Larkin v. Paterson Petition for a Writ of Certiorari

    IN  TH E

§>uju*ruu> (Eciurt nf tin' United States
October Term, 1955

No. 511

SOUTH CAROLINA ELECTRIC AND GAS COMPANY,
a corporation,

Appellant,
v.

SARAH MAE FLEMMING,
Appellee.

On A ppeal from the U nited S tates Court of A ppeals 
for the F ourth Circuit

MOTION TO AFFIRM

W illiam Taylor,
of Counsel.

R obert L. Carter, 
T hurgood Marshall, 
P hilip W ittenberg, 

Attorneys for Appellee.

Supreme Printing Co.. I nc., 114 W orth Street, N. Y. 13. BEekman 3-2320 
<*̂ §£■>49



TABLE OF CONTENTS

PAGE

Statement .....................................................................  1
S ta tu te s .........................................................................  4
Argument ...................................................................... 6

Table of Cases Cited

Bolling v. Sharpe, 347 U. S. 497 ................................  6, 7, 8
Brown v. Board of Education, 347 U. S. 483 .........  6, 8
Buchanan v. Warley, 245 U. S. 6 0 ............................  6, 8
Dawson v. Mayor, 220 F. 2d 386 (CA 4th 1955)........ 8
Dawson v. Mayor, — U. S. — ..................................... 6
Henderson v. United States, 339 U. S. 816 ......... 7, 9,10,11
Holmes v. City of Atlanta, — U. S. — ..................... 6
Keyes v. Carolina Coach Co., — I. C. C. — .............  7
Mitchell v. United States, 313 U. S. 8 8 ......................  9
Moore v. Atlantic Coast Line R. Co., 98 F. Supp. 375

(E. D. Pa. 1951) ........................................................... 12
Morgan v. Virginia, 328 U. S. 374 ............................  7, 8
National Association for the Advancement of Colored 

People v. St. Louis-San Francisco Ry. Co., —
I. C. C. — ..............................................................  7

Picking v. Penn. R. R. Co., 151 F. 2d 240 (CA 3rd
1945) .............................................................................. 12

Plessy v. Ferguson, 163 U. S. 537 ..............................  4, 6, 9
Shelley v. Kraemer, 334 U. S. 1 ................................  6, 9
Sweatt v. Painter, 339 U. S. 629 ................................  9



11

Statutes Cited
PAGE

S. C. Code, § 58-1402 (1952) ....................................... 4,11
S. C. Code, § 58-1403 (1952) .......................................  5,11
S. C. Code, § 58-1406 (1952) ....................................... 5,11
S. C. Code, § 58-1422 (1952) .......................................  5,11
S. C. Code, § 58-1461 (1952) ....................................... 6,11
S. C. Code, §58-1491 (1952) ...................................... 2,11
S. C. Code, §58-1492 (1952) .....................................  2, 11
S. C. Code, § 58-1493 (1952) ....................................... 2,11
S. C. Code, § 58-1494 (1952) ....................................... 2,11
S. C. Code, § 58-1495 (1952) ....................................... 2,11
S. C. Code, § 58-1496 (1952) ....................................... 2,11
Title 28, United States Code:

Section 1343(3) ................................................... 11
Title 42, United States Code:

Section 1981 ........................................................  11
Section 1983 ........................................................  11

Title 42, United States Code:
Section 3(1) ..........................................................  7,9
Section 316(d) ......................................................  7



IN  TH E

Supreme (Ernirt of % THinttb
October Term, 1955 

No. 511

S outh Carolina E lectric and Gas Company, 
a corporation,

Appellant,
v.

S arah Mae F lemming,
Appellee

On A ppeal from the U nited S tates Court of A ppeals 
for the F ourth Circuit

-------------------------------o-------------------------------

MOTION TO AFFIRM

Pursuant to Rule 16 of the Revised Rules of the 
Supreme Court of the United States, appellee moves that 
the judgment and decree of the Court of Appeals be 
affirmed on the ground that the questions raised in this 
appeal are without substance in law or fact and that the 
judgment of the court below is clearly correct and in 
accord with the decisions of this Court.

Statement *

On June 22, 1954, appellee, an American citizen of 
Negro origin, boarded a bus owned by appellant, a public 
service carrier engaged in the business of passenger trans­
portation within the City of Columbia, South Carolina, pur­
suant to franchise or certificate of public convenience. The



2

bus, like others in appellant’s fleet, had an exit at the 
front and rear, a long vertical seat on either side of the 
aisle, followed by several rows of horizontal seats and a 
long back seat at the rear extending across the entire width 
of the bus.

Title 58, Sections 58-1491-58-1493, Code of Laws of South 
Carolina, 1952, makes segregation of the races on motor 
vehicle carriers mandatory. Under Section 58-1491 failure 
by the carrier to enforce segregation in its vehicles con­
stitutes a misdemeanor, rendering the carrier subject to 
penalties up to $250 for each offense. Under Section 58- 
1493 a bus driver may be charged with a misdemeanor for 
failure to enforce segregation and fined up to $25 for each 
offense. Section 58-1495 subjects passengers to fines not 
in excess of $25 for violations of the state’s policy, and 
Section 58-1496 empowers the bus driver to eject passen­
gers from the bus who refuse to comply with the carrier’s 
regulations designed to enforce racial segregation and pro­
tects the driver and carrier from suit for damages result­
ing from such ejection.

Section 58-1493 empowers the bus driver to change the 
designation of space “ so as to increase or decrease the 
amount of space or seats set apart for either race . . . 
But no contiguous seats on the same bench shall be occu­
pied by white and colored persons at the same time.” 
Under Section 58-1494 a “ driver, operator or person in 
charge of any such vehicle, in the employment of any com­
pany operating it, while actively engaged in the operation 
of such vehicle, shall be a special policeman and have all 
the powers of a conservator of the peace in the enforce­
ment of the provisions of this article and in the discharge 
of his duty as such special policeman in the enforcement 
of order upon such vehicle.”

To comply with these provisions appellant has adopted 
and enforces a policy, custom, rule, regulation or practice



3

pursuant to which white persons are seated from the from 
to rear of its buses and Negro passengers from rear to 
front. This policy, custom, rule, regulation or practice, 
adopted and enforced under color of state law, makes it 
unlawful for a Negro to occupy a seat in appellant’s bus 
in front of or beside a white person, and conversely it is 
unlawful for any white person to occupy a seat in back of 
or beside a Negro.

When appellee boarded the bus in question, white per­
sons were sitting in the forward section of the bus. Pur­
suant to appellant’s policy that section of the bus thereby 
became the “ white” section, and all Negro passengers had 
to take seats in back of those occupied by white persons. 
All seats to the rear of those occupied by white persons 
became the “ colored” section and were all occupied, and 
many Negro passengers were standing when appellee 
boarded the bus. Because of the crowded condition of the 
bus, appellee stood in the forward or “ white” section of 
the bus. Thereafter, a white passenger left the bus, and 
appellee took the seat vacated which resulted in her sitting 
in front of one or two white passengers, and the alterca­
tion resulting in the instant lawsuit ensued.

The bus driver in a loud and threatening tone ordered 
appellee to get up from the seat she had taken. She did 
not obey at once, and he repeated his order. In fear of 
further humiliation and possible bodily harm appellee left 
the disputed seat and prepared to leave the bus by the 
front exit, although as yet some distance from her desired 
destination. The driver permitted white passengers to use 
this exit but ordered appellee to leave by the rear door, 
and he struck her to enforce his command.

Appellee, having suffered physical injury, humiliation 
and embarrassment resulting from the state’s policy, com­
menced the instant litigation, an action for damages, in



4

the district court on the ground that the South Carolina 
statutes requiring racial segregation on intrastate motor 
vehicle carriers are unconstitutional and void, and that 
appellant’s enforcement of the state’s unconstitutional 
policy violated appellee’s rights under the Fourteenth 
Amendment. The district court held that Plessy v. Fer­
guson, 163 U. S. 537, was controlling and granted appel­
lant’s motion to dismiss on the merits. Its decision is 
reported at 128 F. Supp. 469. The Court of Appeals re­
versed on the ground that the state’s policy is unconstitu­
tional in that the “ separate but equal” doctrine of Plessy 
v. Ferguson was no longer a correct statement of the law 
and could not be applied to intrastate commerce. It is 
reported at 224 F. 2d 752. This appeal followed.

Statutes

Appellant in its jurisdictional statement has set forth 
some of the statutory law which should be considered in 
connection with this appeal. In addition to the statutes 
cited by appellant the following statutes are evidence of 
the control the state exercises over appellant’s operation, 
and are, therefore, important to the disposition of this 
appeal:

§ 58-1402. Transportation by motor vehicle for com­
pensation regulated.

No corporation or person, their lessees, trustees 
or receivers, shall operate any motor vehicle for the 
transportation of persons or property for compen­
sation on any improved public highway in this State 
except in accordance with the provisions of this 
chapter and any such operation shall be subject to 
control, supervision and regulation by the Commis­
sion in the manner provided by this chapter.



§ 58-1403. Certificate and payment of fee required.
No motor vehicle carrier shall hereafter operate 

for the transportation of persons or property for 
compensation on any improved public highway in 
this State without first having obtained from the 
Commission, under the provisions of article 2 of 
this chapter, a certificate and paid the license fee 
required by article 3.

§ 58-1406. Penalties.
Every officer, agent or employee of any corpora­

tion and every other person who wilfully violates 
or fails to comply with, or who procures, aids or 
abets in the violation of, any provision of articles 1 
to 6 of this chapter or who fails to obey, observe or 
comply with any lawful order, decision, rule, regu­
lation, direction, demand or requirement of the Com­
mission or any part or provision thereof shall be 
guilty of a misdemeanor and punishable by a fine 
of not less than twenty-five dollars nor more than 
one hundred dollars or imprisonment for not less 
than ten days nor more than thirty days.

§ 58-1422. Revocation, etc., of certificates; appeal.
The Commission may, at any time, by its order, 

duly entered, after a hearing had upon notice to the 
holder of any certificate hereunder at which such 
holder shall have had an opportunity to be heard 
and at which time it shall be proved that such holder 
has wilfully made any misrepresentation of a mate­
rial fact in obtaining his certificate or wilfully vio­
lated or refused to observe the laws of this State 
touching motor vehicle carriers or any of the terms 
of his certificate or of the Commission’s proper 
orders, rules or regulations, suspend, revoke, alter 
or amend any certificate issued under the provisions



6

of articles 1 to 6 of this chapter. But the holder of 
such certificate shall have the right of appeal to 
any court of competent jurisdiction.

§ 58-1461. Commission to supervise carriers; rates.
The Commission shall supervise and regulate 

every motor carrier in this State and fix or approve 
the rates, fares, charges, classification and rules and 
regulations pertaining thereto of each such motor 
carrier. The rates now obtaining for the respective 
motor carriers shall remain in effect until such time 
when, pursuant to complaint and proper hearing, 
the Commission shall have determined that such 
rates are unreasonable.

Argument

1. There can no longer be doubt that the “ separate but 
equal” doctrine of Plessy v. Ferguson, pursuant to which 
states have enforced and maintained racial segregation 
and discrimination in both public and private institutions, 
is no longer a reliable yardstick to determine whether a 
state has met its obligations under the Fourteenth Amend­
ment to the Constitution of the United States. It must be 
conceded, of course, that this Court has not expressly 
rejected the application of Plessy v. Ferguson to intra­
state commerce. On the other hand, the “ separate but 
equal” doctrine has been steadily restricted and expressly 
repudiated in other areas, and these decisions indicate, we 
submit, that the Plessy' decision is no longer controlling, 
Brown v. Board of Education, 347 U. S. 483; Bolling v. 
Sharpe, 347 U. S. 497 (public education); Buchanan v. 
Warley, 245 U. S. 60; Shelley v. Kraemer, 334 U. S. 1 
(housing); Dawson v. Mayor, — U. S. —, and Holmes v. 
City of Atlanta, — U. S. —, decided November 7, 1955 
(public recreational facilities and activities). Further,



7

Morgan v. Virginia, 328 U. S. 374 (which invalidated the 
application of state laws requiring segregation to inter­
state commerce) and Henderson v. United States, 339 U. S. 
816 (which states in effect, if not in terms, that enforcement 
of the “ separate but equal” doctrine constitutes a for­
bidden discrimination under the Interstate Commerce 
Act)1 cast serious doubt on the doctrine’s validity in intra­
state commerce.2 No valid reason exists, we submit, which 
warrants maintenance of “ separate but equal” in intra­
state commerce when it has been abandoned in other areas.

The truth of the matter is that the “ separate but equal” 
doctrine has been riddled unto death. It is at war with 
the Court’s present, interpretation of the Fourteenth 
Amendment, and all its rationale has been rejected by 
this Court. No longer will a mere showing that equal 
facilities are made available to the Negro group suffice 
to sustain a racial classification as was the case when the 
Plessy doctrine was considered controlling. For this Court 
has now taken the position that racial classifications are 
suspect and must be subjected to the most careful scrutiny. 
See Bolling v. Sharpe, supra, where the Court said at 
pages 499, 500:

Classifications based solely upon race must be 
scrutinized with particular care, since they are con­

1 Title 49, United States Code, Section 3(1).
2 The doctrine was dealt another blow in National Association for 

the Advancement of Colored People v. St. Louis-San Francisco Ry. 
Co., — I. C. C. —, and Keyes v. Carolina Coach Co., — I. C. C. —, 
decided November 7, 1955, by the Interstate Commerce Commission, 
in which the Commission found that segregation in interstate railroad 
coaches, buses and station waiting rooms constitutes an undue preju­
dice and disadvantage in violation of the Interstate Commerce Act 
(Title 49, United States Code, Section 3(1)) and the Motor Car­
riers Act (Title 49, United States Code, Section 316(d)), even 
though “separate but equal” facilities are provided for Negro passen­
gers.



8

trary to our traditions and hence constitutionally 
suspect. As long ago as 1896, this Court declared 
the principle “ that the Constitution of the United 
States, in its present form, forbids, so far as civil 
and political rights are concerned, discrimination 
by the General Government, or by the States, against 
any citizen because of his race.” And in Buchanan 
v. Warley, 245 U. S. 60 . . . the Court held that a 
statute which limited the right of a property owner 
to convey his property to a person of another race 
was, as an unreasonable discrimination, a denial of 
due process of law.

Although the Court has not assumed to define 
“ liberty” with any great precision, that term is 
not confined to mere freedom from bodily restraint. 
Liberty under law extends to the full range of con­
duct which the individual is free to pursue, and it 
cannot be restricted except for a proper govern­
mental objective. . . .

Nor is the police power argument relied upon by the 
Court in 1896 persuasive today. See Buchanan v. Warley, 
supra; Morgan v. Virginia, supra. As the Court of Ap­
peals for the Fourth Circuit said in Dawson v. Mayor, 
supra, 220 F. 2d 386, 387, “ segregation cannot be justified 
as a means to preserve the public peace merely because 
the tangible facilities furnished to one race are equal to 
those furnished the other.”

Moreover, the great body of legal authority cited to 
support the decision reached in the Plessy case were lower 
state and federal decisions upholding segregation in the 
public schools. These authorities were repudiated in 
Brown v. Board of Education, supra, and Bolling v. Sharpe, 
supra.



9

The “ separate but equal” doctrine has been rejected 
in all material respects. All that remains is the formality 
of expressly overruling Plessy v. Ferguson in the field of 
intrastate commerce, the only area where the “ separate 
but equal” doctrine has been applied by this Court. We 
respectfully urge the Court to take this opportunity to 
overrule the Plessy case and thereby grant this trouble­
some concept a final repose.

2. Henderson v. United States, supra, suggests that 
racial segregation in transportation is a prohibited dis­
crimination forbidden under Section 3(1) of the Interstate 
Commerce Act. Undue prejudice and disadvantage pro­
hibited under Section 3(1) of the Act has been given the 
same meaning by this Court as the Fourteenth Amend­
ment’s mandate of equal protection of the laws. For ex­
ample, compare the statement in Sweatt v. Painter, 339 
U. S. 629, 635, that rights under the Fourteenth Amend­
ment are personal and present with that in Mitchell v. 
United States, 313 U. S. 88, 97, concerning the personal 
character of rights under Section 3(1) of the Interstate 
Commerce Act; and compare the statement in Shelley v. 
Kraemer, 334 U. S. 1, 22, that indiscriminate discrimina­
tion is not equality under the Fourteenth Amendment with 
a similar pronouncement in Henderson v. United States, 
supra, at 825, concerning equality under the Interstate 
Commerce Act.

In the Henderson case, the Court struck down a car­
rier regulation pursuant to which a table for four persons 
was permanently reserved in the carrier’s dining car for 
the exclusive use of Negro passengers, while the remaining 
tables were reserved exclusively for white persons. The 
Court found the regulation invalid as it did not prevent 
the possibility that a Negro might be denied service where 
the table reserved for Negroes was in use, but there were 
vacancies in the other part of the dining car. The Court 
said on this point at pages 824, 825:



10

The right to be free from unreasonable dis­
criminations belongs, under §3(1), to each particu­
lar person. Where a dining car is available to 
passengers holding tickets entitling them to use it, 
each such passenger is equally entitled to its facili­
ties in accordance with reasonable regulations. The 
denial of dining service to any such passenger by 
the rules before us subjects him to a prohibited dis­
advantage. Under the rules, only four Negro pas­
sengers may be served at one time and then only at 
the table reserved for Negroes. Other Negroes who 
present themselves are compelled to await a vacancy 
at that table, although there may be many vacancies 
elsewhere in the diner. The railroad thus refuses 
to extend to those passengers the use of its exist­
ing and unoccupied facilities. The rules impose a 
like deprivation upon white passengers whenever 
more than 40 of them seek to be served at the same 
time and the table reserved for Negroes is vacant.

Under the Henderson formula, it is impossible to main­
tain segregation in railway dining cars or in any area 
of limited space, because no regulation requiring racial 
segregation can avoid the possibility that a member of the 
segregated group may be denied service or the use of the 
facility in question, where space may be available in that 
portion of the facilities barred to members of his racial 
group.

Application of that reasoning to the instant case would 
necessarily condemn the state law here involved. Under 
South Carolina law no Negro or white person may occupy 
contiguous space on the same seat on appellant’s buses. 
To comply with these requirements appellant enforces 
regulations which seat white persons front to rear and



11

Negro passengers rear to front, and no Negro may sit 
beside or in front of a white person. Thus, a situation 
must necessarily occur, as in the instant case, when a seat 
is available beside or in front of a white person, and a 
Negro passenger must remain standing because all seats 
which the regulations permit him to occupy are filled.3

3. That federal jurisdiction exists is clear. Appellee 
alleged in her complaint that her action arose under the 
fourteenth Amendment and under Title 42, United States 
Code, Sections 1981 and 1983 and invoked federal jurisdic­
tion under Title 28, United States Code, Section 1343 (3). 
Appellee’s basic contention is that Title 58, Section 58-1491 
to 58-1496, inclusive, Code of Laws of South Carolina, 
1952, set out in Appendix C to appellant’s jurisdictional 
statement makes the carrier a state instrumentality for the 
enforcement of the state’s policy of segregation on appel­
lant’s buses. Further, Sections 58-1402, 58-1403, 58-1406, 
58-1422, 15-1461 (cited swpra at pages 4-6) clearly demon­
strate that, insofar as enforcement of racial segregation is 
concerned, the carrier must enforce the state’s policy or risk

3 It is also of interest that the Interstate Commerce Commission 
in the two cases decided on November 7th past, cited ante, which 
held that the Interstate Commerce Act bars segregation in inter­
state railway coaches, buses and waiting rooms, even though equal 
facilities are provided, quotes the following language appearing at 
page 825 in the Henderson case in support of its conclusion that seg­
regation is a prohibited discrimination under the Interstate Com­
merce A ct:

We need not multiply instances in which these rules sanc­
tion unreasonable discriminations. The curtains, partitions 
and signs emphasize the artificiality of a difference in treat­
ment which serves only to call attention to a racial classifica­
tion of passengers holding identical tickets and using the same 
public dining facility.



12

loss of its right to operate its business within the state. 
Unquestionably, appellant was acting under color of law 
in promulgating and enforcing regulations designed to 
accomplish on its buses the racial segregation required by 
state law. Both bus driver and the carrier became the 
state’s instruments for the purpose of effecting its policy.

Neither Picking v. Penn R. R. Co., 151 F. 2d 240 (CA 
3d 1945), nor Moore v. Atlantic Coast Line R. Co., 98 F. 
Supp. 375 (E. D. Pa. 1951), is contrary or in conflict with 
the decision below in this case. Apparently, the reason for 
their citation is the suggestion in both cases that employ­
ees of private corporations engaged in passenger trans­
portation could not be held to act under color of law with­
out a showing that they conspired with state officials or 
purported to act as state officials. As a general statement, 
this may well be true, but there was no showing in either 
case cited of a statutory scheme which empowered and 
required the carrier to enforce the state’s policy. Such 
is the situation here. The state requires that intrastate 
motor vehicle carriers maintain and enforce segregation in 
the operation of their vehicles. The state’s policy could 
not be enforced in the abstract, and it delegated to the 
carrier the authority to promulgate and enforce regula­
tions that would effectuate the statutory policy. For 
that purpose, therefore, the carrier necessarily became a 
state instrumentality, and as such its action is within the 
reach of the Fourteenth Amendment.



13

Conclusion

Wherefore, for the reasons hereinabove indicated, it is 
respectfully submitted, the judgment of the Court of 
Appeals is correct and this motion to affirm should be 
granted.

R obert L. Carter, 
T hurgood Marshall, 
P hilip W ittenberg, 

Attorneys for Appellee.

W illiam T aylor,
of Counsel.