Kentucky.

Oliver W. H ill,
Martin A. Martin,
S pottswood W. R obinson, III, 

623 North Third Street, 
Richmond 19, Virginia.

R obert L. Carter,
T hurgood Marshall,

20 West 40th Street,
New York 18, New York.

Attorneys for Appellant.



Statement of Questions Involved.

1. v Whether the rule or regulations of appellee as ap­
plied in this case, can be enforced without violating Article 
I, Section 8, of and the Fifth and Fourteenth Amendments, 
to the Federal Constitution, the Public Policy and Laws of 
the United States.

The lower court answered—Yes

Appellant contends it should be answered—No

2. Whether the carrier rule or regulation in question, 
requiring appellant solely because of her race and color 
to remove to the rear of the bus, was a reasonable rule ox- 
regulation.

The lower court answered—Yes

Appellant contends it should be answered—No



I N D E X

■ -m

PAGE
Statement of Facts_________________________________ 1

A. Statement of the Case _________________________  2

B. Errors Relied Upon____________________________  5

Argument:
I. Whether the rule or regulation of appellee, as 

applied in this case, can be enforced without vio­
lating Article I, Section 8 of, and the Fifth and 
Fourteenth Amendments to the Federal Consti­
tution, the Public Policy and Laws of the United 
States____________________ :__________________  6

II. Whether the carrier rule or regulation, requir­
ing appellant, solely because of her race and 
color, to remove to the rear of the bus was a 
reasonable rule or regulation_________________  35

Relief _____________________________________________  51

Table of Cases

Adelle v. Beaugard, 1 Mart. 183_____________________ 46
Alma Motor Co. v. Timkin-Detroit Axle Co., 329 U. S.

129 (1946) ______________________________________  19
Alston v. School Board (C. C. A., 4th), 112 F. (2d) 992 

(1940), 311 U. S. 693, 61 S. Ct. 75, 85 L. Ed. 448 
(1940)__________________________________________  23

Anderson v. Louisville & N. R. Co. (C. C. Ky.), 62 F.
46 (1894) ______________________________________ 37, 38



11

Bob-Lo Excursion Co. v. Michigan, 333 U. S. 28, 68
S. Ct. 358,__ L. Ed. _ _  (1948)________ 22, 25, 31, 33, 35

Bowman y. Chicago & N. W. R. Co., 125 U. S. 465, 8
S. Ct. 689, 31 L. Ed. 700 (1888) __________ ______- -  41

Britton v. Atlantic & C. A. L. Ry. Co., 88 N. C. 536
(1883)__________________________________________  50

Brown v. Memphis & C. R. Co. (C. C. Tenn.), 5 F. 499
(1880) ______________________    38

Buchanan v. Warley, 245 U. S. 60, 38 S. Ct. 16, 62 L.
Ed. 149 (1917) _________________________________22,50

Caminetti v. United States, 242 U. S. 470, 37 S. Ct. 192,
61 L. Ed. 442 (1917) _____________________________ 36

Carrey v. Spencer (N. T. Sup. Ct.), 36 N. Y. S. 886
(1895) ________________-________________-________37,38

Chesapeake & O. Ry. Co. v. Kentucky, 179 U. S. 338,
21 S. Ct. 101, 45 L. Ed. 244 (1900)__________ - —  26

Chicago R. I. & P. Ry. Co. v. Allison, 120 Ark. 54, 178
S. W. 401 (1915) ________________________________ 47

Chiles v. Chesapeake & O. R. Co., 218 U. S. 71, 30 S. Ct.
667, 54 L. Ed. 936 (1910) __________ -______ 26, 28, 33, 34

City of Richmond v. Deans, 281 U. S. 704, 50 S. Ct. 407,
74 L. Ed. 1128 (1930) ___________________-----—  22

Covington & C. Bridge Co. v. Kentucky, 154 U. S. 207,
14 S. Ct. 1087, 38 L. Ed. 962 (1894) ______________  37

Edwards v. California, 314 U. S. 160, 62 S. Ct. 164, 86
L. Ed. 119 (1941) _____________________________ 24, 36

Ex Parte Endo, 323 U. S. 283, 65 S. Ct. 208, 89 L. Ed.
243 (1944) ____________________________ _________  24

Gentry v. McMinnis, 33 Ky. 382 ------------- --------------------  46
Gibbons v. Ogden, 9 Wheat. 1, 6 L. Ed. 23 (1824) -------  41
Gloucester Ferry Co. v. Pennsylvania, 114 U. S. 196,

5 S. Ct. 826, 29 L. Ed. 158 (1885) ____________ -___  36
Griffin v. Griffin, 327 U. S. 220, 66 S. Ct. 556, 90 L. Ed.

635 (1946) ____________________ ______________ _
Guinn v. United States, 238 U. S. 347, 35 S. Ct. 926,

59 L. Ed. 1340, L. R. A. 1916A, 1124 (1915) _______

PAGE

18



I l l

Hall V. DeCuir, 95 U. S. 485, 24 L. Ed, 547 (1877)____27, 34
Hare v. Board of Education, 113 N. 0. 10, 18 S. E. 55 46 
Harmon v. Tyler, 273 H. S. 668, 47 S. Ct. 411, 71 L. Ed.

831 (1927) ______________________________________  22
Hart v. State, 100 Md. 596, 60A, 457 (1905) ________37,38
Hirabayashi v. United States, 320 U. S. 81, 63 S. Ct.

1375, 87 L. Ed. 1774 (1943) ______________________  24
Hoke v. United States, 227 U. S. 308, 33 S. Ct. 281, 57

L. Ed. 523 (1913) _______________________________  36
Hovey v. Elliott, 167 U. S. 409, 17 S. Ct. 841, 42 L. Ed.

215 (1897) ________________._____________________  18
Hurd v. Hodge, 334 U. S. 24, 68 S. Ct. 847, 92 L. Ed.

—  (1948) -------------------------------------------------------- 8,10
Kelly v. Washington, 302 U. S. 1, 58 S. Ct. 87, 82 L.

Ed. 3 (1937) _______________________________ _____ 41
Kerr v. EnoucK Pratt Free Library (C. C. A., 4th),

149 F. (2d) 212 (1945), cert. den. 326 U. S. 721, 66
S. Ct. 26, 90 L. Ed. 427 (1945) ___________________  23

Korematsu v. United States, 323 U. S. 214, 65 S. Ct.
193, 89 L. Ed. 194 (1944) ________________________  24

Lane v. Wilson, 307 U. S. 268, 59 S. Ct. 872, 83 L. Ed.
1281 (1939) _ ___________________________________  23

Lee v. New Orleans G. N. Ry., 125 La. 236, 51 S. 182___ 46
Leisy v. Hardin, 135 U. S. 100, 10 S. Ct. 681, 34 L. Ed.

128 (1890) ______________________________________  41
Louisville & N. R. R. v. Ritchel, 148 Ky. 701, 147 S. W.

411 (1912) _______________________ ______ ________ 47
McCabe v. Atchison T. & S. F. Ry. Co., 235 U. S. 151,

35 S. Ct. 69, 59 L. Ed. 169 (1914) ____________ 22, 37, 38
McLemore v. Commonwealth, Supreme Court of Ap­

peals of Virginia, No. 2981, April, 1945 __________  9
Matthews v. Southern Ry. System, 157 Fed. (2d) 609

(1946) ----------------------------------------------------------- ----6, 36
Minnesota Rate Cases, 230 U. S. 352, 33 S. Ct. 729, 57

L. Ed. 1511 (1913) ___________________________   41
Missouri ex rel. Gaines v. Canada, 305 U. S. 337, 59 S.

Ct. 232, 83 L. Ed. 208 (1938)____________ _________  22
Missouri K. & T. Ry. Co. of Texas v. Ball, 25 Tex. Civ. 

App. 500, 61 S. W. 327 (1901)____________________  47

PAGE



IV

Mitchell v. United States, 313 U. S. 80, 61 S. Ct. 873,
85 L. Ed. 1201 (1941) ________________ _________ 22, 36

Moreau v. Grandieh, 114 Miss. 560, 76 S. 434 __— ------  45
Morgan v. Virginia, 328 U. S. 373, 66 S. Ct. 1050, 90 L.

Ed. 1317, 165 A. L. R. 574 (1946) ---------8,10,11, 22, 33,
35, 37, 39, 40, 41

Mullins v. Belcher, 142 Ky. 673, 143 S. W. 1151 --------- 46
Neal v. Delaware, 103 U. S. 370, 26 L. Ed. 567 (1881) — 23 
New Negro Alliance v. Sanitary Grocery Co., 303 U. S.

552, 58 S. Ct. 703, 82 L. Ed. 1012 (1938) ---------------  33
Nixon v. Condon, 286 U. S. 73, 52 S. Ct. 484, 76 L. Ed.

984, 88 A. L. R. 458 (1932) ____________________ — 23
Nixon v. Herndon, 273 U. S. 576, 47 S. Ct. 446, 71 L. Ed.

759 (1927) ______________________________________  23
Norfolk & W. Ry. Co. v. Brame, 109 Va. 422, 63 S. E.

1018 (1909) ___________________________    36
Norfolk & W. Ry. Co. v. Wysor, 82 Va. 250 (1886)------ 36
Ohio Valley R y ’s. Receiver v. Lander, 104 Ky. 431, 47

S. W. 344 (1898) ________________________________ 26
Oyama v. California, 332 U. S. 633, 68 S. Ct. 269, —_

L. Ed____  (1948) ________________________ _____— 22
Plessy v. Ferguson, 163 U. S. 537, 16 S. Ct. 1138, 41 

L. Ed. 256 (1896) _________________ 26,27,28,33,34,49
Railway Mail Ass’n v. Corsi, 326 U. S. 88, 65 S. Ct.

1483 (1945) -----------------      33
Rescue Army v. Municipal Court, 331 U. S. 549 (1947) 19
Rice v. Elmore (C. C. A., 4th), 165 P. (2d) 387 (1948),

cert. den. 333 U. S. 875, 68 S. Ct. 905, —  L. Ed------
(1948)__________________________________________  23

Roberts v. City of Boston, 5 Cush. (Mass.) 198 (1849) 33
Screws v. United States, 325 U. S. 91, 65 S. Ct. 1031,

89 L. Ed. 1495 (1945) ___________ _____:-------—  10
Shelly v. Kraemer, 334 U. S. 1, 68 S. Ct. 836, 92 L. Ed.

___ (1948) _________________________ 8,13,19, 20, 25, 34
Stipuel v. Board of Regents, 332 U. S. 631, 68 S. Ct.

299, 92 L. Ed. 256 (1948) -----------------------------------  22

PAGE



V

Smith v. Allwright, 319 U. S. 738, 64 S. Ct. 757, 88 L.
Ed. 987 (1944) __________________________________  23

South Florida E. Co. v. Rhoads, 25 Fla. 40, 5 So. 623,
3 L. E. A. 733, 737 (1889)________________________  25

Southern Pacific Co. v. Arizona, 325 U. S. 761, 65 S. Ct.
1515, 89 L. Ed. 1915 (1945)_____________________  41

State v. Galveston H. & S. A. Ey. Co. (Tex. Civ. App.),
184 S..W. 227 (1916)___________________________  38

State v. Jenkins, 124 Md. 376, 92A, 773 (1914)_______37, 38
State v. Treadaway, 126 La. 300, 52 S. 500-___________  46
State ex rel. Abbott v. Hicks, 44 La. Ann. 770, 11 S. 75

(1892)-------------------------------------------------------------------26, 38
Steele v. Louisville & N. R. Co., 323 U. S. 192, 65 S. Ct.

226, 89 L. Ed. 173 (1944)__________________________ 24, 33
Strauder v. West Virginia, 100 U. S. 303, 307, 25 L. Ed.

664 (1880) _____________________________________ 21, 23
Takahashi v. Fish & Game Commission, 334 IT. S. 410,

68 S. Ct. 1138, 92 L. Ed..... (1948)_________________  23
Theophanis v. Theophanis, 244 Ky. 689, 57 S. W. (2d)

957---------------------------------------------------------------------  46
Thompkins v. Missouri K. & T. Ey. Co. (C. C. A. 8th),

211 F. 391 (1914)________________________________ 38
Tucker v. Blease, 97 S. C. 303, 81 S. E. 668____________  45
Tunstall v. Brotherhood of Locomotive Firemen and 

Engineers, 323 U. S. 210, 65 S. Ct. 235, 89 L. Ed.
187 (1940) _________________________________1___  24

Twining v. New Jersey, 211 IT. S. 78, 29 S. Ct. 14, 53 L.
Ed. 97 (1908) ___________________________________  14

United States v. Hill, 248 U. S. 420, 39 S. Ct. 143, 63 
L. Ed. 337 (1919)___________________________ • 36

Virginia & S. W. Ey. Co. v. Hill, 105 Va. 738, 54 S. E.
872 (1906) _____________________________________  36

Virginia Ry. & P. Co. v. O ’Flaherty, 118 Va. 749, 88 S.
E. 312 (1916) ___________________________________ 36

Washington B. & A. Elect. Ey. Co. v. Waller, 53 App.
D. C. 200, 289 F. 598, 30 A. L. B. 50 (1923)______37, 38, 50

Welton v. Missouri, 91 U. S. 275, 23 L. Ed. 347 (1876).... 41
Yick Wo v. Hopkins, 118 U. S. 356, 6 S. Ct. 1064, 30 

L. Ed. 220 (1886)_______________________________ 23

PAGE



Table of Statutes

PAGE
Alabama—

Code, 1923, Sec, 5001— __________________________  45
Statutes, 1940—

Title 1, See. 2 ______________________________ 43
Title 14, Sec. 360 ______________________ _____  43

Arkansas—
Statutes 1937 (Pope)—

Sec. 1200 ___________________________________ 43, 44
Sec. 3290 ___________________________________ 43, 44

Florida—
Constitution, Article XVI, Sec. 24----------------------- 44, 45
Statutes, 1941, Sec. 1.01--------------------- ---------------44,45

Georgia—
Code. Michie (1926), Sec. 2177___________________  46

Michie Supp. (1928), Sec. 2177-------------------  43
Laws, 1927, p. 272________________________________ 43

Indiana—
Statutes (Burns), 1933, Secs. 44-104-----------------------  44

Louisiana—
Acts—

1908, No. 8 7 _________________________________  46
1910, No. 206 ________________________________ 46

Criminal Code (Dart) 1932, Articles 1128-1130...-.... 46
Maryland—

Code (Flack) 1939, Article 27, Sec. 445___________  44
Mississippi—

Code, 1942, Sec. 459---- ---------------------------- ------------- 44
Constitution, See. 263 -------------------    44

v i



Missouri—
Revised Statutes 1939, See. 4651_________________  44

North Carolina—
Constitution, Article XIV, Sec. 8____________ _____ 44
General Statutes, 1943-

Sec. 14-181 __________________:_______________  44
Sec. 51-3 ______________________i._______ 44
Sec. 115-2 ______________________  43
Sec. 115-20 ________   46

Public Laws, 1903, Ch. 435, See. 22________________  46
North Dakota—

Revised Code, 1943, Sees. 14-0304 and 14-0305______ 44

Oklahoma—
Constitution—

Article XIII, Sec. 3 ______   44
Article XXIII, Sec. 11 ,,_____ _________________  44

Statutes, 1931—
Sec. 13-183 ________________________  44
Sec. 43-12 ___________ ...______________  . 44

. Sec. 70-452 __________     44

Oregon—
Compiled Laws, 1940, Sec. 23-1010.________________ 44

South Carolina—
Constitution, Article III, Sec. 33____    44

Tennessee—
Code (Michie) 1938—

Sec. 8396 ____________________________________  43
Sec. 8409 _______________     44

Constitution, Article XI, Sec. 14_________________  44

V l l

PAGE



T exa s-
Penal Code (Vernon) 1935, Sec. 493-----------------------  44
Revised Civil Statutes (Vernon) 1936-

Article 2900 ------ -------------------------------------------  44
Article 4607 -------------------------------------------------- 44
Article 6417 --------------------------------   44

Virginia—
Code (Miehie) 1942-

Section 67 -----------------------------------------------------  43
Section 3881 --------------------------------------------------  25
Sections 4G97z to 4097dd, inclusive-------------------- 37
Section 4097d d ----------------------------------------------- 8

Constitution, Sec. 153------------------------------------------  25

Miscellaneous Authorities

American Jurisprudence, ‘ ‘ Carriers, ”  Vol. 10, Sec. 1026 35
Congressional Globe Congress, 1st Session----------------- 21
Executive Order No. 9981, July 26, 1948 -------------------  48
F lack, Adoption of the Fourteenth Amendment 

(1909)_________________________________ ________21, 22
J ohnson, Charles S., Patterns of Segregation (New 

York, 1943) ---------    48
Myrdal, Gtunnar, An American Dilemma (New York, 

1944)___________________________________________  48
Report of The President’s Committee on Civil 

Rights_____ ..._______________________________ 28, 29,30
United Nations Charter ------------------------------------------  30

V l l l
PAGE



United States Court of  Appeals
For the Sixth Circuit

E lizabeth W hiteside,
Appellant,

vs.

S outhern B us L ines, I nc.,
Appellee.

Civil A ction 
No. 10,799

BRIEF FOR APPELLANT.

Statement of Facts.

This cause was tried in the District Court of the United 
States for the Western District of Kentucky before the 
court, without a jury, on May 14, 1947. Findings of fact 
and conclusions of law were made, and final judgment on 
behalf of the appellee (defendant below) was entered on 
June 15, 1948 (E. 202). Appellant (plaintiff below) moved 
the Court to set aside its decision and judgment upon speci­
fied grounds (R. 204), which motion was overruled on June 
28, 1949 (R. 205). Notice of appeal was filed on July 26, 
1948 (R. 205).



A. Statement of the Case.

1 .
On July 27, 1946, appellant filed her complaint alleging 

that she was a colored citizen of the United States and of 
the State of Kentucky; and that appellee was a common 
carrier engaged in the transportation of passengers by 
motor bus in interstate commerce from St. Louis, Missouri, 
to Paducah, Kentucky, via Cairo, Illinois, and between 
various other states of the United States. She further al­
leged that on May 6, 1946, she purchased a ticket from an 
agent of defendant in St. Louis, Missouri, for transporta­
tion over defendant’s lines to Paducah, Kentucky, via 
Cairo, Illinois; that she rode busses operated by defendant 
and connecting carriers until she arrived at Wickliffe, Ken­
tucky, at which time and place she was unlawfully requested 
to move from the seat in which she was sitting, to another 
seat in the rear of said bus because of her race and color 
and because she was a Negro. Upon her refusal to move, 
the bus operator, an agent of the defendant, procured as­
sistance of a police officer in Wickliffe, Kentucky, and to­
gether they forcibly, unlawfully, maliciously, and wilfully 
ejected her, without any legal process whatever. She there­
upon lost numerous articles of personal property and sus­
tained various injuries, whereupon she sued appellee for 
the sum of Fifty Thousand and One Hundred Dollars 
($50,100.00) (R. 1-6). An amended complaint was filed 
April 21, 1947 (R. 18).

On September 13, 1946, appellee filed its answer, admit­
ting that it is a common carrier engaged in the transporta­
tion of persons traveling in interstate commerce, and that



3'

appellant had a ticket entitling her to transportation on its 
bus from Cairo, Illinois, to Paducah, Kentucky; and that it 
did not know whether plaintiff’s ticket entitled her to trans­
portation from St. Louis, Missouri, to Cairo, Illinois; that 
it did not know whether plaintiff was a Negro or colored 
person. Defendant admitted that its agent procured the 
services of a police officer in Wickliffe, Kentucky, and 
forcibly ejected plaintiff from the bus, although it alleged 
that it only used such force as was necessary to accomplish 
the said ejection. It admitted that plaintiff was ejected 
solely because of her race and color and because she was a 
Negro. It further alleged that under its rules and regula­
tions, which had been filed with the Interstate Commerce 
Commission and with the Kentucky Division of Motor 
Transportation, plaintiff was seated in a portion of the bus 
set aside for the exclusive use and occupancy of white per­
sons and that her refusal to move from that seat was the 
sole cause of her ejection (R. 9-15).

Interrogatories were submitted to defendant under 
Rule 33 of the Federal Rules of Civil Procedure (R. 16), 
and defendant’s answer thereto gave the name and address 
of the operator of defendant’s bus and the name, residence 
and official capacity of the police officer mentioned in de­
fendant’s answer and stated that the defendant’s rules 
and regulation tariff requiring segregation of the races on 
its common carriers had been filed with the two above 
named governmental agencies on November 15, 1938, and 
that such custom, usage, and practice of segregation of the 
races had been in force and effect for many years (R. 17).

Trial was had on May 14, 1947, and final judgment en­
tered on behalf of appellee on June 15, 1948.



4

2.

Mary Elizabeth Whiteside (plaintiff below), and appel­
lant herein, is a Negro citizen of the United States and of 
the State of Kentucky, temporarily working in Chicago, 
Illinois. On May 5, 1946, she purchased a ticket in St, 
Louis, Missouri, entitling her to transportation on the bus 
lines of appellee, defendant below, and connecting carriers, 
from St. Louis, Missouri, to Paducah, Kentucky, via Cairo, 
Illinois, and Wickliffe, Kentucky. On the same day she 
boarded a bus in St. Louis, Missouri, to Chicago, Illinois. 
She changed busses in Cairo, Illinois, and boarded the bus 
operated by defendant for Paducah, through Wickliffe, 
Kentucky. She sat in the third seat from the front, directly 
behind the driver (R. 114). On this bus there are six double 
seats on each side of the aisle and one long seat in the rear 
which accommodates five persons (R. 112, 113), and at the 
time appellant boarded the bus there were approximately 
seventeen (17) or nineteen (19) other passengers thereon 
(R. 111). The bus has a seating capacity of twenty-nine 
(29) (R. 112).

At Wickliffe, Kentucky, the operator requested appellee 
to move to the rear (R. 117-118). She refused, and he 
called the Town Marshall of Wickliffe, Kentucky, to assist 
him in removing her from the bus (R. 119). Together they 
caught her by her arms and ejected her from the bus (R. 
120). At this time there were vacant seats in the rear of 
the bus and one white person was seated in a seat to the 
rear of appellant but on the opposite side of the bus.

The operator of the bus refused to refund appellant her 
fare in cash, but did give her a transfer ticket entitling her 
to transportation on another bus to her destination (R.



5

123). He refused to permit her to reboard Ms bus. Appel­
lant secured other transporation on another bus line to her 
destination and immediately complained to her relatives 
and physician of various injuries sustained by reason of 
her ejection. She was under the care of a physician for 
some time. He testified that in his opinion the injuries 
were sustained by reason of her forcible ejection from the 
bus (R. 57-67).

Appellee based its sole defense upon its claimed rule or 
regulation requiring segregation of the races.

B. Errors Relied Upon.

1. The Court erred in finding that the segregation rule 
or regulation of appellees was reasonable and necessary 
for the safety, comfort, and convenience of the passengers 
using appellee’s busses, including the bus in which the ap­
pellant was riding.

2. The Court erred in concluding that appellee had a 
legal and constitutional right and duty to adopt its segre­
gation rule and regulation and the right and duty to seat all 
passengers on its busses, including appellant, purely and 
simply in accordance with their race or color pursuant 
to such rule and regulation.

3. The Court erred in concluding as a matter of law 
that appellee had the right and duty to evict appellant from 
the bus when she failed to abide by said segregation rule 
and regulation.

4. The Court erred in entering judgment for the appel­
lee and against appellant.



6

A R G U M E N T .

L

Whether the Rule or Regulation of Appellee, as Ap­
plied in This Case, Can Re Enforced Without Violating 
Article I, Section 8 of, and the Fifth and Fourteenth 
Amendment to the Federal Constitution, the Public 

Policy and Laws of the United States.

The lower court answered— Fes

Appellant contends it should be answered— No

Appellant was ejected from the bus in question and 
deprived of her rights as an interstate passenger by gov­
ernmental acts through officers of the state of Kentucky, by 
a rule or regulation sanctioned by the Interstate Commerce 
Commission and by the decision and ruling of the court 
below.

The carrier did not urge in the Trial Court the validity 
of any segregation statute; nor did it claim that the operator 
acted without the scope of this authority. This case is gov­
erned by the rules of law applicable to the obligations of a 
common carrier to its passengers and its liabilities for 
breach of those obligations.

As was stated in Matthews v. Southern Ry. System., 157 
Fed. (2d) 609, 610, “ A common carrier is required to pro­
tect its passengers against assault or interference with the 
peaceful completion of their journey. But an exception to 
the general rule is that an agent of the carrier is not re­
quired to interfere with the known officer of the law while 
engaged in the performance of his duty. # * but the ex­
ception goes no further. It does not cover the action of the 
agent in otherwise causing, procuring, assisting in, or par­



7

ticipating in the arrest or ejection, or when the arrest is at 
the instance of the agent.”  The Court further stated in 
that case that it saw no valid distinction between segrega­
tion in buses and railroad cars.

In the instant case, the ejection of appellant was ac­
complished by local law enforcement officers summoned by 
appellee. And, in this action, wherein appellant seeks re­
dress for violation of her rights, the court below enforced 
the regulation in question against her, and attached to it a 
validity which effectively deprives appellant of her right 
to recover.

When as in the instant case, an interstate passenger 
declines to change her seat pursuant to a carrier segrega­
tion rule or regulation, and the carrier summons local law 
enforcement officers, who acting under its command and di­
rection, eject the recalcitrant passenger from the bus, it is 
clear that this is state and not private action and that it 
is the state which is depriving the Negro passenger of con­
stitutional and statutory rights.

Similarly, when, as here, a federal court gives validity 
to a regulation which compels a Negro passenger to change 
his seat because of race or color, and thereby deprives the 
Negro passenger of rights to redress, it is the action of the 
sovereign, and not the action of individuals, which accom­
plishes the deprivation. It has all too frequently been as­
sumed that this deprivation results from individual action 
consisting in the mere promulgation of the regulation. 
Such an assumption rests on the fallacy that common car­
riers can grant, modify or destroy rights of passengers 
without the aid of the sovereign.

It is apparent that the creation, modification and destruc­
tion of rights is controlled by the legal consequences which 
the sovereign attaches to the individual action. When it



8

is necessary to appeal to state law enforcement officers, or 
to the courts, for enforcement of a regulation, individual 
action ceases and governmental action commences. It may 
well be that where a Negro passenger occupies a seat in the 
“ White”  section, she has been deprived of no rights by 
the mere promulgation of the regulation. But when en­
forcement is obtained through the process of governmental 
action, by either police officers or the courts, as a conse­
quence of which he or she is ejected from his or her seat or 
is denied recovery therefor, government itself has effected 
a deprivation,1 in violation of the United States Consti­
tution.

A.

Enforcement of the Regulation Imposes An Undue 
Burden on Interstate Commerce, in Violation of 
Article I, Section 8, of the Constitution of the 

United States.

The analogy of the instant case to the Morgan case is 
complete. The Statute 2 there involved provided:

“ All persons who fail while on any motor vehicle 
carrier, to take and occupy the seat or seats or other 
space assigned to them by the driver, operator or 
other person in charge of such vehicle, or by the 
person whose duty it is to take up tickets or collect 
fares from passengers therein, or who fail to obey

1 A  perfect analogy is supplied by Shelley v. Kraemer, 334 U. S. 
1, 68 S. Ct. 836 (1948) and Hurd v, Hodge, 334 U. S. 24, 68 S. Ct. 
847 (1948). In each case, Negroes were enjoined from the occu­
pancy of properties because of the existence thereupon of racial re­
strictive covenants. It was held that while the individual action 
consisting in the making and imposition of the restrictive covenants 
was not proscribed by the Federal Constitution or laws, the enforce­
ment of such covenants by the courts, state or federal, was prohibited. 
In each case, government, through the courts, was the effective agent 
in depriving the purchasers of their properties and of the exercise of 
their constitutionally protected rights therein.

2 Code of Virginia, 1942, Sec. 4097 dd.



9

the directions of any such driver, operator or other 
person in charge, as aforesaid, to change their seats 
from time to time as occasions require, pursuant to 
any lawful rule, regulation or custom in force by such 
lines as to assigning separate seats or other space to 
white and colored persons, respectively, having been 
first advised of the fact of such regulation and re­
quested to conform thereto, shall be deemed guilty 
of a misdemeanor, and upon conviction thereof shall 
be fined not less than five dollars nor more than 
twenty-five dollars for each offense. Furthermore, 
such persons may be ejected from such vehicle by any 
driver, operator or person in charge of said vehicle, 
or any police officer or other conservator of the 
peace; and in case such persons ejected shall have 
paid their fares upon said vehicle, they shall not be 
entitled to the return of any part of same. For the 
refusal of any such passenger to abide by the re­
quest of the person in charge of said vehicle as afore­
said, and his consequent ejection from said vehicle, 
neither the driver, operator, person in charge, owner, 
manager nor bus company operating said vehicle 
shall be liable for damages in any Court.”  (Italics 
supplied.)

Under this statute, the starting point was a segregation 
regulation of the carrier. If the carrier had no such regu­
lation, the statute did not apply.3 But if there was “ any 
lawful rule, regulation or custom in force by such lines as 
to assigning separate seats or other space to white or colored 
persons, respectively,”  and the passenger failed to take the 
seat assigned or to change seats pursuant to said regula­
tion, “ having first been advised of the fact of such regula­
tion and requested to conform thereto,” :

(1) The passenger “ shall be deemed guilty of a mis­
demeanor, and upon conviction thereof shall be fined not less

3 McLemore v. Commonwealth, Supreme Court of Appeals of 
Virginia, No. 2981, April, 1945 (Error confessed, no opinion).



10

than five dollars nor more than twenty-five dollars for each 
offense;”

(2) Such passenger “ may be ejected from such vehicle 
by any driver, operator or person in charge of said vehicle, 
or by any police officer or other conservator of the peace;”

(3) “ For the refusal of any such passenger to abide 
by the request of the person in charge of said vehicle as 
aforesaid, and his consequent ejection from said vehicle, 
neither the driver, operator, person in charge, owner, man­
ager nor bus company operating said vehicle shall be lia­
ble for damages in any court;”

If the statute could validly have been applied against 
the passenger involved in that case, these consequences 
would have followed because such was the command of the 
legislature.

Under the principles laid down in the instant case the 
same consequences, except conviction of crime, are to fol­
low under similar conditions. The court below held in sub­
stance that if appellee bus company had a rule or regula­
tion requiring the segregation of the races, which was 
known to or brought to the attention of appellant, and ap­
pellant failed to change seats in accordance therewith, ap­
pellant might be ejected from the bus by either the opera­
tor or by police officers called for the purpose and that, 
under such circumstances, neither appellee nor the police 
officer would be liable in damages to appellant for the ejec­
tion. These consequences would follow from governmental 
action4 differing in form but not in substance or effective­
ness from that sought to be supplied by the legislature in 
the Morgan case.

4 Screws v. United States, 325 U. S. 91, 65 S. Ct. 1031, 89 L. Ed. 
1495 (1945), and the action of this Court in sustaining the regulation 
as a defense to this action is action of the Federal government.



11

So, notwithstanding that the identical consequences were 
condemned in the Morgan case as unlawful burdens on in­
terstate commerce, and unlawful interferences with the con­
stitutional rights of the interstate passenger involved, this 
court, by the process of a different rationalization, now 
permits the same consequences to be wrought against an 
interstate passenger.

The important consideration is not merely the existence 
of the segregation regulation. The carrier involved in the 
Morgan case had one of these regulations. The important 
consideration is the fact that the power of government is 
in the instant case thrown behind the regulation to enforce 
compliance with the policy which lead to its promulgation.

Appellant therefore submits that enforcement of the 
regulation, in the manner and form aforesaid, imposes an 
undue burden on interstate commerce in violation of Article 
I, Section 8, of the Constitution of the United States.

B.

Enforcement of the Carrier Rule or Regulation Is 
Governmental Action Within the Prohibitions of 
the Fifth and Fourteenth Amendments to the 

United States Constitution.

This case falls squarely within the decision of the Su­
preme Court in the case of Hurd v. Hodge, supra, in which 
it was held that a discriminatory regulation or covenant 
adopted by private persons could not be enforced by an 
agency of the federal government. In this case the action 
of the Interstate Commerce Commission is apparent. Sec­
tion 316(a) of Title 49 of the United States Code requires 
“ Every common carrier of passengers by motor vehicle to 
establish reasonable * * * equipment and facilities for the 
transportation of passengers in interstate or foreign com­
merce ; to establish, observe, and enforce just or reasonable



12

# * # regulations and practices relating thereto * * * 
Section 317 of Title 49 of the United States Code requires 
every common carrier by motor vehicle to “ File with the 
Commission * * * tariffs showing all the rates, etc., and all 
services in connection therewith, of passengers or property 
in interstate or foreign commerce * * *; and the commission 
is authorized to reject any tariff filed with it which is not 
inconsonant with this section and with such regulations. 
Any tariffs so rejected by the commission shall be void 
and its use shall be unlawful” . Section 318 of Title 49 
provides for a hearing when any change is desired in said 
rule or regulation. Section 316(g) provides that whenever 
any such tariff is filed with the commission, the commission 
may, on its own initiative or on complaint of any interested 
party, require a hearing to determine the reasonableness, 
usefulness, and legality of such rule or regulation prior to 
the time it goes into effect, and may suspend the enforce­
ment thereof until such hearing is completed. The an­
nounced intentions of these sections is to determine and 
require that no undue prejudice is imposed upon any per­
son coming under the act. Section 316(j) of the same Title 
further provides that nothing contained in this act “ shall 
be held to extinguish any remedy or right of action not in­
consistent herewith” . Thus the regulations here in ques­
tion had to have the approbation of the Interstate Com­
merce Commission, either silent or active, before they could 
become effective. Appellant contends that the approval 
of a rule or regulation using raee or color as a criterion by 
an agency of the federal government violates the Fifth 
Amendment. Hirabayashi v. United States, 320 U. S. 81 
(1943).

The ejection of appellant from the bus by a local police 
officer was, of course, state action. In ejecting appellant 
the state adopted and enforced a racially discriminatory 
regulation and thereby denied to appellant rights secured



13

under the Fourteenth Amendment. Thus this case falls 
squarely within the prohibition of Shelley v, Kraemer, 334 
U. S. 1 (1948).

It is clear that such rights as are protected by consti­
tutional and statutory guaranties against impairment by 
the legislative and executive branches of government are 
equally protected against impairment by the judiciary. The 
prohibitions of both the Fourteenth and Fifth Amendments, 
and of Sections 41 and 43 of Title 8 of the United States 
Code, apply to all conceivable forms of governmental action, 
including that of the judiciary.5

Thus, the action of government is seen to exist when a 
court bases a judgment upon a rule of substantive law 
which it, or some other court, “ finds”  in the common law, 
or judge-made law, of state or nation. Since the rule so 
made and applied is produced by governmental action, it 
is subject to the same test of validity as it would be if made 
by that other form of governmental action consisting in 
enactment by the legislature.

That the action of state courts in enforcing a substantive 
common law rule formulated by those courts result in the 
denial of rights guaranteed by the Fourteenth Amendment 
was recently reaffirmed in Shelley v. Kraemer,e where the 
United States Supreme Court, in holding that enforcement 
by a state court of a restrictive covenant prohibiting owner­
ship or occupancy of real property by Negroes to be in vio­
lation of the Fourteenth Amendment, discussed the matter, 
as follows :6 7

“ That the action of state courts and of judicial 
officers in their official capacities is to be regarded

6 As hereinbefore pointed out, a denial of rights secured by Sec­
tion 3 of Title 49 of the United States Code is actionable, whether or 
not accomplished under color of state law.

6 334 U. S. 1, 68 S. Ct. 836, L. Ed. (1948).
7 334 U. S. at 14-18. Footnotes 13 to 21, inclusive, are the Courts.



14

as action of the State within the meaning of the 
Fourteenth Amendment, is a proposition which has 
long been established by decisions of this Court. That 
principle was given expression in the earliest cases 
involving the construction of the terms of the Four­
teenth Amendment. Thus, in Virginia v. Rives, 100 
U. S. 313, 318 (1880), this Court stated: ‘ It is doubt­
less true that a state may act through different 
agencies,—either by its legislative, its executive, or 
its judicial authorities; and the prohibitions of the 
amendment extend to all action of the State denying 
equal protection of the laws, whether it be action by 
one of these agencies or by another. ’ In Ex parte 
Virginia, 100 U. S. 339, 347 (1880), the Court ob­
served: ‘A State acts by its legislative, its execu­
tive, or its judicial authorities. It can act in no 
other way.’ In the Civil Rights Cases, 109 U. S. 3, 
11, 17 (1883), this Court pointed out the Amendment 
makes void ‘ State action of every kind’ which is in­
consistent with the guaranties therein contained, and 
extends to manifestations of ‘ State Authority in the 
shape of laws, customs, or judicial or executive pro­
ceedings.’ Language to like effect is employed no 
less than eighteen times during the course of that 
opinion.13

“ Similar expressions, giving specific recognition 
to the fact that judicial action is to be regarded as 
action of the State for the purposes of the Fourteenth 
Amendment, are to be found in numerous cases which 
have been more recently decided. In Twining v. 
New Jersey, 211 U. S. 78, 90-91 (1908), the Court 
said: ‘ The judicial act of the highest court of the

13 Among the phrases appearing in the opinion are the following: 
“ the operation of State laws, and the action of State officers execu­
tive or judicial” ; “ State laws and State proceedings” ; “ State law * * * 
or some State action through its officers or agents” ; “ State laws and 
acts done under State authority” ; “ State laws, or State action of some 
kind” ; “ Such laws as the States may adopt or enforce” ; “ such acts 
and proceedings as the States may commit or take” ; “ State legisla­
tion or action” ; “ State law or State authority.”



15

State, in authoritatively construing and enforcing its 
laws, is the act of the State.’ In BrinJcerhoff-Faris 
Trust d  Savings Co. v. Hill, 281 U. S. 673, 680 (1930), 
the Court, through Mr. Justice Brandeis, stated: 
‘ The federal guaranty of due process extends to state 
action through its judicial as well as through its 
legislative, executive or administrative branch of 
government.’ Further examples of such declara­
tions in the opinions of this Court are not lacking.14

“ One of the earliest applications of the prohibi­
tions contained in the Fourteenth Amendment to ac­
tion of state judicial officials occurred in cases in 
which Negroes had been excluded from jury service 
in criminal prosecutions by reason of their race or 
color. These cases demonstrate, also, the early recog­
nition by this Court that state action in violation of 
the Amendment’s provisions is equally repugnant to 
the constitutional commands whether directed by 
state statute or taken by a judicial official in the ab­
sence of statute. Thus, in Strauder v. West Virginia, 
100 U. S. 303 (1880), this Court declared invalid a 
state statute restricting jury service to white persons 
as amounting to a denial of the equal protection of 
the laws to the colored defendant in that case. In 
the same volume of the reports, the Court in Ex 
parte Virginia, supra, held that a similar discrimina­
tion imposed by the action of a state judge denied 
rights protected by the Amendment, despite the fact 
that the language of the state statute relating to 
jury service contained no sueh restrictions.

14 Neal v. Delaware, 103 U. S. 370, 397 (1881 ); Scott v. McNeal, 
154 U. S. 34, 45 (1894) ; Chicago, Burlington and Quincy R. Co. v. 
Chicago, 166 U. S. 226, 233-235 (18 97 ); Hovey v. Elliott, 167 U. S. 
409, 417-418 (1897 ); Carter v. Texas, 177 U. S. 442, 447 (1900 ); 
Martin v. Texas, 200 U. S. 316, 319 (1906 ); Raymond v. Chicago, 
Union Traction Co., 207 U. S. 20, 35-36 (1907 ); Home Telephone 
and Telegraph Co. v. Los Angeles, 227 U. S. 278, 286-287 (1913 ); 
Prudential Insurance Co. v. Cheek, 259 U. S. 530, 548 (1922 ); 
American Railway Express Co. v. Kentucky, 273 U. S. 269, 274 
(1927 ); Mooney v. Holohan, 294 U. S. 103, 112-113 (1935 ); Hans- 
berry v. Lee, 311 U. S. 32, 41 (1940).



16

“ The action of state courts in imposing penalties 
or depriving parties of other substantive rights with­
out providing adequate notice and opportunity to 
defend, had, of course, long been regarded as a denial 
of the due process of law guaranteed by the Four­
teenth Amendment. Brinkerhoff-Faris Trust & Sav­
ings Go. v. Hill, supra, Cf. Pennoyer Neff, 95 U. S. 
714 (1 8 7 8 ).15

“ In numerous cases, this Court has reversed 
criminal convictions in state courts for failure of 
those to provide the essential ingredients of a fair 
hearing. Thus it has been held that convictions ob­
tained in state courts under the domination of a mob 
are void. Moore v. Dempsey, 261 U. S. 86 (1923). 
And see Frank v. Mangum, 237 U. S. 309 (1915). 
Convictions obtained by coerced confessions,16 by 
the use of perjured testimony known by the prosecu­
tion to be such,17 or without the effective assistance 
of counsel,18 have also been held to be exertions of 
state authority in conflict with the fundamental rights 
protected.

“ But the examples of state judicial action which 
have been held by this Court to violate the Amend­
ment’s commands are not restricted to situations in 
which the judicial proceedings were found in some 
manner to be procedurally unfair. It has been recog­
nized that the action of state courts in enforcing a 
substantive common-law rule formulated by those 
courts, may result in the denial of rights guaranteed 
by the Fourteenth Amendment, even though the

15 And see Standard Oil Co. v. Missouri, 224 U. S. 270, 281-282 
(19 12 ); Hansberry v. Lee, 311 U. S. 32 (1940).

18 Brown v. Mississippi, 297 U. S. 278 (1936 ); Chambers v. 
Florida, 309 U. S. 227 (1940 ); Ashcraft v. Tennessee, 322 U. S. 
143 (1944 ); Lee v. Mississippi, 332 U. S. 742 (1948).

17 See Mooney v. Holohan, 294 U. S. 103 (1935) ; Pyle v. Kan­
sas, 317 U. S. 213 (1942).

18 Powell v. Alabama, 287 U. S. 45 (19 32 ); Williams v. Kaiser, 
323 U. S. 471 (1945) ; Tomkins v. Missouri, 323 U. S. 485 (1945 ); 
DeMeerleer v. Michigan, 329 U. S. 663 (1947).



17

judicial proceedings in such cases may have been 
complete accord with the most rigorous conceptions 
of procedural due process.19 Thus, in American Fed­
eration of Labor v. String, 312 U. S. 321 (1941), en­
forcement by state courts of the common-law policy 
of the State, which resulted in the restraining of 
peaceful picketing, was held to be state action of the 
sort prohibited by the Amendment’s guaranties of 
freedom of discussion.20 In Cantwell v. Connecticut, 
310 U. S. 296 (1940), a conviction in a state court 
of the common-law crime of breach of the peace was, 
under the circumstances of the case, found to be a 
violation of the Amendment’s commands relating to 
freedom of religion. In Bridges v. California, 314 
U. S. 252 (1941), enforcement of the state’s common- 
law rule relating to contempts by publication was 
held to be state action inconsistent with the prohibi­
tions of the Fourteenth Amendment.21 And cf. 
Chicago, Burlington and Quincy R. Co. v. Chicago, 
166 U. S. 226 (1897).

“ The short of the matter is that from the time of 
the adoption of the Fourteenth Amendment until 
the present, it has been the consistent ruling of this 
Court that the action of the States to which the 
Amendment has reference, includes action of state 
courts and state judicial officials. Although, in con­
struing the terms of the Fourteenth Amendment, dif­
ferences have from time to time been expressed as 
to whether particular types of state action may be 
said to offend the Amendment’s prohibitory provi­
sions, it has never been suggested that state court 
action is immunized from the operation of those pro­

19 In applying the rule of Erie R. Co. v. Tompkins, 304 U. S. 64 
(1938), it is clear that the common-law rules enunciated by state 
courts in judicial opinions are to be regarded as a part of the law of 
the State.

20 And see Bakery Drivers Local v. Wohl, 315 U. S. 769 (19 42 ); 
Cafeteria Employees Union v. Angelos, 320 U. S. 293 (1943).

21 And see Pennekamp v. Florida, 328 U. S. 331 (1946 ): Craiq 
v. Harney, 331 U. S. 367 (1947).



18

visions simply because the act is that of the judicial 
branch of the state government.”

It is also perfectly clear that enforcement by a federal 
court of a substantive common-law rule made either by itself, 
another federal court, or by a state court, is equally viola­
tive of constitutional and statutory guaranties. The Fifth 
Amendment, like the Fourteenth, extends its prohibitions 
to judicial action.8 Therefore, action by a federal court 
is governmental action within the Fifth Amendment when­
ever the same action by a state court would be state action 
within the Fourteenth Amendment. Although in Hurd v. 
Hodge,9 the Court reached the result of denying judicial 
enforcement to the racial restriction on grounds other than 
the Fifth Amendment, this was simply because it was un­
necessary to do so. Said the Court :10

“ Petitioners urge that judicial enforcement of the 
restrictive covenants by courts of the District of 
Columbia should likewise be held to deny rights of 
white sellers and Negro purchasers of property, 
guaranteed by the due process clause of the Fifth 
Amendment. Petitioners point out that this Court in 
HirabayasM v. United States, 320 IT. S. 81, 100 
(1943), reached its decision in a case in which issues 
under the Fifth Amendment were presented, on the 
assumption that ‘ racial discriminations are in most 
circumstances irrelevant and therefore prohibited 
* * * ’ And see Korematsu v. United States, 323 
U. S. 214, 216 (1944).

“ Upon full consideration, however, we have found 
it unnecessary to resolve the constitutional issue 
which petitioners advance; for we have concluded

8 See Griffin v. Griffin, 327 U. S. 220, 66 S. Ct. 556, 90 L. Ed. 
635 (1946) ; Hovey v. Elliott, 167 U. S. 409, 17 S. Ct. 841, 42 L. 
Ed. 215 (18 97 ); Hurd v. Hodge, 82 App. D. C. 180, 162 F. (2d) 
233 (1947)——dissenting opinion Edgerton, J., at 162 F. (2d) 239-240.

9 334 U. S. 24 (1948).
10 Op. cit., supra, pp. 29-30.



19

that judicial enforcement of restrictive covenants by 
the courts of the District of Columbia is improper for 
other reasons hereinafter stated,” 11

Unquestionably, Sections 41 and 43 of Title 8 of the 
United States Code, like any other Federal statute, inhibit 
action of this Court. It is likewise clear that they also in­
hibit judicial action of a state to the same extent that they 
inhibit legislative action of a state. In Hurd v. Hodge,12 
where the Court held that judicial enforcement of a restric­
tive covenant, of the type involved in Shelley v. Kraemer, 
was prohibited by Section 42 of Title 8 of the United States 
Code, said: 13

“ In considering whether judicial enforcement of 
restrictive covenants is the kind of governmental ac­
tion which the first section of the Civil Eights Act of 
1866 was intended to prohibit, reference must be 
made to the scope and purposes of the Fourteenth 
Amendment; for that statute and the Amendment 
were closely related both in inception and in the ob­
jectives which Congress sought to achieve.

“ Both the Civil Eights Act of 1866 and the joint 
resolution which was later adopted as the Fourteenth 
Amendment were passed in the first session of the 
Thirty-Ninth Congress. Frequent references to the 
Civil Eights Act are to be found in the record of the 
legislative debates on the adoption of the Amend­
ment. It is clear that in many significant respects 
the statute and the Amendment were expressions of

11 It is a well-established principle that this Court will not decide 
constitutional questions where other grounds are available and dis­
positive of the issues of the case. Recent expressions of that policy 
are to be found in Alma Motor Co. v. Timken-Detroit Axle Co., 329 
U. S. 129 (19 46 ); Rescue Army v. Municipal Court, 331 U. S. 549 
(1947).

12 Op. cit., supra, note 9.
18 Op. cit., supra, at pp. 31-33.



20

the same general congressional policy. Indeed, as 
the legislative debates reveal, one of the primary 
purposes of many members of Congress in support­
ing the adoption of the Fourteenth Amendment was 
to incorporate the guaranties of the Civil Right Act 
of 1866 in the organic law of the land. Others sup­
ported the adoption of the Amendment in order to 
eliminate doubt as to the constitutional validity of 
the Civil Rights Act as applied to the States.

“ The close relationship between Section 1 of the 
Civil Rights Act and the Fourteenth Amendment was 
given specific recognition by this Court in Buchanan 
v. Warley, supra, at 79. There, the Court observed 
that, not only through the operation of the Four­
teenth Amendment, but also by virtue of the ‘ stat­
utes enacted in furtherance of its purpose,’ includ­
ing the provisions here considered, a colored man is 
granted the right to acquire property free from in­
terference by discriminatory state legislation. In 
Shelley v. Kraemer, supra, we have held that the 
Foui’teenth Amendment also forbids such discrimina­
tion where imposed by state courts in the enforce­
ment of restrictive covenants. That holding is 
clearly indicative of the construction to be given to 
the relevant provisions of the Civil Rights Act in 
their application to the Courts of the District of 
Columbia.”

While, In Hurd v. Hodge, the Court was concerned with 
Section 42, in view of the legislative scheme and history 
of the Civil Rights Act, it cannot be questioned that Sec­
tions 41 and 43 extend their prohibitions to Federal and 
state judicial action.

It is therefore clear that action of this Court is gov­
ernmental action within the Constitution and laws of the 
United States.



21

C.

Governments, State and Federal, Are Restrained 
From Making Distinctions on the Basis 

of Race or Color.

The Fourteenth Amendment to the Federal Constitution 
was designed primarily to benefit the newly freed Negro,14 
but its protection has been extended to all persons within 
the reach of our laws. By its adoption Congress intended 
to create and assure full citizenship rights, privileges and 
immunities for this minority as well as to provide for their 
ultimate absorption within the cultural pattern of Ameri­
can life.

As was said in one of the earlier cases in which the Su­
preme Court of the United States was called upon to inter­
pret the intent and meaning of this Amendment: 15

“ What is this but declaring that the law in the 
States shall be the same for the black as for the 
white; that all persons, whether colored or white, 
shall stand equal before the laws of the States and, 
in regard to the colored race, for whose protection 
the Amendment was primarily- designed, that no 
discrimination shall be made against them by law 
because of their color? The words of the Amend­
ment, it is true, are prohibitory, but they contain a 
necessary implication of a positive immunity, or 
right, most valuable to the colored race—the right 
to exemption from unfriendly legislation against 
them distinctively as colored; exemption from legal 
discrimination, implying inferiority in civil society, 
lessening the security of their enjoyment of the rights 
which others enjoy, and discriminations which are

14 See Flack, Adoption of the Fourteenth Amendment (1908). 
See also Cong. Globe Congress, 1st Session.

15 Strauder v. West Virginia, 100 U. S. 303, 307, 25 L. Ed. 664 
(1880).



22

steps towards reducing them to the condition of a 
subject race.”

Although the Supreme Court has undoubtedly limited the 
scope of the Fourteenth Amendment more narrowly than 
its framers intended,10 from its adoption to the present, 
the decisions have almost uniformly considered classifica­
tions and distinctions on the basis of race as contrary to its 
provisions, and, under a variety of factual situations, our 
highest Court has repeatedly held racial criteria arbitrary 
and unconstitutional:

T ransportation :
McCabe v. Atchinson, T. & S. F. 1Ry. Co., 235 U. S. 

151, 35 S. Ct. 69, 59 L. Ed. 169 (1914); Mitchell v. 
United States, 313 IT. S. 80, 61 S. Ct. 873, 85 L. 
Ed. 1201 (1941); Morgan v. Virginia, 328 U. S. 
373, 66 S. Ct. 1050 (1946); Bob-Lo Excursion Co. 
v. Michigan, 333 U. S. 28, 68 S. Ct. 358 (1948).

R estrictions on Ownership or Occupancy op P roperty :
Shelley v. Kraemer, 334 U. S. 1, 68 S. Ct. 836 (1948); 

Hurd v. Hodge, 334 U. S. 24, 68 S. Ct. 847 (1948); 
Oyama v. California, 332 IT. S. 633, 68 S. Ct. 269 
(1948); Buchanan v. Warley, 245 U. S. 60, 38 S. 
Ct. 16, 62 L. Ed. 149 (1917); Harmon v. Tyler, 
273 U. 8 . 668, 47 S. Ct. 411, 71 L. Ed. 831 (1927); 
City of Richmond v. Deans, 281 IT. S. 704, 50 S. Ct. 
407, 74 L. Ed. 1128 (1930).

E ducation :
Sipuel v. Board of Regents, 332 U. S. 631, 68 8. Ct. 

299, 92 L. Ed. 256 (1948); Missouri ex rel. Gaines 
v. Canada, 305 IT. S. 337, 59 S. Ct. 232, 83 L. Ed. 
208 (1938).

'16 Flack, op. cit. supra; Twining v. New Jersey, 211 U. S. 78, 
29 S. Ct. 14, 53 L. Ed. 97 (1908).



DlSRCIMINATION IN PAYM ENT OF TEACHERS’ SALARIES:

Alston y. School Board (C. C. A. 4th), 112 F. (2d) 
992 (1940), cert, den. 311 IT. S. 693, 61 S. Ct. 75, 
85 L. Ed. 448 (1940).

L ibrary F acilities:

Kerr v. Enoch Pratt Free Library (C. C. A. 4th), 
149 F. (2d) 212 (1945), cert. den. 326 U. S. 721, 
66 S. Ct. 26, 90 L. Ed. 427 (1945).

R estrictions on P ursuit of V ocation:

Takahashi v. Fish and Game Commission, 334 U. S. 
410, 68 S. Ct. 1138 (1948); Tick Wo v. Hopkins, 
118 U. S. 356, 6 S. Ct. 1064, 30 L. Ed. 220 (1886).

E xclusion from P etit J u ry :

Strauder v. West Virginia, 100 U. S. 303, 25 L. Ed. 
664 (1880).

E xclusion from Grand J u ry :

Neal v. Delaware, 103 U. S. 370, 26 L. Ed. 567 (1881).

E xclusion from V oting at P arty P rimary:

Nixon v. Herndon, 273 IT. S. 576, 47 S. Ct. 446, 71 L. 
Ed. 759 (1927); Nixon v. Condon, 286 U. S. 73, 
52 S. Ct. 484, 76 L. Ed. 984, 88 A. L. R. 458 (1932); 
Smith v. Allwright, 319 IT. S. 738, 64 S. Ct. 757, 
88 L, Ed. 987 (1944); Rice v. Elmore (C. C. A. 
4th), 165 F. (2d) 387 (1948), cert. den. 333 IT. S. 
875, 68 S. Ct. 905 (1948).

D iscrimination in R egistration P rivileges:
See Guinn v. United States, 238 U. S. 347, 35 S. Ct. 

926, 59 L. Ed. 1340, L. R. A. 1916A, 1124 (1915); 
Lane v. Wilson, 307 IT. S. 268, 59 S. Ct. 872, 83 L. 
Ed. 1281 (1939).

Despite the absence of a requirement for equal protec­
tion of the laws in the Fifth Amendment, our national gov­



24

ernment is prohibited from making distinctions on the basis 
of race or color, since such distinctions are considered ar­
bitrary and inconsistent with the requirements of due 
process of law, except where national safety and the perils 
of war render such measures necessary.17

The right of a person to the services of a common car­
rier is even more strongly protected than the property 
rights involved in the Shelley and Hurd cases, the eco­
nomic rights involved in the Takahashi case, and the rights 
respectively involved in the other cases referred to. The 
obligation of a carrier to serve all who may apply and the 
right to freedom of locomotion combine to create personal 
rights which have long been recognized as possessed by all 
of the people within the jurisdiction of the United States.

It could not be seriously contended that any state by 
legislation could deny to any group of its citizens the right 
of access to the services of common carriers solely on the 
basis of their race or color. Moreover, freedom of locomo­
tion of certain groups of persons may not be hampered by 
state legislation even though for the laudable purpose of 
protecting the property of persons already resident within 
the particular state.18

The difference between a bus company and an ordinary 
business operator is further emphasized by the fact that

17 Hirabayashi v. United States, 320 U. S. 81, 63 S. Ct. 1375, 
87 L. Ed. 1774 (1 9 4 3 ) ; Korematsu v. United States, 323 U. S. 214, 
65 S. Ct. 193, 89 L. Ed. 194 (1 9 4 4 ) ; E x parte Endo, 323 U. S. 283, 
65 S. Ct. 208, 89 L. Ed. 243 (1 9 4 4 ) ; Hurd v. Hodge, 334 U. S. 24, 
68 S. Ct. 847 (19 48 ); See also Steele v. Louisville & N. R. Co., 323 
U. S. 192, 65 S. Ct. 226, 89 L. Ed. 173 (19 44 ); Tunstall v. Brother­
hood of Locomotive Firemen and Enginemen, 323 U. S. 210, 65 S. 
Ct. 235, 89 L. Ed. 187 (1944).

18 Edwards v. California, 314 U. S. 160, 62 S. Ct. 164, 86 L. Ed. 
119 (1941).



25

the bus company in performing a public function,19 enjoys 
monopolistic privileges and is permitted under certain cir­
cumstances to avail itself of the right of eminent domain. 
Its rules and regulations in so far as they affect the travel­
ing public are, as has been aptly stated by one court, 
“ minor laws” .20

D,

Enforcement of the Regulation Is Violative of the 
Constitution and Laws of the United States.

If it be contended that the relationship between carriers 
and their respective passengers is determined, not by state 
law, but, because of the various transportation acts and the 
commerce clause, is fixed entirely by federal common law, 
the complete answer is that the limitations of the Fifth 
Amendment apply in the same way in which the Court in 
Shelley v. Kraemer,21 held that the limitations of the Four­
teenth Amendment applied, and that these limitations, and 
those specified in applicable Federal statutes, require that 
it be held that the regulations in question are invalid.

Two national interests are involved in the handling of 
interstate passenger traffic: (1) There is the over-all na­
tional interest of free flow to commerce, and (2) there is 
the national interest that no distinction because of race, 
color or national origin shall be permitted in areas sub­
ject to national control.22 Neither of these can be sub­
served otherwise than by adjudication of the invalidity of 
the regulation in question.

19 See Constitution of Virginia, Sec. 153; Code of Virginia, 1942, 
Sec. 3881.

20 South Florida R. Co. v. Rhoads, 25 Fla. 40, 5 So. 623, 3 L. R. 
A. 733, 737 (1889).

21 334 U. S. 1, 20-21, 68 S. Ct. 836, 845, 846 (1948).
22 Cf. Bob-Lo Excursion Co. v. Michigan, 333 U. S. 28, 68 S. Ct. 

358 (1948).



26

E.

The Decision of the Court in This Case Cannot Be
Controlled by the Decisions in Either Chiles v.
C hesapeake &  O. R. Co. or Plessy  v. Ferguson.

In Plessy v. Ferguson,23 24 25 26 defendant, seven-eighths white 
and one-eighth Negro, purchased a ticket for transportation 
between two points in Louisiana. He occupied a seat in the 
“ white”  coach, and was ejected therefrom and arrested for 
violation of a state statute requiring separate coaches for 
the races. This act had previously been construed as 
limited in operation to intrastate passengers.24 A demurrer 
to defendant’s plea that the statute was unconstitutional 
was sustained, whereupon defendant filed a petition for 
writs of prohibition and certiorari in the state supreme 
court, which upheld the validity of the act. On writ of 
error to the Supreme Court of the United States, it was 
contended that the act violated the Thirteenth and Four­
teenth Amendments. The Court held that the statute was 
valid as applied to intrastate commerce. Mr. Justice H arlan 
dissented.

In Chiles v. Chesapeake & 0. R. Co.,25 plaintiff, a Negro, 
sued the carrier for his ejection in Kentucky from the 
“ white”  car on the train in question. Plaintiff was an in­
terstate passenger and defendant an interstate carrier. 
Kentucky’s separate coach law had previously been con­
strued as limited in operation to intrastate passengers,20 
and the defendant carrier did not rely upon the same, but

23 1 63 U. S. 537, 16 S. Ct. 1138, 41 L. Ed. 256 (1896).
24 State ex rel. Abbott v. Hicks, 44 La. Ann. 770, 11 S. 75 (1892).
25218 U. S. 71, 30 S. Ct. 667, 54 L. Ed. 936 (1910).
26 Ohio Valley Ry.’s Receiver v. Lander, 104 Ky. 431, 47 S. W . 

344 (1898) ; Chesapeake & O. Ry. Co. v. Kentucky, 179 U. S. 338, 
21 S. Ct. 101, 45 L. Ed. 244 (1900).



27

claimed that, in excluding plaintiff from the car in ques­
tion, it acted pursuant to its rules and regulations. Plain­
tiff contended that the regulation was invalid as to him 
because he was an interstate passenger. The Court stated :27

“ And we must keep in mind that we are not deal­
ing with the law of a State attempting a regulation 
of interstate commerce beyond its powder to make. 
We are dealing with the act of a private person, to- 
wit, the railroad company, and the distinction be­
tween state and interstate commerce we think is un­
important.”

Continuing, the Court quoted with approval from Hall v. 
DeCuir,28 and said: 29 30

“ This language is pertinent to the case at bar, 
and demonstrates that the contention of the plain­
tiff in error is untenable. In other words, demon­
strates that the interstate commerce clause of the 
Constitution does not constrain the action of car­
riers, but, on the contrary, leaves them to adopt 
rules and regulations for the government of their 
business, free from any interference except by Con­
gress. * * * In other words, the statute was struck 
down because it interfered with the regulation of the 
carrier as to interstate passengers. * * * ”

Continuing, the Court, referring to Plessy v. Ferguson, 
stated: 80

“ It is true that the power of a legislature to 
recognize a racial distinction was the subject con­
sidered, but if the test of reasonableness in legisla­
tion be, as it w7as declared to be, ‘ the established 
usages, customs, and traditions of the people,’ and

27 30 S. Ct. at 668.
28 95 U. S. 485, 24 L. Ed. 547 (1877).
29 30 S. Ct. at 669.
30 30 S. Ct. at 669.



28

the ‘ promotion of their comfort and the preservation 
of the public peace and good order,’ this must also 
be the test of the reasonableness of the regulations 
of a carrier, made for like purpose and to secure 
like results. Regulations which are induced by the 
general sentiment of the community for whom they 
are made and upon whom they are to operate can­
not be said to be unreasonable.”

Although the Supreme Court has never expressly over­
ruled Plessy v. Ferguson or Chiles v. Chesapeake & 0. R. 
Co., even the most cursory examination of the cases in­
volving the rights of Negroes and other minorities as guar­
anteed by the Thirteenth, Fourteenth and Fifteenth Amend­
ments to the Constitution clearly demonstrates that these 
cases no longer are expressive of the interpretation of the 
present United States Supreme Court of the scope and 
effect of these amendments.

The synical sophistry of Justice Brown 31 is outmoded 
and is as typcial of the views of the Supreme Court today 
or of the thoughts of informed people,31 32 as are the coaches

3116 S. Ct. at p. 1143. “ W e consider the underlying fallacy of 
the plaintiff’s argument to consist in the assumption that the enforced 
separation of the two races stamps the colored race with a badge of 
inferiority. If this be so, it is not by reason of anything found in the 
act, but solely because the colored race chooses to put that construc­
tion upon it.”

32 The Report of the President’s Committee on Civil Rights at p. 
79. “ Mention has already been made of the ‘separate but equal’ 
policy of the southern states by which Negroes are said to be entitled 
to the same public service as whites but on a strictly segregated basis. 
The theory behind this policy is complex. On one hand, it recognizes 
Negroes as citizens and as intelligent human beings entitled to enjoy 
the status accorded the individual in our American heritage of free­
dom. It theoretically gives them access to all the rights, privileges, 
and services of a civilized, democratic society. On the other hand, it 
brands the Negro with the mark of inferiority and asserts that he is 
not fit to associate with white people.”  (Italics supplied.)



29

of that day representative examples of modern rail trans­
portation. In addition, such views are at variance with 
fact.33

In 1895 and 1910 the prevailing sentiment in this country 
appears to have been that this country was self-sufficient 
and could hold itself aloof from the rest of the world. To­
day, after the experience of two world wars, it is generally 
recognized that the destiny of this country is interwoven * 81

83 The Report of the President’s Committee on Civil Rights at p.
81. “ This judicial legalization of segregation was not accomplished 
without protest. Justice Harlan, a Kentuckian, in one of the most 
vigorous and forthright dissenting opinions in Supreme Court history, 
denounced his colleagues for the manner in which they interpreted 
away the substance of the Thirteenth and Fourteenth Amendments. 
In his dissent in the Plessy case, he said:

‘Our Constitution is color blind, and neither knows nor 
tolerates classes among citizens. * * *

‘W e boast of the freedom enjoyed by our people above all 
other peoples. But it is difficult to reconcile that boast with 
a state of the law which, practically, puts the brand of servi­
tude and degradation upon a large class of our fellow citizens, 
our equals before the law. The tin disguise of “ equal”  ac­
commodations * * * will not mislead anyone, or atone for the 
wrong this day done.’

If evidence beyond that of dispdssionate reason was needed to 
justify Justice Harlan’s statement, history has provided it. Segre­
gation has become the cornerstone of the elaborate structure of dis­
crimination against some American citizens. Theoretically this sys­
tem simply duplicates educational, recreational and other public ser­
vices, according facilities to the two races which are ‘separate but 
equal. In the Committee s opinion this is one of the outstanding 
myths of American history for it is almost always true that while 
indeed separdte, these facilities are far from equal.”  (Italics supplied.)



30

with that of other countries all over the world.34 And since 
three-fourths of the world’s population consists of colored 
or non-white persons, an attitude of smug racial aloofness 
is no longer compatible with sound national policy.35

34 United Nations Charter approved by U. S. Senate, Dec. 20, 
1945:

“ Article 55
“ With a view to the creation of conditions of stability and well­

being which are necessary for peaceful and friendly relations among 
nations based on respect for the principle of equal rights and self- 
determination of peoples, the United Nations shall promote: * * * 

c. Universal respect for, and observance of, human rights and 
fundamental freedoms for all without distinction as to race, sex, lan­
guage or religion.

“ Article 56
“ All members pledge themselves to take joint and separate action 

in cooperation with the Organization for the achievement of the pur­
poses set forth in Article 55.”

85 Report of the President’s Committee on Civil Rights, p. 146.
“ In a letter to the Fair Employment Practice Committee on May 

8, 1946, the Honorable Dean Acheson, then Acting Secretary of State, 
stated that:

‘ * * * i-pg existence of discrimination against minority groups 
in this country has an adverse effect upon our relations with 
other countries. W e are reminded over and over by some 
foreign newspapers and spokesmen, that our treatment of 
various minorities leaves much to be desired. While some­
times these pronouncements are exaggerated and unjustified, 
they all too frequently point with accuracy to some form of 
discrimination because of race, creed, color, or national origin. 
Frequently we find it next to impossible to formulate a satis­
factory answer to our critics in other countries; the gap be­
tween the things we stand for in principle and the facts of a 
particular situation may be too wide to be bridged. An atmos­
phere of suspicion and resentment in a country over the way 
a minority is being treated in the United States is a formidable 
obstacle to the development of mutual understanding and trust 
between the two countries. W e will have better international 
relations when these reasons for suspicion and resentment have 
been removed.

‘ I think it is quite obvious * * * that the existence of 
discriminations against minority groups in the United States 
is a handicap in our relations with other countries. The De­
partment of State, therefore has good reason to hope for the 
continued and increased effectiveness of public and private 
efforts to do away with these discriminations.’ ”  (Italics sup­
plied.)



31

For more than twenty years the Supreme Court has 
been gradually demonstrating an acute sense of awareness 
of the dangers in the rationale of the Plessy and Chiles 
cases and has moved farther and farther from the philos­
ophy which those cases expounded.

Bob-lo Excursion Co. v. Michigan 86 is a case not directly 
involving the Thirteenth, Fourteenth or Fifteenth Amend­
ments in which the Court cast aside technical difficulties 
and asserted the validity of a position which safeguarded 
the rights of Negroes. The Excursion Co. invited all comers 
to utilize its facilities, save disorderly persons and Negroes. 
It was prosecuted under Michigan’s Civil Rights Statute, 
and the Company sought to escape liability on the grounds 
that the Act did not apply to it for the reason that it op­
erated between Detroit and an island in the Province of 
Ontario, Canada, and was therefore engaged in foreign 
commerce. After noting that the traffic on the carrier was 
confined exclusively to its private island, the Court said :37

“ It is difficult to imagine what national interest 
or policy, whether of securing uniformity in regulat­
ing commerce, affecting relations with foreign na­
tions, or otherwise, could reasonably be found to be 
adversely affected by applying Michigan’s statute to 
these facts or to outweigh her interest in doing so. 
Certainly there is no national interest which over­
rides the interest of Michigan to forbid the type of 
discrimination practiced here. And, in view of these 
facts, the ruling would be strange indeed, to come 
from this Court, that Michigan could not apply her 
long-settled policy against racial and creedal dis­
crimination to this segment of foreign commerce, so 
peculiarly and almost exclusively affecting her people 
and institutions.

‘ ‘ The Supreme Court of Michigan concluded ‘ That 
holding the provisions of the Michigan statute effec- 38

38 3 33 U. S. 28, 68 S. Ct. 358 (1948). 
87 68 S. Ct. 364.



tive and applicable in the instant case results only 
in this, defendant will be required in operating its 
ships as “ public conveyances”  to accept as passen­
gers persons of the negro race indiscriminately with 
others. Our review of this record does not disclose 
that such a requirement will impose any undue bur­
den on defendant in its business in foreign com­
merce.’ 317 Mich. 689, 27 N. W. 2d 139, 142̂  Those 
conclusions were right.”

In a concurring opinion by Mr. Justice D ouglas, in which 
Mr. Justice B lack joined, it was stated:38

“ It is unthinkable to me that we would strike 
down a state law which required all carriers—local 
and interstate—to transport all persons regardless 
of their race or color. The common-law duty of car­
riers was to provide equal service to all, a duty which 
the Court has held a State may require of interstate 
carriers in the absence of a conflicting federal law. 
Missouri Pacific R. Co. v. Larabee Flour Mills Co., 
211 IT. S. 612, 619, 623, 624, 29 S. Ct. 214, 216, 218, 
53 L. Ed. 352. And the police power of a State under 
our constitutional system is adequate for the pro­
tection of the civil rights of its citizens against dis­
crimination by reason of race or color. Railway Mail 
Ass’n v. Corsi, 326 IT. S. 88, 65 S. Ct. 1483, 89 L. Ed. 
2072. Moreover, in this situation there is no basis 
for saying that the Commerce Clause itself defeats 
such a law. This regulation would not place a burden 
on interstate commerce within the meaning of our 
cases. It does not impose a regulation which dis­
criminates against interstate commerce or which, by 
specifying the mode in which it shall be conducted, 
disturbs the uniformity essential to its proper func­
tioning. See Southern Pacific R. Co. v. Arizona, 325 
U. S. 761, 65 S. Ct. 1515, 89 L. Ed. 1915; Morgan v. 
Virginia, supra.”

32

88 68 S. Ct. 365.



33

The Bob-lo case, as well as the New Negro Alliance,m 
Steele;10 and fly. Mail Ass’n 41 cases, involved circumstances 
and situations calculated to bring the two races into as 
close or closer actual social contact than would ordinarily 
be involved by the indiscriminate seating of passengers on 
the buses of appellee.

It is inconceivable that the United States Supreme 
Court, in view of its holdings and language in the Morgan 
case, and, particularly, in light of its manifest concern in 
protecting the rights of minorities from oppression as dem­
onstrated by the cases referred to immediately above and 
in other portions of this brief, would now hold that either 
Plessy or Chiles were applicable to the facts of the instant 
ease.

It is impossible to square the Plessy and Chiles cases 
with the applicable Constitutional and statutory provisions, 
or to reconcile them with more recent decisions applying 
the same or the changed philosophy reflected therein. It 
should be remembered that the Plessy case dealt with a 
statute applicable only to intrastate passengers, and that 
the rights of interstate passengers stand on an entirely dif­
ferent footing. In that case, the opinion relied heavily upon 
the leading state case in the field of racial segregation39 40 41 42 
and the only one of the cited cases discussed in the majority 
decision—which was decided almost twenty years before 
the adoption of the Fourteenth Amendment. Yet, it was 
the very diversity of opinion, so pronounced in 1849, on the 
reasonableness of legal distinctions based on race which 
the Fourteenth Amendment sought to settle. Antebellum

39 New Negro Alliance v. Sanitary Grocery Company, 303 U. S. 
552, 58 S. Ct. 703, 82 L. Ed. 1012 (1938).

40 Steele v. L. & N. R. Co., 323 U. S. 192, 65 S. Ct. 226 (1944).
41 Ry. Mail Ass’n v. Cor si, 326 U. S. 88, 65 S. Ct. 1483 (1945).
42 Roberts v. City of Boston, 5 Cush. (Mass.) 198 (1849).



34

justifications of segregation have no more logical place in 
the interpretation of the Fourteenth Amendment than ante­
bellum notions of voting restrictions have in defining the 
scope and meaning of the Fifteenth Amendment. Further­
more, the Plessy case was decided upon pleadings which 
assumed a theoretical equality within segregation rather 
than on a full hearing and evidence which would have re­
vealed equality to be impossible under a system of segre­
gation.

Nor can the decision in the Plessy case be reconciled 
with the Shelley case. Certainly the Plessy case approved 
a statute which treated Negroes and whites differently. 
This, the Court held in the Shelley case, is a denial of the 
equal protection of the laws.

Under the theory of the Chiles case, segregation regula­
tions are a reasonable exercise of the carrier’s authority 
by the law of the state. This, however, can be true only 
because the substantive law of the state as formulated by 
the state courts brought about this result. By the legal 
theory hereinbefore set forth, such a rule of substantive law 
falls short of meeting the requirements of equal protection 
of the laws since different rules are provided for whites 
and Negroes.

At the time of the decision in the Chiles case, the Court 
was not committed to the doctrine that common law deter­
minations by state courts might violate the provisions of 
the Fourteenth Amendment. But the Court is now com­
mitted to that doctrine. Nor did the Court in the Chiles 
case consider recognizable difference in the type of carrier 
rule or regulation designed to protect the safety, comfort 
and convenience of the traveling public, and a carrier rule 
or regulation designed to compel a racial segregation of 
passengers. And so far as either the Plessy or Chiles cases 
rest upon Hall v. DeCuir, the validity of the comments in



35

that case relative to the power of a carrier to enforce a 
segregation regulation must be tested in the light of the 
later decisions, particularly the Morgan and Bob-Lo cases.

II.
Whether the Carrier Rule or Regulation in Question, 
Requiring Appellant, Solely Because of Her Race 
and Color, to Remove to the Rear of the Bus, Was a 

Reasonable Rule or Regulation.

The lower court answered— Y es

Appellant contends it should he answered-—No

The authority of courts to determine the reasonableness 
of a carrier’s rules and regulations affecting the traveling 
public is beyond question. While in the instant case there 
has been discussion as to whether the question of reason­
ableness of such rule or regulation is a question of law for 
the Court, or a question of fact for the jury, or a mixed 
question of law and fact, the prevailing principle appears 
to be as follows:43

“ In those instances where there is a dispute as to 
the facts or circumstances affecting the reasonable­
ness of the rule, such question may be deemed a mixed 
question of law and fact. However, where the facts 
are not in dispute and do not admit of conflicting 
inferences, the generally accepted view is that the 
reasonableness of a rule or regulation of a common 
carrier is not a question of fact for the jury, but of 
law for the court, although it may be proper for the 
court to admit testimony as to the necessity of such 
rule, in the light of the surrounding facts and circum­
stances. ’ ’

43 10 Am. Jur., “ Carriers,”  Sec. 1026.



36

Such also appears to be the law of Virginia, as an­
nounced by its highest court.44

Appellant submits that the factors which render un­
reasonable a rule or regulation making distinctions solely 
on the basis of race or color are clear and are beyond dis­
pute in the instant case, with the result that the issue thus 
presented is for determination by the Court, and should be 
determined in appellant’s favor.

A.

Enforcement of the Claimed Rule or Regulation 
Subjects Interstate Passengers to Undue Burdens, 

Hardships, Inconveniences and Disadvantages.

It is now settled that the transportation of passengers 
from one state to another is interstate commerce,45 that a 
passenger thus traveling is himself engaged in interstate

44 Virginia Ry. & P. Co. v. O’Flaherty, 118 Va. 749, 88 S. E. 
312 (19 16 ); Norfolk & W. Ry. Co. v. Brame, 109 Va. 442, 63 S. E. 
1018 (19 09 ); Virginia & S. W. Ry. Co. v. Hill, 105 Va. 738, 54 
S. E. 872 (1906) ; Norfolk & W. R. Co. v. Wysor, 82 Va. 250 
(1886).

45 Morgan v. Virginia, 328 U. S. 373, 66 S. Ct. 1050, 90 L. Ed.
1317 (1 9 4 6 ) ; Edwards v. California, 314 U. S. 160, 62 S. Ct. 164, 86 
L. Ed. 119 (1941 ); Mitchell v. United States, 313 U. S. 80, 61 S. 
Ct. 873, 85 L. Ed. 1201 (1941) ; United States v. Hill, 248 U. S. 420, 
39 S. Ct. 143, 63 L. Ed. 337 (1 9 1 9 ) ; Caminetti v. United States, 242 
U. S. 470, 37 S. Ct. 192, 61 L. Ed. 442 (1 9 1 7 ) ; Hoke v. United 
States, 227 U. S. 308, 33 S. Ct. 281, 57 L. Ed. 523 (1 9 1 3 ) ; Coving­
ton & C. Bridge Co. v. Kentucky, 154 U. S. 207, 14 S. Ct. 1087, 38 
L. Ed. 962 (1894) ; Gloucester Ferry Co. v. Pennsylvania, 114 U. S. 
196, 5 S. Ct. 826, 29 L. Ed. 158 (1885) ; Matthews v. Southern R. 
C o.,-------App. D. C .-------- , 157 F. (2d ) 609 (1946).



commerce,46 and that a forbidden burden on interstate com­
merce may follow from a regulation of interstate commerce 
which affects the passenger only.47

In the Morgan case,48 the Supreme Court of the United 
States held that the Virginia, statute49 requiring the segre­
gation of passengers on public motor carriers according to 
color, and making it a misdemeanor for any passenger to 
refuse to change seats as required by the driver, pursuant 
to any lawful rule, regulation or custom in force on such 
line as to assigning separate seats or other space to white 
and colored persons, respectively, was invalid because it 
imposed an unlawful burden on interstate commerce, in vio­
lation of Article 1, Section 8, of the Constitution of the 
United States. The Court held that in consideration of the 
segregation law involved, and in the further consideration 
of the balance of the local interest on the one hand, and the 
national interest50 in interstate commerce and passengers

46 Morgan v. Virginia, supra, footnote 45; Mitchell v. United 
States, supra, footnote 45; Covington & C. Bridge Co. v. Kentucky, 
supra, footnote 45; Matthews v. Southern R. Co., supra, footnote 
45.

47 Morgan v. Virginia, supra, footnote 45; Matthews v. Southern 
R. Co., supra, footnote 45; Washington, B. & A. Elec. R. Co. v. 
Waller, 53 App. D. C. 200, 289 F. 598, 30 A. L. R., 50 (1923 ); 
McCabe v. Atchison, T. & S. F. Ry. Co. (C. C. A., 8th), 186 F. 966 
(19 11 ); Anderson v. Louisville & N. R. Co. (C . C , K y .), 62 F 
46 (1894 ); State v. Jenkins, 124 Md. 376, 92 A. 773 (1914 ); Hart 
v. State, 100 Md. 596, 60 A. 457 (19 05 ); Carrey v. Spencer (N . Y. 
Sup. Ct.) 36 N. Y. S. 886 (1895).

48 Supra, footnote 45.
49 Code of Virginia, 1942, Sections 4097z to 4097dd, inclusive.
,50 The national interests involved in the handling of interstate 

passenger traffic are twofold: (1 ) there is the over-all national inter­
est of free flow_ of commerce, and (2 ) there is the national interest 
that no distinction because of race, color or national origin shall be 
permitted in areas subject to national control.



engaged therein on the other hand, the latter predominated, 
and consequently, the statute in question was invalid/’1

In determining the reasonableness and enforceability of 
a carrier’s segregation regulation, as applied to an inter­
state passenger, the same evaluative process obtains.0* It 
is clear that a segregation regulation, privately promul­
gated by an interstate carrier, affects passengers traveling 
on its vehicles in precisely the same fashion that a segre­
gation law does. Irrespective of its source, the same disas­
trous effect upon interstate commerce, and upon passengers 
traveling in interstate commerce, follows from an enforce­
ment of the regulation. Consequently, the burdens upon 
such commerce resulting from the enforcement of the Vir­
ginia law necessarily follow from the enforcement of a 
regulation which seeks to accomplish substantially the same 
end.

Since the effect upon interstate commerce is the same 
whether the segregation is sought to be accomplished by 
statute, or is sought to be accomplished by carrier regula­
tion, the regulation involved in this case is invalid. 51 * 53

51 The same conclusion had previously been reached in all of the 
lower Federal courts, and in most of the state courts, which had con­
sidered the question. Washington, B. & A. Elec. R. Co. v. Waller,
53 Aon. D. C. 200, 289 F. 598, 30 A. L. R. 50 (1923) ; Thompkins 
v. Missouri, K. & T. Ry. Co. (C. C. A. 8th), 211 F. 391 (1914 ), 
McCabe v. Atchison, T. & S. F. Ry. Co. (C. C. A. 8th), 186 F. 
966 (1911 ); Anderson v. Louisville & N. R. Co. (C. C. K y .), 62 h. 
46 (1894 ); Brown v. Memphis & C. R. Co. (C. C. Tenn.), 5 F. 499 
(18 80 ): State v. Galveston H. & S. A. Ry. Co. (Tex. Civ. A pp.), 
184 S. W . 227 (1916 ); Huff v. Norfolk & S R Co 171 N. C. 203 
88 S. E. 344 (19 16 ); State v. Jenkins, 124 Md. 376, 92 A. 773 
(1914 ); Hart v. State, 100 Md. 596, 60 A. 457 (19 05 ); Carrey v. 
Spencer (N . Y . Sup. Ct.), 36 N. Y . S. 886 (1895) ; State, ex rel. 
Abbott v. Hicks, 44 La. Ann. 770, 11 S. 74 (1892).

62 See Chiles v. Chesapeake & O. R. Co., 218 U. S. 71, 30 S. Ct. 
667, 669, 54 L. Ed. 936 (1910).



39

In the Morgan case, the Court stated the following 
propositions: 53

“ Burdens upon commerce are those actions of a 
state which directly ‘ impair the usefulness of its 
facilities for such traffic.’ That impairment, we think, 
may arise from other causes than costs or long de­
lays. A  burden may arise from a state statute which 
requires interstate passengers to order their move­
ments on the vehicle in accordance with local rather 
than national requirements.”

The regulation involved in the instant case requires 
interstate passengers to order their movements upon buses 
of appellee carrier in accordance with local rather than 
national requirements.

The operation of the law under, consideration in the 
Morgan case is described in the following language:54

“ On appellant’s journey, this statute required 
that she sit in designated seats in Virginia. Changes 
in seat designation might be made ‘ at any time’ dur­
ing the journey when ‘necessary or proper for the 
comfort and convenience of passengers.’ This oc­
curred in this instance. Upon such change of desig­
nation, the statute authorizes the operator of the 
vehicle to require, as he did here, ‘ any passenger to 
change his or her seat as it may be necessary or 
proper’.”

The regulation involved in the instant case has precisely 
the same operation as respects interstate passengers as did 
the statute involved in the Morgan case. As the evidence in 
this case shows, under the regulation in question, changes 
in seat designation might be required at any time during 
the journey when necessary or proper for the comfort and 
convenience of passengers. Under the regulation in ques­

53 328 U. S. at 380-381.
54 328 U. S. at 381.



40

tion, the conductor is authorized to require any passenger 
to change his or her seat as it may be necessary or proper.

With respect to the operation of the statute, which had 
the same requirements as does the regulation involved in 
this case, the Court, in the Morgan case, had this to say :55

“ An interstate passenger must if necessary re­
peatedly shift seats while moving in Virginia to 
meet the seating requirements of the changing pas­
senger group. On arrival at the District of Columbia 
line, the appellant would have had freedom to occupy 
any available seat and so to the end of her journey.

“ Interstate passengers traveling via motors be­
tween the north and south or the east and west may 
pass through Virginia on through lines in the day 
or in the night. The large busses approach the com­
fort of pullmans and have seats convenient for rest. 
On such interstate journeys the enforcement of the 
requirements for reseating would be disturbing.”

There are additional important considerations. In the 
Morgan case, the Court stated further as follows: 86

“ Appellant’s argument, properly we think, in­
cludes facts bearing on interstate motor transporta­
tion beyond those immediately involved in this jour­
ney under the Virginia statutory regulations. To 
appraise the weight of the burden of the Virginia 
statute on interstate commerce, related statutes of 
other states are important to show whether there 
are cumulative effects which may make local regu­
lation impracticable. Eighteen states, it appears, 
prohibit racial separation on public carriers. Ten 
require separation on public carriers. Of these Ala­
bama applies specifically to interstate passengers 
with an exception for interstate passengers with 
through tickets from states without laws on sepa- * 66

58 328 U. S. at 381.
66 3 28 U. S. at 381-382.



41

ration of passengers. The language of the other 
acts, like this Virginia statute before the Court of 
Appeals ’ decision in this case, may be said to be sus­
ceptible to an interpretation that they do or do not 
apply to interstate passengers.”

The rule is well settled, and has consistently been ap­
plied, that where uniformity is essential to the functioning 
of interstate commerce, a state may not interpose its local 
regulation.57 It is clear that the same necessity for uni­
formity in the functioning of interstate commerce obtains 
when the regulation of interstate passengers on a racial 
basis is sought to be accomplished by means of a carrier 
regulation.

In similar fashion, it must be recognized that there may 
be as many different rules or regulations privately promul­
gated as there are carriers. There may be a multiplicity 
of variations in the provisions of such regulations, a mul­
tiplicity of variations in exceptions to the operation of such 
regulations, a multiplicity of variations in the construction 
of such regulations, and a multipilicity of variations in the 
application of such regulations.

The same factors which influenced the Court in de­
claring that the states are without authority to require the 
separation of races in interstate commerce are at work 
with equal force when the effect of a carrier regulation 
enforcing such segregation is considered. In the Morgan 
case the Court found that one of the main vices of giving

57 Southern Pacific Co. v. Arizona, 325 U. S. 761, 65 S. Ct. 1515, 
89 L. Ed. 1915 (1 9 4 5 ) ; Kelly v. Washington, 302 U. S. 1, 58 S. Ct. 
87, 82 L. Ed. 3 (1937 ); Minnesota Rate Cases, 230 U. S. 352, 33 
S. Ct. 729, 57 L. Ed. 1511 (1913 ); Leisy v. Hardin, 135 U. S. 100, 
10 S. Ct. 681, 34 L. Ed. 128 (1890) ;  Bowman v. Chicago & N. W. 
R. Co., 125 U. S. 465, 8 S. Ct. 689, 31 L. Ed. 700 (1888) ; Wei ton v 
Missouri, 91 U. S. 275, 23 L. Ed. 347 (1876 ); Gibbons v. Ogden, 9 
Wheat. 1, 6 L. Ed. 23 (1824).



42

effect to local statutes enforcing segregation in interstate 
commerce was the difficulty of identification.58

“ In states where separation of races is required 
in motor vehicles, a method of identification as white 
or colored must be employed. This may be clone by 
identification. Any ascertainable Negro blood iden­
tifies a person as colored for purposes of separation 
in some states. In the other states which require 
the separation of the races in motor carriers, ap­
parently no definition generally applicable or made 
for the purpose of the statute is given. Court defini­
tion or further legislative enactments would be re­
quired to clarify the line between the races. Ob­
viously there may be changes by legislation in the 
definition.”

That difficulty is no less when the separation is at­
tempted by a carrier regulation rather than a state statute.

Carrier segregation regulations are even less precise 
in this regard than are segregation laws. The evidence in 
this case does not show that defendant has at any time at­
tempted to formulate a definition or test by the application 
of which a passenger may be determined as a white pas­
senger or as a colored passenger within the meaning of the 
regulation in question. It is also perfectly clear that, as 
between different carriers and their respective segregation 
regulations, there are bound to be a multiplicity of varia­
tions of definitions of passengers as white or colored, and 
a multiplicity of variations in ascertainment of passengers 
as white or colored. There is, moreover, even less reason 
for giving effect to a carrier regulation than to a state stat­
ute. None of the factors which are said to give validity to a 
legislative judgment which is expressed in segregation laws 
are operative where carrier regulations are involved.

58 328 U. S. at 382-383.



43

The evidence in this case shows that on busses of defen­
dant, there are frequent changes of conductors, and that 
under the regulation in question, the conductors themselves 
make the determinations whether a given passenger is white 
or colored. Consequently, as between different conductors, 
there are bound to be variations in the enforcement with 
respect to given passengers of the regulation in question. 
With respect to one conductor, a passenger might be a 
colored passenger, while with respect to another conduc­
tor, the same passenger might be a white passenger within 
the meaning of the regulation as applied by that particular 
conductor.

Since the carrier has supplied no definition or test by 
the application of which such conductors may make the 
determination, if a standard is to be found at all, it must 
be by process of adoption of the definitions of all states 
along the route over which the regulation is to operate. An 
examination of the law of the states where legislative or 
judicial efforts in this direction have been made reveals 
that there is much diversity and conflict in the rules govern­
ing the proportion of “ Negro blood”  necessary to classify 
a person as a “ Negro”  or “ colored person” .59

The terms “ colored person”  and “ Negro”  have been 
variously defined as including all persons in whom there 
is ascertainable any quantum of “ Negro blood”  whatever,60

59 Some states have defined the terms by a general statute. Others 
have defined them only with respect to particular subjects. In some 
states, the definition varies according to the subject under considera­
tion, so that a person may be classified as a colored person or Negro 
for one purpose and as a white person for another. In states where 
no statutory definition has been attempted, the courts are faced with 
the difficulty of deciding the query as best they can.

60 Ala. Code, 1940, Tit. 1, Sec. 2 and Title 14, Sec. 360; Ark. 
Stat. (P ope), 1937, Sec. 3290 (concubinage statute) and Sec. 1200 
(separate coach la w ); Ga. Laws, 1927, p. 272; Ga. Code (Michie 
Supp.) 1928, Sec. 2177; N. C. Gen. Stat. 1943, Sec. 115-2 (separate 
school law ); Tenn. Code (M ichie) 1938, Sec. 8396; Va. Code 
(M ichie), 1942, Sec. 67.



44

or all persons of Negro or African descent,61 or only those 
persons who are of “ Negro blood”  to the third generation 
inclusive,62 or the fourth generation inclusive,63 or who have 
one-fourth 64 or one-eighth 65 or more “ Negro blood” . The 
range is so great that the same person making an interstate 
trip may be a Negro or colored person in one state through 
which he passes and a white person in another and con­
sequently may find himself faced with the threat of ejection 
because of a noncompliance with carrier segregation regu­
lations necessitating a change of accommodations to con­
form to his changing legal status.

Moreover, the definitions within the same state are fre­
quently conflicting. Aside from those states which have a 
general statute defining the terms, only three have been 
found wherein the legislative definition is specifically ap­
plicable to segregation in transportation.66 Assuming that 
the definition in an act covering another field of activity 
may be used as a pointer to show the general meaning of

61 Okla. Const., Art X X III , Sec. 11; Art. X III , Sec. 3 ; 43 Okla. 
Stat. Ann. 12 (inter-marriage la w ); 70 Okla. Stat. Ann. 452 (sepa­
rate school law) ; 13 Okla. Stat. Ann. 183 (separate coach la w ); Tex. 
Rev. Civ. Stat. (Vernon), 1936, Art. 2900 (separate school la w ); 
Art. 6417 (separate coach la w ) ; Art. 4607 (inter-marriage law).

62Md. Code (Flack), 1939, Art. 27, Sec. 445 (intermarriage); 
N. C. Const., Art X IV , Sec. 8 (m arriage); N. C. Gen. Stat., 1943, 
Sec. 51-3 and 14-181 (marriage la w ) ; Tenn. Const., Art. X I, Sec. 
14 (miscegenation); Tenn. Code (M ichie), 1938, Sec. 8409 (mis­
cegenation) ; Tex. Pen. Code (Vernon), 1935, Sec. 493 (miscege­
nation).

63Fla. Const., Art. X V I, Sec. 24 (marriage).
64Ore. Comp. Laws, 1940, Sec. 23-1010 (intermarriage).
65Fla. Stats., 1941, Sec. 1.01 ( 6 ) ;  Ind. Stat. (Burns), 1933, Sec. 

44-104 (intermarriage); Miss. Const., Sec. 263, Miss. Code, 1942, 
Sec. 459 (intermarriage); Mo. Rev. Stat. 1939, Sec. 4651 (inter­
marriage) ; Ore. Comp. Laws, 1940, Sec. 23-1010 (intermarriage) ; 
S. C. Const., Art. I l l ,  Sec. 33 (intermarriage) ; N. D. Rev. Code 
Secs. 14-0304 and 14-0305 (intermarriage).

60 Arkansas, Oklahoma, Texas. See ante, footnotes 60 and 61. 
See also Lee v. New Orleans G. N. Ry., 125 La. 236, 51 S. 182.



45

the terms in that jurisdiction, this course has not always 
been followed.07 Besides, in some instances, two conflicting 
definitions are to be found in the law of a single state,67 68 in 
each of which instances the applicable criterion as to trans­
portation segregation is speculative. Since one carrier may 
follow one rule, and another carrier the other, and a third 
carrier a third rule with equal justification in the light of 
the ambiguous character of the statutory definitions, the 
harmonious flow of interstate traffic can never be assured.

Furthermore, such definitions are subject to change at 
any time and have frequently been changed in the past.69

67 Compare Tucker v. Blease, 97 S. C. 303, 81 S. E. 668 with 
Moreau v. Grandich, 114 Miss. 560, 75 S. 434.

88Alabama: The Constitution, Sec. 102, formerly prohibited mar­
riages of whites and persons of Negro blood no matter how remote 
the strain, while the marriage law (Code, 1923, Sec. 5001) only 
prohibited marriages of whites with persons of Negro blood to the 
third generation inclusive. This conflict was not removed until 1927 
by Acts, 1927, p. 219.

Tennessee: Two statutes define the term “ Negro”  or “ a person 
of color”  as including every person who has any Negro blood in his 
veins (footnote 60) while the constitutional provision and the statute 
forbidding interracial marriages (footnote 62) only prohibit the union 
of whites and persons who have Negro blood to the third generation 
inclusive.

Texas: The separate school law, separate coach law, and inter­
marriage law all define the terms as including any descendant from 
Negro ancestry (footnote 60), but the penal statute punishing mis­
cegenation defines the term “ Negro”  as including only those persons 
who are of Negro blood to the third generation inclusive.

Kentucky: See footnote 69.
Florida: See footnote 69.
89Alabama: Prior to 1927, the marriage law forbade marriages 

of whites with persons of Negro blood to the third generation inclu­
sive. Ala. code, 1923, Sec. 5001. This rule was changed in 1927 
(footnote 68, supra) in order to conform the statute to the consti­
tutional provision.

Florida: Two statutes define the word “ Negro”  in such manner 
as to embrace only those who have one-eighth or more Negro blood 
(footnote 65), but the constitution (footnote 63) prohibits interracial 
marriages to the “ fourth generation inclusive” .

(Footnote 69 continued on page 46)



46

Commerce is thus subjected to additional harassment at 
the hands of state legislatures whose every attempt at re-
( Footnote 69 continued from page 45)

Georgia: Until 1927, a person was classified as colored only if he 
had one-eighth or more Negro blood. Ga. Code (M ichie), 1926, Sec. 
2177. In that year the definition was changed to include any person 
having any ascertainable portion of Negro blood (see footnote 60).

Kentucky: This State has no statutory definition. It was early 
held that the old Virginia law providing that all persons having one- 
fourth or more Negro blood were to be classified as colored persons 
has been carried over into Kentucky at the time that State was carved 
out of territory belonging to Virginia. Gentry v. McMinnis, 33 Ky. 
382. However, in Mullins v. Belcher, 142 Ky. 673, 143 S. W . 1151, 
it was held that a child having one-sixteenth Negro blood could not 
attend a white school, the court holding that any child having an 
appreciable amount of Negro blood is colored. Nevertheless, it has 
been decided that a person who looks white, has straight hair, is of a 
copper complexion, and has other characteristics of a white person 
is not a mulatto within the statute prohibiting the marriage of white 
and Negroes or mulattos. Theophanis v. Theophdnis, 244 Ky. 689, 
57 S. W._ (2d) 957.

Louisiana: It was first held in this state that all persons, including 
Indians, who were not of the white race were “ colored.”  Adelle v. 
Beaugard, 1 Mart. 183. In 1910, it was held that anyone having an 
appreciable portion of Negro blood was a member of the colored race 
within the meaning of the segreation law. Lee v. New Orleans G. N. 
Ry., 125 La. 236, 51 S. 182, supra footnote 66. In the same year, 
however, it was decided that an octoroon was not a member of the 
Negro or black race within the meaning of the concubinage law (La. 
Act, 1908, No. 87). State v. Treadaway, 126 La. 300, 52 S. 500. 
Shortly after the latter decision, the present concubinage statute was 
enacted substituting the word “ colored” for “ Negro” . La. Acts, 
1910, No. 206, La. Crim. Code (D art), 1932, Art. 1128-1130. The 
effect of the change is yet to be determined.

North Carolina: On the issue of what children of mixed blood, 
if any, should be permitted to attend white schools, it was held in 
Hare v. Board of Education, 113 N. C. 10, 18 S. E. 55, that the 
definition employed in the marriage law would be determinative. This 
was changed in 1903 by a statute providing that no child with Negro 
blood in his viens should attend a white school. N. C. Pub. Laws 
1903, Ch. 435, Sec. 22; N. C. Gen. Stats., 1943, Sec. 115-20.

Virginia: Va. Code, 1887, Sec. 49 provided that those who had 
one-fourth or more Negro blood were to be considered colored. This 
was changed in 1910 (Acts, 1910, p. 581) to read one-sixteenth or 
more. It was again changed in 1930 by Acts, 1930, p. 97, to its 
present form. See footnote 60. Virginia also has a race registration 
act. Va. Code, 1942 (M ichie) Sec. 5099a.



47

definition produces an increased burden upon the passen­
ger.

An important consideration in this connection is that if 
the carrier makes an error of identification, it will become 
subject to burdensome litigation.™ Hence, it is clear that 
the segregation regulation is as objectionable and as bur­
densome to commerce as was the Virginia statute outlawed 
in the Morgan case.

The Morgan decision was predicated entirely upon the 
effect of a segregation statute upon the passenger. There, 
the Court appropriately stated:70 71

“ The interferences to interstate commerce which 
arise from state regulation of racial association on 
interstate vehicles has long been recognized. Such 
regulation hampers freedom of choice in selecting ac­
commodations. The recent changes in transportation 
brought about by the coming of automobiles does 
not seem of great significance in the problem. People 
of all races travel today more extensively than in 
1878 wThen this Court first passed upon state regula­
tion of racial segregation in commerce. The factual 
situation set out in preceding paragraphs emphasizes 
the soundness of Court’s early conclusion in Hall v. 
DeCuir, 95 IT. S. 485, 24 L. Ed. 547.”  (Italics sup­
plied.)

The contention of appellee and the decision of the Court 
below, ignore completely the right of a Negro passenger to 
enjoy the society and companionship of any fellow passen­
ger to whom he may be socially acceptable irrespective of 
race. This right is granted every one but a Negro.

70 See Louisville & N. R. R. v. Ritchel, 148 Ky. 701, 147 S. W . 
411 (1912) ; Missouri K. & T. Ry. Co. of Texas v. Ball, 25 Tex. Civ. 
App. 500, 61 S. W . 327 (19 01 ); Chicago R. I. & P. Ry. Co. v. Allison, 
120 Ark. 54, 178 S. W . 401 (1915), where punitive damages were 
afforded white persons for mistaken placement in colored coaches.

71 328 U. S. at 383.



48

Thus, if the Court should persist in recognizing the 
validity of rules and regulations such as the alleged rule 
and regulation invoked by the defendants in this case the 
Court could find itself compelling the segregation of two 
soldiers, one Negro and one white, traveling under the same 
orders after the President has issued an Executive Order 72 
requiring the elimination of all segregation among members 
of the armed forces.

Furthermore, to say that segregation on a public carrier 
is not discrimnation is to close one’s eyes to reality. The 
purpose of segregation is not to preserve the public peace 
or good order, but amounts to a value judgment indicating 
the inferiority of Negroes and the superiority of whites.73

72 Executive Order No. 9981, July 26, 1948.
73 See Gunnar Myrdal, An American Dilemma (New York, 

1944), pp. 580-581: “ When the federal Civil Rights Bill of 1875 was 
declared unconstitutional, the Reconstruction Amendments to the 
Constitution— which provided that Negroes are * * * entitled to 
‘equal benefit of all laws’ * * * could not be so easily disposed of. 
The Southern whites, therefore, in passing their various segregation 
laws to legalize social discrimination, had to manufacture a legal fic­
tion of the same type as we have already met in the preceding dis­
cussion on politics and justice. The legal term for this trick in the 
social field, expressed or implied in most of the Jim Crow statutes is 
‘separate but equal’. That is, Negroes were to get equal accommo­
dations, but separate from the whites. It is evident, however, and 
rarely denied, that there is practically no single instance of segrega­
tion in the South which has not been utilized for a significant dis­
crimination. The great difference in quality of service for the two 
groups in the segregated set-ups for transportation and education is 
merely the obvious example of how segregation is an excuse for dis­
crimination.”

See also Charles S. Johnson, Patterns of Segregation (New York, 
1943), p. 4 : “ It is obvious that the policy of segregation which the 
American system of values proposes, merely to separate and to main­
tain two distinct but substantially equal worlds, is a difficult ideal to 
achieve. Any limitation of free competition inevitably imposes un­
equal burdens and confers unequal advantages. Thus, segregation 
or any other distinction that is imposed from without almost in­
variably involves some element of social discrimination as we have 
defined it.”

(Footnote 73 continued on page 49)



49

It reinforces a color caste system which has plagued our 
democratic concepts since the birth of this nation. The en­
forcement of such policy is a humiliation to Negro pas­
sengers, not because they so construe it, but because it is 
a fact. The doctrine of “ separate but equal” , as employed 
to sustain a state statute requiring segregation in intra­
state commerce,74 * is as fictional and unreal as such a doctrine 
when applied to a carrier regulation in interstate commerce. 
As Mr. Justice Harlan, correctly and properly recognizing 
that any policy of enforced racial segregation in a public 
carrier is necessarily both discriminatory and undemocratic, 
wrote in his dissenting opinion in Plessy v. Ferguson?5

“ The arbitrary separation of citizens, on the basis 
of race, while they are on a public highway, is a 
badge of servitude wholly inconsistent wdth the civil 
freedom and the equality before the law established 
by the Constitution. It cannot be justified on any 
legal grounds. * * * The thin disguise of ‘ equal’ 
accommodations for passengers in railroad coaches 
will not mislead anyone or atone for the wrong this 
day done.”

Plaintiff therefore submits that a segregation rule or 
regulation subjecting, as it does, passengers to such bur­
dens, hardships, inconveniences and disadvantages, cannot 
validly operate against passengers in interstate commerce.
(Footnote73 continued from page 48)

p. 318: “ The laws prescribing racial segregation are based upon 
the assumption that racial minorities can be segregated under condi­
tions that are legally valid if not discriminating. Theoretically, seg­
regation is merely the separate but equal treatment of equals. In 
such a complex and open society as our own, this is, of course, neither 
possible nor intended; for whereas the general principle of social 
regulation and selection is based upon individual competition, special 
group segregation within the broad social frame-work must be ef­
fected artificially and by the imposition of arbitrary restraints. The 
result is that there can be no group segregation without discrimina­
tion, and discrimination is neither democratic nor Christian.”

74 Plessy v. Ferguson, 163 U. S. 537, 16 S. Ct. 1138, 41 L. Ed. 
256 (1896).

75 163 U. S. 561, et. seq.



50

B .

The Reasonableness of the Regulation in Question 
Cannot Be Sustained Upon the Basis of Any 

Consideration Advanced by Appellee.

In order for a regulation of a carrier to be considered 
reasonable, it must be shown to have a direct relation to the 
efficiency of the carrier’s services, the comfort, convenience, 
safety or health of its passengers.76 Defendants claim that 
the regulation involved in the instant case is reasonable 
because it is allegedly in accord with customs and tradi­
tions,. and is essential to the preservation of the public 
peace and good order.

Neither of these considerations can sustain the validity 
of the regulation involved.

Furthermore, the rights of the passenger must be con­
sidered in determining the validity of, or weight to be given 
to, the consideration advanced. In Buchanan v. Warley,77 
where a vain attempt was made to justify the validity of 
an ordinance requiring racial residential segregation, by 
advancing the same consideration, the Court said:78

“ It is urged that this proposed segregation will 
promote the public peace by preventing race conflicts. 
Desirable as this is, and important as is the preserva­
tion of the public peace, this aim cannot be accom­
plished by laws or ordinances which deny rights 
created or protected by the federal Constitution.”

Nor can the regulation be justified by the argument that 
it is essential to the preservation of the public peace or

76 Washington, B. & A. Elec. Ry. Co. v. Waller, S3 App. D. C. 
200, 289 F. 598 (1923 ); South Florida R. Co. v. Rhoads, 25 Fla. 40, 
5 S. 633, 3 L. R. A. 733 (1889) ; Britton v Atlantic & C. A. L. Ry. 
Co., 88 N. C. 536 (1883).

77245 U. S. 60, 38 S. Ct. 16, 62 L. Ed. 149 (1917).
78 38 S. Ct. at 20.



51

good order. The evidence fully and conclusively demon­
strates that this argument is contrary to fact.

Therefore, appellant submits that the reasonableness of 
the regulation in question cannot be sustained upon the 
basis of any consideration advanced by appellees or found 
by the court below.

Relief -

For reasons hereinabove stated the judgment 
herein complained of should be reversed.

Respectfully submitted,

J oseph S. F reeland,
Oliver W . H ill,
Martin A. Martin, 
Spottswood W. R obinson, III, 
R obert L. Carter,
T hurgood Marshall,

Attorneys for Appellant.



L awyers P ress, I nc., 165 William St., N. Y. C. 7 ; ’Phone: BEekman 3-2300



I