Brown v. Mississippi Transcript of Record

    In the

Supreme Court of the United States
October Term, 1959

No. 409

BRUCE BOYNTON,
Petitioner

COMMONWEALTH OF VIRGINIA,
Respondent

%
On Petition for a Writ of Certiorari to the Supreme 

Court of Appeals of Virginia

BRIEF AND APPENDIX FOR RESPONDENT IN OPPOSITION 
TO THE PETITION FOR WRIT OF CERTIORARI

A. S. H a rriso n , J r .
Attorney General of Virginia

R. D. M cI l w a in e , III 
Assistant Attorney General

Supreme Court-State Library Building 
Richmond 19, Virginia
January 14, 1960



TABLE OF CONTENTS

Page

Preliminary Statement..... .........................      1

P rior Proceedings.........................................................................   2

Statement of Facts......................        2

T he Statute ....................................................................................  3

Questions Presented..................       4

Argument ......................................................   4

Intercorporate Relationship ................................      4

T he Virginia Statute and the I nterstate Commerce Clause 5

T he V irginia Statute and the Fourteenth A mendment.....  9

Conclusion ........................................    10

A ppen d ix

TABLE OF CITATIONS
Cases

Bell v. Hagmann, 200 Va. 626, 107 S. E. (2d) 426......................  5

Commonwealth v. Castner, 138 Va. 81, 121 S. E. 894......... ............  5

Henderson v. United States, 336 U. S. 816.....................................  6

Morgan v. Virginia, 328 U. S. 373, 380 .................................. ..........  6

N.A.A.C.P. v. St. Louis—San Francisco Railway Co., 297 I. C. C.
335 .............................................................................................  6, 7

Sisk v. Town of Shenandoah, 200 Va. 277, 279, 105 S. E. (2d)
169.................................................................................................. 5

Williams v. Howard Johnson’s Restaurant, 4 Cir., 268 F. (2d)
845 8



Other Authorities
Page

Acts of Assembly of 1934, Chapter 165............................................  5

Code of Virginia (1950) :
Section 8-264 ..................... ........................................................... 5
Section 8-266 ......................................................... .............. .......  5
Section 18-225 .............. ........................ .........  2, 3, 4, 5, 7, 9, 10

Constitution of the United States :
Article I, Section 8, Clause 3 .......................................... ....... . 4

Interstate Commerce Act, 49 U. S. C. A., Sections 1 et seq...........  6



In the

Supreme Court of the United States
October Term, 1959

No. 409

BRUCE BOYNTON, 

v.
Petitioner

COMMONWEALTH OF VIRGINIA,
Respondent

On Petition for a Writ of Certiorari to the Supreme 
Court of Appeals of Virginia

BRIEF FOR RESPONDENT IN OPPOSITION TO THE 
PETITION FOR WRIT OF CERTIORARI

PRELIMINARY STATEMENT

In a letter to the Attorney General of Virginia from the 
Honorable James R. Browning, Clerk of the Supreme Court 
of the United States, dated December 12, 1959, the Com­
monwealth of Virginia was requested to respond to the peti­
tion for writ of certiorari filed in the instant case and to 
“deal with the intercorporate relationship between the Trail- 
ways Bus Company and the Trailways Bus Terminal, Inc., 
set forth in any documents of which the Virginia courts can 
take judicial notice”. Respondent was also requested to set 
forth her “view of the controlling Virginia law under which,



2

it is claimed, petitioner was convicted for trespass”.* In 
accordance with the request contained in the above men­
tioned communication, written by the Clerk at the direction 
of this Court, the within brief of the respondent in opposi­
tion to the petition for writ of certiorari is filed.

PRIOR PROCEEDINGS

On January 6, 1959, petitioner was convicted in the Police 
Court of the City of Richmond, Virginia, for violation of 
Section 18-225 of the Code of Virginia (1950) as amended. 
He was sentenced to pay a fine of $10.00 and costs. Upon 
appeal to the Hustings Court of the City of Richmond, peti­
tioner was again convicted and a similar sentence was im­
posed on February 20, 1959. A petition for writ of error 
to the judgment of the Hustings Court was denied by the 
Supreme Court of Appeals of Virginia on June 19, 1959, 
and the cause is currently before this Court upon petition 
for writ of certiorari to the Supreme Court of Appeals of 
Virginia, filed in the Supreme Court of the United States 
by the petitioner on September 15, 1959.

STATEMENT OF FACTS

On the night of December 20, 1958, the petitioner, a 
Negro student at the Howard University School of Law, 
was traveling via “Trailways” bus from Washington, D. C., 
to his home in Selma, Alabama. He boarded the bus in 
Washington, D. C., at 8 :00 P. M., and arrived in Richmond, 
Virginia, about 10:40 P. M. Upon being informed by the 
driver of the bus that there would be a stopover of some 
forty minutes in Richmond, petitioner left the bus and 
entered the bus terminal building located at Ninth and Broad 
Streets in the City of Richmond (R. 31-33). Although

* Post, Appendix A.



3

noticing therein a separate restaurant for colored patrons 
which had seating capacity available (R. 33-S$), petitioner 
entered the restaurant for white patrons, seated himself at 
a counter and requested service. He was advised—first by 
a waitress and then by the assistant manager of the restau­
rant—that separate facilities were maintained for persons 
of the Negro race and that he could be served in the restau­
rant reserved for colored patrons. Petitioner stated that he 
was an interstate passenger and was entitled to be served 
where he was. The assistant manager requested him to leave 
the premises and repair to the other restaurant. When peti­
tioner refused to comply with this request, he was arrested, 
upon a warrant issued at the instance of the assistant man­
ager, for trespass in violation of Section 18-225 of the 
Virginia Code (R. 22, 29-30, 34-36).

The bus terminal building in Richmond, Virginia, is operated 
by Trailways Bus Terminal, Inc., which company leases space 
therein to Bus Terminal Restaurant of Richmond, Inc. The 
lease in question grants Bus Terminal Restaurant of Rich­
mond, Inc., exclusive authority to operate restaurant facili­
ties in the terminal, and separate facilities for white and 
colored patrons are maintained by the lessee company (R. 
21). The Record discloses that Bus Terminal Restaurant of 
Richmond, Inc., is “not affiliated in any way with the bus 
company”, and that the bus company has “no control over 
the operation of the restaurant” (R. 21). Moreover, thefi 
restaurant facilities are “not necessarily” operated for bus 
passengers and have “quite a bit of business . . . from local 
people” (R. 26).

THE STATUTE

Under attack in the instant case is Section 18-225 of the 
Code of Virginia (1950) as amended, which statute in per­
tinent part provides:



4

“If any person shall without authority of law go upon 
or remain upon the lands or premises of another, after 
having been forbidden to do so by the owner, lessee, 
custodian or other person lawfully in charge of such 
land, or after having been forbidden to do so by sign 
or signs posted on the premises at a place or places 
where they may be reasonably seen, he shall be deemed 
guilty of a misdemeanor, and upon conviction thereof 
shall be punished by a fine of not more than one hundred 
dollars or by confinement in jail not exceeding thirty 
days, or by both such fine and imprisonment.”

QUESTIONS PRESENTED

1. Does Section 18-225 of the Virginia Code, as applied 
to petitioner in the case at bar, contravene Article I, Section 
8, Clause 3, of the Constitution of the United States ?

2. Does Section 18-225 of the Virginia Code, as applied 
to the petitioner in the case at bar, contravene the Four­
teenth Amendment to the Constitution of the United States?

ARGUMENT 
Intercorporate Relationship

In response to this Court’s request that the Common­
wealth “deal with the intercorporate relationship between 
the Trailways Bus Company and the Trailways Bus Termi­
nal, Inc., set forth in any documents of which the Virginia 
courts can take judicial notice, respondent respectfully states 
that such relationship is not reflected in any documents of 
which the Virginia courts can take judicial notice. So far as 
respondent is aware, the only official documents, if any, 
which would contain evidence of the intercorporate relation­
ship of corporations would be the records of the State Cor- y 
poration Commission. Upon an examination of the Virginia 
law, counsel for respondent do not find that the Virginia 
courts can take judicial notice of such documents.



5

Under Virginia law, appellate courts will not even take 
judicial notice of the existence or contents of legislative 
charters of private corporations which were not relied upon 
in the court below. Section 8-264, Code of Virginia (1950) ; 
Commonwealth v. Costner, 138 Va. 81, 121 S. E. 894. 
Moreover, Section 8-266 of the Virginia Code establishes 
the procedure by means of which the existence and contents 
of records and papers in the office of the State Corporation 
Commission may be proved. In pertinent part, this statute 
provides:

“A  copy of any record or paper * * * (2) in the 
office of the State Corporation Commission, the State 
Board of Education, or the board of supervisors or 
other governing body of any county, attested by the 
secretary or clerk of such Commission or board; * * * 
may be admitted as evidence in lieu of the original. * * * 

“Any such copy purporting to be sealed, or sealed 
and signed, or signed alone, by any such officer, secre­
tary or clerk, may be admitted as evidence, without any 
proof of the seal or signature, or of the official character 
of the person whose name is signed to it.”

This provision of the Virginia Code prescribing the manner 
of proving certain specified documents and referring specifi­
cally to records and papers in the office of the State Corpora­
tion Commission negatives the authority of the Virginia 
courts to take judicial notice of such documents. See, Sisk 
v. Town of Shenandoah, 200 Va. 277, 279, 105 S. E. (2d) 
169; Bell v. Hagmami, 200 Va. 626, 107 S. E. (2d) 426.

THE VIRGINIA STATUTE AND THE 
INTERSTATE COMMERCE CLAUSE

Section 18-225 of the Virginia Code first appeared as 
Chapter 165 of the Acts of the General Assembly of 1934.



6

Acts of Assembly (1934), Chapter 165, p. 248. With minor 
amendments not here material, the language of the existing 
statute is substantially identical to that contained in the 
original enactment. As is manifest from its terms, the 
statute does no more than impose criminal sanctions for 
continued trespass by an individual upon the lands or prem­
ises of another after proper warning and is entirely devoid 
of any racial connotation whatever.

Counsel for respondent respectfully submit that invoca­
tion of this statute by an agent of Bus Terminal Restaurant 
of Richmond, Inc., in the case at bar, presents no substan­
tial question of conflict with the Commerce Clause of the 
Constitution of the United States. As pointed out by this 
Court in Morgan v. Virginia, 328 U. S. 373, 380, “the Con­
stitution puts the ultimate power to regulate commerce in 
Congress”, and Congress has exercised the power thus con­
ferred by enactment of the Interstate Commerce Act. 49 
U. S. C. A. 1 et seq. Moreover, in light of the provisions 
of Sections 3(1) and 316(d) of this Act*—■ which make it 
unlawful for any common carrier to make or give any undue 
or unreasonable preference or advantage to any person, or to 
subject any particular person to any undue or unreasonable 
prejudice or disadvantage in any respect—it is manifest that 
Congress has acted in the field of racial discrimination in 
interstate commerce and prohibited such discrimination to 
the extent deemed by it to be permissible or desirable. See, 
Henderson v. United States, 339 U. S. 816.

Equally manifest is it that the maintenance of racially 
separate restaurant facilities in a terminal building by a lessee 
non-carrier concern is not antagonistic to the provisions of 
the Interstate Commerce Act. The validity of this proposi­
tion was definitively established in N.A.A.C.P. v. St. Louis—

*49 U. S. C. A. 3 (1 ); 49 U. S. C. A. 316(d) ; Post, Appendix B.



7

San Francisco Railway Co., 297 I. C. C. 335, in which case 
the Interstate Commerce Commission ruled that the main­
tenance of segregated lunch rooms, located in a railroad 
passenger station in Richmond, Virginia, by a lessee of the 
Richmond Terminal Railway Company was not violative of 
Section 3(1) of the Interstate Commerce Act. Indeed, in that 
case it was established—in contrast to the want of similar 
proof in the case at bar—that the defendant corporation, 
Richmond Terminal Railroad Company, which operated the 
terminal and leased the lunch room facilities to the Union 
News Company, was jointly controlled by the Richmond, 
Fredericksburg and Potomac and the Atlantic Coast Line 
railroad companies and was a carrier subject to the jurisdic­
tion of the Commission.

The decision of the Interstate Commerce Commission in 
N.A.A.C.P. v. St. Louis— San Francisco Railway Co.,supra, 
is clearly at variance with the instant petitioner’s, contention 
that theloperation of separate restaurant facilities^ by Bus 
TerminaLRestanrailt of Richmond,’ Inc., constitutes a bur­
den upon interstate commerce, and it is significant that peti­
tioner does not here contend that Section 18-225 of the 
Virginia Code as applied to the circumstances of the case 
at bar violates any provision of the Interstate Commerce 
Act. Counsel for respondent submit that if, as shown above, 
the operation of racially separate restaurant facilities by a 
lessee non-carrier concern violates none of the comprehen­
sive provisions of the Interstate Commerce Act or any of the 
manifold regulations of the Interstate Commerce Commis­
sion implementing and applying that Act, such action is not 
antagonistic to the Commerce Clause per se.

Finally, counsel for respondent submit that none of the 
decisions cited by petitioner is applicable to the situation 
which obtains in the instant case. These decisions were also



8

relied upon in Williams v. Howard, Johnson’s Restaurant, 
4 Cir., 268 F. (2d) 845, in which case the petitioner con­
tended that his exclusion from the Howard Johnson’s Res­
taurant in the City of Alexandria, Virginia, on racial 
grounds amounted to discrimination against a person mov­
ing in interstate commerce and also interference with the 
free flow of commerce in violation of the Constitution of 
the United States. With respect to these decisions, the 
United States Court of Appeals for the Fourth Circuit 
declared (268 F. (2d) at 848) :

“The cases upon which the plaintiff relies in each 
instance disclosed discriminatory action against persons 
of the colored race by carriers engaged in the trans­
portation of passengers in interstate commerce. In 
some instances the carrier’s action was taken in accord­
ance with its own regulations, which were declared 
illegal as a violation of paragraph 1, section 3 of the 
Interstate Commerce Act, 49 U.S.C.A. Sec. 3(1), 
which forbids a carrier to subject any person to undue 
or unreasonable prejudice or disadvantage in any re­
spect, as in Mitchell v. United States, 313 U.S. 80, 61 
S. Ct. 873, 85 L. Ed. 1201, and Henderson v. United 
States, 339 U. S. 816, 70 S. Ct. 843, 94 L. Ed. 1302. 
In other instances, the carrier’s action was taken in 
accordance with a state statute or state custom requir­
ing the segregation of the races by public carriers and 
was declared unlawful as creating an undue burden on 
interstate commerce in violation of the commerce clause 
of the Constitution, as in Morgan v. Com. of Virginia, 
328 U. S. 373, 66 S. Ct. 1050, 90 L. Ed. 1317; Wil­
liams v. Carolina Coach Co., D. C. Va., I l l  F. Supp. 
329, affirmed 4 Cir., 207 F. 2d 408; Flemming v. S. C. 
Elec. & Gas Gx, 4 Cir., 224 F. 2d 752; and Chance v. 
Lambeth, 4 Cir., 186 F. 2d 879.

“In every instance the conduct condemned zms that 
of an organisation directly engaged in interstate com-



9

merce and the line of authority would be persuasive 
in the determination of the present controversy if it 
could be said that the defendant restaurant zvas so en­
gaged. We think, however, that the cases cited are not 
applicable because we do not find that a restaurant is 
engaged in interstate commerce merely because in the 
course of its business of furnishing accommodations 
to the general public it serves persons who are travel­
ing from state to state. As an instrument of local com­
merce, the restaurant is not subject to the constitutional 
and statutory provisions discussed above and, thus, 
is at liberty to deal with such persons as it may select.” 
(Italics supplied)

THE VIRGINIA STATUTE AND THE 
FOURTEENTH AMENDMENT

Petitioner has devoted less than a page of his petition 
for writ of certiorari to the contention that Section 18-225 
of the Virginia Code, as applied to him in the instant case, 
violates the Fourteenth Amendment to the Constitution of 
the United States, and counsel for respondent submit that 
little consideration need be accorded it here. All that we 
could wish to say upon this question has already been stated 
by Judge Soper, speaking for the United States Court of 
Appeals for the Fourth Circuit, in Williams v. Howard 
Johnson's Restaurant, supra. In that case, the petitioner— 
in addition to asserting that his exclusion from the Howard 
Johnson’s Restaurant in question on racial grounds contra­
vened the Commerce Clause—also contended that such exclu­
sion constituted a violation of the Civil Rights Act of 1875. 
Noting that the dismissal of petitioner’s complaint by the 
United States District Court for the Eastern District of 
Virginia “was in accord with the decisions of the Supreme 
Court of the United States, and other Federal courts”, Judge 
Soper observed (268 F. (2d) at 847-848) :



10

“ [Petitioner] points, however, to statutes of the 
state which require the segregation of the races in the 
facilities furnished by carriers and by persons engaged 
in the operation of places of public assemblage; he 
emphasizes the long established local custom of ex­
cluding Negroes from public restaurants and he con­
tends that the acquiescence of the state in these prac­
tices amounts to discriminatory state action which falls 
within the condemnation of the Constitution. The 
essence of the argument is that the state licenses 
restaurants to serve the public and thereby is burdened 
with the positive duty to prohibit unjust discrimination 
in the use and enjoyment of the facilities.

“This argument fails to observe the important dis­
tinction between activities that are required by the 
state and those which are carried out by voluntary 
choice and without compulsion by the people of the 
state in accordance with their own desires and social 
practices. Unless these actions are performed in obedi­
ence to some positive provision of state law they do 
not furnish a basis for the pending "complaint. The 
license laws of Virginia do not fill the void. Section 
35-26 of the Code of Virginia, 1950, makes it unlawful 
for any person to operate a restaurant in the state with­
out an unrevoked permit from the Commissioner, who 
is the chief executive officer of the State Board of 
Health. The statute is obviously designed to protect 
the health of the community but it does not authorize 
state officials to control the management of the busi­
ness or to dictate what persons shall be served. The 
customs of the people of a state do not constitute state 
action within the prohibition of the Fourteenth Amend­
ment.” (Italics supplied)

CONCLUSION

In light of the foregoing, counsel for respondent respect­
fully submit that Section 18-225 of the Virginia Code, as 
applied to the petitioner in the case at bar, presents no serious



11

question of conflict with the Commerce Clause of the Con­
stitution of the United States or the Fourteenth Amendment 
to the Constitution of the United States.

Respectfully submitted,

A. S. H a rriso n , J r .
Attorney General of Virginia

R. D. M cI l w a in e , IIT 
Assistant Attorney General

Supreme Court-State Library Building 
Richmond 19, Virginia
January 14, 1960



12

A P P E N D I X  A

OFFICE OF THE CLERK
SUPREME COURT OF THE UNITED STATES 

W a s h in g t o n  25, D. C.
December 12, 1959

Honorable A. S. Harrison, Jr.
Attorney General of Virginia 
Richmond, Virginia

Re: Boynton v. Virginia
No. 409, October Term, 1959

Dear S ir:
On instructions from this Court, I am writing to ask if 

the Commonwealth of Virginia will be good enough to 
respond to the petition in the above case and, included in its 
response, deal with the intercorporate relationship between 
the Trailways Bus Company and the Trailways Bus Termi­
nal, Inc., set forth in any documents of which the Virginia 
courts can take judicial notice. Compare Henderson v. 
United States, 339 U. S. 816.

It is further requested that you set forth your view of the 
controlling Virginia law under which, it is claimed, petitioner 
was convicted for trespass.

Very truly yours,

James R. Browning, Clerk
By (s) R. J. Blanchard 

R. J. Blanchard 
Deputy

RJB :vmg



13

A P P E N D I X  B
49 U. S. C. A. 3(1)

It shall be unlawful for any common carrier subject to 
the provisions of this chapter to make, give, or cause any 
undue or unreasonable preference or advantage to any par­
ticular person, company, firm, corporation, association, local­
ity, port, port district, gateway, transit point, region, district, 
territory, or any particular description of traffic, in any 
respect whatsoever; or to subject any particular person, com­
pany, firm, corporation, association, locality, port, port dis­
trict, gateway, transit point, region, district, territory, or 
any particular description of traffic to any undue or unrea­
sonable prejudice or disadvantage in any respect whatsoever : 
Provided, however, That this paragraph shall not be con­
strued to apply to discrimination, prejudice, or disadvantage 
to the traffic of any other carrier of whatever description.

49 U. S. C. A. 316(d)

All charges made for any service rendered or to be ren­
dered by any common carrier by motor vehicle engaged in 
interstate or foreign commerce in the transportation of 
passengers or property as aforesaid or in connection there­
with shall be just and reasonable, and every unjust and un­
reasonable charge for such service or any part thereof, is 
prohibited and declared to be unlawful. It shall be unlawful 
for any common carrier by motor vehicle engaged in inter­
state or foreign commerce to make, give, or cause any undue 
or unreasonable preference or advantage to any particular 
person, port, gateway, locality, region, district, territory, 
or description of traffic, in any respect whatsoever; or to 
subject any particular person, port, gateway, locality, region, 
district, territory, or description of traffic to any unjust 
discrimination or any undue or unreasonable prejudice or



14

disadvantage in any respect whatsoever: Provided, how­
ever, That this subsection shall not be construed to apply to 
discriminations, prejudice, or disadvantage to the traffic of 
any other carrier of whatever description.



Printed Letterpress by 
L E W I S  P R I N T I N G  C O M P A N Y R I C H M O N D ,  V I R G I N I A



Supreme Court of the United States
October Term, 1960

No, 7

BRUCE BOYNTON,

v.
Petitioner

COMMONWEALTH OF VIRGINIA,
Respondent

On Writ of Certiorari to the Supreme Court of Appeals of Virginia

BRIEF ON BEHALF OF THE COMMONWEALTH 
OF VIRGINIA

A. S. H a rr iso n , J r .
Attorney General of Virginia

R. D. M cI l w a in e , I I I  
Assistant Attorney General

W alter  E. R ogers 
Special Assistant

Supreme Court-State Library Building 
Richmond 19, Virginia



TABLE OF CONTENTS

Page

Prior P roceedings............................................................................  1

Statement of Facts.......................   2

T he Statute.....................   4

Questions Presented..............................    5

Argument .........      5

I. The Virginia Statute and the Interstate Commerce Clause 5 

II. The Virginia Statute and the Fourteenth Amendment.......  19

Conclusion .......................................................   31

TABLE OF CITATIONS 
Cases

A. F. L. v. American Sash & Door Co., 335 U. S. 538 ......... .........  16

Barrows v. Jackson, 346 U. S. 249 ..................................... - ........... 30

Bibb v. Navajo Freight Lines, 359 U. S. 520........................... 13, 15

Breard v. Alexandria, 341 U. S. 622 ..........................-...................  31

Civil Rights Cases, 109 U. S. 3 ............ .........................  19, 20, 25, 28

Hall v. Virginia, 188 Va. 72 ............................................................... 31

Huron Cement Co. v. City of Detroit,.....U. S........., 80 S. Ct. 813,

decided April 25, 1960........................ ......... -..............................  16

Keys v. Carolina Coach Co., 64 M. C. C. 769 ...................................  6

Marsh v. Alabama, 326 U. S. 501 .....................—-...........................  31

McCabe v. Atchison T. & S. F. Ry., 235 U. S. 151......................... 24

Mitchell v. United States, 313 U. S. 8 0 ...................................... .....  24

Morgan v. Virginia, 328 U. S. 373 ....................................  12, 13, 15



Page

N.A.A.C.P. v. St. Louis, San Francisco Railway Co., 297 I. C. C.
335 .............................................. ............................. .................  6, 8

Shelley v. Kraemer, 334 U. S. 1 ........................................... ....  19!, 30

Slack v. Atlantic White Tower System, 181 F. Supp. 124.............  23

Southern Pacific Co. v. Arizona, 325 U. S. 761 ................... 9, 13, 15

State v. Clyburn, 247 N. C. 455, 101 S. E. 2d 295 ....... ...................  20

United States v. Cruickshank, 92 U. S. 542 ......... .......................... . 19

United States v. Flarris, 106 U. S. 629 ..................................... 19, 20

Williams v. Howard Johnson’s Restaurant, 4 Cir., 268 F. (2d)

845 .... ................ ....................................................................  16, 24

Wilmington Parking Authority v. Burton, 157 A. 2d 894 .............  23

Other Authorities

Acts of Assembly (1934), Chapter 165, p. 248 ............................... 5

Code of Virginia (1950), Section 18-225 ....................................  4, 5

Interstate Commerce Act, Section 303(a) (19) ................... ......... . 7

49 U.S.C.A. 3(1) ................................................................ ........ . 6

49 U.S.C.A. 316(d) ..........................................................................  6



Supreme Court of the United States
October Term, 1960

No. 7

BRUCE BOYNTON, 

v.
Petitioner

COMMONWEALTH OF VIRGINIA,
Respondent

On Writ of Certiorari to the Supreme Court of Appeals of Virginia

BRIEF ON BEHALF OF THE COMMONWEALTH 
OF VIRGINIA

PRIOR PROCEEDINGS

On January 6, 1959, petitioner was convicted in the Police 
Court of the City of Richmond, Virginia, for violation of 
Section 18-225 of the Code of Virginia (1950) as amended, 
and a fine of ten dollars and costs was imposed. Upon appeal 
to the Hustings Court of the City of Richmond, petitioner 
was again convicted on February 20, 1959, and the same 
punishment imposed. A petition for a writ of error to the 
judgment of the Hustings Court was denied by the Supreme 
Court of Appeals of Virginia on June 19, 1959, and the 
cause is currently before this Court on a writ of certiorari 
to the Supreme Court of Appeals of Virginia, which was 
granted by this Court on February 23, 1960.



2

STATEMENT OF FACTS

On the night of December 20, 1958, the petitioner, a 
Negro student at the Howard University School of Law, 
was traveling via “Trailways” bus from Washington, D. 
C., to his home in Selma, Alabama. He boarded the bus in 
Washington, D. C., at 8:00 P. M., and arrived in Richmond, 
Virginia, about 10:40 P. M. Upon being informed by the 
driver of the bus that there would be a stopover of some 
forty minutes in Richmond, petitioner left the bus and 
entered the bus terminal building located at Ninth and 
Broad Streets in the City of Richmond (R. 27-28). Al­
though noticing therein a separate restaurant for colored 
patrons which had seating capacity available (R. 28, 22), 
petitioner entered the restaurant for white patrons, seated 
himself at a counter and requested service. He was advised 
—first by a waitress and then by the assistant manager of 
the restaurant—that separate facilities were maintained for 
persons of the Negro race and that he could be served in 
the restaurant reserved for colored patrons. Petitioner 
stated that he was an interstate passenger and was entitled 
to be served where he was. The assistant manager requested 
him to leave the premises and repair to the other restaurant. 
When petitioner refused to comply with this request, he was 
arrested, upon a warrant issued at the instance of the 
assistant manager, for trespass in violation of Section 18- 
225 of the Virginia Code (R. 20, 21, 30).

The bus terminal building in Richmond, Virginia, is 
owned by Trailways Bus Terminal, Inc., which company 
leases space therein to Bus Terminal Restaurant of Rich­
mond, Inc. The lease in question grants Bus Terminal 
Restaurant of Richmond, Inc., exclusive authority to operate 
restaurant facilities in the terminal (R. 9-18), and separate 
facilities for white and colored patrons are maintained by



3

the lessee company (R. 20). The Record discloses that Bus 
Terminal Restaurant of Richmond, Inc., is “not affiliated 
in any way with the bus company”, and that the bus com­
pany has “no control over the operation of the restaurant” 
(R. 20). Moreover, the restaurant facilities are “not nec­
essarily” operated for bus passengers and have “quite a bit 
of business . . . from local people” (R. 23).

Counsel for the Commonwealth find it necessary to com­
ment upon the statement contained in the petitioner’s brief 
and that contained in the brief amicus curiae filed by the 
Solicitor General on behalf of the United States. In the 
former, it is stated that petitioner first looked into a small 
restaurant and noticed “that it was crowded” (Brief, p. 3). 
In the brief of the Solicitor General, it is stated that the 
restaurant reserved for colored people “appeared to be 
crowded” (Brief, p. 2). While the petitioner testified that 
the restaurant reserved for colored patrons “appeared to be 
crowded” and that he informed the witness that it was “a 
bit” crowded, the witness Rush, assistant manager of the 
restaurant, testified that the facility in question was not 
crowded (R. 22). Neither the petitioner’s brief nor that of 
the Solicitor General contains any reference to this positive 
testimony which, in the present posture of this litigation, 
must be accepted as establishing the fact of the case.

If the condition—whether crowded or uncrowded—of the 
restaurant reserved for colored people is immaterial, ref­
erence to such condition is unnecessary. If material, this 
Court should not be given the impression that the facts were 
favorable to the petitioner’s view of the case in an attempt 
to show an alleged inconvenience to an interstate traveler 
which did not exist. On the contrary, an examination of his 
evidence establishes that the petitioner’s complaint is not 
that he was denied an opportunity to secure food or was



4

inconvenienced in so doing, but that he was denied the 
opportunity to eat in a racially non-segregated facility in 
violation of his alleged constitutional right as an interstate 
traveler.

Moreover, while counsel for the petitioner and the Solici­
tor General have gone to great lengths to present to this 
Court evidence concerning the inter-corporate relationship 
between certain operating bus companies and Trailways Bus 
Terminal, Inc.-—evidence which was not presented to nor 
considered by any judicial tribunal of the Commonwealth 
of Virginia—both have failed to mention, either in their 
factual statement or elsewhere in their briefs, evidence 
which is properly in the record (1) that there was no affili­
ation in any way between the bus company and the restau­
rant company here involved and (2) that the bus company 
had no control over the operation of the restaurant, which 
is maintained for local clientele as well as persons who may 
be passengers on buses using the terminal in which the 
restaurant facilities are located.

THE STATUTE

Under attack in the instant case is Section 18-225 of the 
Code of Virginia (1950) as amended, which in pertinent 
part provides:

“If any person shall without authority of law go 
upon or remain upon the lands or premises of another, 
after having been forbidden to do so by the owner, 
lessee, custodian or other person lawfully in charge of 
such land, or after having been forbidden to do so by 
sign or signs posted on the premises at a place or places 
where they may be reasonably seen, he shall be deemed 
guilty of a misdemeanor, and upon conviction thereof 
shall be punished by a fine of not more than one hun­
dred dollars or by confinement in jail not exceeding 
thirty days, or by both such fine and imprisonment.”



5

QUESTIONS PRESENTED

1. Does Section 18-225 of the Virginia Code, as applied 
to petitioner in the case at bar, contravene Article I, Section 
8, Clause 3, of the Constitution of the United States?

2. Does Section 18-225 of the Virginia Code, as applied 
to the petitioner in the case at bar, contravene the Four­
teenth Amendment to the Constitution of the United States ?

ARGUMENT

I.

The Virginia Statute and the Interstate Commerce Clause

Section 18-225 of the Virginia Code first appeared as 
Chapter 165 of the Acts of the General Assembly of 1934. 
Acts of Assembly (1934), Chapter 165, p. 248. With minor 
amendments not here material, the language of the existing 
statute is substantially identical to that contained in the 
original enactment. As is manifest from its terms, the stat­
ute does no more than impose criminal sanctions for con­
tinued trespass by an individual upon the lands or premises 
of another after proper warning and is entirely devoid of 
any racial connotation whatever. The statute does not pur­
port to be, and is not, a racial segregation law.* It forbids 
trespass by anyone—whether he be a member of a racial 
minority or not—in going upon or remaining upon the pri­
vate property of another when he is not welcome. Such con-

* Indeed, those familiar with the legislative history of the statute 
are aware that the provision concerning signs was inserted to combat 
the problems presented by unauthorized use of unattended, private 
parking lots. In this connection, petitioner’s discussion of the early 
statutes and common law of Virginia relating to trespass upon private 
property, and his compilation of the statutes of other States, England, 
the Commonwealth countries and South Africa (to show where the 
petitioner would and would not have been convicted of an offense under 
the circumstances of this case) are of no assistance in resolving the 
issues presented in the instant litigation.



6

duct in violation of individual property rights is a proper 
subject of State legislation.

Counsel for the Commonwealth respectfully submit that 
invocation of this statute by an agent of Bus Terminal 
Restaurant of Richmond, Inc., in the case at bar, entails no 
conflict with the Interstate Commerce Act or the Commerce 
Clause of the United States Constitution. With respect to 
the Interstate Commerce Act, 49 U. S. C. A. 1 et seq., the 
provisions of Sections 3(1) and 316(d) thereof make it 
unlawful for any common carrier by railroad or motor 
vehicle to make or give any undue or unreasonable prefer­
ence or advantage to any person, or to subject any particular 
person to any undue or unreasonable prejudice or disadvan­
tage in any respect.* However, the maintenance of racially 
separate restaurant facilities in a terminal building by a 
lessee non-carrier concern is not antagonistic to these pro­
visions of the Interstate Commerce Act. The validity of this 
proposition was definitely established in N.A.A.C.P. v. St. 
Louis— San Francisco Railway Co., 297 I. C. C. 335, in 
which case the Interstate Commerce Commission ruled that 
the maintenance of segregated lunch rooms located in a rail­
road passenger station in Richmond, Virginia, by a lessee 
of the Richmond Terminal Railway Company was not vio­
lative of Section 3(1) of the Act. Subsequently, in Keys v. 
Carolina Coach Co., 64 M. C. C. 769, the Commission ruled 
that Section 316(d) of the Interstate Commerce Act im­
posed upon common carriers by motor vehicle restrictions 
similar to those imposed by Section 3(1) upon railroad 
carriers.

The decision of the Interstate Commerce Commission in 
N.A.A.C.P. v. St. Louis— San Francisco Railway Company,

*49 U.S.C.A. 3(1) ; 49 U.S.C.A. 316(d) ; post, Appendix A.



7

supra, is utterly at variance with the contention of the peti­
tioner in the case at bar that the operation of racially sepa­
rate restaurant facilities by Bus Terminal Restaurant of 
Richmond, Inc., is repugnant to the Interstate Commerce 
Act. Indeed, in that case it was established—in contrast to 
the want of similar proof in the case at bar—that the de­
fendant corporation, Richmond Terminal Railway Com­
pany, which operated the terminal and leased the lunch room 
facilities to the Union News Company, was jointly controlled 
by the Richmond, Fredericksburg and Potomac and the 
Atlantic Coast Line railroad companies and was a carrier 
subject to the jurisdiction of the Commission.

In an effort to avoid the conclusive effect of that decision, 
counsel for the petitioner and the Solicitor General seek to 
introduce new evidence in the instant case, at the ultimate 
level of judicial review, to establish that Trailways Bus Ter­
minal, Inc.—the company which owned the terminal build­
ing in question and leased space therein to Bus Terminal 
Restaurant of Richmond, Inc.—is jointly owned by two 
operating bus companies, Carolina Coach Company and 
Virginia Stage Lines, whose names do not even appear in 
the record. In this manner they seek to invoke the provisions 
of Section 303(a) (19) of the Interstate Commerce Act, 
which prescribes:

“The ‘services’ and ‘transportation’ to which this 
chapter applies include all vehicles operated by, for, or 
in the interest of any motor carrier irrespective of own­
ership or of contract, express or implied, together with 
all facilities and property operated or controlled by any 
such carrier or carriers, and used in the transportation 
of passengers or property in interstate or foreign com­
merce or in the performance of any service in connec­
tion therewith.”



8

The evidence offered by counsel for the petitioner is set 
forth in documents of which the Supreme Court of Appeals 
of Virginia may not take judicial notice. The evidence of 
the Solicitor General is offered to this Court, for the first 
time in this case, by one who is not even a party to the 
litigation. Counsel for the Commonwealth insist that such 
evidence is not properly before this Court and may not prop­
erly be considered by this Court.

Even if it were appropriate for this Court to consider it> 
the challenged evidence would not establish that the restau­
rant facilities under consideration in this case were “oper­
ated or controlled” by a motor vehicle carrier. At most, 
such evidence would only establish that the terminal itself 
was so operated or controlled, and the record discloses that 
there was no enforced racial segregation—by law or other­
wise—in any of the facilities of the terminal, as distin­
guished from the restaurant located in the same building.

The space utilized for the restaurant facilities was leased 
to an independent corporation which was in no way under 
the control of, or affiliated with, the bus company. The writ­
ten lease between Trailways Bus Terminal, Inc. and Bus 
Terminal Restaurant of Richmond, Inc. is a part of the rec­
ord in this case and, as was said of a comparable document 
in N.A.A.C.P. v. St. Louis— San Francisco Railway Co., 
supra at 343:

“The lease is silent as to racial segregation. The 
Terminal has certain powers of supervision for a pur­
pose which may be described as policing. The lessee is 
obligated to ‘comply with the requirements of the De­
partment of Public Health, City of Richmond, and 
with all other lawful governmental rules and regula­
tions.’ The context, however, indicates that this re­
quirement is for the purpose of keeping the premises 
in a neat, clean, and orderly condition, and does not



9

render the lessee liable for violations of the Interstate 
Commerce Act.”

Significantly, counsel for the petitioner did not assert— 
either in their petition for writ of certiorari or in their brief 
—that the validity of the Virginia statute under the Inter­
state Commerce Act was one of the questions presented by 
this appeal, and they concede that Congress has expressed 
no specific intent concerning an arrest and conviction like 
that of the petitioner in the case at bar (Brief, p. 19). More­
over, counsel for the petitioner have devoted less than two 
pages to this point in their argument on brief. In so doing, 
it would appear that they have accorded this contention a 
consideration proportioned to its merit.

Southern Pacific Co. v. Arizona, 325 U. S. 761, provides 
an appropriate point of departure for consideration of peti­
tioner’s principal contention, i.e., that invocation of the 
Virginia statute under the circumstances of the case at bar 
is repugnant to the Commerce Clause of the United States 
Constitution. The dominant question presented in that case 
was whether or not the Arizona Train Limit Law, which 
limited the length of railroad trains operating in Arizona 
to fourteen passenger and seventy freight cars, contravened 
the Commerce Clause. With respect to the principles gov­
erning the resolution of that question and the proper appli­
cation of those principles to the case before it, this Court 
observed (325 U. S. at 766-771):

“Although the commerce clause conferred on the 
national government power to regulate commerce, its 
possession of the power does not exclude all state power 
of regulation. Ever since Wilson v. Black Bird Creek 
Marsh Co. 2 Pet (US) 245, 7 L ed 412, and Cooley v. 
Port Wardens, 12 How (US) 299, 13 L ed 996, it has 
been recognized that, in the absence of conflicting legis-



10

lation by Congress, there is a residuum of power in the 
state to make laws governing matters of local concern 
which nevertheless in some measure affect interestate 
commerce or even, to some extent, regulate it.

5fc ijc

“But ever since Gibbons v. Ogden, 9 Wheat. (US) 1, 
6 L ed 23, the states have not been deemed to have au­
thority to impede substantially the free flow of com­
merce from state to state, or to regulate those phases 
of the national commerce which, because of the need of 
national uniformity, demand that their regulation, if 
any, be prescribed by a single authority.

* * *
“In the application of these principles some enact­

ments may be found to be plainly within and others 
plainly without state power. But between these ex­
tremes lies the infinite variety of cases, in which regu­
lation of local matters may also operate as a regulation 
of commerce, in which reconciliation of the conflicting 
claims of state and national power is to be attained only 
by some appraisal and accommodation of the competing 
demands of the state and national interests involved.

* * *
“Congress has undoubted power to redefine the dis­

tribution of power over interstate commerce. It may 
either permit the states to regulate the commerce in a 
matter which would otherwise not be permissible . . . 
or exclude state regulation even of matters of peculiarly 
local concern which nevertheless affect interstate com­
merce. * *

“But in general Congress has left it to the courts to 
formulate the rules thus interpreting the commerce 
clause in its application, doubtless because it has . . . 
been aware that in their application state laws will not 
be invalidated without the support of relevant factual 
material which will ‘afford a sure basis’ for an informed



11

judgment. Terminal R. Asso. v. Brotherhood of R. 
Trainmen, supra (318 US 8, 87 L ed 578, 63 S Ct 420); 
Southern R. Co. v. King, 217 US 524. 54 L ed 868, 
30 S Ct 594. Meanwhile, Congress has accomodated its 
legislation as have the states, to these rules as an 
established feature of our constitutional system. There 
has thus been left to the states wide scope for the regu­
lation of matters of local state concern, even though it 
in some measure affects the commerce, provided it does 
not materially restrict the free flow of commerce across 
state lines, or intefere with it in matters with respect to 
which uniformity of regulation is of predominant na­
tional concern.

“Hence the matters for ultimate determination here 
are the nature and extent of the burden which the state 
regulation of interstate trains, adopted as a safety 
measure, imposes on interstate commerce, and whether 
the relative weights of the state and national interests 
involved are such as to make inapplicable the rule, 
generally observed, such as to make inapplicable the 
rule generally observed, that the free flow of interstate 
commerce and its freedom from local restraints in mat­
ters requiring uniformity of regulation are interests 
safeguarded by the commerce clause from state inter­
ference.” (Italics supplied)

Consistent with the principles thus enunciated, this Court 
proceeded to consider and evaluate the “relevant factual 
material” which afforded “a sure basis” for its “informed 
judgment” that the Arizona statute in fact imposed an 
undue burden upon interstate commerce. This material con­
sumed some 3000 pages of the printed record before the 
Court in that case, and in its opinion, this Court repeatedly 
referred to the “evidence”, the “statistics introduced into the 
record” and the “detailed findings” which the record amply 
supported. Id. at 775-778. Only after a full analysis of the



12

record evidence did this Court conclude that the statute under 
consideration infringed the Commerce Clause.

In Morgan v. Virginia, 328 U. S. 373, the question pre­
sented was whether or not a statute of Virginia requiring 
racial separation of passengers on buses operated by intra­
state and interstate motor vehicle carriers was antagonistic 
to the Commerce Clause. Invalidating the statute there un­
der consideration, this Court stated (328 U. S. at 377-381) :

“There is a recognized abstract principle, however, 
that may be taken as a postulate for testing whether 
particular state legislation in the absence of action by 
Congress is beyond state power. This is that the 
state legislation is invalid if it unduly burdens that 
commerce in matters where uniformity is necessary— 
necessary in the constitutional sense of useful in accom­
plishing a permitted purpose. Where uniformity is 
essential for the functioning of commerce, a state may 
not interpose its local regulation. Too true it is that 
the principle lacks in precision. Although the quality 
of such a principle is abstract, its application to the 
facts of a situation created by the attempted enforce­
ment of a statute brings about a specific determination, 
as to whether or not the statute in question is a burden 
on commerce. Within the broad limits of the principle, 
the cases turn on their own facts.

^
“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’ during the 
journey when ‘necessary or proper for the comfort 
and convenience of passengers.’ This occurred in this 
instance. Upon such change of designation, 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.’ An interstate passenger 
must if necessary repeatedly shift seats while moving



13

in Virginia to meet the seating requirements of the 
changing passenger 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 between 
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 buses approach the comfort of pull- 
mans and have seats covenient for rest. On such inter­
state journeys the enforcement of the requirements for 
reseating would be disturbing.

*  *

“As our previous discussion demonstrates, the trans­
portation difficulties arising from a statute that requires 
commingling of the races, as in the De Cuir Case, are 
increased by one that requires separation, as here.” 
(Italics supplied)

The doctrine enunciated in these cases is not ancient 
history, nor are the decisions themselves judicial relics of 
some lost civilization. The opinion of this Court in Bibb v. 
Navajo Freight Lines, 359 U. S. 520, decided May 25- 
1959, convincingly demonstrates that the principles under 
consideration have not been enervated by the passage of 
time and that they apply with undiminished vitality to pre­
sent day litigation. Indeed, counsel for the petitioner con­
cede that “the vigor of the Morgan and Southern Pacific 
cases was reaffirmed” by this Court’s decision in the Bibb 
case.

Under consideration in that case was the question of 
whether or not an Illinois statute requiring a certain type 
of rear fender mudguard on trucks and trailers operating 
on the highways of that State conflicted with the Com­
merce Clause. Sustaining the decision of a specially con-



14

stituted three-judge District Court declaring the Illinois 
statute violative o£ the Commerce Clause, this Court de­
clared (359 U. S. at 524) :

“Unless we can conclude on the whole record that ‘the 
total effect of the law as a safety measure in reducing 
accidents and casualties is so slight or problematical 
as not to outweigh the national interest in keeping inter­
state commerce free from interferences which seriously 
impede it’ (Southern P Co. v. Arizona, supra (325 US 
pp 775, 776)) we must uphold the statute.” (Italics 
supplied )

The Court then proceeded to a consideration of the exhaus­
tive findings of the trial court relating to the cost, safety, 
time loss and interference with the “interline” operations 
of motor carriers occasioned by an interstate carrier’s com­
pliance with the challenged statute. At the conclusion of its 
review, the Court pointed out (359 U. S. at 528) :

“This in summary is the rather massive showing of 
burden on interstate commerce which appellees made at 
the hearing.” (Italics supplied)

Mr. Justice Harlan, with whom Mr. Justice Stewart joined, 
authored a separate concurring opinion which is sufficiently 
brief and sufficiently significant to merit full reproduction 
in the body of this brief (359 U. S. at 530).

“The opinion of the Court clearly demonstrates the 
heavy burden, in terms of cost and interference with 
‘interlining,’ which the Illinois statute here involved 
imposes on interstate commerce. In viezv of the find­
ings of the District Court, summarised on page 5 of 
the Court’s opinion and fully justified by the record, 
to the effect that the contour mudflap ‘possesses no ad­
vantages’ in terms of safety over the conventional flap



IS

permitted in all other States, and indeed creates certain 
safety hazards, this heavy burden cannot be justified 
on the theory that the Illinois statute is a necessary, 
appropriate, or helpful local safety measure. Accord­
ingly, I concure in the judgment of the Court.” (Italics 
supplied)

The opinions of this Court in the Southern Pacific, 
Morgan and Bibb cases bring into bold relief the patent 
inadequacy of the instant record to present to this Court 
any substantial question of conflict between the Virginia 
statute and the Commerce Clause. The entire appellate 
record in the case at bar is less than thirty-five pages in 
length, and the transcribed evidence relates exclusively to 
the circumstances under which the petitioner was charged 
with violating the Virginia statute forbidding trespass to 
private property. Not a single item of evidence has been 
presented by the petitioner which even purports to estab­
lish that the regulation of the lessee non-carrier restaurant 
company and the Virginia statute under consideration in the 
instant case “materially restrict the free flow of commerce” 
across state lines; nor has any evidence been presented which 
even remotely tends to demonstrate “the nature and extent 
of the burden”, if any, which the regulation and statute 
impose on interstate commerce. Southern Pacific Co. v. 
Arizona, supra at 770. In light of the decisions discussed 
above, it is manifest that a claim of repugnance to the Com­
merce Clause of the United States Constitution cannot be 
supported by mere speculation and conjecture and that the 
regulation of the restaurant company and the State statute 
challenged here cannot be held invalid in the absence of 
a clear showing that they constitute an interference with 
interstate commerce. In this situation, it is essential that 
there be record evidence upon which this Court may ground



16

a conclusion that the regulation and statute unduly burden 
interstate commerce. Since the record in this case is devoid 
of any evidence tending to establish this proposition, the 
critical issue in this case is highlighted by an eventuary 
vacuum, and an appropriate case for judicial intervention 
has not been made out.

It is obvious that this Court cannot “find” or “conclude” 
or “demonstrate” on the basis of the record in the instant 
case that the statute and regulation here under attack have 
even the remotest peripheral effect upon interstate commerce, 
much less that they impermissibly burden such commerce. 
Moreover, it is no part of the judicial function for courts 
to be ingenious in searching out grounds upon which state 
or federal legislation may be invalidated. On the contrary, 
as this Court recently iterated in a similar context, to indulge 
such a view “would be to ignore the teaching of this Court’s 
decisions which enjoin seeking out conflicts between state 
and federal regulation where none clearly exists.” Huron
Cement Co. v. City of Detroit,----U. S........ , 80 S. Ct. 813,
decided April 25, 1960.

Invalidation of the legislation under attack in the instant 
case upon the ground that, in its operation, it unduly burdens 
interstate commerce, would manifestly subvert the judicial 
principles enunciated by Mr. Justice Frankfurter in his 
concurring opinion in American Fed. of Labor v. American 
Sash & Door Co., 335 U. S. 538, 555-557:

“In the day-to-day working of our democracy it is 
vital that the power of the non-democratic organ of our 
Government be exercised with rigorous self-restraint. 
Because the powers exercised by this Court are inher­
ently oligarchic, Jefferson all of his life thought of the 
Court as ‘an irresponsible body’ and ‘independent of 
the nation itself’. The Court is not saved from being 
oligarchic because it professes to act in the service of



17

humane ends. As history amply proves, the judiciary 
is prone to misconceive the public good by confounding 
private notions with constitutional requirements, and 
such misconceptions are not subject to legitimate dis­
placement by the will of the people except at too slow a 
pace. * * *

“Our right to pass on the validity of legislation is 
now too much a part of our constitutional system to be 
brought into question. But the implications of that 
right and the conditions for its exercise must constant­
ly be kept in mind and vigorously observed. Because 
the Court is without power to shape measures for deal­
ing with the problems of society but has merely the 
power of negation over measures shaped by others, the 
indispensable judicial requisite is intellectual humility, 
and such humility presupposes complete disinterested­
ness. And so, in the end, it is right that the Court, 
should be indifferent to public temper and popular 
wishes. * * * A court which yields to the popular will 
thereby licenses itself to practice despotism, for there 
can be no assurance that it will not on another occasion 
indulge its own will. Courts can fulfill their responsi­
bility in a democratic society only to the extent that they 
succeed in shaping their judgments by rational stand­
ards, and rational standards are both impersonal and 
communicable. Matters of policy, however, are by defi­
nition matters which demand the resolution of conflicts 
of value, and the elements of conflicting values are 
largely imponderable. Assessment of their competing 
worth involves differences of feeling; it is also an exer­
cise in prophecy. Obviously the proper forum for 
mediating a clash of feelings and rendering a prophetic 
judgment is the body chosen for those purposes by the 
people. Its functions can be assumed by this Court only 
in disregard of the historic limits of the Constitution.”

Finally, counsel for respondent submit that none of the 
decisions cited by petitioner is applicable to the situation 
which obtains in the instant case. These decisions were also 
relied upon in Williams v. Howard Johnson’s Restaurant,



18

4 Cir., 268 F. 2d 845, in which case the petitioner con­
tended that his exclusion from the Howard Johnson’s Res­
taurant in the City of Alexandria, Virginia, on racial 
grounds amounted to discrimination against a person mov­
ing in interstate commerce and also interference with the 
free flow of commerce in violation of the Constitution of 
the United States. With respect to these decisions, the 
United States Court of Appeals for the Fourth Circuit 
declared (268 F. 2d at 848) :

“The cases upon which the plaintiff relies in each 
instance disclosed discriminatory action against persons 
of the colored race by carriers engaged in the trans­
portation of passengers in interstate commerce. In 
some instances the carrier’s action was taken in accord­
ance with its own regulations, which were declared il­
legal as a violation of paragraph 1, section 3 of the 
Interstate Commerce Act, 49 U.S.C.A. Sec. 3(1), 
which forbids a carrier to subject any person to undue 
or unreasonable prejudice or disadvantage in any re­
spect, as in Mitchell v. United States, 313 U.S. 80, 61 
S. Ct. 873, 85 L. Ed. 1201, and Henderson v. United 
States, 339 U. S. 816, 70 S. Ct. 843, 94 L. Ed. 1302. 
In other instances, the carrier’s action was taken in 
accordance with a state statute or state custom requir­
ing the segregation of the races by public carriers and 
was declared unlawful as creating an undue burden on 
interstate commerce in violation of the commerce clause 
of the Constitution, as in Morgan v. Com. of V irginia, 
328 U. S. 373, 66 S. Ct. 1050, 90 L. Ed. 1317; Williams 
v. Carolina Coach Co., D. C. Va., I l l  F. Supp. 329, 
affirmed 4 Cir., 207 F. 2d 408; Flemming v. S. C. 
Elec. & Gas Co., 4 Cir., 224 F. 2d 752; and Chance v. 
Lambeth, 4 Cir., 186 F. 2d 879.

“In every instance the conduct condemned was that 
of an organisation directly engaged in interstate com­
merce and the line of authority would be persuasive in



19

the determination of the present controversy if it could 
be said that the defendant restaurant zms so engaged. 
We think, however, that the cases cited are not appli­
cable because we do not find that a restaurant is en­
gaged in interstate commerce merely because in the 
course of its business of furnishing accommodations to 
the general public it serves persons who are traveling 
from state to state. As an instrument of local com­
merce, the restaurant is not subject to the constitutional 
and statutory provisions discussed above and, thus, is 
at liberty to deal with such persons as it may select.” 
(Italics supplied)

II.

The Virginia Statute and the Fourteenth Amendment

The petitioner’s contention that his arrest and conviction 
for trespass violates Fourteenth Amendment rights is 
worthy of little consideration.

Shelley v. Kraemer, 334 U. S. 1, expressly held that the 
Fourteenth Amendment erects no shield against merely pri­
vate conduct, however discriminatory or wrongful. The 
Court pointed out that since the decision of this Court in the 
Civil Rights Cases, 109 U. S. 3, the principle has become 
firmly imbedded in our constitutional law that the action 
inhibited by the first section of the Fourteenth Amendment 
is only such action as may be fairly said to be that of the 
States.

In United States v. Harris, 106 U. S. 629, this Court, 
quoting from United States v. Cruickshank, 92 U. S. 542, 
said:

“ 'The fourteenth amendment prohibits a state from 
depriving any person of life, liberty or property with­
out due process of law, or from denying to any person 
the equal protection of the laws; but this provision does 
not add anything to the rights of one citizen as against



20

another. It simply furnishes an additional guaranty 
against any encroachment by the states upon the funda­
mental rights which belong to every citizen as a mem­
ber of society. The duty of protecting all its citizens in 
the enjoyment of an equality of rights was originally 
assumed by the states, and it remains there. The only 
obligation resting upon the United States is to see that 
the states do not deny the right. This the amendment 
guarantees, and no more. The power of the national 
government is limited to this guaranty.’ ”

If the restaurant involved in this case is not subject to 
regulation by Congress under its power to regulate inter­
state commerce, the company operating it is free to select 
its patrons upon any basis it sees fit, and, in the case at bar, 
was within its rights in directing the petitioner to leave the 
section of the restaurant reserved for white patrons.

In the last two years, five decisions—one by the Supreme 
Court of North Carolina, one by the Supreme Court of 
Delaware, one by the United States Court of Appeals for 
the Fourth circuit, one by the United States District Court 
for the Eastern District of Maryland, and the other, this 
case, from the Supreme Court of Appeals of Virginia, have 
all sustained the right of the operator of a private restaurant 
to discriminate on the basis of race as against the conten­
tion that such action was proscribed by the Fourteenth 
Amendment. There has been no decision to the contrary, 
State or Federal, so far as we are aware, and none has been 
cited here.

In State v. Clyburn, 247 N. C. 455, 101 S. E. 2d 295, 
decided in 1958, a trespass conviction similar to that in­
volved in this case, was upheld. The Court, after citing and 
quoting from the Civil Rights Cases, supra, and U. S. v. 
Harris, supra, said:



21

"More than half a century after these cases were 
decided the Supreme Court of the United States said 
in Shelley v. Krunner. 334 U. S. 1, 68 S. Ct. 836, 842, 
92 L. Ed. 1161, 3 A.L.R. 2d 441: ‘Since the decision 
of this Court in the Civil Rights Cases, 1883, 109 U. S. 
3, 3 S. Ct. 18, 27 L. Ed. 835, the principle has become 
firmly embedded in our constitutional law that the 
action inhibited by the first section of the Fourteenth 
Amendment is only such action as may fairly be said 
to be that of the States. That Amendment erects no 
shield against merely private conduct, however discrim­
inatory or wrongful.’ This interpretation has not been 
modified: Collins v. Hardyman, 341 U. S. 651, 71 S. 
Ct. 937, 95 L. Ed. 1253; District of Columbia v. 
Thompson Co., 346 U. S. 100, 73 S. Ct. 1007, 97 L. Ed. 
1480; Williams v. Yellow Cab Co., 3 Cir., 200 F. 2d 
302, certiorari denied Dargan v. Yellow Cab Co., 346 
U. S. 840, 74 S. Ct. 52, 98 L. Ed. 361.

“Dorsey v. Stuyvesant Tozvn Corp., 299 N. Y. 512, 
87 N. E. 2d 541, 14 A.L.R. 2d 133, presented the right 
of a corporation, organized under the New York law 
to provide low cost housing, to select its tenants, with 
the right to reject on account of race, color, or religion. 
The New York Court of Appeals affirmed the right of 
the corporation to select its tenants. The Supreme 
Court of the United States denied certiorari, 339 U. S. 
981, 70 S. Ct. 1019, 94 L. Ed. 1385.

“The right of an operator of a private enterprise to 
select the clientele he will serve and to make such selec­
tion based on color, if he so desires, has been repeatedly 
recognized by the appellate courts of this nation [ Citing 
cases]. The owner-operator’s refusal to serve defend­
ants, except in the portion of the building designated 
by him, impaired no rights of defendants.” 101 S. E. 
2d 295, 299.

In Williams v. Howard Johnson's Restaurant, 268 F. 2d 
845, decided in 1959, Judge Soper, in speaking for the



22

Fourth Circuit Court of Appeals, held that a restaurant, as 
an instrument of local commerce is not subject to the provi­
sions of the Fourteenth Amendment, notwithstanding the 
substantial inconvenience and embarrassment to which per­
sons of the Negro race may be subject in the denial to them 
of the right to be served in public restaurants. Judge Soper 
observed in his opinion:

“The plaintiff concedes that no statute of Virginia 
requires the exclusion of Negroes from public restau­
rants and hence it would seem that he does not rely upon 
the provisions of the Fourteenth Amendment which 
prohibit the States from making or enforcing any lazv 
abridging the privileges and immunities of citizens of 
the United States or denying to any person the equal 
protection of the law. He points, however, to statutes 
of the State which require the segregation of the races 
in the facilities furnished by carriers and by persons 
engaged in the operation of places of public assemblage; 
he emphasises the long established local custom of ex­
cluding Negroes from public restaurants and he con­
tends that the acquiescence of the State in these prac­
tices amounts to discriminatory State action which falls 
within the condemnation of the Constitution. The es­
sence of the argument is that the State licenses restau­
rants to serve the public and thereby is burdened with 
the positive duty to prohibit unjust discrimination in 
the use and enjoyment of the facilities.

“This argument fails to observe the important dis­
tinction between activities that are required by the 
State and those which are carried out by voluntary 
choice and without compulsion by the people of the 
State in accordance with their own desires and social 
practices. Unlike these actions are performed in obedi­
ence to some positive provision of State lazv they 
do not furnish a basis for the pending complaint. 
The license laws of Virginia do not fill the void 
Section 35-26 of the Code of Virginia, 1950, makes it



23

unlawful for any person to operate a restaurant in the 
State without an unrevoked permit from the Commis­
sioner, who is the chief executive officer of the State 
Board of Health. The statute is obviously designed to 
protect the health of the community but it does not 
authorize State officials to control the management of 
the business or to dictate what persons shall be served. 
The customs of the people of a State do not constitute 
State action within the prohibition of the Fourteenth 
Amendment. As stated by the Supreme Court of the 
United States in Shelley v. Kraemer, 334 U. S. 1; 68 S. 
Ct. 836, 842:

‘Since the decision of this Court in the Civil 
Rights Cases, 1883, 109 U. S. 3, * * * the prin­
ciple has become firmly embedded in our constitu­
tional law that the action inhibited by the first sec­
tion of the Fourteenth Amendment is only such 
action as may fairly be said to be that of the States. 
That Amendment erects no shield against merely 
private conduct, however discriminatory or wrong­
ful.’ ” (Italics supplied)

See, also, Wilmington Parking Authority v. Burton, 157 
A. 2d 894, decided in January, I960, and Slack v. Atlantic 
White Tower System, 181 F. Supp. 124, decided in Feb­
ruary, 1960.

Counsel for the petitioner nowhere asserts that there exists 
any independent “right” to equal treatment in the use of a 
privately owned place of public accommodation which can­
not be denied by the owner on the ground of race or color. 
The Solicitor General in several instances uses passages in 
his brief referring to such a “right,” though in most in­
stances he is careful to add qualifying phrases, such as, “as 
in this case, interstate transportation facilities.”

We have shown above that the restaurant here involved



24

is not such a facility that has been subject to regulation by 
Congress under the commerce clause.

In the absence of a state law forbidding discrimination, 
such as has been enacted in a number of states, whence 
comes such “right” to equal treatment in the use of places 
of public accommodation? If it be a “right,” it is some­
thing that the petitioner could assert against any who would 
deny it to him. If it is not something that he can assert 
against anyone, or any entity—public or private—then it is 
not a “right” ; that is to say, it is not something to which 
he is entitled.

While it may be that the state itself could not deny to the 
petitioner the equal opportunity to use a place of public 
accommodation, or deny him equal protection in the exer­
cise of such an opportunity if it be afforded to him by the 
private owner, we have yet to be informed from whence 
the petitioner has secured any “right” to use such accommo­
dation as against the wishes of the owner of the establish­
ment.

The cases cited by the petitioner, and Mitchell v. United 
States, 313 U. S. 80 and McCabe v. Atchison T. & S. F. 
Ry., 235 U. S. 151, cited by the Solicitor General, were, as 
Judge Soper said of the cases cited by the plaintiff in Wil­
liams v. Howard Johnsons Restaurant, all cases dealing 
with facilities of carriers actually engaged in interstate com­
merce.

The Solicitor General has, in the brief amicus curiae, so 
intertwined cases dealing with interstate commerce, cases 
dealing with state-owned or operated facilities, and cases 
dealing with state statutes which in themselves impose dis­
criminations, and by quotations out of context has so dis­
torted former decisions of this Court, that we think a few 
comments concerning that brief are necessary.



25

First, after accurately paraphrasing with partial quota­
tions two statements which this Court did make in the Civil 
Rights Cases, 109 U. S, 3, which statements were not essen­
tial to the Court’s decision, the Solicitor General then im­
properly and incorrectly paraphrases a third statement made 
by this Court in those cases.

While the Court did say that “positive rights and privi­
leges” are secured by the Fourteenth Amendment, and that 
that provision does nullify State action of every kind which 
impairs the “privileges and immunities” of citizens of the 
United States (but without defining such rights, privileges 
or immunities), it nowhere stated that, “Racially discrimi­
natory acts of individuals, moreover, are insulated from the 
proscription of the Fourteenth Amendment only insofar as 
they are ‘unsupported by State authority in the shape of 
laws, customs, or judicial or executive proceedings,’ or are 
‘not sanctioned in some way by the State.’ ” Brief amicus 
curiae, page 17.

Yet the Solicitor General so implies.
The language used in the partial quotations comes from 

the following satement of the Court:

“In this connection it is proper to state that civil 
rights, such as are guaranteed by the Constitution 
against state aggression, cannot be impaired by the 
wrongful acts of individuals, unsupported by state 
authority in the shape of laws, customs or judicial or 
executive proceedings. The wrongful act of an individ­
ual, unsupported by any such authority, is simply a 
private wrong, or a crime of that individual; an in­
vasion of the rights of the injured party, it is true, 
whether they affect his person, his property or his rep­
utation ; but if not sanctioned in some way by the State, 
or not done under State authority, his rights remain in 
full force, and may presumably be vindicated by resort



26

to the laws of the State for redress. An individual can­
not deprive a man of his right to vote, to hold property, 
to buy and to sell, to sue in the courts or to be a witness 
or a juror; he may, by force or fraud, interfere with the 
enjoyment of the right in a particular case; he may com­
mit an assault against the person, or commit murder, or 
use ruffian violence at the polls, or slander the good 
name of a fellow-citizen; but, unless protected in these 
wrongful acts by some shield of state law or state au­
thority, he cannot destroy or injure the right; he will 
only render himself amenable to satisfaction or punish­
ment ; and amenable therefore to the laws of the state 
where the wrongful acts are committed. Hence, in all 
those cases where the Constitution seeks to protect the 
rights of the citizen against discriminatory and unjust 
laws of the state by prohibiting such laws, it is not indi­
vidual offenses, but abrogation and denial of rights, 
which it denounces, and for which it clothes the Con­
gress with power to provide a remedy. This abrogation 
and denial of rights, for which the states alone were or 
could be responsible, was the great seminal and funda­
mental wrong which was intended to be remedied. And 
the remedy to be provided must necessarily be predi­
cated upon that wrong. It must assume that in the cases 
provided for, the evil or wrong actually committed rest 
upon some state law or state authority for its excuse 
and perpetration.” 109 U. S. 3, 17.

That paragraph must, of course, be read in connection 
with the added statement of the Court, reading as follows:

“We have discussed the question presented by the 
law, on the assumption that a right to enjoy equal 
accommodations and privileges in all inns, public con­
veyances and places of public amusement, is one of the 
essential rights of the citizen which no state can abridge 
or interfere with. Whether it is such a right or not, 
is a different question, which, in the view we have taken



27

of the validity of the law on the ground already stated, 
it is not necessary to examine.’’ 109 U. S. 3, 19.

What the court is there saying, and all that it is saying, 
is that a private wrong (if any there be) in no way denies 
a person his constitutional rights under the Fourteenth 
Amendment, for it remains a private wrong, subject to re­
dress under the law, civil or criminal, of the State where the 
wrong was committed. The court nowhere said, or implied, 
that private racially discriminatory acts were violative of or 
proscribed by the Fourteenth Amendment; it merely as­
sumed for purposes of argument that the right to enjoy 
equal accommodations is one of the essential rights of a 
citizen, and held that, even if that be so, Congress had no 
power to legislate in that field as against the acts of private 
citizens. “It is State action of a particular character that is 
prohibited. Individual invasion of individual rights is not 
the subject matter of the Amendment.” 109 U. S. 3, 11. 
(Italics supplied.)

The Solicitor General, in assuming the role of friend 
of the court, should have been careful not to represent 
former language of this court as holding something it did 
not hold (when in fact the actual holding was to the con­
trary) and particularly when much of what the court was 
saying was based upon assumptions made arguendo.

Again, at page 19 of the brief amicus curiae, the Solicitor 
General says that “The right not to be excluded solely on 
account of race from facilities open to the public has been 
held to extend to such accommodations as public beaches and 
bathhouses [and other enumerated facilities],” citing cases. 
This statement, in its implications, is a complete and abso­
lute misrepresentation—no less. In each of the situations 
and cases enumerated there was involved not simply a “pub­
lic” but a governmentally owned facility. The discriminatory



28

action was, in truth, state action operating directly upon 
the individuals affected—no less.

The cases dealing with state owned facilities do not “illus­
trate” the principle so broadly stated by the Solicitor Gen­
eral at page 20 of his brief.

Ever since it was positively stated in the Civil Rights 
Cases, supra, it has been universally accepted by all of the 
courts, federal and state alike, and by this court itself that 
the Fourteenth Amendment created no right to be free of 
private discrimination in the use of privately owned and 
operated facilities. In fact, in that case, the court held that 
Congress itself, even under its power to enact legislation 
under Section 5 of the Fourteenth Amendment, could not 
enter into such a field of “municipal law regulative of all 
private rights between man and man in society” and enact 
positive legislation forbidding such discrimination. This 
court said that to have Congress establish such a code of 
municipal law “would be to make Congress take the place of 
the state legislatures and to supersede them.”

When it is conceded that a private individual may make 
distinctions, that is to say may discriminate, on purely 
racial grounds in selecting his customers, guests, employees, 
etc.—and, in the absence of valid applicable federal or state 
statutes to the contrary, it must be so conceded—then, when 
he does so discriminate or make distinctions, it is made by 
him as an individual and is complete and over.

When the person affected by the action of another indi­
vidual insists upon a contrary “right” which he does not 
have and then proceeds to violate the property rights ad­
mittedly possessed by such other party and insists upon 
remaining upon the property of the other, the discrimina­
tion complained of does not become that of the state when 
its simple law of trespass is applied.

Indeed, in the recent case of Griffin v. Collins (U. S. D.



29

C. Md.), .....  F. Supp........, 29 Law Week 2109, decided
August 25, I960, the Court held that the arrest of Negro 
trespassers by Maryland police, in response to the request 
of an amusement park proprietor for police assistance in 
enforcing such park’s policy of excluding Negroes, did 
not constitute state action in violation of the Due Process 
and Equal Protection clause of the Fourteenth Amend­
ment or of the Civil Rights Act. In the course of its 
opinion, the Court stated:

“Plaintiffs concede the right of the corporate defend­
ants, as owners and operators of [amusement] park, to 
serve or refuse to serve whomever they please, and con­
cede that said defendants like other property owners or 
operators of a private business may use ‘self-help’ to 
eject a Negro who insists on remaining on the premises 
after being told to leave. Counsel argue, however, that 
if the proprietor of a business calls a police officer, 
deputy sheriff, or other state official to remove or arrest 
the Negro, such action or arrest would (1) violate the 
Equal Protection and Due Process Clauses of the Four­
teenth Amendment, which forbid state-imposed racial 
discrimination in the field of recreational activity, and 
(2) deprive the Negro of his rights under 42 U.S.C.A. 
1981 and 1983.

“Plaintiffs have cited no authority holding that in the 
ordinary case, where the proprietor of a store, restau­
rant, or amusement park, himself or through his own 
employees, notifies the Negro of the policy and orders 
him to leave the premises, the calling in of a peace 
officer to enforce the proprietor’s admitted right would 
amount to deprivation by the state of any rights, privi­
leges or immunities secured to the Negro by the Consti­
tution or laws. Granted the right of the proprietor to 
choose his customers and to eject trespassers, it can 
hardly be the law, as plaintiffs contend, that the pro­
prietor may use such force as he and his employees pos­
sess but may not call on a peace officer to enforce his 
rights.”



30

Please note that the Virginia statute is color blind. It is 
concerned with only three questions:

Was the defendant on the property of another ?
Was the defendant directed to leave?
Did he refuse to do so ?

The legislation is not concerned with whether the defend­
ant or the other individual was white, green, purple or 
black, or with whether the two parties were of the same or 
of different races, religions, creeds or whatever.

Nor should the policeman who makes the arrest, or the 
court zuhich tries the defendant, he concerned with such 
facts. In truth, if justice is to he color blind, evidence of 
such facts would be inadmissible.

The case we have here is not such a case as Marsh v. 
Alabama, 326 U. S. 501, which involved what was in fact 
a town, a whole community. The town, a suburb of Mobile, 
Alabama, was owned by a corporation. Except for that, it 
had all the characteristics of any other American town. The 
property consisted of residential buildings, streets, a system 
of sewers, a sewage disposal plant, a business block. A 
deputy of the Mobile county sheriff, paid by the company, 
served as the town’s policeman. The United States had a 
post office there. The town and the surrounding neighbor­
hood were thickly populated. The surrounding neighbor­
hood could not be distinguished from the company’s prop­
erty by any one not familiar with the property lines. This 
court there held that a person could not be punished for dis­
tributing religious literature upon the sidewalks of the town.

Nor do we have here such a case as Shelley v. Rraemer, 
supra, or Barrows v. Jackson, 346 U. S. 249, which in­
volved the efforts of one person to control the action of a 
second party in his relations with still a third party, and the 
use by the state of its powers to compel one person who did



31

not wish to discriminate to carry out actual discrimination 
against another. Note that in those two cases this court was 
dealing with cases in which justice was not color blind. The 
state judicial proceeding complained of was predicated upon 
race, required evidence as to the race of the individuals 
involved and the orders of the court were entered solely 
on the grounds of the race of the individuals involved.

That this court has not applied Marsh v. Alabama and 
Shelley v. Kraemer, supra, to prohibit state judicial action 
not in itself concerned with racial issues, or religious issues, 
or issues of freedom of the press, but only with property 
rights (which possibly may have arisen after there has been 
some private discrimination by an individual) is shown by 
Hall v. Virginia, 188 Va. 72, App. dism. 335 U. S. 875, 
Rehearing denied 335 U. S. 912, and Breard v. Alexandria, 
341 U. S. 622.

It is submitted that the petitioner presents no case of the 
violation of his rights under the Fourteenth Amendment.

CONCLUSION

For the reasons heretofore stated, counsel for the Com­
monwealth respectfully submit that the judgment of the 
Supreme Court of Appeals of Virginia should be affirmed.

Respectfully submitted,

A. S. H a rr iso n , J r .
A Homey General of Virginia

R. D. M cI l w a in e , I I I  
Assistant Attorney General

W alter  E. R ogers 
Special Assistant

Supreme Court-State Library Building 
Richmond 19, Virginia



A P P E N D I X  A

49 U.S.C.A. 3(1)
It shall be unlawful for any common carrier subject to 

the provisions of this chapter to make, give, or cause any 
undue or unreasonable preference or advantage to any par­
ticular person, company, firm, corporation, association, lo­
cality, port, port district, gateway, transit point, region, 
district, territory, or any particular description of traffic, 
in any respect whatsoever; or to subject any particular per­
son, company, firm, corporation, association, locality, port, 
port district, gateway, transit point, region, district, terri­
tory, or any particular description of traffic to any undue 
or unreasonable prejudice or disadvantage in any respect 
whatsover: Provided, however, That this paragraph shall 
not be construed to apply to discrimination, prejudice, or 
disadvantage to the traffic of any other carrier of whatever 
description.

49 U.S.C.A. 316(d)
All charges made for any service rendered or to be ren­

dered by any common carrier by motor vehicle engaged in 
interstate or foreign commerce in the transportation of 
passengers or property as aforesaid or in connection there­
with shall be just and reasonable, and every unjust and un­
reasonable charge for such service or any part thereof, is 
prohibited and declared to be unlawful. It shall be unlawful 
for any common carrier by motor vehicle engaged in inter­
state or foreign commerce to make, give, or cause any undue 
or unreasonable preference or advantage to any particular 
person, port, gateway, locality, region, district, territory, 
or description of traffic, in any respect whatsoever; or to 
subject any particular person, port, gateway, locality, region,



App. 2

district, territory, or description of traffic to any unjust 
discrimination or any undue or unreasonable prejudice or 
disadvantage in any respect whatsoever: Provided, how­
ever, That this subsection shall not be construed to apply to 
discriminations, prejudice, or disadvantage to the traffic of 
any other carrier of whatever description.



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